In October 2016, following the first meeting of the
Joint Ministerial Committee for two years (and its first following the
EU membership referendum),
Downing Street announced the formation of a Joint Ministerial Committee on EU Negotiations (to be known as "JMC(EN)"). As well as working collaboratively on the EU negotiations, its terms of reference include "issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive". At its meeting in October 2017, the JMC(EN) discussed the progress being made on consideration of
common frameworks and agreed the principles that will underpin that work. A key function of the common frameworks, agreed at the meeting, is to: The common frameworks are a mechanism for the UK and devolved governments to mutually agree some amount of regulatory consistency for policy areas where returning EU powers are within devolved competence. They are sector-specific and jointly agreed between the UK government and the devolved administrations. The amendments in the enacted version of the
European Union (Withdrawal) Act 2018 put in place the presumption that retained EU law, in areas of devolved competence, will remain within the remit of the devolved legislatures. That legislation allows the UK government to restrict devolved competence by way of regulations, but puts the onus on
Whitehall to specify particular powers it intends to protect from modification. In that context, the common frameworks process led to a long-running disagreement between the UK government and the devolved governments. This was particularly focused on what would happen where a common framework agreement could not be reached. The UK government argued that in such an instance they should be able to decide on regulations unilaterally for the UK as a whole. The Scottish government rejected this argument. There was dispute over whether the devolved administrations should merely be consulted on proposed legislative changes, or that such changes should require their consent.
Publication of the bill Following the
2019 election the
UK Government said in the
queen's speech, in a part titled "The Union", that they intended to "maintain and strengthen" the UK's internal market following Brexit. An analysis published by the
Cabinet Office in April 2020 pointed at 18 areas where legislation might be needed for a
common framework, 22 areas where agreements with the devolved legislatures were believed to be sufficient (in addition to adjustments to
retained EU law), and 115 areas where there were no plans for common frameworks. The legislation significantly constrains legislative powers of the devolved administrations both legally and practically. A primary purpose of the legislation is to restrict the capacity of the devolved institutions to use their regulatory autonomy. This notion is contradicted by the body of scholarly literature published on the issue, and by the
House of Lords Select Committee on the Constitution. The
impact assessment that the BEIS department was obliged to publish alongside the bill states: "The final cost of this legislation is the potentially reduced ability for different parts of the UK to achieve local policy benefits. While this legislation does not constrain the ability of different parts of the UK to introduce distinct policies, to the extent that those policies may be enforceable on a reduced number of businesses might make it harder to realise fully the benefits of those policies." Both the Welsh and Scottish governments referred to the legislation as a "power grab". The bill explicitly included provisions that were incompatible with the Withdrawal Agreement and thus, as the government acknowledged, illegal under international law. The bill put the reservation to Westminster of the power to regulate state aid into primary legislation.
Labour,
Liberal Democrats,
Scottish National Party and
Plaid Cymru all opposed the bill in parliament. The
Democratic Unionist Party of Northern Ireland was generally supportive, however
Sinn Féin, the
Social Democratic and Labour Party, and the
Alliance Party all heavily criticised the original part of the bill that would have allowed the Northern Ireland Secretary of State to break the Northern Ireland Protocol. On 14 September,
Rehman Chishti resigned his position as the Prime Minister's Special Envoy for Freedom of Religion or Belief, noting in his resignation letter that "I can't support [the] Internal Market Bill in its current form, which unilaterally break UK's legal commitments." On 16 September,
Richard Keen resigned his position as
Advocate General for Scotland citing concerns arising from the UK Internal Market Bill, noting in his resignation letter to
Boris Johnson that he found it "increasingly difficult to reconcile what I consider to be my obligations as a Law Officer with your policy intentions". On 18 September, barrister
Amal Clooney resigned as the UK's special envoy on media freedom, noting in her resignation letter that "it is lamentable for the UK to be speaking of its intention to violate an international treaty signed by the prime minister less than a year ago."
Part 5 of the bill: Northern Ireland protocol Some provisions in Part 5 of the bill, clauses 40 to 45, caused considerable controversy both in the UK and internationally. There were concerns about their impact on the
rule of law. The UK government ultimately withdrew them before enactment. by overriding article four of the
Brexit withdrawal agreement; specifically by modifying the movement, sale, certification, and oversight of products in Northern Ireland. The government said that the decision to do so was prompted by potential bans on the sale of
GB agri-food products in Northern Ireland, should
trade negotiations with the European Union fail. The bill was criticised by the
European Union for similar reasons. The Attorney General
Suella Braverman stated the UK Government’s legal position about the possible impact of the Bill on the Northern Ireland Protocol:
Provisions in part 5 Section 46 (originally clause 40) provides that UK government ministers, devolved government ministers and anybody else exercising a function of public nature, when exercising a function relating to the
protocol or the movement of goods within the UK, must have special regard for Northern Ireland’s place in the UK internal market and customs territory and the need for a free flow of goods between Great Britain and Northern Ireland. Section 47 (clause 41) provides that UK government ministers, devolved government ministers and anybody else exercising a function of public nature, must not exercise a function that would result in any new Northern Ireland-Great Britain check, control or administrative process in some circumstances after the transition period ends. Sections 48 and 49 (clauses 43 and 44) empowers only the Secretary of State to comply with state aid requirements in the protocol to give the European Commission a notification or information relating to state aid and to make secondary legislation in relation to state aid in the protocol. The UK government withdrew clauses 42 and 45 before enactment. Clause 42 would have empowered ministers to make secondary legislation about the application of exit procedures or a description of goods moving from Northern Ireland to Great Britain. Clause 45 would have provided such secondary legislation to have effect, irrespective of whether it was incompatible or inconsistent with domestic or international law.
Passage through parliament On 15 September the bill passed its
second reading in the House of Commons, by 340 MPs to 263 MPs, following a failed amendment to not hold a second reading proposed by
Labour party leader
Keir Starmer. In total, out of 364 Conservative MPs, 328 voted in favour of the bill at its second reading and two voted against. On 29 September the bill passed its
third reading in the House of Commons by 340 votes to 256, and went to the
House of Lords for consideration and review. Earlier in the day, a new clause that would require "ministers to respect the rule of law and uphold the independence of the courts" was voted down 256 to 350, those voting against being from Conservative and
Democratic Unionist parties. Three votes on the bill in the House of Lords, in October and November, remain the three largest government defeats in the house since 1999. In December after multiple defeats in the House of Lords, the UK government made changes which they said would allow a certain amount of divergence from the internal market rules for the devolved administrations, where these were agreed through the common frameworks. It also allowed the Lords to remove those provisions of the Bill that were in breach of international law. The act received royal assent on 17 December, and came into force on 31 December. The UK government did not seek legislative consent from the devolved legislatures. However the Scottish Parliament still held a consent vote, where consent was denied. This was only the second act after the EU Withdrawal Act 2020 where the Scottish Parliament has withheld consent since the Parliament was established in 1998.
Developments after enactment In January 2021 the Counsel General for Wales, Jeremy Miles, announced the Welsh Government would seek judicial review of the legislation. The Welsh Government argued that it would curtail the power of the
Senedd, the devolved legislature in Wales. The UK government argued the Act did not alter devolved competences. In a hearing in April 2021, two judges of the
High Court of Justice ruled that the judicial review could not proceed "in the absence of specific circumstances giving rise to the arguments raised by the claimant and a specific legislative context in which to test and assess those arguments." ==Provisions==