and on the Welsh devolution settlement contained in the Wales Act 2017.
During the House of Lords Brexit Bill debate Tuesday Feb 21 he raised what could become an important matter that will undoubtedly impinge on the Act.
This is because a good proportion of the reserved powers have resided in Brussels and so Westminster does not have currently the totality of powers.
When these powers are repatriated, they will be repatriated, of course, not to Wales nor to Scotland but indeed, to Westminster.
A joint body should be set up between Westminster and Wales to see exactly how one can bring about a settlement that is fair, just and lasting.
He explained ….
‘Wales achieved a reserved-powers constitution in that Act. As the House will appreciate, there are two main patterns of devolution. One is a reserved-powers constitution where there is notionally a transfer of the totality of powers and then a reservation of certain specific exceptions. The other is a piecemeal system—what is called conferred devolution—and that is what Wales had from 1964 onwards, when it achieved its Secretary of State, and indeed there have been hundreds if not thousands of what one might call confetti-like situations of conferring individual powers.
Central to the concept of a reserved constitution is the idea that the mother parliament has on the table, as it were, the totality of powers that are available and relevant in the situation, and that the mother parliament looks upon those powers and says, “This is all that we have. This is where we draw the dividing line between the totality that is transferred and that small remnant that is retained and reserved”.
If indeed for some reason the mother parliament did not have the totality of powers at the time, it goes to the very heart, kernel and essence of a reserved constitution. I make the case that that is exactly what happened.
From 1972 onwards—indeed, from 1 January 1973 when we entered the Common Market—it meant that the European Communities Act ruled with regard to a very considerable swathe of legal authority. Exactly what percentage that represents of the laws affecting us I would not like to calculate but it is very substantial. It may be 25%, it may be 30% or 35%, or even higher. What it means for Wales, and it affects Scotland in exactly the same way, is that some 5,000 elements of law affect those devolved countries and yet the authority was not on the table of the mother parliament. That seems to me to go to the very heart, core and kernel of the idea of a reserved settlement.
What can one do? We can look at three situations: one is the Sewel convention, a convention that is now contained in the Scotland Act and the Wales Act of last year. That convention says that it is accepted that the mother parliament, being the supreme authority, can do what it wishes in relation to a devolved Administration. It can change the situation overnight if it wishes, but it will not do so, and would not think of doing so, unless asked by that sub-parliament or unless there were some very exceptional circumstances. That, as I said, has been written into the law by way of the Scotland Act and the Wales Act.
It is a convention. The Supreme Court said it was a convention and nothing more. It does not have the power of law. That obviously must be the situation technically. However, the Supreme Court went on in its judgment, in paragraph 151, to say that, nevertheless, a convention is important. It is binding morally and politically. It goes on to say that such conventions are of immense significance and have to be respected to bring about the harmonious situation and amity between the mother parliament and the devolved parliaments.
Although you might say that Europe was a reserved matter altogether, that is not so. Paragraph 8 of the schedule says that, although European relations are reserved, the question of the administration and oversight of the operation of European relations is not reserved. Clearly, that is covered by the convention.
Secondly, there is the question of the Joint Ministerial Committee, where, in utter confidence, matters are disclosed between one party and another. It has a very considerable future: it is possible to build a mutuality of trust that can be more important for the future of the United Kingdom than anything else.
Thirdly, there is the question of protocols. When the legislation was going through in relation to Scotland and Wales in late 1990s, it was said that on matters that were not devolved, there would have to be protocols. In fact, however, it was a dead letter. I would like to see the breath of life breathed into the cold clay and dry bones of such institutions, which I think have a very considerable future.
As for the situation now, when these powers are repatriated, they will be repatriated, of course, not to Wales nor to Scotland but indeed, to Westminster.
A joint body should be set up between Westminster and Scotland and between Westminster and Wales to see exactly how one can bring about a settlement that is fair, just and lasting.’