Part of the debate – in the Senedd at 3:08 pm on 24 January 2017.
I have to say, Counsel General, that I’m not surprised by either of these judgments. I was expecting the judgment laid down by the High Court and Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales and the most senior Welsh member of the judiciary. That judgment has been upheld, and the various arguments that we might have—or the Scots might have, anyway—had a veto, always seemed to me to misunderstand the nature of an emerging federal system where, inevitably, the treaty-making power does lie at the centre or the state Parliament.
I think we should reflect on the fact that we don’t have a Welsh representative on the Supreme Court. I think that will continue to be problematic if we are having to resolve various constitutional issues. I know we still live in this slightly paradoxical situation of having Welsh law that extends to England and Wales but it is only applied in Wales, and that means we don’t have our own jurisdiction. But I do think that when you consider the matter today, it does make this a real practical point and not something that’s abstract.
Can I say, I think the focus from the start for the Welsh Government should’ve been exclusively on the inter-governmental approach? In fairness to the Welsh Government, it has always had this on the agenda, but I think rather than the more legalistic parliamentary route, it was likely to be better to talk up the Joint Ministerial Committee, which I’m pleased to see is done in the White Paper that will be discussed next. The old JMC Europe had an excellent record on getting a common position between the Governments of the UK when arguing things like the common agricultural policy and environmental issues, when they came before the European Council of Ministers.
That, it seems to me, now needs to be the common approach because when historians write the history of this whole process and certainly what’s happened in the seven months or so since the actual referendum, the most significant thing will be that the arguments presented to the people of Britain then were predicated on the world becoming more and more open to global free trade. What has happened since is that the principal protector of global free trade has dramatically changed its policy and is now pursuing what many call a more protectionist approach, which is even going to amount to—we hear, anyway, from certain sources—a renegotiation of the World Trade Organization. This will require the most deft negotiation of future trade deals by the British Government, in which we will have a very direct interest, because what’s good, for instance, for livestock farming may not be what is in the best interests of cereal farmers in England.
These are going to be really, really tough issues, especially if farming is a much more dominant part of our industrial make-up than it is in England. So, I think the inter-governmental structures are absolutely what we focus on, and it’s also what is going to be focused on, surely, if we’re going to keep the Scots confident that a British approach to these questions is the best way forward—because the narrow point on the Parliamentary right or the right of the Scottish Parliament has now been dealt with—but we surely need a common approach where there’s the maximum level of agreement between the various Governments in the UK. If we don’t get that, then the union of the United Kingdom will be further damaged, as it was, I’m afraid, by the fact that the Scots voted by a nearly two-thirds majority against the way the rest of the UK voted.
I think many of these issues will now be tested in the great reform Bill. I notice that UKIP are urging a maximum position from the Welsh Government in arguing that all powers should be repatriated to Cardiff and Edinburgh. It’s probably the best way to start, although I think some UK frameworks are probably going to be needed and, again, I thought the White Paper was quite skilful in this respect.
So, Sewel, I think, will have to operate very effectively in the political context and I do hope there will be goodwill and good judgment on both sides—both the UK Government and the Welsh Government and the Scottish and Northern Irish Governments.