That brings us to the item itself, which is the motion to agree the First Minister's recommendation to Her Majesty to appoint a Counsel General. I call on the First Minister to move the motion.

Motion NNDM6905 Mark Drakeford

To propose that the National Assembly for Wales, in accordance with Standing Order 9.1, agrees to the First Minister’s recommendation to Her Majesty to appoint Jeremy Miles AM as Counsel General.

Motion moved.

Formally.

David Melding.

Thank you very much, Llywydd. Can I just say that the remarks I'm going to make are in no way a reflection on the individual, whom I hold in very high esteem? But Jeremy Miles is listed on the Welsh Government's website as, I quote, 'the Counsel General designate and Brexit Minister'. His duties as a Minister, as far as I can work out, include chairing the Cabinet sub-committee on European transition, the EU structural funds and the shared prosperity fund. The First Minister was congratulated by one of the Labour backbenchers this afternoon on appointing a Brexit Minister and the First Minister then replied to that by saying that he thought it was very important that that Minister had the co-ordinating role.

The Welsh Government website carries the title 'Cabinet Members and Ministers', and it is subtitled 'Information about Welsh Government Ministers and Deputy Ministers'. The post of Counsel General is not listed separately on that page. There are 14 Ministers and Deputy Ministers listed, including the First Minister. Llywydd, we need to clarify the following: how does this arrangement comply with the relevant sections of the Government of Wales Act 2006, which limits the number of Ministers to 12, not including the First Minister and Counsel General? My interpretation of that is that you're allowed 13 Ministers plus a Counsel General. And, secondly and further, how does it fulfil the requirements of section 49(9) of the Government of Wales Act 2006? And, if I may read from that:

'A person holding office as the First Minister, a Welsh Minister appointed under section 48 or a Deputy Welsh Minister may not be appointed as the Counsel General or designated under subsection (6); and the Counsel General or a person so designated may not be appointed to any of those offices',

i.e. cannot be a Minister. Obviously, we will get some sort of explanation, but I do find this motion to be highly irregular and in need of at least further clarification, because I think we are in breach of the Government of Wales Act. Therefore, the Conservative group will abstain on this motion this afternoon.

I also rise to state that we as a group will not be supporting this motion. We will be voting against the motion. I will explain my reasons, and, like David Melding, I will explain that I have no problem at all with Jeremy Miles being Counsel General. Neither do I have a problem with Jeremy Miles being the Minister for Brexit. The question here is: how can it be appropriate for one person to carry out both roles, when it appears entirely clear in legislation that that should not happen, because there is a clear conflict here?

The Welsh Government, on its website, Law Wales, explains the role of the Counsel General. They say that it is:

'the Welsh Government’s Law Officer, which means the Welsh Government’s chief legal adviser and representative in the courts. The Counsel General also works to uphold the rule of law. The role has a number of important specific statutory functions, some of which are to be exercised independently of the Welsh Government and in the public interest.'

Today, we are asked to approve the appointment of one who cannot operate truly independently of the Welsh Government, because he is listed by the Welsh Government themselves, as we heard from the previous speaker, as one of their Ministers—and a Minister, of course, in one of the most complex areas in which the Welsh Government is involved at the moment.

Now, you could argue that there is some common sense in this, because so much of the work relating to Brexit is complicated legal issues, but the role of the Counsel General is to provide legal advice to Government, to provide legal advice to the Brexit Minister. Now, assuming that Brexit is so important to the Government's work, I would assume that the Counsel General would spend much of his time providing legal advice to himself, and I would ask this question of the Government: what arrangements have been put in place to ensure that the Counsel General, who is also the Brexit Minister, can seek independent legal advice? The fact that that question has to be asked by me proves that a Counsel General who is also a Brexit Minister cannot do that work properly.

As David Melding said quite clearly, the Government of Wales Act states that:

'A person holding office as the First Minister, a Welsh Minister appointed under section 48 or a Deputy Welsh Minister may not be appointed as the Counsel General...and the Counsel General or a person so designated may not be appointed to any of those offices.'

Now, I assume we will now be told that he wasn't appointed as a Minister under section 48, but, frankly, he himself, as the nominee for Counsel General, says on his Twitter page that he is a Brexit Minister, not that he has responsibilities for Brexit. Now, if that's a legal slip, we'll leave it there, but he himself calls himself a Brexit Minister, the Government already calls him a Brexit Minister, and the legislation states clearly that a Minister cannot also be appointed as Counsel General.

The First Minister to reply to the debate.

Diolch yn fawr, Llywydd, and thank you to the Members who've raised these points. They're perfectly proper points for Members to raise, of course. But I do want to provide an assurance to them and to Members more generally that, of course, these issues were very precisely identified and carefully thought through and subject to full advice to me before Cabinet appointments were made. And the Cabinet has been constructed in a way that is entirely consistent with the Government of Wales Act. So, as you've already heard, the person appointed to the role of Counsel General cannot simultaneously be appointed as a Welsh Minister under section 48 of the Government of Wales Act, and that has not happened in this case. And it therefore follows that the person who is appointed as Counsel General cannot exercise any functions that are conferred by statute on the Welsh Ministers, and the role that Jeremy Miles fulfils has been constructed to ensure that there are no functions of that sort that will fall to him. In fact, of course, as Members will know, the role of Counsel General has, at various times, already extended to wider policy areas in support of Welsh Ministers, most recently, for example, in relation to aspects of justice policy. When that has happened, the Counsel General acts in an advocacy and coordinating role and does not involve statutory functions that are exercisable by Welsh Ministers.

In this Government, Jeremy Miles will exercise the following responsibilities as Brexit Minister: policy advice to the Welsh Government on Brexit strategy; representing the Welsh Government in negotiations; acting on behalf of the Welsh Government in discharging responsibilities arising from the inter-governmental agreement and other protocols; and co-ordinating activities in the way that David Melding referred to—co-ordinating activities within the Welsh Government to ensure a coherent and consistent approach to Brexit. None of these involve Executive functions. None of them, therefore, offend the Government of Wales Act. Should there be cases where the Counsel General is engaged in a matter requiring a formal decision that only a Welsh Minister can make, then, of course, those decisions will be passed to myself in the first instance, and, if I do not take it to another relevant Minister, to discharge them. In that way, the requirements of the Act are carefully safeguarded, separated out in the way that the role has been constructed, and I hope Members will accept that it has been done in a deliberate and thoroughly informed way, and does not fall foul of the legitimate concerns that both Members have raised this afternoon.

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

Voting deferred until voting time.