4. What progress has been made in setting up a constitutional convention? OAQ(5)0517(FM)

The Member will know I’ve been calling for a number of years for a constitutional convention to consider the future governance of the United Kingdom, and the challenges posed by EU withdrawal make the case for such a convention even stronger.

I thank the First Minister for that response and congratulate him for raising this very important issues for so many years. Would he agree that the unwritten constitution of the UK is unstainable, in view of leaving the EU and with the threat of a second Scottish independence referendum?

Well, at the heart of the problem, as we leave the EU, is parliamentary sovereignty and the idea that all power comes from one place in Westminster, which has the ability to do whatever it wants. I don’t think that’s the right approach. I think there are several centres of democratic accountability, of which this Assembly is one. For me, the UK has to move more towards a system of shared sovereignty. It works in Canada. It doesn’t create instability. Canada is one of the most prosperous and secure countries in the world, but we have to get away from this idea that, somehow, everything is subordinate to Westminster and the UK Parliament in Westminster. That is not the model I believe—. It may have worked in the nineteenth century, but it’s not the model that’s going to work in this century.

I was disappointed that the First Minister’s response to the developments last week was what sounded like calls for an internal constitutional convention for the Labour Party. But in moving forward, we know that the Welsh Government-Plaid Cymru White Paper on Europe has been rejected out of hand by the UK Government. We know that the UK Government has broken its promise to have a UK-wide approach to EU negotiations before triggering article 50. This doesn’t bode well for the much-awaited repeal Bill and related legislation, but there is a clause in the Welsh Government-Plaid Cymru White Paper—I suppose we could call it article 132—that the First Minister could trigger, which would mean bringing to this Assembly a continuity Bill now, in anticipation of the repeal Bill, to defend the current Welsh constitution from a power grab from Westminster.

Well, first of all, there’s been no formal response to the White Paper that we have produced. Secondly, the great reform Bill, as it’s termed, is designed to be a Bill that will preserve—we are told—EU law in the jurisdictions of the UK and the laws of the different parts and different nations of the UK. If that’s all it does, then it’s sensible. However, what we would not accept—in fact, we would oppose this tooth and nail—is any suggestion that there will be a clawback of existing powers, or that powers that return from Brussels should sit, even for a period of time, in Westminster. That is something that we will guard against very strongly, and we will examine the great repeal Bill very closely to make sure that that does not happen. And we will not support that if that is proposed as part of that Bill.

First Minister, I think the problem with a constitutional convention is that you can’t really have one until after a second referendum in Scotland, which, at some point in the future, does look a possibility. I just wonder if your more immediate aims should be with the Prime Minister to see how the Joint Ministerial Committee system could be strengthened. I commend Mr Drakeford’s remarks on how that might happen, although not the style in which he made them. I think it was too caustic in Parliament when he compared the current process to St Fagans Community Council. [Laughter.] But, he did make some interesting points about how the JMCs could be made more robust, with agendas, a secretariat and a clear purpose and future work plan. That’s what you should be concentrating on.

Over the next two years, following the triggering of article 50, there is a golden opportunity to restructure the way in which decisions are taken across the UK. It’s no good waiting until that period of time has elapsed because then we will find ourselves in a situation where there’s no way of putting in place an alternative system. What does that mean? It means that the JMC should evolve into a proper council of Ministers where joint decisions are taken, where that is appropriate, in areas that are devolved. It may well be that there is merit in having a general framework with regard to agriculture, or indeed fisheries, as long as it’s agreed. We know that, when the UK leaves the EU, there is the distinct possibility that state aid rules will no longer apply, in which case we’ll have a free-for-all inside the internal single market of the UK. I’ve mentioned the term ‘trade law’. I think that’s perfectly possible. There was a trade law between Ireland and the UK in the 1930s. It’s in no-one’s interest for that to happen. The alternative to that is to put together a set of rules in the UK, agreed by the four UK Governments and, importantly, an independent adjudication body that polices those rules—a court. The European Court of Justice performs that function in the European single market; the US Supreme Court performs that function in terms of inter-state commerce in the US. An internal single market without agreed rules and a method of policing those rules is not a proper internal single market. I want to see that internal single market work properly.

Personally, I very much welcome the leadership that the First Minister is showing on this drive towards a constitutional convention. But, further to David Melding’s important question, in the immediate here and now, and following that fascinating session we had yesterday, where we had in the gallery law students from the University of South Wales looking on, if we do not achieve that greater parity of esteem that you could see in a council of Ministers and independent adjudication as well, what is your prognosis then, going forward, as we transition to exiting the European Union and to a very different framework within the UK? What’s your prognosis if we do not get those mechanisms in place?

There is a danger that the UK will start to unravel. In particular, one thing that is not often mentioned, but I think is worth noting, is what might cause the rise of English nationalism, and people in England feeling aggrieved with the system. And I think this can all be avoided fairly easily. The distinct national identities of our four nations can be recognised while at the same time recognising the common purpose that the UK provides, but that does mean putting in place a structure that reflects the fact that this is a partnership of nations, rather than believing that this is something like the unitary state that the UK was in 1972, before it entered what was then the Common Market. So, these issues are resolvable—there’s no doubt about that in my mind. They need to be resolved so that, when the UK leaves the EU, that structure is in place already in terms of the internal single market of the UK, in terms of the council of Ministers, rather than doing it a few years after that and then leaving a vacuum. That’s in no-one’s interest.