Welsh Government’s bid to fight trade law rejected
THE Welsh Government has been refused permission for a High Court legal challenge against the UK Government over the Internal Market Act.
Counsel General for Wales Jeremy Miles tried to bring a full High Court challenge over the Act, which he argued “severely curtails” the powers of the Senedd and could prevent it from making laws on food or environmental standards.
Announcing the legal action in January, Mr Miles said the Act was an “attack” on the powers of the Senedd, and also includes “wide Henry VIII powers” which UK ministers could use to “cut down the devolution settlement”.
At a hearing in London last week, Mr Miles asked the High Court to allow the case to proceed to a full hearing later this year.
But the UK Government argued that the claim is “hypothetical”, and that “nothing in the Internal Market Act alters the devolved competence of the Senedd”.
In a ruling yesterday, the High Court refused permission for the case to go ahead, saying: “This claim for judicial review is premature.”
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.”
The judge added: “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.”
A Welsh Government spokesman said: “The (High) 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.”
Plaid Cymru’s Westminster leader, Liz Saville Roberts, said: “This ruling is disappointing. Its implication is that Wales must wait until Westminster has inflicted the worst of its attacks on devolution before we can act. By that point I fear that it will be too late. There is an alternative: by electing the first pro-independence Welsh Government on May 6, we can ensure that our powers will remain fully protected in the hands of the people of Wales.
“By voting for Plaid Cymru we can ensure that no Tory government can overrule our democracy again.”
THE result of the court case brought by the Welsh Government against Westminster over threats to the devolution settlement is a setback but not a defeat for the former.
Although the subject matter may appear abstruse, the matter being litigated is of vital importance to the future of how we are governed.
Until recently, a demarcation line could be drawn between the functions for which both governments were responsible.
If you looked for economic development, animal welfare or environmental protection in a list of powers reserved to Westminster, you would not find them.
The Internal Market Act, however, appears to contradict the devolution settlement.
It gives the Westminster Government the power to impose common standards for trade across the UK that remove the rights of individual countries to make their own rules.
Unsurprisingly the Welsh Government is unhappy.
The UK may have left the EU, but much of our trade is still with it.
This remains possible because up to now, product standards that maintain compatibility with the EU are still in place.
If and when standards are lowered, however, such compatibility will be lost and trade with the EU in the relevant fields would likely have to end.
Such practical concerns were what prompted the Counsel General, Jeremy Miles, to seek a judicial review of the impact of the Internal Market Act on the devolution settlement.
Yesterday the High Court decided that Mr Miles’ request had been made prematurely.
We should probably not be surprised by the decision.
It is asking a lot to get the High Court to overturn part of an Act of Parliament.
Judges will recoil instinctively from being seen to encroach on the power of politicians to make laws.
Instead, they refused Mr Miles’ application for technical reasons, arguing that because no specific proposal had yet been made that would usurp the Welsh Government’s existing powers, he had come to court too early.
Despite the judges’ ruling, we should be under no illusion that a showdown between the two governments will take place sooner or later.
The prospect of a damaging free trade deal with the US may have receded with the departure of Donald Trump from the White House, but other challenges lie ahead.