The next item is the motion to agree the First Minister’s recommendation to Her Majesty to appoint a Counsel General, and I call on the First Minister to move the motion—Carwyn Jones.

Motion NDM6561 Carwyn Jones

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 Jeremy Miles AM as Counsel General.

Motion moved.

Formally, Presiding Officer.

I’m afraid that Plaid Cymru can’t agree to this motion in the current context at the moment. May I say, first of all, that I’m not questioning the ability or appropriateness of Jeremy Miles for this position in any way? Rather, I’m asking a more fundamental question as to why we are appointing a new Counsel General.

I want to pay tribute to Mick Antoniw. I think he carried out the work in an appropriate manner—it was what we’d hoped that a Counsel General would do in this Senedd. He has protected the rights of this Parliament from the threats emerging from Brexit, and the EU withdrawal Bill more specifically. He’s promoted access to the law and worked to simplify the law, working with the Law Commission in terms of reorganising the law in Wales. He’s raised the profile of the legal profession in Wales.

Of course, we as Assembly Members only see the Counsel General when he appears here to answer our questions. And the fact that we've moved from a position where only one Assembly Member was questioning the Counsel General to a position where there are many asking questions of the Counsel General does demonstrate that Mick Antoniw has responded to the vibrant interest in this Chamber in the constitution, and in the development of this parliament. I want to thank him for that, and he has certainly broadened the horizons of the post in a way that Plaid Cymru welcomes.

But, of course, the reason we have this motion today to change the Counsel General is because the Labour Party want to change the people they see as a possible future leader, members of a new Cabinet, a new way of doing politics—whatever it may be. Now, this is a reorganisation of the Welsh Government—[Interruption.] I will in a second. This is a reshuffle of the Welsh Government for the purposes of the Labour Party. I will give way.

Surely, a fundamental principle of our legal system is that a client should be free to choose their own legal adviser? Why would Plaid Cymru deny that right to the Welsh Government?

He doesn't understand the constitution, that's why. 

Those who want to change the constitution should have changed the Wales Act. You had an opportunity in the House of Lords to change the Wales Act in order to remove the ability of this parliament to approve the appointment of the Counsel General. If you are so vocal, you should have done it elsewhere where you have another job to do. You clearly didn’t have an eye on the constitution at that point. Now, unless you want to do that, you’re not in a position to criticise someone who is using parliamentary techniques to question a Government appointment. [Interruption.] Do you want to intervene?

I do want to intervene. I’m eager to intervene. I do have a problem, Llywydd, and I would like your assistance on this. It’s not a parliamentary convention in this house or in the other house to discuss different functions. It confuses advice.

You were wrong five years ago when Theodore Huckle was appointed, and you are wrong today. When it comes to an Assembly decision and a parliamentary decision, I have every right to discuss this. It is included in the law of the land that you voted for, and that’s why we’re discussing it. 

What's wrong with you today?

That's why we're discussing it. It's in the law of the land—[Interruption.] The second—

Simon Thomas, please continue.

Thank you, Llywydd. The second reason why Plaid Cymru wants to change the system here is that we would want to see a system of pre-appointment hearings for a Counsel General. It is a system that is provided in those nations where law officials are appointed by the Congress—in the United States for example, where there is an open hearing. It is a system that has been experimented with in this place. The Finance Committee has used the system to appoint the chair of the WRA and I hope we will see more of that. It would be a good thing for the Counsel General to appear before the most appropriate committee—the Constitutional and Legislative Affairs Committee, I suppose, but it could be a temporary committee to deal with the issue—to demonstrate how he or she would want to undertake the role, how he or she would respond to requests from Assembly Members and to show that he or she would be an appropriate individual for this post.

Thank you very much. That, of course, doesn’t mean that the First Minister wouldn’t still be able to just make one nomination and that one nomination would be discussed as part of that process.

Exactly, because we’re not questioning the nomination process here. What we are questioning here is the fact that the Assembly should approve this nomination, which would then be passed to Her Majesty. That is something that should be agreed. If we’re only here to rubber-stamp these things then what’s the point of this debate? What is the point of the motion? What’s the point of a debate if we’re only supposed to say, ‘Well, yes, whatever you do as the Cabinet, that’s absolutely fine’? [Interruption.] Yes, okay.

I'm afraid I didn't really catch the Member's response to my point earlier. I think there was a sedentary intervention you may have been replying to instead. But my fundamental point is: the Counsel General is the chief adviser to the Welsh Government, and surely it's a matter for the Welsh Government to choose who their chief legal adviser should be. 

Well, I think—and I appreciate the Member might not have heard what I said—we have the Welsh constitution, which is that the Counsel General is an appointment of this Assembly. It has to be approved by this Assembly—recommended by the First Minister, appointed by Her Majesty, but approved by this Assembly. Now, you could make a coherent argument—I'm not saying you couldn't make a coherent argument, which you've just done—around the division between law officers and Government, but that isn't what we have in this constitution. It has been changed twice, as I said, in two different Wales Acts. This has not been changed or looked at or sought to be changed. And there are other Commonwealth examples from Canada, the United States, and other parts of the Commonwealth where this is the law and process, where we do have a way of voting on appointments of Government law officers—[Interruption.]

If I can just finish my point, I accept there's been a development of this particular law officer, which started in a corporate environment, if you like, and has now developed to be more of a law officer for the Government, but our constitution has not changed and therefore it's important that we don't become some sort of spoon-fed baby Senedd for the Government to decide who they want to put in place. When it comes to an opportunity where we can influence the Government's appointments, then as a parliament we should do that. 

But isn't this a hangover from when we, perhaps, were more of a spoon-fed baby Assembly, as the Member puts it, and there was a Welsh Assembly Government and there was no legal distinction between one and the other? Now the Government is accountable to the Assembly and the Counsel General advises the Government, so surely the Welsh Government should decide. I am as keen to defend the rights of this Assembly as he is, but in this case, surely the First Minister and his team have the right to have their own choice of legal adviser.

I thought I'd finished and sat down, but shall I just carry on so that that can be read as an intervention? 

There are no other speakers, and therefore I call on the First Minister to reply on behalf of his Government. Carwyn Jones. 

It is correct to say, of course, that the Assembly approves the appointment of the Counsel General, who is then appointed by the Queen. In fact, the Counsel General is in a situation where a Counsel General cannot actually be taken from Government by the First Minister. That can only be done by the Queen or via the Counsel General taking that decision for himself or herself. It's hugely important that the Counsel General is somebody who is a lawyer, for obvious reasons. It is right to say, as Mark Reckless has said, that the Counsel General is the chief legal adviser to the Government, not to the Assembly. And so what role the Assembly should play is difficult to envisage. Arguments have been made in this Chamber that there should be pre-appointment hearings for those who are in executive positions or chair positions for Welsh Government sponsored bodies. This is not the same thing: this is somebody who would be a member of Government. And just to deal with the point that Simon Thomas raises about the US, the US is not a Commonwealth country as he said, and secondly there's an entirely different system of government. I do regret the fact that we were given no notice of Plaid Cymru's concern, but we'll deal with it in the Chamber. The reality of it is that, in the US, there is a President who appoints a Cabinet of people, none of whom are elected—none of whom are elected. On that basis, then, the constitution requires that there should be a pre-appointment hearing by the legislature in order to make sure that somebody who isn't elected is the right person for the job within the Government—it's a wholly different scenario. [Interruption.] Yes, yes—[Interruption.] The Member for Ynys Môn was first.

Is it not the case that the last but one Counsel General was unelected?

He was, and he was supported by this Assembly, without any requirement by Plaid Cymru at that time that there should be some kind of pre-appointment hearing. And so—

Will you give way?

Yes, go on.

I specifically, five years ago, challenged the appointment of Theodore Huckle.

Well, there it is. This is the appointment of somebody who is a Member of this Assembly, who is a lawyer, who is somebody who is amply qualified for the job of Counsel General and somebody who will be the chief legal adviser to the Welsh Government. If concerns had been raised beforehand, we would have tried to deal with those concerns, but this is the first that we've heard of them.

Bearing in mind that we are going through Brexit, it is hugely important that we have a chief legal adviser who is able to advise Welsh Government on many issues, particularly Brexit. I'm sure Members wouldn't want us to be in a position where we don't have an adviser who is able to do that.

So, again, I move the motion. Mark Reckless will forgive me for not addressing his direct points, because I agree with every word he said. That might not happen very often, but on this occasion I'm grateful to him for the words that he has said. I regret the fact that what is an appointment of somebody in Government, who is there to act as a legal adviser, has been—. Well, there we are, it's the Assembly's prerogative to deal with it in this way, but, nevertheless, it is absolutely right to say that this, even though technically, even though legally, is an appointment of the Assembly, it is, in effect, the appointment of somebody who will become a member of Government, though not a Minister. 

The proposal is to agree the motion. Does any Member object? [Objection.] I will defer voting under this item until voting time.

Voting deferred until voting time.