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

JurisdictionEngland & Wales
JudgeSir Geoffrey Vos,Lady Justice Nicola Davies,Lord Justice Dingemans
Judgment Date09 February 2022
Neutral Citation[2022] EWCA Civ 118
Docket NumberCase No: CA-2021-000579 (formerly C1/2021/0802)
CourtCourt of Appeal (Civil Division)
Between:
The Queen on the application of the Counsel General for Wales
Claimant/Appellant
and
The Secretary of State for Business, Energy and Industrial Strategy
Defendant/Respondent

and

(1) The Lord Advocate
(2) The Attorney General for Northern Ireland
Interested Parties

[2022] EWCA Civ 118

Before:

Sir Geoffrey Vos, MASTER OF THE ROLLS

Lady Justice Nicola Davies

and

Lord Justice Dingemans

Case No: CA-2021-000579 (formerly C1/2021/0802)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The High Court of Justice Queen's Bench Division (Divisional Court)

Lord Justice Lewis and Mrs Justice Steyn

[2021] EWHC 950 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Helen Mountfield QC, Christian J Howells and Mark Greaves (instructed by Director of Legal Services, Welsh Government) for the Appellant

Sir James Eadie Q.C. and Christopher Knight (instructed by Treasury Solicitor) for the Respondent

Hearing date: 18 January 2022

Approved Judgment

This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:00 on 9 February 2022

Lady Justice Nicola Davies
1

These proceedings commenced by way of an application for permission to apply for judicial review brought by the Counsel General for Wales in connection with the interpretation of provisions of the United Kingdom Internal Market Act 2020 (‘UKIMA’) and their effect on legislation of the Senedd enacted in accordance with the provisions of the Government of Wales Act 2006 as amended (‘GoWA’).

2

This appeal is brought in respect of the order of a Divisional Court, Lewis LJ and Steyn J, dated 19 April 2021 whereby they refused the appellant permission to apply for judicial review to seek a declaration as to the proper construction of UKIMA as it applies to the effect of GoWA. The refusal was on the grounds of prematurity.

3

The declaration sought is in these terms: “The amendment of Schedule 7B of GoWA by section 54(2) of UKIMA, to add UKIMA to the list of protected enactments, does not amount to a reservation and does not operate so as to prevent the Senedd from legislating on devolved matters in a way that is inconsistent with the mutual recognition principle in UKIMA.”

4

On 23 June 2021 Singh LJ granted permission to appeal the decision on the ground that there were compelling reasons for the appeal to be heard as the case raised important issues of principle going to the constitutional relationship between the Senedd and the Parliament of the UK. Permission was not granted to bring the appellant's claim for judicial review, therefore the issue on this appeal was whether to grant permission to apply for judicial review.

5

There is one ground of appeal, namely that the Divisional Court was wrong to conclude that the application for a declaration of principle brought promptly after the introduction of UKIMA could not be tested in the absence of a specific Act of the Senedd.

6

No legislation has been enacted by the Senedd giving rise to issues involving UKIMA. The respondent has not exercised any power to make regulations under UKIMA.

7

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 GoWA 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.

8

I accept that it would be unwise for this court to address the issue identified in the declaration in the absence of specific legislation, which is likely to impact upon the decision of the court by identifying the respective areas of competence. Further, the appropriate route provided by Parliament to address the legislative competence of the Senedd is that provided by Section 112 GoWA. For similar reasons, I would not determine the arguability of the claim in these proceedings.

9

The interested parties did not appear and were not represented in this appeal. The United Kingdom Internal Market Act 2020

10

UKIMA was enacted so as to take effect upon the exit of the UK from the European Union (‘EU’) on 31 December 2020. Its purpose is to make provision in connection with the internal market for goods and services in the UK. This was necessary because during membership of the EU, its law operated to ensure such an internal market across the EU as a whole, including within member states. As of the date of exit from the EU, the devolved legislatures within the UK possessed substantial law-making power, including the potential to affect the UK's internal market. Under the UK's reserved powers model of devolution, the powers previously reserved for the EU would, in the absence of UKIMA, flow to the devolved legislatures and allow them to legislate in areas which could create intra-UK trade barriers. The parties identified food standards and environmental protection as examples of such areas. The purpose of UKIMA is set out at paragraph 1 of the Explanatory Notes as being:

“… to preserve the United Kingdom's (UK's) internal market as power previously exercised at European Union (EU) level return to the UK, providing continued certainty for people and businesses that they can work and trade freely across the whole of the UK.”

Legislative Framework

11

The relevant provisions of GoWA and UKIMA are to be found at [8]–[20] of the Divisional Court judgment:

“8. Section 1 of GOWA provides for a parliament for Wales known as the Senedd Cymru. The Senedd is “a permanent part of the United Kingdom's constitutional arrangements” (see section A1 of GOWA).

9. The Senedd has power to make laws for Wales, as does the Parliament of the United Kingdom. Section 107 of GOWA provides, so far as material that:

“Acts of the Senedd

107(1) The Senedd may make laws, to be known as Acts of Senedd Cymru or Deddfau Senedd Cymru (referred to in this Act as “Acts of the Senedd”).

(2) Proposed Acts of the Senedd are to be known as Bills; and a Bill becomes an Act of the Senedd when it has been passed by the Senedd and has received Royal Assent.

…..

(5) This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales.

(6) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd.”

10. The extent of the legislative competence of the Senedd is defined by section 108A of GOWA which provides, so far as material, that:

“(1) An Act of the Senedd is not law so far as any provision of the Act is outside the Senedd's legislative competence.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it extends otherwise than only to England and Wales;

(b) it applies otherwise than in relation to Wales or confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales;

(c) it relates to reserved matters (see Schedule 7A);

(d) it breaches any of the restrictions in Part 1 of Schedule 7B, having regard to any exception in Part 2 of that Schedule from those restrictions;

(e) it is incompatible with the Convention rights or in breach of the restriction in section 109A(1).

(6) The question whether a provision of an Act of the Senedd relates to a reserved matter is determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”

11. So far as the restriction in section 108A(2)(c) of GOWA is concerned, schedule 7A to GOWA sets out those matters that are reserved to the United Kingdom Parliament. The Senedd does not have competence to make laws in relation to those reserved matters. Part 1 of Schedule 7A sets out general reservations where the Senedd does not have legislative competence, such as certain matters to do with the constitution, the Civil Service or issues relating to courts and tribunals. Part 2 sets out specific reservations where certain matters are reserved to the United Kingdom Parliament but there are exceptions where the Senedd also has legislative competence. By way of example, in the area of consumer protection, the enforcement of certain consumer legislation and product labelling are both reserved matters but in each case there is an exception in relation to food and food products (see paragraphs 76 and 80 of Schedule 7A to GOWA).

12. So far as the restriction in section 108A(2)(d) is concerned, Schedule 7B provides that a provision of an Act of the Senedd cannot modify specified areas of law (such as private law) or specified enactments. “Modifications” include amendments, repeals and revocations (see section 158 of GOWA). The material paragraph is paragraph 5 which provides that:

“5(1) A provision of an Act of the Senedd cannot make modifications of, or confer power by subordinate legislation to make modifications of, any of the provisions listed in the table below:

Enactment

Provisions protected from modification

Government of Wales Act 1998

Section 144(7).

Human Rights Act 1998

The whole Act

Civil...

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