Blocking of challenge to UK post-Brexit trade law upheld

The act has been highly controversial in the devolved nations

A Welsh government appeal against the blocking of its legal challenge to a post-Brexit UK trade law has failed.

Welsh ministers claim the Internal Market Act will restrict devolved powers but permission for a High Court challenge was refused last April on the grounds of being premature.

The Court of Appeal upheld the original decision that it was too soon for a judicial review.

The Welsh government has applied for permission for a Supreme Court appeal.

A spokesperson said ministers were "disappointed with the judgement and will continue to take all possible steps to challenge the UK Internal Market Act".

• What is the row over 'internal markets' all about?

• Legal action over post-Brexit UK trade law

The act was drawn up to set out the terms of trade between the four UK nations after the Brexit transition ended last year.

Boris Johnson's government said it wanted to avoid different regulations emerging in the UK's four nations after EU rules no longer applied.

But the Welsh Parliament opposed the law, amid claims it meant attempts to set higher food standards or environmental protection in Wales could be dragged down to a lowest common denominator in another UK nation.

Ministers have been concerned the law will restrict the Senedd's ability to pass laws on some areas which are nominally devolved.

Announcing legal action in January 2021, the Welsh government's then counsel general Jeremy Miles said the act "severely curtails" the powers of the Welsh Parliament, and includes "wide Henry VIII powers" which UK ministers could use to "cut down the devolution settlement".

But his request for the High Court to allow the case to proceed to a full hearing was rejected as premature.

Lord Justice Lewis, sitting with Mrs Justice Steyn it was "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".

The Court of Appeal has now upheld that ruling.

What did the Court of Appeal say?

On Wednesday Lady Justice Nicola Davies, sitting with Master of the Rolls Sir Geoffrey Vos and Lord Justice Dingemans, said: "Time will only begin to run for the purpose of any claim of judicial review when an attempt is made to pass legislation which is or could be inconsistent with the provisions of UKIMA [the UK Internal Market Act].

"This is because it is only when a bill is proposed which would or might be inconsistent with the provisions of UKIMA, that the provisions of UKIMA would affect the claimant."

A Welsh government spokesperson said: "We note that the court has not rejected our concerns, but rather expressed a preference for testing the issues against a specific piece of Senedd legislation

"We will continue to champion the rights of the Senedd to legislate without interference in areas devolved to Wales.

"With this in mind, the counsel general [Mick Antoniw] has applied for permission to appeal this matter to the Supreme Court.

"It is hoped that such an appeal will help to resolve this issue of continued constitutional importance."