Lessons from the age of empire: the UK Internal Market Act as a rupture in the understanding of competence

Abstract

The emergence of devolution in the United Kingdom (UK) has led to the emergence of a significant body of jurisprudence to understand its place in the UK constitution, including various conceptual frameworks to explain its operation. A problem with some of this jurisprudence is the characterisation of devolution as novel or exceptional, capable of being understood only on its own terms. An examination of the history of constitutional development within the British empire, however, reveals otherwise. Imperial history shows that the issues faced by devolved administrations in the post-Brexit UK – uncertainties about competence and the extent of dynamism and plurality, for example – have emerged before. More than that, they were dealt with by a combination of statutory text, judicial approach and political pragmatism. Some of these solutions provide a rich source from which lessons can be drawn for present-day challenges.This article explores how legislative competence was understood across the empire and the UK before the emergence of devolution in its most recent form. It looks at the political and judicial approaches to thorny questions of legislative supremacy, legislative subordination, political paramountcy and political pragmatism. This article aims not only to challenge the myth of devolution’s sui generis nature but demonstrate why the UK Internal Market Act 2020 represents a rupture in how competence was constitutionally understood. In this way, we may be better equipped to understand and resolve the problems of devolution posed by Brexit.