1. Will the Counsel General make a statement on the potential legal implications for the Welsh Government of a judicial review of Section 127 of the European Economic Area agreement? OAQ(5)0018(CG)

I thank the Member for that question. As I understand it, the British Influence think tank has sought permission for a judicial review in relation to the applicability of the European Economic Area Agreement to the UK, in relation to Brexit. It is not clear whether permission will be granted, but I understand that an oral hearing for ‘leave’ is now listed to take place in February, which is, in fact, after the Supreme Court judgment in the Article 50 case is likely to have been received.

I thank the Counsel General for that answer. And, of course, he’s drawn our attention as well to recent issues, including the recent application for a judicial review. So, could I ask, in light of that, and his answer, what steps the Welsh Government is taking to protect the interests of the people of Wales, bearing in mind indications from the Prime Minister that failing to secure access to the single market, or continued membership of the customs union, are not barriers to triggering article 50?

Well, the first thing to say is that the new case that’s being brought under article 127 does relate to an important area where the UK is a signatory to an important treaty. It’s worth looking at the specific legal arguments that have been put, as we understand it, in that particular case. What they are saying is that membership of the European Union is a gateway to join the EEA but is not a precondition to continued membership. They say that the UK is a contracting party to the EEA in its own right, and must itself trigger article 127 of the agreement, in order to leave the EEA, which is a voluntary act and not an obligation upon leaving the EU, and that article 127 implicitly excludes other means of leaving the EEA, such as leaving the European Union. And, whilst there are currently two pillars for EEA membership—the EU pillar and the EEA pillar—there is nothing to prevent further pillars being established bilaterally. So, those are the arguments that are being made.

Article 127 of the agreement basically states that each party may withdraw from the agreement, provided it gives at least 12 months’ notice to the other contracting parties. And the UK is, of course, a party to the EEA agreement, and the agreement is also one of the EU treaties that is woven into the fabric of our constitutional settlement by the Government of Wales Act 2006. So, if the case is to go forward, via this litigation, the UK Government is being asked to clarify its position on withdrawal from the EEA under article 127. So, we look forward to seeing what the UK Government actually have to say about that.

And, as has been stated publicly by the First Minister and the Welsh Government, we’re committed to ensuring that there is full and unfettered access to the single market, and we are open to exploring all other options to achieve that aim. The interest, as has been explained, is quite clear: we have 20,000 workers in the automotive industry who are dependent on being able to export to the EU, and 7,000 steel jobs and many thousands of agricultural workers’ jobs that are dependent very much on access to that market. So, within that context, the EEA model, which gives three of the four European Free Trade Association states access to the EU single market, is something that really does need to be looked at very, very closely.

So, in principle, a need to withdraw formally from the EEA could raise similar issues to that which have been raised in the Miller case, on which we’re waiting the judgment, obviously, from the Supreme Court imminently. We are exploring these issues. It wouldn’t be appropriate to comment further at this stage, but, as I’ve said, the Welsh Government is clear that having full and unfettered access to the EU single market is good for goods, services and capital, and it’s a top priority, in order to protect jobs and the Welsh economy. So, it is vital that businesses in Wales are not disadvantaged through unnecessary trade barriers, quotas, or technical barriers to trade. So, it is a situation that we are monitoring very, very closely, and much may be determined by the content of the imminent Supreme Court judgment.

Remaining in the EEA would allow the EU to continue making our trading laws, and require the free movement of people, which the majority of your constituents voted against. If a legislative consent motion comes before this place, will you vote with your constituents or with Jeremy Corbyn?

My constituency, of course, is Pontypridd, and the majority of the constituents in Pontypridd constituency actually voted to remain, so I suggest you’re asking me to take action for ‘remain’. [Laughter.] But what I would actually say is that my role here is that of Counsel General, which is as adviser to the Welsh Government and to protect the constitutional interests of the Welsh Assembly and the Welsh Government.