5. What representations has the Counsel General made in relation to the Supreme Court case on Article 50? OAQ(5)0021(CG)[W]

My apologies—I wonder if you could ask me that again. [Laughter.]

Diolch. Now that you’re plugged in, Counsel General.

5. What representations has the Counsel General made in relation to the Supreme Court case on Article 50? OAQ(5)0021(CG)[W]

The case we put to the Supreme Court at the hearing on 8 December is that an Act of Parliament is required to authorise the UK Government to serve notice under article 50. Such a fundamental change to the devolution settlement can only be made by Parliament and must not be allowed to bypass the Sewel convention. As the Member is probably aware, judgment is expected imminently.

I thank the Counsel General for that response. I was hoping that the judgment would have been made by the time I asked this question, but may I welcome the fact that the Welsh Government has spent £84,000 to protect the interests of this place and democracy in Wales? I think it was worth every penny. I compare that expenditure with the expenditure by the Westminster Government to challenge Assembly legislation in the past, specifically the agricultural wages Bill—the expenditure of one Government is acceptable while that of another Government is not. For me, it’s more than acceptable that the Counsel General has approved this expenditure. Without the expenditure and without this case, and without being part of the case in the Supreme Court, I doubt whether we would have got the wording that we had in the statement and speech made by the Prime Minister, Theresa May, yesterday, when she made it clear that consultation was required with the Welsh Parliament and Government before we proceed with the process of leaving the European Union. So, I do think that this place has been protected in this case.

Now, assuming that there will be a court case, and that the Westminster Government believes that the court’s decision will go against them, what practical steps does the Counsel General consider to be appropriate for this Parliament to take as we proceed and respond to the triggering of article 50?

Well, could I firstly thank the Member for his comments? I perhaps differ from him to some extent because it is absolutely awful that we’ve had to spend £84,000 on the case. It was absolutely right that we were in court in the most important constitutional case for 300 years, but I think it was totally wrong that the UK Government, on an issue of establishing a royal prerogative to bypass Parliament, should have actually appealed the High Court decision and actually incurred not only the cost that we had to incur, but also the cost that had to be incurred then by Northern Ireland and by Scotland. And, of course, no wonder the UK Government, six times, has refused to disclose the considerable amount that it has probably expended as well. But in terms of our position, I believe that we were absolutely right: we would have let the people of Wales down if we had not had a Welsh voice.

In terms of the importance of what may happen, if the judgment upholds the High Court decision, which requires legislation, what that does then—it gives an opportunity for further engagement through Sewel, engagement with the Parliamentary process, which is what Sewel establishes, and we can look, within our working practice, at achieving an objective that whatever legislation is brought forward to trigger article 50, it also includes within it a duty of engagement and consultation with devolved, and I would even say regional Government, to ensure that there is a proper voice of the people in the actual deals that are being done that will affect people’s jobs and lives, and the investment in our country.

The Counsel General, and, indeed, the Welsh Government in general, consistently say that they respect the judgment of the Welsh people in voting to leave the European Union on 23 June last year in the referendum. Will he accept that the purported use of the royal prerogative to trigger article 50 in this case is qualitatively different from all previous exercises of the royal prerogative because this is in pursuance of the decision of the British people in that referendum, and therefore, triggering article 50 would be to fulfil the express wish of the British people rather than to frustrate it, and any attempt by the Welsh Government to stand in the way of the judgment of the Welsh people is to be deprecated?

Well, the fundamental point that the Member just does not get, does not understand, no matter in how much detail it was explained in the Supreme Court, is that the argument is that there is no royal prerogative to replace laws and to undermine the role of Parliament. That was the whole point. There is no royal prerogative. If it ever existed, it was abolished by the bill of rights and by a series of decisions in the courts. That was the fundamental point. The Government could not rely on a prerogative that just did not exist. Parliament is sovereign. We operate under a system of sovereign parliamentary democracy. That was the fundamental point. The unfortunate point is that the Member seems to want to play fast and loose with the rule of law. And where that has happened in the past in other countries, it has led to an undermining of the rule of law. It is a very dangerous road to go down.