Tom Hannant and Karen Morrow

Public awareness of tensions between the constituent governments of the United Kingdom (UK) has been raised in recent years, not least by their varying responses to Covid-19, but one of the most significant sites of contention between the Westminster and devolved governments is rather more mundane.

The blandly titled United Kingdom Internal Market Act 2020 (UKIMA) generated controversy – and a few front-page headlines – during its passage, with the Westminster Government’s attention-grabbing but ultimately defeated attempt to absolve the UK of its international legal obligations in a ‘very specific and limited way’. The prominence of that controversy largely over-shadowed other concerns with the Bill, especially the serious misgivings about the impact on the UK’s devolution arrangements. Whilst the abortive attempt to evade international law was subject to robust criticism for the damage it stood to incur on the UK’s external standing, the internal threat posed by UKIMA’s central provisions to the devolution settlement generated much less widespread consternation and was enacted largely as the Westminster Government intended. 

UKIMA – shorn of those provisions which flirted with violating international law – came into force in January 2021. Its primary purpose is the ostensibly technical task of ‘guarantee[ing] the continued seamless functioning of the UK Internal Market’, filling a perceived regulatory gap that would be left once European Union (EU) law ceased to fulfil that function, post-Brexit. In pursuit of this aim, UKIMA introduces two market access principles – mutual recognition and non-discrimination – which are designed to ensure a seamless flow of goods and provision of services between the constituent parts of the UK, albeit with distinctive arrangements for Northen Ireland, reflecting its unique position under the UK–EU Withdrawal Agreement. Apart from these trade-focused provisions, the Act also empowers the UK Government to provide financial assistance for projects across the UK, replacing the function formerly fulfilled by the EU structural funds, and reserves powers over subsidy control to the UK Parliament.

While these mechanisms are in some ways similar to the EU arrangements they replace, the internal market they establish differs in several respects, each of which has the potential to restrict the effective power of the devolved institutions: the absence of co-decision procedures in respect of positive harmonisation; the drastically limited range of public policy exceptions; and the disproportionate size – and therefore influence – of the English economy and its regulatory arrangements, to name but a few.

To many with an interest in constitutional law and politics, the profound implications of UKIMA for devolved government and what it signals about the devolved administrations’ future relationship with the Westminster Government raised considerable disquiet. Swansea Law School’s Governance and Human Rights Research Group (GHRRG) discussed UKIMA and, in order to interrogate the issues at stake more broadly, hosted an Society of Legal Scholars-funded conference entitled ‘Undoing Devolution by the Back Door? The Implications of the United Kingdom Internal Market Act 2020’ in July 2022, with the focus squarely on UKIMA’s impact on devolution. The event hosted both established and early career scholars from contributors, crucially drawn from across the UK, and through the NILQ special edition now offers selected contributions to a wider audience.

A major focus of the articles in the special issue is the impact of UKIMA on the devolution settlements, with several of the contributions considering the tension between centralisation and consent. In this guise, Christopher McCorkindale considers the heavy-handed, top-down approach taken by the UK Government in relation to UKIMA as evidence of the inadequacy of existing mechanisms to manage relations between the Westminster and the devolved governments. Gareth Evans examines the manifestation of these tensions in the courts in the Counsel General for Wales’s legal proceedings challenging UKIMA following the Senedd’s refusal of legislative consent. Lisa Claire Whitten looks at the particular centralisation and consent controversies around trade matters in Northern Ireland arising from UKIMA, the UK–EU Withdrawal Agreement, the Northern Ireland Protocol and the Windsor Framework. The articles also examine the provisions of UKIMA as compared to EU and other approaches to internal market governance. In this context Thomas Horsley and Jo Hunt look at the dominance of negative harmonisation mechanisms in UKIMA and their undermining of a more consensual approach utilising the common frameworks mechanism.

A second key strand of coverage coalesces around the theme of legislative competence. Nicholas Kilford looks at this issue through a conceptual lens, identifying ongoing and increasingly important inconsistencies in constitutional law’s treatment of Westminster and the devolved legislatures. Anurag Deb’s contribution uses historical and comparative analysis of legislative competence in imperial history to frame analysis of the UKIMA approach. The pieces mentioned above also offer insights on what legislative competence means in the UK today and the inherent constitution instability concerning it that UKIMA serves to exacerbate. Finally, members of the GHRRG took the opportunity to reflect on the conference and the articles submitted for the NILQ special edition and what they reveal across a range of areas of concern, including not only constitutional reform but also human rights and environmental protection.

Clearly, while the substance and severity of the concerns founded on the UKIMA may vary across the UK, there is a core issue that concerns the whole UK – the current state of relations between the Westminster and devolved administrations is inherently unstable and unsustainable and requires urgent attention to make it fit for purpose.