LAST weekend, Humza Yousaf asked to speak to Alister Jack’s manager. 

Frustrated at the last-minute conditions imposed on the Deposit Return Scheme by the Secretary of State for Scotland, he wrote to the Prime Minister and warned that the whole thing could be kiboshed. 

“This UK Government intervention at such a late stage demonstrates a major erosion of the devolution settlement,” he added. 

“I urge you to revoke the conditions set out in your letter and grant a full exclusion for Scotland’s DRS, to be implemented as per the regulations agreed by the Scottish Parliament in this area of devolved competence.

“Without this, the Scottish Government is not prepared to put Scottish businesses at a competitive disadvantage due to the last-minute demands the UK Government has made.

“There is little doubt your Government’s actions have put the future of DRS in grave danger not only in Scotland but also in the rest of the UK due to the damage to consumer and investor confidence.”

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The First Minister demanded a response by Monday. 

He got one, just not from Rishi Sunak. 

The Prime Minister passed it on to Mr Jack, Michael Gove, and Thérèse Coffey.

No, the three said. They will be no changing hearts here. The Scottish scheme will not get an exemption from the Internal Market Act to keep glass in the DRS.

The conditions set out were “the best way of ensuring simplicity and interoperability, as has been widely called for by businesses in Scotland”.

It’s all a bit of a mess, and somehow we’ve gone from a row over a 20p deposit on a can of Tennent’s to the latest constitutional bourach. 

But what now? Is the DRS in “grave danger” or could it go ahead in some way? 

The noises from Lorna Slater in parliament on Tuesday were, to my ears anyway, not entirely negative.  

Yes, the scheme, as passed by MSPs, “has been shut down by Westminster”.

But now it was about scoping out the other options. 

The word that stuck out for me was “modified”. 

Ms Slater told MSPs the Scotland Government was now seeking to establish “to what extent there is a way forward for a modified scheme”.

To go back to my tortured shop metaphor, the SNP-Green administration may want to take their business elsewhere, but they can’t. The UK Government has a monopoly. 

Under the post-Brexit Internal Market Act, goods sold in one part of the UK should be able to be sold in any other part of the UK without adhering to different regulatory requirements.

For the Scottish scheme to include glass, they need an exemption from the Act.

Or so I assumed.

The Herald:

But in the most recent edition of Holyrood magazine, the Welsh Government explained that they had not sought an exclusion from the UK Internal Market Act for their DRS – due to launch in 2025 – as they “do not recognise that the UK Internal Market Act limits the ability of the Welsh Government to legislate in areas of devolved competence”.

Will that position hold? Or will their legislation end up being only partially enforceable against non-Welsh products?

Clearly though, as Aileen McHarg, Professor of Public Law and Human Rights at Durham University explained to me on Twitter the other day, if the row has exposed one thing, it’s that Internal Market is not a very level playing field. 

“In reality, of course, in the vast majority of cases it is only the devolved government that need exemptions. E.g. the recent England-only legislation authorising gene-edited crops can survive without one because of the size of the English market.

“If a situation were to arise where English regulations were threatened by rUK imports, the UKG could easily secure an exemption or simply legislate to override UKIMA.”

Basically, there used to be a set of legal tests governing the balance between free trade and other objectives which have now “been replaced with ad hoc discretion for the UK Government”.

It’s not a happy position for Ms Slater and the Scottish Government. Either they can (sorry) the DRS and get accused of bottling (sorry) it by the scheme's supporters and incompetence by their opponents. 

Or they push on with a glass-free DRS and end up...

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