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Welsh Government fails in "premature" court challenge over post-Brexit Internal Market Act

The Divisional Court has refused the Counsel General for Wales permission to apply for judicial review over the impact of provisions of the United Kingdom Internal Market Act 2020 on the legislation of the Welsh Senedd.

In The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business Energy and Industrial Strategy [2021] EWHC 950 (Admin) Lord Justice Lewis, who heard the case with Mrs Justice Steyn, said that since the issues concerned had not yet occurred it was not possible for the court to rule on them.

The Welsh Government sought a declaration that the 2020 Act did not impliedly limit the competence of the Senedd to enact legislation inconsistent with the mutual recognition principle contained in section 2 of the Act.

This provides that goods which can be sold in one part of the United Kingdom may be sold in all other parts.

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The second declaration sought was that the power conferred on the Secretary of State to make regulations amending provisions of that Act cannot be exercised in a way which would substantively limit the legislative competence of the Senedd.

Lewis LJ said the role of the court was to resolve questions of law and not “to determine the appropriate allocation of powers as between the devolved legislatures and the United Kingdom Parliament”.

He noted the Senedd has not yet enacted any legislation giving rise to issues involving the 2020 Act and nor had the Secretary of State exercised his powers in the ways feared by the Welsh Government.

The judge said: “As a general rule, the courts do not deal with claims for judicial review in such circumstances as the claim will be premature. This a case where the relevant legal events have not yet arisen.”

He added: “It is better and more appropriate for the issues concerning the effect of the provisions of the 2020 Act on the legislative competence of the Senedd, and the appropriate means of resolving any conflict between the two, to be considered in the specific legal and factual context of particular provisions of proposed Senedd legislation rather than by making abstract rulings shorn of any legal or factual context.”

The Welsh Government argued that no factual issue needed to be identified to determine the question put.

But Lewis LJ said: “The legal context, and the precise terms of any proposed Senedd legislation, would still be relevant, and likely to be influential, in determining the issues that arose and how they should be resolved.

“Secondly, in any event, there would be likely to be a factual context in which the proposed legislation was intended to operate and that may be relevant to an understanding of the proposed legislation and its relationship with the 2020 Act.”

He dismissed the case as being premature and expressed no view on whether the claims made were arguable.

The Lord Advocate and the Attorney General for Northern Ireland were interested parties in the case.

Mark Smulian

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