



(Title Image: Modified from BBC Wales)

The Issue

Opposition AMs tabled a motion which would use a clause in the Government of Wales Act 2006 to force the publication of a civil service report into leaks prior to the dismissal of Carl Sargeant in November 2017.

The First Minister believes using the law in this way is beyond the Assembly’s powers and could, effectively, mean the future publication of any and all government papers, which would break promises made to witnesses regarding confidentiality.

As a result, he issued a legal letter to the Assembly Commission, saying they could be taken to court for a judicial review on how the clause is interpreted. The opposition claimed this was shutting down debate.

Nevertheless, the First Minister’s case was rejected by the Llywydd, Elin Jones (Plaid, Ceredigion) and the debate went ahead as planned yesterday.

The Motion

To propose that the Senedd:

Notes the letter from the Permanent Secretary, dated 16 March, in relation to motion (to release the leak inquiry report) which was agreed by the Senedd on 28 February 2018.

Regrets the failure of the Permanent Secretary to comply with the wishes of AMs (and release a redacted version of the report).

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 [ November 2017 ] Ministerial reshuffle”.

Key Points

Adam Price AM (Plaid, Carms. E & Dinefwr)

For (the motion): “Sunlight is the best disinfectant”.

Governments like to announce leak inquiries but don’t like to publish the reports because the “context is often more interesting than the conclusions”.

The significance of the debate goes far wider than the publication of a report; it’s about the principle of open government, parliamentary accountability and it would go some way to “heal the wounds” in the Welsh body politic as “we’re in a dark place”.

If there are doubts over the matter, the best way of dispelling them is to publish and the surest way of sustaining them is to refuse.

It’s the same principle the UK Parliament used to force the publication of Brexit impact papers in 2017.

Neil Hamilton AM (UKIP, Mid & West Wales)

For: Identities can be protected.

The legal letter threat was “startling”, as was the First Minister’s later admission that he didn’t have the power to prevent the debate going forward in spite of that letter.

These matters can be redacted in such a way as to protect the identity of witnesses.

Why can’t the AMs read documents “on Privy Council terms”? (Explanation: Members of the Privy Council can see privileged information under oath to keep it secret).

The First Minister’s interpretation of the clause – that it only refers to Cabinet collective action, not the First Minister on their own – puts him in a privileged position akin to an absolute monarch.

Neil McEvoy AM (Ind, South Wales Central)

For: If the First Minister were more transparent, we wouldn’t be doing this.

Ignoring the Assembly is an affront to democracy.

The First Minister seems to believe that unless he can “operate in the shadows” he can’t govern; if the Welsh public got to see what happens behind closed doors the First Minister wouldn’t be in a job much longer.

Leader of the Opposition, Andrew RT Davies AM (Con, South Wales Central)

For: It’s “morally right” to publish the report.

The Welsh Government’s interpretation of the clause places him, effectively, “above the law”.

The Welsh Government were telling the Llywydd and, by extension the Assembly, what to do in the legal letter – not simply offering suggestions on a course of action.

Backbench Labour AMs will be found “morally wanting” if they don’t back the motion.

Welsh Government Response

Counsel General, Jeremy Miles (Lab, Neath)

The Welsh Government is only seeking legal clarity, preferably before the debate took place.

The motion is outside the scope of the Assembly’s powers because the leak report was drafted in relation to powers exercisable only by the First Minister which isn’t (they believe) included in the clause.

The motion brings into question “the proper conduct of Assembly business” as it may force the disclosure of information that could prejudice future investigations.

The preferred way forward is for the Assembly authorities and Welsh Government to agree a protocol for the appropriate use of the clause in future.

Vote

It was said the government were confident they had the numbers beforehand and, as expected, that turned out to be the case. Jack Sargeant AM (Lab, Alyn & Deeside) abstained.





The Assembly avoids legal action and it’s now very unlikely the redacted report will be published – though you would expect the civil service to hand it over to the final inquiry led by Paul Bowen QC.

Discussions over the legal threat issued to the Assembly and the Government of Wales Act clause are set to continue and there’s no doubt that this has damaged relations between the legislature and government.



What was quite telling is that the Counsel General made no reference to the First Minister’s revelation that the letter was issued, in part, in order to “protect a senior Welsh Government employee from possible prosecution”.

Perhaps attentions should turn there.