Thank you for inviting me here this afternoon.

At the end of last year, as you will know, the first minister asked me, in addition to remaining as Counsel General, the government’s law officer, also to coordinate the work of the government to prepare for Brexit and representing the government in Brexit discussions with the UK government and other devolved administrations.

In fact, law and European affairs combined in the first job I had when I left university in 1992. I spent a year teaching law at the University of Warsaw in Poland. It was an extraordinary time. The Berlin wall had come down less than 3 years before and Poland had played a central part in the collapse of communism and ultimately on the journey of the European continent towards a closer union.

I spent a year in a fascinating city with a rich, painful history, and exploring other parts of Poland as well as other countries of central and eastern Europe – Hungary, the Czech Republic, Slovakia.

I felt for the first time at the heart of Europe both in a geographic and in a more profound sense.

I have been thinking of that a lot in the last few weeks partly because the event which was the backdrop to that, the collapse of the Berlin wall in 1989 – the catalyst for an increasingly closer Europe, is about to be bookended, in 2019, thirty years later, with a very different catalyst this time, perhaps – once again – for a Europe of walls.

We are meeting at a time of great uncertainty. Uncertainty which is causing anxiety and trepidation to our people, businesses, public services and communities. The prospect of leaving the European Union brings with it great upheaval in any circumstances. The prospect of leaving without a deal – unbelievable that this should even be regarded as a possibility – holds out the risk of great trauma, for Wales, and for the entire United Kingdom.

Politically, the country remains in a state of flux in the response to the parliamentary crisis which has developed as a result of the prime minister’s failure to secure support for a deal. Parliament was decisive in its opposition to her proposals and we certainly believe that it was the right outcome. The prospect of constituting a new parliament to seek to resolve this impasse has now obviously receded, with the government surviving the vote of no confidence – that, I suppose is the least the Conservatives expected from the DUP in return for their billion pounds. And so the supportable options for moving forward have effectively crystallised into two possible routes.

On the one hand parliament may find a new form of deal which can reflect the principles we have espoused and command the support of the commons and have a chance of being agreed by the eu27 and on the other, the people may have a final say on the basis on which we depart the eu, or whether we remain a member.

I realise that I am in the presence today of a group which contains large numbers who will believe that the only proper course at this point is another referendum. And whilst as the Welsh Government we could certainly support another referendum as the way forward, it is not in our view the only, or necessarily the best, solution to the current enormous national crisis that we face as a result of the government’s spectacular mishandling of the Brexit negotiations.

I will return to that. But I want to just note that at the outset, and to thank you for your invitation to speak because it contains an implicit acknowledgement that it is perfectly possible for those of us who share a common commitment to our place in Europe, to take a range of views on this spectrum of opinion about how we should best move the country forward.

But it is important that you are doing the groundwork now for a possible referendum. It may be that in a matter of weeks only, we may find ourselves in a very different position, where a clear parliamentary majority has formed around the idea of another referendum as the best remaining means to resolve this national impasse. Sending the issue back to the people for a final say is more likely now than it has ever been.

If that momentous decision is taken by parliament, then it will be essential in the interests of a genuine democratic debate to have a vigorous, well-planned, well-motivated campaign to challenge the distortions, half-truths and downright lies from the extreme brexiteers – the hard right of the Tory party, UKIP and the like – which I am sure would be a feature of another referendum as they were in 2016.

Because, and let me be very clear, the Welsh Government continues to believe that any form of Brexit will be damaging to this country’s interests. This was clear in our white paper Securing Wales’ Future, which we published along with Plaid Cymru almost exactly two years ago – and I will pause here to pay tribute to Steffan Lewis, that inspirational Plaid assembly member whose tragic loss I know many of us feel very intensely. Steffan was unafraid to work cross-party in the interests of his country and made a huge contribution to shaping the views of the National Assembly on this most critical issue.

But as I say, we continue to believe that any form of Brexit will have a serious cost, compared to the status quo of remaining within the EU. We have consistently challenged the arrogant ‘cakeism’ which characterised the early stages of the Tory government’s approach. The view that it was possible to shake off what they said were the shackles of European legislation, regulation and fiscal solidarity, but still to enjoy the same economic benefits as the member-states.

From the start, we have been clear that, in responding to our duty to respect the result of the 2016 referendum – I realise that’s not a view all of you may share but the Welsh Government has been clear that any other course of action would need to be the result of a parliamentary failure to agree a deal of the sort which prioritises jobs and livelihoods   – but in respecting that result, there are hard choices to be made.

Either the UK jeopardises our economic prosperity – risking the wellbeing of tens, possibly hundreds of thousands of people who directly or indirectly depend on continued frictionless trade with the rest of the EU – or it accepts that we will have to share, rather than seek to hoard to ourselves the influence and power over the key decisions that shape our economic, social and political environment.

And we have equally been clear that if that is the choice, then our top priority is the jobs and welfare of our people.

That is why we have coherently and consistently advocated a form of relationship with EU after brexit which has at its heart continued participation in the single market across the whole economy – including the service sector – and in a customs union with the eu27, an approach that’s now known as Norway plus.

But equally we have recognised that this would mean that we remain in regulatory alignment – in a progressive lockstep – with the EU as it continues to develop its internal market. At the best it means we would be relying on ‘soft power’, on lobbying and on influencing to help shape decisions, rather than having a vote or a veto in the Council of Ministers.

This is certainly not desirable. But it is the only way for us to leave the EU – respecting the 2016 referendum – without suffering real economic damage.

And, of course, it is beyond ironic that this dilemma was created by people who promised us that it would be easy to ‘take back control’ whilst also having more money to spend on our public services.

So, if we, as a Welsh Government, agree with what I would guess is the overwhelming majority of you, that there is no version of Brexit which is better for Wales than our current EU membership, what, you may ask, is holding us back from immediately throwing our weight behind the call for another referendum now?

I should also say that there is a strong body of support within my own party for another referendum and who would equally pose that question.

Well, aside from the important matter of the outcome of the last referendum, let me talk about three sets of issues, in ascending order of importance, which have given us pause for thought – and which, I would argue, need to be carefully considered as you plan for a campaign which very well may come.

The first is the process around any referendum itself. There remain considerable obstacles to ensuring that a vote can take place. Firstly, it will require legislation, and generally – though we are living through times when precedent may not be the best guide – the government has a stranglehold over the legislative process in parliament. With this government giving every sign of being prepared to hang on to office, even though it no longer has the power to drive through the solutions it wants to the most pressing issue we face, a parliamentary majority – whilst being clearly an obvious prerequisite for another referendum cannot – in and of itself – make a referendum happen. So even persuading those dozens of Conservative backbenchers who would need to help create that parliamentary majority, would not in itself suffice.

And holding a referendum will, of course, require amendment of the EU (Withdrawal) Act to postpone exit day, and, more importantly a unanimous decision from the EU27 to extend Article 50 – probably until the autumn. And with the European elections looming, and other countries like Ireland, France and Spain having firm plans in place to elect increased numbers of MEPs because of the UK’s departure, any extension beyond early July, when the new European Parliament is sworn in, would pose real problems. Are they insurmountable? Probably not – with political will. But the bar for that is surely set very high.

Of course, there’s much talk in parliament about the Article 50 process being ‘paused’ but this isn’t a concept that makes much sense. You can extend article 50 – which as I say requires unanimity from our EU partners – or, as the European Court of Justice ruled in December, you can revoke the notification we have given. But the court said that such a revocation must be ‘unequivocal and unconditional’: a revocation to allow breathing space to hold a second vote would clearly be open to challenge.

There’s a real risk that while there are pitched parliamentary battles over whether and how to put a referendum in place, we fall over the cliff-edge into the disaster of a ‘no deal’ brexit.

Then there is the matter of the question – or questions. Remaining in the EU must be on the ballot paper: if we are to ask the people whether to confirm or overturn their verdict of three years ago, the option of maintaining the status quo must be there. And why would the EU agree an article 50 extension for a referendum without an option to remain?

But what alternative or alternatives are offered? It’s difficult to see how if we pause the negotiations now, you can exclude the Prime Minister’s deal. But the pressure for “no deal” to be on the paper too would be enormous.

And if ‘no deal’ is on the ballot paper – however disastrous we all believe that would be in reality – you have to resolve how to deal with three alternatives. A two-stage referendum or a preferential vote? It’s possible, of course, but by no means straightforward. And who in that campaign is arguing for the PM’s deal? A very small cohort of Conservatives. The focus for the battle could easily reduce to a no deal brexit and remain.

Secondly, there’s the issue of what the campaign would do to our social cohesion. Here, I don’t need or want to go into detail, but there’s no question about how much lasting damage has already been done to our sense of being a society with shared values and priorities by the poison unleashed by the brexit process. I don’t mean the aggression and viciousness which has characterised the excesses of opportunist thugs – that must clearly be condemned by us all. But the deeply felt divisions within our communities between people who feel profoundly disillusioned and let down. The task of healing these divisions even as they stand today requires huge commitment and leadership. Surely we should reflect carefully before we risk tearing off the bandages and increasing further the resentment of those who would see what they perceive as a political elite thwarting their choice.

And when I say we must roundly condemn the extremist right and their viciousness, it is of course the most vulnerable in our society which bear the brunt of those attacks. We saw the spike in race-related crime in the wake of the 2016 referendum result. Are we really confident that what would undoubtedly be a vicious campaign would not simply feed this still further, particularly if the margin of victory by the remain campaign were narrow?

And so to the third set of issues – how confident are we of winning, and what would be the price of defeat? To take the second question first, a second defeat would stop in its tracks the hope of pro-Europeans for generations. It would certainly result in a harder brexit than anything which is likely to come out of the parliamentary process. It could quite likely result in a no deal outcome – either immediately or as a result of failed negotiations over the future relationship – doing untold damage to our economy and fuelling further social unrest and extremism.

And in terms of the likelihood of victory: well, most polling is encouraging, some less so. But there are some lessons from the referendum of 2016 and more generally from recent political developments across the mature democracies that we need to reflect carefully on:

  • Polls even where there is a clear cut choice can be wrong
  • Catchy slogans can be more effective than reasoned arguments (and ‘tell them again’ is shaping up to be more effective than most)
  • Many people – for example in Trump’s America – seem to assume politicians lie, so are fairly nonchalant when blatant lies are pointed out
  • Voters don’t always prioritise their economic self-interest

Obviously, I don’t expect you to agree with all that i have said over the last few minutes. But in all good conscience, these are real issues – ones which any campaign for – and during – a referendum would need to address.

Together with the recognition that Parliament must be given every opportunity to find a way to reconcile the 2016 referendum result with advancing the best interests of the country – these are the issues which for us as a Welsh Government suggest that another referendum should be the final say rather than the automatic next step.

If a majority can be found in parliament for a softer from of Brexit: for a rewriting of the political declaration to contain commitments from both the eu27 and, crucially, the UK government and parliament to negotiate a future relationship based around continued participation in the single market and a customs union, then that should prevail. If not, then a referendum should follow and you will find me campaigning together with you for remain.

I started by talking about my experience at the heart of Europe, that sense of connection with a wider European world. So in closing, maybe it’s fitting for me to give a final – personal – perhaps counter-intuitive – reflection about the pro-European case for caution here.

It’s possible to see Brexit as the culmination of four decades of half-hearted, occasionally truculent and increasingly unco-operative membership of the EU. Britain’s relationship with the EU has been characterised by opt-outs and carve-outs, often infuriating our partners and undermining our credibility. From our budget rebate to our Schengen opt-outs, from our refusal to engage properly with justice and home affairs to our consistent attempts to limit European defence co-operation.

And indeed it can also be seen in part as the result of a failure of too many of us, if we were honest with ourselves, proactively to make the case for Europe – even in extremis. (I am sure we have all seen more people speaking up for the European cause since the referendum than actually campaigned to save our membership.)

There’ve been barely more than a handful of years over the last 40 when the idea of the UK being at the heart of the European project would not have attracted snorts of derision in Brussels, Paris or Rome. And barely any point in the last 40 years when pro-Europeans have seriously challenged a dominant narrative that the benefits of Europe are the product of UK effort, and the ills of the UK placed at the door of our European partners.

So let me pose a final question for those of us who are passionate Europeans, who believe not in a federal super-state but in a European union that has the capability and the will to act politically and economically to tackle global problems like climate change, to stand up to global capitalism and corporations, to challenge the dominance of the USA or China and champion democracy and liberal values. Are we convinced that the UK staying within the EU on the basis of a highly contested second referendum, with potentially a small margin of victory, and with British exceptionalism reinforced, not reduced, really would help the cause of European solidarity and integration?

Could it not be argued that it might be better to accept in the interests of that cause, despite our aspirations, a form of brexit which keeps us close to the EU economically while delivering on the mandate of the 2016 referendum?  And then campaign for the UK to rejoin when there is a clear commitment from a clear majority of people in this country to whole-hearted membership?

I offer this thought with some diffidence. We can’t know this for sure. But in our bones I know that many fear that decades of too silent a pro-Europeanism can’t genuinely be made good in a narrow referendum reversal.

One thing I am certain of – that whenever the next referendum happens be that months or years hence, I will campaign for Wales and for the UK to play a full, committed part in the EU.

Despite our failure to win the public argument, we must learn the painful lessons of decades of quiet assumption and – whatever lies ahead –  must make our case again and again, that Wales as part of the European family is the best way to secure a wales open, equal, prosperous and just.

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