Member Accountability Bill Committee

Right. I go on to the first session we have today on evidence, and can I welcome the Chair of the Standards of Conduct Committee at the Senedd, Hannah Blythyn? And would you like to introduce your officials with you today, please?

Thank you, Chair. I'm joined by Meriel Singleton, who is clerk to the Standards of Conduct Committee, and Huw Williams—and hopefully I'll get his title correct now—is chief legal adviser to the Standards of Conduct Committee.

Thank you for that. We have some very general questions for you. Clearly, we have a very tight schedule, so we need to move on quickly. So, I'll start with the reflections of yours and, perhaps, your officials as to the recommendations you made, and whether the Bill really reflects those recommendations. And are you content, if it doesn't reflect, with the divergence that actually does occur in the Bill?

Thanks, Chair. On recall itself, what is set out in the Welsh Government's Bill very much reflects the recommendations of the Standards of Conduct Committee in that they've taken a recommendation to do a remove-and-replace one-step process, if you were to have a polling day and a question whether to remove or replace a Member. So, that very much reflects the recommendations of the committee. We sought to find a solution that was practical and pragmatic within the context of the electoral system we'll see in place after 2026.

The only bit where I think there is an element of difference is that, in the draft Bill, it refers to a recall poll still. One of the things we did recommend as a committee was that it be called something such as remove-and-replace, because people are very familiar with the recall system for Westminster now, and this is going to be a slightly different approach. But, also, I think we would take on board that people understand what 'recall' means, so there's only a minor divergence.

Okay, that's the recall. What about the divergence or differences on other recommendations?

So, if I go to deliberate deception—

By the way, we'll come on to those parts later on, but just a consideration of the divergence.

I think, broadly, there is very little divergence from the recommendations we made as a committee. Just briefly on deliberate deception, around the recommendations to put in a new offence with respect to candidates, my understanding is that the committee recommended that that could be done by amending an existing offence, but the Welsh Government is recommending a new offence.

It's the existing offence later.

Yes.

Okay. Sioned.

Diolch. Dwi'n mynd i fod yn siarad yn Gymraeg, os ŷch chi angen set pen. O ran barn y pwyllgor ynglŷn ag a ddylai dedfryd o garchar o 12 mis neu lai fod yn sbardun ar gyfer adalw, a oedd yna unrhyw beth arall roedd y pwyllgor wedi ei ystyried a ddylai fod yn sbardunau awtomatig ar gyfer adalw?

Diolch am eich cwestiwn.

In our discussions, the committee would support an automatic trigger for recall in cases of custodial or suspended sentences of 12 months or less, but we prefer this to be placed in guidance rather than on the face of the Bill, but we would see that as a sensible trigger. It's probably worth the committee noting that there is work in Scotland at the moment to reduce that to six months or less as part of their legislation. A private Member's Bill is going through there, so it's just worth noting that as well.

There were discussions in committee in terms of the evidence we took and whether there should be other automatic triggers for recall. One rationale behind recommending a stand-alone offence is when—. Westminster's one is probably the one we'd be most familiar with. The provisions in that for the automatic triggers very much reflect the challenges of the time. One of the reasons why we suggested to have guidance alongside it was that it actually enables—as, perhaps, the standards landscape changes over time—the Senedd to be more agile, and actually reflect that as well. As you can imagine, there were discussions about whether deliberate deception should be there, or somebody found guilty of sexual harassment. I think there was a concern that putting just one thing, or two things, in there elevates one form of misconduct over another, where, actually, they should be acting as a deterrent for all.

Diolch. O ran hynny, mae materion fel aflonyddu, yn amlwg, yn rhywbeth sy'n ganolog iawn i'r polisi parch ac urddas, onid yw e, a'r safonau rŷn ni oll i fod i—. Ac, wedyn, twyll a dichell, o ran y Nolan principles. Felly, o ran yr ystyriaethau y gwnaethoch chi eu cael fel pwyllgor, doeddech chi ddim yn teimlo bod angen rhoi—. Dwi'n derbyn beth rŷch chi'n ei ddweud ynglŷn â pheidio â chael hierarchiaeth, ond, ar y llaw arall, mae yna rai pethau rŷn ni'n gwybod sy'n ganolog i'n hymddygiad ni fel Aelodau ac fel ymgeiswyr. Felly, fe wnaethoch chi benderfynu eich bod chi'n fodlon nad yw'r pethau yna yn mynd i fod yn sbardunau awtomatig, am wn i, fel pwyllgor, yn y Bil yma.

As I said, I think there was quite a bit of discussion as a committee. The overall decision of the committee was to not elevate an offence over another. We did discuss, particularly around cases of sexual harassment, whether that should be something on there as a deterrent. I'm trying to make sure I give the committee opinion, potentially, not my own personal opinion as well. One of the things that came across in that is, actually, to not elevate one over another, I think, because there was the work going on alongside on deliberate deception and there was quite a focus on that. Actually, we took some evidence, and we asked, in terms of evidence on deliberate deception, I think, if it should actually be an automatic trigger for removal or for recall. I did ask a witness, 'Well, what about in cases of sexual harassment?' They were of the view that deliberate deception impacts society, and I said, 'Well, sexual harassment, on the individual that it involves, has a very significant detrimental impact.' So, I think that's where we ended up, in terms of discussions and recommendations of the committee, but it was something we were very much alive to as part of those discussions.

Ocê. Diolch yn fawr. A wedyn, jest yn gyflym o ran y canllawiau ynglŷn ag adalw sydd yn y Bil, a'u bod nhw'n amodol wedyn ar gymeradwyaeth dwy ran o dair o'r Senedd yn pleidleisio dros hynny, beth oedd y trafodaethau gawsoch chi ynglŷn â hynny?

So, we didn't make a recommendation around a two-thirds majority voting on that guidance. I think we could understand the rationale of the Welsh Government putting that in. Ultimately, if you're going to go to recall and a Member is removed, it is a significant sanction and has significant consequences. I would say, though, it does make that guidance an outlier on all other standards processes. So, when there is a report on an individual from the commissioner to the Senedd, that is just by a simple majority, and all other guidance and the code of conduct is by a simple majority as well. So, it does make it an outlier in this case.

Ie. Ac ydw i'n iawn i ddweud nad yw hwnna'n wir am y broses yn San Steffan chwaith—hynny yw, dyw e ddim yn rhywbeth sydd â rhyw fath o precedent mewn prosesau eraill tebyg?

I'm looking at Meriel. I don't think so, but I'm not 100 per cent. Huw.

The Westminster process is a simple majority on an unamendable motion. But it's possible, I think, to look at it in two ways. One, the guidance could lead to a very serious step, namely a Member being unseated. So, that might be an argument for a supermajority. On the other hand, as the Chair has said, it would be an outlier and inconsistent with the rest of the way this process is structured at the moment.

Diolch yn fawr. Diolch, Gadeirydd.

Thank you. If we look at standards of conduct, there are some committees that are statutory within the Senedd—the Finance Committee. In this sense, this doesn't make the Standards of Conduct Committee a statutory requirement on any Senedd. Should it make the committee a statutory requirement? Should there be a statutory mandate in the Senedd to actually have a committee?

I thought the legislation does make that recommendation—that it's a statutory requirement to have a Standards of Conduct Committee.

It does, does it? Okay. In that case, what are your views on it?

Again, it wasn't a recommendation that the committee made, but I think it does serve to emphasise how seriously this institution takes those matters, and if you look where there might be a statutory requirement in other institutions of the Parliaments, every Parliament has a standards of conduct committee or a standards of conduct and ethics committee. So, I think, from a committee point of view, we would welcome that as recognising, actually, us trying to take as many significant steps as we possibly can and, ultimately, we don't want to be left behind, but lead the way when it comes to our standards of conduct in this place.

Okay. My mistake, and I correct myself sometimes.

You did confuse me for a moment there, and I thought, 'Have I read the Bill incorrectly?'

I suppose, in a sense, it's important to ensure that the committee is established to ensure that it delivers on it, and there is a mandatory requirement to have it, particularly now as there's recall within that, which means it affects individuals' future opportunities and employment, effectively, in a sense, and also the representation of people. But if we're that serious about it and we're talking about the recall issue, there's a question of appeals. What's your consideration of the appeals process and how would you see the appeals process being an effective process, and being fair to individuals, both those who have raised the concern and also the Member who the concern is against?

It's a good question, Chair, and I probably should have mentioned in my previous answer that I think one of the benefits, potentially, of having that Standards of Conduct Committee as a mandatory element, shall I say, or a mandatory body, is that the Bill also sets out proposals to introduce lay members, which is one of the recommendations that came through our deliberate deception work and actually fits with the broader reform work of the committee. So, if you're introducing lay members, they need a function. So, whether there is a potential—we've discussed this as a committee—we will need to do further work alongside this now, alongside the legislation: is there a role for a sub-committee of lay members who have the relevant not just independence, but the independent expertise as well? Could that be on a judicial basis or could it be—we go back to what Sioned was saying around things around sexual harassment and bullying—somebody who has that background to be able to oversee those appeals? I don't know whether Meriel or Huw has anything to add on the appeals process.

Yes, if I could come in there. Thank you. I think there's probably further work that needs to be done on the sort of appeals process that would be suitable. However, the Bill does appear to create the necessary framework to actually establish a formal committee that could carry out either review or formal appeal functions, and it would also give the standards committee and the Senedd the ability to staff that committee in a way that would be appropriate.

It might, very quickly, be appropriate to just remind the committee that there used to be a sort of appeal process—a review by an independent lawyer—and that was abandoned by the Senedd and standards committee in preparation for this Senedd, because of the experience of the way that Members who were subject to standards of conduct investigations used the appeal process to basically run down the clock and string out the process as the end of the Senedd and the election approached. So, the way that the relevant sub-clause has now been framed would enable us—or the Senedd, I beg your pardon—to actually create a sort of appeals sub-committee that might, through a combination of both appropriate professional expertise, but also, maybe, some judicial expertise, actually manage the appeals process far more tightly, to weed out unmeritorious appeals and to deal with appeals of substance.

The more difficult question, which I think you alluded to, is the point about whether this is a one-party appeal—in other words, that the Member who is the subject of the proceedings should be the one with the right to appeal, as opposed to the complainant. That's a very difficult issue, which I don't think the committee, in evidence, considered in detail. In equivalent processes elsewhere, particularly thinking of the Westminster model, it is the Member who has the right to appeal, the right to review. If you were to open that up to the complainant, then you're almost inevitably going to a system where one side or the other—if I can use that adversarial language; one party or the other—will seek to take an appeal. So, I think it is within the flexibility that's been given by the Bill, if it is enacted. I think that's a point that will need further serious consideration in due course.

And I should say, Chair, given that the committee's recommended the introduction of a form of recall for the Senedd, that becomes the ultimate sanction. I know you said before that that means that somebody is effectively losing their position, losing their job. That's where the committee felt there should be reintroduction of an appeals process alongside it. But clearly how that looks in practice is going to need careful consideration as we move forward, and I'm sure I can speak for the rest of the committee on this in saying that we would welcome any views that this committee forms and any evidence from the course of your work that can help us with that alongside this legislation as well.

You mentioned, or a former committee or sub-committee mentioned: should it be a sub-committee of the Standards and Conduct Committee or should it be a separate entity? Because, at the end of the day, it's an appeals process, which the standards committee actually probably has already taken a decision on.

Speaking personally in my legal role, I think the provision in the Bill has been quite carefully crafted to create a workable structure. The alternatives are to actually create something separate, which would probably have to be another statutory appeals committee, and you would then need to put that on the face of the legislation. I think that the way things are, the way the framework is structured at the moment, does have the necessary flexibility, because the committee—and it's in their report—certainly took the view that what it is looking for from the Government is a framework within which the Senedd itself has the maximum level of power and discretion to manage its own affairs, and I think the way that that provision has been crafted retains that principle.

Lesley.

Just on that point, I asked the Counsel General this question in the Chamber last week, and my question to you is: should it be flexible or should it be on the face of the Bill? I think her view was that the Government were leaving it up to the Senedd to decide. So, I just wonder what your view is on that.

Well, I think that that very much echoes—. I mean, the Chair will confirm this, but I think that's consistent with the tone of the standards committee's report and the recommendations it made for the approach to be adopted, which the Bill has followed.

And if you go back to the report on deception, you will see that there was quite a lot of discussion about this principle of the autonomy of Parliaments, namely that, as legislative bodies, Parliaments should, to the maximum extent, be responsible for managing their own affairs, consistent with all due fairness and due process.

Okay. Sam.

Thank you, Chair. Good morning. Thanks for being with us here today. The Bill makes provision for the Standards of Conduct Committee to have lay members included. I'm just interested in your views on that broadly.

Yes. So, as part of the work around deliberate deception, one of the committee's recommendations was for the introduction of lay members. This was based on the evidence that we took. We also spoke to people that have served as lay members in Westminster as well. So, broadly, I think, as a committee, we see this as a positive step forward, like I said previously, not just to strengthen that kind of independence and confidence in the system, but actually to enable us to use independent expertise to help—it could be with appeals, it could be in certain cases. I think it's something that the committee would consider alongside our further work, particularly around dignity and respect as well.

Okay, thank you. And then Schedule 1B points to reasons why people would be disqualified from being lay members on the Standards of Conduct Committee, and also includes a maximum term of office as well, so two terms of six years each. What are your thoughts on those points?

So, on the first aspect, in terms of why somebody perhaps wouldn't be able to serve as a lay member of the standards committee, I think that's perfectly sensible, as presented. In terms of the appointments, or the length of appointments of lay members, the committee didn't receive any specific evidence on the length of appointments, but I think, as a committee, we'd certainly welcome that continuity that would be achieved by terms that don't coincide with the Senedd terms, but also to allow for that kind of—we call it 'corporate knowledge'—continuity of expertise and knowledge of the system.

And also I think one of the things we would perhaps welcome as a committee is for all those terms not to start and finish at the time, so that you don't have a situation where it's all out and you have all new lay members coming in at once, that you have that continuity, and that ability to kind of build and share expertise and experience as well.

Okay, thank you. And then one of the disqualifying reasons would be for a person who's been a Member of the Senedd, or indeed an elected member elsewhere, within the last two years. Does the committee have a view on whether two years is a long enough time period, especially for Members of the Senedd, to be away from this place and to then make judgment on whether people's behaviour is appropriate or not?

So, I think the committee is of the view that it should be longer than two years. But at the moment I believe it's in line with what the standards commissioner disqualification is. So, we'd also be of the view that both should be longer.

If you change one, you change both.

Okay, that's helpful. Thank you very much. And then the other point, in terms of lay members, is the appointment process. So, the Bill currently lays out that lay members must be appointed by resolution of Senedd Cymru, and there's a bit more detail in there as well. We do, of course, have a public appointments process for other significant roles such as these. Do you think lay members should be appointed in line with the public appointments process, or are you satisfied with how it's laid out in the Bill at the moment?

I think, being entirely honest, it's not something that the committee has discussed to this point. So, I couldn't speak for the whole committee on it. But, obviously, it's something that we'll be watching with interest as this work continues.

Okay, thank you. And then in terms of the—. The Bill makes provision for own-initiative powers for the standards commissioner. Again, I wonder what your views or the committee's views are on those own-initiative powers for the standards commissioner.

So, this was a recommendation of the committee, that the commissioner should have own-initiative powers. It's worth pointing out that, at the moment, the Senedd is actually an outlier in this regard, with other Parliaments already providing their commissioners with such a power.

Many of these recommendations to improve the standards process come from the experience of the committee, and the experience of previous cases, and it's always looking to evolve and to strengthen that process. It would mean that the commissioner could act on matters where the public might expect action, where, currently, the commissioner can't act until the complaint is made. So, the commissioner may be made aware of something, but is unable to act without a specific complaint, or you may find something that becomes apparent during the course of an investigation, but without a separate, specific complaint, the commissioner is unable to investigate it.

Okay, thank you. And then I thought it was interesting, in the way the Bill is being laid, that, if I may just read this out:

'The Commissioner may investigate the conduct of a Member of the Senedd if the Commissioner...has reasonable grounds for suspecting that the conduct of the member has, at a relevant time, failed to comply with a requirement of a relevant provision'.

It continues on. The point I want to draw out is that the legislation goes on to define what a 'relevant time' means, so the timescale by which an issue has occurred, but doesn't seem to define what 'reasonable grounds' are for suspecting the conduct of a Member. So, I wonder whether it's a risk that, because 'reasonable grounds' hasn't been defined in here, there are areas that a commissioner may go into that may not be considered reasonable by some.

I think the point to make is that the commissioner is an independent appointment. Reports, or any investigations made by the commissioner, are subject to checks and balances to ensure that the commissioner's got good reason for initiating an investigation. The first stage, normally anyway, of the complaint is to see if something is admissible before it goes any further. So, there are those checks and balances in place, and I think, speaking very anecdotally from the discussions we had in committee, somebody had this perception that the commissioner would be wandering around the building looking for things to take up, but it's clearly just to address some of the things where, perhaps, there should have been investigations in the past and it hasn't been possible to do that.

Could I just perhaps help there? 'Reasonableness' in this context is a fairly well understood concept in administrative and public law, so it would require the commissioner to take rational and proportionate decisions for proper reasons, so it would not just allow the commissioner to go off on the nearest hint of suspicion. There would need to be a rational degree of substance for him taking a decision, and clearly by including that test, at least in theory, that could then be justiciable. A Member who was the subject of what they thought was an unreasonable complaint being initiated could seek assistance from the courts against the commissioner. So, it does provide that level of safeguard, but as I say, within a term that does have a specific and fairly well-understood meaning in administrative law terms. So, I think it's an appropriate way of phrasing a check or a test on the commissioner's decision to commence an investigation under those powers.

Thank you. And just really briefly, Chair, what you're suggesting is that there's no risk, because the commissioner is essentially paid per job for their work—that there's no risk that they're going to conjure up some issues to keep themselves well employed.

Well, one would hope that whoever is appointed as the commissioner would be of sufficient professional standing not to adopt that sort of approach. Of course, there are other ways of dealing with the remuneration issue as well, but that's probably not for this morning.

And like I said, we are an outlier in terms of other Parliaments that have given their commissioners the power to do this already.

Thank you. Thanks, Chair.

I'm conscious of time, so I'm going to move on to Buffy quickly, and then I've got one question to close.

Okay, very quickly. Thank you for joining us this morning. What, if any, were the committee's views on the proposals to provide the Welsh Ministers with a power to prohibit the making or publishing of false or misleading statements of fact and the extent to which it delivers on the recommendations made by your committee?

So, this is on the deliberate deception recommendations of the committee. I think it's worth noting at the outset that, let's just say, there were political negotiations that predated me being Chair of the committee for the committee to undertake this work from Welsh Government. The committee is responsible for setting our own work agenda, and we actually agreed a broader terms of reference in looking into deliberate deception, which I think was helpful for the committee, and then to gather evidence on the merits of introducing further mechanisms. So, that's one of the things I would say. If we're taking a commonsense approach, we should say: should politicians be held to account for deliberately deceiving? Should they not do it? Of course, they should not do it, and it should be held to account. But how do you define that and what does it look like? So, the recommendations or the proposals set out in the legislation of your first candidates are not something that would be the responsibility or would be covered by the Standards of Conduct Committee. Our work relates purely to Senedd Members. But we did make recommendations that something could be done. We found a way through the discussions to make a recommendation that the current provisions could be strengthened to hold candidates more to account for making falsely misleading statements that could influence the outcome of an election.

Okay. Do I have time for another question, or—?

I'm going to ask one question and then I'll come back to you, because we are tight. As you said, this Bill talks about the candidates and the election period, and it doesn't talk about Members. The statement made by the Counsel General—there were several Members who raised the concern that it didn't address the making of false or misleading statements by Members. Now, your committee is also—in your letter you told us—undertaking further work in parallel to this Bill committee, in one sense, on inaccurate or deceptive statements by Members. Are you satisfied, therefore, that the revisions we are seeing, or the revisions you are going to possibly seek to introduce, will be sufficient to address the issue in relation to Members? So, it's not in this Bill, but beyond that.

So, the first point, I guess, to make in respect of candidates is that, for those of us standing for election again, as soon as this place is dissolved we all become candidates as well, so that applies to us. In respect of Members, I think I would say, and I think there'll be people who say that this legislation doesn't go far enough, or that the recommendations didn't, but I think it is important to note that we're going further on this than any other Parliament has done to date. One of the recommendations we make and that the committee will be working on now is to amend rule 2 of the Senedd's code of conduct. It already requires Members to act truthfully at all times, and it's also important to note that our code covers us not just in our work as Members, it covers us at all times, which is not always the case elsewhere in other Parliaments. We will be consulting as a committee on replacing rule 2 with two new specific rules: one that builds on the current requirement to act truthfully by explicitly requiring Members to refrain from making deliberately inaccurate statements, and a second that provides that factually incorrect statements are to be corrected at the earliest opportunity or immediately upon a Member being ordered to do so.

So, your committee is currently looking at work to revise the implications for Members of the Senedd, and this Bill just talks about elections.

Yes.

Okay. Sorry, Buffy.

That's okay. I think that Hannah has answered that question. Thank you, Chair.

Lesley.

Thanks very much. Just talking about that wider work that you're doing that the Chair just referred to, you mentioned that there has been very little divergence in the recommendations that you made specifically on this. I was just wondering if there's anything else in the Bill's provisions that you think could be a barrier to your future work programme or could, in fact, complement it.

I think that it would be more the case that it would potentially complement or empower the work of the committee, particularly the recommendations around introducing lay members, the potential to have sub-committees. Alongside looking at this work, the code of conduct and the guidance that will need to sit alongside the legislation, the committee is currently focused on finalising our work around what we call dignity and respect—so, improving that standards process more wholesale, especially in relation to cases of bullying and harassment. I would say, as Chair of the committee, that I think the legislation may give further opportunities to support and strengthen that work, moving forward.

Okay. And just finally, is there anything that you would like to see in this Bill? These legislative vehicles don't come along that often; is there anything that you think is missing from this Bill or glaringly obvious?

I'm looking at people who've served the committee much longer than I have.

There is a note in your papers for this morning that indicates a number of relatively minor but nevertheless useful changes that have been suggested by the operation of the system and that have been spotted by the committee, but also as a result of observations that have been made by the commissioner under his power to make general observations. Some of those have been picked up in the Bill, others haven't. The one that hasn't been picked up is making it clear that a Member can self-refer themselves, in other words initiate their own complaint. The reason for maybe making that explicit is that there certainly was experience in other legislatures of Members saying that they were going to refer themselves to a standards committee but then never actually doing it.

Secondly, as a result of experience in an earlier case, we think that it would be useful to introduce a formal offence of obstructing the commissioner in his work, and there is a reported case where there was an attempt to interfere with witnesses. There's a minor point about the use of translators and the need to provide for them being put on oath. And there is potentially the question, which is something that you may well like to pursue with the commissioner when he comes before you, about the constraints he finds in relation to the operation of section 16, I think it is, which is the current confidentiality provision. Westminster, for example, does disclose a certain amount of information about complaints of a certain type against Members when they are initiated, which is not done in the Senedd because of this very tight confidentiality provision. So, I'd just very quickly draw those to your attention. Thank you.

And just finally, Chair, just on those points, we have had discussions with the Counsel General on them, and those discussions will continue on whether it's appropriate for amendments to be made to the legislation or whether there are other means or a mechanism to do that as well.

Okay. We're just about on time. If there are any issues that you think still need to be brought to our attention, please let us know in writing. Can I thank you? As the Chair of a committee, you will be aware that you will receive a copy of the transcript. If there are any factual inaccuracies, please let the clerking team know as soon as possible. Thank you for that. Can I thank you for your evidence session? I'm sure that if something comes up during the evidence sessions that we have we may well write to the committee once again for clarification.

Great. We'd welcome that. Diolch.

For Members, we have a strict turnaround time, where we now invite the standards commissioner, Douglas Bain, to give evidence. If it's okay, we will call him in straight away.