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.
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