THE devolution settlement in Wales is in trouble. The UK Government in their pursuit of power are riding roughshod over the will of our democratically elected Senedd and there is nothing the Welsh Government can do to stop them.    

Last week the UK Government quietly announced their intention to repeal the Trade Union (Wales) Act 2017 – a piece of legislation drafted by the Welsh Government and voted for by the Senedd. The reason for repealing the Act is so legislation can be passed to allow agency workers to fill in for workers on strike.  

Even Thatcher didn’t countenance legislating for temporary workers to fill in for miners on strike. However, not only are Boris and co prepared to do this, he’s also ready to step over the Senedd to get his way.  

For those of you who were engrossed in the never-ending Brexit battles, parliamentary sovereignty is something you would have heard of time and time again. It was the very reason, according to the Jacob Rees Moggs of the world, that we had to leave the EU. Nothing is more sacrosanct than parliament and being part of the EU was the antithesis of that – so the argument went.  

Parliament is indeed sovereign. This means that it can pass any law it wants to and the only way in which that law can be changed is if parliament repeals it by introducing another law.

The famous constitutional theorist, A. V. Dicey, defined parliamentary sovereignty as “the right to make or unmake any law whatever and … no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.” 

READ MORE: Carwyn Jones on parliamentary sovereignty and rule of law

That still applies today. If the UK Government wants to roll back devolution – it can. The Welsh Government can shout as loudly as they want, they can write as many strongly worded letters as they want, but, ultimately, power rests with Westminster.  

Another problem the Welsh Government have with protecting the Act in question is that it falls within the remit of Westminster to legislate on it.  

The Trade Union (Wales) Act 2017 was added to our statute books when a different devolutionary settlement was in place. The introduction of the Wales Act 2017, however, moved us from a conferred powers model to a reserved powers model.  

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The result of this was that we moved from a system where there was an exhaustive list of areas that we could legislate on, to one where there is a list of powers that we cannot legislate on. The areas we cannot legislate on are ‘reserved’ for Westminster.  

The idea was to give Wales greater legislative powers. The irony, eh.  

The issue at hand is that within the list of powers reserved for Westminster is employment and industrial relations. The Welsh Government are therefore unlikely to last more than two minutes in court if their claim ever got that far. It’s there in black and white in Schedule 7A, Part 2, Section H1 of the Government of Wales Act 2006.  

The only hope they have of preventing the repeal of the Trade Union (Wales) Act ‘17 is if there is a backbench rebellion in the House of Commons, the House of Lords put up a fight, or the trade union movement apply enough pressure to force the government to backdown.  

The first option is highly unlikely given the Tories are no friends of the unions, so it’s all on the Lords or some serious organising by a reenergised trade union movement.  

On the subject of devolutionary machinations and constitutional questions in the courts, the application by the Scottish Government for the Supreme Court to consider whether it is within Scotland’s gift to hold an advisory referendum will no doubt excite many in Wales.  

I’ll cut to the chase; it’s not happening.  

For Scotland to run a referendum, legislation must be passed in the Scottish Parliament. They cannot pass this legislation without the consent of Westminster because constitutional issues between England and Scotland is a reserved matter.  

The Scottish Government will likely argue that a referendum is only advisory and will not automatically trigger Scotland’s withdrawal from the UK. The problem with that is a decision the Supreme Court made in October last year in relation to legislation the Scottish Parliament passed incorporating the UN Convention on the Rights of the Child.  

READ MORE: 'Power grab' shows UK Government treats devolved nations 'like children'

The Supreme Court found that certain provisions within that legislation were outside of the powers of the Scottish Parliament, not because they directly contravene any matter reserved by Westminster, but because they put pressure on the UK Government and Westminster to do something it may not want to do.  

A victory for the ‘Yes’ camp in a referendum will without question apply pressure on Westminster.  

Former solicitor Nicola Sturgeon will be well aware of the above and this is all therefore more likely to be part of a plan to fight the next election on the single issue of independence – as many commentators before me have pointed out.  

These are interesting and uncertain times for the UK. And for Wales there are some big questions to consider if Scotland eventually packs her bags and goes her own way.  

One thing is for certain, our constitution has been stretched to unprecedented levels over the past few years.  

Whether it finally snaps is anyone’s guess.  

Jonathan Williams is a solicitor at Watkins and Gunn.

Disclaimer: This does not constitute legal advice. For more information contact Watkins and Gunn at watkinsandgunn.co.uk

Welsh independence supporters gathered in Wrexham on Saturday but Jonathan Williams says devolution is under threat from Westminster.

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