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

That brings us to the next item, which is the Welsh Conservatives’ debate on the Permanent Secretary’s investigation report.

Before we debate this motion, I want to make my position clear about its legitimacy. First, the motion is in order and, second, the power in section 37 of the Government of Wales Act 2006 is undoubtedly broad, and that is why it can only be applied as a result of a vote in this National Assembly. I expect Members to continue to approach the use of section 37 proportionately and reasonably. I call on Andrew R.T. Davies to move the motion. Andrew R.T. Davies. 

Motion NDM6702 Paul Davies

To propose that the National Assembly for Wales:

1. Notes the letter from the Permanent Secretary, dated 16 March, in relation to motion NDM6668, which was agreed by the National Assembly for Wales on 28 February 2018.

2. Regrets the failure of the Permanent Secretary to comply with the wishes of Assembly Members.

3. Acting in accordance with Section 37(1)(b) of the Government of Wales Act 2006, requires the Welsh Government’s Permanent Secretary to produce for the purposes of the Assembly, with appropriate redactions to ensure anonymity of witnesses, the report into the investigation on 'whether there is any evidence of a prior unauthorised sharing of information—i.e. a “leak”—by the Welsh Government of information relating to the recent Ministerial reshuffle'.

Motion moved.

Thank you, Presiding Officer, and I welcome the opportunity to move the debate in the name of Paul Davies that's on the order paper this afternoon. And in particular, it's worth reflecting just very briefly on the events of yesterday—that we were faced with this debate not actually taking place.

In particular, if I may draw the Assembly's attention to the letter that was sent to the Presiding Officer, in particular point three that stated that the Government believed that the Table Office and the Presiding Officer were acting unlawfully in accepting this motion. That was what was in the letter that was put forward. As I understand it, that was then subsequently leaked to the press, which is somewhat ironic, to say the least, that we're having a leak inquiry and here's a leaked letter, which I believe came from the Government, as I understand it, to the media. So, I wonder whether we'll have a Permanent Secretary inquiry into this particular leaked letter. But it is worth reflecting on that type of language that meets you on the first page—not 'thinks' it's illegal; it's actually telling the Presiding Officer that it 'is' illegal. That, by any stretch, is a very threatening and intimidating environment to try and create around a debate in the Assembly here.

I want to focus on three areas, if I may. Over the last three months, the various arguments that the Government have put forward to try and stop this report being published in redacted form. The first came forward in January from the First Minister, when I questioned him in First Minister's questions, and that was about the privacy and confidentiality of witnesses who had given evidence to that inquiry—and I agree entirely. I agree entirely that that should be adhered to, and that is why, in the motion today, we have said that the report should be made available in a redacted form, to make sure that that confidentiality is provided and, above all, the security and safety of witnesses who feel they might have been threatened if their names came forward, although I'm a bit skeptical of where the threats might come from if those names came into the public. And I do regret that the First Minister, in his choice of language in First Minister's questions at that time, said, when he was responding to me,

'What he is asking the Permanent Secretary to do—because it's her decision—is to out those people, for the evidence to be made available and their names. Such a course, I have to say, would be both dishonourable and dishonest, and would bring the Welsh Government into disrepute.'

I reject that. I flatly reject that, and I refer the Assembly to the Hamilton inquiry report that was made available, in particular clause 22 in the Hamilton inquiry report yesterday, which clearly showed how Hamilton went about the process of protecting the identity of witnesses in that report. So, that clearly answers the point that you can provide a report and protect witness identity where that witness identity has been provided.

Will the Member give way?

Yes, I certainly will.

Can the Member quote any example of a Westminster Government publishing a leak inquiry report? I suspect he can't, because he knows full well that all Governments in Westminster, of all parties, do not publish leak inquiries as a standard. So, why is he asking the Welsh Government to do something his own party's Government in London does not do?

I would suggest to the Member for Llanelli that these are unique circumstances. I have asked the Presiding Officer to provide me with the examples that she cites in her letters to Assembly Members around the inability to provide the report. These are a unique set of circumstances that have led, sadly, and looked at, the death of an individual. It is vitally important that, as Assembly Members, we have the ability to scrutinise the actions of these inquiries and be satisfied that those inquiries have looked at and exhausted all avenues. And I draw the Member's attention to the motion today that does state specifically around 'for the use of the Assembly', i.e. Assembly Members. There are many provisions that could be put in place for this report to be made available for Assembly Members to read and digest this report, in a redacted version, that would protect the identity of individuals who have given evidence.

Now, that's one argument that was put forward back in January. In February, when we had the motion here, which was endorsed by Assembly Members, the next argument that was deployed was by the leader of the house in her reply to myself—in a very short reply, I might add, to that debate. And this was her reply to me:

'This is about more than just this leaked report; this is about the integrity of future investigations and future leaked reports.

'Whereas here, there is the additional element of ongoing inquiries, there are further potential risks to the overall integrity of the process if information is put in the public domain on a piecemeal basis.'

Well, yesterday, we had the Hamilton report come forward. I do welcome that report becoming publicly available for Members to read and to see, but I have to say, if that's the second argument that the Government have deployed to prevent the publication of this report, then you've shot it below the waterline, obviously, by making available the Hamilton inquiry report. I welcome the outcome of that inquiry, which gives the First Minister a clean bill of health when it comes to the specific focus of that inquiry about misleading the Assembly. I would draw Members' attention to the fact that this isn't a witch hunt against the First Minister, as point 48 in that report clearly identifies, when it says no allegation—no allegation—was levelled against the First Minister about bullying or intimidatory actions on his part. And so, this isn't about a witch hunt against the First Minister, but I would also just draw Members' attention to the fact that if that was the second argument that was deployed, that releasing information into the public domain would be a piecemeal approach to all this and it would jeopardise future inquiries, why was Hamilton treated differently?

The third point I would suggest is obviously the point that was deployed yesterday in relation to the legal arguments the Government put forward in relation to the exercise of the Government of Wales provision. And that, again, can be put to one side by the legal advice that has been provided to Members in the Assembly here. There is a difference of opinion here. The Government believe that government would seize up if, obviously, this motion passed this afternoon, and actually they wouldn't be able to go about their business. The legal advice that has been given—and I'll read verbatim here—'Parliament did not give the Assembly completely open-ended power. It provided a safeguard where the Assembly votes in favour of a motion. Under section 37(8), a person is not obliged to produce any document which he or she would be entitled to refuse to produce for the purposes of proceedings in a court in England and Wales. There are numerous circumstances where this might apply. For instance, legal advice to the Welsh Government would not have to be disclosed in accordance with this provision, so would commercial confidentiality'. I could go on. And I could go on to say, as I've pointed out to the Member for Llanelli, there are circumstances such as a reading room environment that could be made available to Assembly Members to meet the provisions and the requirements of the motion before us. Because the motion before us asks to produce the report for the purposes of the Assembly. So, to deploy the legal argument that Government would seize up if this motion went forward today is nonsense—utter nonsense.

Now, the Government whip might deliver the vote today to stop this motion going forward. I hope it doesn't. I hope individual Members will vote on the strength of the argument that is before them, but, if the whip delivers that vote, it won't deliver what is morally right here, and that is the ability to have this report sitting alongside the other reports that have been commissioned so that we can satisfy ourselves that each and every avenue of investigation has been exhausted to make sure we get to the bottom of the argument and the discussion and the debate, and ultimately make some sense of the tragedy that led to the death of a member of this institution. I urge Members to support the motion that is before them today, which seeks that transparency here, in the home of Welsh democracy.

I have selected the amendment to the motion, and I call on the Counsel General to move formally amendment 1, tabled in the name of Julie James.

Amendment 1. Julie James

Delete all after point 1.

Amendment 1 moved.

Formally.

Formally moved. Adam Price.

Diolch, Llywydd. This is a short debate whose outcome may cast a long shadow. Now, ostensibly, it's about the publication of a particular report—a particular set of circumstances—which, of course, has a personal tragedy at its heart. However, its significance also goes far wider than that. I should say, at the outset, I don't have any unrealistic expectations that publication of this report will answer all of the questions surrounding this case, or even this aspect of this case. Leak inquiries tend, by their very nature, to be inconclusive. As I think Sir Humphrey Appleby told Jim Hacker in Yes Minister, the task of a professionally-conducted internal inquiry is to unearth a great mass of no evidence. Now, despite that—. Lee Waters is right, of course. Governments never like to—. They like to announce leak inquiries, they don't like to publish the report, because the content is almost always more interesting than the conclusions. If Margaret Thatcher, instead of summarising the leak inquiry at the heart of the Westland affair at the despatch box in the House of Commons, had published the report by the Cabinet Secretary, then I dare say Geoffrey Howe would have been Prime Minister by 6 o'clock, as she had predicted to colleagues. Now, there are some exceptions. Damian Green—the report by the Metropolitan Police Service about the leak inquiry in 2009, I believe. The Alistair Carmichael leak inquiry in 2015—didn't get the full report from the Government, but there was actually a very, very detailed summary, which set out the process and methodology that had been used.

Now, I accept that this will be a redacted report by definition, but, even then, it will be almost, by definition, possible to glean at least more information than we currently have from the two sparse paragraphs we had from the Permanent Secretary. Now, the arguments, I think, in favour of publication are more fundamental. They're about the principles of open government, they're about parliamentary accountability, and they touch upon the dark chapter, I think, in Welsh politics that we currently find ourselves going through.

On the value of transparency, it was Louis Brandeis—the only socialist ever to be appointed to the Supreme Court, a Harvard law graduate, but let's not hold that against him—who famously said:

'Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.'

If there are legitimate doubts about an important matter of public discourse and debate, the best way of dispelling those doubts is to publish, and the surest way of sustaining them is to refuse. Now, the Government has advanced the argument that there will always be a category of information that, by its nature, cannot be released, and in general terms that is true, of course, but it's also true that on major matters that have become the subject of national debate the primary interests of openness and accountability should always ultimately win out over the Executive's desire for secrecy. And, occasionally, Parliaments have to remind Governments, as Ralph Nader first argued, that:

'Information is the currency of democracy. It's denial must always be suspect.'

Now, the right to call for persons and papers is enshrined right at the heart of the parliamentary tradition. In our case, it's written into statute rather than Erskine May, but it's the same principle that was evoked by the official opposition at Westminster in moving a motion of return last November that forced the UK Government to publish its Brexit impact studies, and the Government acceded to that when the motion was won. It would be unthinkable at Westminster for the law officers of the British Government to march up to the Speaker's office, as the Counsel General did to our Presiding Officer, to issue a threat of legal proceedings. For that reason alone, I would argue we must pass this motion as a symbol of our defiant refusal to be bullied into submission by an overweening Executive. 

Now the final reason why this motion must surely pass is to heal the wounds that currently run deep in the Welsh body politic. These are dark times. Hamilton refers to the charge of a toxic atmosphere in Welsh Government. Wherever you are on that particular accusation, we are certainly in a dark place, in a dark phase. A noxious cocktail is corroding trust within and by the public in the institutions of our democracy, whether it's the honesty or the probity of Government, the impartiality of the civil service, or the ability of this Parliament to hold the Executive to account—these questions are swirling in people's minds. 

It's important to acknowledge, I think, and it's important to be fair about this, that the Hamilton inquiry does indeed exonerate the First Minister on those questions that he had addressed to Mr Hamilton. However, I think it's also fair to say the report does not paint an exactly happy picture of the culture of Government, and I would say the first step in moving forward is a new culture of frankness, painful and sometimes inconvenient that honesty may sometimes prove.

I thought that the leader of the opposition, with forensic skill, took apart the threadbare arguments of the Government against the publication of these reports. It certainly was startling to read the leaked letter that I received just minutes before First Minister's questions yesterday, threatening the Llywydd with legal action. Yet, then I heard, just a few minutes after I read that page, the First Minister saying that he accepted that there was no power to prevent this place having the debate that he was seeking to stop by means of legal action.

I don't know how that legal action would have been executed if he had succeeded in persuading a judge of the rightness of his cause, who would have appeared here, like a High Court tipstaff, to arrest the Llywydd or any others who tried to exercise our democratic rights to give our opinions on how the Government was conducting itself on any matter whatsoever. I thought it was an extraordinary reprise of the kind of attitude that we last saw in the House of Commons in the 1640s, when an overweening monarch eventually ended up losing his head because he was unwilling to accept the right of the people to discuss for themselves the rights that they had inherited from their predecessor generations. 

I think it's perfectly obvious from the report of James Hamilton that these matters can be redacted in such a way as to protect the identity of individuals, although their identities are not really a secret anyway, because we all know who we're talking about in this proceeding and who the prime suspects are. But the difficulty is often to prove this for lack of evidence, because, in the culture of omertà, nobody is prepared to speak out and tell the truth. 

I don't see why we can't have in this Assembly something like the system of reading documents and having discussions on Privy Council terms, where we trust each other to do the decent thing, and, in response to Lee Waters's intervention earlier on to say that Governments at Westminster routinely keep secret these matters, shouldn't we aim, actually, to be rather better than those at Westminster? Shouldn't Wales seek to lead rather than follow in these circumstances? Not that I expect that any leak inquiry will ever get to the truth; it would be highly unlikely if it did—although I was in the House of Commons at the time that the Westland leak inquiry took place and a highly dramatic series of events then unfolded—but what you can do with the publication of such documents, of course, is to evaluate how thorough the inquiries have been, and all sorts of pieces of information that might then be elicited could be put together in a jigsaw, especially when there might be a series of investigations, such as there is in this particular instance, on the basis of which, at the culmination of these processes, we can draw some rather more informed conclusions.

The last point that I wanted to make is on the gravamen of this letter from the Government to the Llywydd, which seeks to put the First Minister in an extraordinarily privileged position. The legal argument, as I understand it, on section 37 of the Government of Wales Act is that decisions or actions that the Government take collectively, which any Minister could take under the powers devolved in this Act, are available to this Assembly to be made the subject of inquiry, but that where the First Minister has the power alone to make such decisions or take such actions we have no power to investigate him. This seems to be a most extraordinary elevation of the First Minister into a kind of absolute monarch, which we certainly would never have anticipated when this Bill was in gestation in 2005, 2006, and I think it's a complete misreading of the relevant section to put the First Minister in that privileged position. I think what it simply does is to distinguish between the powers of Ministers. The junior Ministers, including Cabinet Ministers, are not necessarily collectively responsible for his decisions in the legal sense, but he is responsible, because he's in charge of the whole Government, for all the decisions that any Minister might make. Otherwise, he would be excluded uniquely from the Assembly's scrutiny, and I think it vitally important, therefore, that the Assembly votes this afternoon in favour of this motion just to show our defiance of the Government and to show our rejection of that toxic principle.

I put the motion to use section 37 to get the report published because ignoring this Assembly is an affront to democracy. It seems that the Conservatives liked my motion so much that they put it in themselves, and I'm glad they did that because we're debating this sooner than we otherwise would have done.

Not long ago, I asked the First Minister to introduce legislation to regulate lobbyists. I notice today that he is absent from this debate. It's something I've called for since being elected to this Assembly, and it's something that happens in all major democracies surrounding Wales. His answer in that debate was very interesting. He said that it's not right for the Government to introduce legislation such as this; it's a matter for the Assembly corporately. So, here we are deciding corporately, as an Assembly, on this matter of whether an inquiry into potential Government leaking should be published, but instead of allowing us to decide on this matter the First Minister has responded with legal threats and challenges. I think that shows a Government's priorities: do nothing on lobbyists but try to intervene to stop open Government from taking place.

The First Minister alleges that releasing this document would stop government from being able to take place, and he seems to think that unless he can operate in the shadows and keep things hidden from the public then he cannot govern. For this Labour Government he may be right, because if the Welsh people were ever to get the chance to see what goes on behind closed doors, I don't think he'd be in his job much longer. He also doesn't seem to place much faith in the democratically elected representatives of Wales to use section 37 wisely. It's been available for years—years—and it's only now, on an incredibly important matter of public interest, that it's being used for the first time.

If the First Minister operated his Government in a more transparent way, we wouldn't need to use it at all. I hope on this matter we can, as an Assembly, vote so that the public can see the outcome of the inquiry. It's the Welsh people we need to protect and it's the integrity of this institution. I'll be voting in favour of this motion, because this is about democratic accountability and the integrity of Welsh democracy. Diolch yn fawr.

I call on the Counsel General, Jeremy Miles.

Llywydd, section 37 is a complex area, and what the Welsh Government is seeking is clarity. This would have been preferable, in our view, before the debate took place today. Unfortunately, there is an obvious difference of opinion between the Welsh Government and the Assembly Commission. We must now move for this issue to be resolved, preferably without recourse to the courts.

The Welsh Government objects to this motion and requests that Members vote against it for the following reasons. Firstly, the motion is outside the scope of the Assembly's powers, as set out in section 37 of the Government of Wales Act 2006. This is because this provision extends only to matters relevant to the exercise of Welsh Ministers' functions, as distinct from the limited number of functions exercisable only by the First Minister. The report in question was commissioned and undertaken in pursuance of functions exercisable solely by the First Minister, and is therefore, in the view of the Welsh Government, outside the scope of the section 37 power.

Secondly, the Welsh Government believes that the motion brings into question the proper conduct of Assembly business—one of the grounds on which there is a discretion to reject a motion. There is a long-standing practice of non-disclosure of leak investigation reports, which extends, as we've heard, across Governments throughout the United Kingdom. This is because of the risk of prejudicing the conduct and confidentiality of future investigations. There is also a clear risk that if reports into leak investigations were required to be disclosed to the Assembly, then, in future, individuals may not be willing to volunteer information or co-operate in subsequent investigations, and none of us want that outcome.

Today's motion is not, in the Welsh Government's view, an appropriate mechanism for the resolution of this issue. I should stress that the Government's preference is to be able to persuade the Assembly of its view and agree a basis for section 37 to operate. However, in the absence of agreement with the Assembly about the scope of section 37, we may need to ask a court to interpret the law for us and this is the basis on which the First Minister wrote to the Presiding Officer earlier this week.

Will you take an intervention?

Yes, of course.

Just on that very point, I wonder if you could share with the Assembly your views on subsection (8), which seems to resolve many of the problems that you've already raised in your answer to the debate.

I don't believe that it does. It sets out a principle, but it's evident, when you look at when the principle might apply, that it doesn't establish to what circumstances it might apply, and if there is a difference of opinion, how that difference of opinion might be resolved. But this is something I'm going to come onto in a moment, if I may.

Our strong preference is to work with the Assembly to agree a protocol or some other mechanism for the appropriate future operation of all parts of section 37. We have shared a proposal with the Assembly earlier this afternoon as to how this discussion can be taken forward and hope that the Commission will engage with us to resolve the matter in a way that meets both the Assembly and the Welsh Government's legitimate aims.

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

Thank you very much, Presiding Officer. I thank everyone who contributed to it. If I could focus on predominantly, in the time that I am limited to, responding to the Counsel General's reply. I believe that the first part of the argument was trying to set the First Minister up above the law, if you take the interpretation that he has given us that, actually, he is not accountable under the Government of Wales Act for the functions that he exercises, whilst, in fairness, Ministers are accountable under that law. That is dictatorship, and, as I said to you, the only example we could find anywhere was Egypt. That's the only example we can find.

I read out—and you didn't challenge it, Counsel General—I read out the legal note that we are basing our argument on, and you didn't challenge it. I'm more than happy for you to challenge me on what I've put before the Assembly today in the legal note. No? Okay.

You then said that the Government wrote to the Presiding Officer yesterday to try and seek consensus. I will read again what I opened my remarks with this afternoon, which was point 3 of the letter:

'First, the Table Office, on behalf of the Presiding Officer, has'— not 'could have'—

'has acted unlawfully by accepting the motion.

'4. Second, the Presiding Officer'— not 'could have'—

'has acted...unlawfully, by not withdrawing the motion.'

You were telling the Presiding Officer what she should do yesterday and, by association, you are telling the Assembly what it should do. No democracy can function under that level of duress, I would suggest, and it will be a very dark day if, after listening to the arguments that I have put today, Members of the governing party on the back bench do follow the whip and do listen to your arguments, because, actually, what you have implied is to ignore the law and just run roughshod over what we're governed by, which is democracy.

I have not heard a single counterargument come from you today, Counsel General, to challenge any point that I have put before this Assembly. Not one. I systematically went through the three arguments that the Government have deployed over the last three months as to why this report should not see the light of day: (1) protecting the confidentiality of individuals who have contributed to the inquiry; (2) release could prejudice further inquiries; (3) exercising the law and the provisions of the Government of Wales Act. You have not sought to undermine any one of those arguments. I therefore call on the governing back bench to respond to the motion before us today, because, ultimately, if you do not, then, as I said, the Government whip might well win the day, but morally you will be found wanting.

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

Voting deferred until voting time.