The Scottish Parliament has  produced its report following an inquiry conducted by the Constitution, Europe, External Affairs and Culture Committee into the implications for devolution of the United Kingdom Internal Market Act 2020. This post considers concerns raised by the report and how they might be addressed. While recognising that the Act does not formally change the distribution of legal competences created by devolution statutes, the report highlights that how those competences are exercised is now subject to the legal discipline of the Act and its po ..read more

The original idea behind the Brexit Effect project was the need to make sense of changes in UK regulatory policy after the UK finally left the European Union and exited the transition period. One way of capturing this ‘effect’ is to think of change in terms of regulatory ‘alignment’ or ‘divergence’. The conventional way we approach this is to explain divergence in terms of UK policy diverging from the EU or vice versa. But I want to suggest a need to clarify our terms more precisely by introducing a distinction between ‘baseline’ and ‘relational’ divergence. ‘Active/Passive’ Divergence That we ..read more

After a swift parliamentary process, the United Kingdom Internal Market Act (UKIM Act) was granted Royal Assent on 17th December 2020 and came into force as the ‘transition period’ following the UK’s departure from the EU came to an end on 31 December 2020. Both the Scottish Parliament and the Welsh Senedd withheld their legislative consent to the Act, citing the ability of the ‘market access principles’ to disapply exercises of devolved regulatory powers. Indeed, the Welsh Government launched a judicial review seeking declarations to clarify that t ..read more

A week before the expiry of the transition period, the EU and UK announced they had finalised the terms of a Trade and Cooperation Agreement (‘TCA’). Legislation – the European Union (Future Relation) Act 2020 – was rushed through the UK Parliament in a single day to give domestic legal effect to the Agreement while for the EU, the Council adopted a decision authorising the signing of the Agreement and giving it provisional application pending scrutiny by the European Parliament and the conclusion of the Agreement on behalf of the EU. Finally, the EU and the UK ha ..read more

We have all become familiar with labels on food packaging that tell us how many calories and how much fat, carbohydrate, protein and salt a product contains. The intention behind this type of information regulation is to give consumers a basis for making choices about the types of food they want to consume.  Food labelling in the EU is governed by the 2011 Food Information to Consumers (‘FIC’) Regulation. It harmonises a set of pan-EU mandatory labelling requirements, albeit that the provision of information via Front of Packaging (‘FOP’) labelling is voluntary. EU rules on food labe ..read more

The controversial United Kingdom Internal Market Bill ‘UKIM Bill’) continues to attract public attention. On 9 November, the House of Lords voted to remove provisions in Part 5 of the Bill that would permit UK ministers to adopt regulations in breach of commitments made in the EU-UK Withdrawal Agreement and more especially the provisions on the Protocol on Northern Ireland.  Having ditched the ‘backstop’ arrangement negotiated earlier by the May administration which would have kept the whole UK aligned with key EU rules on trade in manufactured and agricultural goods ..read more

At the beginning of July, the United Kingdom Government published a consultation paper. It sought views on whether to permit courts other than the highest UK courts to depart from ‘retained EU case law’. Under the European Union (Withdrawal) Act 2018, other courts are bound by the precedents of EU case law – as that case law stood at the end of the transition period – when interpreting unmodified retained EU law. Only the apex courts of the UK Supreme Court (and exceptionally the Scottish High Court of Justiciary in criminal cases) could decide to depart from EU precedents.  ..read more

The United Kingdom has formally left the European Union. More than three years after the EU membership referendum and ten months later than originally planned, its finally Brexit Time. Whether or not clocks chimed or Big Ben bonged to mark the moment of the UK’s departure from the EU, time will still shape the Brexit process. 11pm did not signal Getting Brexit Done; its only just getting started. In the days and weeks ahead, Leavers and Remainers might find themselves in the odd position of sharing a similar sentiment – disappointment. Remainers will obviously regret that neither political nor ..read more

Now that Boris Johnson will be leading a government with a sizeable majority in the House of Commons, some degree of normality will return to British politics. That normality is that governments get to govern with little capacity for the Westminster Parliament to block the will of the Executive. Whatever happens on the Opposition side – including the sizeable block of Scottish National Party MPs – nothing changes the fact that the Johnson Government now has, more or less, a free hand in both its domestic and European policy agendas. On Brexit, this has some interesting implications. There has ..read more

The election on 12 December will require the political parties to set out their positions on Brexit. Already, Labour is pledging in its ‘Plan for Brexit’ that it will negotiate ‘a sensible deal within three months of being elected’. More dramatically, it also claims it will hold a further Brexit referendum within six months of the election ie sometime in May 2020. On the first pledge to renegotiate a ‘deal’, this will focus on a new customs union, a close relationship with the Single Market and ‘guarantees of rights and protections’. What is noteworthy is that these all relate not to the Withd ..read more