Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

14/10/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AC
Mick Antoniw AC Cadeirydd y Pwyllgor
Committee Chair
Suzy Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Akash Paun Sefydliad y Llywodraeth
Institute for Government
Dr Andrew Blick King’s College, Llundain
King’s College London
Dr Huw Pritchard Canolfan Llywodraethiant Cymru
Wales Governance Centre
Dr Jack Simson Caird Canolfan Rheolaeth y Gyfraith Bingham
Bingham Centre for the Rule of Law
Yr Athro Aileen McHarg Prifysgol Durham
University of Durham
Yr Athro Alan Page Prifysgol Dundee
University of Dundee
Yr Athro Alison Young Canolfan Cyfraith Gyhoeddus Caergrawnt
Cambridge Centre for Public Law
Yr Athro Dan Wincott Canolfan Llywodraethiant Cymru
Wales Governance Centre
Yr Athro Jo Hunt Canolfan Llywodraethiant Cymru
Wales Governance Centre
Yr Athro Michael Gordon Ysgol y Gyfraith Lerpwl
Liverpool Law School
Yr Athro Michael Keating Prifysgol Aberdeen
University of Aberdeen

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rachael Davies Dirprwy Glerc
Deputy Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser
Sara Moran Ymchwilydd
Researcher

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 10:15.

The meeting began at 10:15.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datganiadau o fuddiant
1. Introduction, apologies, substitutions and declarations of interest

This is a meeting of the Constitutional and Legislative Affairs Committee. I have apologies from Carwyn Jones today. Everyone else is in attendance. Are there any declarations of interest? If there are none, the usual housekeeping rules will apply.

2. Offerynnau nad ydynt yn cynnwys unrhyw faterion i’w codi o dan Reol Sefydlog 21.2 neu 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

I move straight on to item 2: instruments that raise no reporting issues under Standing Order 21.2 or 21.3—statutory instruments with clear reports and affirmative resolution instruments. We have the Food Information (Wales) (Amendment) (EU Exit) Regulations 2019. This instrument amends the Food Information (Wales) Regulations 2014. The amendments are being made to seek to maintain the status quo in relation to food labelling by introducing a transitional provision to allow businesses to continue to adhere to pre-Brexit labelling requirements whilst adjusting to any new, post-Brexit requirements over a reasonable and set period of time. The Plenary debate for this instrument is scheduled for 22 October 2019. Any comments or observations?

If not, we move on to the negative resolution instruments. The Plant Health (Wales) (Amendment) (No.3) Order 2019, and you have before you a report, a copy of the Order, and the explanatory memorandum. The Plant Health (Wales) Order 2018 contains measures to prevent the introduction and spread of harmful plant pests and diseases. The Order amends the 2018 Order to implement control measures to minimise the risk of the introduction into, and spread of, various pests and diseases in Wales. Any comments or observations?

Yes. There's one technical point on pack page 2, which notes a cross-reference error in this Order. The committee sees plant health legislation—subordinate legislation—quite often, and it's always very complex and intricate legislation. In this case, the draft reporting point refers to paragraph (c)(ii)(bb) in the third column of the table at paragraph 7(a)(ix)—all very intricate, which is why the cross-referencing confusion arises. And I notice the Welsh Government response has come in by e-mail in the last couple of minutes, and they accept there is a cross-reference error.

That's good to note. Any other comments or observations? If not, we move on to the composite negative resolution instruments. The Humane Trapping Standards (England and Wales) Regulations 2019. Again, a report, regulations, and explanatory memorandum are before you. These regulations make a correction to ensure the proper functioning of earlier amendments to the Wildlife and Countryside Act 1981, made by the humane trapping standards of 2019. Any comments?

This a technical point, noting the usual issue, that these regulations are laid before both the UK Parliament and the Assembly, so they are in English only. I believe the committee's still in correspondence with the relevant Westminster committees around the issue of laying bilingual—that is English and Welsh—legislation before the UK Parliament.

And we continue to pursue that. Any other comments or observations?

Only the point that a bird has always been an animal, as far as I can tell.

Okay. We move on to, then, instruments previously considered for sifting and now subject to scrutiny under Standing Orders 21.2 and 21.3. We have the Seeds (Amendment etc.) (Wales) (EU Exit) Regulations 2019. You have the report, the regulations, and explanatory memorandum before you. The instrument accommodates the extension of the EU time frame relating to the European Council's fruit directive, and makes exit deficiency amendments with regard to references to the European Union. This instrument also makes related amendments to the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2019. Part 2 of this instrument is made under the European Communities Act 1972 while Part 3 is made under the withdrawal Act 2018.

The committee considered these regulations as a proposed negative at its meeting on 16 September and recommended that the affirmative procedure should apply. The Plenary debate for these regulations is for 22 October 2019. Any comments?

10:20

Only to note that the Government has agreed to uplift the regulations following the committee's suggestion to uplift them.

5. Papurau i'w nodi
5. Papers to note

On to item 5, then: papers to note. A letter from the Counsel General on the Joint Ministerial Committee (EU Negotiations). We have the letter of 8 October 2019—a letter to be noted. Obviously, there are a lot of things in play at the moment. Shall we just note that?

Okay. We've come to the end of our business now, so we have a break before we move into the round-table session on the constitutional reform evidence and round-table discussion. Shall we take a break now?

Gohiriwyd y cyfarfod rhwng 10:20 a 11:04.

The meeting adjourned between 10:20 and 11:04.

11:00
6. Y newid yng nghyfansoddiad Cymru: Sesiwn dystiolaeth 3
6. Wales's changing constitution: Evidence session 3

Okay, so we reconvene the meeting of the Constitutional and Legislative Affairs Committee. We are now commencing our evidence sessions, starting with a round-table discussion on the inquiry into Wales's changing constitution, otherwise named as, 'Can the union survive, and what is Wales's future within that?'

Could I first of all welcome everyone who has attended, some from some distance, travelling here today? This is a particularly important session that we are doing. I think it's particularly timely because things are certainly happening at the moment, not just in the context of Brexit but in terms of the momentum in respect of the issues around the constitution that we've been talking about for such a long period of time but are now being triggered into the political arena in a way that, perhaps, should have been occurring earlier, but is one, now, that we have to address, and the serious issues in terms of what future the UK has, what its format might be, how should the nations within the UK prepare for it, issues around the constitution and so on.

I'll introduce everyone in a moment, and then the members of the committee who are here, but there are a few housekeeping matters I ought to just start off with. So, if there's a fire alarm, Members should leave the room by the marked fire exits and follow instructions from the ushers and staff. There are no tests forecast today. All mobile devices should be switched to the silent mode. The National Assembly for Wales operates through the medium of both the Welsh and English languages. So, you have headphones in front of you through which instantaneous translations may be received. For any that are hard of hearing, these may also be used to amplify the sound. Please don't touch the buttons on the microphones, as this can disable the system. Ensure the red light is showing before speaking. Interpretation is available on channel 1, and verbatim on channel 2.

If I can, for the record, then, welcome to the meeting today Professor Michael Keating, director of the Centre on Constitutional Change, University of Aberdeen; Dr Andrew Blick, director of the Centre for British Politics and Government, King’s College London; Professor Jo Hunt, of the Wales Governance Centre; Akash Paun, of the Institute for Government; Professor Alan Page, University of Dundee; Professor Aileen McHarg, I think now of Durham, formerly of Strathclyde—I make very regular, pleasant visits to the Durham miners' gala each year, so maybe we'll see you there one year; Professor Michael Gordon, director of research, Liverpool Law School; Professor Alison Young, director of the Cambridge Centre for Public Law; Dr Jack Simson Caird, senior research fellow in Parliament and the rule of law, Bingham Centre for the Rule of Law; Dr Huw Pritchard, of the Wales Governance Centre; and Professor Daniel Wincott, of the Wales Governance Centre.

Firstly, thank you all for giving up your time and contributing to what I hope will be a very productive and detailed report that we will prepare on the issues. This is a round-table session. Suzy Davies and Dai Lloyd are the members of the committee. We've had one apology, from Carwyn Jones, who's unable to make it today. The reason we're doing it as a round-table is that this is public, it is screened. We felt it was appropriate that, in discussing the issue of constitutional reform, it should be open to public scrutiny. You're free to say whatever you want—whatever you want to contribute and the way you do it.

I will try and create a certain amount of structure during the two hours that we have, and I'll start on the issue of the future of the union, can it survive a written constitution, establishing a constitutional convention, the Constitutional Reform Group's proposed Act of union, inter-governmental disputes and frameworks, and then moving on to the issue of the Sewel convention, how it is operated, should it/could it be justiciable. I'd like to move on to the purpose of the UK, and there is also—you'll have had a copy—the paper that was published by Welsh Government at very short notice, I think, on Friday, which is 'Reforming our Union: Shared Governance in the UK'. So, inevitably, we're going to overlap throughout all these areas—they're all dialectically interlinked one way or another. So, what I'd like to do then is to start off on the future of the union: can it survive? Who wants to kick off? Yes, Michael. I volunteered you.

11:05

I'm not going to answer that question. I'm writing a book about that. [Laughter.] But this question about the UK—. It's coming out next year, so you'll know then. But your first question's really about this notion of a written constitution, and I'm really quite sceptical that we can get a comprehensive written constitution, because constitutions really do two things. In some cases, they express consensus agreement about the foundation of common values. In other cases, a constitution is needed where you don't have consensus and common foundations and common values, for example in Northern Ireland. I think, in the UK, we're in the latter position, because we have very different doctrines about sovereignty and about where we're going in the different parts of the United Kingdom. We talk about the demos, which is the single people, and the telos, which is agreement about where we're going. We just don't have that, and even in Northern Ireland, of course, we find it very difficult to get that sort of consensus.

Getting it across the UK I think would be difficult, or at least premature. Maybe there's a point at which we will do that. We're seeing the different parts of the United Kingdom proceed at different paces. In Scotland, there's still an independence debate; it's out there. Wales is proceeding; it's come a long way. Northern Ireland's situation is deadlocked, and in England we don't even know what the question is, let alone what the answer is, and so until people in England articulate some kind of proposition, it's very difficult to put it in. So, I think we've got to do a lot of muddling through, but I think some things need to be written down. I think there needs to be some degree of certainty. Maybe we'll talk about this later, when we talk about the Sewel convention, but I think we need to have a better understanding of what conventions are, and I think we need to have somewhere in the UK constitution where we have some kind of arbiter, maybe the Supreme Court—I suspect it won't be—who is able to engage in constitutional reasoning. So, if we come across the kind of deadlock we've had during the Brexit process, we'll be able to get out of that.

This all applies, a fortiori, to the idea of a citizens convention. I think if you have a citizens convention, you just expose what we disagree about, and what is the point of doing that? I'm a Canadian citizen—I lived in Canada for 11 years—and they've been trying to get the constitution together since 1867. And they got a bit of it in 1982; they still haven't brought Quebec on board, they're trying to bring the aboriginal peoples on board. They tried to do it in a big bang sometime in the 1980s—it just doesn't work, and I think we're in that position.

So, yes, we need more codification of the constitution, but I don't see the point in having everything in a single document.

11:10

When we talk about a written constitution, which is an important point to consider today, if we approach it from the point of view of a vast document that's going to cover every possible thing—forget it; I don't think that's viable. You asked about the constitutional reform group's document—I think one thing they've got right is what they say they want to do, which is focus on what needs sorting out rather than trying to deal with everything. You're not going to get there. I think more viable would be a focus on a much smaller number of issues, and that comes back to really what is a written constitution.

I think what I'm saying partly fits with what Michael's saying, in a sense—that we have to identify the absolutely core principles that need to be upheld in some way, the rules that need to be in some way treated as more important than other rules. I think that's what's lacking at the moment—we don't have a sense that certain rules cannot just be subject to casual alteration. There has to be some kind of higher level of consensus around the changing of those rules. I think that's what we're lacking at the moment in our constitution, and I think if you want to call it a written constitution—whatever you want to call it—some mechanism whereby you can identify what those rules are, subject them to some kind of consensual amendment procedure, but also have some kind of arbitration mechanism, which is what I think Michael was talking about, whereby you actually get to enforce those rules, then you are moving towards what I think a useful version of a written constitution would be. How you get there and whether we can get there soon, or ever, is a different question. But I think that's what, in my view, is needed, and that would be a useful version of what a written constitution is.

But all of that is another way of saying that we do have, certainly in England, this doctrine of parliamentary sovereignty that somewhat gets in the way of all of that, because in the end, if you've got a majority for something in the House of Commons, you can normally get it through. A lot of the difficulties that the current Government have been experiencing has been because they haven't got a majority in the House of Commons. Let's imagine in a few months' time we've got a Government that does have a majority in the House of Commons, then we're into quite a different scenario, and that majority may be behaving in ways that fits with how the present UK Government thinks is good to behave, and at that point we really are going to need some things written down and safeguarded, potentially. But how we get there, I don't know.

Just briefly, I agree with Michael that it is at best premature to be talking about any sort of fundamental constitutional settlement. I don't think that is obtainable—certainly not now. I think the real objection I'd have to it is that it would divert attention from what I see as more urgent issues, and the issue that I would highlight as the most important is that of inter-governmental relations, how they should be conducted, how disputes in that context, and so on, should be resolved, which I suspect discussion of a written constitution wouldn't actually address. If you look at the things that we've been arguing about as a United Kingdom over the last three years: how many of them would actually be addressed by a written constitution? I suspect not—there would be a vast expenditure of effort and energy addressing issues that perhaps cannot be resolved at the expense, as I said, of addressing issues that do, I think, need to be resolved, regardless of the constitutional future.

11:15

Thanks. When I was thinking about this question, I was thinking back to lecture 1 of first-year constitutional law and the way in which we tend to present the arguments for and against written constitutions. And there are two pairs of arguments: one pair is about the benefit of flexibility versus the benefit of entrenchment, on the one hand; and then there's another pair of arguments about the benefits of political control of the constitution versus judicial control. Now, in terms of that first pair, devolution has benefited from the flexibility of the UK constitution, particularly in Wales. If you had a formal constitutional amendment procedure, Welsh devolution might never have come about, given the very limited public support there was for it at the time. It might have been much more difficult for it to evolve through these different stages. So, devolution has benefited from that flexibility, but it suffers from lack of entrenchment. And Andrew is absolutely right, as long as we have parliamentary sovereignty, we have a problem about lack of entrenchment.

The other issue is about political controls versus judicial controls, and there, I think, we're in an interesting phase. Whether it's a temporary Brexit-related phase or not, I'm not sure, but in this phase, we've seen a real breakdown of political convention and the weakness of political convention—particularly Sewel, but also other conventions. On the other hand, we've actually seen a really assertive Supreme Court, but it's been assertive on the back of parliamentary sovereignty. It's actually expanding our understanding of what parliamentary sovereignty means, particularly in the most recent case. It's been very, very unreceptive to arguments from devolution, both in the first Miller case and in all the various Northern Irish cases. So, from a devolved point of view, we're actually in a really bad situation, because the political controls, the conventions, have been significantly weakened, but the judicial controls that have filled the gap in certain respects are not filling the gap as far as devolution is concerned, and what they're doing by really strongly asserting parliamentary sovereignty is highly problematic, going back to that first pair of questions of flexibility versus entrenchment. The idea of entrenchment, I think, has been significantly undermined by Brexit. 

Yes, thanks very much. I don't really dissent from anything that's been said so far, but I think there is a kind of paradox about the relationship between muddling through and trying to take various smaller steps, whether it's in the space of consolidating IGR, or trying to identify a few core constitutional principles that need to be entrenched in some kind of way. And this is the difficulty of how one relates bottom-up developments to some sort of overall view of what the constitution might look like, because I think that muddling through could also be muddling along in divergent directions. In a way it comes back to the 'Can the union survive?' question. And for me, the critical point there is that there are really, I think, profound differences in the way the constitution is understood, in a fairly basic sense, across each of the major territories—the nations and jurisdictions that make up the UK and, indeed, within some of them, most dramatically—

—in Northern Ireland. And, indeed, within Westminster, to some extent. So, we have, in a sense, a union of ignorance. People don't know what's going on in the other places. I remember being struck quite hard after the continuity legislation passed by the Senedd received Royal Assent and came into law, despite the fact that the Government had agreed to the withdrawal Bill. The fact that the Welsh legislation had actually become law was not widely understood outside Wales, even amongst people who have a good understanding of devolution more broadly and, indeed, the differences between the Welsh legislation and the Scottish legislation didn't come out in wider public discussion. I'm sure amongst people in this room, we have a very specialist group of expertise, but you don't have to go very far beyond this room for those really quite profound differences of view and a lack of understanding that the difference exists. I think that muddling through without some kind of a sense of the overarching—and I agree that we're not in a position to get to anything ambitious about that—but I think the muddling through will be troublesome and prone to disagreements, ambiguities—whether they're constructive or destructive can only be worked out in practice. So, I think having some sort of a sense of the overarching is important, which is part of the reason why I think this kind of an event is so important. 

11:20

Thank you, and thanks for having me. I agree with much of what's already been said, I think. I share the scepticism of many about trying to move towards a fully codified written constitution. I think there's a tendency among certain advocates to see that as a magic bullet that would suddenly solve all the many disagreements about how the different parts of our political system should interact, and I just can't see how we would build a national consensus about what should be in a written constitution on any realistic time frame, because, of course, that wouldn't just be about devolution—if we were doing a fully codified constitution, we'd be trying to resolve many of the other issues that Brexit has exposed uncertainty about relating to the relationship between the Executive and the courts, the Executive and Parliament, even the place of the monarch, the prerogative powers, and so on. There's a huge amount of very contentious issues there.

But on the territorial aspects of the constitution, I certainly agree that there's a need for clarification and codification of certain aspects of that. If we want the union to work—and, of course, not all Governments in the UK share that ultimate objective—but if that is the objective, I think we will need to look at some form of further legal protection entrenchment for devolution. We'll come on to the discussion of Sewel later on, of course, but I think what happened with withdrawal Act—the passage of that without Scottish consent, the subsequent refusal even to consider consent for the other Brexit legislation—has just left that very important pillar of the territorial constitution in limbo.

Going back to the point that people at the different levels don't always understand how the constitution is viewed in the other parts of the UK, I think at Westminster that hasn't really sunk in yet, because short-term considerations around Brexit have dominated the debate and decision making within Government, and these longer term questions have just been starved of attention. But they're going to come back onto the agenda fairly soon, and I think they will need to be resolved if the relationship between the nations is going to be functional at all in the long run.

Thanks very much. A couple of things I would just add—one on codification and one on parliamentary sovereignty, which has obviously come up in this context and will continue to do so, understandably. On codification, I'm also sceptical. I think probably we need to step back and think if we were even going to think about a codification exercise, what's the purpose? Because there's a very big difference between codifying for reasons of clarity and codifying because we don't like the current balance of powers, as it exists in the constitution now. I think possibly the biggest argument against codification, for me, is that in a rush to get the thing done, you would end up entrenching a very flawed status quo, rather than looking at the actual problems of power imbalance that need to be altered. So, I think I'm very sceptical on codification.

On parliamentary sovereignty, just to be the person who says something in defence of parliamentary sovereignty today, clearly, in the document published by the Welsh Government—we see similar things as well in the Public Administration and Constitutional Affairs Committee in the UK Parliament's document about parliamentary sovereignty as being part of the problem here.

Personally, I think that probably takes too orthodox a view of what parliamentary sovereignty stands for. I think there are understandings of that principle that do allow us to go down the road of entrenchment in a much more elaborate way than we have done now. I think that was not what Parliament was trying to do in relation to the recognition or the signification of the Sewel convention in the attempts it's made so far in the devolution legislation. But there is, in my view at least, scope to go a little bit further down that line and incorporate more hard edged procedural requirements in there that might be used to more absolutely protect consent requirements for devolved institutions.

So, I would say, let's not throw parliamentary sovereignty out yet, because there are values that come with that, fitting in with the prioritisation of political dispute resolution over legal methods of dispute resolution, and maybe we just need to think a bit more creatively about how that doctrine can be used to build into the legislative process.

11:25

I just have three points to say. I share the scepticism, but I just want to put one thing that I think we should be thinking about, and then two further points. 

My first point is that I think we don't necessarily have a full grasp in the UK about what constitutionalism means, and I absolutely share the point that I think—. I come from England; we don't discuss what's going on in Wales, Scotland and Northern Ireland, and we should. And there isn't necessarily a full understanding of how the union works, particularly if you are in the English side of the equation. And I think that is a problem. I think we do need to take a step back and think very carefully about the values that we have in our constitution and about a deeper understanding of what it means to come and belong to a devolved nation from all components of the UK. I think that's lacking.

So, I wouldn't necessarily push for constitutional reform, but I do think there needs to be more discussions like this about understanding how the constitution works, and I think there's a big role for parliamentary committees and for Parliaments to be discussing these issues and to put them out into the public. So, the actual process of discussion I think is something we need. Whether that leads to a codified constitution that is entrenched, I'd be highly sceptical of that, and I wouldn't necessarily advocate it, but I'm very concerned that there isn't this discussion generally about what it means to be part of a union and to have that discussion of values. 

My second point is to build on Aileen's point about political and legal enforcement mechanisms. I think we need to take a step back and think about other aspects of the constitution that have been left to political enforcement but it's not working. And, if so, I think we need to have a conversation about whether legal enforcement would be better than—. And that's not to advocate legal enforcement for every single bit of the constitution, but I do think, if you're faced with an issue where you think political enforcement hasn't been working, then you do need to take a step back and say, 'Would legal enforcement be a better way of dealing with it, and how can you combine it so that you have a legal backstop for when the political enforcement fails?'

And my third point really is that we have had a lot of piecemeal bits of constitutional reform that have led to a whole series of unintended consequences. So, the Fixed-term Parliaments Act 2011 is probably our key example of, 'Look at all those unintended consequences we weren't aware of', when we then faced the interesting scenario you find in Westminster. I think we do need to think carefully. If we are going to push for reform, it is going to have to be piecemeal, but it can't be done just looking at the one reform without putting in its bigger context.

Can I just pick up on that last point? It's worth looking back at what has happened to the devolution Acts over the last five or six years, and there has been a process of more symmetry in terms of those permanency clauses, codification of Sewel, Wales moving to a reserved-power model, but there's still a gap there about discussion, where you see the alternative draft Wales Bill made by the Welsh Government, the continuity Bill in Scotland and the continuity Act in Wales, that the Welsh Government—they want to have a voice in this discussion, in this process, but until there's a political crisis that opportunity doesn't really arise.

Okay. Can I—? I'd like to bring in just now—because we'll move on, and I'm sure we'll continue to go over some of these—some of the committee members. But if I can just say, one of the issues that has been emerging is the issue of sovereignty and then the concept of shared sovereignty—shared sovereignty around a reform of the joint ministerial council, and perhaps the drafting of a structure around that and a disputes mechanism within which that operates as a potential, I suppose, transitional constitutional reform. It would be quite interesting what people think about the idea of shared sovereignty, because this is something that the Welsh Government’s document is very strong on, in terms of what the basis for future arrangements might be. Now, I've raised that; I’d like to ask Suzy, perhaps if you’ve got anything to add, and then Dai, and then I’d like to invite you to comment in on that.

11:30

I'm just at the listening stage in all of this. One of the things I suppose that we worry a little bit about with shared sovereignty is the enforceability of it, and if we don’t have any clarity on whether we have a constitutional court or another means of arbitration, as Michael Keating was mentioning earlier, we can talk about it until the cows come home, really. It’s only when there’s a big divergence, shall we say, of opinion that it gets tested.

Wel, yn yr un modd, os ydyn ni'n sôn am rannu llywodraethiant neu fod mewn rhyw bartneriaeth newydd, rydyn ni wedi bod yn cael y trafodaethau yma yn y Senedd yma ers rhai misoedd nawr ynglŷn â fframweithiau cyffredin ac ati, ac, wrth gwrs, mae unrhyw gytundeb rhynglywodraethol hefyd yn dibynnu ar y ffaith bod—. Sori, ydy’r cyfieithu’n gweithio?

In the same vein, if we're talking about sharing governance, we have been having the discussions in this Senedd for quite a few months now regarding common frameworks and so forth, and, of course, any inter-governmental agreement also relies on the fact—. Sorry, is the translation working?

Unrhyw gytundeb rhynglywodraethol sydd wedi bod rhwng y Llywodraeth yn San Steffan a’r Llywodraeth yn fan hyn—wrth gwrs, yn naturiol, dyw hwnna ddim yn statudol. Mae o’n dibynnu, i raddau helaeth, ar y ffaith bod y ddwy ochr, os ydych chi'n gallu defnyddio’r term yna, yn ymddiried yn ei gilydd, a hefyd, yn bendant, bydd hyn yn her i San Steffan—eu bod nhw’n fodlon cyfaddef bod gyda Senedd arall yn yr ynysoedd hyn hawl i weithredu efallai yn wahanol i beth maen nhw’n ei benderfynu, ac i gael ffordd ymlaen sy’n wahanol, a nid yw popeth yn dod o San Steffan ac yn ymdreiddio i lawr i’r gwledydd eraill, a bod yna ffocws gwahanol yng Nghaeredin, yng Nghaerdydd, ac ym Melffast a nid yw pob peth yn dechrau yn Llundain a bod jest disgwyl inni weithredu fel yna fan hyn. Mae eisiau i San Steffan fod yn fodlon newid os ydyn nhw yn wirioneddol siŵr eu bod nhw eisiau cario ymlaen efo’r undeb yma. Achos dwi’n aelod o blaid wleidyddol sy’n credu yn wahanol, ond, yn y bôn, mae o i fod yn undeb, nid y ffaith nawr, wedi datganoli, mai Llundain sy’n dweud popeth ac yn disgwyl i bawb arall ddilyn. Mae'n her.

Any inter-governmental agreement that there has been between the Westminster Government and the Government here—naturally, that's not statutory. It depends, to a vast extent, on the fact that the two sides, if you can use that term, trust each other, and certainly this will be a challenge for Westminster—that they're willing to admit that another Parliament in these islands has the right to operate differently to what they decide and to have way forward that is different, and that not that everything comes from Westminster and trickles down to the other nations, that there is a different focus in Edinburgh, in Cardiff, and in Belfast and not that everything starts in London and there's just an expectation that we just operate it down here. Westminster needs to be willing to change if they are really sure that they want to continue with this union. Because I'm a member of a political party that believes differently, but, essentially, it's supposed to be an union, not the fact now, after devolution, that London says everything and expects everybody else to follow. It's a challenge.

Sorry, can I just add something to the end to the end of mine? Because I think this is important for the question of arbitration as well, which is—as members of the public now, rather than constitutional experts around the table—when we’re talking about parliamentary sovereignty and how the different Parliaments might work together, what people tend to think of is Governments working together, because there’s this huge misunderstanding that still persists over the difference between a legislature and a Government. And, of course, we need to be very clear about those differences, and so, if we’re going to be talking about any spaces where there would be arbitration, are we talking about Parliaments not understanding each other—sorry, we understanding each other but the public not understanding us—or are we taking some acceptance that actually the majority of powers still lies with Governments?

Can I ask—? I'll come back. Jo, you've done some work on this area in terms of overlapping competencies and so on. Is there anything you wanted to add on that?

I think—and, again, it's taking the picture in the round as much as possible, and, if we start identifying areas of exclusive competence, of—. At the moment we have a situation where there is no exclusive competence for the devolveds. We have a model where, essentially, potentially Westminster can legislate on and across everything. And yet there are some areas that are exclusively for Westminster. So, we have a model that is unlike a lot of the other models that we see of federal, multi-level governance systems. But if we’re trying to make arguments around carving out areas or recalibrating those areas, redefining those areas, saying that there are some areas that are exclusively for the devolveds for the future, then that comes with consequences, and it’s recognising that there are, potentially, costs with that as well. I think one of the things, if we look at the way that some models of shared governance work, is that we have rules about pre-emption and, if there has been exercise of competence then that then pre-empts future action, that that has some sort of primacy or supremacy for the Acts that have been taken in those areas and, if we're going to start thinking about that, then that might have consequences here because, so far, we haven't had doctrines of supremacy and primacy for legislation that's been adopted. That could be—. There could be future legislation adopted here that might take us in a different way. But that's what devolution at the moment does. We don't have that doctrine of supremacy in that way, but we then see legislation occupying the field. So, I think there are considerations that, again, need taking into account when we're thinking about—. We might seem to be improving things from a devolution perspective in some ways, but it might then have more limiting consequences elsewhere. 

11:35

This picks up on what you were saying. I think we can actually go quite a long way by understanding what it is that sovereignty applies to and does not apply to. So, sovereignty applies to legislation. It applies to UK primary legislation. It doesn't apply to the UK Government. The UK Government does not have any residual powers over the devolved Parliaments, the devolved Governments, except those that it is explicitly given by Westminster legislation. So, sometimes, what we might be talking about is not shared sovereignty, but, actually, it's the mutuality of respect between Governments and parity of esteem between Governments. If that were taken seriously, I think, actually, a lot of the problem about the ongoing sovereignty of the Westminster Parliament would become less important because that's only important insofar as it's activated, insofar as the UK Government chooses to use the powers of the Westminster Parliament to override the other legislatures. 

I'll come on to Jack and Suzy in a minute. Just to challenge you on that point, though, one of the areas that's arisen, of course, is that you take away the EU umbrella and you have the issue of international trade agreements. Those are agreements that are, effectively, conducted by Government, and, obviously, the Constitution Reform Group has an impact in terms of some sort of scrutiny of it, but questionable as to what the extent of it is. International trade agreements can, effectively, intervene in just about any area of devolved responsibility. The classic example given at the moment is that an international trade agreement with the US in terms of health could directly interfere with totally devolved areas of health responsibility. So, in some ways, it does actually give a significant—. The issue of frameworks and the issue of the use of the prerogative still actually presents, when you take away the EU umbrella, a significant change in the use of sovereignty, does it not? 

Right. Well, I can give you a technical answer to that, which is to say it can bind the UK as a matter of international law but it can't change domestic law. The devolution statutes and the Supreme Court in the continuity Bill case were very clear that implementation of international agreements, implementation of EU law in devolved areas, is not a reserved matter, it's a devolved matter, and so at that stage the involvement of the devolved legislatures is required, unless it is to be overridden by the exercise of parliamentary sovereignty. Now, you might make arguments that, once we have been bound in international law it's no longer feasible to maintain that difference, but there is an important technical difference between what the Government can do and what only Parliament can do. So, as I say, if the UK Government were to understand its constitutional position in rather more modest terms, we would have fewer problems around about parliamentary sovereignty, I think. 

Thanks. I just wanted to say something about shared sovereignty so I could say my two-pennies worth on codification, because I'm a bit more positive about that than other people. So, I think the issue that's interesting about shared sovereignty is we're seeing in the Brexit process a disconnection between how people understand the UK's constitutional principles and then institutional practice in the political institutions, and I think this is a good example of that. And, for me, that's probably the strongest reason why we do need some kind of big-bang codification—not that I have a plan or a Bill to put forward, but I would be more positive than most of the other people so far about codification, because I think that's the only way where you try and get a consensus around how constitutional principles should affect political practice. Until you get that kind of work towards some kind of consensus about how these principles affect how people should behave, I don't think you'll make much progress on these areas incrementally. And, one example that we're just touching on now, is, for example, how the delegated powers process is going to play out in the context of devolution and implementing international agreements and the like, and I just think that here's a really good example where you're got a whole bunch of lawyers who think that delegated powers should operate according to constitutional principles, and then you've got the reality of how it works in government, and, once you've agreed a trade deal with the USA and the fact that you just need to get on and implement it, unless you have hard legal powers that are backed up by constitutional principles, I actually don't think that we'll get anywhere, basically.

11:40

Yes, we've moved on a little bit now, so—. Well, I'll say it and if it's irrelevant then by all means, just move on. This idea of shared sovereignty—what does that actually mean as well? Because we're obviously considering it. We're talking about devolution here, but we've had elements of shared sovereignty with the current European position, of course, because the law comes from the European Union, for which, of course our Parliament has given them the power to make them supreme, but we also have a lot of decision at local level on interpretation. A lot of that goes back to the general Napoleonic shape of law, doesn't it? We operate in a common law constitution now. There are elements of Napoleonic shape to it now, because many of our statutes are a framework, but how—? I was hoping we might hear something about the other common law constitutions and how they work and what supremacy looks like there, because it's very different to what we've become used to as members of the European Union, would be my very fuzzy look at this.

I would just go back to the point that you were making about the UK entering into an international trade agreement, and that, then, has knock-on consequences in terms of the devolution settlements. The point I was going to make was, 'Well, it was always thus', and the EU is a classic example. Various powers were given to the devolved legislatures—agriculture and fisheries being classic examples—which were powers in name only, in the sense that the real decision making actually took place elsewhere; it took place in Brussels. And that was acknowledged in inter-governmental practice in the sense that the devolved administrations were involved, to a greater or lesser extent, in working out what the UK Government line was in negotiations with Brussels. In other words, there was a recognition that if you're responsible for implementing these obligations, then you have to have some involvement or some say in what the obligations to be implemented actually are.

So, that principle is—and this is going back to what Dan was saying at the beginning—not just muddling through. The antithesis is not between muddling through on the one hand and the big bang constitutional reform on the other. It needs to be a principled approach to those areas, and there is a principled approach to this area that does acknowledge the role of the devolved administration in implementation and the consequences of that in terms of negotiation of these obligations. And that, of course, is the issue that the UK Government has the most difficulty with because it wants untrammelled freedom to just go off and do whatever it wants; it doesn't want to be hamstrung by the devolved administrations.

And just on the business of language, I wouldn't use the language of 'shared sovereignty'; I would just use the language of 'shared rule' as opposed to 'self-rule'. Devolution is essentially about, 'If the Scots want to go their own way along education or whatever, then they can, but the rest we'll continue to deal with in the way in which we've always done', and it's that mindset that has to be addressed and tackled. You can't just carry on as before without regard to the interests of Wales, Scotland and Northern Ireland.

Thanks very much. I'm back on paradox on the idea that we can't have what we need, and what we need we can't have. You asked at the beginning about whether the UK could survive. Well, arguably, there are challenges for the UK in trying to find a way through to some sort of more codified, formalised written constitution, but equally there are challenges for the UK if it doesn't have that kind of arrangement. In parenthesis, there's a huge elephant in the room that we haven't discussed at all, really, except indirectly, politically, which is England—

—so, talking about devolution without addressing that hoary old chestnut of the English question, in various kinds of ways. And I'm reasonably sceptical about the idea of addressing the English question by regionalising England because there is a question about the good governance of England, which regionalisation begins to address, but it's not clear to me that that addresses the national English question.

But I do also think that this is bound up with Westminster and sovereignty, and I take all the technical legal points. I haven't worked this through in my mind, so I'm saying something in a tentative mode now, but I can't help feeling—increasingly I'm feeling—that the ceremonial around Westminster, which attracts so much attention, and particularly from people like us, as constitutional anoraks, strikes me as actually being part of the problem. And maybe it's part of the way that the UK Government is empowered by this kind of strange—I have Harry Potter Hogwarts in mind—magical place where things happen according to rules that the rest of us don't really understand. All kinds of things in the Brexit business have been kind of dragged out of history and used as instruments by both sides, actually, to achieve various kinds of things.

So, the reform of Westminster to make Westminster feel more like it's a modern legislature might actually help to address some of these questions about what the role of Government is, what kind of power the Government in Whitehall gets from Westminster, and so on. So, that would be maybe a move in the direction of codification—

11:45

You talk about the lack of reform within Westminster itself. What is the function of Westminster?

What is the function, but also what are the processes, what are the procedures? In the last little while, we've suddenly talked a whole lot more about humble addresses. We've talked about what Queen's consent is as opposed to Royal Assent. These are baffling byways in the history of Westminster procedure that suddenly become important and contentious, and that strikes me as a problematic situation, particularly when most of these things long predate any sense that Westminster was a democratic legislature. It may have been a representative legislature, but democracy is a much, much more recent invention, all of which is, I guess, sobering and might be seen as pessimistic. But in the spirit of trying to be optimistic and thinking about practical steps that are built on principled but small steps, I also think we ought to be thinking about what, in the language of the Belfast Good Friday agreement, is called the totality of the relationship amongst the peoples of these islands. Because despite the fact that you have a very strongly pro-devolution but also pro-UK Government in Wales, you have a Government committed to independence in Scotland, you don't have a Government in Northern Ireland, and whatever constitutional future there is, we're still going to be on these same bits of rock in the north Atlantic and we will still need to find ways of relating to one another.

I come back to the common travel area. So, after the free state and then the Irish Republic became independent of the UK, nevertheless in very practical ways, in effect, a kind of shared citizenship practice across two states, where one had just fought a war of independence from the other, did develop, which has been misunderstood and misnamed as if it was about travel. Actually, the travel bits were often put in abeyance, but any UK passport holder or Irish passport holder could live in the other state and enjoy what were, in effect, more or less the full range of citizenship rights and claim benefits, vote in almost all elections, with some exceptions in Ireland.

But if we think about it in terms of using that infrastructure in a spirit of mutual respect, there may be a way in which you can build on something that could be robust, with respect to the different constitutional ambitions of different parties and different places across these islands.

Okay. I'll go to Michael, and then I'd like to bring Andrew in on this section.

Yes. Going back to the shared sovereignty bit and the question that Suzy asked a moment ago, I like the idea of shared sovereignty, but it doesn't mean very much in itself, unless you look at the implications. I think it's more important to focus on that. There are common law jurisdictions that don't have a sovereignty clause. The Canadian constitution doesn't and, as far as I know, the Australian constitution doesn't, and they get on fine without it, And every now and then, they have a referendum in Quebec on sovereignty and it becomes entirely theological what the notion means. What we want to think about is what that would mean in practice. In practice, the notion of shared sovereignty would mean, at some point, there has to be a limitation on what Westminster can do. It's not omnipotent—that's not the same thing.

We could have a formal doctrine of the sovereignty of the monarch in Parliament, which is what we could have, but it doesn't mean that you have supremacy or hierarchy. That's a separate thing. I think this is what Jo was getting at—these are separate things. So, you could have—. Well, let's talk the language of the sovereignty of the monarch in Parliament, but let's understand those institutions in a much broader way, and the division of powers amongst those institutions can be entrenched, and I think, therefore, it's important to focus on those kinds of issues. Absolutely critical, though, is that as long as Westminster is allowed to say, 'We're not only sovereign, but we're also supreme; we can intervene any time we like in the devolution settlement', then that's going to be a problem.

11:50

So, that's the elephant in the room in terms of constitutional change and, certainly, moving in the direction that Welsh Government's been talking about. Andrew, in your paper that you've circulated—and I think everyone's had it—you, of course, do talk a bit about federalism. And, of course, at the moment, the debate as it's emerging talks about independence, federalism, confederalism, decentralisation, and so on. Much of the debate is very imprecise as to what people mean about these terms, let alone the consequences of what they actually mean in reality. What do you feel? You've put quite a strong view, in effect, which seems to fit in quite strongly with this notion of a shared sovereignty.

Yes. Again, I think focusing on terms can be the enemy of a useful discussion sometimes. In the same way that talking about a written constitution can be a distraction from, 'What are we actually trying to achieve here?', and it's the same thing with federalism. But looking at the Welsh Government paper, I think one thing they're talking about there is the House of Lords, and, again, we're getting into radical reform territory here, which I'm not saying is going to happen immediately, but I think the proposal they're making that there should be a place for the territories of the United Kingdom in a second chamber does speak very much to lots of the things we're talking about here.

And I actually agreed very much with Jack's point that actually, yes, we may be talking about, 'We want attitudinal change; we want behavioural change on the part of the UK Government', but actually, until the underlying power structures shift, I don't think you're going to get that, because, in the end, you're going to have a Government that, yes, is distinct from the UK Parliament, but in the end, normally, or often—we'll see what happens in the future—it will have access to the use of parliamentary sovereignty because it's a Government, because normally it's got a majority in the House of Commons. It can get stuff through. While that's there as an option, they're going to use it.

Now, one way of dealing with that is to have the second chamber containing, in some way, the territories within it. Now, that could be the devolved Parliaments and Assemblies electing members, so you've got an indirect election process, but some mechanism whereby actually, to get stuff through at UK level, they will know that, for instance, if they're negotiating a treaty, as happens in some federal systems, they will have to get the approval of whatever you want to call it—'the senate', or 'the second chamber'—in order to get that. That's going to change the whole way they approach it; that's how you'll get that attitudinal change. Now, I'm not saying we're on the brink of that, but if we're thinking seriously and if we really think that we're going to get a different kind of constitutional system with different attitudinal approaches, we're actually going to have to change those underlying legal structures, in my opinion, which comes back to parliamentary sovereignty, which comes back to what I was saying about written constitution at the beginning, in that it's not a document that does everything but it might have to actually really address these fundamental things if we want to change.

And let's not forget—to finish this point—we have tried writing down things in codes that were not fully legally binding for quite a long while now in this country. At UK level, we've got the ministerial code, which used to be 'questions of procedure for Ministers'—Attlee introduced that. Those things have been going for a while. We had the memorandum of understanding. Those things maybe work a bit better if you've got Labour Governments at every level—I don't know—but we've tried doing the non-legally binding codification route for quite a while and I think it's now been found wanting, so where do you go? We've also tried putting conventions into statute, so—.

11:55

Thanks. I think I generally agree that it's probably not that helpful to take these big ideas and try and use them to define premises, but one of the reasons I do think it's worth keeping parliamentary sovereignty in the conversation as a comparison with shared sovereignty is that parliamentary sovereignty's not just about whether there should be boundaries on the UK Parliament and the relationship between the devolved legislatures and the UK Parliament; it's also about who should police those boundaries if they exist, and how they should be defined. So I think one of the reasons thinking about how you could define a more formalised constitutional structure that retains some sense of parliamentary sovereignty in there is interesting is because it pushes us to say, 'We'll not just fall back on easy solutions like, "Well, let's put some limits here and the courts can enforce them and that's all fine"', but to say, 'Can we think of more elaborate political decision-making mechanisms that allow us not just to see these as limits between the power of the devolved institutions and the UK Government, but also to create opportunities for engagement between them as well?'

So I'm worried that we lose sight of that, because we see in devolution the best examples of the courts going too far in a policy-making context. In Wales, in the asbestos reference case, we see an example, for me, of the kind of thing that parliamentary sovereignty helps us avoid—of courts being pulled right in to hearing the legality of policy issues. In Scotland as well, in relation to the named persons case and other failed challenges as well. So, I think that's one of the reasons parliamentary sovereignty remains important in this debate, because it's not just about whether there should be limits on the UK Parliament's power, but who should define the limits and how they should be enforced.

Does the suggestion that's been made for quite some time, and through a lot of the constitution committees—? I attend the inter-parliamentary forum, which is an interesting body in the way it's developing and pulling—. You know, it's the first time you've had, from across the UK constitution committees and devolved governments, some sort of overarching review. But there seemed to be a very consistent line of thinking, which was that the JMC, the Joint Ministerial Committee, provided a mechanism, firstly if it were reformed to become a—whether you call it a council of nations, Ministers, whatever—but that with the right resources and the right framework, and a disputes mechanism, you would actually have almost like a hybrid, perhaps a quasi federalisation. Where it led to was one thing, but it might provide a mechanism for the immediate issue in terms of what is seen as an imbalance or dysfunction within the constitutional relationships. What is your thinking on that? Because that seemed to have gained quite a lot of traction.

I find that model very attractive, I have to say. The idea of a council of Ministers that does have a hybrid set of functions, that is about collaboration, but is also about providing formalised processes for resolving disagreement; I think that's a very attractive model to explore, particularly if it's appropriately funded and put on a statutory footing as well, to give it the degree of constitutional weight that I think it deserves. That's exactly the kind of institutional experimentation that I think is necessary in this context, rather than falling back on tropes like, 'We need a codified constitution, enforced by the courts, and that will solve all of our problems.'

I'm all for a formalisation of the JMC, certainly, but that only deals with one set of disputes about the limits of devolution, which are inter-governmental disputes, which have actually very, very rarely broken out into public disputes. Also, most of the devolution cases that have been brought have been brought by private individuals or campaign groups or firms. Those kinds of disputes are not going to be got rid of by a JMC process, and I just find it quite difficult to imagine a system of divided legislative competence in which individuals wouldn't be able to bring disputes before the courts, or in which, even if you got rid of the statutory mechanisms in the devolution statutes, the courts wouldn't develop the common law to allow those kinds of disputes to be brought. So I think we just have to bear in mind that there are different directions from which competence questions can come before the courts.

Suzy was asking earlier for common law examples. I can't give you a common law example, but from the discussion we've just been having, I'm going to give you a French example. Sorry about that.

So, we've gone back to Napoleon again. The reason I want to draw on it is because they have had, since the constitution of the fifth republic, since the recent reforms, a kind of dual process, so you have both ex post facto constitutional review and prior constitutional review. And the idea of prior constitutional review is you have a group of MPs who can send it up to what they call their constitutional council, which has an interesting composition that I wouldn't suggest replicating. But it has that ability to have these political references as well as the legal references afterwards. I think it's about how those interact.

So if you were to use that, by analogy, you wouldn't just have an aspect of the JMC where you debate this, but if there were concerns in one of the devolved nations that there was a piece of legislation that was trespassing too far, then you'd be able to make a reference, a bit like you have at the moment with your preliminary references for Welsh legislation and Scottish legislation, which can go up to the Supreme Court. But before it got Royal Assent, it could then go to a more political, more conciliatory body to look at the constitutionality of it, and then you could have a legal backstop as well.

But that's going to require very careful selection of who is on that body. Do you want it to be political or legal? How do you make sure you've got sufficient balance from the different component member states to make sure you have that discussion? And you're going to have to have money for it and somewhere for it to go, or to move around if you want to make sure it's got somewhere to go. So I think there are examples and models out there, but they're not going to be easy to just transplant across. But I do like the idea of having this combination of having the references beforehand, but also having the legal backstop for, as Aileen has pointed out, where you can have problems where it looks as though it's fine, but then in an individual application, suddenly you realise that, actually, that might cause issues or transgressions of the different devolution of powers, so you need the backstop as well through the law. 

12:00

If I can go to Akash and then to Jo, and then what I will do is take a five-minute break so that everyone can have a quick refresh. What I'd like to do in the second half would be to try and focus a bit more precisely on some of the practical options that there may be going forward. Akash. 

Thank you. On the Joint Ministerial Committee, which you asked the question about, I think the reason why it hasn't needed to operate in a more formal way through most of the history of devolution is precisely because there haven't been those areas of shared rule. As people have said earlier on during the discussion, the model of devolution was, so far as possible, to have a clear division between what was devolved and what was reserved. It was slightly messier for Wales, but that was the model to which we were moving.

But Brexit, of course, does change that, and in the areas of common frameworks, we know that there's been fairly slow progress on the review of inter-governmental relations and on the development of the frameworks in those areas where there's this intersection between EU and devolved competence, but a recognition that the nations are going to have to work together after Brexit, assuming that happens. So it's in those areas, I think, where we are going to need to see quite a different approach to inter-governmental relations and something that is based on co-decision and co-design of new shared governance arrangements. And it's because those are the areas, of course, where the UK Government will be operating for England. It'll be operating as the English Government, even though that's not usually recognised.

In other areas, it might be that we need stronger inter-governmental systems as well, for example, around the negotiation of trade deals. But in that case, I think the arrangements are going to look quite different, because the UK Government will still be acting for the UK when it goes onto the international stage to negotiate, but it will need to do so having taken into account devolved views and with some kind of recognition of where the international deals will impact on devolved arrangements. But that goes back to this question of it being quite unhelpful that the UK Government wears these different hats at different times and for different policy areas, and I think that leads to quite a lot of the confusion about how it should therefore interact with the Scottish, Welsh and Northern Ireland Governments.

Thank you. It's, yet again, not an answer to your request to have some models from other common law jurisdictions, but to reflect a little on the EU practice. Of course, we don't really talk about shared sovereignty in an EU context, because the EU is not sovereign. It only has the competence that the sovereign nations have attributed. But we see those experiences of shared rule and shared governance and, of course, most of what the EU does is in that realm of shared governance. So, we've got a lot of experience to reflect on from that.

But, of course, what's absolutely critical in the way that happens, what goes on there, and has been for the last 30-plus years, is subsidiarity. It's a recognition of the importance of that doctrine that it's at play, it's a system that's sensitive to that doctrine of subsidiarity. We've had in these committees that subsidiarity review of EU legislation. Now, there is a case for having something like that within a UK system that we see for the future—a subsidiarity test for legislation—and it's a way of finding that and making sure that the system acknowledges and respects those subsidiarity claims and it's whether we've got that at the moment. Sewel doesn't quite do that, so it's finding a new way of getting that respect for subsidiarity in the system. 

12:05

Subsidiarity is still sharing, isn't it? Because as the decision is made very locally—. 

Within that area of shared Government, where we share, in terms of deciding how that takes place, but it's starting from a bottom-up position. And so, it's capturing that. What we're moving away from, of course, as we leave the European Union, is those constitutional guarantees of subsidiarity that have been written through our system, which have been there throughout the history of devolution, as we've had that in the background. Now, if that's not being secured through any other means, we're left with a bit of a gap.   

Can I just call a halt for five minutes? We'll take a five-minute comfort break, a chance to get a cut of coffee, or whatever, and then come back refreshed. And then I'd like to focus on one or two areas, if we can do that, if that's okay with everyone. 

Gohiriwyd y cyfarfod rhwng 12:06 a 12:17.

The meeting adjourned between 12:06 and 12:17.

12:15

Right, we're back in public session. So, thank you for all your attention. We've explored a number of areas—quite complex and difficult areas. The question is where, certainly within Wales, we see ourselves going, where Wales fits in within the future structures and so on. We've talked about sovereignty, and I thought the very interesting point, in terms of one of the key things there, is that ultimately, presumably, there has to be some sort of limitation in respect of the way sovereignty is exercised. There may be differing views on that. We've talked a little bit about possibly the JMC and disputes procedures. We've only just touched on the English question, which might be the elephant in the room.

Can I start by—? What I'll try and do is get us to try and focus on one or two of these areas in a minute. But can I go straight on to the issue of Sewel? In the article 50 case, it was made very, very clear that Sewel was not justiciable, but that there are consequences—political consequences—in respect of conventions breaking down. And the way I've always seen Sewel is as the oil of devolution that enables the engine of the country to actually operate collaboratively. Obviously, there have been a number of challenges in respect of Sewel now. It is on the statute book, but that itself doesn't make it justiciable. So, I'd like really just some views as to, firstly, how is Sewel operated. Is it still viable? Does it need to become justiciable, and how might that operate? I wonder if you have any thoughts on that. Anyone like to kick off? Yes, okay, Alan.  

Well, I think the headline at the moment is that we have a massive stand-off between the Scottish and UK Governments. So, the applicability of the Sewel convention to all the Brexit-related legislation, which—as I understood from what Akash was saying, while we were having a brief break there, all of that legislation is coming back to Westminster; it's all part of the Queen's Speech. This is the Agriculture Bill, the Fisheries Bill, the Trade Bill, and so on. And the Scottish Government has made it absolutely plain that it will not seek the Scottish Parliament's—or move a legislative consent motion in respect of any of that legislation without, and this is the key issue, faith in the operation of the Sewel convention being restored. And the question is: how is that faith to be restored? And can it indeed be restored? And I did do a bit of investigation by way of preparation for this, and there is a letter to David Lidington from Mike Russell setting out the kinds of amendments to the Scotland Act that the Scottish Government would like to see. Basically, what they say is that, in those areas of devolved competence, the UK Parliament should not be able to legislate without the consent of the Scottish Parliament. Fine. The difficulty with that is that it changes the whole nature of the devolution settlement—it ceases to be a devolved settlement, which by definition way back at the start was one in which the UK Parliament continues to be sovereign, to something akin to a federal settlement, in which the Scottish Parliament or the Scottish Government could say, ‘These are our powers and you cannot trespass upon them.’ So—

12:20

Does that become more acute because of the need to establish post-Brexit frameworks? 

Yes. This runs through this whole area, and at the moment, as we all know, the establishment of frameworks is going forward on a consensual basis without recourse to legislative powers and so on. But, in relation to all of that, this legislation, primary legislation, the Sewel convention is absolutely critical.

I was just going to say, the dispute over the withdrawal Act, I think, revealed two fundamentally different understandings of what the Sewel convention meant, and in particular what the word ‘normally’ meant. So, the UK Government, I think reinterpreted it—I think it is a reinterpretation—in purely descriptive terms. So, they seem to understand what Sewel requires as being that they make an attempt to seek agreement, but, if agreement isn’t forthcoming and they regard that continued withholding of consent as unreasonable, then consent is not required and legislation can proceed without consent. The Scottish Government and, I think, the Welsh Government view ‘normally’ in normative terms, in constitutional terms, and so ‘normally’ requires an overriding constitutional justification in order to legislate without consent. And, in their view, and I would agree with it, in the context of the withdrawal Act, those constitutional conditions were not satisfied.

Now, of course, the difficulty is if there’s no arbitration between which is the correct understanding. The UK Government, if it can persuade the UK Parliament to agree with it, can go ahead with its interpretation. The Miller case deprived us of any option for judicial intervention. There are no procedures whereby the UK Parliament is required to reflect on that dispute in any particular case. We have elaborate procedures in the devolved Parliaments for assessment of whether the Parliament agrees with their Government’s assessment of the merits of the Bill, but in the UK Parliament there is no special stage, there are no explanations or reasons or anything like that required. What we do have, interestingly, in some of the Brexit legislation, and also in the withdrawal Act, is the beginnings of those kinds of procedures—we can see procedural models that could be built on—but they all operate on the UK Government’s assumption of, 'This is about reasonableness—it’s not about constitutionality'. And I think until you get that basic understanding of what Sewel means settled, you’re not really going to get anywhere with this.

Yes. Thanks. So, in terms of how it’s been used thus far since 1999, of course, the answer is very frequently and normally with relatively little controversy. At the Institute for Government we actually collected some data on it and found 202 Acts of Parliament since 1999 where consent had been sought from at least one of the three devolved legislatures. And, through all that time, there have only been 10 votes against consent—seven here in Wales and only two in Scotland—because, for the most part, where there were disagreements, they've been resolved earlier on in the process, which is what that system is designed to achieve. Aileen was mentioning how the UK Government seems to have reinterpreted the 'normally' word within the convention. The other thing that the UK Government seem to be reinterpreting—this came to light, I think, during the continuity Bill case in the Supreme Court—was to define down the convention back to the original wording, such that consent should only be sought where there was legislation in a devolved area. And I think the phrase used by the advocate general during the case was that it was only by matter of good practice, or a matter of practice rather than convention, that consent was only sought for legislation that was amending the competence of the devolved institutions, which seemed to me quite a bold statement that—

12:25

That was on the EU withdrawal Bill, actually. He made that claim. 

It was made at that point as well.

He made that claim during the 2016 Scotland Bill debate. He made it repeatedly.

Ah, right. Oh, so it preceded that.

And preceding the amendments too. 

But that is an area where, if we were trying to tighten it up—. I mean, at the least, it seems to me that the Scotland Act and Wales Act references to Sewel should include those other—the three pillars of Sewel, so to speak. 

Well, I'll come—. I'll come to Michael, who I know wants to come in on this, but just to say that this committee has scrutinised considerable amounts of legislation and, where there has been a dispute on competence, the response back from UK Government is, 'There isn't a dispute because we don't think there is a dispute', which comes back to the issue of: how can you possibly have an arrangement where there is no mechanism for resolving a dispute if one party says, 'Well, we don't accept that'? 

No, I'd agree with that. All I wanted to add as well was that I think there's a lot of merit, actually, in the Welsh Government proposals for how recognition of the consent process should be built into parliamentary procedure at Westminster, because I think that is currently a problem, that people aren't necessarily even aware—it's not a major part of the debate, and it therefore becomes quite easy for the UK Government, if it so chooses, to potentially push legislation through with limited accountability for that, even if consent hasn't been received. So, I think there's a lot of merit in that. Of course, one could go further and try to make it judicable, but that opens up other questions, as mentioned. 

Yes. We talked about the Sewel convention. In fact, there are multiple consent mechanisms: the original, Sewel, that applies to legislation; there's a mechanism for consent for transferring competencies by statutory instruments; there's the mechanism in the withdrawal Bill that has that very unhelpful clarification that if you agree, don't agree, or don't say anything, it all means the same thing, which destroys the whole point of a convention, which is that we don't know what the consequences are; and then there's talk about consent or consultation mechanisms with regard to international agreements. And they all seem to have different meanings and different provisions. So, there's no consistency there. That's worth thinking about.

And then the Supreme Court in the Miller case that we referred to said the Sewel convention is just political, and that I found extremely unhelpful because, between the black letter of the law and what is just politics, there's a whole area of constitutionalism, constitutional reasoning, conventions. Now, I can go back to Canada. The Canadian Supreme Court takes all that on board, and its jurisprudence says you've got to understand how the constitution evolves as a living document. Our Supreme Court hasn't done that, as, I think, Aileen was saying earlier on. Yes, it will give back to Parliament, it will patrol parliamentary supremacy. Beyond that, it's refused to do that. So, somewhere in that we have to recognise this law/politics distinction is quite unhelpful, that's it's an artificial distinction. That's not how constitutions work. Even written constitutions have that grey area.

So, we need some thinking about the nature of constitutions, because, after all—conventions, sorry—most of our constitution is based upon conventions, and then who's going to police? And, as several people have said, 'Who is the arbiter in all this?' Maybe we don't want it to be the courts, but, if not, something else has to be in position there. We did a paper for the Royal Society of Edinburgh that I keep on quoting that said, 'Yes, maybe we should have something like a council of Ministers with a secretariat, somebody to do all the homework, somebody to do the analysis'—ultimately, the politicians take the decisions, but it's not just the UK Government being allowed to take decisions and decide on what the criteria are and how they apply. That is really not good enough.

12:30

That's all right, thank you. Just to pick up on that, I think the difficulty that you have is it isn't necessarily going to be suited for legal resolution until we have a consensus over what the Sewel convention is meant to mean—that is more political and that does involve interaction between the legislatures and not just the Governments as to how the Sewel convention should work. Aileen was pointing out the difference of the descriptive and the normative side, but there is some element to that of, if you have a complete assent point, then it can be abused on both sides. It can be abused by one side asking and not caring whether you agree or not, and it can be abused by the other side deciding they're just going to disagree to absolutely everything anyway, regardless. So, you need a mechanism to make sure that it's policed effectively.

I think one of the issues that's come through here is that we need to understand what 'not normally' means. I think that's got to be resolved by more political debate and discussion. So, you can point at things like 'it's not normal' means because you need an emergency legislation, so something similar to Part 2 of the Civil Contingencies Act 2004—it's urgent, it's necessary, it needs to be pushed through, because unless you have this resolved quickly, there's going to be a big disaster. I think there'd be a consensus that 'not normally' would fall under those, but beyond that, I don't think there is much of a consensus, and I think you need more collaboration.

I also think you need some form of independent arbitration panel to try and deal with disputes before it gets to the legal dispute side. So, this time I'm not going to France, this time I'm going to the—. The withdrawal agreement, which may remain hypothetical or may come back, who knows—but when that was talking about the joint council to resolve disputes, with regard to the meaning of what the withdrawal agreement meant, whereas the joint committee, where you had this element of membership from the EU, membership from the UK and you nominate your chair, something along those lines, that then went to arbitration issues—it might be worth exploring as to whether you can get more collaboration as to what the Sewel convention is meant to mean.

Well, of course, we have. The interesting thing about Sewel, of course, is it's there in statute now—in the Government of Wales Act, and in the Scotland Act—what value, what status that has. It just seemed to me that certainly it was a bit more than what it was, it's just that it seems the courts have been—. And in fairness I suppose, in the article 50 case, the issue of Sewel wasn't put as a front-line issue in terms of justiciability, and most certainly I intervened in respect of the Welsh position, and justiciability was not argued. It was the issue of actually getting it recognised as an important principle, which we felt wasn't—. So, clearly there are issues there. Michael, you wanted to come in on this.

It links almost to the point you were just making as well, in fact, about the way that that convention has been captured in statute. It was very clear in the drafting process that this was intended to be written in a way that made it not justiciable in exactly the kind of circumstances that were raised in the Miller case. The language was 'it is regocnised', there were all sorts of attempts to dilute the significance of it, and the debates showed this was about showing the significance in a non-enforceable, at least in judicial terms, sense. So, you could go back to that clause and look to edit it. Now, that doesn't solve any of the problems that everyone's identified about the differences on both sides between how the thing should be understood and how you put 'normal' in there. But you could go back and look at some of that language and take away that qualification. It is possible to do; I'm not saying it's easy to do—

It does mean, does it not, though, that Parliament has said that the convention is there, it's there in statute, and that Parliament clearly has to operate the convention? There must be some justiciability at some stage if there was a blatant complete avoidance of it. It seems to me that there is an issue around it, but it's the uncertainty around it and the fact that it is not there and no-one can determine what it might or might not be that's the issue. Is that—?

I would see it less as being a scale about at a certain point of egregious conduct then the clause becomes justiciable, because I'm not sure that that's the way I would read the drafting of it. I would honestly say instead that what it was designed to do was give weight and prominence to the Sewel convention, and when the UK Government violates it, which it obviously has done in this case, it adds constitutional weight to the objection, because we can say, 'And this is something that you committed in legislation to respect, and still you won't respect it.' So, I think it adds constitutional weight in a different direction. I would certainly be open to going back and looking at the language again.

12:35

I don't want to jump in, but I take your point that if you look, that might be what the intention was. But I think the intention, in some senses, was to draw that element of seriousness there. If you recognise it in legislation, then you're supposed to be recognising this is the important constitutional principle that's supposed to be sending a message that says, 'This is important; this is an important constitutional principle.' Now, the difficulty with just making that enforceable politically is you have an imbalance of power, because we know we have a situation where Westminster can legislate and Westminster has parliamentary sovereignty. So, it's very difficult in an imbalance of power to just have political recognition unless you have some enforceability mechanism to redress that power.

I think where it was missed was the point that Michael was pointing out earlier with regard to Canada, because there was the reference procedure in Canada, it was easier for the Canadian Supreme Court in their case—it was a similar aspect of what you do with these conventions—to say, 'Well, it might not be unlawful but it's unconstitutional', and that can then send a message through. And I think there's a possible missed opportunity here to have said, 'Well, it might not necessarily be unlawful because the specific way in which the legislation is worded, but nevertheless, the point of this is to recognise it's an important constitutional principle. It's unconstitutional to act in this way, and I'd go away and see what you want to do about that.' I think that was a missed opportunity.

It creates justiciability aspects, but by pushing it to say it's unconstitutional but not necessarily unlawful, you're pushing it to trying to get resolution between the Parliaments and the Governments, and I think that needs to be done.

I agree with what Alison said. I think the court could quite easily, in Miller, have done something with the Sewel convention. I mean, the idea that judges can't judge what is or is not normal constitutional behaviour has just been demonstrated in the most recent case. So, the language issue was a red herring, as far as I was concerned.

I think Alison's absolutely right, the court could have made a declaration about the meaning of the convention. It was an advisory ruling in the Miller case. It wouldn't have invalidated anything at that stage. There was no direct challenge to parliamentary sovereignty. They just didn't want to go there. But given that you have an 11-judge ruling of the Supreme Court saying that the Sewel convention is, in no circumstances, justiciable, it's really problematic to see what role it could possibly have. I thought that one residual effect might be that it acted as a tool of interpretation for the Scotland Act. But in the continuity Bill reference case, there was no use made of the Sewel convention in that way. It was referred to and then just completely ignored. And, in fact, the powers of the UK Parliament in that case, again, were interpreted in rather an expansive way. So, I think it's dead. As a justiciable principle, it is dead unless some major rewriting of the Scotland Act, the Wales Act takes place.

Yes, but you would say there is a need for a means of delineating between the exercise of powers.

I think there are because the political sanctions are clearly just not there.

I was just saying, I think we're talking a lot about the intentions behind putting Sewel on a statutory basis. It's worth remembering the kind of circumstances in which that legislation came about, which is a panic during the last stages of the 2014 Scottish independence referendum. Gordon Brown drafted something, got the leaders of the three main UK parties at the time to make this vow, which didn't actually refer to Sewel, I don't think, but then they introduced legislation that was basically saying, 'We think devolution is really important and we're going to say something about it in law.' And that's about the genesis of it, in my view, and I think it's that.

But I think, also, I'm finding it interesting—there seems to be a consensus that it's axiomatic that judges getting involved in deciding things is bad. I would like to press on that, or if that is developing, I'd like to challenge that. I also think, if we don't like it—even if we don't like it, I'm not against it. I'm not a lawyer, but I'm not against judges getting involved—I think we'd better get used to it because I think going forward, the legislative mess that's probably being generated as we speak is going to require judges to sort it out.

And finally, I think all these discussions—we are skimming around the basic problem, which I alluded to at the beginning, of parliamentary sovereignty. In the end, if you've got one body that can overrule all the others, what are you going to do about it? You do need to actually address that. And whether you want to call that a written constitution, a federal constitution, or not, there's something that has to be done about it, which is quite fundamental, if you're committed to the union carrying on.

12:40

Yes, just to go back—. Well, Andrew's raised the question of the genesis of it. It actually came out of the Smith Commission. It was one of the Smith Commission's recommendations that—and I think I quote—it be put on a statutory footing, that the convention be put on a statutory footing. And I think the parliamentary drafter and those instructing him or her must have laughed when they actually wrote the clause—[Laughter.]—because that's exactly what they did—they didn't water it down, they wrote it using exactly the same words that Sewel used. And the fault—if there is a fault—actually lay with the Smith Commission, in just that one-line recommendation without actually pushing to say, 'Well, what, actually, are we trying to—what is it that we're trying to get here?'

Going back to a point that Alison made—and this also resonates with a lot of the comment after Miller—that this is not worth the paper it was written on, I'd disagree with that. I think it's evidence of a solemn political commitment. It's the highest form of commitment you can make under our constitutions to write something into an Act of Parliament. And the point is that it has to be matched politically by those who are charged with actually operating the convention, negotiating legislation with the devolved administrations. And it's at that level I think there's everything to be gained by saying, 'Look, we need to work out what this actually means and the circumstances—fingers crossed, we hope will never actually arise—in which the UK Parliament would be in a position of overruling or not accepting a legislative consent motion from one of the devolved legislatures.' So, I think the business of elaboration and amplifying the convention, what it actually means, has to be part of the inter-governmental agreement or agreement on those governmental relations that we're talking about.

I just want to make a general point about the purpose of constitutional law in this context. For me, the political test you apply with a law is whether or not it actually frames the terms of justification, which the Government uses in political debate when that particular principle is invoked, and I think the problem with Sewel is that it's not doing that work in terms of creating a culture of justification around the devolution arrangements.

I think back to when I was in the Commons library, and I think it was the White Paper preceding the withdrawal Act—it was the White Paper on the repeal Bill—and I think the devolution section in that amounted to half a paragraph. I mean, it was an insult, I think, to the idea that devolution was a central part of the constitutional framework, and I think that's what you've got to look at, and you think about that in the context of human rights and the rule of law. If the Government doesn't feel like it has to justify in detail at the outset how it's engaging with a particular principle, then I don't think the principle is working, because it's just not embedded sufficiently in the culture.

Can I—? Sorry—yes, Dan, if you could be quick, I want to move on.

Building on that last remark, I do think this takes us back to the culture in Westminster and Whitehall, and the non-recognition of, or the absence of a full recognition of what it means to operate in a system that has devolved authorities. And it goes back to this question, I think, of self-rule and shared rule, and the operation of devolution, whether designed deliberately or not, having been initially in a really very compartmentalised system of domains of encapsulated self-rule, and the difficulty of moving into more and blurrier areas of shared rule—Akash talked about this just before the break in relation to Brexit. But I actually think those changes were already happening in ways that haven't been widely recognised, in particular around fiscal and social security rules. The block grant system has been widely and, in many ways, rightly criticised, but the extraordinary situation where the Treasury decided on how much money was going to be given to Scotland and Wales and Northern Ireland and then paid no attention whatsoever to how it was spent allowed this separation out of encapsulated areas of self-rule. As soon as you have significant tax powers and also social security variation powers, it seems to me you already have an area of policy making that needs to be shared and managed, even leaving aside the Brexit legislation. So, we've got this in spades without anyone really having paid much attention to it.

If I may, part of the problem here is that we do go very quickly to dispute resolution, and actually it's worth distinguishing the ordinary mechanisms of collaboration across governments and parliaments, which happen in the shadow of the dispute resolution mechanism at the end. When we talk about the JMC, for example, JMC (EU Negotiations) hasn't really been about the European negotiations. It's worked much more than previous JMCs, but it was actually mostly about the withdrawal Act. So, we have things that apparently are developed for one purpose and get repurposed to fill this gaping hole where the hierarchy, in political terms, of Westminster remains, I think, the key problem. Unless that culture at Westminster shifts, and it's not clear to me what mechanism is going to do that—

12:45

In terms of how acute some of these constitutional issues may be, for example, you have a clear conflict beginning to appear in terms of, for example, the shared prosperity fund, in terms of the whole issue of the separation of finance and then the decision making, the usage of it that is emerging. And that is a constitutional conflict where it is difficult to see what the mechanism for resolving that is going to be. We're very wary of time, and I know, of course, that the External Affairs and Additional Legislation Committee, some of you will be giving evidence to that later on as well. But let me put this to you: we haven't said very much in terms of constitutional change and, I suppose, the English question—where England fits in within all this. There are various dynamics—what might happen in Scotland, obviously Northern Ireland, where Wales fits within it, where Wales and England are in particular were events to change within Scotland. But it does bring us back to what it seems to me was always the main constitutional lacuna in the Scottish independence referendum that no-one seemed to be able to answer, and that is: what is the purpose of the UK? Should it exist? Why should we be part of it? What are the reasons for it? It seemed to me that was never answered, and everything ultimately seems to come back to that one question: what do we want within Wales, or within the UK, for that to look like in the course of the next 50 years or so? I put that provocatively because I know there isn't a lot of time to deal with it, but I'd appreciate any short, succinct comments from anyone around the table about what their thinking is. And perhaps one other thing is what the consequences are of not reforming the constitution quite radically. Anyone want to kick off? Aileen.

I think it's a very difficult question to answer, and if you look at the Act of Union Bill and its attempt to define the purposes of the UK, it's either tautology—the purpose of the UK is to create a strong and effective union—or it's banal stuff that could be said about anything, such as to promote the rule of law and protect human rights and all of these things. Why do we need a union to do that? Why could they not be done in other ways? So, it's very difficult, and one of the reasons it's so difficult is because we don't have a teleological constitution. We have a constitution that has, in terms of its substance, until relatively recently, been very, very thin. So, we're not used to thinking about the purpose of union, and there's no easy set of answers to these questions. In terms of where you draw the line between reserved and devolved competences, different understandings of the union give you different answers. Should welfare rights be common? Can they be devolved? Is immigration a purpose of the union or can that reasonably be devolved? These are intensely political questions where trying to—

No, I just want to back up everything that Aileen has said there. I find that unionists now struggle to articulate what the union is all about. It's clear they've lost something because they're so obsessed in talking abut it. If it was there, you wouldn't talk about it. When it was just banally accepted, you didn't talk about it. The Constitution Reform Group do a typical thing—they just write in a load of banal values. I think they took everybody's manifesto, actually, and put it in there and said that's what unites us. But it's just a kind of shopping list of things— 

12:50

Well, no, because that would presuppose a search for consensus. What I think we need is something to manage the relationships—what Dan reminded us about—the totality of relationships amongst the people of these islands, with multiple different goals and multiple things, and they then would all add up—how can we live together? That's important, and that's what we should focus on, drilling down to the foundations and trying to get us to agree on the foundations, because we never will agree on that. But we don't have to. 

Okay. Who wants to come in on that? Sorry, does anyone want to come in on that? Well, can I ask one thing, then? In terms of reforming the constitution, it's all very well us in Wales saying, 'This is what we want', as we've been bashing away often, and all our calls for some form of convention or some form of pan-UK discussion fall on deaf ears, and that creates its own reaction in terms of how people perceive themselves within the UK, particularly at the current time. So, how should we move forward in terms of looking at pan-UK constitutional reform? Is it feasible? What are the consequences of not doing it? Dan.

I indicated I wanted to speak before the last bit of your question, which has made things much more challenging. I said earlier, and I'll stick to that, that I think we're in a paradoxical situation, where, if you were looking at this from the point of view of the union as a whole, what the union needs it can't really have, and what it has doesn't really help. But I would say something slightly different on the point about constitutional conventions—slight difference of emphasis. I think that we are going to get various forms of experimental democratic minipublics in a variety of different forms, over the next period of time. I think if you're hoping to use them as a means of coming up with the answer, then I entirely agree with Michael that that's a forlorn hope. But if you think about them as a mechanism for trying to extend debate, then I think you could look at them in a rather different sort of way.

I think, yes, extending wider debates amongst mass publics but also in other places, at Westminster—. We've referred two or three times to the absence of a moment when Westminster reflects on things like Sewel. So, I think, rather than just saying, 'This won't solve the problem', there's an area here in which I think a wider debate, and engaging in that debate exactly in the spirit that Michael mentioned, of how we think about the totality of the relationships amongst the people of these islands, is the right way. 

Just very briefly to say I'm supportive of the constitutional convention idea and the proposals around citizens assemblies as well. Long, and rightly, has the critique of constitutional reform in the UK been that it's ad hoc, it's piecemeal, it's elite driven, that it's just up to the politicians to define what they like, and I think that's got to be at least part of the answer to responding to that. I certainly don't think they will be a panacea that will solve everything or, indeed, that we should go into them looking for a codified constitution to emerge from that, but I think trying to expand the forums for debate across the UK about the shape of the constitution has got to be a part of the solution. Whether it will happen is an interesting question, especially given Brexit is all-consuming, so you're thinking, 'At what point is it right to try and have those conversations?' That seems to me to be the hard thing. I think they probably are inevitable that—

This committee did, at some stage in the past, suggest a Speaker's conference as a means of taking it out of the rather toxic confines of the politics at the moment to actually reflect on the broader future. I don't know whether there are thoughts on that; certainly, we discussed it at the inter-parliamentary forum. We'll go to Alison and then to Andrew. 

Just to second what Dan and Michael have both been saying, but to do so by emphasising what I think is a further danger of not doing this. The danger we've been focusing on is, I think, a real danger, which is the danger to the union, and I think we do have to think very carefully about whether we value the union and whether we want to take the union forward and, if so, how we do so in a way that respects all the component nations of the union. My deeper worry is that unless we take a step back and discuss why we have these constitutional values, why we believe in the things that are listed in the core principles of the draft act of union Bill, why we see this as valuable, then we run the risk of collapsing further and further into the dangers of populism, because we have no element of values to engage people so that they feel they're engaged in discussing these values. It's very hard to explain why we want diversity if we haven't take a step back and discussed amongst the different citizens why they value these particular core principles. For me, without having that discussion, that evaluation, even if you don't get a written constitution or a codified constitution, I think it's crucial that you take a step back and discuss why we value the things we value in this country.   

12:55

I think the Speaker's conference idea is an interesting one. We're going to be having a new Speaker coming in; that could be a moment for them. I don't think we necessarily should wait for a UK Government to take on this idea of some kind of convention; you might have a long wait, who knows? 

As has been said, the minipublics idea is attractive, and I would be supportive of some kind of exercise along those lines, certainly. It's got to be clear that that's not a way of just dumping the problem onto some other body. The politicians have got to actually show some leadership on that, maybe say what it is is they'd like this thing to look at, and also give some kind of indication that they will take seriously whatever comes out of that exercise and, at the very least, put it to a vote in whatever format they can. So, it's an important idea, but it's got to be a partnership; still the politicians have got to be central to all of that if it's ever going to work. Ireland has been a good example of how that partnership can work, so I would definitely recommend that. I think that's something it would be good here in Wales to look at possibly taking a lead on.    

Just a very short point. I just wanted to make a point about restoration and renewal in this context—the idea as a moment that links to something Dan was saying something about culture and different ways of looking at parliaments and their role and stuff. I haven't thought about it enough to really put the two and two together, but I think the moment that MPs move out of the Palace of Westminster will be quite significant, and symbolic in terms of the symbolism of what that might mean. There was an initial backlash, I think, to the idea that the new chamber would be identical to the older one, or look very, very similar, but there is clearly an opportunity there—I don't know how set those plans are—for something that does represent a moment of change. 

Just to say that I think that deliberative mechanisms involving citizens are part of the solution, but I don't think a grand, all-singing all-dancing constitutional convention—we talked before about the idea of a written constitution and scepticism towards it—would be the right model. I find it hard to imagine a citizens' deliberative process coming to a conclusion and designing a whole new constitution, but I think if it were given specific questions, specific tasks—. For example, one that may well come up after a future election at Westminster could be electoral reform if we have the party system fragmenting. Citizens assemblies have been used in Canada, for example, on electoral reform. That's the kind of scale of issue, I think, that would work for a citizens assembly to tackle, but you do also, as Andrew just said, need to be clear about how, whatever comes out of a deliberative process, it will then feed into parliament or be potentially put to the people in a referendum. 

Okay. Can I thank, unless someone's got a desperate last word on something—. Firstly, we've been discussing this now for about two hours, and I very much appreciate the intensity of it. There will be a transcript of the debate—it will probably be quite a voluminous document now—that will be produced and will be circulated. Can I say also, as this continues—and, of course, events are fluid at the moment, as well—any further comments or thoughts that you have on some of the issues that have arisen—? Because the key thing for this committee is that, at some stage, we will be putting recommendations to Government in terms of, 'What are you going to do about it? How do you think you should proceed? What might be the mechanisms for actually developing a debate on an issue that I think everyone recognises is of considerable importance and that there are significant consequences to not actually tackling some of these issues?' How they're tackled, as clearly shown from today, is not an easy matter. So, firstly, thank you, all. The transcripts will be on the way, and we're moving to close the session now. 

13:00

Daeth y cyfarfod i ben am 13:00.

The meeting ended at 13:00.

Archwilio Cynulliad Cenedlaethol Cymru