Subsidy Control Bill - Some Constitutional Considerations : Briefing Paper from the Committee Adviser Dr Christopher McCorkindale to the Committee, 23 November 2021

McCorkindale, Chris (2021) Subsidy Control Bill - Some Constitutional Considerations : Briefing Paper from the Committee Adviser Dr Christopher McCorkindale to the Committee, 23 November 2021. University of Strathclyde, Glasgow. (https://www.parliament.scot/chamber-and-committees...)

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Abstract

Even before the Subsidy Control Bill was introduced into the UK Parliament, devolution has been impacted by the issue of subsidy control in important ways. First, in the face of disagreement during common framework negotiations about whether subsidy control was a reserved or devolved matter, section 52 of the Internal Market Act 2021 explicitly reserved the '[r]egulation of the provision of subsidies which are or may be distortive or harmful by a public authority to persons supplying goods or services in the course of a business' in each of the devolution statutes. Second, both the Scottish Parliament and the Welsh Parliament refused legislative consent to the Internal Market Bill (the Northern Ireland Assembly did not hold a formal legislative consent vote) which was - as with the EU Withdrawal Bill (consent withheld by the Scottish Parliament) and the EU (Withdrawal Agreement) Bill (consent withheld by the Scottish Parliament, the Welsh and the Northern Ireland Assembly) - nevertheless passed without any consequent amendment. Whilst there might be an argument that, with the article 50 clock ticking and a 'no deal' default position waiting at the end of the article 50 period, the EU Withdrawal Bill constituted a justified exception to the rule that ‘the UK will not normally legislate with regard to devolved matters [nor to adjust the boundaries of devolved competence] without the consent' of the devolved legislatures, the case is far less clear in so far as the EU Withdrawal Bill and the Internal Market Bill were concerned. Not only was devolved competence adjusted (with regard to subsidy control), but this adjustment was done by imposition rather than with the consent of the devolved legislatures

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