The Welsh Government’s new Counsel General

Alan Trench considers Theodore Huckle’s appointment as Counsel-General

The Welsh Government (now renamed in practice, despite the lack of a formal statement beyond the ministerial appointments) has named its new Counsel General. This post was left vacant when the new ministers were appointed, and – like the law officers in the Scottish Government and Northern Ireland Executive – it is now a non-political appointment.

The new Counsel General is Theodore Huckle QC, a Cardiff barrister who took silk earlier this year. There’s coverage from BBC News here and the Government’s news release is here.  His background is mainly as a personal injury barrister, where he’s acted on a number of complex and difficult cases (his profile from his chambers, Civitas Law, is here). The First Minister is ‘delighted’ by the appointment, and Mr Huckle thinks it’s ‘a privilege’ to accept.  Congratulations to Mr Huckle on being appointed to the job, at such an important and interesting time.

However, Huckle’s background in public and constitutional law is slim, and for all the enconomia to him, one has to wonder if he’s the best choice given the nature of the legal questions with which he’ll have to deal.  Of course, plenty of UK Attorneys-General have come from backgrounds in other areas (usually criminal law), and had to pick up public law as they have gone along.  The current Attorney-General, Dominic Grieve QC MP, formerly practised health and safety law, while the current and previous Lords Advocate in Scotland are from the criminal prosecution service. Huckle will also have active support from the Government’s legal staff.

In these circumstances, one has to wonder what difference it makes that he won’t actually be working full-time in government. As his chambers’ press release (here) says ‘He will also remain in private practice, receiving instructions through Civitas Law.’ There is a big job to be done in government, building it up to deal with law-making powers (for example, in boosting its drafting capacity), and Schedule 7 is likely to create a number of practical problems in operation on which a law officer’s opinion will be vital.  Given his lack of a background in government as well as limited time, one has respectfully to question whether Mr Huckle is ideally placed to tackle that.

It will also be interesting to see whether he appears in person before the UK Supreme Court in a case due for hearing soon, the judicial review of the Scottish Ministers by Axa General Insurance.  This is the ‘pleural plaques’ case. Following a House of Lords decision that there was no damage for the condition of ‘pleural plaques’, a lung condition arising from exposure to asbestos, the Scottish Parliament passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009 that reinstated liability for the condition. That’s what is being challenged, and in the course of the first-instance and appeal judgments the Court of Session in Edinburgh gave a good deal of attention to the question of the status of Acts of the Scottish Parliament.

There’s a good discussion of the issues and the appeal judgment by Aileen McHarg of Glasgow Law School on the UK Constitutional Law blog, here. The Counsel General has formally ‘intervened’ in the case, and his submissions were considered by the Inner House during the appeal hearing.  It will be the first full-dress devolution case before the Supreme Court, with the Attorney General for Northern Ireland also intervening. Will there be a full house of devolved law officers?

Alan Trench is a solicitor and an academic, associated with the University of Edinburgh and the Constitution Unit at University College London. He writes regularly on his blog Devolution Matters where this article originally appeared.

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