Member Accountability Bill Committee

Thank you, Chair. Good morning, Mr Greenberg. Thank you for joining us this morning. I just want to ask a couple of questions on the proposals within the legislation for the recall of Members of the Senedd. I wonder if you could perhaps give us a brief overview as to how the recall process has operated in the House of Commons and the impact it perhaps has had on the standards process and on the conduct of MPs down in Westminster.

Thank you, yes. Can I be heard clearly, Chair?

Yes. Yes, you can.

Lovely. Thank you very much. I would start by reminding the committee that the Committee on Standards in the House of Commons included some fairly detailed observations on the operation of the Recall of MPs Act 2015 in its own landscape report shortly before the last general election. I commend to the attention of the committee the Committee on Standards' observations about the operation of the recall Act. I would particularly read into your record, if I may, paragraphs 235, 240 and 242 of that report, which make the following points. The first is that the importance is that the committee is still able to determine a sanction on the basis of the facts before it in each case, and that is something that you, Chair, and members of the committee will wish to bear in mind in the context of any proposal to adopt the same kind of approach, because, inevitably, an external sanction or an external feature has to be structured in a way that does not distort your ability to apply proportionality and other criteria in determining the sanctions that you impose. That was one of the reasons for reviewing the operation of the Act.

The Committee on Standards recorded that the 2015 Act has had a significant impact on the operation of the parliamentary standards system, because, as I say, any recommendation that they make about sanctions has to be made in the knowledge of the potential triggering of the 2015 Act. Clearly, there are career-changing or, indeed, career-ending implications to the implementation of the recall Act, which the committee, in considering standards, would therefore have to take into account.

If I may add one observation, it's really this: anything that provides what I would call a fixed point for an effect of sanction has the potential for impacting on the committee's ability to make its own overarching proportionality and wider decisions, and I think that's something that you need to bear in mind as an inevitable result of creating a fixed point along the sanctions spectrum. Does that answer the question?

Yes. That's a really a helpful start, so thank you for kicking us off with that insight. You talked about the impact on the system, and clearly Members of Parliament are within that system, and you hinted towards the fact that, I guess, MPs could consider the effect of a recall to be career ending. So, would you, just in broad terms, suggest that the introduction of a recall process as part of that system has improved the conduct of MPs?

That's quite a difficult question to answer, and I think that my most honest answer would be that I am not in possession of evidence in either direction on that, to be honest. It's not something that we've tried to gain any empirical evidence about. What I would say is this: I think there is general evidence from other legal contexts, in criminal contexts in particular, that sanctions are not the most effective method of changing and improving attitudes and behaviour, and that, in terms of changing Members' appreciation of the code, members of the public's understanding of the code, improving best practice, it normally requires focus on the good, getting people to understand the benefits of the code. Just frightening people more doesn't generally seem to be a key method of changing behaviour for the positive. Does that make sense?

Yes. That's really helpful as well, so thank you for that. In the latter part of your response to the previous question, you started talking about the effect that perhaps a fixed point for a sanction may have on decision making. Within the draft legislation we're scrutinising at the moment, there is no set fixed point or something like a set number of days of suspension on the face of the Bill, which would trigger the recall. What we do have in the Bill is an approach to require the issuing of recall guidance by the standards committee. Do you think that's a better approach, to have recall guidance, or do you think it would be helpful to have, on the face of the Bill, some set trigger points?

Again, if you'll forgive me, I don't think I could say whether it's better or worse. I think there are different features of each approach and, to put it at its simplest, I think the approach of having guidance is ultimately flexible and the inevitable corollary of flexibility is a lack of certainty.

If I may take a slightly different approach on the supplementary question you asked a moment ago about impact on Members' behaviour, I think it is fair for standards committees generally to want members of a Parliament to have a reasonable degree of certainty about the likely outcomes of standards investigations. One aspect of the flexibility that is encoded in the parameters being set by guidance is a lack of certainty, and perhaps a little bit of a lack of openness and transparency, again because of that flexibility. On the other side is inflexibility. Having a trigger that's determined by objective and, therefore, nice and certain and open criteria, the corollary of that is inflexibility. I think you may feel I'm rather dodging the question, but what I'm really doing is saying that whichever of the two options you choose has an inevitable upside and an inevitable downside.

Thank you. If I may, Chair, just one more point on this. You've started to describe upsides and downsides of a less or more flexible approach to this. We're looking in particular, as I said earlier, at what's on the face of the Bill, which is a requirement to introduce some recall guidance by the committee. Would you see any further unforeseen challenges in that approach? You've just described one,which is perhaps the uncertainty it gives to elected Members, but are there any further areas you think that we should be considering in terms of the challenges of having recall guidance rather than having very set trigger points?

I think I would expect the committee to look at this question not as a specific question of policy on its own, but as part of its overall concentration on ensuring that it has an effective range of sanctions for misconduct with an effective level of accountability. I think, when you look at it in the round, you have to ask yourself, 'Will this be a feature of the standards landscape, so to speak, that enhances accountability, enhances effective sanctions, and also provides a level of transparency, certainty and clarity for Members?' Really, I suppose the clearest answer to your question about clause 5 in its present form is that everything will depend or would depend on the nature of the guidance and how that guidance is designed to reflect the overarching coherence of the sanctions regime and how much certainty and clarity it gives to Members at the same time. So, what I'm really saying, perhaps, is that the challenge that I've talked about of steering between flexibility and certainty, what you would be doing in clause 5 is putting that challenge off to the level of quasi-legislation rather than addressing it in a final form on the face of the Bill. Perhaps that's inevitable if you take this route, but that is something I think the committee will have to be very aware of at this point.

Thank you.

A question from you, Sioned.

Diolch yn fawr, Cadeirydd. Bore da. Mae'n ddiddorol eich clywed chi yn dweud nad oes tystiolaeth o ran gwella ymddygiad o ran yr Aelodau, ond, wrth gwrs, mae gan y broses safonau ac unrhyw broses adalw rôl bwysig o ran sicrhau hyder y cyhoedd mewn democratiaeth, a hefyd, efallai, negeseuon diwylliannol moesol ehangach. Felly, yn sgil eich profiad chi o ran y system yn San Steffan, ydych chi'n credu y dylem ni ystyried unrhyw faterion eraill fel sbardun adalw awtomatig—yr unig un sydd gyda ni ar hyn o bryd, wrth gwrs, yw dedfryd o garchar o 12 mis neu lai—rhywbeth fel yr atal dros dro am o leiaf 10 diwrnod eistedd neu fathau, efallai, o gamymddwyn fel aflonyddu rhywiol, er enghraifft, neu ddichell?

I think, putting the two parts of that question together, if I may, I very much agree that this is a question of public confidence and that trust—well, ultimately the desire to have real trust between the body politic and the public—is what underpins the entire standards system. So, I very much agree with that.

When I alluded to the fact that there isn't empirical evidence, it's due to two things. Firstly, I haven't tried to collect it, and, of course, I don't impose the sanction. In non-rectification cases, I don't impose the sanction in code of conduct cases myself. But I also think it would be very difficult to devise a way of obtaining clear evidence, objective evidence to show changes in behaviour and attitude by politicians.

I do think this is about public confidence. I very much agree with that implication of the question, and so I would say that, actually, my views about whether a 10-day trigger is more or less effective are much less important than views that you will hear from members of the public. And I'm sure, Chair, that you are inviting many members of the public and third sector organisations to come and talk to you about their perception of the effectiveness of the standards regime. I would say that their view on this was actually worth a great deal more than mine.

I think having other trigger points, what it does is it will inevitably change the committee's focus when it is setting its own decisions about sanctions in individual cases. The example that was given in the question of including an automatic trigger for findings of sexual misconduct, is that something that would give clarity and certainty? Well, it might. Again, there would always be doubts over the operation in particular cases, because each case's facts are so fact-specific and it depends on the whole circumstance of the case.

Could you end up in a situation where you regretted having a fixed point in a particular case? Well, of course you could, because that's the point about fixed points, is that they are inflexible. And every code of conduct case is so fact-specific that the committee may feel that flexibility and overarching flexibility in the terms of setting a proportionate and balanced sentencing guidance regime is the most important thing for it to maintain.

But subject to that point, which I think is clear from the face of the legislation—the quasi-legislation—but subject to that point, I do feel that the public are absolutely key here, as you say, and I am not in a position to speak for them.

Diolch. Mae hwnna'n ddefnyddiol iawn o ran yr hyn rydych chi wedi ei rannu, o ran pa mor ymarferol fyddai cyflwyno'r math yna o beth. Un cwestiwn olaf gen i o ran yr hyn sydd ddim o fewn rheolaeth y pwyllgor safonau, nac o fewn rheolaeth unrhyw ddeddfwriaeth, sef beth sydd yn digwydd yn y llysoedd barn. Dwi'n nodi yn San Steffan eich bod chi yn gadael gofod ar gyfer unrhyw apêl gyfreithiol i lys barn i gymryd lle cyn bod mecanwaith adalw yn digwydd, os ydw i'n gywir. Dŷn ni ddim wedi ystyried hynny o ran y ddeddfwriaeth sydd o'n blaenau ni. A ydych chi'n gallu gweld os na fyddwn ni'n gwneud hynny, hynny yw, ein bod ni'n caniatáu i unrhyw apêl yn erbyn dedfryd a fyddai â sbardun awtomatig, sef dedfryd o 12 mis neu lai, ddigwydd yn gyntaf cyn bod y broses adalw yn cychwyn, a ydych chi'n credu bod hynny'n hanfodol neu beidio?

I think that there is a general point here that affects both the provisions in the Bill about recall and also other provisions in the Bill, and it's a point about mixing the standards regime of the Senedd and external legal processes and statute law.

So, if you enact a provision about recall, for example, you are immediately creating a combination of what at present is, effectively, your exclusive cognisance, your privileged envelope of self-regulation; you are immediately creating a combination between that and, through a statutory mechanism, reference to external legal processes, whether that be convictions or other matters. One of the inevitable results of that is statute has to be subject to the jurisdiction of the courts. So, as soon as you create a statutory process of this kind, you are no longer able to operate a purely exclusive cognisance approach. I know that this is slightly different for the Senedd than it is for Westminster because of our different constitutional arrangements. But, for you too, moving from a purely self-governance-based regime to a regime that involves statutory triggers, statutory considerations, inevitably creates a necessary oversight of the courts in relation to those statutory provisions.

The reason why I put that as the background to your question, to answering your question, is that the answer then is very simple: if there is going to be judicial involvement, you must make sure that there is an appropriate opportunity for that involvement to take place in a way that doesn't come in and retrospectively nullify something that you've done. So, you have to ensure that any legal challenges, legal appeals, legal processes take place at an appropriate point in the overall timeline to provide finality and clarity. Does that make sense?

Ydy. Perffaith. Diolch yn fawr iawn. Diolch, Gadeirydd.

Lesley.

Thank you, Chair. Good morning. I just want to look at your experience of operating in a standards regime that includes lay members on the committee of standards. I appreciate you have been the commissioner for the last nearly three years now, but I wonder if you could say a bit about how you think the lay members have evolved over the past few years, since it began in 2012. There have been changes made, for instance, equal members of elected members and lay members, and voting rights, et cetera.

Thank you for that. Again, I will definitely tell you what I'm able to. I have slightly limited ability to comment on this because my involvement in the lay member system is, of course, very much constrained—well, not constrained, it's restricted. In particular, I'm not involved in recruiting or appointing lay members, and I have no formal specific relationship with them outside my general relationship with the committee. This is because, of course, I am completely operationally independent from the committee. You're asking almost for personal reflections. I would say that, on my relationship with the committee, I regard my relationship with the lay members as a very important feature of that. I welcome their scrutiny, I welcome their involvement. I think, given the introduction to the question before last, reminding us of the importance of the public in this, ultimately, the fact that lay members provide an independent element of the system is something that I hope very much enhances public trust, which, as I say, is the only thing we are here to achieve.

In Westminster, the existence of the lay members, the fact that they now have, effectively, a voting parity—or, in some circumstances, a potential majority—in the committee, I think taking that alongside my operational independence, the independent expert panel, which hears appeals from decisions of the committee, and the ICGS, the independent complaints and grievance scheme, which is wholly independent again from Members of Parliament, if you take that all in the round, the lay members are one part, an important part, of the ways in which we show operational independence of the standards scheme from Members of Parliament and, indeed, from Parliament itself.

So, without, as I say, being involved in some aspects of them, I can certainly speak to their being an important independent element of a scheme in which independence is vital. I often say to Members of Parliament that, inevitably, one of the dangers of the standards system is that, from the public perspective, the necessary degree of self-regulation can risk a sort of, 'Well you're marking your own homework' kind of accusation. Bringing in effective independent elements of the regime adds credibility in a very important way to the overall standards scheme, and lay members must be an important part of that.

I would also add that, of course, as in other interactions between the Senedd and the public who come to give evidence, or come to be involved in different ways, lay members are simply a method of providing valuable external expertise and perspective, including some of them who may have a background in external regulatory bodies, some of them who may have a background in third sector organisations. Whatever they bring, they will bring valuable additional external expertise to the committee's deliberations and, in that sense, be a positive addition. So, I think that's probably all I can helpfully say about the lay members. I hope that answers your question to some extent.

Absolutely it does, and I think you've very eloquently described the advantages to having lay members. I wonder if you think there are any potential challenges to having lay members on the committee.

Again, I think it's difficult for me to speak very specifically about that, because, of course, I'm not part of the closed deliberations of the committee. I think, Chair, you are expecting to have an opportunity to take evidence from the committee, and doubtless they will be able to be more specific. If I were to try to be helpful by speculating on what the potential challenges are, I might do more harm than good, so if you'll forgive me, I won't attempt a more specific answer to that question.

That's absolutely fine. I wonder if you have a view on—. You will have seen the provision of our Bill, currently, around the appointment of lay members, so the disqualifying office and the maximum length of term. So, for instance, a Member of the Senedd can't be a lay member within two years of them leaving this place. I wonder if you have any views about that, and also around whether the terms should be renewable, whether you think the terms should be staggered. So, rather than appointing everybody on the same day for a term, you should stagger that, so that you have that continuity; you don't have all Members leaving the committee at the same time.

So, on the last point, yes, absolutely, I think, again, it's not strictly a point for me, but having been involved in the creation of a number of statutory committees and hybrid committees over the years, I think continuity is a really important factor, and I think it's something that one generally does factor in. From the perspective of the committee, to the extent to which you regard the lay members as providing a corpus of external perspective and expertise, having a degree of continuity of corporate memory on that is very important. So, having a cliff edge, where you lose them all at one go and they all have to gradually get back up to speed without being able to induct each other, so to speak, I think could be very disruptive. So, I very much agree with that.

On the question about former Members, there’s a little bit of a balance here, isn’t there? I think, as I said, this is about having members in particular—members of the public in particular—seeing this as an independent element of the system. And I think, inevitably, if somebody, for example, walks straight out of the Senedd one day and then comes back the next day into the committee, and now they’re labelled a lay member, is there a degree to which or is there a risk that they will be perceived by the members of the public as being sort of reincarnated Members, so to speak, rather than truly lay members? Clearly, there is such a danger.

On the other hand, in crafting this Bill, I suspect that one of the factors that has been considered is that experience is always valuable, and, once a person has been liberated from their immediate involvement, day-to-day, in membership of the Senedd, it may be that you want their broader experience, gained during their time as a Member, to be available, including to the standards committee, as from a public perspective. So, again, it’s not for me to say whether you’ve got this right or wrong. But let me put it like this: I can see why you might effect a balance of this kind. You might say, 'Well, we’re not going to say you can never serve as a lay member, but we want a bit of a gap to show a degree of independence.' And I think that would make sense for me.

On disqualification and terms, I don’t think it really is for me to express a view. And again, I would say, as has been said by members of the committee this morning, this is so much about public confidence. I think this is something where the public view, which I’m sure you will acquire, really is worth much more than any view I might suggest, and I think also you will be interested in hearing from people who’ve had lay member experience, whether it’s on our committee in Westminster, or other similar committees—what do they feel about being able to stand again, and does longevity bring greater advantages to the committee? So, I fear, that one I am going to dodge, but I hope the other two I’ve been able to say something helpful about.

Thank you very much.

Buffy.

Thank you, Chair, and thank you for your evidence this morning so far; it’s been really interesting. I have three very brief questions for you. So, firstly, could you outline your experience of operating in a standards regime where the commissioner has own-initiative powers?

Yes. The committee will be aware that my own-initiative powers weren’t part of the original creation of my office. I’ve had the power to initiate investigations in the absence of a complaint since December 2010. And I think the most important feature of it for me—and this was a feature identified in the report of the Committee on Standards and Privileges, as it then was, that created this own-initiative power, and that was in the seventh report of session 2010-11, paragraph 6 and 7—the most important feature was that it must go along with public expectations that reports of impropriety will be investigated in the same rigorous and thoroughly evidence-based way that all other investigations are carried out by the commissioner.

And I think, in terms of your question about what’s my experience of operating an own-initiative power, it is this that is the most important feature: to ensure that it never becomes, either in fact or in perception, an opportunity to go on fishing expeditions and look for trouble. It's got to have the same rigorously evidence-based process as set out—. As the committee knows, my processes are set out in a published procedural protocol that is approved directly by the House of Commons, and two of the most important paragraphs of that lengthy protocol, paragraphs 23 and 24, set out the evidential and other benchmarks for commencing an investigation. And what is really important in terms of both actuality and perception is that those benchmarks make no differentiation between an own-initiative investigation and a complaint investigation.

So, I think you'll sometimes—. One will see a media report alleging impropriety, and sometimes I have opened an investigation on my own initiative, based on external reports, and personally I have found that an important part of my overall responsibilities to the House—and it is that, again; it's responsibility to the House—but I have gained the confidence to use that from knowing that I'm applying the same rigorous evidential standards as set out in the protocol. I have to be satisfied before I start an investigation that I have sufficient evidence to warrant it, and then I have to be satisfied that an investigation will be proportionate, and then I have to be satisfied that an investigation will be justified.

I say this to the committee, knowing that the committee knows better than I do that opening an investigation is a very significant event in the life of a Member, and it's not something that any regulatory body does or should do likely thinking, 'Oh, well it's fine, you know, I can open the investigation and if I don't find anything, I'll close it again.' We are all very well aware in this room that opening an investigation is a very significant event and that it therefore requires these very strong and rigorous factors to underpin it, and that is as true for own-initiative investigations as for any other, possibly even more true, that it is seen to be done based on evidence and not on any kind of instinctive or emotional kind of reaction from the commissioner.

So, when I consider opening an own-initiative investigation, I follow exactly the same processes as for others, I use the same criteria, I start with my remit as set out in the protocol, I move to checking that there's a specific breach of a specified rule of conduct, and then I check for evidence and proportionality and justification in the way that I've described. Does that answer your question?

Yes, it does. Thank you very much. Just following on from that, what do you think the benefits of having own-initiative powers are, and how does that impact, then, on the standards regime?

Well, I suppose the most obvious benefit—and forgive me if this sounds rather trite, but I say it because it does lead me to the natural answer to your second question—the most obvious benefit is that whether or not an investigation is commenced does not depend on simply whether somebody thinks to complain to me or not. So, in terms of overarching scrutiny, if I can put it like that, in terms of ensuring that I have an appropriate flexibility to open investigations where there is something that needs investigating, it is an important tool. Sometimes—. I'll tell the committee this, if I may: I cannot always predict when I am likely to receive complaints and when I'm not. Sometimes I hear something and I think, 'Oh, I'll get a lot of complaints about that', and I don't, and sometimes I'm surprised that I get a lot of complaints about something that I might not have expected to. So, I think that, in terms of flexibility, it simply ensures that the trigger for an investigation is not left entirely in what might be seen to be not random, but certainly a variable trigger of public complaints.

That leads me to answer your second point, which is that therefore it enhances credibility for the regime as a whole, because the public can see that, in the performance of my operationally independent role, whether or not an investigation is triggered is wholly down to the matters I discussed before—evidence, justification, proportionality—and not on what the public might see as a whim of mine or a whim of the public. It's not just down to complaints. So, I think the overarching impact is on credibility, or at least I hope it is. As I've said before, Chair, it's not really for me to speak for the public as to what they find credible, but I would hope that they would find that this operational independence, that additional flexibility, enhances the credibility of my role and, hopefully, that then underpins the public trust that we've talked about so much this morning and confidence in a system that is, ultimately, self-regulating.

Thank you. Thank you for that answer. And then finally from me: do you think that the current two-year period of disqualification for former Members of the Senedd from being appointed as the standards commissioner is appropriate?

Again, it's not for me to express an opinion about that, if you'll forgive me; it is very much a matter for the house. But, if I may say so, what I said about lay members, the balancing principles, applies equally well here. You want to avoid it looking like what I believe is called in some circles 'a revolving door', but you also want to make sure that that you don't shut out the possibility of experience and experience being brought to bear. So, I can see that's the balance. I feel it's not for me, if you'll forgive me, to express a view on how that balance is struck.

Thank you. Thank you for those answers. Back to you, Chair.

We’ll move on to some questions about—. I think we had a question on the appeals process. Sam.

Yes. Thank you, Chair. I wanted to speak to, maybe, Part 2 of the Bill, which relates to the Standards of Conduct Committee. The Bill introduces what would be a Standards of Conduct Committee to the Senedd on a legal basis. I'm just wondering what your view is on that being introduced.

So, as to the main effect of introduction, I've already spoken about that a little bit, about intermixing statute and self-regulation. And I think I've probably said as much as I can to help the committee on that. I think that you just need to be very aware that, when you mix statute and privilege or exclusive cognisance or self-regulation to any degree, you inevitably introduce a potential distortion. And, as I say, I've spoken about that. Chair, if you or any of your colleagues want to ask me further about that, then I'm sure you will do so.

On the specific aspect of appeals, I would say this: at present, of course, the exact process for appeals is not set out in the Bill, and you have provision included to enable the establishment of a sub-committee, and that sub-committee could hear appeals, and the composition of the sub-committee hasn't been set out specifically in the Bill. I think what I need to do is to return the committee's focus on this to the fundamental need for fairness and transparency in appeals processes. And if I may say so, those are separate criteria and the temptation to conflate them should be resisted. There is fairness and there is transparency. Perhaps the old adage, the legal aphorism 'justice must not purely be done, but be seen to be done' is very important here.

In my case, I've already adverted to the importance of having a fully published procedural protocol, and the fact that my procedures, the procedures of the independent expert panel, all these processes are published and available for the public to follow and to monitor. If I may say so, I think the committee will want to consider very carefully the importance of transparency in the appeal process, as well as fairness, but fairness is a separate part of it. The clarity of the process is key for parties, isn't it, if they're contemplating an appeal or if they're in the middle of an appeal. Having that clarity and certainty is in itself part of fairness. But for the wider public to support the trust and confidence in the standards system, having that published open clarity is very much essential. I think that's the most important point I would make for your consideration.

Thank you. You've referenced the appeals process within the standards regime of the House of Commons. In that pursuit of fairness and transparency, could you just briefly outline what you think works well in that appeals process currently, and what you think could be improved that we could learn from as well?

I think the key features of the appeals process as it works in relation to code of conduct cases in the House of Commons that address your question are the following. First, MPs have a relatively short time period for bringing an appeal against a decision of the Committee on Standards. Remember, of course, they're not appealing my decision. My reports are made to the committee, and in the spirit of self-regulation, the committee imposes sanctions.

I can determine cases on a rectification basis, but that is essentially a consensual system between me and the Member. There's no appeal from that, because, of course, that's consensual. Members have 10 working days. I think that's a time that's been chosen to give them an opportunity to reflect, to give them an opportunity to take advice, but to give them, the committee and the public a degree of finality. I haven't talked about finality much as a separate component, because this is something that underpins all legal processes, but finality is something that has to be built into a process as well.

The grounds of appeal are set out in a way that's very objective and very clear: it's flaws of the investigation; procedural flaws of the process; unreasonable, disproportionate decisions; and an element of fresh evidence, which members of the committee will be familiar with from a wider appellate perspective. What an appeal is not is simply an opportunity to disagree and relitigate. Again, that's important in the context of finality.

These are some of the features of the process. Again, it may be that you'd prefer to ask the committee when they come to see you more of the details, because, ultimately, appeals is something that I don't get involved in personally. It's something that happens after my involvement in the case. But those are some of the features that flavour the way that we work on appeals at present.

Thank you. Going back to this point of a sub-committee for an appeals process, the Bill currently introduces a Standing Order that may include provision. I was interested to understand whether you think that should be a 'must' for that appeals committee, instead of a 'may', to give some certainty as to how the Bill may play out.

Secondly, it also introduces the potential for lay members of the standards of conduct committee to be tasked with conducting those appeals against the decision of the committee. I suppose it's going back to your previous point about the risk of those making the decision marking their own homework again, and the perception of that among the public, and whether you think that starts to muddy the water if the lay members of the standards committee are being tasked with conducting appeals against the decision of that committee.

It certainly creates a special role for the lay members, and it's one that I think you will want to reflect very carefully about, not just from the perspective that we were discussing before about confidence from the public, but I think you'd need to think very carefully with the lay members themselves how they would perceive that affecting their involvement in the committee in general. From a fairness and due process perspective, there clearly are issues about having one particular group potentially tasked with coming in at a later stage and having to hear an appeal. So, I think it raises some very interesting and rather intricate questions.

On your question about whether 'may' should be 'must', what I think is really important for you as a committee is, before the Bill is enacted, that you are satisfied that it gives you clarity on what is expected and the ability to achieve whatever is expected. Perhaps you would ask yourself the following question: if you as a committee are satisfied there are going to be appeals or reviews—and I'll come back to the difference in a moment—then you need to ask yourselves, 'How are we going to do that?' If the Bill is only permissive as to one possible way of achieving it, what are the others? This is an enabling measure. You are going to be tasked with giving effect to that measure, so you need to ask yourselves in advance, 'How are we going to give effect to it and does it give us clarity and certainty on how we are going to be able to implement, in an operationally independent way, the task that it is setting for us?' I think that's what I would say about the chapeau of subsection 5.

Coming back to my point about appeals and reviews, I would just remind the committee that those are fundamentally very different concepts, and the committee will need to think very carefully how it approaches each of them. With a review, when contrasted with an appeal, the primary legal distinction is between process and substance. An appeal, when contrasted with a review, is generally a merits rehearing. A review, contrasted with appeal, is generally seen as a procedural check and balance. I think that has very different implications in terms of commanding public trust and confidence. Arrangements for reviews and appeals are very different and should be discussed with the public and with yourselves, each from its own distinct perspective. Does that give some answer to your question?

It gives more than I expected, so thank you very much. That's me done, Chair. Thank you.

I notice that I've got five minutes left of your time, Mr Greenberg, so I'm going to be cheeky and ask you, perhaps, to take your Parliamentary Commissioner for Standards hat off and put on your legislative experience hat, particularly in relation to Part 3 of the Bill, which is not related to standards. I don't know if you've had a chance to look at Part 3. It does talk about placing a duty on Welsh Ministers to prohibit false or misleading statements, particularly during election time, with the permissive character of the existing power in section 13 of the Government of Wales Act. I suppose I'm asking your—I can't say 'opinion'—view as to, legislatively, how that fits in. Is it practically possible? What are the unintended consequences of that section of the Bill?

I think, Chair, if you will forgive me, it's not that I find my parliamentary commissioner hat welded to my head to prevent any other thought whatsoever, but to be honest, I'm not properly sighted on that. I haven't thought about it carefully, and I would be very nervous about giving an impromptu view on that. I think, could I put it this way, if the committee has a specific question that they wanted my help on, perhaps they would write to me and I would consider whether I was able to provide any help. I'm just nervous that any instinctive reaction I give you this morning will not be a helpful one.

Okay. Thank you for that. It was worth a shot. [Laughter.]

In that case, can I thank you very much for your time this morning? You've been very helpful in the answers you've been providing to us. As you are aware, you will receive a copy of the transcript. If there are any factual inaccuracies, I'm sure you will be able to correct them and send them to us. Once again, thank you for your time, and thank you very much for the evidence today.

Thank you for having me.