The Internal Market Bill and the foundations of devolution

Imagine the Scottish Government decided to introduce a ban on single-use plastics after the UK Government’s Internal Market Bill was in place.

That was the example Professor Michael Dougan gave while giving evidence to MSPs on the finance committee, but in reality the same would apply to almost any environmental or consumer protection.

So imagine the plan to prohibit the sale of single-use plastics. With the bill in place, according to Dougan, Scottish authorities could enforce the new ban against Scottish producers, but not on imported goods from England or Wales.

In the context of a UK market with Scotland operating with a much smaller population and much smaller manufacturing base than England, the consequences could be significant. Or as Dougan put it, “It might as well not have the rule at all.”

Instead, he explained, the bill would leave the Scottish Parliament with no means of preventing non-recyclable plastic from flooding the market. They would still arrive after the ban – all it would mean was that Scottish producers were left at a disadvantage.

That is not how devolution is supposed to work, but then it’s not clear that the UK Internal Market Bill was drafted with a great deal of care for devolution. It was just one example of many – some have claimed it could also allow greater privatisation of the NHS – but to the Liverpool University professor it shone a light on a key problem with the proposed legislation.

Or, as Dougan put it: “The starting assumption for the bill seems to be that regulatory divergence by Scotland and Wales is a problem. It is not an expression of local democracy or a valid search for different solutions to societal problems in Scotland and Wales, but a problem that needs to be managed.”

Dougan gave evidence to the committee a week before Michael Gove appeared, via videolink. One, a respected professor of international law described the Internal Market Bill as “a fundamental rewrite of devolution”, the other described such claims as “myth making”.

“Let me provide you with reassurance”, Gove told the MSPs. “There have been all sorts of myths that have been put about, which are nonsense. They are stories to scare children at bedtime, not real reflections of policy.”

Whatever the truth – and Northern Ireland Secretary Brandon Lewis clearly didn’t do the government’s PR any favours in admitting the bill also breaches international law – the legislation was passed in the Commons shortly after Gove’s appearance.

MPs voted by 340 votes to 256 to pass the Internal Market Bill, which will now move to the Lords. The Conservatives backed it, while Labour, the Lib Dems and the SNP opposed it.

And, perhaps predictably, much of the debate had focused on other aspects. Handing ministers the power to override the UK’s withdrawal agreement with the EU, the bill provoked anger from Brussels, with Ursula von der Leyen, the European Commission president, confirming the bloc would launch legal action against the UK, which has a month to respond to the Commission’s formal letter of notice.

US presidential candidate Joe Biden had spoken out against the bill – which would allow the UK to override parts of the EU withdrawal agreement relating to Northern Ireland – while a sizeable portion of Tory MPs expressed strong discomfort with the plans, not least after a line of legal advisers and officials resigned from their positions over its incompatibility with international law.

In the end, no Conservative MPs voted against the bill last week, though more than 20 of them didn’t vote, with the majority assumed to be abstentions. Those 20 MPs included former prime minister Theresa May, who had previously accused the UK Government of acting “recklessly and irresponsibly” in its approach.

She warned: “I cannot emphasise how concerned I am that a Conservative government is willing to go back on its word, to break an international agreement signed in good faith and to break international law.”

She added: “This will lead to untold damage to the United Kingdom’s reputation, it puts the future of the United Kingdom at risk and, as a result, with regret, I have to tell the minister I cannot support this bill.”

In fact every living former prime minister condemned it. Writing a joint piece in the Sunday Times, Tony Blair and John Major described the legislation as “shameful”, warning: “This way of negotiating, with reason cast aside in pursuit of ideology and cavalier bombast posing as serious diplomacy, is irresponsible, wrong in principle and dangerous in practice.”

They were strong words, and it’s easy to see why so many column inches were dedicated to the implications for international law rather than the consequences for devolution. Regulatory divergence, after all, is not as easy a sell for a campaigner as a UK Government minister admitting key legislation breaches international law.

Yet conversation in the Scottish Parliament was quite different, with MSPs clear in their intention to withhold consent for the bill due to its implications for the devolution settlement, and with Ian Blackford taking to the Commons chamber to demand the Prime Minister drop the plan in light of the Sewel Convention.

A legislative consent memorandum lodged by the Scottish Government warned the bill undermined devolution while breaching international law, with Constitution Secretary Michael Russell describing it as “a defining moment that will determine both the future of the Scottish Parliament and whether or not the UK can be described as a partnership of equal nations”.

He said: “UK Government ministers have accepted the bill will break international law. It would be equally outrageous if they decided also to break the constitutional convention that the Westminster parliament does not legislate in devolved areas without the consent of the Scottish Parliament.

“The UK’s established constitutional rules mean that the consent of the Scottish Parliament is required for the UK Government’s Internal Market Bill to proceed. If the parliament refuses to grant consent, then that should kill the bill stone dead. It will demonstrate beyond all doubt that the UK Government does not believe the UK to be a partnership of equals.

“This bill opens the door to a post-Brexit race to the bottom and will mean democratic decisions of the Scottish Parliament on public health, environmental standards, food standards and a range of other key areas can be overridden.

“The Scottish Government will ask the parliament to make a decision on whether to grant consent next month and the memorandum we have published today sets out in detail why we could never recommend the parliament agrees that its powers should be eroded so fundamentally.”

So the ball was back with the UK Government, but Russell didn’t have long to wait for a response. Boris Johnson would not back down. In fact Gove had been asked about this exact issue just a few hours before the Commons vote, with Scottish Green co-leader Patrick Harvie questioning how the UK Government would respond if parliament withheld its consent.

“Under the Sewel Convention,” Gove responded. “I do not normally proceed with legislation that touches on devolved competences without the consent of the devolved administration. So far, we have managed to secure legislative consent motions for lots of bills, including, I believe, the Agriculture Bill and the Trade Bill, and we are grateful to the Scottish Parliament and the Scottish Government for that. However, leaving the European Union is not a normal occurrence, it is an exceptional one. I hope that we will secure a legislative consent motion, but of course it is vital that we safeguard the UK internal market.”

That was clear enough. Yet for all Gove’s insistence, the proposed legislation is not law yet. It will still face scrutiny from the Lords, where, unlike the Commons, the government does not have a majority. Ministers will argue that the second chamber blocking the bill would breach constitutional convention, and normally they would not, but as Gove himself points out, these are not normal times.