Part of the debate – in the Senedd at 4:09 pm on 29 November 2017.
Thank you, Presiding Officer. As Chair of the Constitutional and Legislative Affairs Committee, I am automatically a member of the Committee for Scrutiny of the First Minister. At the outset—and solely in that capacity—I wish to make clear that I've decided to oppose the Conservative motion and support the establishment by the Welsh Government of a panel of independent advisers to provide a source of independent advice on ministerial conduct, as required under the ministerial code, as was set out in the written statement on 23 November.
I welcome the appointment of James Hamilton as an independent adviser and I welcome the referral to him of the allegations made in relation to the conduct of the First Minister, and the fact that the report of Mr Hamilton will be published once the investigation has been completed. Mr Hamilton is a person of impeccable character and well qualified in his former role as director of public prosecutions and as a member of the Scottish Government independent adviser panel, and a person who we can all be assured will investigate these matters diligently and without fear or favour.
As a member of the Committee for the Scrutiny of the First Minister—[Interruption.] No, I think you should wait until I've actually developed my arguments and set out my analysis. As a member of the Committee for the Scrutiny of the First Minister, I have to add that I am not at all convinced that the approach adopted in the Conservative motion is the best way of dealing with these matters, or that it is constitutionally appropriate or the correct role for this committee. I also have serious concerns about whether the composition of this committee is actually capable of satisfying the necessary rules of natural justice that would apply. It is a committee that is responsible for the political scrutiny of the First Minister and his Government, which is separated from the legislature in accordance with modern parliamentary practice and by virtue of the Government of Wales Act 2006.
However, the Conservative motion would create a role and responsibility that was never intended for this committee, it would confuse its role and it would encroach upon and blur the separation of powers intended by the 2006 Act. It would transform the committee, in this matter, into a standards and conduct investigatory committee, which it clearly was never intended to be. It would give it the status of a quasi-judicial committee or at the very least a quasi-judicial function that it is not suited for.
The rules of natural justice have been rehearsed in many cases over the years in the courts, and apply not just to judges and established courts but also to judicial and quasi-judicial functions and procedures. The most established analysis of these rules emerged in a well-known leading case where the issue of conflict of interest and, in particular, a potential for a perceived conflict of interest arose. In that case the rules were very clearly laid out: justice must not only be done but it must also be seen to be done. An appearance or perception of impartiality is unacceptable. Even though there might be no evidence that an individual would not act robustly and independently, the fact that there might be a perception of impartiality would be sufficient to undermine public confidence in the process.