Court Rules Welsh Ministers' Consultation on Legislation Infringes Separation of Powers

The Divisional Court (Lewis LJ, Chamberlain J) sitting in Cardiff has held that recognising a common law duty on Welsh ministers to consult before introducing legislation in the Senedd would infringe the constitutional separation of powers reflected in the Government of Wales Act 2006 (“GoWA”). The Court’s decision represents a muscular invocation of the pre-legislative, holistic view of devolution provided by Lord Hope in Axa. But that is no reason to think the textualist view of devolution provided by Lord Reed in that case has been departed from. The case is R (The Greyhound Board of Great Britain) v The Welsh Ministers [2026] EWHC 670 (Admin).

Factual Background

The claimant represents the interests of those involved in greyhound racing. It filed a claim challenging the Deputy First Minister of Wales’s (“DFM”) statement in the Senedd on 18 February 2025 that “now is the right time to move to ban greyhound racing in Wales”. The claimant argued that the Welsh Ministers should have held a public consultation before that decision. The relief sought was a declaration to that effect and a quashing order.

On 29 September 2025, the DFM introduced the Prohibition of Greyhound Racing (Wales) Bill into the Senedd. It passed stage 4 of the legislative procedure on 17 March 2026. In December 2025, the claimant applied to amend its claim to challenge the Welsh Ministers’ decision to introduce the Bill, and to add the Senedd Commission as an Interested Party. The relief sought was amended to be limited to declaratory relief, motivated by the s.41(3) GoWA stipulation that “[i]n any proceedings against the Senedd the court must not grant a mandatory, prohibiting or quashing order or an injunction, make an order for specific performance or stay the proceedings but may instead make a declaration.”

The claimant acknowledged that the consequence of declaratory relief would be that a Bill which has passed its legislative stages would not be law even if it were submitted for Royal Assent ([8]). The question of whether the court has power to grant relief with that consequence was a “novel and important constitutional question”. The main issue was “whether decisions to introduce legislation in the Senedd are challengeable on the ground of a breach of a failure to consult ” ([9]).

The competing arguments

The claimant argued that the legality of Welsh Ministers’ decisions to introduce legislation was “justiciable in the same way as any other decision of the Welsh Ministers”. Applying Miller II, the claimant argued that deciding a justiciable issue does not offend against the separation of powers ([29]). The Inner House decision in Whaley 2000 SC 340 – specifically referenced in the explanatory notes to s.41 GoWA – showed that Scottish courts may grant interim interdict (equivalent to an injunction) to enforce a statutory provision governing the introduction of legislation, even if that relief would have “consequential effects on the working of the Parliament” ([30]). Case law suggesting that consultation challenges cannot be made to Westminster legislation could be distinguished on the basis that unlike the Senedd, the UK Parliament was a sovereign legislature whose proceedings are protected by Article IX of the Bill of Rights 1689 and Parliamentary privilege ([31]).

The Welsh Ministers argued that the original claim challenging the 18 February 2025 Ministerial statement became academic when the Bill was introduced ([32]). In any case, the relief sought was constitutionally impermissible as it would prevent or reverse the introduction and progress of a Bill in the Senedd, and constitutes an unlawful interference with legislative proceedings under the principle of separation of powers ([33]). In any event, there was no breach of any legitimate expectation to consult ([34]).

Counsel for the Senedd Commission and the Llywydd (Presiding Officer) submitted that a judicial finding that an elected representative acted unlawfully in introducing a Bill would trespass on the constitutional principle of the separation of powers and was contrary to GoWA’s protections for Senedd proceedings ([35]).

The Court’s decision

The starting point was that, following Axa ** in respect of the Scottish Parliament, the Senedd is a legislature that, in areas falling within its legislative competence, has plenary legislative powers ([38]). The laws passed by the Senedd have the status of primary legislation. The Senedd’s (democratic) legitimacy lies in the “historical and contemporary political fact that Wales is a distinct polity within the United Kingdom and… the depth and width of the experience of its elected members and the mandate given to them by the electorate” ([37]).

The substantive upshot of this is that “the courts cannot review Acts of the Senedd on the ground of rationality, unreasonableness or arbitrariness” ([38]). Another consequence is procedural: an Act of the Senedd remains valid despite any invalidity in Senedd proceedings leading to its enactment. This is both as a result of statute (s.107 GoWA), but also from reasoning from first principles in relation to  legislatures with plenary powers ([38]). Such a legislature is a sole arbiter not only of the substantive reasonableness of legislation within its legislative competence, but also the procedure adopted in enacting that legislation ([38]).

Leaving aside potential breaches of statutory limits on the Senedd’s standing orders and other aspects of its procedure, it is inappropriate for the courts to consider even “procedural” complaints to Bills, eg that a committee acted unfairly in taking evidence from persons affected, or that too little time was given for opponents to make their points ([40]). This is because a court was ill-equipped to adjudicate political complaints of this kind, and doing so would “trespass on to the territory of a legislature with plenary powers, contrary to the constitutional separation of powers” ([40]).

On the central question of whether there could be a common law duty to consult prior to introducing a Bill, the main issue was whether introducing legislation forms part of Senedd proceedings; it clearly did ([43]). The analogy with Miller II was inapt. Prorogation in that case was not part of “proceedings in Parliament” as it was “imposed on [Parliament from outside]” and because it brought “core or essential business of Parliament to an end”. By contrast,  introducing a Bill initiates and enables the Senedd’s legislative proceeding, rather than shutting them down ([45]).

This had two consequences for the present claim. First, introducing a Bill starts a procedure which shares the aim (though not the methods) of a consultation process forming part of the general common law duty to consult. It would be inconsistent with the Senedd’s plenary powers and the separation of powers for the courts to review the “initiating act” of Senedd proceedings on the basis that some prior consultation should have been completed ([46]). Second, once the Bill becomes an Act, any invalidity in introducing it became an “invalidity in the Senedd proceedings leading to its enactment” within s. 107 GoWA and, thus incapable of affecting the Act’s validity. It would be anomalous if the court could rely on that same invalidity to grant relief affecting the Bill’s validity ([47]).

Whaley did not detract from this conclusion. That case involved a proposed interdict restraining the introduction of a Bill where it was said a prohibition on paid advocacy contained in subordinate legislation made under the Scotland Act 1998 would be breached. Whaley was therefore premised on an alleged “[contravention of] the law of the land” ([50]). It was in that context that it was suggested the Scottish equivalent of s.41 GoWA did not preclude coercive relief being made to restrain a threatened breach of a statutory prohibition, even if that relief had implications for the legislative process ([49]). The present case did not involve alleged breach of any express statutory provision, instead relying on a general common law obligation to consult ([50]).

These conclusions were consistent with the structure and purpose of GoWA, the analysis of the Supreme Court in Axa, and also other judicial rejections of consultation challenges to decisions to introduce primary legislation ([51]), including Unison ** and Adiatu ([52]-[53]).

There was therefore no legal obligation on the Welsh Ministers to consult any section of the public before the Bill was introduced. The original claim against the DFM’s statement was left undetermined as it was academic given this conclusion ([57]). Further, it would also contravene the separation of powers to adjudicate on an alleged procedural flaw at the pre-legislative stage of a Bill now validly before the Senedd ([58]).

Comment

This judgment is striking in its muscular invocation of constitutional principle to assert the Senedd’s position as a legislature with plenary powers. This is what one of the editors of this blog Anurag Deb has called the “holistic” account of devolution provided by Lord Hope in Axa, by which the Scottish Parliament enjoys legitimacy which is pre-legislative: it “draws its strength from the [Scottish] electorate” and “takes its place under our constitutional arrangement as a self-standing democratically elected legislature”.

This is contrasted against the “textual” account of devolution provided by Lord Reed in Axa, by which the Scottish Parliament only enjoys plenary powers within its legislative competence as a result of the will of the UK Parliament. This latter account is the dominant view taken by the Supreme Court post- Axa,particularly in references brought by the Scottish Government arguing that certain proposed acts fall within its legislative competence. In both the Continuity Bill Reference ** and Treaty Incorporation Bills References, the textual account of devolution has been deployed to assert a “weakened” role of the devolved legislature vis-à-vis the UK Parliament.

The muscular invocation of the holistic account of devolution in The Greyhound Board of Great Britain can be seen in at least three ways.

First, when recounting the pre-legislative legitimacy of the Senedd by reference to Lord Hope’s statement on the “depth and width of the experience of its elected members and mandate given to them by the electorate” vis-à-vis the Scottish Parliament, the Divisional Court actually went further than His Lordship did in Axa. In addition to this electoral mandate, they referred to the “historical and contemporary political fact that Wales is a distinct polity within the United Kingdom” ([37]). One would struggle to find a more muscular, holistic account of devolution by the senior judiciary.

Second, the Divisional Court make explicit that their analysis was not limited to construing the Senedd’s powers under the GoWA, but was also motivated by what the right result should be as a matter of constitutional first principles: the “consequence” that Senedd has exclusive competence to “[determine] for itself whether a legislative proposal is in the interests of the people of Wales” (free from substantive judicial review), and that an Act of Senedd retains validity despite any procedural flaws leading to it enactment, “reflects a more general feature of legislatures with plenary powers” ([38]).

Third, the Divisional Court’s doubting of Whaley “remains good law in the light of Axa ”([50]) is clearly motivated by the holistic account of devolution provided by Lord Hope, rather than Lord Reed’ textual account, in that case.

None of the above is to suggest that the Court would have reached a different conclusion if Lord Reed’s textual account of devolution was adopted: the Court made clear that their view of the Senedd’s plenary powers stems from an analysis of the words in s.107 of GoWA ([38]), and their overall conclusion flows “from an examination of the structure and purpose of GoWA” ([51]).

More importantly, the analysis above does not suggest that this decision represents any departure from Reed’ textual account. Instead, what cases like The Greyhound Board of Great Britain demonstrate is that the courts will decide which of the two different accounts of devolution in Axa applies, depending on the type of claim before them. Broadly speaking, where like the present claim the issue concerns (the insulation from) challenge against the plenary powers of the devolved legislature in general, the holistic account of Lord Hope prevails. Where however, the powers/competence of the devolved legislatures are being viewed against those of the Westminster Parliament or Government, the textual account of Lord Reed is adopted. In the latter case, it is because it is the Reed account which provides the court with the fig leaf (whether justified or not) to more muscularly assert Westminster’s role.

Gabriel Tan

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