The Welsh Government was established by section 45 of the Government of Wales Act 2006 (GoWA 2006), which states:
“(1) There is to be a Welsh Government, or Llywodraeth Cymru, whose members are—
(a) the First Minister or Prif Weinidog,
(b) the Welsh Ministers, or Gweinidogion Cymru,
(c) the Counsel General to the Welsh Government or Cwnsler Cyffredinol i Lywodraeth Cymru, and
(d) the Deputy Welsh Ministers or Dirprwy Weinidogion Cymru.”
However, functions (in other words, powers and duties) are not generally given to the Welsh Government in that name. Rather, functions are conferred on members of the Government. The members of the Welsh Government are the First Minister, the Welsh Ministers and the Counsel General. They carry out their functions on behalf of the Crown (see section 57(2) of GoWA 2006).
Most functions of the Welsh Government are held by the Welsh Ministers, including the First Minister, but some functions are held by the First Minister alone. Each Welsh Minister has a portfolio, allocated by the First Minister, within which he or she will carry out functions. Each Minister in carrying out functions acts for all the Welsh Ministers and they are all bound by, and liable for, the acts of each other (section 57 (4) of GoWA 2006).
The 'Welsh Assembly Government' was renamed the 'Welsh Government' in practice in 2011 and in law by the Wales Act 2014.
The First Minister is nominated by Senedd Cymru, in accordance with section 47 of GoWA 2006, and is appointed by His Majesty the King, in accordance with section 46 of GoWA 2006. Certain functions are given to the First Minister only, and section 57(5) of GoWA 2006 acknowledges that only the First Minister can carry out those functions and will be solely liable for them.
As in the case of Welsh Ministers, the First Minister is not a Minister of the Crown, but, under section 57(2) of GoWA 2006, he or she carries out their functions on behalf of the Crown.
Welsh Ministers are appointed by the First Minister under section 48 of GoWA 2006, and their appointment is approved by His Majesty the King. In accordance with section 51(1) of GoWA 2006, the number of Welsh Ministers and Deputy Welsh Ministers cannot exceed 12 at any one time.
Welsh Ministers are not Ministers of the Crown (Ministers of the Crown are considered to be agents of the Crown, and this has implications for their powers). However, the Welsh Ministers carry out their functions 'on behalf' of the Crown (section 57(2) of GoWA 2006). This means that the Welsh Ministers do have Crown body status, and as a result would be able to rely upon certain advantages that accompany that status.
The Counsel General is appointed by His Majesty the King on the First Minister’s recommendation under section 49 of GoWA 2006. No recommendation for the appointment (or removal) of the Counsel General may be made by the First Minister without the agreement of Senedd Cymru. The Counsel General cannot be a Minister, but is a member of the Welsh Government, and may be (but does not have to be) a Member of the Senedd.
The holder of this office is the legal advisor to the Welsh Government, and will liaise with the other Law Officers of the United Kingdom (such as the Attorney General). The Counsel General possesses some statutory functions, including the power to refer Senedd Cymru Bills to the Supreme Court, and can institute legal proceedings in the Counsel General’s name.
Deputy Welsh Ministers
Deputy Welsh Ministers are appointed under section 50 of GoWA 2006 by the First Minister, with His Majesty the King’s approval. These individuals do not have their own functions under legislation, but may be authorised to carry out functions on behalf of the Welsh Ministers. The Deputy Welsh Ministers’ key role is to assist the First Minister, Welsh Ministers and the Counsel General in the carrying out of their functions.
Functions of the Welsh Ministers
The functions (that is, powers and duties) of the Welsh Ministers are not all found in one source, and research is often necessary to establish whether or not they have a particular function. Their functions may be found in:
- Transfer of Function Orders - These are Orders in Council made by His Majesty under section 58 of GoWA 2006, transferring Minister of the Crown functions to the Welsh Ministers in relation to Wales. A large number of functions were transferred in this way by The National Assembly for Wales (Transfer of Functions) Order 1999. These functions were originally transferred to the National Assembly for Wales as constituted under the Government of Wales Act 1998, but were subsequently transferred to the Welsh Ministers (paragraph 30 of Schedule 11 to GoWA 2006). Following the Wales Act 2017 a further suite of functions were transferred by various Orders also made under section 58 of GoWA 2006.
- Acts of Parliament, including GoWA 2006 - Legislation passed by the UK Parliament may confer functions directly on the Welsh Ministers. Section 60 of GoWA 2006 for example gives the Welsh Ministers a power to do things to promote or improve the social, economic and environmental well-being of Wales.
- Designation Orders and legislation made under section 2(2) of the European Communities Act 1972 - These give the Welsh Ministers the power to implement certain requirements of European Union law, but a more general designation was given to the Welsh Ministers by section 58B inserted into GoWA by the Wales Act 2017.
- Acts of Senedd Cymru, Assembly Measures and Assembly Acts - Like Acts of Parliament these may confer functions on the Welsh Ministers.
Constraints on the carrying out of Welsh Ministers’ functions
When carrying out their functions, the Welsh Ministers must at all times ensure they do not act incompatibly with European law obligations or the European Convention on Human Rights (see sections 80 and 81 of GoWA 2006). In addition, the Welsh Ministers must comply with public law principles, and other statutory duties such as the public sector equality duty in section 149 of the Equality Act 2010, and the duty to have due regard to the United Nations Convention on the Rights of the Child (Rights of Children and Young Persons (Wales) Measure 2011).