The market access principles and the subordination of devolved competence

Abstract

The United Kingdom (UK) Internal Market Act 2020’s ‘market access principles’ are capable of disapplying devolved legislation. Because that process qualifies the effectiveness but not the validity of that legislation, the UK Government contends that it leaves devolved competences intact and, therefore, respects the devolution settlement. However, this article argues that the use of disapplication to mechanise the market access principles has a deeper subordinating effect on devolved competence. This is because it suggests that devolved legislation is second-class, even within competence, and it implies that the settlement offers no protection for the effectiveness of devolved legislation, in stark contrast to the position accorded to Westminster. Further, disapplication also points to a less autonomous model of devolution, undermines legal certainty, and conceals significant constitutional changes from view. As such, far from neutralising the Act’s centralising tendencies, disapplication only exacerbates them.