Saturday, 19 September 2020

The United Kingdom Internal Market Bill

 

Author Henry Holbein












Jane Lambert

The publication of the UK Internal Market white paper on 16 July 2020 and the subsequent consultation that ended on 9 Sept 2020 must be one of the least publicized announcements of government policy ever.  Although I have received a lot of emails from the government about brexit ranging from customs arrangements to information for British citizens who wish to continue to live in different EU member states I can't trace any notification about this one.   I can find nothing about the white paper in the press in the days following its publication.  The white paper's publication seems to have escaped other bloggers' attention including Professor Grey whose Brexit Blog rarely misses a truck.

According to the explanatory notes on the United Kingdom Internal Market Bill, the purpose of the legislation is to implement the proposals set out in the white paper.  Those proposals are said to be driven by "three overarching policy objectives:

a. to continue to secure economic opportunities across the United Kingdom; 

b. to continue to increase competitiveness and enable citizens across the UK to be in an environment that is the best place in the world to do business; and 

c. to continue to provide for the general welfare, prosperity, and economic security of all UK citizens."

The bill has already received considerable attention because of the language of clause 45 (1) that certain provisions will have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent ."   As the Northern Ireland Secretary admitted, that provision will breach a treaty, namely the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community which Her Majesty's government signed and Parliament ratified just a few months ago.  That clause has led to resignations from the government and the senior civil service, threats of legal action from the Commission and warnings from the Speaker of the House of Representatives and other senior US politicians of both parties.

The title of the bill is curious because the United Kingdom is and always has been a unitary state albeit with devolved administrations in Belfast, Cardiff and Edinburgh.   It is important to stress than devolution is not the same as federalism which is the pooling of sovereignty by sovereign states.    Devolution is the delegation of central government functions which theoretically (and in the case of Northern Ireland) has actually been recalled.   The expression "internal market" was originally interchangeable with the term "single market" which was the process by which the EU member states entrusted the regulation of the EU economy to the Commission.   It is as odd for a nation state to describe its domestic economy as an "internal market" as it was for Thomas Cronwell to declare the southern part of an offshore island as "an empire" in The Ecclesiastical Appeals Act 1532.  Perhaps rather more absurd for the policy of 1532 statute was to assert that the King of England was equal to the Pope and Holy Roman Emperor.  Possibly equivalent to British negotiators' insistence in the new partnership talks that the 66 million inhabitants of the UK and the 450 million inhabitants of the remaining EU member states are sovereign equals. 

The bill consists of 54 clauses divided into 7 parts and 2 schedules.   Part 1 (clauses 1 to 14) and Schedule 1 is concerned with "UK Market Access Goods", Part 2 (clauses 15 to 21) with "UK Market Services", Part 3 (clauses 22 to 28) and Schedule 2 with Professional Qualifications and Regulation, Part 4 (clauses 29 to 39) with Independent Advice and Monitoring of the UK Internal Market, Part 5 (clauses 40 to 45) with Northern Ireland, Part 6 (clauses 46 to 47) with Financial Assistance and Part 7 (clauses 48 to 54) with Final Provisions.   My first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5 in so far as this bill purports to resile from the UK's treaty obligations.  As I am about to lose my right to represent clients in the Court of Justice of the European Union, the Boards of Appeal of the EU Intellectual Property Office and the Unified Patent Court as well as my rights under the Legal Services Directive, I wondered whether Part 3 would entitle me to practise in Edinburgh or Belfasr but it is clear from Schedule 2 that it would not.

Anyone wishing to discuss this article or the bill in general may call me on 020 7404 5252 or send me a message through my contact form.

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