[R] signifies the Member has declared an interest. [W] signifies that the question was tabled in Welsh.

I now call on Jeremy Miles to ask the third urgent question.

Will the Counsel General outline his assessment of the potential legal implications of the planned litigation against the UK Government in relation to Article 127 of the European Economic Area Agreement? EAQ(5)0015(CG)

Well, thank you for that urgent question. I can tell you that my assessment is, indeed, at a very preliminary stage. I think we were all made aware of this issue in an article that appeared over the weekend, which was the first announcement that there might be legal action. The British Influence think tank plan to write to the Secretary of State for Exiting the European Union, to ask him to clarify his position on UK membership of the European Economic Area after Brexit. This process may see proceedings being brought, but no court proceedings are currently live. So, it’s clear that any litigation is still some way off. The UK Government has been asked to clarify its position on withdrawal from the European Economic Area under article 127 of that agreement, and we look forward to hearing what they have to say about that.

I thank the Counsel General for his answer. Would he not agree with me that the principles being discussed here, in a sense, lie on the fault line between a hard and a soft Brexit, if you like? The UK will now leave the EU, but the question is: do we then also leave the EEA and the access to the single market that that brings? Article 127 suggests that that is a separate question and—if I may say—one that the voters haven’t been asked. So, would he share my concern that the UK Government seems to be losing sight of its legal obligations here in its rush to make political judgments about what the British people have voted for.

Well, we also have, as you know, the hearing starting in a week’s time, on 5 December, at which the Welsh Government will be represented, which is going to certainly determine the mechanism for constitutional change. What I can say is that I think the litigation exposes, even now, the UK Government’s total lack of planning, strategy and preparedness for Brexit, and there appears to be a complete lack of thought regarding the UK’s constitution and the rule of law. A state of unparalleled chaos appears to exist at the heart of the Government whose sole strategy appears to be to want to have their cake and to eat it.

I thank the Member for Neath for tabling this urgent question. Can the Counsel General clarify his view on this matter—whether the triggering of article 127 is a necessary legal step, and whether that should be done concurrently with the triggering of article 50? If so, can he also clarify whether—if there is litigation down the line—the Welsh Government will intervene in any legal proceedings, as it has done in the UK Government’s appeal to the Supreme Court on the triggering of article 50? And finally, can he also give a commitment that he will assess whether there are opportunities in the process of triggering article 127 for sub-state entities, such as Wales, to potentially leave or remain in a different way than the state as a whole?

Well, thank you. You’ve asked a number of questions, I think, that raise complex, specific and highly technical legal questions, which the Welsh Government will want to consider carefully and thoroughly in due course. With regard to the triggering of article 127, I think some of those issues may well be determined on the matter of principle in the article 50 case that’s being heard in the Supreme Court next week, where we will probably anticipate judgment sometime in early January. So, in terms of the process, that may actually be the mechanism. In terms of what the implications might be for Wales, the agreement on the European Economic Area is one of the EU treaties that is woven into the fabric of our constitutional settlement by the Government of Wales Act 2006, so, when we know precisely what has happened, when we know precisely what the UK Government’s response is to that, and when we’ve seen the outcome of the article 50 case, if there are any specific issues that are directly relevant to Wales and Wales’s interest, then we will consider those accordingly and I will advise accordingly.

You mentioned the think tank British Influence, and they said there’s no provision in the European Economic Area agreement for UK membership to lapse if the UK withdraws from the EU, and therefore the UK will have to extract itself from the European Economic Area separately to its departure from the EU itself. However, professor of European law at the University of Cambridge, Kenneth Armstrong, has pointed out that the UK neither signed nor ratified the agreement because it wasn’t within its power and competencies—it was within the EU power and competencies—and therefore, once the UK was outside the EU, the agreement would only be enforceable for very limited purposes. On what legal grounds, therefore, would you challenge the UK Government position, which has been stated, which is that the UK is party to the EEA agreement only in its capacity as an EU member state, and once the UK leaves the EU it will automatically cease, therefore, to be a member of the EEA?

Well, thank you very much for that. You’ve raised the valid counterpart of the argument that has been put as the reason why a judicial review pre-action protocol letter has actually been sent to the UK Government. So, the first thing we need to know is what the actual UK Government’s response is to that. As I understand the chronology of events, we left EFTA in 1973, when we joined the European Union. The European economic area agreement was agreed in 1992 and came into effect in 1994. It has the unusual provision in that not only does it of course include the signing of Iceland, Liechtenstein and Norway—the EFTA states—but it also includes the European Union as a signatory as well as every individual state. Whether that is a legal anomaly or whether it raises constitutional issues I think will depend on a number of matters, one part of which may be determined as a result of the article 50 Supreme Court hearing in respect of the constitutional issue in respect of process. But the issues that are raised we will give consideration to when we know clearly what the UK Government's position is.

Isn't it about time the remoaners stopped trying to frustrate the freely expressed wishes of the British people in June? The question was plain and simple: do we want to remain in the EU or leave the EU? There was no if or but. There was no qualification or condition. There was nothing about whether it should be a soft Brexit or a hard Brexit. The decision taken by the British people under the terms of the referendum Act that was passed to facilitate this was: do you want to stay or to leave? And the British people voted to leave. The Conservative party, in its manifesto before the last general election, included a paragraph that said:

‘We believe in letting the people decide: so we will hold an in-out referendum on our membership of the EU before the end of 2017.’

The Government has a mandate to implement its manifesto pledge, and all this wriggling by the very inaptly named British Influence, which is a front organisation for European influence, should be ignored, and we should move as quickly as possible to trigger article 50 and, if necessary, article 127 and leave the EU, consequent upon the freely expressed wish, unconditionally, by the British people.

Well, unlike the Member, I'm not in a position to show complete contempt for our constitution and for the rule of law. It seems to me that we have a legal system that has well-established principles. Some of these are before the highest court of the land at the moment, and we should actually give due recognition to the fact that that court will be exercising its jurisdiction and giving a decision as an independent judiciary. I seem to recall that, last week, I asked the Member to repudiate and dissociate himself from the attempts by the then leader of his party to have a sort of torchlight march upon the Supreme Court to intimidate the judges. I never heard him repudiate that. My job, as Counsel General, is to stand up for the constitution and to stand up for the rule of law and, unlike him, I will actually carry out that duty.

I thank the Counsel General.