Sleeping with an Elephant: Devolution and the United Kingdom Internal Market Act 2020
- Nicola McEwen, University of Edinburgh
- Aileen McHarg, University of Durham
- Jo Hunt, Cardiff University
- Michael Dougan, University of Liverpool
The constitutional fall-out from the process of withdrawing from the European Union has been dramatic and wide-ranging. The focus of this article is the impact of withdrawal on devolution and the territorial constitution, through an examination of the market access principles that are at the core of the United Kingdom Internal Market Act 2020 (UKIMA).
UKIMA represents a novel meeting of two hitherto distinct worlds: on the one hand, the theory and practice of cross-border trade management and internal markets, and on the other hand, the UK system of devolution. In the first part of the article, we introduce the world of internal markets, and the internationally familiar governance toolbox that has been developed to assist in their operation and management. In the second part of the article, we set out the distinctive legal and political context of the UK’s territorial constitution. Against those twin backgrounds, in the third part we summarise the core principles of the legislation, explaining the choice of tools selected for the management of the fledgling UK internal market: the market access principles for goods and services, the mutual recognition of qualifications, and the mechanisms for monitoring and enforcement. In the final part, we explore the legal and political implications of the market access principles for devolution and territorial governance. We argue that whilst the legislation draws on familiar tools of internal market management, it does so in a way that is ill-adapted to the distinctive features of the UK, wherein one territory, England, is so much larger in market terms than the rest. The Act has restrictive – and potentially damaging – consequences for the regulatory capacity of the devolved legislatures that live next door to this English elephant, both by limiting the reach of devolved law, and by increasing pressure to conform to regulatory norms set by the UK government for England. UKIMA, as one amongst a series of continued provocations to devolved power, most of which have been introduced in the face of considerable opposition from the devolved institutions, presents significant challenges for the continuation of an increasingly fragile union.
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This journal article was published on SSRN, 26 January 2022