Part of 3. 2. Questions to the Counsel General – in the Senedd at 2:22 pm on 30 November 2016.
Well, I can’t say that I’m perplexed. The UK Government has obviously decided on its own course of action, which is to lodge an appeal against the decision of the High Court. The submission that I filed on behalf of the Welsh Government, as Counsel General, sets out very clearly the view that we have, which actually supports that decision that the prerogative is not the appropriate mechanism for making significant constitutional change, or, in fact, for overturning the legislation of the United Kingdom Government, and also in respect of the constitutional arrangements that exist.
I’d refer the Member, in fact, to one of the points that we make in the submission to the Supreme Court that if the UK Government’s position was, in fact, correct, if the logic employed in the UK Government’s case is correct, then, in actual fact, the Prime Minister could have revoked article 50 at any time, even without any authorisation in the form of a referendum. So, we say that that clearly would be a perverse analysis and is plainly wrong.
We don’t think it pays sufficient respect to the democratically elected institutions of Parliament, this place and the other devolved legislatures. So, we think that giving notification under article 50 will modify the competence of the Assembly and the functions of the Welsh Government, as set out under the Government of Wales Act 2006. We say that the prerogative cannot be used to dispense with the constitutional statute. We also say that any modification to the legislative competence of the Assembly, or indeed any modification of executive functions within devolved competence, will engage the Sewel convention and that this is a key constitutional practice that is vital to the proper functioning of the United Kingdom. It provides for a dialogue between democratically elected legislatures about changes to the devolution settlement. We say that the UK Government does not have the power to short-circuit it through the use of the prerogative, so we will therefore be arguing for the High Court’s clear decision in Miller to be upheld and for the UK Government’s appeal to be rejected.