The following amendments have been selected: amendment 1 in the name of Julie James.

That brings us to item 5, namely the motion under Standing Order 17.2, to give instruction to the Committee for the Scrutiny of the First Minister.

I call on Paul Davies to move the motion.

Motion NDM6573 Paul Davies

Supported by Neil Hamilton

To propose that the National Assembly for Wales, in accordance with Standing Order 17.2, instructs the Committee for the Scrutiny of the First Minister in these terms:

1. That a special meeting of the Committee should take place at the earliest opportunity to establish an inquiry into the allegations made by former members and advisers to the Welsh Government in relation to bullying, intimidation and the undermining of Ministers.

2. That the Committee should establish the following as part of its inquiry:

a) when allegations were made to the First Minister and/or his office;

b) how allegations were investigated;

c) what actions were taken as a result of any investigation;

d) the role of the First Minister and his office in dealing with these issues; and

e) the validity of the answers given by the First Minister to the National Assembly for Wales in relation to such allegations.

3. That the Committee should take evidence from witnesses as part of its work.

4. That the Committee should prepare a report of its findings to the Assembly by February half-term 2018.

Motion moved.

Diolch, Llywydd. I'm pleased to move the motion, tabled in my name.

The sole purpose of this afternoon's debate is to seek agreement that a special meeting of the Committee for the Scrutiny of the First Minister takes place as soon as possible to investigate the allegations of bullying made by former members and advisers to the Welsh Government, and to get to the truth about these serious allegations.

Members are all aware of the recent allegations made against the Welsh Government and the office of the First Minister and it's absolutely crucial that those allegations are properly investigated in an open and transparent manner. Clarity is now required from the First Minister over his comments in recent weeks, and I believe it's entirely appropriate for that to happen as part of an inquiry undertaken by the Committee for the Scrutiny of the First Minister.

Before I develop my argument and speak specifically to this motion, if I can turn to the Government's amendment, which refers to the First Minister's statement last week on the appointment of an independent adviser to police the ministerial code. Of course, that announcement was made after this debate was tabled and even though this is a step in the right direction, we still believe that these allegations should be subject to the scrutiny of the Committee for the Scrutiny of the First Minister.

Members will be aware of the cross-party motion that was tabled in my name, alongside Aled Roberts and Elin Jones in the previous Assembly in 2014, which specifically called for the appointment of an independent adjudicator in order to improve transparency and thereby increase confidence in those elected to public office. The Welsh Government rejected that motion at that time, but the First Minister has now come to the conclusion that this is the right thing to do. However, I have to say that the timing of this is very suspect and it's quite clear that it is opposition parties that have led on this, while the First Minister and the Welsh Government have followed.

Even though I welcome the First Minister's u-turn, I still believe that it's appropriate for the Committee for the Scrutiny of the First Minister to hold an inquiry into the allegations, because we don't, at this stage, know the terms of reference for the independent adviser's inquiry. At least with the Committee for the Scrutiny of the First Minister, it will be totally transparent and held in public.

The committee process will afford the First Minister the opportunity to categorically spell out the nature of the allegations that his office received and to provide much-needed detail and clarification to some of the remarks made in recent weeks.

Would the Member give way?

Yes, of course. I give way.

I wonder if the Member would also factor in the fact that whatever the decision of the First Minister to refer himself to an independent adjudicator very late in the day, we have an issue remaining about what the First Minister told this Assembly over several occasions—the inconsistencies between what he told the Assembly on several occasions—and the lack of answers that we've had to date, and we need a parliamentary process to get to the bottom of that.

Absolutely, and that's why it's essential that now this matter is referred to the Committee for the Scrutiny of the First Minister. Whilst I appreciate that there is no precedent for us to follow in this regard, allowing the Committee for the Scrutiny of the First Minister to undertake this inquiry is, to my mind, the most transparent and effective way forward. Now, the First Minister had made it clear that he is open to scrutiny regarding the allegations and how they were dealt with by his office at the time, and I, of course, welcome that. There are several legitimate questions that need to be answered fully so that the people of Wales can be confident that any allegations made are dealt with robustly and documented accordingly.

It's essential that the Assembly accepts the motion before us this afternoon so that the Committee for the Scrutiny of the First Minister can get on with the job of asking those legitimate questions as soon as possible. Therefore, I'm extremely disappointed that the Welsh Government has taken the decision to amend the motion by removing the requirement of an inquiry by the Committee for the Scrutiny of the First Minister. As I mentioned earlier, we don't know the terms of reference for the independent adviser's inquiry and whether evidence to that inquiry will be subject to public scrutiny. It seems to me that if the Government don't want an inquiry by Committee for the Scrutiny of the First Minister then it suggests that it will only accept scrutiny on this matter as long as it's on its own terms.

Indeed, the First Minister refused to rule out whether he'd even vote on this motion this afternoon when he was questioned yesterday, again sending yet another statement that scrutiny of himself and his office will only happen on the Government's terms. Whilst there is nothing in the current Standing Orders that prohibits the First Minister from voting on this motion, is it morally right for the First Minister to set the agenda regarding his own scrutiny? I would argue that there is a conflict of interest here, and I would hope—I would hope—that the First Minister will use his discretion and not participate in the vote this afternoon. I give way.

I'm very grateful to the Member. We, obviously, all welcome the creation of an independent adjudication process, but, as has already been said, that should never mean that the First Minister then does not subject himself to ordinary parliamentary scrutiny by Members of this place, and I, and probably other Members now, have received written replies back to written questions where the First Minister is refusing to answer those questions because he says they will properly be referred now to the independent adjudication. Well, that can never be acceptable. We're duly elected in this place to hold the First Minister to account, and he should not use the independent investigation as an excuse not to answer questions.

Absolutely, and I very much agree with the Member for Carmarthen East and Dinefwr, and that's why this inquiry should go ahead by the Committee for the Scrutiny of the First Minister.

Now, let me remind Members that a key part of this inquiry is the First Minister's response to a written Assembly question from an opposition Member. The First Minister made it abundantly clear in November 2014, in a response to my colleague Darren Millar, that no allegations had been made, and yet, in response to an oral Assembly question, the First Minister has indicated any issues that were brought to his attention at that time were dealt with. Indeed, the committee inquiry would not just consider the First Minister's conduct and that of his office, but also the First Minister's response and attitude to Assembly business. If Ministers can change their answers to Assembly scrutiny, then what does that say about our institution? Therefore, it is entirely appropriate that the First Minister faces questions from an Assembly committee and, of course, the Committee for the Scrutiny of the First Minister is the most suitable committee.

Let me also remind the Welsh Government that their own business manager made it crystal clear in the Business Committee meeting last week that she was happy to see this inquiry brought before the Committee for the Scrutiny of the First Minister as soon as possible. Therefore, it's deeply disappointing that the Welsh Government has chosen to renege on its initial position, and this sends yet another statement to the people of Wales that the Welsh Government only answers questions when it feels like it, on its own terms.

It's my view that the to-ing and fro-ing on this issue has not helped the Assembly's reputation at all, and it's now time for this matter to be dealt with effectively through our own robust scrutiny channels. If the name 'Committee for the Scrutiny of the First Minister' tells the people of Wales anything, it's that it convenes to scrutinise the First Minister. The remit of the committee, as stated on the Assembly's website, and I quote, is

'to scrutinise the First Minister on any matter relevant to the exercise of the functions of the Welsh Government.'

Unquote. Therefore, this inquiry could not meet the criteria of the remit more adequately. Now, if the Welsh Government amends this motion today by bypassing this scrutiny avenue, then it effectively tells the people of Wales that the committee only scrutinises the First Minister when the First Minister wants it to. And the view—. And the view of an unnamed Labour Assembly Member, in media reports last week, that this process would lead to a 'political bunfight' is absolutely absurd. It shows no respect for the Assembly Members sitting on that committee, which is, frankly, alarming, as every one of those Members is a committee Chair that was democratically elected to their role by this Assembly. The Committee for the Scrutiny of the First Minister is formed by not only some of our most experienced Assembly Members, but by those who are the front faces of Welsh Government scrutiny. And I can hear mutterings from the Labour benches. If somebody wants to intervene on that point, then I'm quite willing to give way. No.

Now, it's my view that, as part of the inquiry, the committee should take evidence from a range of witnesses. Those witnesses must include not just the First Minister, but also his staff and office at the time, as well as former Members and former special advisers, so that the committee can be confident that the range of evidence received is balanced and comprehensive. I also believe that the committee should prepare a report of its findings to the Assembly by February half term 2018. It's important that a focus and direction is given to the inquiry from the outset.

The remit of the committee's inquiry should also consider the points raised in today's motion. It's absolutely crucial that the allegations are thoroughly examined, as well as any action taken, as a result of bullying complaints. And, as I mentioned earlier, the validity of the answers given by the First Minister to the National Assembly for Wales in relation to such allegations is a vital reason why the Committee for the Scrutiny of the First Minister should undertake this inquiry in the first place. And so, therefore, the First Minister's response to Assembly questions must be given significant attention as part of this inquiry. At the very least, this needs to be clarified so that the people of Wales can have full confidence in the Welsh Government's operations.

The Welsh Government's amendment to this motion simply shows the First Minister's attempt to set his own scrutiny by self appointing an independent adviser to investigate his actions in the last two weeks. There's also no confirmation that that there will be any public scrutiny by the First Minister's adviser, and there is certainly no confirmation in the amendment that the First Minister's own inquiry will consider his responses to questions in recent years. In fact, it merely states that it will consider allegations made in the past two weeks. 

Therefore, in closing, Llywydd, there has been talk in recent weeks of delivering natural justice, and an inquiry that is set on the Government's own terms behind closed doors does not set that agenda. A public, transparent forum is one of the vehicles to deliver that, and so it's entirely appropriate that this motion is allowed to pass. Indeed, the Assembly has always prided itself on being an open and transparent forum, and it's crucial that we continue to operate in this manner. No Member should deny this process from happening. Therefore, I urge Members to support this motion and send a message to the people of Wales that the National Assembly for Wales is free to scrutinise the First Minister when the opportunity calls for it.

I have selected the amendment to the motion, and I call on the leader of the house to move formally amendment 1, tabled in her name.

Amendment 1. Julie James

Delete all and replace with:

To propose that the National Assembly for Wales, in accordance with Standing Order 17.2, instructs the Committee for the Scrutiny of the First Minister to note:

1. The Welsh Government’s commitment to appoint a panel of independent advisers to provide a source of external independent advice on Ministerial conduct as required under the Ministerial Code as set out in a written statement issued on 23 November 2017;

2. That James Hamilton, a current independent adviser to the Scottish Government, has been appointed as an independent adviser to the Welsh Government; and

3. That the First Minister has referred himself to James Hamilton in relation to allegations, made in the last two weeks, that he breached the Ministerial Code; and

4. The final report of the independent adviser when published.

Amendment 1 moved.

Formally.

Formally. Formally. Leanne Wood.

Diolch, Llywydd, and I'm grateful for the opportunity to set out Plaid Cymru's position on today's motion and on the Welsh Government amendment. These are difficult circumstances, which make it all the more vital that light is shed on the events that have been raised as a concern. 

We're all aware of the allegations made about bullying within the Welsh Government dating to 2014, and the discrepancy over which specific or official allegations were made. To date, attempts to scrutinise the First Minister on this have not got to the bottom of the type of issues that were raised. The answers given by the First Minister in First Minister's questions last week had more detail than the previous week's answers, but still did not answer some basic questions. Those unanswered questions include: what issues were raised, and how were they dealt with? Was a report produced, or was a report provided? Was there civil service involvement at all? Those questions may well have answers, but those answers have not yet been provided. 

Would the leader of Plaid Cymru give way?

Yes.

Could I add further to those questions—because these are the very specific allegations made by Leighton Andrews—was a formal investigation requested of the First Minister in response to the allegations, or the concerns or issues, that he raised with the First Minister?

It would be good to have answers to that and all the other questions as part of this debate. But, failing that, they do need to be answered somehow.

Now, the Plaid Cymru position on this has been to advocate greater scrutiny. We want as many of the facts to be established as possible. We note that the First Minister has said that he’s ready to face scrutiny, yet today’s Welsh Government amendment manages to close down one route for that open and transparent scrutiny to take place, even if it does create another route.

The First Minister announced last week that he’s listened to those who have called for an independent referral process and that the ministerial code has been amended. Plaid Cymru has, of course, long called for the establishment of some kind of independent adjudicator to police the ministerial code. It simply is not right that the First Minister is police, judge and jury when it comes to Ministers’ behaviour, and it’s especially not right that he is responsible for policing his own behaviour.

We first called for this independent adjudication back in 2014, during an unrelated issue, and we called for it again in 2016. Scotland has an independent adviser in place and has had so since 2008, and the procedure has been used there six times since it was introduced. So, the change of position on this point from the Government is welcome, but it begs the question why did it take this albeit poorly worded motion to force the Government to take action. Why did it take the prospect of public, on the record, scrutiny to make this happen? And is it right that the Government, through the cracking of the whip, determines the process by which this matter is heard?

The problem here for Plaid Cymru is that the Government has placed a 'delete all' amendment, and, by doing that, the Government party gets to decide how the Government leader is scrutinised. We’ve long wanted this type of surveillance of the ministerial code, and, had the Government done this before, they may well have avoided some of the problems that they face today. But we cannot support one form of scrutiny being used to delete another form of scrutiny. We want the independent adjudicator as well as full parliamentary scrutiny. Now, it’s likely that the Government amendment will pass, and I find this regrettable. Plaid Cymru maintains that the two forms of scrutiny are not mutually exclusive. As a result, we will vote for the motion and against the Government amendment.

I’d just like the Government party to consider this: do you think it’s a good look to be seen to be looking as though you are avoiding full scrutiny? I would argue that it isn’t. If there was no bullying, and if there were no other issues that should cause us all concern in the way that the Government is run and the culture of Government, then a full and open process should not be feared. Arguments that this particular committee is too big and unwieldy are technical arguments. There’s a principle at stake here. Do we shine a public, open, honest light on these allegations, or do we allow the First Minister to decide the process by which he is answerable? Natural justice should provide only one answer to that question.  

Well, I think the leader of Plaid Cymru in her winding up in her speech got to the nub of the issue. The Government may use its majority in the Chamber of those who are present today to frustrate the desire for transparency that exists not just in this Assembly but also outside it, it may win the vote here today, but it certainly will not win the vote in the court of public opinion outside, and, if the reputation of the Government means anything, I should have thought it would have wished to at least look good to the outside world. But let's remind ourselves of what this is all about. It's not just about bullying. I think that to use the word 'bullying' in this context does a disservice to what we are debating here today.

Let's listen to Leighton Andrews's own words—and they weren't just off-the-cuff comments; they were written by him in a blog, so he knew what he was doing. He said:

'there had been deliberate personal undermining of Carl Sargeant from within the Welsh Labour Government over several years. I am not going to name names today'— but let's hope he'll do so in due course—

'But I made a complaint to the First Minister about one aspect of this, of which I had direct evidence, in the autumn of 2014. An informal investigation was undertaken.'

I noticed that the First Minister nodded in disagreement when Adam Price a moment ago asked whether there was a formal request for an investigation. Leighton Andrews says:

'I then asked for it to be made formal.'

So, Leighton Andrews has said there was a request for a formal investigation, and we certainly do need to tell which of the two accounts is correct. He went on to say that he was told that it would be made formal. He was never shown the outcome. There was no due process, he said. 

And it's not just a former finance Minister in the First Minister's own Government who said that. Of course, there was his former special adviser as well, Steve Jones, who made similar comments, which I won't repeat, because it would be otiose.

The seven principles of public life attached to the ministerial code say that

'Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.'

And where better to scrutinise the actions or inactions of the First Minister than here in the elected National Assembly of Wales? To appoint someone from outside to examine the facts, no-one can disagree with. I'm not opposed to an independent adjudicator or investigator at all. I don't see these two options as in any way contradictory; they are complimentary. We should have both. But it is we who are elected and in this place who have the right to ask the questions, and to continue to ask the questions until we get the answers. We don't know whether the investigative process that the Government has chosen is going to be in public. We don't know whether the right questions will be asked. We should be the ones to determine that. We don't know what the terms of reference of this investigation are going to be. They should proceed in tandem. And I believe that this National Assembly would be failing in its duty if it doesn't succeed in achieving what it is here to do, which is to scrutinise the actions of the Government.

Now, I appreciate there are political difficulties for Labour AMs. It's the First Minister who is under scrutiny, but not just the First Minister, because it goes much wider than that. It's the actions of special advisers, possibly other Ministers, according to Leighton Andrews at any rate. He went on to say that the atmosphere on the fifth floor in 2011-16, a much longer period, was toxic:

'minor bullying, mind-games, power-games, favouritism, inconsistency of treatment to different ministers, deliberate personal undermining on occasion.'

And he said also that Carl Sargeant was unquestionably the target of some of this behaviour. Now, what has happened to Carl Sargeant, of course, could not have been foreseen, and I don't hold the First Minister responsible for that. But the consequences of his inactions over the years may well have had that unforeseen outcome. We owe it not, therefore, only to the public outside, but especially to Carl Sargeant and his family to have a full and open scrutiny of the facts behind this affair.

I notice the silence from the Labour benches today. They are not just members of the Labour Party; they are members of the National Assembly, and it's simply not good enough to be Carwyn's terracotta army there, mute and immobile and silent in the face of what clearly has the possibility to be exposed as a major public scandal.

And so, I just ask the First Minister to look himself in the mirror and to come back with the answer to the question: does he really think that the public outside are going to be convinced that the kind of inquiry that he wants—self-appointed, by someone who he has chosen, with a procedure that we don't get the chance to question, questions that need to be put that we will be prevented from putting—whether that is likely to be regarded as a credible form of investigation, and whether it’s likely to get to the answers that everybody wants to elicit. I believe that there would be a resounding ‘no’ to that in the outside world, and that the First Minister would be doing a massive disservice to the public at large, and to the whole people of Wales, by trying to force through this amendment to this motion today.

Thank you for the opportunity to contribute to this debate. I want to say from the outset that anyone here who knows me knows that, as a Labour Member, I have never, ever shied away from scrutinising my own side. There cannot be a Minister in any Welsh Government, past or present, who I haven’t asked difficult questions of, and that includes the First Minister, both in his current role and when he was a portfolio holder. I would fight to the end for the right of Labour backbenchers to come here and do what is right in the interests of their constituents and in keeping with their own values and principles. That is the way I have always worked, and this debate today is no exception. I also believe it is right that the allegations that have been made are properly scrutinised, and I welcome the First Minister’s decision to ask James Hamilton to independently investigate them.

But I certainly do not believe that the motion the Welsh Conservatives have tabled, calling for the Committee for the Scrutiny of the First Minister to look at these allegations, is the right thing to do, for a number of reasons. Simon Thomas has said that using the committee would be unwieldy, and I agree with that, but I also think that a body used to scrutinising policy decisions is not the appropriate body to undertake work of this kind. Are we really expecting AMs, in a public committee, to try and drill down into the detail of what happened three years ago on the fifth floor, and to look at the detail of who said what, when and to whom? I am also concerned that some witnesses, including civil servants, may feel very uncomfortable about feeding into such a public forum, but may be willing to talk on a one-to-one basis to James Hamilton. [Interruption.] I’ll give way to Rhun.

Thank you for taking the intervention. Would you accept, though, that in the absence of an independent adjudicator, this was the only model that was open to the Assembly? Once the proposal was made to refer to the scrutiny committee, any attempt through 'delete all' to get rid of that scrutiny process can only be seen by people outside this Welsh Assembly as an attempt to duck public scrutiny.

No, I don’t accept that, because we have now an independent mechanism in place.

It is crucial that any investigation is not just independent, but is seen to be independent, and completely above party politics. Andrew R.T. Davies yesterday made much in questions of my colleague Jeremy Miles’s interview on the Sunday Politics show, suggesting wrongly that Jeremy Miles had questioned the ability of the Labour Chair and the Labour Members of the committee to undertake such scrutiny. That is not what he said. He said that he was absolutely sure that we would do the work without fear or favour, but he also made the point that it is crucial the committee is seen as independent, too. We all know here that politics is also about perception, and I seriously question whether the public would view the committee as being independent.

Now, I do not in any way doubt the ability of the Labour Chair and myself and my Labour colleagues to robustly scrutinise the First Minister on this. But it is essential that any investigation is able to complete its work and draw a line under this without questions about the political make-up of the committee undermining its credibility. I’ve been an Assembly Member here for 18 years and these are, without doubt, the darkest days any of us have known. I think all of us across this Chamber should remember that we are all, including the First Minister, grieving for a friend and colleague. I am deeply uncomfortable that this motion has been brought at this time, and I personally want no part of it.

[Inaudible.]

How dare you. How dare you. You’re a disgrace. You are a disgrace.

Lee Waters, I heard nothing. Mick Antoniw.

Presiding Officer, as Chair of the Constitutional and Legislative—[Interruption.] As Chair—

I am going to ask Mick Antoniw to continue, and I’m sure that what he’s about to say deserves to be heard.

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.

Will the Member give way? 

Yes, I will. 

I'm very grateful. I am listening with great interest to what he's saying, both in terms of his previous role and his current role. What I'm not clear about at this stage is whether he's saying that the mentioned committee in the motion, which is the Committee for the Scrutiny of the First Minister—it has already been quoted that I've already said it is quite unwieldy for this purpose—whether he thinks that's inappropriate, or whether he's saying it is inappropriate for any parliamentary scrutiny of the First Minister's conduct to take place at all, because I think he's straying dangerously close to that conclusion. 

No, I'm not coming to that conclusion, because the two matters have been intertwined and have now become a matter of ministerial scrutiny, and also the separation of powers. I think I will lay it out further when I develop my argument in respect of the rules of natural justice, which I think actually also deal with the point. 

In that case, the rules were clearly laid out—justice must not only be done but must be seen to be done, and 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 would be sufficient to undermine public confidence. I emphasise that point. The judgment in this case reiterated earlier pronouncements on the rules of natural justice where the principle was outlined. It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly or undoubtedly be seen to be done. And this principle was confirmed and further clarified as follows: 

'The requirement of due process or natural justice or procedural fairness...and the importance of the absence of bias in a decision maker is in part based on the importance of appearances.'

Presiding Officer, if I am correct in what I say about the quasi-judicial status that would be conferred on the committee, it follows that these rules of natural justice must apply. The committee consists of the Chairs of committees appointed by the political parties, and the role of the committee is inherently political. I have no doubt, as was confirmed by the Counsel General yesterday, that we are all persons of integrity and would do our utmost to be unbiased and impartial. However, bias can be actual or imputed. The purpose of the rules of natural justice in this respect is to ensure public confidence in the process. The committee, no matter what its intentions and best efforts, cannot avoid the inevitable perceived conflict of interest. This would inevitably undermine confidence in the eventual outcome and conclusion of any report produced by the committee under this mandate.

Will you give way, just very briefly? Thank you. What about the perception of the bias of Government deciding how it pursues natural justice in this case?

The point is that, if we give a body a quasi-judicial function, then the rules of natural justice must apply to it and the way it operates so that perceptions of impartiality are absolutely fundamental, and that is why the issue of an independent adviser becomes such an important one. [Interruption.] No, I want to finish my theme.

The investigation—

Yes, well, you actually need to conclude.

I've taken two interventions.

You've had seven minutes now, so can you come to the end?

The investigation has to be independent, a point accepted, I believe, by all party leaders in this Chamber. The process has to be independent. The person conducting the investigation and reporting has to be qualified to carry out such an investigation and robustly independent if the outcome is to be respected and carry public confidence.

We are establishing principles and a precedent in this motion, which will be required to withstand the test of time for the future. Consequently, the proposal for this matter to be referred to an independent adviser under the ministerial code is by far the best and the most appropriate course of action. 

I find this afternoon's debate incredibly difficult and uncomfortable. There's much that I would like to say, but I think it would be wise not to say it at this time. In two days' time, we're going to be burying our colleague and friend, and I think there's something unseemly about having this nature of debate while that still hasn't happened. I find it reprehensible the way that people have used this tragedy to settle scores from their time in Government. I think the First Minister, to his credit, has set up two separate independent processes, which is unprecedented. Those need to be given time to draw their conclusions. I note what has been said about then a parliamentary process taking place and I think that that time is the right time—when there's been reflection and evidence and a passage of time—to have that debate.

I have no difficulty with the Committee for the Scrutiny of the First Minister meeting once those reports are published and for the proper process of scrutiny to take place, but today is not that day.

I was struck two weeks ago when we met to pay tribute to Carl Sargeant by the decency shown in this Chamber, and I'm disappointed by the tone that has been struck this afternoon. I was particularly disgusted by the comments of the leader of the opposition from a sedentary position to my colleague Lynne Neagle that she'd taken the shilling—

Andrew R.T. Davies rose—

I think you've said enough, Mr Davies—

Well, he might want to clarify what he said.

He can do that in his own time, Llywydd, with respect.  I'm not taking an intervention. I'm not taking—[Interruption.] I'm not taking an intervention. [Interruption.] That's what I heard—

The Member is not taking an intervention, and the leader of the opposition is to be called at some point and he can clarify his point.

The tone of the comments—. Other Members have made reference to the whip being cracked. I assure Members of this Chamber that there is no whip needing to be applied in this afternoon's debate. We are all of one voice in agreeing with this independent process being set up and following that through and at the end of it having a full and open debate. At that time, I shall remove the bite mark from my tongue and speak more freely.

In the case of an investigation relating to a potential breach of the ministerial code, having a robust independent process is crucial, and I believe that it's right that any complaints against the First Minister relating to the ministerial code must be examined by an external independent adviser. This ensures an effective, rigorous and fair investigation. As the leader of Plaid Cymru said, such a procedure is not unique; it already happens in Scotland. In fact, the importance of an independent person conducting investigations into potential breaches of code of conduct, is already recognised by this Assembly. All Members will be aware that the Standards of Conduct Committee operates on the basis that when a complaint is reported to the standards commissioner about an Assembly Member, it's the commissioner, an independent QC, who investigates the complaint. It's not the committee that investigates.

So, I think it's absolutely right that to consider any potential breach of the ministerial code thoroughly and fairly, it's entirely sensible for an independent adviser to investigate complaints against the First Minister, just as it is for an independent person to investigate a complaint against any Assembly Member.

At the start of my contribution, I wish to place on record that I'm a member of the Committee for the Scrutiny of the First Minister. Can I also stress, particularly to the UKIP Member for Mid and West Wales, I am not a member of any terracotta army—I have my own voice and my own views.

Llywydd, there's no doubt that everyone in this Chamber wishes to see answers to the questions contained within the motion—answers that are derived from a robust and rigorous investigative process. Now, our focus this afternoon is not only to determine the process used to arrive at those answers, but also to ensure that everyone, both inside and outside this institution, believes those answers to be fair and accurate. Only yesterday, the leader of the opposition agreed that there will be an inquiry, irrespective of the decision of the Assembly this afternoon, when he asked the question during First Minister's time. So, with that agreement, surely what's important is to ensure that the process that is followed for this inquiry is rigorous and the outcome is unquestionable.

I acknowledge the actions that the First Minister has taken. As I understand, it was in response to a letter that I sent to him on 10 November asking him to undertake that investigation and set it up. But I would make the point that the terms of reference, as I understand, are specific to 2014 and the comments and remarks that have been made in the media for the two weeks that we've been in session here. It does not reflect on the wider allegations that have been levelled at the office of the First Minister and the First Minister himself by the former special adviser.

I thank the Member for that intervention, and he's answered—[Inaudible.]

I would have thought that an independent approach, in fact, would be the most obvious way to meet that requirement, and, as he pointed out, he made that request in his own letter to the First Minister, stating that the appointment of an independent third party to conduct an inquiry was an honourable course of action when the First Minister of Scotland faced similar allegations. So, we may ask: what's changed his mind? I think he's tried to highlight that point just now, but if it was honourable on 14 November for Scotland, why isn't it now for Wales?

The motion asks for the Committee for the Scrutiny of the First Minister to undertake this work and whilst the committee is independent of the Welsh Government, it is not, unfortunately, independent of this institution. Now, I'm aware of the arguments that have been raised this afternoon—that this should not be a reason for the committee not to undertake this work. And as the leader of the opposition said yesterday during FMQs, he believes in its integrity and objectivity, and I appreciate that, very much so. But, unfortunately, there are some outside this institution who would question that.

Now, as Lynne Neagle has already said, I hope Members also recognise that I often hold the First Minister and the Welsh Government to account on certain issues; I'm not afraid to be asking those difficult and challenging questions. But as we seek the truth through those answers, we must also be truthful to ourselves and recognise that questions will be raised about our independence. To that extent, I do believe that the leader of the opposition was a little bit naughty yesterday. I won't go into it further, because Lynne Neagle has already raised the points of what Jeremy Miles said, actually on the Sunday Politics Wales show, and I listened to it several times to confirm exactly that. It is important that you look at the context, and the context was that it is not hard to imagine that if the committee reached a different outcome, that would be criticised because it would not be seen as independent. That's the clear context—

Will you take an intervention? I used to work as a probation officer, okay, and can you imagine a situation where a client of the probation service was able to determine the process by which they were investigated, tried and the situation heard? Can you imagine a situation where that would be allowed to happen and that would be called natural justice? It would never happen, would it?

The Member raises one example. There could be other examples that we could raise, so I wish to continue with my answers and my speech.

This issue about the perception of independence—it's already been raised about what people say, but let's be honest, again, and be truthful to ourselves: one member of this committee actually was a Minister in the Assembly Government in 2014; one Member has recently been a member of the Cabinet; another Member's husband was actually a Cabinet Minister within that Assembly. There will always be sceptical views and voices being heard as a consequence of those issues, and it's time to get real and be honest and acknowledge that this will be an excuse used by some to put doubt in people's minds about anything other than a full condemnation of what comes out of this investigation of the First Minister. Now, we don't want that and we don't need it. We don't want the doubt being created.

Now, what the amendment seeks to achieve is the process of an independent analysis of the allegations, leading to the production of a report, and the submission of that report for public scrutiny. For those who argue the Assembly should be allowed to scrutinise the First Minister, that would become public and it will be brought before the Assembly. In fact, the amendment indicates that it will be noted by the Committee for the Scrutiny of the First Minister. So, it will be looked at.

I'm supporting the amendment this afternoon. I believe that this will give the people of Wales the most independent, most rigorous and transparent process of the outcomes that will have confidence, not just in Assembly Members in this institution, not just within this bubble, but in the people outside this institution who cannot point any fingers because of any perceived possibility of non-independence. That's what we—[Inaudible.]

I call on the leader of the house, Julie James.

Diolch, Llywydd. Thank you very much for the opportunity to respond to this debate this afternoon.

I want to start, I'm afraid, by just putting right something that was said about what I said in the Business Committee, the proceedings of which, I understand, are normally confidential. I abstained from the vote about whether this motion would go forward, on the basis that I had not yet consulted my group about it and on the basis of the likelihood that we would amend it. My understanding and the minutes reflect that discussion.

This debate is about the arrangements, which have now—[Interruption.] No. No, the minutes reflect it. You brought it up—the minutes reflect it.

This debate is about the arrangements that are now to be put in place to look into the allegations that have been made in the last few weeks that the First Minister has breached the ministerial code. Of vital importance is that whatever process is put in place to explore the alleged breaches of the ministerial code, we need to be able to draw a line under this. We cannot be in a position where the validity of any investigation is under question and continued calls for additional inquiries overtake the proceedings of this Assembly.

Clearly, it is essential that scrutiny must be effective and independent and seen to be above party politics. This is one of the reasons that we do not feel that the Committee for the Scrutiny of the First Minister is the appropriate body to take forward alleged breaches of the ministerial code. As mentioned by a number of contributors, the committee is chaired by a Labour Member and has a majority of members who belong to the Labour Party. As the Counsel General made clear and as has been mentioned many times in this Chamber today, our position does not question their integrity to act independently without fear or favour, but reflects the reality of the perception that could be had by the wider public. I, too, heard the disgraceful comment and think the leader of the opposition should withdraw it.

Llywydd, these are allegations that must be properly and thoroughly investigated. As set out by Mick Antoniw, by establishing a special meeting of the Committee for the Scrutiny of the First Minister to undertake such an inquiry, this National Assembly would be blurring the constitutional lines between the Executive and the legislature, lines that this Parliament should keep clear and lines that many from across this Chamber have long argued should be separated, as they are in the Scottish Parliament. It is the National Assembly's—[Interruption.] No, it's the opinion of an Assembly Member who contributed to this debate. It is the National Assembly's legitimate role to scrutinise the Executive, but we should not be putting Members in the position of investigating serious allegations that have been levelled against the First Minister. These are matters that can be and are more appropriately—

[Inaudible.]—on this point?

Certainly.

She seems to me to be making an argument for the dissolution of the Standards of Conduct Committee, because it could be said that all her criticisms of what is being proposed here would apply to that committee too.

Not in the least. The Standards of Conduct Committee refers allegations to an independent commissioner.

These are matters that can be and are more appropriately dealt with under the ministerial code, but they should be investigated outside the political process and by someone with relevant professional experience. The ministerial code sets out the First Minister's expectations of standards of ministerial behaviour and personal conduct. The code applies equally to the First Minister.

We acknowledge that until now—

Will you give way? I'm listening to her very carefully, because, obviously, as leader of the house, she has a wider responsibility—she is leader of the entire house. Is she suggesting that our right, our ability, in fact our duty as Members of this Parliament to ask questions of the First Minister is somehow limited, is somehow curtailed—that there are some no-go areas? Because, as I pointed out to her, I have now received written replies in relation to specific questions, as have other Members, where the First Minister is now using the independent investigation as a shield to proper scrutiny. Surely, as leader of the house, she would not want to defend that.

No, I made no such suggestion. The ministerial code sets out the First Minister's expectations for standards of ministerial behaviour and personal conduct, and applies equally to the First Minister. We acknowledge that, until now, there has been no opportunity for independent assessment of significant concerns raised in relation to the First Minister's adherence to the ministerial code.

There have been many calls—many in this Chamber—for an independent adviser to be appointed to provide a source of independent and external advice on the ministerial code, as happens in Scotland. Indeed, the leader of the opposition referred to this in his letter on 14 November, and indeed referred to the process followed in Scotland, and commended it to the First Minister.

In light of recent events and in line with what happens in Scotland, the ministerial code has been amended to allow for such referrals to be made to an independent adviser where the First Minister deems it necessary. Section 1.4 of the code now provides that the First Minister may ask an independent adviser to provide him with advice on which to base his judgment about any action required in respect of ministerial conduct, and that the adviser's findings will be published. This can apply to any Minister, where appropriate.

Thank you very much for taking the intervention. I wonder: do you accept that there may be an argument that an early parliamentary investigation, if I can put it like that, would actually be of assistance to any independent inquiry, particularly as it is likely to unearth issues that perhaps won't have been foreseen at the time that the independent investigator might have been given a remit to follow?

No, I don't accept that, actually, and I wouldn't accept that if I were subject to a referral in standards either. The point about this process is that it can apply to any Minister, where appropriate, whereas the procedure proposed by the motion in front of us would only apply to the First Minister.

The code does not prescribe the scope, format or conduct of any inquiry the adviser may be asked to undertake. It is for the adviser to determine how to act on matters referred by the First Minister, as is the case in the Scottish Parliament. 

Over the coming weeks, a panel of several suitably qualified and experienced advisers will be appointed to undertake this work, individually or collectively, for any cases referred in the future. In the meantime, James Hamilton, the current independent adviser to the Scottish Government, has accepted an immediate referral from the First Minister in relation to allegations that have been made that he has breached the ministerial code. The amendment the Welsh Government has laid to the motion in front of the National Assembly today recognises the action we have taken to strengthen the ministerial code for the future, and to start an immediate independent investigation into these allegations.

This investigation will look at the issues that have been aired in this Chamber and in the media in the last couple of weeks, and will determine whether the First Minister breached the ministerial code. We will ensure that the National Assembly, via the Committee for the Scrutiny of the First Minister, receives a copy of Mr Hamilton's report. A fortnight ago, the leader of the Welsh Conservatives, who today asked for a National Assembly committee to look at these allegations, asked the First Minister and the Permanent Secretary to appoint an impartial third party to investigate.

I think I'm speaking on behalf of everybody in this Chamber when I say that we all agree with what you have been setting out, in terms of the ability of an independent adjudicator to ask questions in depth and to conduct a useful role. But will you concede that it has been a grave error for this Government, and previous Governments, to refuse to proactively set up the post of independent adjudicator, and that now, because the Government finds itself in a difficult situation, people see this—perceive this—as I said earlier, as a means of trying to duck public scrutiny? It is too late in order for you to set up this and claim that it is something that, somehow, you always supported. You refused to do this in the past.

On the contrary. I've heard very carefully what Rhun ap Iorweth has said. What I'm saying is very simple and straightforward. There is a correct constitutional position that we are urging this Chamber to look at. I agree that we could have done it earlier. The fact that we didn't do it earlier doesn't make it the wrong solution. In fact, it continues to be the right solution. Putting a different solution in place, which isn't the one you've always called for, because the situation now warrants us to do it, is not the right response to the correct constitutional solution.

Llywydd, we have listened to the arguments of those who proposed the right constitutional solution. I accept that we could have done so earlier, but our amendment reflects the reality of the correct separation of powers. Diolch.

I call on Andrew R.T. Davies to reply to the debate.

Thank you, Presiding Officer. If I may, before I start my contribution, I do want to take issue with the contribution of the Member for Llanelli, accusing me of making an allegation from a sedentary position about Lynne Neagle, the Member for Torfaen. I did not make that. I hold the Member in the highest regard possible, and I do want the record to show that because I know full well that you are a Chair of a scrutiny committee that holds no quarter when that scrutiny is due, and you do make sure that the Government is held to account, and I have seen that in the 10 years that I have seen you here, performing your role as the Member for Torfaen.

The debate today—[Interruption.] The debate today—[Interruption.] The debate today—[Interruption.] The debate today is quite clear. There is a role for this Assembly to play in scrutinising what has come to public attention over the last three weeks. It is unthinkable that any other organisation that had had these accusations made by senior people who worked at the heart of that organisation would not be called to account by this institution. It is regrettable that the house will divide along party lines, and I’m assuming that the party lines are being whipped from the Government’s side for the division to take place.

There are three inquiries that potentially, if this motion were to be carried forward, could happen. The first is the independent inquiry that the Permanent Secretary is working to establish with the family, and has no relevance to what we are debating here today. The second is the inquiry that the First Minister announced only on Thursday of last week, of the independent person to be put in charge of a referral by him over issues that he believes have been raised over the last 14 days. But, what is really important is that there is an inquiry of the Committee for the Scrutiny of the First Minister to look at the overall allegations, accusations—call them what you will—that have been levelled by many people, some anonymously, but by two people in particular who have first-hand experience stretching back to 2009—not just 2014; 2009—and for the entire period that they were in Government.

I will be the happiest person in this Chamber if those allegations can be disproved. There is no one person in this Chamber, surely, who stands for bullying, intimidation and any of the other accusations that have been levelled by individuals during their time in Government. I do draw Members’ attention to this fact: can you name another organisation that, if you had heard in your role as an Assembly Member—I will take the intervention in a minute—if you had heard of another organisation, where you sit on various committees and you scrutinise that organisation, that you would not be bringing forward that organisation to be held to account about the accusations that had been levelled and to take witness statements from the people who had made those accusations?

Could you just tell me what your view is as to what would be the most credible in the eyes of the public—a committee outcome of persons who are clearly members of political parties and political appointees, effectively, or an independent adviser?

You've hit the nail on the head there, Mick, in fairness, because the independent advisers I've said—and I haven't been corrected on this—will only be looking at the specific referral of the First Minister regarding the allegations that have come forward over the last 14 days. The allegations that are in the public domain about bullying and intimidation stretch back to 2009, and the point that my colleague Paul Davies made in his opening remarks was that each and every member of that committee is elected by the entire house—an important consideration. [Interruption.] We could end up having a debate between ourselves, but I will take another intervention.

No, the point was very clear. In terms of the issue of public confidence in outcome, which will have the most confidence: an independent adviser or, as you say, a committee of political appointees?

I think both are important in the public's mind. Ultimately, if an important committee—the premier committee, I would suggest, of this Assembly—of all the Chairs of the Assembly coming together and scrutinising the First Minister on allegations that have been made cannot undertake that scrutiny, then there is something seriously wrong. I will take the intervention in a minute. I do draw on Paul Davies's opening remarks. This committee is convened of the Chairs of the Assembly, who are voted on by the entire Assembly. It is not party appointees. It is not whipped, I assume, like other committees potentially can be on certain votes. As I said in my remarks, there will be no happier person in this Chamber if these allegations can be disproved. It is not a political priority or a political narrative to support bullying, intimidation and a toxic workplace environment. Surely, none of us stands for that, and we need to get to the bottom of these allegations.

I'm grateful to the leader of the opposition for giving way just on this point, because one of the things that I think we've lost focus on in some of this debate is this holding a public parliamentary process by which key questions can be asked. One of the questions I would want to ask, which I will not get to ask now in such a public forum, it looks to me, because we're going to vote a certain way, is: what was the definition of bullying used by the First Minister when he said that no specific allegations of bullying had been made? Because the Welsh Government's own dignity at work policy makes it clear that you don't need to allege bullying; it's a pattern of behaviour that should be investigated, and that's what we can do usefully in an open public arena. And we'd give assurances to the public, not only by having experts who rightly have the legal ability to scrutinise these things independently, but also by challenging that evidence in open, public fora.

I couldn't agree more. It's about understanding whether the allegations in the first instance stack up, what actions were taken when the allegations were made to the First Minister and, above all, what actions were put in place to address the concerns, if they stacked up when they were investigated. And, importantly, who investigated them? Because none of us knows the answers to any of those questions, and they have been asked.

And I ask this question again of the Labour benches: if you were sitting on a committee of an organisation you were scrutinising and senior people within that organisation made these allegations—and I use the word 'allegations', because that's what they are, allegations that need to either be stacked up and proved or disproved—wouldn't you have them before you? Wouldn't you have them before you to give the evidence? Likewise, the people involved in being accused of not doing the actions to address the concerns, wouldn't you have them in to give their side of the argument? That's what this motion is about.

I've heard what people have said about timing, and it is right: when would be the appropriate time to undertake this? We have put this motion before the Assembly today because, as I said, the investigation into the tragedy that flowed from the Cabinet reshuffle is an independent process that is going on by separate inquiry. There is now the investigation that the First Minister has referred himself to, the independent person, which he announced last Thursday. I put my letter in asking him to do that on 10 November. This motion appeared on the order paper last Thursday. I just ask you to draw your own conclusions as to why that came out on the very same day.

I do believe that the public will look unkindly on us as an institution—an institution that, in my view, is the parliament of Wales—and as the democratic representatives of Wales, not having the opportunity to make inquiries and scrutinise the First Minister through the medium of the Committee for the Scrutiny of the First Minister on allegations that have been levelled directly at his office and his actions. As I say again, I don't think that's an unreasonable proposition to ask Members to vote for this afternoon. I do hope that, on reflection, Members will vote to support this motion, will allow the committee to undertake its work and, ultimately, I hope, disprove these allegations, but if they are proved, will offer the recommendations that we need to make sure that there isn't a corner anywhere in public life where such serious accusations can stack up and people feel that they are being neglected, abused and pushed to one side.

The proposal is to agree the motion without amendment. Does any Member object? [Objection.] I will defer voting under this item until voting time.

Voting deferred until voting time.