Wednesday 9 January 2019

Strange outcomes

The nomination of the Counsel General as Brexit Minister raises a number of questions, not least about the definition of a ‘minister’.  Given that Brexit is not a devolved issue; that he has no statutory responsibilities in the role; and that he will not be taking any decisions, the title ‘minister’ looks more than a little out of place.  He looks more like a monitor to me.  That’s by the by though; the criticism of the appointment seems to boil down to two issues.
The first is that it creates a potential conflict of interest, in that as Counsel General he is charged with giving impartial legal advice to ministers and can hardly give impartial legal advice to himself.  I’m not convinced on this one.  In the first place, if he really does have no decisions to make in the role, what exactly would be the purpose of any legal advice that he gave himself?  But secondly, I find the idea of an expectation that a politician appointed to a political post as a member of the Welsh Government by the First Minister would give entirely impartial legal advice to the government of which he is a member to be a strange one.  Yes, there are aspects of his role which require him to act independently of the government, and he is duty-bound to uphold the law; but that is not the same as saying that he must be politically neutral when it comes to policy issues.  There are sound political arguments both for and against him combining the two roles, and whether it is a ‘good’ thing or a ‘bad’ thing is an entirely legitimate topic for political debate between parties.
The second is that it is in direct conflict with the primary legislation establishing the role of Counsel General which specifically requires that the incumbent shall not be a minister.  Arguing that he isn’t really a ‘minister’ because he has no duties or responsibilities is an attempt to create wiggle room around the legislation (although it would have been much easier to give him some other title), but it looks more like an open-and-shut case to me.  What’s curious, though, is the politics of it.  This restriction on a dual role isn’t anything which the Assembly has discussed and voted on, it’s a result of primary legislation in Westminster.  It’s a rule imposed on the Welsh Government and the National Assembly from London, in effect.  And I find it strange that it’s a unionist party trying to find a creative way around the restriction, whilst those who are nominally independentistas are demanding total compliance with the letter of the imposed law.  Politics produces some odd outcomes on occasions.


Jonathan said...

This only causes raised eyebrows because there is a very widespread - and unresolved - problem.As in Cardiff, so in London and Washington DC.
The public would very much like a Public Office of Counsel, the role of which is to provide impartial legal advice (eg on Brexit) to the public. Further, the myth has built up that this is what the Attorney-General or Counsel-General is. Plus in the UK, with no written Constitution, we are fed all this flannel about a dual/independent role as Head of All Prosecutions and with a sacred obligation to the national interest. But it doesn't stack up. Time after time (Iraq, Irish Border) people outside the Government demand sight of the A-G's legal advice. Understandably. But they never ever get sight of it, do they? The reason is that the Counsel-General or Attorney-General is, when it comes to it, just another Government minister, albeit a top-lawyer (admittedly, not recently in either Cardiff or London) with a good legal department serving the Govnernment.
The way the office of Counsel-General has operated (deteriorated) in Wales recently is no surprise. If we in Wales want legal advice on the Government's actions we are going to have work for it ourselves. Dafydd El (when Llywydd) made sure he got his own. And there is the Welsh Government Legal Service. He is apolitical, but I bet Jeff Godfrey carries a lot of unseen clout - isn't he paid more? But really its down to us as citizens.
As Adam Price MP showed in London. He joined/fronted a group which got the best legal advice on impeaching Blair for war-crimes. The only reason they did not succeed was not the law or evidence but the small number of votes they could get in Westminster.
Test it another way.Lord Goldsmith when AG is said to have advised Blair the Iraq War was illegal.Top lawyer, sound advice. But they broke him and I still don't know if is original advice is available.
Even the US, with a written Constitution, has this problem with myths. No the A-G and Department of Justice are not an independent branch of Government. Read the Constitution. They come under the President ie Trump.
Given the 'gator infested swamps of Washington, Trump needs to copy JFK who had "attack-dog" Bobby Kennedy as A-G. But he won't be some independent public adviser. Nor will we get one in Cardiff, short of the revolution.
As I say, in our own hands

John Dixon said...

"As I say, in our own hands" I agree. But part of the point that I was making was that we don't get to change things by aping/ slavishly following the rules and precedents of Westminster.