6. Will the Counsel General clarify the legal status of the Sewel Convention as it applies in Wales following the Supreme Court judgement on Article 50? OAQ(5)0027(CG)

Can I first of all thank you for the question? Because there’s been quite a lot of misunderstanding and misrepresentation in terms of the outcome of the article 50 Supreme Court case. Just to make clear to this Chamber, as I have done in the past, but perhaps not as clearly as I should have done, the two key issues on which we went into the Supreme Court were actually upheld. One was in terms of the sovereignty of Parliament and if it were not for that, there would not be the debate that is taking place in the Commons and is taking place in the Lords and that will take place, subsequently, in respect of the great repeal Bill, in Parliament. The second one was the confirmation and recognition of Sewel as a parliamentary process that could not be circumvented by use of the prerogative. So, in those two key areas, which were the basis of our submissions, the court actually upheld the submissions that we made.

Just to make clear as well: our submission at all times was that we do not believe that there was a veto. That was a submission that was also made by Scotland and that was also recognised by the Supreme Court. The important point now, however, is in regard to the Sewel convention. What the court did very strongly recognise—. I think a very important statement of intent from the Supreme Court was when they said,

We do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel convention has an important role in facilitating harmonious relationships between the UK parliament and the devolved legislatures.’

So, the Sewel convention is extremely important in the process that we are going through at the moment with regard to Brexit, with regard to the trigger Bill and with regard to the subsequent legislation that may actually arise. What’s important to recognise is that, with the Wales Act 2017, Sewel now has statutory status. That is, it is permanent. It is not judicable in the Supreme Court. The Supreme Court will not regulate matters like that, but it is now a permanent part, a permanent feature, of our constitution. Of course, it is recognised that, where political conventions like this exist—and I should point out that probably two thirds of our constitution is political convention; that is the way the UK constitution has developed—it has political consequences if it is not complied with. Members will be very well aware of the fragility of the UK constitution and the importance of the obligation of the UK Government to engage and seek consensus with the devolved Governments in the interest of the stability of the United Kingdom constitution and in the ability of the success of any subsequent legislation.

Thank you, Counsel General, for that comprehensive answer. If I may just seek clarification, in the committee earlier this week, David Jones, the Minister of State at the Department for Exiting the European Union, posited the possibility the great repeal Bill itself might be a short Bill and there might be a number of individual Bills that follow from that. Given what the Counsel General has said about the difference between a legally binding justiciable convention and one which is potent but political, if you like, does he have a view as to whether the nature of the Act, be it a repeal Bill or one focused on European legislation, would be one which is likely to attract a different response from the UK Government from one which might be based on legislation around devolved competencies specifically?

Well, almost certainly what is going to follow the triggering of article 50 will be legislation, which will trigger the Sewel convention, and there will be issues of debate within this Chamber in the form of legislative consent memoranda and legislative consent motions. I think that is almost inevitable, subject to the type of legislation that is actually brought forward. As I’ve said, we don’t really know very much about what that is going to contain or precisely how it is going to be formed, and there are concerns about engagement. But what I do think is that the issue of Sewel, the compliance with Sewel and the status of Sewel do have to be monitored very, very carefully. It is a very important convention, as I say, that goes to the core of the relationship between the UK Government and devolved Government. In all conventions, the consequences of non-compliance with conventions that promote harmonious relations is that you end up with disharmonious relations and all the constitutional implications that that brings about.

Counsel General, as well as the great repeal Bill, which we’ve just addressed, one of the concessions made by the Government in taking forward the current Bill on triggering article 50 through the House of Commons was a further vote in the House of Commons on the final detail of any agreement that was made with the other European Union countries. In your view, would that also involve the Sewel convention and a vote in this Parliament?

A motion in the House of Commons wouldn’t, but legislation would. It would depend—legislation, presumably in the form of the great repeal Bill, will precede a vote. The vote will be on a treaty, and it will probably be to endorse. But depending upon the nature of that and what implications that has in terms of legislation that is passed in Westminster, again, it would have issues with regard to the implementation of Sewel. I can say to the Member that I think there will be a need to actually look at how conventions such as Sewel are more formalised in, for example, parliamentary procedures and so on, but that is, perhaps, a debate for another time.