Devolution and declaratory judgments: the Counsel General’s legal challenge to the UK Internal Market Act 2020

Abstract

This commentary will focus on the Counsel General’s legal challenge to the United Kingdom Internal Market Act 2020 (UKIMA). While the application for an advisory declaration in this case was refused by both the Divisional Court and Court of Appeal, this commentary argues that the substance of the application, and accompanying decision of the court, offer three points of constitutional significance regarding the Welsh devolution settlement: (i) the decision clarifies the position on the use of declaratory judgments in reference to premature questions on legislative competence; (ii) the application sets out the substance of the Welsh Government’s ongoing concern regarding the content and operation of UKIMA, and its potential impact upon the Senedd’s legislative competence; (iii) the application by a devolved government for judicial review of UK Parliamentary legislation marks a significant moment in the relationship between the Welsh and UK Governments.