2. What advice has the Counsel General provided to the Welsh Government on the legal basis for the agreement between the Welsh Government and the UK Government on the European Union (Withdrawal) Bill? OAQ52094

The agreement is to be reflected in the contents of the EU withdrawal Bill and it will be for the Assembly through the legislative consent motion debate to decide whether what is provided for in the agreement is acceptable for Wales.

The agreement between the Tories in Westminster and the Labour Welsh Government here is made up of two parts: the amendments to the legislation and the agreement itself. The policy areas included in the agreement are not in the legislation and they're not comprehensive. It's entirely plausible that, as Brexit rolls on, Westminster will decide that it needs to have more control over other policy areas. Can the Counsel General explain to this Assembly what legal recourse he has to stop Westminster taking control of more policy areas, and what legal footing does the existing list of policy areas stand on?

Well, I think the Member misunderstands the effect of the agreement—

That's such a patronising line of argument.

Well, I'm about to outline the position, and I'll be very happy to take further questions if the Deputy Presiding Officer is prepared to accept them. The question is this: the 26 areas that the agreement establishes as the areas that could be subject to regulation are clear. What has actually not been so clear is the additional powers that will be exercised in Wales rather than at the European Union level as a result of reversing the effect of clause 11. She will be aware, of course, that the original effect of clause 11 was essentially to hold all those powers in Westminster, and the effect of inverting clause 11 means that powers will be exercised in Wales that previously would have been exercised in Brussels in a wide range of areas, including things like carbon capture and storage, energy planning consents, hydrocarbon licensing, air quality, biodiversity, marine environment, and a host of other areas. Those areas are all areas that will now be exercised in Wales rather than exercised in Brussels, as I say.

With regard to the regulations to put the specific policy areas in the freezer, which is the language that has been used, as she knows, those regulations will come to the Assembly for Members here to grant consent or otherwise in relation to those regulations. [Interruption.] As she's also aware, the Sewel convention, which is the underpinning of our devolution settlement—I obviously know that that is not something that she and her party are happy with—is not justiciable, it's not able to be actioned on in court. But as we know, also, from the Miller decision in the Supreme Court, it's a very, very strong political convention, which is regarded by the Supreme Court as a permanent part of our devolution settlement. 

Can I give the Counsel General my wholehearted support on this issue? Is it not correct that the agreement that has been arrived at between the UK Government and the Welsh Government is fundamentally a political agreement, not a legal agreement? Ultimately, as we are part of the United Kingdom, if the United Kingdom Parliament wished to reverse any previous legislation, it would be perfectly possible to do so. But any attempt to resile from the devolution settlement following two referenda here in Wales would clearly create a constitutional conflict between Wales and the United Kingdom Government, and there would be widespread support in this Assembly from all sides, I think, of the house for resisting any such move. So, the leader of Plaid Cymru's fears in this respect, I think, must be regarded as illusory. 

Clearly, acting in defiance of the consent of the Assembly would pose a constitutional crisis, so there's no question around that. The agreement, which is a political agreement—although it has legal aspects: the amendments themselves, the reference to the Supreme Court; those are all legal steps, needless to say—the agreement actually includes the application of the Sewel convention to the regulation-making powers, which wasn't previously a feature of the Sewel convention. In fact, it goes beyond that and it sets out a specific process by which those regulations are then debated and approved in Parliament. So, it is a political agreement, it is necessarily a political agreement, but it incorporates very specific legal actions, which we expect to be undertaken.