The next item is a statement by the Counsel General on the Law Derived from the European Union (Wales) Bill. I call on the Counsel General, Jeremy Miles.

Thank you, Llywydd. Could I acknowledge, before starting the statement, the questions from Members on this extremely important subject?

The Law Derived from the European Union (Wales) Bill was passed by the Assembly on 21 March. We have been clear, prior to introduction of the Bill, during its passage and subsequently, that the Bill is a fall-back option. Our preference has been throughout, and it continues to be, an amended European Union (Withdrawal) Bill that respects devolution. We made it clear that, even following the introduction, and, indeed, the passage, of the Bill, this remains our primary focus. Colleagues within the Welsh Government have been tireless in their efforts, which continue, to reach an agreement with the UK and Scottish Governments on amendments that would make the UK Bill acceptable to us. Such an agreement would enable us to recommend to the Assembly that it gives its consent to the EU withdrawal Bill, which would remove the need for our own legislation.

However, in the absence of an agreement, we felt it necessary to make responsible arrangements for the possibility that the consent of the Assembly to the EU withdrawal Bill would not be given. This approach was overwhelmingly supported by this Assembly when it passed the Law Derived from the European Union (Wales) Bill with a large majority.

However, clearly, passing a Bill is not the end of the process. As Assembly Members will be well aware, after Stage 4 of every Assembly Bill, a period of intimation immediately follows. During this period, the Attorney General and the Counsel General have the power to refer to the Supreme Court for decision the question of whether a Bill, or any provision of a Bill, is within the Assembly’s legislative competence. The Attorney General has decided to exercise this power in relation to this Bill and, yesterday, he referred it to the Supreme Court. The Attorney General and the Advocate General for Scotland similarly referred the Scottish continuity Bill to the Supreme Court.

Regrettable though it is, I don't think that we should over-dramatise the development. We brought forward our own legislation to avoid finding ourselves in a situation where no agreement on amendments had been reached and we no longer had a continuity Bill alternative as an option. In the same way, the UK Government has made the reference at the very end of the intimation period, because agreement on the contents of the EU withdrawal Bill has not yet been reached and because, if they had not done so now, they would lose the right to make a reference.

Negotiations continue, and both we and the UK Government remain committed to securing an agreement. This is therefore a protective measure on the part of the Attorney General. Indeed, I note that, in his press release, he stresses that:

'The Government very much hopes this issue will be resolved without the need to continue with this litigation.' 

The Attorney General has referred the entirety of the Bill to the Supreme Court for determination, rather than limiting the reference to particular sections. He has cited a number of grounds in the reference, which include that the Bill does not relate to the subjects listed in Schedule 7 to the Government of Wales Act, incompatibility with EU law, impermissible imposition of functions on Ministers of the Crown, impermissible modifications of the Government of Wales Act, and impermissible modifications of the European Communities Act 1972.

I'm sure that Members will appreciate that we have had limited time to consider these arguments, though we remain clear in our view that the Bill passed by the Assembly is within its legislative competence. We will continue to consider the reference and the more detailed arguments that the Attorney General will be required to provide in due course in support of his reference as part of the proceedings, but I can reassure Members that we will, if necessary, defend the reference in full. In particular, we are taking steps to seek an expedited hearing and we will keep the Assembly updated of any developments in this regard.

As I've already stressed, we continue to work towards an agreement on the EU withdrawal Bill. In the event of such an agreement, appropriate amendments will need to be made to the EU withdrawal Bill. The final Bill will then require consideration by the Assembly as part of the legislative consent motion process. If the Assembly does ultimately approve an LCM in relation to the EU withdrawal Bill, the Law Derived from the European Union (Wales) Bill will no longer be necessary, and we then will take steps to repeal the Bill. At that point, we would expect the reference to be withdrawn.

Can I start by noting the restrained tone of the Counsel General? I do welcome this as a sign that the Welsh Government is genuinely seeking agreement on these matters. I also think the decision by the UK Government to refer the matter to the Supreme Court should be viewed as an attempt to clarify the current legal position. The Scottish Presiding Officer, after all, considered their Bill to be outside their competence, and, Llywydd, you emphasised, in expressing a concrete view in terms of our Bill, that the matter was finely balanced. So, it seems to me reasonable, under these circumstances, for this clarity to be sought.

Like the Counsel General, on this side of the Assembly, we believe that getting agreement so that an LCM can pass is essential and that is very much what we should be focusing on, and that obviously means that the EU withdrawal Bill has to be suitably amended, specifically around clause 11, to allow that to happen, and all reasonable attempts to achieve this have been supported by us and that will continue to be our attitude. Closely related to this issue is how the frameworks and their governance will operate. Again, we've sought to give constructive support to the Welsh Government in pursuing these matters broadly around some sort of concept of shared governance. These are very important issues for the British constitution, for the development of devolution, when in this remarkable situation of seceding from the European Union.

So, whilst we oppose the continuity Bill, we are prepared, now, to see the general situation and urge restraint and construction and a constructive approach on all parties. I just wonder whether the Counsel General can give us any further indication on the current state of negotiations. It does seem to me, from the tone on both sides, that we could be quite close to an agreement and I just wonder if that is a fair reading of the situation—or are there greater complications than we currently realise, perhaps, associated with other jurisdictions and their attitudes? But I'll end on this: that, given this statement this afternoon and its constructive tone, we will urge all parties to work and redouble their efforts to get over that line, so that we can have an LCM that protects the devolution settlement appropriately and all parties can agree to.

I thank the Member for his question. I should be clear that, obviously, our preference would have been for this not to be referred to the Supreme Court, but, absolutely, we understand the reason why that was done at the time it was done, today—yesterday, rather—being the last day on which that was available as an option for the Attorney General.

You referred to the discussions around competence. Our view remains that we have the competence in this place for the Bill that we have passed. What the Attorney General has set out in the reference are his grounds for seeking the court's view on that. He hasn't yet set out the reasoning for those grounds, so we haven't yet been able to engage with the reasoning for that, although we are obviously considering the grounds that we have received. We'll be receiving the fuller reasoning in due course. 

Obviously, there have been and continue to be discussions amongst the three Governments in relation to appropriate amendments to the EU withdrawal Bill, and those discussions are ongoing. We very much hope that they will conclude in a positive way. Just to reiterate, in case there's any shadow of a doubt, our strong preference is for the EU withdrawal Bill to be appropriately amended by agreement between the UK Government and the devolved administrations, and in that eventuality, of course, the Bill, which has been referred to the Supreme Court yesterday, will obviously no longer be required.

I welcome the fact that a statement has been made by the Counsel General today, but I have to say this: a pledge was made by a Minister of the Crown on the floor of the House of Commons, before Christmas, in the middle of December, that this would be sorted. And here we are, the Lady Boys of Bangkok have reached Cardiff Bay, as they do every spring, and we haven’t found a solution to this problem. It’s been clear since the European withdrawal Bill was introduced that we needed to make changes to clause 11, and at least four months have passed without any sign of the Conservatives understanding the nature of the devolution that they are responsible for.

Today in the Commons, another Jeremy, Jeremy Wright, said that there was no agreement on the meaning of the word ‘continuity’. Is that the Counsel General’s interpretation of the problem here? If we do see that the Bill has now been referred to the Supreme Court, what situation are we in now in terms of expenditure by this Government and the Westminster Government to prepare for a court case, to take counsel and to start preparing a case? We are starting to spend public money on something that should have been decided politically not just today but four months ago. I want to hear from the Counsel General, if possible, more about the timetable here. He says that he hopes that the Supreme Court will hasten the process, because there is a process in existence so that the Supreme Court can do that, but it appears to me that we could get to a decision on this Bill before we reach political agreement on the nature of devolution and clause 11.

So, what plans does the Government have now to prepare for this court case and what public expenditure will be related to that? Are you going to do this in any way jointly with the Scottish Government? Of course, it must be acknowledged that Wales’s case may be stronger on this occasion that the Scottish Government’s case because we did push this through the toothpaste tube under the previous powers model and therefore we may be in a stronger position. So, are you working with the Scottish Government and what exactly will the arrangement be now if this goes to the Supreme Court? If there is political agreement, are there then amendments to be made to the Bill in the Lords or perhaps referred back to the Commons? And then at some point, we will have to make a decision as a Government—or as a Parliament, I should say; the Government part comes in three years—but we will have to give legislative consent, as David Melding has said. Would we have assurances and can you give us some assurances that we as an Assembly will have all the necessary information to make a decision on legislative consent if it comes to that?

I thank the Member for his questions. To be clear about this, it wasn’t my choice to send the Bill to the Supreme Court, therefore the question for the Welsh Government is: what are the steps that are appropriate to take in the context of the fact that that has happened? Of course, we have to prepare for this going to the court. We have a legal process to follow and we have to ensure that the interests of this place are safeguarded through spending what’s needed to ensure that rights and the Bill are protected in the legal process that is before us.

The next step is that we are at present looking at the process of having an early date for any court case that is needed, and discussions have already started on that. That’s the next step. In terms of the question of the relationship with Scotland, as the Member will know, the Welsh Government and the Scottish Government have collaborated and worked together through this process and the steps that we’ve taken throughout the process have happened through that co-operation. The intention, as we proceed, is that we still work in partnership. As the Member recognised, the situation in Scotland is different to the Welsh Government’s situation in terms of how the Bill in Scotland is structured and the constitutional analysis that has come in the wake of that, but we are going to co-operate with the Scottish Government.

In terms of the legislative consent in the Senedd, in the Assembly, we will have to ensure a variety of things before we can recommend that the Assembly does accept the Westminster Bill—that is, that agreement is reached, and that amendments are agreed and proposed. Then, we will ask for the consent of the Assembly in that context. I would suspect that, after that, steps will be taken to withdraw this Bill, but we need to look at those steps in the wake of what’s happening at present.

Can I congratulate the Counsel General on the calm and measured approach that he's brought to this, and in particular to applaud the way that he described the situation we've now arrived at as a development that shouldn't be over-dramatised? I suppose that if there are bona fide legal doubts about the compatibility of the continuity Bill with current legislation setting up this Assembly and devolving powers, it is right that the matter should be adjudicated, regrettable though that is. And I do agree with what Simon Thomas said that this fundamentally is a politically matter, which should have been resolved at political level. And does he share my continued perplexity at the dilatoriness of the United Kingdom Government in dealing with this matter and that a Government that ostensibly is devoted to the preservation of the United Kingdom is unnecessarily provoking a constitutional crisis that threatens to divide it? If the leader of UKIP can say that, then we've got to a very strange state of affairs in British politics.

It is vitally necessary that the United Kingdom Government, having approved the legislative settlement under which we exist—that that should not be undermined, certainly not explicitly or implicitly, by its own acts or intentions. I cannot understand, therefore, why it is that the UK Government has been so slow and continues apparently to be dilatory in its response to the arguments that have been put forward for what we all ultimately want to achieve. I'm perplexed by one of the grounds that is being cited by the Attorney-General, namely that of incompatibility with EU law, given that the continuity Bill will not come into force until we've actually legally left the EU. So, I don't know whether the Counsel General has got any information on what is in the mind of the Attorney-General on this point, or if this is perhaps an example of throwing the kitchen sink at us just in case.

It all seems rather problematic and extraordinary, but I'm pleased that the Counsel General is going to mitigate the matter in the way that he has set out, because it is vitally necessary that any uncertainty or ambiguity should be resolved. We can't be put into a position, which is what the continuity Bill itself was designed to deal with, of there being some legislative lacuna in the law as it applies within Wales. So, it's rather strange. We've got a situation now where the United Kingdom Government is litigating a Bill that we have put through this place that was designed to avoid the situation of legal doubts existing when we leave the EU. So, it is a paradox that perhaps this will ultimately resolve. 

I share the view that's been expressed by a number of Members that this is a matter that should be resolved at a political level. And just to be clear, that is the Welsh Government's approach; it has continuously and throughout approached the discussions with the other Governments with that in mind. The objective has been throughout to reach an agreement in relation to the Bill going through the UK Parliament, so that the process we have pursued in this place through an emergency process would not end up being necessary. I've said in the past, in response to other questions, that time has been running out for some time in relation to agreeing those amendments. But, as I say, we are hopeful that we will get that over the line and agree amendments that we feel happy as a Government to recommend to the Assembly, with the other two Governments. 

He raises one of the grounds that the Attorney-General has cited, which relates to incompatibility with EU law. As I say, we are currently considering the analysis and we will consider further when we get fuller arguments in due course, although obviously that was one of the grounds that had been contemplated in the discussions in this Chamber and in the Llywydd's analysis in her statement. It seems to me that taking preparatory steps within existing powers for a time for which we are outside the European Union is what we have done in this place, in the same way, I may say, as the House of Commons has done with their Bill.

I'll avoid repeating too much of what my colleagues have already said, but I will congratulate you on the way in which you've put a measured argument forward this afternoon. Can I also put on record the measured argument put forward by the Cabinet Secretary for Finance when he undertakes the negotiations as well? Perhaps that's more frustrating as to why the UK Government hasn't actually come to an agreement yet, because they seem to keep frustrating us.

I have a couple of points. I appreciate that we didn't want to be putting forward a continuity Bill, but we have because it was the right thing to do, and we must remember that. Therefore, I hope that, if it does end up in the courts, you, as the Welsh Government, will vigorously defend the rights of this institution to have this Bill put forward and let it work, because we saw the need for the Bill and that need has not gone away. We anticipate, from what has been said, that positive discussion and amendments will come forward, but, as Simon Thomas alluded to earlier, that was stated by the Cabinet Minister before in Westminster and we still haven't had it. So, until we see them actually agreed and approved and in the Bill, we're in a position where that continuity Bill still delivers what we want.

In that sense, can you give clarification—? You highlighted a little bit about what would happen. First of all, if agreement takes place and we see those amendments being approved and put into the Bill, what is the process that will happen to this particular Bill? Because we, as an Assembly, have agreed and passed the Bill, so, what is the process for actually then withdrawing the Bill as you just highlighted? And on timing—no offence to lawyers, but here we go again—law takes an awful long time; it is not a fast-moving process. There could be a situation where the EU withdrawal Bill, unamended, is approved before this goes to court. What is the situation if that arises? How will the Welsh Government tackle that so that we can ensure that what we approved in March actually delivers for the people of Wales?

I thank the Member for his question and also for his acknowledgement of the work of my friend the Cabinet Secretary for Finance in taking forward the discussions with the UK Government, which I completely associate myself with, if I may. He makes a very important point about the importance of defending these proceedings vigorously and that is absolutely my intention and the intention of the Welsh Government.

In terms of what happens in due course with repeal, if you like, the Member will recall that the Bill, as passed by the Assembly, includes a provision enabling the Act, when passed, to be repealed in this sort of circumstance. In order for that to happen, of course, it would need to receive Royal Assent first. So, there would be a sequence of steps, if you like, which would need to be agreed with the Attorney-General in the event that we here in due course do pass a legislative consent motion and that we find the amendments to the House of Commons Bill acceptable in this place. But obviously, the steps would need to be to withdraw the reference for the Bill to go to Royal Assent and then those powers would be available to Welsh Ministers here to deal with that repeal of the Bill.

Thank you, Counsel General.