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Thomas Horsley reflects on the potential broader significance of the UK and devolved governments’ decision to consult jointly on proposals to introduce restrictions on vapes throughout the UK internal market.

On 12 October 2023, the UK government launched a consultation on proposals to tackle the public health and environmental impacts of vapes as part of its ambition to create a smokefree generation. The consultation invites views on restrictions on the sale of disposable vapes, as well as specific proposals restricting the flavours, packaging, presentation and point of sale display of vapes to make them less attractive to children.

The take-up of vaping among young people continues to grow – in 2023, 20.5% of children (aged 11-17) had tried vaping, up from 15.8% in 2022 and 13.9% in 2020 before the first Covid lockdown. The environmental impact of vapes – many of which are single-use – is also significant. Vapes are typically plastic, contain scarce lithium and are discarded throughout the UK at an estimated rate of 1.3 million units per week.

Vaping and the UK Internal Market

These proposed restrictions on vapes fall within the scope of the United Kingdom Internal Market Act 2020 (UKIMA). That Act introduced the ‘market access principles’ – namely, mutual recognition and non-discrimination – to guarantee the free movement of goods and services throughout the four territories of the UK post-Brexit.

The mutual recognition principle applies to the introduction of legislation regulating, among other things, the composition, labelling and presentation of in-scope goods, which includes vapes. It has important practical effects, particularly for the devolved governments given the dominance of the English market. Say, for example, the Scottish government decided to restrict the marketing of flavoured vapes in Scotland. Under the UKIMA market access principles, these restrictions could not be applied to flavoured vapes entering from England, if no such restrictions were in place there.

The Scottish and Welsh governments (and Northern Ireland’s Department of Health) have publicly committed to participating in the UK government-led consultation in a bid to ensure regulatory outcomes are aligned.

This ‘four nations’ approach marks something of a departure for the management of the UK internal market under the UKIMA market access principles. Joint consultations have previously only been announced between the UK government and no more than two of the three devolved governments (e.g. on the introduction of a deposit return scheme for England, Wales and Northern Ireland).

On matters of policy, the devolved governments (and the UK government legislating for England) have generally preferred to go their own way, rather than regulate through more cooperative ‘four nations’ multilateral initiatives.

Policy coordination has been limited, for the most part, to securing bilateral agreement with the UK government to exempt devolved legislation from the scope of the market access principles. This was the case, for example, in Scotland with respect to the regulation of single-use plastics. On that occasion, the Scottish government prepared its own legislation and sought specific exemptions from the UKIMA market access principles from the UK government through an agreed intergovernmental process.

What does this tell us about the UK Internal Market?

The commitment to explore a ‘four nations’ multilateral approach to vaping regulation may be entirely policy driven. The UK, Scottish and Welsh governments and Department of Health in Northern Ireland all share concerns about the public health and environmental impacts of vaping. However, on a broader view, this may evidence a deeper change in the regulation of the UK internal market since the introduction of the UKIMA market access principles.

The shift to a ‘four nations’ approach on the issue of vaping could indicate a new openness on the part of the devolved governments to shaping policy through multilateral coordination, rather than through unilateral initiatives that remain subject to the constraints of the UKIMA market access principles.

Both the Scottish and Welsh governments have recorded little success with the latter strategy, suggesting that a desire to experiment with multilateralism may, in part, be behind the change in approach on vaping.

Earlier this year, the Scottish government was effectively bounced into realigning its flagship Deposit Return Scheme with the UK government’s proposals for England when it refused to exempt glass products – which were part of the Scottish scheme –  from the UKIMA market access principles.

The UKIMA market access principles also appear to be influencing policymaking in Wales – despite the Welsh government’s strong views to the contrary. On single-use plastics, for example, the Welsh government recently opted to avoid conflict with the UKIMA market access principles by announcing a ‘phased approach’ to implementing the Environmental Protection (Single-Use Plastic Products) (Wales) Act 2023. From 30 October 2023, only products covered by an existing UK-wide exemption from the UKIMA market access principles are prohibited in Wales.

There is a risk of similar outcomes should the devolved governments resolve to go it alone on vaping regulation. The UKIMA market access principles impose significant practical restraints on devolved legislative competence, as the above examples show. This fact does not appear lost on the devolved governments. On 14 October 2023, the UK, Scottish and Welsh governments and the Department of Agriculture, Environment and Rural Affairs for Northern Ireland announced a further joint consultation on proposals to ban the manufacturing, supply and sale of wet wipes containing plastic.

The best there is – for now

The experiment with ‘four nations’ multilateralism to tackle vaping (and plastic wet wipes) may not hold beyond initial agreement to consult jointly on proposed restrictions. However, should it do so, it presents an opportunity for the devolved administrations to test a different strategy for dealing with the restraining effects of the UKIMA market access principles.

It would also signal a return to the logic of the initial approach to managing intra-UK policy divergence post-Brexit under the Common Frameworks Programme, established prior to the UKIMA. The Frameworks embody a more collaborative, flexible and consensus-based approach to managing divergence in areas of devolved competence previously falling within the scope of EU law.

‘Four nations’ multilateralism holds out the promise of a less confrontational approach to governing the UK internal market under the market access principles. That promise remains an imperfect solution, not least given the weaknesses in the intergovernmental structures that govern policy coordination between the UK and devolved governments. These structures have been recently reformed and improved somewhat, but still fall short of establishing a robust, transparent and politically accountable framework for intergovernmental cooperation on the regulation of the UK internal market post-Brexit.

Yet ‘four nations’ multilateralism is likely to remain the strongest safeguard for devolved competences in the absence of significant reforms to the application of the UKIMA market access principles. For that, the devolved governments must pin their hopes on a change of policy at Westminster.

By Dr Thomas Horsley, Reader in Constitutional Law, University of Liverpool.

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