Introduction

The legal landscape of the United Kingdom has been significantly shaped by devolution, granting substantial legislative powers to the devolved administrations such as the Senedd Cymru (the Welsh Parliament). However, with the enactment of the United Kingdom Internal Market Act 2020 (UKIMA), questions have arisen regarding the extent of the Senedd's legislative competence, especially in relation to the Government of Wales Act 2006 (GoWA). The case The Counsel General for Wales v Secretary of State for Business, Energy and Industrial Strategy ([2022] EWCA Civ 118) delves into these very issues, examining whether UKIMA imposes undue restrictions on the Senedd's legislative powers.

Initiated by the Counsel General for Wales, the case sought judicial review to declare the proper interpretation of UKIMA as it applies to GoWA. Specifically, the appellant contended that UKIMA's amendment to GoWA constituted an unlawful restriction on the Senedd's legislative competence.

Summary of the Judgment

The England and Wales Court of Appeal dismissed the Counsel General for Wales's application for permission to proceed with a judicial review. The Divisional Court had previously refused permission on grounds of prematurity, a stance upheld by the Court of Appeal. The appellate judges determined that resolving the interaction between UKIMA and GoWA requires specific legislative context, which was absent at the time of the application. Consequently, the court emphasized that such matters are better addressed through the mechanisms established in Section 112 of GoWA, which directs referendums to the Supreme Court when necessary.

Analysis

Precedents Cited

The judgment referenced several key cases to support its reasoning:

• Yalland v Secretary of State for Exiting the EU ([2017] EWHC 630 (Admin)) – Established that courts generally refrain from addressing issues prematurely, advocating for a cautious approach in judicial reviews without established facts.
• R (Burke) v General Medical Council ([2006] QB 273) – Highlighted dangers of courts making abstract rulings without concrete legal or factual contexts, potentially leading to confusion in practical applications.
• Keatings v HM Advocate General ([2021] CSIH 25, 2021 SC 329) – Reinforced the principle that courts should not engage in hypothetical or abstract challenges regarding legislative competence absent specific legislative actions.
• 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) – Differentiated between abstract challenges and cases with specific legislative contexts, underscoring the inapplicability of these precedents to the appellant's case.

Legal Reasoning

Lady Justice Nicola Davies, supported by her colleagues Lord Justice Dingemans and Sir Geoffrey Vos, reasoned that the application was premature for several reasons:

• Absence of Specific Legislation: No concrete legislation had been proposed or enacted by the Senedd that would conflict with UKIMA, making the judicial review speculative.
• Appropriate Judicial Mechanism: Section 112 of GoWA provides a clear pathway for addressing competence issues through referrals to the Supreme Court, rendering the current application unnecessary.
• Risks of Abstract Rulings: Engaging with the legal issues in the absence of a specific context could lead to broad, unanchored principles that may not account for future legislative nuances.
• Principle of Legality: Respecting Parliament's role in defining legislative competence and the boundaries set by primary legislation.

The court emphasized that legislative competence issues should be adjudicated within the framework of specific legislative proposals, ensuring that decisions are grounded in actual statutory contexts rather than abstract principles.

Impact

This judgment reinforces the judiciary's stance on procedural prudence, especially concerning constitutional matters related to devolution and legislative competence. By declining to grant permission for a judicial review in this instance, the Court of Appeal underscored the importance of:

• Contextual Analysis: Legal disputes regarding legislative competence must be tied to specific legislative actions to ensure informed and relevant judicial decisions.
• Respect for Parliamentary Processes: Upholding the constitutional mechanisms established by Parliament to address competence issues, thereby maintaining the balance of powers.
• Preventing Judicial Overreach: Avoiding the imposition of broad legal principles without concrete applications, preserving judicial restraint.

Future cases will likely echo this approach, emphasizing the necessity for tangible legislative contexts before courts engage in adjudicating competence disputes. This maintains stability and predictability in the interplay between devolved administrations and the UK Parliament.

Complex Concepts Simplified

Judicial Review

A process where courts examine the legality of decisions or actions taken by public bodies, ensuring they comply with the law.

Legislative Competence

The authority granted to a legislative body (like the Senedd) to create laws within certain domains or areas. It defines the scope and limits of what that body can legislate.

Internal Market Principles

Under UKIMA, these principles include mutual recognition of goods across the UK and non-discrimination in the sale of goods, ensuring seamless trade within the UK post-Brexit.

Section 112 of GoWA

A provision that allows for judicial referrals to the Supreme Court to resolve disputes over the legislative competence of devolved administrations like the Senedd.

Protected Enactments

Specific statutes listed in Schedule 7B of GoWA that the Senedd cannot modify, ensuring certain foundational laws remain consistent across the UK.

Conclusion

The Court of Appeal's decision in The Counsel General for Wales v Secretary of State for Business, Energy and Industrial Strategy delineates clear boundaries for judicial engagement in matters of legislative competence. By deeming the application premature, the court upheld the principle that judicial bodies should refrain from abstract adjudications without concrete legislative contexts. This ensures that the balance of power between the UK Parliament and devolved administrations like the Senedd is maintained, respecting the established constitutional framework. The judgment serves as a reaffirmation of procedural prudence, emphasizing that significant constitutional issues are best addressed within the specific legislative moments they arise, rather than through anticipatory or advisory judicial interventions.