UKIMA as red flag symptom of constitutional ill-health: devolved autonomy and legislative consent

Abstract

Devolution is a fundamental principle of the United Kingdom (UK) constitution – a ‘new settlement’, as Tony Blair put it, that at once responded to the democratic demand to ‘[bring] decision-making … closer to the people who felt a strong sense of identity’ and also, in so doing, ‘to ward off the bigger threat of secession’. At the heart of that principle is respect for devolved autonomy; that, within the devolved sphere, it is the devolved authorities who are best placed to wield primary and secondary law-making powers free from interference from the centre. The constitutional safeguard for devolved autonomy is a political rule: that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislature(s). Until the process to withdraw the UK from the European Union (EU) began, the convention was well defined, well understood and well respected. However, the UK Government’s centripetal approach to EU withdrawal and to the resulting realignment of the UK constitution has marked a significant step change. In this article I take seriously the claim made by the Institute for Government that the UK Internal Market Act 2020 is the most contentious example – a red flag symptom – of damaging new constitutional dynamics: the increased willingness of the UK Parliament and UK Government to intervene in devolved matters without devolved consent. At stake as a result is not only the efficient operation of the UK internal market but, recalling Blair, the very survival of the union itself.