2. 2. Questions to the Counsel General – in the Senedd on 2 November 2016.
3. What assessment has the Counsel General made of the implications of triggering article 50 on the devolution settlement? OAQ(4)0007(CG)
Thank you for the question. The Members know that this question engages the established law officers’ convention. But what I can say is that the Welsh Government will play a full part in discussions around the UK’s withdrawal from the European Union, and that will, of course, entail careful consideration of the implications of withdrawal for the devolution settlement.
Thank you, Counsel General. You will be aware of the ongoing High Court action in respect of article 50. What steps has he taken to ensure that Welsh interests are being protected in respect of this action?
The High Court action concluded last week. It was a very important case that was brought, which relates to the use of the royal prerogative to trigger article 50. All sorts of issues have been raised as to whether this approach, for example, is in breach of the bill of rights, and subsequent court decisions and legislation. It is a major constitutional case.
The constitution, devolution issues and the devolution statutes have been referred to in that case, so I’ve considered it prudent to have conducted a watching brief on that particular case. The case has already been listed to leapfrog the Court of Appeal to go to the Supreme Court, commencing on 7 December. Once the judgment from the High Court is received, I’ll be giving that consideration, with a view to considering any potential devolution issues, constitutional issues, that are important to Wales and to the Assembly, and considering any further steps thereafter.
In the external affairs committee on Monday, we had evidence that the European repeal Bill, if it’s anything more than a simple saving Bill, could breach the Sewel convention and claw back powers from Welsh Ministers. Does he agree that we need to be vigilant that the repeal Bill is not used, as the Wales Bill is being, to row back on elements of the Welsh constitutional settlement that are not convenient to the UK Government? And, if he does agree with me, what steps can we take at this stage to ensure that doesn’t occur?
Thank you. I’ll refer to the Sewel point in a moment, because the point about the rowing back of powers, of course, is exactly the point that was made on the Wales Bill by the House of Lords select committee, where they asked the Government to explain whether the Wales Bill is actually intended to reduce the legislative competence of the Welsh Assembly in some areas, and if not, what steps they plan to take to ensure that the competence of the Assembly is not inadvertently reduced. And that point equally applies, I think, to the so-called great repeal Bill. The problem is that no-one has a clue at the moment what a great repeal Bill might actually be, what the extent of it might be, what it might actually contain, and how it would impact on the devolved Governments, on the devolution statutes, and indeed on the overall constitution of the United Kingdom. But, certainly, as far as the Sewel convention is concerned, it is a convention, so it is a non-justiciable matter, but it is a convention whereby there is agreement that the United Kingdom Parliament will not legislate in devolved areas without the consent of the devolved Governments. That is on the statute books as far as Scotland is concerned, and is proposed to go on the statute book as far as the Wales Bill is concerned. It remains a convention, but I would certainly take the view that any legislation that was brought, where it related to devolved areas of responsibility under the Sewel convention, would have to come to this Chamber here to be considered and to be voted upon.
Will the Counsel General confirm that triggering article 50 merely begins the process of negotiation with the EU about the terms upon which we’ll continue to trade with them or have other inter-governmental relationships? It doesn’t really have anything to do with devolution at all, except that the process of withdrawal from the EU is in itself a giant devolution process because we’ll be repatriating powers that currently are in Brussels to either Westminster or to Cardiff. And, in this context, it enhances and entrenches the devolution process to Wales, because it will enhance the powers of this Assembly, and indeed of the Welsh Government.
I thank the Member for that question. I can tell the Member that I consider the points he makes to be fundamentally legally and constitutionally incorrect. [Interruption.] Triggering article 50 is an irreversible process. The authority for that is the statement that was made by the UK Government in the recent case that has actually been referred to, and the implication of that is that after a two-year process, the 1972 Act ceases to take effect. All subsequent legislation that was created as a consequence of that, plus all the interrelated legislation that relates to the Welsh constitution and the devolution settlements of all the devolved Governments will actually fall. So, the Member is not only wrong; he is misconceived in his understanding of events.
Thank you, Counsel General.