Welsh Government threatens legal action against Welsh Assembly

(Title Image: ITV Wales via Adrian Masters)

As you probably already know by now, an attempt by opposition AMs to use a little-known legal clause to force the publication of a civil service report into leaks around the time of the November 2017 cabinet reshuffle has resulted in a threat of legal action by the First Minister.

The First Minister wrote to the Llywydd, Elin Jones (Plaid, Ceredigion), demanding a debate – which is still set to take place tomorrow afternoon – be called off. Carwyn Jones argues the Llywydd has misinterpreted the meaning of the clause and the Welsh Government would take it to court if the debate went ahead.

This is the motion as tabled.

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”.

In the legal letter, the First Minister suggests that the Llywydd/Assembly has acted unlawfully by simply accepting the motion without counsel and not withdrawing it.

AMs voted in favour of a redacted version of the report being released back in February, but the head of the civil service in Wales (Permanent Secretary), Shan Morgan, refused to publish, as there were concerns that even a redacted version could lead to individuals being identified.

As a result, the Welsh Conservatives and other opposition AMs intended to use part of the Government of Wales Act 2006 to force publication. The relevant part of the Act says:

“(1) Subject as follows, the Assembly may require any person—

(b)to produce for the purposes of the Assembly (or a committee of the Assembly or a sub-committee of such a committee) documents in the possession, or under the control, of the person.

concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions.”

The First Minister’s legal argument continues by suggesting it’s outside the Assembly’s legal powers (ultra vires) to use the Government of Wales Act in this manner.

He also believes (rightly or wrongly) that the report isn’t “relevant to the exercise by the Welsh Ministers of any of their functions” as the Act only refers to collective cabinet actions, not powers held by the First Minister alone (like a reshuffle).

The Welsh Government has issued a statement saying such a release would set a precedent that could lead to all sorts of sensitive information being published. It’s suggested the Assembly Commission and Welsh Government’s legal team discuss a compromise.

In normal circumstances, that would be sensible. However, regardless of the legal grounds, the fact the First Minister has personally intervened makes this a high stakes situation now because it looks like he’s trying to block publication by any means necessary.

It’s unclear yet whether the debate will go ahead as planned tomorrow – it appears it will – but if the Llywydd’s interpretation of the Act’s clause is eventually upheld (assuming the Welsh Government does take the Assembly to court), then, in my opinion, Carwyn would have no choice but to resign immediately.

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