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

Judicial review is ordinarily concerned with legal issues that have arisen in an established factual and legal context. The court should rarely determine the effect of future legislation, or the interaction between constitutional statutes, in the abstract. Where the precise terms and context of proposed legislation may affect legislative competence or statutory interpretation, an advisory declaration is generally inappropriate. A statutory reference procedure designed to determine legislative competence in the light of specific legislation is a material constitutional consideration. The court may have jurisdiction to decide an abstract issue, but may properly decline to do so where the declaration would provide no practical guidance and would risk resolving technical questions without the necessary context.

The Counsel General for Wales sought permission to bring judicial review proceedings concerning the effect of the United Kingdom Internal Market Act 2020 on the Senedd’s legislative competence under the Government of Wales Act 2006. The proposed declaration concerned the insertion of the United Kingdom Internal Market Act 2020 into Schedule 7B of the Government of Wales Act 2006 and the mutual recognition principle.

The Divisional Court refused permission on the ground of prematurity, holding that the issue should be considered in the context of specific Senedd legislation or regulations. The appeal concerned whether a declaration of principle could properly be sought before any relevant legislation had been enacted or proposed. The central issue was whether the court should determine the interaction between the two statutory schemes in the absence of concrete legal and factual circumstances.

1. Appeal dismissed. The court had jurisdiction to determine the correct interpretation and effect of the United Kingdom Internal Market Act 2020 on the Senedd’s legislative competence without specific Senedd legislation, but it was inappropriate to do so in this case.
2. The general rule in judicial review, identified in R (Yalland) v Secretary of State for Exiting the EU [2017] EWHC 630 (Admin), is that the court normally adjudicates on legal issues which have arisen for decision where the facts are established. It should rarely decide questions depending on future events or future legislation, and should approach advisory declarations without a factual and legal context with caution.
3. The precise terms of future Senedd legislation could affect whether it concerned a reserved matter or an exception, imposed a relevant requirement within the mutual recognition principle, constituted a permitted manner-of-sale requirement, or engaged a conflict capable of resolution by interpretation of the United Kingdom Internal Market Act 2020. The extent to which the proposed legislation had previously been restricted by EU law could also affect whether the Act imposed any new limitation on Senedd competence.
4. The court applied the warning in R (Burke) v General Medical Council [2005] EWCA Civ 1003 that abstract adjudication risks producing propositions whose practical implications are insufficiently understood. Keatings v HM Advocate General [2021] CSIH 25 illustrated the constitutional limits on determining hypothetical or academic questions, particularly where intervention could encroach upon a function specifically conferred on Parliament. R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin) and R (Alconbury Development Ltd) v Secretary of State for Environment, Transport and the Regions [2001] UKHL 23 were distinguishable because each involved a concrete decision or intended exercise of power.
5. There was no sufficient delay concern. Time for a future judicial review claim would begin when legislation was attempted which was or might be inconsistent with the United Kingdom Internal Market Act 2020. The respondent’s position meant that a delay objection could not successfully be taken in such future proceedings.
6. Section 112 of the Government of Wales Act 2006 provided a route for the Supreme Court to decide legislative competence in the light of specific legislation. Parliament’s creation of that route, and the constitutional value of following the statutory parliamentary process, supported declining to determine the abstract issue. The question of arguability should likewise await a concrete legislative context.
7. The Divisional Court’s reasoning was sound. The appeal was dismissed.

• Court of Appeal (Civil Division) — The appeal was dismissed. The court held that the issue could be determined in principle, but that the proposed judicial review was premature and inappropriate without specific Senedd legislation or regulations.
• High Court, Queen’s Bench Division (Divisional Court) — Permission to apply for judicial review was refused on grounds of prematurity: [2021] EWHC 950 (Admin).