What questions would I be asking, about UK Internal Market White Paper, if I were working for Scottish or Welsh Governments?
Certainly something to think about over coming days / weeks, but for now, a few ideas for reflection:
Certainly something to think about over coming days / weeks, but for now, a few ideas for reflection:
1) This whole issue has been rushed because of Johnson's refusal to extend transition. It's a fundamental, complex and sensitive issue. Needs negotiation, careful thought and consensus. Instead: Johnson has made it "urgent" & risks imposing London solution against others' will
2) White Paper lacks sufficient detail to be amenable to rigorous analysis: some major issues are sketched out only roughly; other major issues are virtually glossed over entirely. May be because Johnson has artificially made it "urgent". But not good, for something so important
3) I'd want to know more detail on mutual recognition. Is this really meant to be an unconditional duty? If so: very problematic. If not: then what grounds of public interest justification will remain available to each territory, to maintain certain "trade barriers" with rest?
4) Same with non-discrimination. White Paper flags up important questions about indirect (rather than direct) discrimination. But also crucial: what precise range of justifications will be available here too? Only "public health"? And only "in emergencies"? If so - very narrow
5) Another issue: what will be precise scope of application of both mutual recognition and non-discrimination? Ie not just borderline between reserved and devolved powers, but also, eg between economic activity and public services - affects things like university tuition fees etc
6) & what will be framework for adopting new "common frameworks" into the future, where leaving things to mutual recognition / non-discrimination seems inadequate / unsatisfactory? Just some ad hoc approach centred on London; or a more principled / structured / restrained system?
7) Indeed: the entire institutional question of how to manage the UK market is underdeveloped. Will there be any attempt to create institutions / processes that offer greater parity of voice to Scotland & Wales - whether at prelegislative, legislative or dispute settlement stage?
8) And until those institutional questions are clearer, I would be sceptical about making the UK "market access commitment" directly enforceable before the courts by any old business / consumer etc. Direct enforcement can make a good system better, but equally, a bad system worse
Ultimately: risk = Johnson's refusal to extend transition has turned issue, which is crucial for the UK's future, not only into an "urgency", but potentially also a "crisis". Complex issues deserve to be thought through. Such sensitive problems surely call for consensus & consent
