Devolution of competition policy under the Scotland Act 2016 after Brexit: straining at the edges of the current settlement?

Abstract

ABSTRACT The purpose of this article is to examine the challenges that Brexit brings for the devolution of certain aspects of competition policy to Scotland. According to section 63 of the Scotland Act 2016, Scottish Ministers can ask the Competition and Markets Authority (CMA) to carry out a phase 2 market investigation after having sought the agreement of their Westminster counterparts. This article will explore the consequences of Brexit for competition policy in the UK by placing the discussion against the broader background of the relationship existing between the central and devolved governments in the UK, with a particular emphasis on Scotland. After discussing, the nature and scope of the powers that have been devolved to the Scottish Government the article will examine the impact of Brexit on competition policy both in general and for these devolved aspects. It will be argued that the current system for the management of the inter-governmental relations between Westminster and Edinburgh may not be able to withstand the challenges brought by Brexit and affecting the role of the CMA and of the UK Government, respectively, in the fields of antitrust, state aid, and merger control. The article will conclude that Brexit has exposed how the current framework for intergovernmental relations may not be suitable to the demands of new forms of devolution that are not predicated upon the distinction between reserved and devolved matters, but depend on the joint decision-making between the UK and the Scottish governments. Thus, unless section 63 of the Scotland Act 2016 is to remain ineffective, it may become necessary to rethink the current ways in which Scottish and UK minister interact in areas where devolution means co-decision as opposed to one government ‘giving way’ to the other.