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.
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