Thankfully in the House of Lords -
led by the legal mind that is Elystan Morgan’s - Dafydd Wigley and Jenny Randerson have also
been raising the point forcibly
Years ago, a very famous Welsh statesman said, “Why look into a crystal
ball when you can read the book?”. We know exactly what happens when Wales and
England deal with each other in that way. It is not the basis of partnership
and equality at all.
The cobwebs of colonialism still exist in the relationship between Wales
and England, I am afraid.
Jenny Randerson:-
Many of the powers that will be repatriated from the EU, relate directly
to the powers already devolved to these Governments, Parliaments and
Assemblies, including agriculture, health, environment, consumer rights—a long
list. So there should be no assumption that the UK Government will inherit
these European Union powers. Many of them will more suitably sit at devolved
level, and that discussion will have to be taken.
The Government have a perilous path to tread in a very sensitive
situation. If they do not tread that path carefully, they will find they are on
the slippery slope to Scottish independence and could be on a slippery slope to
further turmoil in Northern Ireland
A very sensible Government would use the repatriation of powers from the
European Union to establish a new federal state of equals, and a new UK could
emerge out of this division and turmoil
This is Elystan Morgan at his legal and political best
‘In order to preserve the unity of the United Kingdom, the reality of devolution and the harmony between the various constituent parts of the United Kingdom, respect should be shown by the mother parliament to the parliaments of Wales, Scotland and Northern Ireland.
Those are political
and social considerations; the matter that I wish to propose is in no way
contrary to that but runs parallel. It is a constitutional point. It is a
marvellously simple constitutional point, and I think I can deal with it in
very short compass. It concerns the reserved powers constitution that Wales
achieved under the Wales Act which became law a few weeks ago. The purpose of
that Act was to change the whole pattern of devolution for Wales from a
conferred pattern of devolution—bit by bit over the years, a confetti type of
development—to a reserved powers constitution.
It is axiomatic as
far as a reserved powers constitution is concerned that two matters should be
dominant. The essence of a reserved powers constitution, as we appreciate, is
that there is a transfer in the first instance of the totality of power from
the mother parliament to the subsidiary parliament, but that at the same time
there should be a reservation of a strict number of exceptions and
reservations. It is axiomatic, therefore, that two conditions must prevail.
First, the mother parliament must be seized of all the legislative power and
authority that is relevant to the situation. That is obvious.
Secondly, the mother
parliament must be cognisant of the powers that it has and must be in a
position to know exactly where to draw the line between that which is
transferred and that which is reserved. Neither of those conditions exists in
this case.
Why is that so? I remember
a piece of dog Latin that I learned many years ago when I was a law student in
relation to the sale of goods: “nemo dat quod non habet”—no man can give that
which he does not have. Nobody can transfer that which they do not have. When
it came to the question of deciding what powers Wales should have, the mother
parliament did not have a mass of those powers that are relevant to the
situation. There is a huge area that is missing. It may be 25%; it may be 30%
or 40%. It is massive in relation to the totality of legal authority. That
authority was missing from 1 January 1973, ever since the European Communities
Act 1972 came into force.
It never was with
the mother parliament to dispose of. It could not possibly give it to Wales, or
to Scotland for that matter—in Northern Ireland, the situation was entirely
different, because its constitution goes back to 1922.
What, therefore, is
to be done?
The following
matters have some relevance, broadly. Of course, there is the question of the
Sewel convention, which has been written into both the Scotland Act and the
Wales Act. That will have its effect gradually over the years. There is also
the question of the joint ministerial committee, which meets in confidence and
is able to discuss in a situation of total secrecy matters which are of the
utmost importance to the mother parliament and the devolved parliaments.
There is also the
question of protocols, which was greatly promised in the late 1990s when
legislation in relation to Scottish and Welsh devolution went through but has
been as dead as the dodo, I am afraid, and should be revived.
That is why I have
proposed that the Prime Minister and the First Minister for Wales should be
responsible within a period of two months for forming a body that will look
carefully at the situation to determine:
first, what is the
scope of legislative authority that is missing here;
secondly, what is
the nature of that authority;
thirdly, what
entrenched rights—what established rights—have come into being in relation to
that since 1 January 1973;
and,
lastly, what situations are there where there
has been legislation under the 1972 Act which has been deemed to be incompatible
with the European instruments. That is a very substantial job, and I suggest
that the period that I have nominated of 12 months is not unreasonable in the
circumstances.
Many people will
say that this is not necessary and that Wales from Cardiff and the Westminster
Parliament from here can negotiate at arm’s length. I do not believe for a
moment that that is possible.
We have seen
exactly over the last few months when we were dealing with the Wales Bill how
almost impossible it was to persuade Parliament that much of what had been
reserved was utterly trivial and was an insult to the Welsh nation. Things such
as sharp knives, axes, dogs, licensing, prostitution, hovercrafts—all those
matters which scream for domestic consideration—had been reserved.
Years ago, a very
famous Welsh statesman said, “Why look into a crystal ball when you can read
the book?”. We know exactly what happens when Wales and England deal with each
other in that way. It is not the basis of partnership and equality at all.
The cobwebs of
colonialism still exist in the relationship between Wales and England, I am
afraid.’
Footnote:
In her address to the Scottish Tories the Prime Minister indicated that she has every intention of retaining the key powers to Westminster and not the devolved Parliaments.
So over to you Welsh MPs and AMs - have you got it in you ? For the sake of Wales
