The Counsel General 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.
The Counsel General is appointed by Her Majesty on the recommendation of the First Minister of Wales (see section 49 of the Government of Wales Act 2006, which also provides that the recommendation of the First Minister to appoint or remove the Counsel General requires the agreement of the National Assembly for Wales).
The Counsel General is a member of the Welsh Government and may attend Cabinet meetings at the invitation of the First Minister. Although not a Welsh Minister, the Counsel General is bound by the Ministerial Code which makes specific provision in relation to the role.
The Counsel General’s statutory responsibilities
Most of the Counsel General’s statutory functions are found in the Government of Wales Act 2006 (GOWA 2006). They provide that the Counsel General can:
- make representations about any matter affecting Wales (section 62 of GOWA 2006);
- bring, defend or appear in legal proceedings, in the name of the Counsel General, if the Counsel General considers it appropriate to do so to promote or protect the public interest (section 67 of GOWA 2006); this function is exercised independently of the Welsh Government;
- refer a provision of an Assembly Bill (including a Welsh Government Bill) to the Supreme Court for a ruling on whether it is within the National Assembly’s legislative competence (section 112 of GOWA) or whether any provision relates to a protected subject-matter (section 111B of GOWA); the Counsel General may also respond where any such reference is made by another Law Officer (again, exercised independently of the Welsh Government);
- require ‘devolution issues’ (as defined by paragraph 1 of Schedule 9 to GOWA 2006) to be referred to the Supreme Court for a decision (Schedule 9 to GOWA 2006);
- introduce a Bill into the National Assembly (section 110 of GOWA 2006) - see the Legislation (Wales) Bill.
The Counsel General is accountable to the National Assembly for the exercise of his independent statutory functions. He answers questions in the National Assembly once every four weeks.
The Counsel General also has a number of other responsibilities, including to:
- provide legal advice to the Welsh Government and represent it in legal proceedings;
- hold meetings and discussions with other Law Officers, such as the Attorney General;
- hold meetings and discussions with the judiciary, members of the legal profession and others involved in the administration of justice;
- respond to proposals or consultations that affect legal matters in Wales, including those of the Law Commission and UK Government;
- work to improve the accessibility of devolved legislation in Wales for the legal profession and the public, including considering the future consolidation of existing legislation;
- approve proposed retrospective legislation and the early commencement of National Assembly Acts – that is, provisions which come into force sooner than two months after Royal Assent.
The Counsel General may also play a role in the development of Welsh Government policy on legal matters.