1. What discussions has the Counsel General had with other law officers regarding the legal implications of the UK internal market Bill? OQ55726

There is ongoing engagement with the UK Government to discuss our concerns with the internal market Bill. The Bill as currently drafted has significant legal implications for Wales and represents a fundamental attack on devolution. I am seeking support in the House of Lords for amendments to the Bill.

I'm grateful to the Counsel General for his reply, which, of course, builds on an earlier reply from the First Minister to Adam Price. The Counsel General will be aware of the new academic report from Cardiff University's Wales Governance Centre, and other partners, on the impact on regulations, particularly after Brexit, and the potential effect on the territorial scope of devolved legislation. Now, the Counsel General mentions potential amendments, and the First Minister mentioned those to Adam Price, but isn't it the case that, given the size of the Conservative majority, the amendments could pass in the House of Lords, but they are likely to fail, are they not, when they get back to the House of Commons? And can I ask the Counsel General: will he consider having discussions with other devolved administrations about a legal challenge to this pernicious piece of legislation, if the amendment process isn't successful? I would suggest to him that these are processes that need to go on in parallel, because once the amendments have fallen, a lot of time will have passed, and it may be more difficult then to mount a formal legal challenge, if such a thing is possible. 

I take the point that the Member raises in relation to the size of the UK Government's majority in the House of Commons. Notwithstanding that, I would suggest that it would be a wise Government in Westminster that would listen to such broadly based concerns about the pernicious elements in this Bill that extend very significantly more widely than political parties, to civic society at large. I would urge them to respond to any changes made in the House of Lords with an open mind. 

To her point about other challenges to the Bill, I will reassure her, I hope, in saying that we have been exploring absolutely every legal avenue in relation to this legislation, and I know that colleagues in devolved administrations share many of the points of concern that we have here in Wales. She will be very familiar with the particular challenges in relation to legal challenges to primary legislation going through Parliament, but I would like to reassure her that the full scope of, as a Government in Wales, our legal options has been, and continues to be, under live consideration. 

The most offensive part of this Bill, of course, is the way in which it steamrollers our constitutional settlement, and does so without consent. The Counsel General will be aware, of course, of the Statute of Westminster, enacted in December 1931, which gave independence to the then Dominions. Is it not time, Counsel General, for a new statute of Westminster, that gives us the legal guarantees that our constitutions cannot be amended at will and on a whim by a UK Government that cares not a damn either about our democracy or our constitution?

I thank the Member for raising that very important and novel contribution to the debate on this Bill. He is right to say that this Bill, as well as being an attack on standards that consumers and producers in Wales have been able to rely upon for many, many years, it is also in effect a piece of constitutional legislation in that it does seek to reverse the devolution settlement in a number of critical ways. I think we can identify that by virtue of the fact the UK Government wishes to make the whole Bill a protected enactment, which is typically a mechanism that is limited to constitutional legislation. I think the scale, therefore, of the reach of this Bill is illustrated even if only by that provision.

In relation to the Statute of Westminster, I think the Member raises an interesting question. We are taught, as constitutional lawyers in the UK, that Parliament is sovereign, and therefore no Parliament can bind its successor. But that statute is an example where, in effect, it would be unthinkable for Parliament to seek to act in breach of it. Now, in those cases, that was to establish the independence of those territories. But we have ourselves argued as a Government for a statutory basis for some of the reforms that we seek, and I also think we are very clear that we have reached the limits of the Sewel convention, which talks about the UK Parliament 'not normally' legislating in this area. I think there is a case for us to explore a formulation that effectively says that it would never legislate in breach of the devolution settlement. Such a provision would mean that the financial assistance provisions in the internal market Bill, for example, would then not be acceptable. My suspicion is that mechanisms like the Statute of Westminster work best when the devolved settlement itself is broader than ours, and I think that adds to the case for a fuller set of powers to be exercised here in Wales.

Counsel General, I quite agree with Alun Davies when he expressed his concerns on the internal market Bill, as you did in your interpretation in your answers as well. But is it also not true that this Bill will drive a coach and horses through issues such as the common frameworks, which have been negotiated and discussed, the inter-governmental agreement review, which is being at the moment discussed, and possibly even the shared prosperity fund, so that, in effect, this is actually demolishing devolution, in a sense, and not enhancing it?

Llywydd, the Member is right to say that this is an attempt to neuter devolution in relation to these areas. Certainly with regard to the common frameworks mechanism, the proposed amendments that we have put forward, which we hope to see tabled in the House of Lords, would put common frameworks where they should be, which is at the very heart of the internal market, and not pushed to the margins, which is what this Bill in effect does. It effectively removes any incentive on the part of the UK Government to continue engaging with those. I think he is right to say that the financial assistance provisions in particular are probably expressly designed to deliver a shared prosperity fund without reference to the Welsh Government and the vast range of Welsh stakeholders that support the position that those decisions should continue to be taken by the elected Government of Wales, accountable to the elected Parliament of Wales.

Counsel General, clause 47 of the internal market Bill enables the UK Government to not only spend in devolved areas but then to send the bill to the Welsh Government. Now, this seems to me a total contradiction to what we were promised the shared prosperity fund might be. In your discussions with the UK Government, have you discussed what their understanding is of the term 'shared' and the term 'prosperity'? And I wonder if you could inform us what your understanding is of the UK Government's understanding of that term.

Llywydd, the point I've made in my discussions with UK Government Ministers in relation to this is that, if the intention of those provisions is to enable the Governments to work together to level up the prosperity of Wales, then we as a Government will always wish to work together with other Governments, where that is for the benefit of Wales, and we will welcome additional money for Wales. But there is already a Government that has the powers that are set out in that clause in the Bill, and that Government is the Government of Wales—the Welsh Government. And so if the intention is—and I hope it very much is—that the UK Government wants to work in partnership with us in relation to the future prosperity of Wales, it is an odd way to go about that to seek powers that we already have and are capable of exercising in Wales.