Item 4 this afternoon is a statement by the Counsel General on the Supreme Court reference of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I call on the Counsel General, Jeremy Miles.

Thank you, Deputy Presiding Officer. On 7 June, I published a written statement announcing that I had made an application to the Supreme Court for permission to participate in the reference of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. My participation in the proceedings, along with the Attorney-General for Northern Ireland, has been confirmed, which means that the Supreme Court’s analysis and reasoning in the reference will be informed by the views of all constituent parts of the UK.

In accordance with the timetable agreed by all the parties to the proceedings, I filed my written case with the Supreme Court on Friday of last week. Let me be clear: the Welsh Government’s participation is not about our own Law Derived from the European Union (Wales) Act 2018. As you know, through the changes to the European Union (Withdrawal) Act 2018 and an inter-governmental agreement, we have secured protections for devolution in Wales and made sure that laws and policy areas that are currently devolved remain devolved.

However, the issues raised by the Attorney-General and the Advocate General for Scotland in their case raise questions regarding all of the devolution settlements in the UK and are not all limited to the Scottish Bill nor to the Scottish devolution settlement. So, our participation in the Scottish case before the Supreme Court touches upon these issues that extend beyond the Scottish settlement and that relate to the future functioning of the UK after Brexit, where it is vital that Wales has a voice. I want to be clear that I do not address the specific issues that are particular to the Scottish Bill and the Scottish devolution settlement, which are, of course, addressed by the Lord Advocate for Scotland and the Advocate General for Scotland. My written case therefore focuses on the following four issues.

First, I address the question of what impact leaving the EU has on the competence of the Assembly. I strongly contend that leaving the EU will see all those powers in devolved areas that currently sit with the EU—for example in relation to agricultural support—no longer being constrained by EU law. As the Supreme Court itself noted in the Miller case, withdrawal from the EU will enhance the devolved legislatures’ competence. It is for the Assembly to determine where, if at all, it wishes to 'pool' any of those powers through common UK-wide frameworks.

The second issue relates to the legislative practicalities of withdrawal. My case states that legislating for the domestic consequences of withdrawal from the EU, where those consequences relate to matters which are not reserved, falls squarely within the legislative competence of the Assembly and not within the international relations reservation.

Thirdly, I contend that it is perfectly within the Assembly’s competence to legislate in advance of exit in order to make the necessary changes needed to be in place from day 1 after the UK leaves the EU. Indeed, if that kind of legislation could be said to violate the current EU law restriction, it would be equally true that Parliament could not lawfully legislate in such a way prior to the repeal of the European Communities Act 1972, an intention that is at the heart of the UK Government’s own EU withdrawal Act.

The fourth point in my case deals with the scope of the courts’ power to review Assembly legislation outside that expressly provided for under the Government of Wales Act 2006. The Supreme Court made it clear in the AXA case that where the democratically elected devolved legislatures act within the scope of the devolution frameworks laid down by Parliament, their acts are reviewable by the courts only on very limited grounds, and only where fundamental rights or the very essence of the rule of law is at stake. The examples that the court gave in that case included an Act that would abolish the right to judicial review, for example, or that would otherwise abrogate fundamental rights. The Scottish continuity Bill is clearly not legislation of that extreme kind.

I hope that this clarifies my role in these proceedings. It is not, as some have incorrectly—indeed, bizarrely—suggested, to support the Attorney-General and Advocate General in their reference of the Scottish Bill, but to make sure that the voice of Wales on these broader questions is heard in defence of devolution before the Supreme Court. And in case anyone is unclear on my position with regard to the Law Derived from the European Union (Wales) Act, I will reiterate that I remain 100 per cent confident that the Act is within the competence of the Assembly. Had the Attorney-General not withdrawn his reference following the successful conclusion of the inter-governmental agreement, I would have defended that Act in full before the Supreme Court. Now that all parties have filed their cases, we await the hearing, which takes place on 24 and 25 July, and I will of course keep Assembly Members updated with any developments.

Diolch yn fawr, Llywydd. I do accept the point that this is an important referral, even though it is not an active one for the Welsh Government, now that they have come to an agreement, and a very solid agreement, in my view, with the UK Government. It was always our position, this side of the Assembly, that the legislative consent motion process remains the key defence, but there are ambiguities in it, especially when a Government deems that it can unreasonably withhold consent, which I think many of us believe is the position in Scotland. But that takes us into more controversial territory, no doubt.

How jurisdiction disputes are handled is very important in decentralised forms of government and all systems have to have robust mechanisms to do this. And I would argue that the Supreme Court has a good track record in devoting the necessary time and thought to resolving these disputes. The current one is obviously a very tricky issue for them to consider, because the Scottish Presiding Officer did in fact believe their Bill was outside their jurisdiction. This is clearly a key factor and it does need to be resolved, although I do note what the Counsel General says in defence of the Welsh Act.

As UK governance becomes more significant as a result of the EU exit, we will need maximum clarity on the boundaries between UK and devolved law making, especially because, inevitably—and this is true in all decentralised systems—there's an awful lot of areas of shared responsibility, or at least the actions of one Government will affect another, sometimes to such an extent that can inhibit the real ability to legislate in a certain policy area. These are crucial matters; I completely accept that. I do have confidence that the Supreme Court will deliberate effectively and what they decide will be of great assistance to the evolving British constitution, especially under the challenge of Brexit. So, I don't have a particular question to the Counsel General other than to say that I will, obviously, follow the proceedings very carefully when they start their deliberations later this month.

I thank the Member for that and for his observations. I would just say that I think that this is, as he indicates in his question, a route that is, obviously, laid down in statute for clarifying issues of constitutional law. The reason for the intervention was not really in relation to the specifics of the Scottish Bill. Clearly, that is a matter for the Lord Advocate in Scotland to make the case in defence of the Scottish Bill. My comments about competence were my own comments in that sense. But the way in which the Attorney-General had set out the case took us beyond, in my view, the narrow issues relating to the Scottish Bill and, indeed, even to the Scottish devolution settlement itself. There are, obviously, in particular following the entry into force of the last Wales Act, now greater similarities than there were in the past. So, the approach that I have taken is, generally speaking, not to reiterate the points that the Lord Advocate made in defence of the Scottish Bill, but to confine the case on behalf of the Welsh Government to broader constitutional principles that affect the devolution settlement here in Wales. I felt that that was important to bring focus, really, to ensuring that the concerns of Welsh Government and of this place, I hope, were heard in a context that was germane and specific to the Welsh experience and Welsh settlement.

It would take a distinguished barrister to draw up questions on the basis of this statement, but having said that, I do have a few points to make, and at least one question to ask. May I first of all make the point that it’s not the Scottish Government that has refused its consent to this legislation, of course, but the Scottish Parliament, including the Counsel General’s own party, as well as the Liberal Democrats and the Green Party in Scotland? So, this is a case that’s hugely important to the UK constitution, and although I accept entirely what the Counsel General has said—that his intervention does not relate to that question, because he has avoided any adjudication between the two views on the competence of this Bill as far as Scotland—. It is important politically, however, that this issue is resolved, and that the Scottish Parliament is supported in its declaration of its rights. That’s how we develop parliamentary powers, according to the tradition of these isles, it has to be said.

May I also say that, broadly speaking, Plaid Cymru and I agree with the four areas that he has chosen to intervene in? They are important to this Assembly, or this Parliament as it will be. The one that emerges from the AXA case is extremely important, I believe, because it makes clear and strengthens the decision taken as to where the courts intervene in terms of the action of devolved legislatures, which is important, and the Bill raises some of these questions. Therefore, it’s appropriate that the Counsel General should have been part of that process in the Supreme Court on behalf of the Welsh Government but also in representing the Welsh constitution in that regard.

But the main point raised is the first point that he makes. He states that he is part of this case because he believes that the competence of this Assembly will broaden as we exit the European Union, because European legislation is to disappear, and we do one of two things: we either state—as we have done in our own continuity Bill, which is now an Act, the Law Derived from the European Union (Wales) Act 2018—that that legislation remains in place, or, either alone or in agreement with others, we put other legislation in place. Therefore, it is important that that is stated clearly. Now, in his statement he describes that as:

‘to "pool" any of those powers through common UK wide frameworks.'

But, strangely, having been given an invitation to run a sprint race, he’s decided to tie this Assembly in a three-legged race with the Westminster Government, because that’s what the inter-governmental agreement does, of course, for seven years, which is to restrict our ability to use these new powers flowing to the Assembly, but rather, through an agreement agreed between two Governments, which will not be constituted as the same Government in seven years’ time, to do everything jointly.

Of course, he has a different interpretation to mine and Plaid Cymru’s interpretation as to whether this will be a threat to this place or not, but when he uses the word ‘bizarrely’ in his statement, or, to use Ceredigion’s parlance, in a slightly comical way—what is comical in this statement and in his beliefs on these matters is that we already have examples of where the Westminster Government isn’t following the spirit of the inter-governmental agreement. There’s talk of a fisheries Bill, an agricultural Bill—papers being discussed at the end of this week on a possible trade deal with the rest of the European Union, according to the external affairs committee, which met yesterday, I believe, haven't been shared with the Welsh Government. Only the headings have been shared. So, it doesn't appear to me that the inter-governmental agreement, which underpins the fact that the laws emanating from the Law Derived from the European Union (Wales) Act isn't part of the case in the Supreme Court—it doesn’t appear to me that the Government has prepared a strong enough agreement, but I’ve made those points in the past, and I’m just taking advantage of the opportunity to restate them, which brings me to my single question.

This involves the Scottish Bill and the role of the Counsel General, but, having said that, he will know that our legislation isn’t part of this process because it—well, it hasn’t yet been repealed, but the desire to repeal it legislation was part of the inter-governmental agreement. Now, what steps will the Counsel General now take to repeal our own legislation? Will there be a consultation over the summer on these steps? Will there be an opportunity for this Assembly to discuss and to review the inter-governmental agreement, and how will lit work over the summer months in terms of many of the important decisions that I’ve just referred to? And what, therefore, will be the end point for this Assembly in deciding to repeal the Act or otherwise?

I thank the Member for those several comments on a wide range of issues, and the question at the end. I’ll try to ensure that I do refer to the main points that he made. Of course, I accept that it’s the Scottish Parliament’s consent rather than the Scottish Government’s consent that was given.

This statement is an opportunity for me to be clear that the Welsh Government is not taking these steps in favour of the United Kingdom Government’s position. Comments were raised by Members of his party in Westminster that that was the case. That’s not the case at all. I hope that that’s very clear from what I have explained in my statement earlier.

Regarding the point about the constitutional principle discussed in AXA, it is important that we do have certainty on that particular principle.

The way that this issue comes before the Supreme Court is appropriate, that is it comes through reference to the Supreme Court. A technical question arises as a result of that, whether the general principle would be valid in that context or not. But far more importantly is the fact that the standard that must be reached in order for the court to be able to intervene is much higher than what we have in mind here, as would be appropriate within the devolution settlement.

I have discussed several times with the Member the difference of opinion that we have on the inter-governmental agreement, but just to be entirely clear again—if he believes that there is a possibility of some 20 powers being agreed to be frozen, and that that would be a decrease on the powers there, what’s the analysis of the over 40 powers coming to this place without any kind of restriction on those powers? I just don’t recognise that statement as one that restricts the powers of this place and that of the Welsh Government too. And to be perfectly clear, the Welsh Government expects the United Kingdom Government to operate in accordance with the agreement in all areas, and to ensure that they keep to the letter and the spirit of the agreement on all occasions.

He asked about the steps that are appropriate to take under that agreement in order to repeal the Act—as it now is—the Law Derived from the European Union (Wales) Act. The agreement within that agreement is for us to take steps now to ensure that that does happen. The mechanism for that is that we put forward regulations before the Senedd in draft form for 60 days whilst the Parliament sits; that is, not over the summer recess. There must be a debate then and agreement on those regulations before they become law. They were laid on 8 June. Because of the summer recess, it won’t be possible to have a debate on them until the start of October, and then it's after that that the process will go forward, after the Assembly has had an opportunity to discuss them. I have to be clear again that there's no restriction in that agreement on me as Counsel General to take the steps that I have taken to intervene in this case. I wouldn't do it unless I was concerned that the wider principles were at stake, and so we have taken this important step.

I welcome the statement. It's perfectly reasonable, I think, that the Counsel General seeks to intervene in this case brought by the Lord Advocate of Scotland. Devolution is an evolving process and there are inevitably going to be uncertainties and ambiguities that are created by the legislation that is the means of bringing it about. We moved from a conferred-powers basis to a reserved-powers basis, and in a sense that perhaps provides more work for lawyers to unravel the areas of doubt that will continue to remain as experience of life throws up practical problems to be solved. So, I do think that the Welsh Government is entitled to take part in these proceedings. In fact, it is vital that we do resolve the ambiguities that are inherent in the Scottish case.

I would like to pay a compliment here to the Welsh Government, as I've done before, in comparison with the Scottish Government, that they've taken a practical approach to withdrawal from the EU and not tried to turn it into a kind of political football match as has happened in Scotland. I appreciate that there are other parties behind the refusal of legislative consent in Scotland as well as the Scottish nationalists, but I do think that, although the Scottish position is different because devolution has gone further in Scotland, nevertheless, the arguments that they're producing are specious and are fundamentally designed to inhibit the withdrawal process. So, I'm pleased that the Welsh Government has taken a different view, and it is sensible that they give Wales's voice a hearing in the court as well.

I also think that the four issues that the Counsel General has identified as necessary to be resolved are vital questions in this case. I fully agree with the Government's view that all powers currently vested in Brussels that under the devolution settlement should come to Wales should be vested here, and it's always been, I think, a paradox that those who complain that the devolution process is being undermined are actually talking about powers that we don't currently have the powers to use anyway. So, I think the important point that the Counsel General made earlier on was that the EU withdrawal in this respect does potentially enhance the competence of this Assembly. It gives us more power. It may not go as far as Plaid Cymru would like. I fully understand their objections and reservations; they're entitled to make those points because they don't believe in the United Kingdom as the political structure within which we will continue exist. I think it's very important that their point of view should be expressed and that these arguments should be put in this Assembly and that the Government should defend itself against those arguments. It's very important that this should be done in the most open and transparent way possible.

I also think that it is very important that the court's powers to review Assembly legislation are further refined through cases of this kind. There will inevitably be areas of uncertainty that need to be resolved, and the common law process works by case law so we build up a corpus of constitutional law, not just by statute but actually more fundamentally in the interstices of the law through individual cases turned over long periods of time into legal principles and conventions. So, I think that this is an inevitable step in the devolution process and also in the process of withdrawal from the EU. It's one that I welcome, and I wish the Counsel General well in his advocacy for Wales in the case.

I thank the Member for those remarks. I think that the very point of devolution is that different parts of the UK can reach different outcomes and different conclusions about how to approach this sort of question, and that is what happened, ultimately, in this case. The Scottish Government, the Scottish Parliament, took a different view ultimately than we did here in Wales, and that is inherent in the nature of devolution and, in fact, if you're a devolutionist, it's a thing to be celebrated. Different considerations apply, but the Welsh Government was clear from the start that our main objective was to secure appropriate amendments to the EU withdrawal Act, as it is now, and that the continuity Bill was a means of achieving progress in relation to that.

I would also say that we have benefited throughout by working very closely with the Scottish Government in relation to the development of the inter-governmental agreement, and subsequently, as well. I think this is the start of a longer process as all parts of the UK withdraw from the European Union; that kind of collaboration and co-operation will, I think, stand us in good stead as we go forward over the coming months, and no doubt, years.

Just on the point that he makes, really, which echoes the point in the Supreme Court case of Miller, i.e. that without a legislative intervention, the withdrawal from the European Union extends the competence in those devolved areas rather than limits it. The argument that an Act of Parliament is needed before a devolved legislature can act in area where EU law is withdrawn is obviously fundamentally at odds with that observation. But I would also point at the inter-governmental agreement—as it was originally conceived, which had the much broader attack, actually, on the devolution settlement—was accepted by the UK Government as requiring, under the Sewel convention, a legislative consent motion, which suggests an acknowledgement on their part that there's a baseline level of competence, even in relation to matters relating to the withdrawal from the European Union. So, I think that is at odds with how the Attorney General's put his case here, and I hope that we will prevail in relation to that when our arguments are made before the Supreme Court.

I'd like to thank the Counsel General for his statement. It's very interesting to understand the position for that need to intervene, and I fully support your points. I understand the need to separate the way in which this institution has actually decided upon a consent, based upon the agreement and the amendments, and the Scottish Parliament, as Simon Thomas quite rightly pointed out, took an alternative decision.

But you're also focusing upon the implications for devolution and the rights of this Parliament to make a decision on devolved competencies, which you believed we were well within our rights to do on this particular Bill. Have you made an assessment of what if Scotland was also within their rights, and the Supreme Court rules that Scotland was correct in putting that Bill forward, therefore, making it legitimate? And what issues then will we be facing in Wales compared to what Scotland will be facing? Because Scotland will have different powers and different laws because it will be approved, compared to what Wales will now be operating under, and therefore the frameworks issues we're going to be discussing might be under different scenarios as a consequence of that. Have you made that assessment yet?

Well, the Scottish Government has indicated it wants to participate fully in those common framework discussions in any event, so, in practical terms, that will be available as a mechanism to all parts.

Obviously, the withdrawal Act applies to all parts of the UK, to state the obvious. As of where we are today, there is no Act in force in Scotland that cuts across that. Obviously, as we take steps to repeal the Act here in the Assembly, there will be no legislation here in Wales either. So, there will be, if you like, a level playing field across all parts of the UK. Obviously, that could change if the Scottish Bill becomes law.

I think because of the nature of the cases that have been put, and the arguments that have been put in response, speculating about the exact balance of that, and how it's dealt with by the Supreme Court, isn't something that I think is particularly sensible or probably possible at this point. But we'll obviously be keeping that under review and will watch how submissions are made in the Supreme Court, and we'll be taking a view and responding in relation to that.

I thank the Counsel General.