Fake LCMs are a danger to the Assembly

Daran Hill argues that Plaid Cymru’s plans to table a Legislative Consent Motion on Article 50 put the Assembly at risk of becoming a talking shop.

As someone who campaigned vigorously to establish the National Assembly, I was always especially nervous of the institution being described as a talking shop. I have remained concerned when it has on rare occasions behaved as such. One such occasion looks like it is about to present itself with the threat by Plaid Cymru to table a Legislative Consent Motion in respect of the Bill that will be shortly presented to the UK Parliament.

Let me give this a clear context. I respect right of Supreme Court to decide on matters of law as it did today. I am delighted that Parliament will now be asked to legislate on triggering Article 50. To my mind, that is what “taking back control” means. But I also respect its entire decision, not just the bits I like. The ruling of the Supreme Court was clear: as LCMs are a convention, they cannot be interpreted as law. They are a matter of convention and consent and are not legally binding. However much that truth undermines devolution and however much it destabilises relations between the UK Government and the National Assembly for Wales, it is still a legal truth. If the UK Government does not choose to facilitate an LCM, it does not have to draft one, lay one, note one or respect one.

Having looked at the Standing Orders of the Assembly, section 29 is pretty clear on the rules surrounding the tabling of LCMs. It does not confine them to the Welsh Government to lay, and allows other members to lay LCMs. But they must be either “within the legislative competence of the Assembly” or “which modifies the legislative competence of the Assembly.” The Brexit LCM would not, to my mind, meet either of these criteria and that is the first reason I don’t think that the LCM should be permitted.

Secondly, if this LCM is allowed then what is to prevent other members and other parties from tabling other LCMs outside the legal competence of the Assembly. It could happen every week on every topic imaginable. The place would be full of sound and fury, but its action would be signifying nothing. In fact, if you wanted to discredit devolution and turn the Assembly into a talking shop it’s a great tactic.

There is also the issue of politics versus law. As the Supreme Court has ruled in the way it has, such an LCM would be political rather than legal in purpose. But LCMs are blunt legal tools to facilitate smooth legislation in a devolved framework. They are generally not contentious, mostly not debated, and rarely ever rejected. They are not the equivalent of debates and I worry this fake LCM tactic will see them turned into something they are not.

Let me be clear on another point. I have absolutely no problem with the National Assembly taking a vote on a motion on Brexit. They have done so before and they will do so again. But there is a big difference between a motion and an LCM. A motion can be amended and it can build consensus. Plaid and Labour started the week by coming together to jointly launch a Brexit White Paper for Wales. Twenty four hours later they were pulling in different directions over tactics to make their points and their voices heard. Welsh Counsel General Mick Antoniw, who has done so much to make a legal role political and to raise the status of the office, was clear that he and the Welsh Government wished to see a vote on the floor of the Assembly. It is the means by which that vote is permitted which is the point of disagreement.

To my mind, if those who want the opinion of the Assembly to at least be noted then the best way to do that is by building a consensus. A motion would do just that. It can be framed more loosely, can be amended and can involve more AMs. Who knows, even some Conservatives might back a cleverly constructed motion on Brexit when they would find it very difficult to back an LCM which would be seen as a challenge to their government in Westminster.

In short, fake LCMs are dangerous. They can’t be amended, they can’t build consensus, they can’t be legally enforced, and they can’t change anything except potentially change the view that the Assembly only ever does what it is legally able to do.

Daran Hill is MD of Positif.

10 thoughts on “Fake LCMs are a danger to the Assembly

  1. Good stuff. I’m surprised that LCM process is still so poorly understood by AMs. I remember back in 2013ish when I first dealt with legislation the Assembly Commission’s legal team were very clear that LCMs existed out of a polite convention rather than holding any legal weight. They tell AMs this all time. It puzzles me why some politicians continue to ignore their advice.

  2. The UK Government have yet to even publish the text of their Bill, which may well be amended by Parliament in any event; yet Plaid Cymru, yes not UKIP or the Tories but Plaid Cymru, have determined they want the Assembly to give consent on behalf of the Welsh nation before even seeing what they are signing up to!
    As an LCM can’t be amended it is likely to be passed. Plaid may be the official opposition but the Tories & UKIP combined will outvote them and Kirsty while I suspect the only position Labour will be able to agree on would be mass abstention on the basis of the argument outlined by Daran that it is irrelevant and an abuse of process. In that event the Assembly might give it’s consent, further undermining the cross party efforts to secure the least damaging possible version of Brexit so far as Wales is concerned.

  3. This is wise advice from Daran Hill. Though a passionate remainer we need to cherish the sensible parts of our Welsh constitution. Let’s have amotion that attract the maximum support across all parties

  4. One of the jobs of a parliament is to represent the electorate.
    If the members of the Senedd feel that the Westminster parliament is preventing them from doing that job then they should take whatever (peaceful) steps they think necessary whether procedure, convention, habit or law dictate otherwise or not. The electorate gets to pass its “judgement” on the actions of those elected at the next election.

    It looks like many elected politicians in both the Labour and Conservative parties will vote for a course of action that they personally think is anything from foolish to disastrous and that they also believe will disadvantage and cause hardship for their constituents for years to come.

    The levels of hypocrisy, self and party interest and lack of courage that these Labour and Conservative MPs will display on that day will be outrageous. In comparison our LCM issue appears to me to .fall into the category of – That’s not how we’re supposed to stack the deckchairs.

  5. CapM: it may well be that politicians in Westminster and in Cardiff will vote for a course of action that they believe to be foolish .If they do so it will because they wish to seek to honour the duty expressed in your first sentence i.e. that they represent the electorate.
    They are presented with a dilemma which you should recognize.

  6. @ jon owen jones
    I wrote “One of the jobs of a parliament is to represent the electorate.” and that is the job that the UK government has decided that, when it comes to Brexit, the Senedd will not concern itself with. Effectively the UK government has relieved/denied members of the Senedd of finding themselves facing a dilemma. I suppose at least that’s one less thing to worry about.

    We have an elected UK parliament to which the electorate appoints MPs to make decisions on its (the electorate’s) behalf. MPs can base these decisions on a wide variety of things. In the case in question it includes a formal nationwide public referendum. However MPs are not legally required to go along with the result of that referendum any more so than if it were a result obtained from a Radio One phone in.

    Regarding your point about honoring the result of a referendum. It seems to me that (in these particular circumstances) if, as you say. it is honorable for an MP to vote for something they think is foolish it therefore follows that it must be dishonorable or at the least significantly less honorable to vote against something they think is foolish. Or is it possibly that you’re suggesting that adhering to a referendum result of 52% is what’s honorable and whether they consider it a wise or foolish course of action to follow is irrelevant?

  7. I believe that representative democracy is the least worst form of government (Churchill) and therefore I am generally not in favour of referenda. However in this case Parliament decided to call a referendum and abide by its outcome. I believe the vote to do so was overwhelming with less than 10% of MPs opposed. If I were one of that 10% I would feel no obligation to follow the referendum result however if I were amoung the 90% I should feel it incumbent upon me to honour my earlier promise.

  8. Tell me if I’m wrong, but I thought the argument was that Brexit poses the danger of powers currently vested in Brussels but touching on devolved areas being transferred direct to Westminster rather than to Wales. As such, the Assembly has a right to object through the Legislative Consent process.

  9. @ jon owen jones
    “…with less than 10% of MPs opposed. If I were one of that 10% I would feel no obligation to follow the referendum result however if I were amoung the 90% I should feel it incumbent upon me to honour my earlier promise.”
    At that time nearly 75% of these MPs were against leaving the EU.
    Effectively many made a decision on a referendum that risked the UK leaving the EU for self interest and the interests of the Conservative and Labour parties. They took the risk because they felt that the greater risk would be them losing seats to UKIP.
    Having made a foolish decision that was motivated by the interests of self and party it is now apparently incumbent on them to follow up with another foolish decision again motivated by the interests of self and party.
    At least we can say that these Conservative and Labour MPs are consistent and I think it’s pretty evident that it is this consistency that is driving their decision making rather than a sense of honour.

  10. The assembly represents the people of this country – who have a legitimate opinion on Brexit in whatever circumstances May or Westminster may conjure. It therefore is completely within its rights to discuss the situation and to propose steps to deal with the problem.

    However, making any kind of move that might bolster the Leavers cause is not constructive, and if it merely results in grandstanding, then would not be a wise move at this time.

    … and, lets get this straight, the EU referendum result was no more than an aspiration, because it did not explain, or in any way elaborate on the meaning of the action which it proposed – like voting for world peace, zero taxes, a white Christmas – nice to have but how is it to be achieved? Until that action is confirmed (by Westminster, and, I would argue, the Senedd) then it is without weight. If after undertaking that exploration some people still think that it is worth leaving the EU, then we can hold another referendum. (My guess is that by that time, the nice cosy world where people could indulge a little Imperial fantasy will have evaporated, and we will cling to our European family for solidarity.

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