Cynulliad Cenedlaethol Cymru

Croeso, welcome, Members, to this meeting of the Standards of Conduct Committee. The usual things apply, the meeting is bilingual and interpretation is available. For those in the meeting room, headphones can be used for simultaneous translation from Welsh to English on channel 1, or for amplification on channel 0. We don't have any apologies, but Mick Antoniw is not with us yet, and may join us shortly. At this point, can I ask if Members have any declarations of registrable interests they wish to declare? No, great.

With that, then, we will move on to item 2, which is part of our inquiry into dignity and respect: evidence session 1. I'm very pleased to welcome Douglas Bain, the Senedd Commissioner for Standards, to this first session today to share some of his reflections. So, Douglas, croeso. Welcome and thank you for joining us. I thought I'd start just with a very general opening question. You'll be aware of what this inquiry is looking into, and I just wondered if you wanted to offer any initial reflections of your own.

Yes, thank you. I very much welcome the inquiry. I have a few points that, hopefully, might be useful. I've had the benefit of reading the committee paper on the inquiry into respect, and I'll give you the references to the paragraphs I'm talking about. But my initial point is that any revised dignity and respect policy should not apply to Members. The provisions for Members are already in the code of conduct, and there's a danger, unless whatever is in the dignity and respect policy replicates them, there'll be very minor differences, which will be exploited by some. If there's something in the new dignity and respect policy that's an improvement on what's in the code of conduct, then I would urge the committee to amend the code of conduct to make sure they're aligned. But the easiest way is simply to say that any new dignity and respect policy doesn't apply to Members, although I appreciate there might be presentational difficulties in doing that.

In paragraph 10 of the committee paper, there is reference to the possibility of a separate code and process for sexual harassment cases against Members. I don't think that is a good idea for a number of reasons. First, the number of cases against Members in Wales is, fortunately, very small, and I say that even allowing for the undoubted under-reporting. I'm sure there are instances of misconduct that are not reported. Any separate process for dealing with dignity and respect would, I think, be very similar to the process that we now have for complaints, and, again, if there were improvements to the system that could be identified, they should be made to the complaints procedure that we already have, rather than having a separate process that many will find confusing.

Your paper already draws attention to the possible difficulties of disputes and delay while people argue about which code something should be investigated under. And my fourth reason for opposing this is the question of where the experienced staff, who are to operate this new system, would come from. Because of the small number of complaints, I doubt very much that they could be full-time staff, because what would they do with the 90 per cent of their time when they weren't dealing with this? So, I just think, as a whole, it's a bad idea.

There was discussion in your paper about my suggestion that I might employ an assessor in sexual misconduct cases. I've been thinking about that and taking it a little further, and whether it's an assessor with experience in these matters or an investigator with experience in these matters I think is something to be considered. Whether it was an assessor or an investigator—. Sorry, if it was an investigator, they would carry out the investigation under the direction of the commissioner, as happens in some cases, as I understand it, in the House of Commons, and I believe that that person could quite properly interview witnesses. Indeed, the paper—I forget in which paragraph—suggests that that hasn't ever been done in Wales; I don't think that's right. I'm aware of one case during my tenure where Jonathan Thomas interviewed a person on my behalf, and there are many other cases where he's gathered evidence on my behalf in writing. I think, even if it was a formal interview under section 11 of the Measure, that investigator could still ask questions, because if the person refused to answer on the basis that the person wasn't authorised to ask it, the commissioner would simply ask to repeat the question. But that's a matter on which you will no doubt have a view.

I would say, though, that the idea that bringing in someone with expertise in these matters would be a silver bullet is not right. It's not just about who conducts the interview and their experience, it's about the location used for the interview. In the one case that I've had to deal with, I had to use my office in the Pierhead building, where paint is peeling off the wall, the windows rattle and it's equipped with rather tatty office furniture. Now, when you compare that with the facilities that the police use to interview vulnerable witnesses, there is simply no comparison. I've raised this issue with the Commission on a number of occasions, but, to date, have had no satisfactory response. And if it's the outcome of the committee's inquiry that the commissioner remains responsible for dealing with sexual misconduct complaints, I see no option but for me to look for alternative premises outside the Senedd estate.

Commissioner, I'll just come in on a couple of those points that you raised there. The first is that you don't believe it's necessary to have a separate independent process for dealing with instances of complaints of sexual harassment and those of a similar nature, but you did actually touch on the fact that there have been very few cases here, but you said that that allowed for under-reporting. But from some of the evidence that we've taken—and I'm sure there'll be more evidence to come from witnesses as well—we would probably say that perhaps that under-reporting is because people don't feel comfortable with the system in place at the moment.

Yes, it would be interesting to know how much, if any, such evidence is from people who have actually had a complaint to make, as opposed to people who are looking at it from the outside and making assumptions.

I just want to pick up on one of the points that you referred to in our paper as well around the ability to appoint an assessor or investigator who has expertise in a particular area. Are you able to share with the committee today instances when that provision has been enacted previously?

Not in Wales, no. There is no difficulty in that the Measure allows me to employ staff and I could use it under that provision without—. I don’t see any difficulty with it, other than, of course, finding suitable people. One possible source is the pool of expert people used by the House of Commons, who would be experienced with complaints processes, albeit ours is slightly different. That might well be a place I would look.

Thank you. Peredur.

They'd also have the advantage of being totally independent, and have no prior knowledge of the Member or any of the witnesses.

Peredur. 

Good morning, commissioner. Just exploring a little bit further the potential use of an investigator or an assessor, especially in dignity and respect, sexual harassment and bullying cases, is there an argument to be made around the use of the Welsh language as well in that? So, if somebody wanted to discuss or give evidence on a subject that is very personal and would want to do that in their first language, rather than through an interpreter, is there a case there to be made that that provision should be bolstered and be made a bit more friendly, I suppose, towards those witnesses, or what has been your experience in dealing with the two languages in your investigations?

I think you make a very good point. There's only been one investigation of that nature, and in that the complainant was bilingual, but she was perfectly content to be interviewed and give her evidence in English. Had she said that she wasn't, then we would have used a translator, but that obviously is unsatisfactory for interviewing in this kind of case. If we went to the assessor, expert, investigator group, and if a complainant or, indeed, the witnesses indicated that they would prefer to give their evidence in Welsh or, indeed, in any other language, then that could be one of the criteria for selecting a suitable assessor or expert. I would envisage the expert investigator or assessor being appointed on a case-by-case basis, so it would be possible to pick someone with the appropriate skills and experience.

In my mind, the way that an expert panel or that sort of facility was available to you as the commissioner in these sorts of cases would be, as you just said there, on a case-by-case basis, but being able to draw upon expertise in this field that would bolster your office to be able to deal with cases with the utmost of sensitivity as well in this area. You said that you're not minded to think that that's a very good idea. Could you go a bit further as to what alternatives could be done from your point of view, if that wasn't taken up, but that you had a case of this nature? What other bits within the Measure are available to you to deal with these cases? Also, reflecting back on the cases that you've had, what would have been done differently if that was the case—so, learning from past experience, in effect?

I don't think much would have been done differently. In the one case we dealt with at a very early stage, we offered the complainant, and, indeed, a number of the witnesses, support from Victim Support, which one of them took up. I don't know which one, because it was done in such a way that I wouldn't know whether they were availing of that support. All of the vulnerable witnesses were also told that they could bring with them to the interview a person of their choice for moral support, and, indeed, the complainant brought her mother on a number of occasions, which I think the complainant found reassuring and helpful. But, then, it all goes back to this point I was making about suitable surroundings. It has to feel like a friendly, albeit very important, meeting, rather than an interrogation in an office environment. That's something that certainly needs to be sorted out.

I'm going to bring Sam Kurtz in now.

Thank you very much, Chair. Good morning, commissioner. In taking evidence and needing an expert opinion on it, in examples previously in your time as the commissioner, have you really relied upon that, or, in the previous answers you've given, can you expand a little bit more on the use of expert advice in this field? I've got a subsequent question following on from that as well, which I may come back on.

So far, I haven't used the provision—these are proposals of what might be appropriate for the future. I think there was mention a moment ago about a panel of experts. I wouldn't envisage a panel, I would envisage finding someone on a case-by-case basis, because the use of an expert investigator wouldn't just be limited to sexual harassment and bullying cases. Suppose, for example, as my predecessor had, there was a case about leases and the appropriate investigations that should have been carried out. In a case like that, I could imagine bringing in a building surveyor or someone of that nature to ask the pertinent questions.

Okay, so it wouldn't be specific to sexual misconduct. You'd look at, potentially, an expert to offer assistance in relation to the type of complaint that has been made. I think back to what the review online—a former complaint that was brought forward a couple of months ago now, and the use of an expert in helping you with that case. I'm trying to get to the point around ensuring that it's a good use of your time and resources, as a commissioner, to be able to explore this and be able to say, 'That doesn't need investigation, that's just not what the commissioner's office is for', and being able to sift correctly so that your focus is on the cases that require the real time and effort.

I suspect I know what gave rise to that line of questioning. Without going into that particular complaint, I think there should be some mechanism in the process for the commissioner to decline to investigate, either because the complaint is trivial or because there's another more appropriate tribunal to deal with it.

I’ve talked to Huw about this, and my recollection is that there is some provision similar to what I’m suggesting in the Northern Ireland process.

Okay. So, in looking forward to 2026 and the expanded Senedd, there’ll be 96 Members. We hope and we keep our fingers crossed that there won’t be issues that require your attention, but, inevitably, we know that there may well be. What do you see as one of the best changes that could be made to your office, your function, to be able to allow you to ensure the best available investigative powers required for you, so that you’re able to focus your resources in the most cost-effective way (a) for the taxpayer, but (b) for getting to the bottom of a complaint and justice being found, should that be what the outcome is? What’s the one change that you would look to make, potentially?

I hesitate to pick out one thing and perhaps give the mistaken impression that changing one thing would be a silver bullet. I think it’s a question of looking constantly at the process, learning from experience, looking at what’s happening in other jurisdictions, and incorporating into our system any learning points that there are there. As you’re perhaps aware, I attend each year a meeting of standards commissioners from all four UK jurisdictions, the Channel Islands, Isle of Man and the Republic of Ireland, where we exchange views and learn from each other. But I’m bound to say that, at the last meeting, Wales was looked at as in the lead on how these matters should be dealt with.

That's reassuring to hear. Thank you.

Peredur, and then I'll come back in.

Rephrasing Sam’s question a little bit then, and with not picking one thing out, from the paper that you’ve read—there are comments in there about own-investigation powers; there are others there about confidentiality of Members under investigation, self-referral—as a priority list, from your point of view, what should we as a committee be focusing our attention on that would make that system better?

Again, I’m not going to be of much assistance to you in that. I think all the proposals, both those that the Government has accepted and those set out in Huw’s paper on reform of the Measure, are all important. None of them are going to be a silver bullet, but, when taken together, I think they will lead to significant improvements.

If we look at own-investigation powers, then, as Chair of the Finance Committee, I deal with the ombudsman quite a lot, and the ombudsman has that power to be able to initiate own investigation within a framework. How would you see that—? If we were minded to do that for your office, how would you see the framework around that working, so that we have confidence in the way that it would potentially be used?

I think it’s simply a case of if I become aware of matters that would appear to be a breach of the code or another relevant provision and no-one has complained to me about them, then provided they aren't trivial I would be minded to start an investigation. I had this power in Northern Ireland. I used it only once. I can think of only one occasion in my time in Wales when I would have used it, where quite outrageous behaviour by a Member was widely reported in the media, but, for reasons I don’t understand, no-one made a complaint about it. I was expecting, each day, to open my e-mail and find a complaint, but none came, presumably because everyone assumed that someone else had complained about it. But then the process would be identical to the process for dealing with any other complaint.

Okay.

Thanks, Peredur. I'm aware of time, so just perhaps a couple more questions, if colleagues don't have any more. Another theme that came out of the consultation on dignity and respect that the committee carried out was around that the process needed to be made clearer. I don't know whether there's anything you think that could be done to help people, kind of guide them through the process.

Yes, indeed. In fact, my new website went live last Friday, and it is a huge improvement and provides information on the complaints process, who a person may complain about, who they can't complain about, and, very importantly, for both complainants and Members and witnesses, much fuller details of the support available to them to help them through the complaints process.

Just one final question from me, I think, going back to how we started, really, the discussion and the line of questioning this morning. You talked about, in regard to cases, perhaps, of sexual harassment and similar forms of misconduct, that there had been, in your words, a low level of complaints of that nature here, but I think we've talked previously in the Senedd Chamber that sexual harassment, sadly, is a societal problem, and this place is merely a reflection of that. Do you think there is sufficient support and expertise in the system as it stands?

Sorry, I didn't hear the last part of your question, Chair.

Do you think there is that sufficient support and the necessary expertise to deal with what can be traumatic and sensitive cases, and, obviously, in a very heightened political environment as well?

I think the support is there. I don't think people are sufficiently aware of it. 

Okay. Can I thank you, commissioner, for your contribution this morning? Just, as usual, to note that a copy of the transcript will be provided as soon as possible, so you're able to check it for factual accuracy. Obviously, we've got a number of evidence sessions to take as part of this consultation, and I'm sure, if you're willing and able, we would want to speak to you perhaps to reflect on some of those findings towards the end of this inquiry, and I know we're going to have a further discussion following on from this session now.

So, if Members are content, I'm going to move on to item 3, which is a proposal, in accordance with Standing Order 17.42(vi), to resolve to exclude the public from the remainder of the meeting. Are Members content to agree the motion? Thanks. Diolch yn fawr.