Part of the debate – in the Senedd at 4:21 pm on 2 May 2018.
I think we need to reflect on where we started from in this process. Clause 11, as originally drafted, was, effectively, a recentralisation of powers Bill, driving a coach and horses through the devolution settlement. It was the product of a UK Government mindset that has still not attuned itself to devolution, and it continued the sort of thinking that has resulted in a total failure to honour all the promises that had been made to engage with, to involve and to consult with the devolved Governments.
What we now have is, indisputably, a very different clause 11. It is clear the UK Government has moved substantially from its original position, and I believe this is due to a number of factors: the robust rejection of the original clause 11 model, the strength of the common position with Scotland on an area of common interest, and the leverage of the continuity Bill. The effect of all this has been to put the constitutional importance of the Sewel convention at the forefront of negotiations as a matter of principle, in addition to the principles of shared sovereignty underpinning the devolution settlement. The influence of the Supreme Court's landmark judgment in the article 50—the Miller—case on Government thinking and, in particular, the political importance of the convention should also not be underestimated. In addition to this, the statesmanship and leadership of the Cabinet Secretary Mark Drakeford in what were intensely difficult and complex negotiations have also proved decisive. The skill that he has shown in these negotiations needs to be recognised.
As in any negotiation, the agreement we have does not give us absolutely everything we wanted. The simplest solution would have been the removal of clause 11 in its entirety. I'm still of the view that this would have been the best solution, but I repeat that compromises in these complex inter-governmental situations are inevitable. Governments do not have the luxury of intransient and indefinite opposition. The question before us is whether the compromises and concessions made by the UK Government are sufficient. Have we achieved enough change to protect Welsh interests? Ultimately, that is a matter of political judgment.
What has been achieved is a transformation of clause 11. It is a reversal of the UK Government's original position. Devolved areas remain devolved. Certain powers that we all recognise as being essential to the development of mutual interest frameworks are to be frozen and subject to an enhanced Sewel consent process, a sort of superaffirmative Sewel. The amendments allow some restrictions on Welsh powers, but, at the same time, impose restrictions on the UK Government and English Ministers. This is not only a constitutionally innovative approach to overcoming the fairness argument that was outlined by the First Minister, it is also a constitutional first, a landmark precedent, of a federal nature—a recognition of an English ministerial function in our constitutional settlement that places Welsh Government in a position of parity for the purpose of the development of the frameworks.
It is also a constitutional first in that, were the UK Government to seek to override consent, it can only do so with the explicit permission of both Houses of Parliament and with the explicit right of the Welsh Government to present a statement outlining its objections—as I have said, a sort of superaffirmative Sewel, which raises the constitutional status of Sewel, putting it into a formal and justiciable parliamentary process.
Now, in judging the success of the Welsh Government’s negotiated position, we need, of course, to consider the consequences of not giving consent. That would, as we all know, result in a serious constitutional crisis that would be damaging to Wales, and also damaging to the UK. So, the question is: have we achieved sufficient to give consent? I am of the view that we have.
This, however, is not the end of the matter. Moving forward, this new clause 11 enables us to proceed with the development of the frameworks, which are vitally important to Welsh business and the Welsh economy. It also sets the parameters for the Trade Bill and other consequential legislation. It also enables us now to focus on the issue of the customs union and Welsh interests in tariff and regulation free trade, and it enables us to proceed with the development of inter-parliamentary procedures and reform, which are vital for the post-Brexit Britain and the development of more federal constitutional relations. We have little to gain by a constitutional war or stand-off, and much to lose, and I believe that, by supporting the agreement, we are putting the interests of Wales and the Welsh people first.
Now, I have to respond to what I believe were the fairly insulting comments made by the leader of Plaid Cymru referring to capitulation, white flags and so on. I say this: I look forward to the day when Plaid Cymru will put the interests of Wales first rather than Scotland. It is with great regret that Plaid Cymru is unable to stand up for Wales, preferring subservience to the Scottish National Party in pursuit of their narrow separatist ideology. Our obligation is to promote the interests of Wales, not Scotland. Welsh Labour will always put Wales first, because we are the real party of Wales and of the Welsh people.