I do not disagree with what Aileen McHarg has said. If we focus on institutions and the devolution settlements, it is very difficult to see the hook on which a court could develop a default system of internal market rules.
That comes back to the important point that was made by Viviane Gravey about the role of individuals. The issue is not about the interpretation of the devolution statutes; it is about an individual finding a way to persuade a court to articulate some sort of internal market principle. I have given the matter a degree of thought, and I believe that an easy route in would be the Human Rights Act 1998. An individual would simply need to say, “I have the freedom of property and the freedom to trade and to run a business, but the Scottish Government and Parliament are inhibiting that freedom by refusing to allow me, as an English trader, to sell my good in Scotland, because it does not meet their local regulatory requirements.” That would be enough of a hook for a court that was minded to do so to create a cassis de Dijon approach. It would simply have to say that Scotland had, prima facie, infringed the English trader’s right to run a business and make a profit and their freedom of property. The court would have to consider how that could be justified or reasoned through from a legal point of view, and then a cassis de Dijon approach could be taken.
The hooks exist and are waiting to be exploited. The question is whether we should set a line that shows that the issues have been thought about and designed politically, which would mean telling the courts to follow what the legislatures had decided, or whether we should provide no solutions and continue talking about such things for many years, while, in the meantime, individuals and businesses push the courts to provide an answer.
A key point is that there must be an answer to the problem. The day will come—it might be in a few weeks or in a few months—when Scotland exercises its devolved powers in a way that creates a barrier to trade or a distortion of competition for an English manufacturer of goods or service provider. We can bet that, the moment that that happens, the English company will say, “Where is my hook to find an answer to the question?” If legislatures have not provided an answer, the English company will want the courts to do that.
The court’s answer might be not to take a cassis de Dijon approach, which would also be a really important decision, as it would mean compartmentalising the UK markets from each other and, in effect, having no right to trade within the UK. The decision to take a cassis de Dijon approach and the decision not to take such an approach would be of equal importance, because one would mean that we would have an expansive UK internal market and the other would mean that we would have a restricted and compartmentalised internal market. Either decision would be equally valid.