United Kingdom Internal Market Bill Contents

Chapter 1: Introduction

The Bill

1.The United Kingdom Internal Market Bill was introduced in the House of Commons on 9 September 2020 and passed on 29 September. It was brought to the Lords on 30 September and second reading is scheduled for 19 October.

2.The Government had said that the purpose of the Bill is to “preserve the UK internal market” at the end of the Brexit transition period. It provides for:

3.The aim of protecting the free flow of trade within the United Kingdom, which the Government explains is the purpose of the Bill, is welcome and in itself uncontroversial. The question is how best to achieve this.

4.However, while the Bill is presented as an economic measure, it is also one of profound constitutional significance, primarily for its effects on the devolution arrangements in the UK and its interaction with international law. In this report we explore these issues and other implications of the Bill.

5.In chapter 2 we explore the devolution implications of the Bill. In chapter 3 we consider the effects of individual clauses in greater detail. Chapter 4 examines the issues with clauses that provide powers to ministers to breach international law and in chapter 5 we consider the implications of attempting to protect the use of those powers from judicial review. Chapter 6 considers the obligations on the Government to abide by the rule of law and chapter 7 reflects on the balance between the constitutional principles of parliamentary sovereignty and the rule of law.

6.We are grateful to all those who gave evidence to us at short notice to inform our consideration of this Bill.

Consultation and pre-legislative scrutiny

7.The Bill was preceded by the UK Internal Market white paper, published by the Government on 16 July 2020.2 It was open for consultation for just four weeks and the Bill was published four weeks after it closed. We have concluded previously that “six weeks should be considered a minimum feasible consultation period, save in circumstances which would be generally recognised as exceptional.”3

8.We wrote to the Lords minister, Lord Callanan, expressing concerns about the proposals in the white paper and in particular the haste at which the Government was intending to proceed and the limited time available for consultation. We said there was “a need for reflection and wide consultation in order to determine the best way forward and one that can maximise consensus between the four nations of the UK.”4

9.Our witnesses also expressed concern about the lack of consultation on the Bill. We were told that the devolved administrations were sent a copy of the Bill only one or two days before its publication.5 Professor Nicola McEwen, University of Edinburgh, said that time was not allowed:

“for proper engagement ahead of the introduction of the Bill to try to iron out the devolution aspects that we know will lead to [devolved] parliaments refusing to give their legislative consent. More collaboration earlier on can assist the passage of a piece of legislation, particularly one of this constitutional significance.”6

10.Professor Joanne Hunt, University of Cardiff, said that “given the significance of this piece of legislation’s constitutional implications for devolution, the lack of engagement seems particularly egregious.”7 Mick Antoniw MS, Chair of the Legislation, Justice and Constitution Committee in the Welsh Parliament, described the Bill as “a constitutional ambush”.8 The Finance and Constitution Committee of the Scottish Parliament concluded the UK Government’s “ad hoc” approach to devolution “without sufficient consultation with the devolved institutions and a wider public debate is unsustainable.”9

11.We have previously emphasised the importance of consultation and of pre-legislative scrutiny.10 In our report on The Process of Constitutional Change we concluded: “significant constitutional legislation should be subject to pre-legislative scrutiny. This requirement should be departed from only in exceptional circumstances”.11 While the United Kingdom’s departure from the European Union constitutes an exceptional circumstance, it does not justify failing to consult on the proposals in the United Kingdom Internal Market Bill at an earlier stage.

12.The United Kingdom voted to leave the European Union on 23 June 2016. A Withdrawal Agreement was finalised by Rt Hon Theresa May MP as Prime Minister on 25 November 2018 and the amended Agreement by her successor Rt Hon Boris Johnson MP on 17 October 2019.12 Since 2017 extensive discussions on post-Brexit arrangements have taken place between the UK Government and devolved administrations, such as the scoping and development of common frameworks. It is unclear why these internal market proposals were published so close to the end of the transition period on 31 December 2020.

13.It is regrettable that the consultation on the United Kingdom Internal Market Bill has been so limited. A consultation that is open for four weeks, with a bill published four weeks after it closes, does not allow the Government to engage a wide range of stakeholders; nor does it give time for adequate reflection.

14.It is concerning that the devolved institutions consider the engagement they had with the UK Government on these proposals to have been poor. At a time when the Government is seeking to strengthen the Union, the handling of the United Kingdom internal market risks undermining those efforts and reducing trust.

1 United Kingdom Internal Market Bill [HL Bill 135 (2019–21)], Explanatory Notes, para 7

2 Department for Business, Energy & Industrial Strategy, UK Internal Market, 16 July 2020, CP 278: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/901225/uk-internal-market-white-paper.pdf [accessed 12 October 2020]

3 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27), para 58

5 See Q 20 (Professor Nicola McEwen) and Q 29 (Mick Antoniw MS).

6 Q 23 (Professor Nicola McEwen)

7 Q 23 (Professor Joanne Hunt)

8 Q 28 (Mick Antoniw MS)

9 Letter from Bruce Crawford MSP, Convenor, Finance and Constitution Committee, Scottish Parliament, to Rt Hon Michael Gove MP, Chancellor of the Duchy of Lancaster, 6 October 2020: https://www.parliament.scot/S5_Finance/General%20Documents/FOR_ISSUE_Internal_Market_Bill_LCM_report(4).pdf [accessed 12 October 2020]

10 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27), Chapter 3

11 Constitution Committee, The Process of Constitutional Change (15th Report, Session 2010–12, HL Paper 177), para 95

12 Constitution Committee, European Union (Withdrawal Agreement) Bill (1st Report, Session 2019–21, HL Paper 5), para 9

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