Law prof questions High Court ruling against Welsh Gov on Westminster ‘power grab’

A law professor has questioned a High Court ruling against the Welsh Government on a legal challenge against a Westminster ‘power grab’.

Aileen McHarg, Professor of Public Law and Human Rights at Durham Law School, said there was a “problem” with the “approach” of the court, after it refused permission for the Welsh Government’s case on the Internal Market Act to go ahead.

In his ruling Lord Justice Lewis said the legal challenge was “premature” because there was an “absence of specific circumstances”.

However, Professor McHarg argued that the case brought by Jeremy Miles, the Counsel General for Wales “goes to the heart of the substantive issue” because the impact of the Act on the powers of the Welsh Government and the Senedd “is indirect, rather than direct”.

She said that under the Act, legislation passed by the Senedd is “disapplied rather than invalidated” and therefore “the normal procedural mechanisms for dealing with challenges to devolved legislation simply don’t apply”.

The professor added the Welsh Government “may not” even “know if its legislation has been disapplied” by Westminster.

In its response to the ruling the Welsh Government has said that it is considering “further steps, including an appeal”.

The Act takes away previously devolved powers away from the Senedd centralises them in Westminster.

The Senedd rejected the law as did the Scottish Parliament. However, the UK Government proceeded with the Act regardless.

Jeremy Miles, the Counsel General for Wales, argued that the Act “severely curtails” the powers of the Senedd and could prevent it from making laws on food or environmental standards.

He asked the High Court to allow the case to proceed to a full hearing.

‘Internal Market Act’ 

Professor Aileen McHarg said: “Some thoughts on yesterday’s permission decision in @wg_CounselGen challenge to the UK Internal Market Act. #LAW2021.

“The decision is very similar to that in Keatings v AGS (the indyref case) – ie that competence issues should be raised in the context of particular bills, not in the abstract.

“It made no difference that in this case it was the Counsel General raising the competence issue as opposed to a random member of the public.

“Keatings is under appeal, so we’ll see if the Inner House is any more receptive to giving hypothetical rulings (it was in Wightman).

“But the problem with this approach in the @wg_CounselGen case goes to the heart of the substantive issue raised by his case – ie any impact on devolved competence is indirect, rather than direct.

“Legislation which falls foul of the market access principles in UKIMA is disapplied rather than invalidated.

“This means that the normal procedural mechanisms for dealing with challenges to devolved legislation simply don’t apply.

“The Welsh Govt may not know if its legislation has been disapplied, and its scope thereby narrowed.

“So, the only option for securing a ruling on the competence questions raised in this case would be via a pre-enactment reference by the Counsel General himself.

“In those circumstances, the prematurity arguments seem weaker than in the Keatings case.

“Note also that the 2nd challenge to Ministerial powers to amend UKIMA (and thereby narrow/widen the scope of the market access principles) isn’t all that premature either.

“As @ProfKAArmstrong has highlighted, Ministers are *already* consulting on potential changes to the scope of the Act in relation to services.

“For all these reasons, I’ll be interested to see if @WG_CounselGeneral intends to appeal against the refusal of permission.”

‘Judaical review’ 

In response to the ruling by the High Court, a Welsh Government spokesperson said: “The Divisional Court today decided the application for permission to bring a judicial review of parts of the United Kingdom Internal Market Act.

“The application for permission has been refused on the ground that it is premature, rather than whether it is arguable. Consideration will now be given to further steps, including an appeal.”

In his ruling Lord Justice Lewis, sitting with Mrs Justice Steyn, said: “A claim concerning the meaning or effect of provisions of Senedd legislation, or whether the legislation is properly within the Senedd’s legislative competence, is better addressed in the context of specific legislative proposals.

“It is inappropriate to seek to address such issues in the absence of specific circumstances giving rise to the arguments raised by the claimant and a specific legislative context in which to test and assess those arguments.

“Similarly, it is inappropriate to seek to give general, abstract rulings on the circumstances in which the power to make regulations amending the (Internal Market) Act may be exercised.

“As the claim for judicial review is premature, it is unnecessary, and would be unwise, to express views on the arguability or otherwise of the arguments raised by the claimant.”