Met with fury for its law-breaking clauses, the IMB’s implications for the devolution settlement are equally alarmingby George Peretz / October 13, 2020 / Leave a comment
In August, I expressed concern in an article for Prospect about the impact on the devolution settlement of the government’s proposals set out in the white paper on the UK internal market. These were to impose general constraints on the powers of the devolved governments to legislate in ways that create barriers to trade between the home nations.
Those proposals have now been turned into the Internal Market Bill. Later parts of that bill concern the controversial proposals to give the government powers to breach the Withdrawal Agreement with the EU, on which much has been said. But the earlier parts of the bill turn the white paper proposals into law. Do those parts bear out my warning, or do they, as Business Secretary Alok Sharma claimed in the House of Commons, “support one of the biggest transfers of power to the devolved administrations”?
The “transfer of power” claim relies on the assertion that the bill imposes less significant constraints on the powers of the devolved governments than the constraints imposed by EU law (which certainly limited those powers: see for example the requirement on Scotland to provide free tertiary education to EU nationals as well as to Scottish students, and the plausible though ultimately unsuccessful challenge based on EU law to the Scottish legislation on minimum alcohol pricing). It is then claimed that all the bill does is to retain those aspects of EU law that protected the UK internal market even after EU law itself has ceased to apply at the end of the transition.
At a superficial level, Sharma’s claim appears to be supported by the basic structure of the bill, which is centred around an approach familiar to EU lawyers. That approach is to provide that rules of national law must be set aside by the courts if they contravene “market access principles” of mutual recognition (goods or services lawfully sold in one nation should be allowed to be sold in another) or non-discrimination (you must not treat goods or services from another nation less favourably than those from your own). And any lawyer familiar with European Court of Justice case law on the free movement of goods and services will see language from that case law scattered…