The Queen (on the application of the Counsel General for Wales) v The Secretary of State for Business Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis |
| Judgment Date | 19 April 2021 |
| Neutral Citation | [2021] EWHC 950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/188/2021 |
| Date | 19 April 2021 |
and
[2021] EWHC 950 (Admin)
THE RIGHT HONOURABLE Lord Justice Lewis and
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/188/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield Q.C., Christian Howells and Mark Greaves (instructed by Director of Legal Services, Welsh Government) for the claimant.
Sir James Eadie Q.C. and Christopher Knight (instructed by Government Legal Department) for the defendant.
The interested parties did not appear and were not represented.
Hearing date: 16 April 2021
APPROVED JUDGMENT (SUBJECT TO EDITORIAL CORRECTIONS)
Permission granted for this judgment to be cited in legal proceedings in court
Introduction
This is the judgment of the court.
This is 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 Markets Act 2020 (“the 2020 Act”) and their effect on legislation of the Senedd enacted in accordance with the provisions of the Government of Wales Act 2006 as amended (“GOWA”).
In brief, the claimant seeks declarations in relation to two matters. First, in substance, he seeks a declaration that the provisions of the 2020 Act do not have the effect of impliedly limiting the legislative competence of the Senedd to enact legislation which is inconsistent with the mutual recognition principle contained in section 2 of the 2020 Act. That principle provides that goods which can be sold in one part of the United Kingdom may be sold in all other parts. Secondly, he seeks a declaration that the power conferred on the defendant by certain provisions of the 2020 Act to make regulations amending provisions of that Act cannot be exercised in a way which would substantively limit the legislative competence of the Senedd.
The role of the courts in judicial review is a limited one. The courts are concerned with resolving questions of law. It is not for the courts to determine the appropriate allocation of powers as between the devolved legislatures and the United Kingdom Parliament. That is a subject of legitimate public interest but it is not a matter for the courts to determine. Rather, the courts are concerned with interpreting and applying the legislation governing the allocation of powers.
Judicial review is a two stage process. The claimant must first obtain permission to apply for judicial review then, if permission is granted, there will be a full hearing to determine the issues. Permission to apply for judicial review should be granted if a claimant shows that one or more of the grounds gives rise to an arguable case that a reviewable error exists and there is no discretionary or other bar to bringing the claim: see Sharma v Brown-Antoine [2007] 1 W.L.R. 780 at paragraph 14(4) and Simone v Chancellor of the Exchequer and the Secretary of State for Education [2019] EWHC 2609 (Admin) at paragraph 112.
In the present case, the Senedd has not yet enacted any legislation giving rise to issues involving the 2020 Act. Similarly, the defendant has not yet exercised any power to make regulations under the 2020 Act. One issue is whether it is appropriate to consider the issues that are said to arise in this case in the absence of specific circumstances giving rise to those issues or whether the claim for judicial review is premature and so permission should be refused. If the claim is not premature, the question then is whether the claimant has established an arguable ground of judicial review which merits full investigation at a full hearing.
The question of permission is usually considered, initially, by a judge considering the papers alone. In appropriate cases, an application for permission can be referred to an oral hearing in order to enable the court to hear legal argument on behalf of the parties on whether or not permission to apply for judicial review should be granted. Given that the claim is said to raise issues of constitutional importance, the matter has been referred to an oral hearing before a Divisional Court. The claim has been issued and managed by the Administrative Court in Wales. Given the urgency, and the constraints of the global pandemic, the judges (Lewis LJ and Steyn J, the liaison judge for the Administrative Court in Wales) and counsel for the claimant and the defendant were physically present in court in London for a hearing on Friday, April 16 2021. The legal teams and others participated remotely by video link from Cardiff and other locations. We are grateful to counsel for their submissions and to the legal teams for the efficient way in which the case was prepared and presented, enabling the court to deal with the issues that arose. By reason of the importance of the issues that were said to be involved, we did not give judgment at the hearing but reserved judgment. This is our judgment.
The Legal Framework
The Legislative Competence of the Senedd
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).
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.”
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.”
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).
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
Section 144(7).
The whole Act.
The whole Act.
Section 100 and regulations
under that section.
The whole Act other than any excluded provision
The whole Act.
The reference to the 2020 Act was inserted in paragraph 5 by section 54(2) of the 2020 Act.
The person in charge of a Bill must state, on or before the introduction of the Bill, that in his or her view the provisions of the Bill would be within the Senedd's legislative competence. The Presiding Officer of the Senedd must also...
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