My Lords, I had the privilege for some two or three years to be a member of a committee that dealt with the likely consequences of European developments on our law. I agree with every word that the noble Lord, Lord Thomas of Gresford, has advanced. This is a situation where narrow British chauvinism—Daily Mail chauvinism—is putting so much that is invaluable at risk. However, that is not the topic on which I want to address the House tonight.
I wish to say a few words about the constitutional situation of Wales in consequence of the Wales Act 2017. Following that legislation, the position of Wales is far less satisfactory and far less certain—and indeed, far less authoritative constitutionally than it was previous to the legislation. That is a massive piece of irony, for the Government trumpeted it to be a considerable achievement.
I believe that the answer lies in the fact that the Government are rather reluctant performers in this connection. I have raised this matter before and I raise it again in this place. Two decisions were made in the Divisional court: on the agricultural workers case in 2014 and the medical costs case the following year in 2015. The consequence of those two cases was quite alarming for the Government. They discovered suddenly that the range, scale and depth of devolution was entirely different from what they had conceived. There were huge areas of dubiety and it was very much more than the Government had anticipated in those days, and they reacted immediately. That is the heart, core and kernel of the problem that we now face, with a piece of very unsatisfactory legislation in the Wales Act 2017.
It is axiomatic in relation to the creation of a reserved constitution, which is what the Act set out to do, that the reservations should be fairly limited. They are limited to massive cogent matters that are so relevant to the mother Parliament, and indeed are not the proper and appropriate realm for the devolved authority—but on the other hand, all other matters, which cry out for domestic jurisdiction, should be dealt with in that particular way. In other words, there is a clear concept of where there is a watershed. That is totally lacking in this legislation.
First, the reservations are massive—there are 197 altogether. Secondly, their very nature shows that scores of them are extremely trivial. They are matters that are relatively inconsequential in a constitutional sense, such as dangerous dogs, sharp knives and axes, the organisation of charitable collections, and licensing, which seems to have been a Welsh prerogative since 1871. There are dozens of other cases that give the lie to the fact that this was a genuine attempt to give Wales a proper reserved constitution. When is a reserved constitution not a reserved constitution? When the reservations are utterly ridiculous. That is the situation here.
In addition, there is of course the point that many of the powers—this was mentioned by my noble and learned friend Lord Morris of Aberavon—were never there for the British Government to consider; they were in Brussels, and have been there since
What do we do? We must set up jointly a constitutional convention that will deal first of all with the dozens of small matters that have been reserved and examine each in detail to see whether reservation is properly justified. Furthermore, that body should make it clear that it will examine each and every item of what is now in Brussels with the presumption that that item should return not to this Parliament but to Wales. That is the only way forward—a constitutional convention of that nature. Devolution is not a matter of dainty sympathies and dilettante political practices for dreamers. Devolution is an acid test of the trusteeship that mutually exists between a mother Parliament and a devolved Parliament. It works both ways. It is the cement that keeps the United Kingdom together through these perilous, difficult and uncertain days.