The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business Energy and Industrial Strategy

A claim for judicial review is generally premature where the legal or factual events giving rise to the challenge have not occurred. The courts ordinarily decide questions of law in a concrete statutory and factual context, rather than determining abstract questions about proposed legislation or future executive action.

Advisory declarations on points of law are exceptional. They require caution, particularly where the answer may depend on future facts, the precise terms of legislation, or the context in which it is enacted. Constitutional importance or practical convenience does not, by itself, justify an abstract ruling.

The Counsel General for Wales sought permission to challenge the effect of the United Kingdom Internal Market Act 2020 on the Senedd’s legislative competence under the Government of Wales Act 2006.

The claim sought declarations that the mutual recognition principle did not impliedly restrict the Senedd’s competence and that statutory powers enabling the Secretary of State to amend the 2020 Act could not be used to impose substantive restrictions on devolved competence.

No relevant Senedd legislation had been proposed or enacted, and no regulations had been proposed or made. The central issue was whether the claim was premature.

The Divisional Court refused permission to apply for judicial review because the claim was premature.

1. Nature of judicial review. The court’s role was to determine questions of law arising under legislation governing the allocation of powers. It was not to determine the appropriate constitutional allocation of powers between the United Kingdom Parliament and the devolved legislatures.
2. Prematurity. The general rule, stated in R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin), is that judicial review ordinarily concerns legal issues which have already arisen and facts which are established. Courts should not generally determine claims before the relevant legal or factual events have occurred.
3. The effect of the 2020 Act on Senedd legislation could depend on the precise terms and context of the proposed legislation. Those matters might determine whether a provision concerned the restriction of the sale of goods, the permitted manner of sale, a reserved matter, or an exception to a reservation. They might also affect the proper method of resolving any conflict.
4. The same reasoning applied to the Secretary of State’s regulation-making powers. Until regulations were proposed or made, their meaning, scope and validity could not properly be assessed.
5. Advisory declarations are available only with caution. The cases relied upon by the claimant involved a concrete legal context and therefore did not justify an abstract ruling. The court also relied on the warning in R (Burke) v General Medical Council [2006] Q.B. 273 that courts risk stating principles without full appreciation of their practical implications.
6. Constitutional importance, a desire for advance certainty, and the possibility of a future reference under section 112 of the Government of Wales Act 2006 did not justify allowing a premature claim to proceed. It was unnecessary and unwise to express a view on the arguability of the substantive grounds.

Permission to apply for judicial review was refused.