Part of the debate – in the Senedd at 5:51 pm on 20 November 2018.
I'd perhaps like to thank Plaid for promoting my question at the scrutiny of the First Minister so widely on social media. It always does my career the world of good. [Laughter.] Can I also say, though, that, on the several occasions I've raised those questions, they were raised very sincerely, and the points that Steffan makes and the challenges you make are very valid ones and ones that do deserve, I think, considered replies. I think it is a question of considered judgment and strategy as to where we go on this.
I have to say, I've been in two minds about the issue of the continuity Act, as I will call it, as it's much loved, as to what it represents and what it will achieve. Certainly, when it was introduced, it was absolutely vital. We had clause 11 in the Bill, which clearly was an agenda that took away powers. It certainly gave us leverage. It was certainly a very effectively drafted piece of legislation and I think put forward very, very succinct arguments that set the parameters in terms of how we see Welsh powers returning from Brussels. And I think it set exactly right the constitutional position.
The point about it is, though, is that a consequence of that was that we then came to the inter-governmental agreement, and, that inter-governmental agreement, the question now is: is the continuity Act better than, does it put us in a stronger position than, the issues that arise from the inter-governmental agreement? And that's a very serious question to ask, that Steffan has asked, and that I've asked that as well. I've thought about it very, very carefully, and I want to say this: the first thing about the inter-governmental agreement—which is, I think, a remarkable piece of negotiation by Mark Drakeford, by the Cabinet Secretary, for a number of particular reasons—. Firstly, it is based on a recognition of those very devolved powers that we have argued—it actually enshrines as a matter of principle those devolved powers that we say belong to us, that are part of the devolution settlement. Secondly, it doesn't involve the transfer of any powers elsewhere. Thirdly, it actually incorporates an enhanced Sewel process. It's quite remarkable. When we were at the inter-parliamentary forum, when we were down in Westminster and in the House of Lords, telling the House of Lords members that they now actually have a veto on steps that might be taken by the UK Government to override the refusal of consent from this place—I think it's actually quite a remarkable step forward.
I'm not actually sure that when the UK Government negotiated this they were actually aware of what they were doing. It's quite remarkable. I've never been in favour of the House of Lords or in fact giving it more powers, but on this particular occasion I'm perhaps prepared to make a bit of an exception. Importantly, what it also does is something that is very important to us at this present moment, and that is the development of frameworks. Whatever happens, we need a mechanism for those frameworks to proceed. Now, if we don't repeal the Act, and if the inter-governmental agreement collapses, does it therefore provide us with any silver bullet of protection? That's the question I've asked myself, and I can't say where it does. At no stage do we at any stage challenge or are we able to challenge that, ultimately, the sovereignty of Parliament enables it to override in all sorts of ways.
Steffan asked another very important question as well: should we wait until the Scottish judgment? Do you know, I would really like to wait until the Scottish judgment? I know there are pressures as to why we have to do this now, because of the potential of collapse of the inter-governmental agreement at this current moment in time, but the adverse side to the Scottish judgment is this: firstly, if it's successful, it doesn't put us actually in a stronger position; if it is adverse to us, it actually puts us in a much worse position. We not only don't have the inter-governmental agreement and the protections there, you then have a judgment of the Supreme Court that is confirming the power of Westminster to override on constitutional matters. So, I don't think it gives us that particular silver bullet that we actually want.
I don't think that it also—. Our taking the position that we're taking now and repealing this, it doesn't take away the constitutional challenges, which are very fundamental challenges that still exist, in respect of the reform of the JMC, the fact that we do need a clearly delineated Sewel arrangement, one that is justiciable. We need, clearly, a more federalised constitutional structure. And, interestingly, the inter-parliamentary forum that we've been participating in—Dai Rees and myself as Chairs of our respective committees—is actually almost saying that very thing itself. So, at this moment in time, I think we have to separate this very carefully from some of the other political issues that are going on—the very serious issues at the moment as to whether the Government's going to collapse, whether there's going to be a general election, what the consequence might be of that, or, if there isn't a general election, of alternative constitutional steps being taken.
But, at this moment in time, in terms of all the things that we have responsibility for and are doing, are we better off as a result of the inter-governmental agreement that we've got, which makes us clear in the position that we're in and the powers we have and sets a clear structure for that, or are we better off by throwing that away and relying on a piece of legislation that can be so easily overturned? The answer I've come to is: it is correct to repeal this. Strategically, it is the most prudent decision and the best decision in the interests of Wales—not one I particularly want to take but I think, at this moment in time, it is the right decision to take and I think the recommendation from the Cabinet Secretary, our Brexit Minister, Mark Drakeford, is the correct one and he's put forward the correct proposal, and I think it is right that we do take the step that's being mooted today.