Appointment Of A New Counsel General

Given the coverage of this matter in the media and in questions tabled by Assembly Members, I thought that it would be wise to set out the facts on the Counsel General appointment process and where we now stand following the failure to appoint. I will also address some of the misunderstandings and the tittle-tattle, which have crept into public comment on this matter recently.
Before setting the record straight, I want to deplore the leak of the names of the appointable candidates, which is in contravention of their rights and of the principle of confidentiality for those applying for jobs in the Assembly. That they as individuals, and their candidacies for this appointment, should have been subject to public comment in this way is a matter of shame to public life in Wales, and all the more so given that the civil service commissioners made it absolutely clear in their public comment that the recent recruitment exercise followed due process. It was conducted fully in accordance with the ‘Civil Service Commissioners’ Recruitment Code’ and the ‘Civil Service Commissioners’ Guidance on Senior Recruitment’. The process was by the book. That should have been sufficient to provide assurance that the public interest had been met.
The post of Counsel General was nationally advertised in October 2003, and search consultants specialising in legal appointments were engaged. A board was convened, chaired by Baroness Prashar, the First Civil Service Commissioner and including Sir Jon Shortridge, the Permanent Secretary. The board shortlisted and, on 5 December 2003, interviewed four candidates. The chair then wrote to Sir Jon Shortridge, as the head of paid staff of the appointing body, setting out the panel’s findings and recommendation.
The commissioners’ ‘Civil Service Commissioners’ Recruitment Code’ and the ‘Civil Service Commissioners’ Guidance on Senior Recruitment’ set out in some detail how Ministers should be consulted on senior appointments. The Permanent Secretary’s consultation with me was in accordance with that code throughout the process.
I did not register any objection to the four people on the shortlist, although I commented on the fact that one candidate, who was eventually recommended for appointment by the panel, was a prominent freemason. My concern derived from the salience of freemasonry, which has been reflected in debates in the Committee on Standards of Conduct and in the Assembly as a whole. I was, however, prepared to waive my concern on this issue, noting that the candidate was prepared to resign from the Freemasons, as had the previous Counsel General on appointment.
When the Permanent Secretary advised me of the panel’s recommendation and I read the full papers, I became aware of information not previously known to me, namely that the recommended candidate was also a board member of the Independent Supervisory Authority for Hunting. My concern was not the candidate’s personal views on hunting or on any other issue—this is a free country—however, given the current high political salience of the legislation on hunting with dogs, taken in conjunction with our public debates surrounding freemasonry, I judged that the legal advice of a Counsel General who was prominently associated with these two controversial areas would not carry the necessary stamp of untrammelled authority throughout the Assembly. A Counsel General who would not carry the required authority would not be able to meet the key prerequisite of the post. Furthermore, the commissioners had rated as appointable a second candidate on the shortlist. The recruitment code makes provision for representations to be made, in exceptional circumstances, to the civil service commissioners for such a second candidate to be approved. That is the course that I decided upon. The exceptional circumstances in this case were as follows.
We had undertaken a thorough, professional recruitment exercise in what was generally acknowledged to be a small, highly specialised field. It was likely that anyone who was qualified and interested in the job as defined had been identified. Out of that process, the appointments panel concluded that there were two candidates who were well qualified to do the job. In the panel’s assessment, either candidate was appointable. The difference between the two in overall scoring was small, each having different relative strengths.
I judged that the second candidate was more likely to carry the legal authority that was fundamental to the post. It was on that basis, and that basis alone, that I made the decision to approach the civil service commissioners to exercise the exceptional circumstances provision laid down in their procedures, as was my right. The commissioners decided not to exercise that provision, as was their right. The resulting course of action is set out in my decision report of 26 February 2004, which was published on the Assembly internet site. The job of Counsel General cannot now be re-advertised in the same form as before. I have asked the Permanent Secretary to make recommendations as soon as possible on future arrangements for providing authoritative legal advice to the Welsh Assembly Government and the Presiding Office. My current preferred option is to separate the two.
As I said at the beginning, this has been a sad episode in the way that the names of two candidates have been leaked to the media. I am proud of the Welsh Assembly Government’s record on openness, but this is about individuals who were neither employed by the Government or advising it. Public life in Wales cannot function if applicants for posts in the Assembly are not able to trust that their applications will be treated in confidence. For this reason, I shall be discussing the leak with the Presiding Officer with a view to asking the Permanent Secretary to undertake an inquiry into how the names and other material got into the public domain and to report to me and the Presiding Officer.