Thread by @mdouganlpool

Some initial thoughts on UK Internal Market Bill covering: A) underpinning assumptions of UKIM; B) important details about Bill’s proposed scheme; C) what it means in real-world UK context. See separate thread on particular provisions relating to Northern Ireland. Voila:

A.1) I fully agree with UKGov's proposition that Brexit now requires UK to establish some overall scheme to govern internal trade - including a way to manage potential barriers to trade / distortions of competition arising from future exercise of autonomous regulatory powers

A.2) But I do not share UKGov’s apparent assumption that regulatory divergence is inherently problematic and must be strictly controlled, by imposing extensive limits (in effect) on the ability of devolved institutions to make different choices from Westminster

A.3) As said before: it's perfectly possible to have a well functioning UKIM that accommodates regional variation, even if that involves certain trade barriers. And economic concerns have to be weighed against democratic interests of Scotland and Wales to shape own societies.

A.4) Bill contains extensive duties of mutual recognition (if X is lawfully made / provided in England, X can be lawfully sold / provided in Scotland, even if its rules are different) & non-discrimination (Scottish rules cannot treat English goods / providers worse than own ones)

A.5) Together = UK's “market access commitment”. So far, so orthodox. But detail of UKGov proposals means previous concerns expressed about White Paper are entirely or largely justified. For sake of space, I'll concentrate on goods (not services or professional qualifications)

B.1) MR for goods has very broad scope: covers all product requirements. Doesn’t apply to existing rules, but MR will kick in if they are then substantially amended. Ie a serious disincentive to engage in regulatory innovation / respond to changing social challenges & preferences

B.2) And MR for goods doesn’t apply to very limited / strictly controlled group of situations, ie where internal movement of some pest / disease / unsafe food would pose serious health threats to part of UK – with onus on competent authority to justify the need for taking action

B.3) Otherwise, within its broad scope, MR for goods is effectively unconditional, eg no chance for Scotland to justify devolved choices (say) on environmental or consumer grounds. Obviously: the broader & stronger MR = the more intrusive its impact on devolved competence

B.4) ND for goods will apply to broader range of rules than product requirements, eg manner of sale, transportation, storage, market approvals etc. Again, doesn’t apply to existing legislation – but will again kick in as & when existing rules are substantially changed in future

B.5) Bill outlaws both direct and indirect discrimination against goods from elsewhere in UK. Plenty of convoluted definitions here. But most striking: “indirect discrimination” includes not just familiar (and relatively easy) legal assessments of comparability and disadvantage…

B.6) … but also a rather unexpected economic assessment of rule's competitive impacts upon relevant UK market – thus sacrificing the relative mechanical clarity of discrimination law in favour of a complex & costly market analysis of the sort more familiar in competition policy!

B.7) In any case: direct dis can only be negated in “public health emergency” involving “extraordinary” threat to human health. As for indirect dis: must reasonably be considered necessary for health protection or for public safety / security. But again: no other justifications

B.8) also worth noting: MR and ND only apply to sale / supply of goods in course of a business; do not apply to sales / supplies made in discharge of public functions; and do not apply to taxation powers. Bill also has specific rules on chemicals regulation

B.9) Already far-reaching. But Bill also confers on UKGov extensive delegated powers to change the rules unilaterally – in most cases, without any requirement even to consult devolved institutions. True eg of exclusions from MR / ND & justifications for indirect discrimination...

B.10) could tell similar stories about Bill’s regimes on both service provision and recognition of professional qualifications – wide scope, certain exceptions, but limited justifications, UKGov has power to change goalposts unilaterally etc

B.11) and note other important provisions relevant to devolution: eg granting UKGov new powers to spend cash for wide range of purposes; making control of public subsidies a reserved matter; shielding Bill from future modification by devolved institutions

C.1) So: Bill contains broad & strong “market access” principles that would be striking in any context. But UKIM is characterised by unique factors that will significantly influence how these proposals actually operate in practice - potentially to serious detriment of devolution

C.2) As we know: England totally dominates UK in terms of population & economy; as well as in terms of the locus of constitutional power. So MR / ND won’t operate as “neutral” principles here. They will inherently favour English choices and limit / penalise Scots or Welsh ones

C.3) So while UKGov might claim Brexit means greater devolution, in practice, UKIM plans would mean powerful incentive for devolved institutions not to deviate from English standards: in many cases, cannot enforce them against English imports & will only be penalising own economy

C.4) That distorting impact of UKGov's plans further magnified by fact that UKIM rules would be (at least partly) directly legally enforceable: “host country” rules that infringe “market access” principles would be treated as inapplicable to relevant businesses

C.5) And while Bill contains system for Competition and Markets Authority to monitor / report on UKIM’s operation – there's no attempt to address underlying governance needs, eg to create independent & impartial institutions / processes to represent / protect devolved interests

So much for first thoughts - with apologies for any errors etc that will emerge from more detailed scrutiny - which is full deserved!

Separate thread on NI parts of Bill to follow shortly...