5. What discussions has the Counsel General held regarding the European Union (Withdrawal) Bill? (OAQ51163)[W]

Well, this question engages the law officers’ convention, as the Member will know. Nevertheless, I can say that the Welsh Government has considerable concerns with the Bill, particularly in terms of the approach it takes towards devolution. I can assure Members that the Welsh Government is working tirelessly to ensure that Wales’s position is protected.

I thank the Counsel General for his reply. Can I ask him whether he’s seen the paper published by Plaid Cymru this week on the EU withdrawal Bill, ‘The EU Withdrawal Bill—A Legal Perspective: the constitutional implications for Wales’, authored by Fflur Jones? I’d be very happy to e-mail him a copy. There are several arguments set out by Fflur Jones in this paper, two of them I’d just like to mention here. One states that

The Bill as drafted adopts a binary approach to the devolution settlement, which does not reflect the “glue” that has been EU law on that settlement, nor the shared competences that exist between the UK Government and the National Assembly for Wales’.

And she goes on also to argue that

The Bill requires significant amendment to ensure it does not erode the current devolution settlement in Wales, which is reflective of the wishes of the people of Wales as expressed in two referendums’— sic— on devolution.’

I think you’d have sympathy with those arguments, Counsel General, as would the Welsh Government. So, can you say a little more than your original reply on how the Welsh Government can advance these strong legal and constitutional arguments, and seek the amendments now that the Bill goes through a committee of the whole House next week, I understand?

The first thing is to thank the Member for his offer of the paper. I have looked at the paper, and I agree very much with its content and its analysis, which very much reflects, I think, also the analysis that’s been included in the statement of the First Minister to this Chamber. And I think it’s an analysis that has considerable common ground across all those within the legal profession, and the legal academics, but I think all those who are looking at the constitutional relationship and the issues around this particular Bill. It also reflects very much the considerable and detailed analysis that’s taken place in the House of Lords Constitution Committee, and, in particular, a paper that I think came out two weeks ago, which was from the House of Lords Brexit EU committee, which has made a number of similar points, and also made a number of concerns about the way in which Henry VIII powers might be used.

One of the issues, of course, that arises from there, during any transition period, is the issue of the European Court of Justice. I’ve set out my views in the past on this—that I think this is an argument that the UK Government has got totally wrong. Any international agreement, any international convention, any international arrangement, will have a disputes forum, which is effectively a judicial process. And it is disappointing to see the misrepresentations, I think, that have been made of the impact and the role of the European Court of Justice. I note also that one of the points that Baroness Hale herself has made—her first speech, in fact, as president—was the need for clarity about what exactly the UK Government is saying about the judicial process and the disputes process. Because, if the Supreme Court is confused, and believes there was a complete lack of clarity, then heaven help the rest of society in understanding exactly what is being proposed.

The amendments are the ones that are aimed, actually, to deal with the power grab, and, of course, the power grab goes at the core of the paper you referred to, and many other papers. It is a power grab that could have been avoided, I believe, by proper engagement and consultation. The positions that the Welsh Government has and the Scottish Government has are very similar. And what had been put forward are a number of what I think are very reasonable and very sensible amendments, which basically just require the consent of Welsh and Scottish Government in respect of those powers that are devolved areas of responsibility.

Now, it seems to me there is difficulty to see why that should be objectionable, but, unless those matters are addressed, it is really inconceivable that Welsh Government, that this Assembly, would pass a legislative consent motion to the repeal Bill. Obviously, the amendment process is under way, and there will no doubt be further discussions. The First Minister met with the First Secretary of State, Damian Green, last month, to discuss the Welsh Government’s concerns, and to offer suggestions to resolve the current impasse, and the Welsh Government remains willing to continue to work towards this. The First Minister is meeting again with Damian Green, I believe today, and the JMC(EN) meeting that’s planned for later this month will also provide a further opportunity for that engagement. And I hope the willingness of the Welsh Government to work responsibly with the UK Government to resolve this is something that is taken up.

Counsel General, which specific demands are you making of UK Government, and how much success have you had so far?

The demands of the Welsh Government are those that are set out in the amendments, which would actually resolve the flaws in the legislation itself. The First Minister made a very clear statement about them, and those amendments are available to be seen. They are essentially demands that just require the consent of the Welsh and Scottish Governments in those areas where there is a taking over of powers that are devolved responsibilities.