The Counsel General for Wales, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy

The Court of Appeal dismissed the appellant's challenge for permission to apply for judicial review on the ground that the claim was premature. The appellant sought a declaration about the effect of section 54(2) of the UK Internal Market Act 2020 (which inserted the UK Internal Market Act into Schedule 7B of the Government of Wales Act 2006) on the Senedd's legislative competence, in particular whether that amendment effectively re-reserved devolved matters by preventing the Senedd from legislating inconsistently with the mutual recognition principle in section 2 of the UK Internal Market Act.

The court held that questions about the interaction of UKIMA and the Government of Wales Act are best resolved in the context of concrete proposed or enacted Senedd legislation or particular regulations under UKIMA, because the legal characterisation of competence, reservations and restrictions will depend on the precise terms and factual context of any measure. The court emphasised the conventional rule against abstract or advisory declarations in judicial review, observed that section 112 of the Government of Wales Act provides a specific statutory route for competence references to the Supreme Court, and noted there was no realistic risk of delay defeating future challenges.

Background and parties. The Counsel General for Wales (appellant) sought permission to apply for judicial review of the effect of the United Kingdom Internal Market Act 2020 ('UKIMA') on the Senedd's legislative competence under the Government of Wales Act 2006 ('GoWA'). The Secretary of State for Business, Energy and Industrial Strategy was respondent. The Divisional Court (Lewis LJ and Steyn J) refused permission on the ground that the claim was premature ([2021] EWHC 950 (Admin)). Singh LJ granted permission to appeal to the Court of Appeal on public and constitutional importance grounds.

Nature of the claim and relief sought. The appellant sought a declaration in essence that the insertion of a reference to UKIMA into paragraph 5 of Schedule 7B GoWA by section 54(2) UKIMA does not amount to a reservation and does not prevent the Senedd from legislating on devolved matters in a way inconsistent with the mutual recognition principle in section 2 UKIMA.

Issues framed by the court.

• Whether the Divisional Court was wrong to refuse permission on grounds of prematurity when the dispute raised only issues of statutory construction between UKIMA and GoWA.
• Whether it was appropriate to determine the arguability of the appellant's claim in the absence of any specific Senedd Act or any regulations made under UKIMA.
• Whether section 112 GoWA (the Supreme Court reference procedure) is the appropriate route for resolving issues of Senedd competence raised by proposed legislation.

Court's reasoning and conclusion. The Court of Appeal agreed with the Divisional Court that the claim was premature. It explained that the courts should avoid giving abstract or advisory declarations in judicial review proceedings where the legal issues depend on the precise terms and factual context of future or proposed legislation. The interaction between UKIMA (notably section 2, the mutual recognition principle, and section 54(2)) and GoWA (notably section 108A, Schedule 7A reservations and Schedule 7B restrictions, and the competence reference procedure in section 112) could only be properly assessed when concrete legislative provisions or regulations are proposed or enacted. The court accepted that the principle of legality and arguments about reservations versus restrictions were matters of statutory construction but held that resolving them in the abstract risked producing unhelpful or misleading guidance. The court also noted that any future challenge would not be defeated by delay and that section 112 provides an established, constitutionally appropriate route to resolve competence questions. The appeal was therefore dismissed.

Appeal dismissed. The Court of Appeal agreed with the Divisional Court that the appellant's challenge was premature and that questions about the interaction of the UK Internal Market Act 2020 and the Government of Wales Act 2006 should be determined in the concrete context of specific proposed or enacted Senedd legislation or particular regulations under UKIMA, or via the reference procedure in section 112 GoWA, rather than by an abstract advisory declaration.

This case was an appeal from the Divisional Court (Lewis LJ and Steyn J) which refused permission to apply for judicial review: [2021] EWHC 950 (Admin). Singh LJ granted permission to appeal to the Court of Appeal on 23 June 2021. The Court of Appeal delivered judgment on 9 February 2022: [2022] EWCA Civ 118.