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Friday, August 17, 2007

Sleight of hand

When is a government minister not a minister? Answer: When it is Carwyn Jones.

Another row that has rumbled on throughout the summer re-emerges in the Western Mail this morning. Bridgend Labour AM, Carwyn Jones, has taken on the dual role of Counsel General and Leader of the House as part of the red-green coalition reshuffle. However, the Government of Wales Act forbids the Counsel General from being appointed to any other ministerial office.

Welsh Liberal Democrat Group Leader, Mike German is very clear on this matter: “We have ministers in order to provide accountability. If Carwyn is in charge of Assembly business, then he needs to be accountable, and he should be a minister. But if he is a minister, he cannot be Counsel General."

Tory Leader, Nick Bourne elaborates: “Carwyn’s dual role will inevitably lead to problems with the conflict of interest which his positions will entail. In his role of Counsel General, he has the responsibility for issuing legal advice to ministers in cases where two or more ministers disagree on legal questions. However, in his role as Minister for Assembly Business, he has responsibility for all cross-cutting briefs, and, in any case where there is a dispute between ministers regarding the legality of an issue, he will presumably be involved in any dispute in his capacity as Minister for Assembly Business.

“As such, the legal advice he gives in his role as Counsel General could not be considered impartial.”

The Government thinks that both are wrong: “It is perfectly clear to anyone who understands the Act that this is not a muddle. The position is perfectly consistent with the Government of Wales Act 2006.

“A note issued by the Presiding Officer makes it clear that Carwyn Jones has been designated to exercise the functions of the Counsel General. He will also take on responsibility for Government Business in the Assembly with the title of ‘Leader of the House’.

“The Act does not prohibit the Counsel General carrying out the functions of the Leader of the House. As the duties relating to the Leader of the House do not involve the exercise of statutory functions, there is no legal reason why the Counsel General may not carry out those duties.”

However, this official explanation sounds a bit contrived, the product perhaps of legal advice seeking to defend the politically expedient. Writing in the letters page another lawyer, former Tory candidate, Robert Buckland, offers a different legal interpretation of the position:

Rhodri Morgan's decision to appoint Carwyn Jones as Minister for Assembly Business and Counsel General flies in the face of the Government of Wales Act 2006. Section 49(9) of that Act states that holders of Welsh Ministerial or Deputy Welsh Ministerial posts may not also be appointed as Counsel General and vice-versa.

At a time when the role of legal officers in Government is in the spotlight, it is crucial that the Counsel General be able to discharge his duties impartially. How can the Assembly’s business manager successfully wear two very different hats? Mr. Morgan has not only breached the Act but has placed his Minister in an impossible position.

How will it all end? I don't know, but I think I can predict the subject of the first points of order when we reconvene in September.
"However, this official explanation sounds a bit contrived, the product perhaps of legal advice seeking to defend the politically expedient."

Not from the Counsel General I hope?
I think that is unlikely.
I'm surprised that you haven't quoted the UK's government's reply to an amendment to the Govt of Wales bill by Lords Carlile and Thoas. It is quite clear from the reply that the UK government expected that the Counsel general would not be a government minister. In fact it was stressed that they expected the person appointed to have a distinguished record as either a senior barrister or solicitor.
Personally I don't think that Rhodri has much time for the Government of Wales Act. He is going down a different road.
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