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Government of Wales Bill

moved Amendment No. 42:"Page 29, line 28, at end insert—" ““(   )   No recommendation for the appointment of a person as the Counsel General may be made by the First Minister without prior consultation with the Attorney General. (   )   No person may be recommended for appointment as the Counsel General unless he is— (a) a member of the Bar of England and Wales of at least ten years’ standing, or (b) a solicitor of the Supreme Court of at least ten years’ standing. (   )   The functions of the Counsel General shall be exercised by him independently of any other person.”” The noble Lord said: We move to the position of the Counsel General in Clause 49 but, as this is my first intervention in the debates on the Bill, I will set this and subsequent amendments in context. As my noble friend Lord Roberts of Conwy knows, it is no secret that I argued strongly against devolution, both as Secretary of State and subsequently. I genuinely believed that my experience demonstrated that Wales was well and effectively served, in the best interests of all its people, by having full representation in the UK Government at the highest level. Since the narrow referendum result that ushered in devolution, however, we have all come to terms with the inevitable changes. In now seeking to improve the Bill, I recognise that there have been teething troubles and worse, but the principality has unquestionably recently been enjoying a tremendous renaissance. From the Millennium Stadium, which now seems to be hosting the FA cup final indefinitely, the Welsh National Opera and the Millennium Centre, to the fantastic new series of ““Doctor Who””—filmed in Wales by BBC Wales, using Welsh talent but entrancing an entire nation—it is an exciting phase in the history of Wales. Of course, the Assembly Government cannot be cited as the single cause of all this, but they are part of this new era and have an integral role to play in the future of Wales. We must, however, be hard-headed about that future. The devolution settlement across the United Kingdom is very uneven, and it is hard to see it settling down for any length of time until all the constituent parts of the union are palpably being treated fairly. Aspects of each devolutionary settlement give cause for concern. I shall deal with the Ram doctrine and the royal prerogative shortly, but I turn first to the crucial question of the role of the senior law officers in the structure of government in Wales. On paper, the Counsel General is neither fish nor fowl. The role is a curious amalgam of poacher and gamekeeper, both offering friendly and courteous advice to members of the Assembly Government and watching over their shoulders to ensure that they behave themselves. I hope to hear from the Minister how he reconciles these two approaches. There is no mention of a Counsel General in the Government of Wales Act 1998. The role as I understand it has been to act as a senior legal adviser to the Assembly. There is obviously no objection to the position receiving statutory recognition. However, there is a markedly different system in Scotland, and there is an element of confusion about the future role of the Counsel General in Wales. The Counsel General is expressly stated to be a member of the Welsh Government. The assumption seems to be that the Counsel General will continue to act as a law officer to the Welsh Executive. Paragraph 2.9 of the White Paper states:"““His or her principal role will be to advise the Welsh Assembly Ministers on legal matters relating to the exercise of their devolved functions””." However, a number of specific references in the Bill confer a different role: that of initiating challenges if the Assembly or Ministers act outside their powers. These two roles may sound similar, but the duties owed in the two roles go in opposite directions. As legal adviser to Ministers, the Counsel General owes them a duty to try to keep them out of trouble. As the person responsible for initiating challenge, the Counsel General’s duty is, where appropriate, to get them into trouble. It is almost the difference between prosecution and defence. I hope that the Minister will be able to clarify this, but whichever of the above-mentioned roles the Counsel General is to fill, and all the more so if he is to perform both at the same time, he needs to be a lawyer—I would venture to say a lawyer of considerable stature—yet there is no mention in the Bill of a need for him to have any legal qualification or experience. I hope that the Minister will comment on that aspect, too. It may be said that all these different roles can be combined in a person of outstanding experience, ability and integrity, and that it all depends on the quality of the individual. Perhaps so, but should the legislation not then say more about the kind of individual who might be considered suitable for the post? It is essential to ensure that the appointment process is transparent and that the individual appointed possesses, and is seen to possess, independence as well as impartiality and integrity. I beg to move.