Supreme Court rejects Welsh Government bid for ruling on UK Internal Market Act

The Supreme Court has concluded there is no useful purpose in ruling on potential conflicts between the powers of the Welsh Government and provisions of the United Kingdom Internal Market Act 2020 until such time as a specific case arises.

It rejected a bid by the Welsh Government to overturn a Court of Appeal decision that a judicial review would be premature.

Mick Antoniw, Wales’ counsel general and minister for the constitution, said: “The Welsh Government remains clear in its opposition to the United Kingdom Internal Market Act 2020. (UKIMA)

“It is an unwarranted attack on devolution and the right of the Senedd to legislate without interference in areas devolved to Wales.

"We will now consider how we can best take forward our challenge to the Act, to protect and assert the democratic right of this institution to make laws for the people of Wales.”

Mr Antoniw said the Supreme Court had though not rejected his substantive arguments “and has left the door open for this matter to be considered at an appropriate point in the future”.

In The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 118 the Court of Appeal held that specific legislation that might be affected by any conflict between the Act and the powers of the Welsh Government was needed.

Lady Justice Nicola Davies said the ground of appeal was that the Divisional Court was wrong to conclude that the application for a declaration of principle brought promptly after the introduction of the Act could not be tested in the absence of a specific Act of the Senedd.

She noted no legislation had been enacted by the Senedd giving rise to issues involving the Act and nor had the UK government exercised any power to make regulations under it.

Davies LJ said: “In essence, the appellant's case is that the issue as to whether there has been a major restriction upon the competence of the Senedd to legislate as a result of the placing of UKIMA in Schedule 7B of [the Government of Wales Act 2006] so as to render it a protected statute and thus operating in effect as a re-reservation of areas of Senedd competence is a point of general public and constitutional importance, which can and should be determined now. It would mean that the court could set what was described by the appellant as 'the rules of the game.'

“The respondent contends that it would be unwise and inconvenient to address this issue in the absence of specific legislation, which may well, or could have, an impact on the decision of the court. Further, the appropriate route for such a determination is provided in Section 112 of GoWA, namely a reference on the issue of competence to the Supreme Court. In a respondent's notice, it is stated that permission should additionally have been refused on the basis that the claim is unarguable.”

She said it would be “unwise for this court to address the issue identified in the declaration in the absence of specific legislation”, and that the court should not “attempt to resolve technical difficulties as between restrictions and reservations in the abstract as legislation is likely to have an impact on the court's decision”.

Agreeing, Sir Geoffrey Vos, Master of the Rolls, said: “When one drills down into the alleged inconsistency between the restriction that says the Senedd cannot amend UKIMA on the one hand, and the reservations that imply that the Senedd can legislate for non-reserved matters on the other hand, one always end up needing to know precisely what the Senedd wants to legislate about before one can determine whether there is an inconsistency.

“That is why I think that it is inappropriate and serves no purpose for the court to determine whether there is a possible inconsistency in advance of concrete Senedd legislation.”

Lord Justice Dingemans also agreed.

Mark Smulian