Subordinating devolved competence through the market access principles
Nicholas Kilford*
Intrinsic to the UK’s devolution settlement is the capacity of the devolved legislatures to amend and repeal Acts of the Westminster Parliament which are within devolved competence. Westminster does have the capacity, built into the devolution statutes themselves, to protect certain enactments against this system and it can, of course, itself amend or repeal devolved legislation. However, this system – described elsewhere as ‘dynamism’ – is a practical and conceptual cornerstone of devolution from which important consequences follow. One such consequence is the normative equivalence of Acts of the Westminster Parliament and within-competence Acts of the devolved legislatures. Indeed, there is no general supremacy rule granting Westminster’s legislation priority over devolved legislation or requiring that the latter be disapplied so far as it is incompatible with the former. This system also means that the autonomy granted to the devolved institutions is deep, far-reaching and potent, unaffected by the presence or absence of extant legislation in an area of competence. It also underscores the constitutional significance of the devolution framework itself and of its component institutions.
The UK Internal Market Act 2020 (UKIMA) disrupts this system in fundamental ways (as argued in my recent article for the Northern Ireland Legal Quarterly, ‘The market access principles and the subordination of devolved competence’). It, for the first time, renders devolved legislation subject – and therefore normatively subordinate – to Westminster legislation. This is because, where they are engaged, the UKIMA’s market access principles disapply devolved legislation which is inconsistent with them, even which is – and which the UK Government accepts is – within devolved competence. Implicitly, therefore, the UKIMA creates a hierarchy of legislation, representing a watershed for a devolution scheme which has historically eschewed this kind of relationship between Westminster and devolved enactments. Whilst the devolved legislatures do not have competence to modify a protected enactment, like the UKIMA, the market access principles go further than this, acting in a novel way on a broader category of legislation and, although they ostensibly act on Westminster’s legislation in the same way, the central legislature is equipped with tools to evade disapplication (if it would be effective at all).
Second, and consequently, the system effected by the UKIMA has a deep impact on devolved autonomy, conditioning the freedom enjoyed by the devolved legislatures within areas in which they are empowered to make valid law. The market access principles mean that the scope of effective devolved legislative freedom depends to a significant extent on several factors beyond the control of the devolved institutions, which do not find expression as limits on the scope of devolved competences, and, in some cases, which require complex economic analysis. For instance, effective devolved lawmaking depends on the legislation in force in other parts of the UK. Lower standards in England, for example, could lead to a greater risk of devolved legislation being disapplied. Similarly, the UK Government can unilaterally determine the breadth of the exemptions to the market access principles or whether – and to what extent – to give effect to common framework agreements. Further, the devolved authorities do not have access to routes to challenge the disapplication of devolved legislation that are available, for instance, where there is a question as to whether such legislation can be lawfully enacted by a devolved legislature. These factors subordinate devolved legislative power to UK executive decision-making and limit the scope and potency of devolved legislative autonomy.
Third, the UKIMA’s market access principles facilitate what one political party has described as ‘Westminster double-speak’: The UK Government has not accepted that the disapplication of devolved legislation by the UKIMA’s market access principles amounts to a restriction of devolved competences. This is because disapplication goes to the effectiveness but not the validity of devolved legislation, and because in some circumstances such legislation can continue to be effective (indeed, disapplication also leaves impugned legislation on the statute-book, with all the risks to legal certainty to which that might give rise). However, in practice the scope of devolved lawmaking power – that is, the power to make effective law – is obviously constrained by the market access principles. The UK Government, in expressing this view, is therefore implicitly adopting a ‘thin’ view of the very nature of devolved competence. Such a view contrasts with the richer, ‘thicker’ view of competence adopted by the devolved authorities, as well as the Public Administration and Constitutional Affairs Committee and House of Lords Constitution Committee. On that ‘thicker’ view, a competence is to be understood as a power to make effective, rather than merely valid, law.
This conflict is noteworthy in itself: at its heart is a disagreement about what competence – especially devolved competence – actually means, which changes to the lawmaking freedom of the devolved legislatures go to their competences, and when those changes might need to be subject to higher levels of (democratic) scrutiny. Also noteworthy, however, is the fact that the UK Supreme Court has in some of its most recent devolution jurisprudence endorsed an account of Westminster’s power to make laws (if not, arguably, its sovereignty per se) in robustly generous (or ‘thick’) terms. In Continuity Bill the Supreme Court said that ‘Parliament cannot meaningfully be said to “make laws” if the laws which it makes are of no effect’, dictum reinforced in its later Treaty Incorporation decision. Arguably, this reasoning ought to apply to the devolved institutions too, pointing towards a thicker conception of devolved competence that would be impugned by the market access principles. If it did not, a further subordination would result – described as ‘bifurcation’ – with the very nature of central and devolved lawmaking power (even within-competence) being understood in conceptually very different ways. Rooting this differentiation in parliamentary sovereignty (which is possessed by Westminster but not by the devolved legislatures) would be an unorthodox interpretation of a principle that is traditionally understood as going to the breadth of Westminster’s legislative power (that it is unlimited), rather than attributing to it unique conceptual depth (that it requires Westminster’s legislation be treated differently, and protected more robustly, than devolved legislation).
The UKIMA’s market access principles exacerbate a fragile and minimal conception of devolution which is evident elsewhere. They increase the normative distance between Westminster and the devolved legislatures and ask (yet unresolved) questions about the very nature of legislative power in the UK.
*Nicholas Kilford is a Postdoctoral Research Associate at Durham Law School.