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New powers for the Counsel General to the National Assembly for Wales are envisaged by a recently published report of the Law Commission for England and Wales on the ‘Form and Accessibility of the Law Applicable in Wales’. This post provides an overview of both the Counsel General’s current role and the Law Commission’s proposed augmentations. The significance of the proposed expansion of the Counsel General’s constitutional portfolio is appraised briefly by way of conclusion.
The Government of Wales Act 1998 is not the legislative genesis of the Counsel General. It did not provide for a Welsh law officer. Upon devolution to Wales in 1998 a post was, however, quickly established on a non-statutory basis because the Assembly had been conferred powers in respect of ‘devolution issues’ (see Schedule 8 to the 1998 Act) which called for the provision of legal advice and representation. The first holder of these functions was thus a non-political civil service appointment.
Together with the division of the Executive Committee from the Assembly, and the resulting creation of an institutionally separate Welsh Assembly Government (later renamed the Welsh Government by Section 4 of the Wales Act 2014), the Government of Wales Act 2006 subsequently provided a legislative basis for the post of Counsel General which remains in force today. The post is now a governmental one of ministerial status. Like most law officers in the UK (with the notable exception of the Attorney General for Northern Ireland), the post-holder is permitted to be an elected politician. If they are not, they may participate in Assembly proceedings but cannot vote (in accordance with Standing Order 9). Indeed, since the 2006 Act all but one incumbent of the office has been an elected Labour Party politician, but in every case the post-holder has served as a member of the Welsh Government by virtue of Section 45(1)(c).
Alongside this important change in status, the Counsel General has come to assume additional functions beyond governmental legal advice and representation. Some innovative legal functions will be well-known, for example the power to refer Assembly Bills, or any provision of a Bill, to the UK Supreme Court about questions of legislative competence under Section 112 of the 2006 Act. It is interesting that this power has been exercised only once by the Counsel General, leading to a judgment vindicating the concerns raised. Given that the Attorney General for England and Wales has referred two different Bills of the Welsh Assembly which were held ultimately to be within its competence (see here and here), the prudence of the Counsel General in using this power to date appears comparatively commendable.
Although the Counsel General is a member of the Welsh Government, powers relating to questions of legislative competence must be exercised independently of it (as per the Welsh Government Ministerial Code at paragraph 6.23). As well as decisions about whether to refer Assembly Bills to the UK Supreme Court, they must (among other things) independently screen Bills for their compatibility with the rule of law. This function arises from the contention that law officers across the UK are supposed to be guardians of that concept. The Law Commission’s consultation paper, which invited responses to inform its recent report, noted the following examples at paragraph 3.42:
Bill teams are instructed to inform the Counsel General where particularly sensitive issues arise, such as early commencement, retrospective effect, powers of arrest or entry, appeals, offences and penalties, codes of practice, or anything affecting human rights.
It further noted that
[t]he Counsel General also has a general responsibility to consider the justice of provisions, and would expect to be consulted if there was as [sic] concern about such a question within a Bill team.
Other functions of the post which have developed over time are of a more overtly political nature. The Counsel General may, for example, ‘play a role in the development of Welsh Government policy on legal matters’ (as per Law Wales). They can even introduce Bills to the Assembly (under Section 110(1)(a) of the 2006 Act). This means that the Counsel General now shares with many other law officers a much maligned constitutional predicament: the need to ensure that political considerations, which can be taken into account legitimately in the exercise of governmental functions, do not infect with bias functions requiring an independent mind.
The Law Commission’s new report reads like a breath of fresh air. Its general recommendations hold heartening potential to simplify legal research and improve the accessibility of Welsh law. Below, however, I have confined my commentary to proposals which specifically relate to the Counsel General. Consequent to its view that the Welsh Government should pursue a policy of consolidation and (more vigorous) codification, the Law Commission suggests three important innovations which amplify the constitutional role of the Counsel General.
The first innovation arises from the recommendation that a more flexible, streamlined legislative procedure should be introduced to the Standing Orders of the Assembly in order to expedite the passage of consolidation, codification and other law reform Bills. In order to reduce any mistrust in the new procedure, which might otherwise develop from concerns about the possibility of Bills being put forward containing alterations which should be scrutinised by the full legislature, the Law Commission proposes an important new function for the Counsel General in the process. Acting independently, on the advice of First Legislative Counsel or on the findings of a Law Commission report, it suggests that the Counsel General should be responsible for certifying that a Bill is suitable for the streamlined legislative procedure and should be held accountable by the Assembly for same.
The second innovation is linked to the recommendation that once codes have been created they should be preserved by a rule requiring that further legislation within the subject area of the code should only take effect by way of amending the code, rather than by way of enacting free-standing legislation. An expansion of the existing role of the Counsel General in protecting the integrity of the Welsh statute book is proposed in this connection. It is suggested that a set of normative legislative standards should be developed and published by the Counsel General relating to the design and content of legislation and explanatory notes. It is further suggested that those standards should be subject to review by the Assembly, which, in turn, could adopt them by way of a resolution if they were deemed acceptable. The Law Commission suggests adherence to some form of ‘code discipline’ could be monitored through this mechanism, whereby departures from code discipline (among other legislative standards) would need to be disclosed and justified by the promoter of the legislation in its Explanatory Memorandum.
The third innovation flows from the Law Commission’s recommendation in favour of requiring the Welsh Government to institute regular codification programmes in order to ensure a systematic and comprehensive approach to its codification policy. On account of the Counsel General’s existing portfolio, and due to ‘the measure of independence from the government’ they are said to enjoy, the Commission proposes that the Counsel General should be placed under a statutory obligation to present these codification programmes on a rolling basis and that they should be accountable to the Assembly for same. Discharging this new function is expected to be a ‘substantial’ task for the Counsel General. Thus, it is also recommended that a Code Office should be established which would be staffed primarily by legislative counsel, while being distinct from the existing Office of the Legislative Counsel. It is intended to encourage the development of focused expertise in codification and code maintenance. Importantly, although the Code Office would be led routinely by First Legislative Counsel, overall responsibility for its work would lie with the Counsel General, who would, in turn, be accountable to the Assembly for its progress.
Two points of significance about these proposed additions to the Counsel General’s constitutional portfolio are readily apparent. First, they indicate confidence in the ability of the Counsel General to carry out further functions independently of the Welsh Government, of which they are a member, despite the theoretical difficulties associated with vesting functions which serve potentially conflicting interests in one office. Given that there is a dearth of serious controversies associated with the post, unlike some other law officers, this is perhaps unsurprising. Nonetheless, care must be taken to ensure that the Counsel General does not give weight to political interests when discharging functions requiring independence. As such, the Law Commission’s recognition that it will be important for the Counsel General’s recommendations in respect of Bills put forward for the streamlined legislative procedure to be ‘transparently reasoned and objectively presented’ are laudable. Indeed, transparently reasoned and objectively presented decisions are desirable across the board of independent functions carried out by the Counsel General as a means of enabling effective performance evaluations by the Assembly. Second, these developments signal that the Counsel General is likely to become an increasingly significant source of, conduit for and guardian of constitutional values in Wales. How those values are defined in practice will be of great interest.
Conor McCormick is a PhD candidate in the School of Law at the Queen’s University of Belfast.
(Suggested citation: C. McCormick, ‘Expanding the Portfolio of the Counsel General to the National Assembly for Wales’ U.K. Const. L. Blog (28th July 2016) (available at: http://ukconstitutionallaw.org)).