Johnson’s UK Internal Market Bill is crucial not just because of proposals to break international law on Irish border. Also for its impact on devolution & governance of entire UK.

So: another step-by-step guide to key issues arising from Johnson's plans.

1) Regulation of internal UK trade wasn’t much of a problem until Brexit. When UK joined EU, there was no devolution. When devolution happened, EU rules helped structure operation of UK market. Only a few issues ever bubbled up as points of tension, eg university tuition fees
2) But Brexit now makes it important to decide how regulatory differences across UK will impact on trade in goods and services. If Scotland has different rules on X or Y or Z, how far should those different rules prevent English goods / services being sold / provided in Scotland?
3) Trade law offers “toolkit” of principles to help decide how far regulatory differences should be allowed to disrupt trade. Most important is mutual recognition: if X is lawful in Territory A, then X can also be provided in Territory B, even if latter has different rules
4) MR is very effective trade tool (+ easy to manage, since no need for everyone to have same rules). But means Territory B must live with practical consequences of other countries picking different/lower rules. Might limit Territory B’s ability to enforce own social preferences
5) so many systems that rely on MR (like EU) incorporate safeguards into its application, eg wide range of justifications, so that Territory B can enforce its better / higher standards against incoming goods / services, eg to protect health / environment / consumers / workers
6) moreover, important that trade law tools take into account unique features of each internal market. In UK, that means the complete dominance of England over other parts of UK, not only in terms of population and economy, but also as regards political and constitutional power.
7) So UK “toolkit” needs to incorporate effective safeguards for devolved countries: able to make different choices without either London being able to overrule them at will; or English goods/services simply flooding local market & rendering devolved choices redundant in practice
8) yet that's precisely the internal market model Johnson has proposed in Bill: contains strong principles such as mutual recognition, applying across large sectors of economy, with only limited opportunities for devolved institutions to enforce own laws against English imports
9) which explains why Scotland & Wales are so angry: devolution looks OK on paper, but in practice, UKIM rules have potential to discourage regulatory innovation and limit capacity of devolved countries to pursue different economic or social choices from those made in London
10) important to stress: this isn’t directly about Scottish (or Welsh) independence - even if anger and resentment can obviously / understandably fuel calls for leaving UK. This is about respecting existing devolution settlements even within context of continuing UK membership...
11) how would I improve Bill? By recognising that real problem with UK internal market is not Scotland / Wales wanting to do things differently. It's the fact that, without proper constraints, these proposals will magnify England’s economic & constitutional dominance yet further
12) Eg much wider system of justifications, allowing Scotland & Wales to refuse mutual recognition for sake of broad public interest objectives. Eg proper system of pre-legislative dialogue between equals, allowing potential trade problems to be identified & resolved in advance
13) So while Bill is very important for Northern Ireland, EU-UK relations, rule of law, UK reputation etc… it is also very important for the entire constitutional management of the UK itself and especially for respecting devolution in Scotland and Wales.

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More from @mdouganlpool

17 Sep
How to convey the recklessness of Johnson's tactics in relation to Northern Ireland?

Here are a few memories of my childhood growing up in working class West Belfast in the late 70s and 80s:
- us lying scared at the bottom of our parents' wardrobe, where they'd put us, covered in a few quilts, listening, terrified, to the rioting and gunshots right outside on our wee street
- walking home from the playground with my two younger sisters, being trailed with a rifle by a soldier standing behind a wall, hoping that he's pointing that gun at me and not one of them
Read 6 tweets
16 Sep
Those asking for more specific materials to help prove Tory lies about EU's supposedly new / extremist / absurd interpretation of Irish border Protocol...

Here is a series of short excerpts from my peer reviewed CMLRev analysis (written Nov 2019-Feb 2020, published June 2020):
1) excerpt pointing out how Johnson's lies about "no border in Irish sea" clash with clear reality of Johnson positively agreeing to extensive checks on movement of goods from GB to NI:
2) excerpt noting clear impact of checks on goods moving from GB to NI as agreed by Johnson; as well as need for checks on goods moving from NI to GB also agreed by Johnson; and explicitly anticipating problems this would inevitably cause for "UK Internal Market"
Read 5 tweets
15 Sep
I’ve been asked for another step-by-step explanation of what’s just happened in Westminster.

So voila: an update on Johnson’s plans to destabilise Ireland and isolate the UK…
1) As we know, Parliament is now considering whether to empower Johnson to override, directly & deliberately, two clear and precise legal obligations under the very Withdrawal Agreement he signed with the EU: controls on goods from NI to GB; and state aid rules in relation to NI
2) & as we know, those breaches of international law risk range of very serious consequences. Not least for NI: state aid regime is necessary to prevent unfair dumping of UK goods into EU and is therefore an integral part of avoiding a “hard border” across the island of Ireland
Read 16 tweets
13 Sep
Lots of requests for a step-by-step explanation of Johnson's plans to breach Protocol on Irish border.

No problem. And by the end, you'll understand why this man is totally unfit to hold public office.

1) For Ireland (north and south) May's red lines / decision to leave Customs Union & Single Market transformed Brexit from "problem" into "crisis": customs & regulatory checks on goods have to take place somewhere; if across Ireland = serious economic, social & political impacts
2) When May came to realise this, she sought to minimise damage of own policy by proposing temporary solution (the infamous "backstop"): whole UK would remain in effective customs union with EU; but some regulatory checks would happen on movement of goods between GB and NI
Read 16 tweets
11 Sep
Interesting question: is "minimum price" a product requirement subject to mutual recognition; or a selling arrangement subject to non-discrimination?

The Bill is not entirely explicit on this. But for me: price controls are naturally characterised as product requirements. Why?
Cl 3 on MR concerns rules compliance with which is an essential condition for placing that particular good on the market eg composition, packaging, labelling, accompanying documentation or anything else that must be done to / in relation to a good before it is allowed to be sold
Cl 6 on ND concerns rules that do not prescribe the characteristics of the particular good itself, but instead regulate its place or manner of sale eg licensed premises, age requirements, permitted advertising; as well as other indirect requirements like transportation or storage
Read 8 tweets
11 Sep
I hope my previous hypothetical examples prove useful, in terms of getting a flavour of the UK Internal Market Bill's intended principles and effects.

Now: some key overall lessons to draw from those examples, in a final short thread...
1) Bill’s principles are largely prospective: they generally don’t apply to existing rules. But Bill does kick in when existing provisions are amended in any significant way. That already creates a significant disincentive to engage in legal reform / innovation
2) where Bill does apply, its rules are based on a very strong market dynamic: wide scope of application, extensive guarantees of market access capable of overriding / bypassing local regulatory choices, only limited exclusions / scope for justification
Read 7 tweets

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