Coal Action Network, R (on the application of) v Welsh Ministers & Ors

The Court of Appeal held that section 26A of the Coal Industry Act 1994, inserted by the Wales Act 2017 with effect from 1 April 2018, does not confer functions on the Welsh Ministers in relation to licences granted by the Coal Authority before that date. The statutory context in Part II of the 1994 Act treats the licence as the single legal instrument which contains any authorisation; the pronoun "it" in section 26A(1) therefore refers to the licence, not to a separate "authorisation" which might be postponed by conditions. On that construction section 26A applies to licences granted after 1 April 2018 and not to licences already in effect.

The court considered but did not need to decide issues of retrospectivity or compatibility with Article 1 of the First Protocol to the Convention, because the proper meaning of section 26A resolved the dispute. The appeal was dismissed.

Background and parties. The third respondent, Energybuild Mining Ltd, held a licence granted by the Coal Authority in 1996 (varied in 2013) authorising coal-mining operations at Aberpergwm; the licence contained conditions postponing the coming into force of the authorisation until specified preconditions were met. Coal Action Network sought judicial review of the Welsh Ministers' decision (letter dated 7 January 2022) that section 26A of the Coal Industry Act 1994 did not apply to the deconditionalisation process, so the Welsh Ministers had no function to approve the authorisation. Steyn J in the Administrative Court dismissed the claim. The appellant appealed to the Court of Appeal.

Nature of the claim and relief sought. The claim was for judicial review of the Welsh Ministers' decision that they had no function under section 26A in respect of a licence granted before 1 April 2018 whose authorisation was postponed by licence conditions. The appellant sought a declaration or quashing of that decision and contended that section 26A required Welsh Ministers' approval when the postponed authorisation came into effect after 1 April 2018.

Issues framed by the court.

• whether, properly interpreted, section 26A applies where a licence was granted before 1 April 2018 but the authorisation did not take effect until after that date;
• whether, if section 26A applied, the construction would have impermissible retrospective effect such as to engage the presumption against retrospectivity;
• whether Article 1 of the First Protocol (possessions) required a different construction or a proportionality assessment.

Reasoning and outcome. The court analysed Part II of the 1994 Act and concluded the act contemplates a single legal instrument: the licence which contains any authorisation; provisions in the licence may postpone the coming into force of the authorisation but do not create a separate legal instrument called an "authorisation". Grammatically and contextually the pronoun "it" in section 26A(1) refers to the licence. Read in that context, section 26A operates only in respect of licences that have effect after the section came into force. Because that construction disposed of the dispute, the court declined to decide the retrospective and Convention issues. The appeal was dismissed and the judge below was correct to dismiss the claim for judicial review of the Welsh Ministers' decision.

Appeal dismissed. The Court of Appeal held that section 26A of the Coal Industry Act 1994 must be read in the statutory context of Part II: a licence is the single instrument containing any authorisation and the pronoun "it" in section 26A(1) refers to the licence. Accordingly, section 26A applies to licences which take effect after 1 April 2018 and does not apply to licences that had already taken effect before that date; questions of retrospectivity and Convention compatibility therefore did not arise.

Permission to apply for judicial review was granted in the Administrative Court (Steyn J) and the claim was dismissed by order dated 19 May 2023 ([2023] EWHC 1194 (Admin)). The appellant appealed to the Court of Appeal which delivered judgment on 23 February 2024 ([2024] EWCA Civ 168).