2. What is the Counsel General’s assessment of the constitutional implications of the Sewel Convention on the European Union (Withdrawal) Bill? (OAQ51159)

The Sewel convention plays a fundamental role in the operation of the UK’s devolved constitution. The UK Government has recognised that the European Union (Withdrawal) Bill will require the consent of the National Assembly in accordance with the convention.

So, would the Counsel General agree with me that, if they were to try and undermine that need to consult with us and to indeed get our consent to this Bill on parts that were relevant to the devolution settlement, this could indeed provoke some kind of constitutional crisis for the Welsh Assembly?

You make a very valid point. Of course, the issue of the Sewel convention was something that was considered during the article 50 case by the Supreme Court. Of course, much of the UK constitution is, in fact, based upon convention and is very much based upon agreement. So, the first point to make, I suppose, is that it was very sad and disappointing that the Bill was introduced without any proper engagement or consultation with the Welsh Government. Certainly, if the intention is to achieve legislation that has the consent of the devolved Governments to be part of that legislative process, then advanced consultation and engagement might have avoided some of the serious constitutional issues that I think now arise.

What the Supreme Court said was that they 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 and there are very serious constitutional consequences were the UK Government to seek to override that.

The anticipation and hope is, though, that there will be agreement. We support many aspects of the Bill. We support the idea of the Bill to provide clarity and certainty. We certainly disagree, though, with the approaches whereby powers that are devolved matters are to be assumed by the UK Government and then, at some stage in the future, are possibly handed back—and in what form that actually takes. For me, that is almost like a form of constitutional mugging: someone who mugs you on the street, steals your wallet, but says, ‘Don’t worry, I’ll give it back to you afterwards’. That is not the way to proceed, which is why we have actually laid down in conjunction with Scotland a series of amendments that seek to rectify that, and we hope that those amendments will be supported and will achieve the objective, because it is a way in which agreement can be reached and through which consent can then be given to the legislation from the devolved Governments.

Does the Counsel General recognise that that Supreme Court judgment cut across the previous position, as put forward by the Welsh Government and, indeed, the First Minister? I recall him in this Chamber telling us of the importance to vote for the LCM on the Wales Bill, because it would put Sewel into statute and, as in Scotland, we would benefit from having that statutory underpinning of the Sewel convention. Isn’t the reality that the Supreme Court showed that legal position to be entirely misconceived and that the convention has no more weight now that it’s in statue than it did before?

The first point is that you are totally wrong in terms of the position that the Supreme Court adopted. That was a position that we put forward and that was actually accepted by the Supreme Court, so there was no change there. It has never been our case or our argument that the Sewel convention is justiciable. The fact is that, under the Wales Act 2017, the Sewel Convention is put into statute—that is, it’s on the face of the Bill—but that does not per se make it justiciable. It is certainly the case that the issue of the Sewel convention, certainly post Brexit and post further constitutional reform, actually needs to be reviewed, because there is a very strong argument that it should be a justiciable convention. But in terms of what we argued, and in terms of what the Supreme Court held, there has been total consistency there and there is total agreement between the current constitutional analyses.