17 June 2016:
Article by Alys Thomas, National Assembly for Wales Research Service
On 21 June 2016 the third item of business in Plenary will be a motion to agree to the First Minister’s recommendation to Her Majesty to appoint a Counsel General. The motion states:
NDM6025 Carwyn Jones (Bridgend)
To propose that the National Assembly for Wales, in accordance with Standing Order 9.1, agrees to the First Minister’s recommendation to Her Majesty to appoint Mick Antoniw AM as Counsel General.
Section 49 of the Government of Wales Act 2006 (“the Act”) provides for the appointment of a Counsel General to the Welsh Government who acts as its legal adviser and its representative in the courts. This role is analogous with the role of the Attorney-General and Solicitor General in the UK Government.
The appointment of the Counsel General
The Counsel General is appointed by the Monarch on the recommendation of the First Minister but the recommendation for the appointment must be approved by the National Assembly. The person appointed need not be an Assembly Member, although an Assembly Member could serve as Counsel General (the First Minister, Ministers and Deputy Ministers are expressly forbidden to do so in the Act). The Explanatory Notes to the Act describe the office as “of ‘ministerial’ status” but the holder cannot be one of the ‘Welsh Ministers’.
Mick Antoniw is the Assembly Member for Pontypridd. However, the Counsel General in the Fourth Assembly, Theodore Huckle QC was appointed from outside the Assembly.
Participation of the Counsel General in Assembly proceedings
The National Assembly’s Standing Orders make it clear that the Counsel General will be treated the same as Welsh Ministers in Assembly Proceedings. The one exception is that a Counsel General who is not an AM will not be able to vote. Standing Order 9.4 states:
If the Counsel General is not a Member, the Standing Orders apply to the Counsel General as they apply to Members and the Counsel General may participate in Assembly proceedings but may not vote.
The Counsel General, whether an AM or not, will be expected to answer oral and written questions and to make oral or written statements.
Section 34 of the 2006 Act deals with the participation of the Counsel General in the proceedings of the Assembly and includes a provision enabling the Counsel General to refuse to provide documents or to answer questions about particular criminal cases (the Counsel General may be conducting criminal proceedings on behalf of the Welsh Government) if he or she considers that doing so might prejudice the proceedings in that case or would otherwise be contrary to the public interest.
Under section 67 of the 2006 Act, the Counsel General, as the representative of the Welsh Ministers in the courts, will be able to institute, defend or appear in any legal proceedings relating to matters with respect to which any functions exercisable by the Welsh Government, provided the Counsel General considers it appropriate to do so for the promotion or protection of the public interest.
Scrutiny of Assembly Bills by Supreme Court
Section 112 of the 2006 Act provides a mechanism through which either the Counsel General or the Attorney-General can obtain a decision by the Supreme Court as to whether Assembly Bills or particular provisions of Assembly Bills are within the Assembly’s legislative competence. This may only be done within the four week period starting with the date the Bill was passed by the National Assembly. In the Fourth Assembly this occurred on three occasions. Two Bills were referred by the Attorney General and one by the Counsel General.
The Bills referred by the Attorney General were the Local Government Bye-Laws (Wales) Bill and the Agriculture Sector (Wales) Bill. In both cases the Supreme Court found the Bills to be in competence. The third Bill, the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, however, was referred by the Counsel General, for a pre-emptive ruling. The Supreme Court unanimously found that the Assembly lacked legislative competence to enact Bill in its present form.