Cynulliad Cenedlaethol Cymru

Welcome to this meeting of the Standards of Conduct Committee. Just to explain at the outset, the meeting is bilingual, and interpretation is available. For those in the meeting room, the headphones can be used for simultaneous translation from Welsh to English on channel 1, or for amplification on channel 0. James Evans sends his apologies, as does Adam Price. I just need to ask at this point if Members have any declarations of registrable interests that they wish to declare. Great. Diolch. 

So, we will move on to item 2 on the agenda today, as part of our inquiry into individual member accountability. This is evidence session 12, and I want to welcome Professor Emyr Lewis to the meeting. Emyr, just to say that we do have an extended committee for the purpose of this work. So, as well as the core committee members, we are joined by observer members—and they are Lee Waters and Jane Dodds today, because of their interest in, and work on, this issue—to help us with our evidence gathering. I know that Members have a range of interesting questions to ask, but before that, perhaps I could ask you to perhaps just give us a very brief introduction, although you are known to many of us. Perhaps you will want to share some opening thoughts on the matter of deception with us. Diolch.

I'm just going to bring Jane Dodds in at this point, because I think she had some questions that very much relate to some of the points you just raised.

Diolch, Jane. Yes, I see Lee has got his hand up. 

Thank you. I suppose the question is do you think that all matters of behaviour are equal or do you think that the issue of deliberate deception, lying on purpose, is of a different order of magnitude, and in that case self-regulation isn't the most effective way of dealing with it. I would accept that the issue of privileges is an important one, and we can use the platform of the Senedd to call out wrongdoing or people hiding behind power, and that is legitimate, but it's whether or not deliberate lying is a different order and should be treated differently.

As you say, there is precedent for moving outwith the self-regulation process. I note your reluctancy to get drawn into the ethics and I understand that. So, I'm just asking from your expert point of view: do you feel that the integrity of the system of self-regulation, which has now been tested for decades, is sufficient and that we needn't worry about going beyond the normal bounds of practice to now, or do you feel, as an external expert, that there is a question mark about the efficacy of self-regulation?

Diolch. Thank you. I'll bring Mick in now, because I can see he's been waiting patiently with his hand up.

I have a couple of questions. I suppose the starting point is in terms of the definition: what is a lie and what is a deliberate lie? And even if something is so factually incorrect, if the person believes it or is able to say, 'Well, this is my belief', how would the courts be capable of dealing with something like that, and should they, in fact, be dealing with an issue like that? After all, the courts are an arm of Government, and I think article 9 of the Bill of Rights is a very specific role that arose to actually protect Parliament from abuse by the courts. And, of course, when you mention foreign events et cetera, that is probably one of the real issues now as to whether the courts actually do abuse their function.

But can I just take you to two bits that I think are the most important bits? You raised the issue of what happens in the Senedd, as opposed to what happens outwith the Senedd, and that seems to me particularly fundamental, because, in the Senedd, the issue—and it's an area that concerns me enormously—is one of parliamentary privilege, that is to protect Members, to enable them, in whatever circumstances, to speak up in the way they feel they're entitled to on the behalf of the people who elect them. It's a fundamental part of democracy. The Senedd, as you've said, has more limited privilege, but, of course, there is a proposal emerging that is basically that all four Parliaments of the UK should have exactly the same absolute level of privilege. Can I just ask you firstly on that? In terms of all the four Parliaments, do you think it's important that there is equality of privilege within the parliamentary system within the UK?

Can I just—

Mick, can I just pause you? Before you come back in, I want to pick up on one of the points that you raised. Do you have a view around the appropriateness of asking or requiring the courts to determine the boundary between opinions and statements of fact in the context of the political setting of the Senedd?

Diolch. Sorry—Mick.

If I can—. Sorry, can I come in now, Chair?

Go on, Mick.

Just taking you now to the issue of thresholds, because thresholds impact in a number of ways, firstly, externally, matters that are outwith Parliament, there is obviously a criminal test there, but there is also a criminal process that has to be implemented that involves the police, Crown Prosecution Service, and a whole series of matters alongside that, as I know you will be very familiar with. That is a particularly complex matter in itself, the determination of what the public interest is, the determination of whether to proceed or whether not to proceed, which then opens all sorts of questions in terms of partisanship, neutrality and so on. Leaving that aside—. Just taking that, that is one aspect, if we're looking at the issue of criminal sanction across the board, but, in terms of within the Senedd itself, a standards process can, of course, in a quasi-judicial way, actually determine the issue of thresholds. So, at what stage does something become so severe, or so obtuse or so important in terms of the behaviour and the motivation or whatever, that it can reach a standard where an individual can be subject to recall? We saw something similar in Westminster not so long ago, but, again, it's a matter that is certainly taxing the minds of constitutional lawyers in the House of Lords and within Westminster itself.

What are your thoughts about the importance of dealing with the matter as a standard to achieve an objective within the parliamentary structure, solely for those issues that are raised within the Senedd itself? Constitutionally, how significant is that, because the only experience we have at the moment is, of course, Westminster, but it is also the case within Scotland as well, isn't it? I'm just wondering what your thoughts are on the implications of basically taking that matter—it's a point you raised earlier—taking that matter away from Parliament itself, and, effectively, giving it to an arm of Government?

I think, probably, if I may just—. Perhaps there isn't a simple answer to this. One of the concerns that I have about externalisation of such a process is that, of course, in determining any prosecution of public interest, public interest can be an incredibly subjective issue, depending upon the issues of the day, and it then raises the whole issue of an arm of Government actually determining what the nuances or the politics are of the particular day of an issue that is of public interest. We've seen this with other prosecutions, haven't we, that have taken place. We've seen it really with the recent riots issue there, and the issues raised, all the issues in terms of protestors and so on. The public demand for certain things et cetera can vary from year to year et cetera. I suppose the question I'm trying to get at is: how difficult is it to actually determine what a threshold should actually be when you're talking about the issue of a 'lie' and a 'deliberate lie', and the impact, I suppose, of the consequence of that?

Diolch. Peredur has indicated he wants to come in on this.

Diolch. Sam has indicated to come in. Sam.

Thank you, Chair. I'm just going back—. Mick's touched on the definitions, but, looking at those who have potentially caused an offence, and if a new offence of deception was introduced, what defences should be available to them as an individual, be that a statement of opinion, rather than a matter of fact, or for means of national security; what thoughts do you have, Emyr, around potential defences?

So, to understand what defences could be available to an individual, it's first important to understand the definition by which one would be—[Inaudible.]—

Diolch, Emyr. Thank you, Chair.

Peredur.

Thanks. Before I bring Mick in, can I just pick up on one point? If a new offence on deception was introduced, do you think there should be considerations or concerns around any risks potentially posed by malicious or vexatious complaints and how could that be best mitigated?

Diolch. Mick.

I suppose one of the areas that concerns me is that it's a sort of Pandora's box, isn't it, that you create, then, a labyrinthine process that even goes to the extent of if you do make a complaint, you can then become the subject of the process itself. Did you make the complaint vexatiously? Did you lie, et cetera? But whether it's an external process, a criminal process, a civil process, an internal process or whatever, it would require, wouldn't it, the development of almost a sentencing policy, because, effectively, you have to determine a threshold, a mechanism for that threshold, you have to have an appeals process, but you also need to have, at least, consistency in decision making in an area that requires an awful lot of interpretation as to what is deliberate, what isn't deliberate and so on. So, I suppose we could take it, in any event, whatever way it goes, that there would need to be some form of appeal process because, ultimately, you are removing someone from an elected parliamentary process. I don't know whether you'd agree with that. But also, there would need to be some form of sentencing policy, or guideline, to be established, which I suppose brings you back to thresholds again. Is that something you'd agree with?

I'm conscious that time is against us now, so, unless you have any final reflections that you would like to make, Emyr, we can thank you for your contributions. Just to let you know, a copy of the transcript will be provided as soon as possible, so that you can check it for factual accuracy. But, thank you on behalf of the committee for joining us this morning. I'm sure that Members found that incredibly useful, as did I. So, diolch yn fawr.

I'm just going to propose now that the committee takes a short break for five minutes, to allow us to change over for the next witness. 

Croeso. Welcome back to item 3, the next session of our inquiry into individual Member accountability. This is evidence session 13. I’m pleased that we’re joined by the public services ombudsman, Michelle Morris. Croeso, Michelle. Thank you for coming along to the committee meeting. We have a number of members, and we’re also joined by Lee Waters as an observer member, as well as other members of the committee, to help us with this important work in terms of the evidence gathering.

I'll start by asking you, in practical terms, how it works, this current system. When you refer a councillor to the adjudication panel, how would a complaint that a councillor lied or made false statements during their role be dealt with—through that way, or under a local authority code of conduct?

Bore da. Good morning, everyone. Thanks for the invitation and thanks for that question. Just to remind Members that my role is to deal with complaints made against elected members in local government. Those members are expected, as are Members of the Senedd, to comply with the ethical standards framework in Wales. There’s a code of conduct that governs the work that elected members in local government do. That doesn’t include a specific requirement around truthfulness, it doesn’t include specific reference to telling lies or making false statements. So, it is different to the code that Members of the Senedd are required to comply with. But nonetheless, as you can imagine, we do receive complaints that elected members have lied or made untrue statements, and that does form a fair proportion of the complaints, or part of the complaints, that we receive.

There are clauses and aspects of the code under which we can deal with those complaints. The way we deal with complaints when they first arrive with us is we have to make an assessment as to whether that’s a properly made complaint. The first thing we do is we apply a two-stage test. The first stage of that test is to look at whether there is any evidence to support the complaint that's been made. So, if someone is alleged to have lied or been untruthful, then we would be seeking evidence from the complainant that that was the case. And we receive a lot of complaints every year that fall at that stage, because people will make allegations and complaints against councillors, but they won't supply the evidence that supports that and allows it to proceed to the second stage of the two-stage test.

The second stage then, if the evidence is there that there's been a potential breach, is whether there's public interest in actually pursuing that, and is it proportional to actually investigate that and put some resource into investigating that. So, that's the second part of the two-stage process—the public interest test. And as you can imagine, the sort of things we're looking for there are seriousness of the breach, definitely whether there's any indication of discrimination against individuals that have protected characteristics under the Equality Act 2010, or if the allegation is so serious that it might bring the office of councillor or that authority into disrepute.

Those are the sorts of things we're looking for, at that stage, to satisfy ourselves that the public interest test is met. And if it is, and if the complaint, if you like, passes that two-stage test, then it will proceed to a detailed investigation. The councillor is engaged in that process, and, obviously, has an opportunity, through that investigation, to see all the information, to put their own side of events forward, to be interviewed as part of that process, and to see a draft report before that is published, and to be able to comment on that report.

In terms of how we then take it to the next stages—you asked, Chair, about how we refer matters on to the standards committee or to the Adjudication Panel for Wales—again, we will be mindful of that two-stage test: in terms of our investigation, at the end of that investigation, has the evidence been, if you like, held up, is there strong evidence there that that potential breach did take place, and if it did, is it in the public interest to pursue that, and to refer that matter on either to a standards committee, or, in the more serious cases, particularly where there might be discrimination or allegations of bullying and potential harassment—. Those are the more serious cases that would tend to go to the Adjudication Panel for Wales. 

Thank you. Can I just clarify that a complainant can be any member of the public?

Yes. Anyone can make a complaint against a councillor or elected member. It could be a member of the public, it could be another member—in about a third of cases, it is another member—or it can be another member of staff.

Diolch. I think Sam Kurtz had some questions he wanted to ask.

Thank you, Chair, and thank you, Michelle, for that. The question theme I'm looking at is timescales, because my understanding, having been a local councillor as well, is it's quite an open-ended process where there's not a designated length of time in which it will conclude, and I'm just wondering about the impact on individuals involved in that process, and if this is replicated on a Senedd scale, or however else, how your office is ensuring that those who are involved in investigations, be they the claimant or the defendant, to use that terminology, are looked after, and the pastoral support that's available for them, and the timescale, then, that's looked at, and whether resources are a constraint in dealing quickly with these issues.

Thanks for that question. We aim, with our investigations regarding the conduct of councillors, to try and get those investigations to conclude within 12 months. We don't always achieve that, although we are improving that at the moment. But that's still a long time—your point's well made. That's a long time to have a complaint hanging over you, or indeed to be a complainant waiting for an outcome. But you've got to balance that against the need to do a thorough investigation, and the length of time it takes will really be dictated by the nature of that complaint and how complex it is. An extreme example will be that we have several witnesses to interview; as well as the information we gather, you have several witnesses, you then go back and, quite rightly, interview the member concerned, and that all takes quite a period of time. So we are mindful of trying to minimise that as far as we can.

In terms of your question about how we might look after members, there's a case officer; once we start an investigation, members have that. But ultimately we work closely with local authorities, because of their duty of care towards that elected member, whether it's someone who's made a complaint to us, or whether the complaint is against them. It's really important that their local authority has arrangements in place to support that member. We will work with local authorities to make sure that they're undertaking that. So some of this responsibility does go back to the local authority. But it's a point well made.

I think the other thing about complexity is—and I think it's relevant to what your committee is considering at the moment—the more public bodies that get involved, the more difficult it can be to investigate. So for instance, if there's an issue that is potentially a police matter, that would be referred to the police, and then our investigation has to go on hold while the police look at that. Similarly, if Audit Wales are looking at something, we might put our investigation on hold while they're looking at it. So there can be an interplay between public bodies here, and that makes the time these things take all the more challenging.

So, there would be an impact on resources, and what we're seeing at the moment in terms of the case load is, year on year, more and more complaints coming in around elected members, probably perhaps just because people are more aware that the process is there and that they can bring complaints. That means we've already got a heavy case load, and our focus on that is trying to reduce the time it takes to investigate. But undoubtedly, involvement in another process, a totally different process from different organisations, will have a resource impact, yes, and we don't have spare capacity to apply. 

Just on that point—I'm talking about the increase that you've seen—is that an increase in complaints corroborated and actions taken, as well as the number of complaints coming forward? Or is it that, in the age of social media, you're seeing just more, not vexatious per se, but just more complaints being put against individuals?

It's all of those categories, really. We are seeing more complaints coming through. As a rough yardstick, we investigate generally about 15 per cent of the complaints that come through to us in any one year. And that's not because we've got a quota or a limitation; we investigate everything that goes through that two-stage test. But we are finding increasingly perhaps minor issues, or vexatious, or situations where people perhaps have a disagreement and they come to us, and it’s not appropriate that we investigate them. And quite often these fall at the evidential stage. People will make allegations, but they have no evidence to back it up. But we're seeing an increase right across the board, really.

Thank you. Thank you, Chair.

Thanks, Sam. I've got Peredur and Lee who have indicated to come in. Before I bring them in, can I just ask what is the test of seriousness for sending a case to the council's standards committee or direct to the Adjudication Panel for Wales?

There's a difference in the sanctions that those two bodies can apply, and I'm sure the committee is aware of that. For APW, the maximum sanction that they can apply is disqualification of elected members up to five years. For a standards committee, the maximum sanction, the greatest sanction they can make, is a six-month suspension. So really, for us, it's around the seriousness. If we see a case coming through that is very serious and has the potential to bring the role of the councillor and the role of that council, that public body, into disrepute, then we would be looking to refer that to APW and potentially that higher sanction would apply. I gave examples earlier; the sort of thing there is if we're seeing discrimination, and particularly if people with protected characteristics are affected. We're seeing more coming through at the moment around where there's been an issue between a councillor and officers, particularly in the town and community council sector, and those can be fairly serious if it has led to bullying and harassment over a long period of time. So, it's really about that seriousness.

Peredur.

Hello, Michelle. Nice to see you again, and thanks for coming in this morning to talk to us. Could you talk a little bit about, going on from what Sam was talking about, the timescales? Obviously, there are elections every few years—every five years for councils—does that have any bearing at all on timings, and how would you handle a case that may cross over the timescale of an election and when it comes to then an adjudication panel or a standards committee, obviously, they would—? You talked about the sanction of either up to six months or up to five years. And maybe that interplay of how that works in practice in your office.

In practice, we would always try to resolve complaints as timely as we can. The difficulty with a forthcoming election will be that probably all of those or a fair majority of the councillors that we might be investigating will actually be standing for the election. So, it wouldn't be possible to get all of those concluded before that election, probably just because of the pure numbers of them. And you're right, there is a lag, then, between me making the decision to refer a report to either a standards committee or APW—there's a lag between that and then that issue being dealt with, which adds further to the timescales. They'd have to have time to set that independent hearing up, so that adds to the timescales. So, I'm afraid there isn't really an easy answer to that question in terms of how you would remove that hard line, if you like, or that hard deadline, of an election, because it's inevitable that some cases would flow over. If you ended up then referring perhaps someone who was a councillor but perhaps was not re-elected, or even didn't stand for re-election, then the situation would be that the sanctions available would be much less. You can really only censure someone at a standards committee, although the APW could take the view that that issue was so serious that that person should be prevented from standing again for a period of time. So, we can disqualify councillors and have done, actually, this year, disqualified councillors who are not currently serving councillors.

And finally from me for now, my understanding—and you'll correct me if I'm wrong—is you don't make a recommendation of the sanction; that's up to the—. You just investigate and find if there's been a breach, very similar to the standards commissioner for the Senedd. You do the investigation work, provide a report to the appropriate body, but do you make that decision as to the appropriate body, based on—? Is that my understanding, that you would say, 'This is serious enough to go to the adjudication panel', or, 'It can be dealt with by the standards committee'? If you could just talk a little bit about that.

Well, yes, you're right. I don't make recommendations in my reports. We do the investigation and we'll reach a conclusion as to whether what we've found is suggestive of a breach or breaches of the code. So, it's suggested there's been a potential breach, but we're not reaching that final decision, and I think that's right, because we're just doing that investigation. I will then make the decision—. Based on that report, based on the investigation and based on legal advice, I will make the decision as to whether that is referred to the standards committee or to APW, and, as I said earlier, we use the two-stage test. Really, it is the more serious cases that go to APW. The majority, I would say, generally would go to standards committees. But, absolutely, it's not my decision what the outcome of the investigation is; that quite rightly goes to the next stage. So, whether it's a standards committee or APW, there's an independent hearing, and the role of me, or my officers on my behalf, is to present our report and findings of our investigation at that hearing, and the member, equally, has the opportunity to be at the hearing or be represented, or both, and to ask questions of our investigation, to bring their own witnesses forward. So, it's a very open and independent hearing, and the members of that standards committee or APW will reach a final decision. There is then an appeal process. I don't know how far you want me to go on this, but, if someone is not happy with the decision of the standards committee, they can go to APW on appeal to seek to get that decision relooked at, and, if someone is unhappy with APW, then they have to go through the judicial process to get an appeal, or leave to appeal.

And just, sorry, because you brought it up with the appeals process, is that an appeal on a procedural appeal or can you appeal on that you don't think the decision is correct?

Both. Basically, I suppose, the appeal would be, 'I don't agree with the decision', and you would have to provide justification for that. So, quite often, that would be on procedural grounds or challenging something either in our investigation or in the procedure that the standards committee has followed. So, definitely it could be procedural. The other thing—and this has happened this year—is that someone was given leave to appeal not on the grounds of procedure, but on the grounds that they felt the sanction was not proportionate. So, that's the other thing, that people can make an appeal on the severity, if you like, of the sanction.

Okay. Diolch. Diolch yn fawr.

On that, can I ask whether there are arrangements for councillors to be legally represented during any investigations or before the adjudication panel?

Yes. Councillors can be legally represented. That goes back to the responsibility that sits with whichever local authority is concerned. So, it wouldn't be my responsibility or that of my office to get that legal representation for councillors; that would be done through their local authorities. There's provision in law for that. And members can be granted indemnity to get their legal costs covered in that situation. However, if they are found to have breached the code and if there are sanctions made against them, my understanding is that they would have to then repay that cost—[Inaudible.]

Thank you. Lee.

I just want to tease out some of the themes we're looking at this morning. The primary one is whether or not issues should be dealt with in-house, there should be self-regulation, or whether they should be dealt with at arm's length—'contracted out' was the term used by the previous witness. Obviously, local government does not self-regulate when it comes to complaints; they are passed to you and there is a judicial process. So, given that, what are your reflections on the self-regulation model versus the alternatives in terms of its efficacy of raising confidence in the process?

Yes. It's interesting you put it like that, because I suppose, yes, in local government, it has, effectively, been taken out of the hands of local government. I think the thing for me with this is that my understanding is that what the committee's considering is this very specific issue of deception and whether that in itself should be considered as a criminal offence. So, the bit I think is challenging is you're just taking one aspect of the code and putting it into that category, if you like, of criminality, but the remainder of the code would not be considered as such, if I'm interpreting this correctly. It's going to make investigation of complaints against Members quite complex, I would suggest. The example I just gave of when I'm investigating something and other bodies are concerned in that, because it might be criminal, that's a good example. You might have a complaint against a member, where, actually, part of that might be considered an issue under criminal law. So, we have to stop and then the police investigate that and then we can only restart our investigation when the police have concluded that. The issue with complaints is, quite often, they're quite complex, so you might have a complaint that is about that someone's not been truthful, but there might be other aspects of that complaint as well. It seems, then, that that would be a very complex thing to investigate, because different bodies would have a different interest in different aspects of that complaint.

That's already the case in the Senedd. The standards commissioner already has to stop investigations. I guess I'm not really asking you to judge on how we go about doing it. That's a second order issue, isn't it? I guess I'm asking you to address the issue of self-regulation versus having a degree of independence.

I think the self-regulation—. It's whether you feel, or whether people, the people of Wales, I guess, feel that that works currently at the moment and so what would be the reason for changing that within the Senedd environment. There are parallels there with other Parliaments in the UK, so that's the comparator for yourselves. So, I think there is something about why what you're trying to achieve can't be achieved within the self-regulation model, and one of the other things I know you're looking at is the issue of recall. So, I think one of the issues here is, if it's in the self-regulated model, do you have the right sanctions available to you, and does introducing recall, which I know is a separate conversation as part of the things that you're looking at—? But that will give you more levers to manage and to deter people from acting in inappropriate ways and breaching the code. So, I think there is something about probably you would be adding different things in there to strengthen that self-regulation model, to have more sanctions and actions and levers available to you to deter Members, which is what you're trying to do here. You're trying to deter, as we all are, the wrong sort of behaviour and encourage better behaviour. So, I think, with the other things that you're considering, you would actually be strengthening the self-regulation model and it would be in line with what other Parliaments do, or more in line—I know Scotland are looking at potentially recall as well—with what other Parliaments are doing. So, to me, that seems a good place to be in for the Parliament.

Okay. So, given that, then, given that you think a moderated form of self-regulation can be really effective, do you think we should also apply that to local government?

I think the difficulty with local government is that you've got multiple authorities—at the moment 22—and you've got over 700 town and community councils. So, it's a far more complex environment, with lots of different public bodies, and literally thousands of councillors. So, I think that the model that we have in place now helps to, if you like, sit above that, because otherwise it would be a very difficult task, I think, for all of those authorities to individually deal with those complaints, and you would have a problem with how we consistently apply the code, investigations, sanctions, et cetera, and independent hearings, right across Wales for multiple public bodies. So, given the pure number of public bodies in the local government sector, I think the current system works well. They don't have it in England. They don't have this sort of arrangement, whereas they do in Scotland and Northern Ireland. It is more self-regulation by local authorities there, and I know that when I speak to colleagues in England they feel that we've got a very strong and robust arrangement in place for local government standards here in Wales. So, I would see no reason to move away from that.

And you don't see any inconsistency between your view on the role of self-regulation for local government versus our Parliament.

Well, no, because I think there are differences, as I've tried to articulate, and one of the things is the pure number of public bodies in local government, and the Senedd actually perhaps looking across Parliaments in the UK in terms of how it does its regulation of the standards, and the fact that you're now looking at bringing in, if you like, stronger powers for yourselves, to be able to deter inappropriate behaviour in the future.

Thanks, Lee. Mick.

Thank you for your evidence so far. Perhaps just a couple of short questions. The first thing is: do you consider your role as one that is independent? I take it the answer is 'yes'. I saw you nod your head.

Independent of local government, yes. Yes.

Yes, okay. The second thing is: do you consider that the system you have is probably the best vehicle at the moment for dealing with the various issues that are complained of that arise at the present time?

Within local government, yes. As I said in response to previous questions, I think it's quite a robust system that we have in Wales. It mirrors what happens in Northern Ireland, in Scotland, in other devolved nations. So, yes, I believe so, because it's quite a complex landscape otherwise to try and manage.

Yes. When we first started considering it—. So, when the Senedd first started considering this, when legislation was going through, there was a proposal that the issue of deception becoming a criminal offence should also apply to councillors. You raised issues, obviously, in terms of the linking between other factors, behaviour, deception and so on, so it's not necessarily a straightforward matter. If the issue of deception was a criminal offence and one that, therefore, when a complaint was made, would be investigated by the police, what would be the implications for local government?

Do you mean if it was made—

A criminal offence. So, every complaint that was made would be the subject of a police investigation, et cetera.

For local government as well?

Yes.

Well, it's back to that—. So, if a complaint lands on your desk and part of it is something that is dealt with, because it's deemed to be criminal, because you've made it criminal, but there are other aspects to that complaint that are not within that, but deal with other matters and other aspects of the code, then you've got a situation where you have to have two public bodies involved in investigating that complaint. So, probably that would have to be the police, who would need to do, obviously, the criminal activity; the non-criminal activity could be dealt with in a different way, perhaps investigated as we do it now. You just have to think about the process of how you bring that together at the end of the day. So, for instance, the police might conclude that it's not criminal activity, but there might still be issues that we consider are suggestive of a breach of the code and would need to be dealt with under that system. And then I accept that, sometimes, that happens now, and we have to pause while the police at look at matters, but it certainly doesn't happen in every case; it's the exception rather than the rule.  

Do you envisage any unforeseen consequences?

Well, I suppose one that occurs to me is that, because you're giving deception this higher status, if you like, by making it criminal, what then happens is that there's a risk that the other things become seen as lesser breaches, and that the things that are left, the lesser breaches that we see a lot of, are around equality and respect. It might not be deception, but there still might be serious issues there of harassment, bullying and the behaviour of people that perhaps then don't get the right level of attention in the process, because it's the criminal activity that takes the focus. So, I think, to me, an unintended consequence could be that some of those other behaviours, because they're not deemed to be criminal, don't get the same level of attention. And I think that that would be unfortunate, given that we don't want to see those sorts of behaviours in politics nor, indeed, local government either. 

Okay. Thank you. 

Thanks, Mick. Just to pick up on some of the points that Mick was making then, so if it were to be that a civil process was introduced in relation to the offence of deception, do you have any views on whether your office and the adjudication panel would be an appropriate option for the independent investigation and adjudication of complaints of lying by both Members of the Senedd and also candidates?

Well, I think it goes back to the response to Lee Waters, or sorry Sam Kurtz, earlier, that it puts additional resource pressures onto an office that is already very busy. But I think the thing that probably is of most concern is the fact that, at the moment, my office is independent. I'm accountable, as ombudsman, to the Senedd, and that's right. I'm accountable for the performance of the office, for the budget and the financial management of the resources. So, that's absolutely right. And there's a good separation between the Senedd and ourselves. And I think bringing us into this work risks very much blurring that line. You can see that there might be a situation where we're responsible for investigating something, and then that Member might be involved in some of the scrutiny of our work on a regular basis, and it just starts to remove that clear blue water between the two organisations, and I think that could be challenging. And as I say, the Senedd's already got a system of self-regulation in place. What you're looking at is possibly strengthening the sanctions, the power that you have through that process to deter poor behaviour, and I think there's some strength in that approach. And I think getting us involved in investigating just one aspect of the code or a potential breach of the code will add complexity into it, when the standards commissioner would presumably still be responsible for investigating other aspects.

So, you would have concerns both around the appropriateness of your office and the adjudication panel being part of that process, as well as also around capacity as well?

Yes. Sorry, I'm really only speaking for my office; I can't speak for APW. But, yes, it would be around that blurring of responsibilities, that complexity it would add, and, yes, about capacity to do the work in the time limit.

Thank you. Peredur.

Just going back to the process, Michelle, you talked a little bit at the beginning about complaints being made against councillors currently, and some of that is saying, 'Well, they lied, or they deceived.' How does your process look at that? Because, obviously, it's not part of the code, but you talked about bringing a council into disrepute, or other aspects. So, what sort of level of evidence do you need to be able to pass those tests? Because the first one is, 'Is there evidence?' and then there's the public interest aspect, and how that works.

There are a couple of areas in the code that we would look at if we've got a sense of that, members lying or making false statements and inaccuracies. One would be around disrepute: is that allegation to the extent that it would cause either that council to be brought into disrepute or the public body? And there are other provisions in the code that require councillors not to create an advantage for themselves or another person, or to disadvantage another person through their actions, and not to compromise the impartiality of those that work for the authority. So, there are a number of areas where we could deal with allegations of lies made against councillors. So, that's what we would do.

In terms of evidence, then, clearly we will look for either that evidence that exists in writing or that would exist through recordings. If it's been done at a meeting or a formal forum, there’ll be minutes, and increasingly and helpfully, there are recordings of meetings such as the one today, which allow you to go back and see exactly what was said. So, that's the sort of evidence that we would look for to be able to pursue that complaint. Someone simply saying, 'Someone lied', is not enough, clearly; they need evidence and to provide the evidence to support that.

Increasingly, and as has already been referred to, we're seeing an awful lot more complaints coming in around social media or because of social media or the use of social media, and in those instances as well, obviously we look for evidence, as any investigator would, of those posts, and the inappropriate use of social media.

The one thing perhaps worth mentioning here, one that’s not been touched on yet, is just around the issue of article 10 and human rights, because that is something that we have to consider in almost every case that we see, and that's around freedom of speech. So, politicians have an advanced level of freedom of speech—article 10 of human rights gives them that. We have to consider whether the allegations made are serious enough to, if you like, fetter that member's freedom of speech. It's an important part of our work, and it's quite tricky as well, because we have to look at that in the context of every single case.

What I'm saying is that freedom of speech under article 10 doesn't give members the right to make egregious or discriminatory statements or use that sort of language. In those instances where they do that, then they can't rely on article 10 to protect them with that freedom of speech provision. So, it's perhaps worth mentioning that bit, because that's usually a really important case consideration, and there is case law that surrounds that. It's that case law that we're applying in our investigations, and, indeed, will be considered by standards committees, and by APW when they consider those cases as well.

Diolch. Very interesting.

Thanks, Peredur. I think we're coming to the end of the time allocated for this session, so I don't know, Michelle, whether there was anything else you wanted to add, which you haven't had the opportunity to say, before we draw it to a close.

I don't think so. No, I don't think so. I wanted to cover article 10, which I've just had the opportunity to do. So, no, I think that's fine, Chair.

Great, thank you. So, can I thank you very much for your contribution this morning? It's appreciated by the committee, and just to say that a copy of the transcript will be provided as soon as possible, so that you'll be able to check that for factual accuracy. But thank you very much for your time this morning. Diolch.

Diolch yn fawr.

Just to Members, we will now move to another short break and into private session as our next set of witnesses join us. Diolch.

Croeso nôl to this meeting of the Standards of Conduct Committee. We move on to item 4 on our inquiry into individual Member accountability and evidence session 14. Can I welcome Jonathan Rees KC from the Criminal Bar Association and Alex Greenwood from the Criminal Bar Association? If I just give you an opportunity to introduce yourselves and set out anything you'd like to set out at the outset. Diolch.

Yes. My name is Jonathan Elystan Rees, King's Counsel. I'm a Welsh barrister. I practice from chambers in Cardiff, Apex Chambers. I'm also a member of chambers in other parts of England and Wales and I also do some international work, but I am primarily based in Wales and this is primarily where my practice is. I am one of the three Welsh representatives on the Criminal Bar Association, formerly the treasurer of the Wales and Chester circuit, which is the barristers' circuit in Wales.

My name is Alex Greenwood. I'm also a practitioner in Wales, based in Cardiff, although I have affiliations to a set in London. I practice in criminal and regulatory law, primarily in south Wales, but also through the south of England. I'm also the representative for the Criminal Bar Association, junior counsel representative for the Criminal Bar Association for the Wales and Chester circuit.

Diolch. Thank you. Can I just start by asking if you've got any views or reflections that you're able to share with us on whether making false or deceptive statements should be made a criminal offence or a civil matter, and any reasons for that?

The three of us—and I say the three of us because there was to be a third member of the CBA executive committee, Owen Edwards, King's Counsel, who was going to join us, but unfortunately hasn't been able to because of a late change in work commitments—the three of us urge real caution before any changes are made to the criminal law in this area. We have produced a briefing note, which I hope the panel has had. I apologise for it being only sent through yesterday, but I'm glad that you've had it because it does set out our position.

There is, of course, an existing criminal offence that deals with allegations where politicians are alleged to have made false representations, albeit that there is a qualifying threshold that applies to that existing offence. It's the common law offence of misconduct in public office. That penalises conduct where the following four elements are present. A public officer—and, of course, a Member of the Senedd or a Member of Parliament is a public officer for these purposes. Where a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification.

That is a common law offence. It is a serious offence. In the view of the three authors of our paper, it is rightly so regarded as a serious offence. The consequences of alleging deliberate deception for any professionals, not only politicians—I absolutely agree, particularly for politicians, but for all professionals—is a very serious matter. It is a very serious allegation. It is right that such allegations are not made lightly. It is right that those subject to such allegations have proper protections in the law before any such allegations are upheld against them.

It is right that the present common law offence of misconduct in a public office has been held by the divisional court not to relate to political campaigning, on the basis that political campaigning falls outside the exercise of the duties of a public officer. So, you can be a public officer concurrently, but when you are campaigning, you are not acting in that role; you are acting as a campaigner.

Perhaps the Senedd might regard that as something worth looking at, to consider, for example, widening the category that the offence of misconduct in a public office presently covers. But the essential elements of the offence, that, for example, the degree of misconduct, if there is indeed misconduct, should amount to an abuse of the public's trust in the office holder, and the protection that it only applies where a public officer wilfully misconducts themselves—that is, with intent—are, we say, essential protections that should continue to apply and protect those who devote themselves to public service.

Thank you. Alex.

The concern with the White Paper in its present format is that, on the face of criminalising these matters, there are potential infringements of fundamental and long-standing rights, not only in terms of the European convention on human rights, but issues that arise in relation to a reversal of the burden of proof. And, arguably, the procedure that is proposed would be seen in its entirety and not in the component parts, where it is broken down into the correction notice stage, and thereafter criminalising failure to comply with the correction notice stage.

So, it seems to confront and fails to address, potentially, fundamental issues, not just in terms of European human rights case law, but also natural justice case law—the common law, for want of a better phrase. So, there are fundamental issues with what is being proposed, in terms of the reversal of the burden of proof, in terms of, arguably, infringements of the right to silence. The analogy that I could find, where one is obliged to say something that, potentially, could be to one’s detriment, is a section 172 notice under the Road Traffic Act 1988, where there is an obligation. But that is allowed because it is a relatively minor matter, arguably, in many instances, so it also has—. For that reason, that is endorsed.

So, there are fundamental issues with what is being proposed. Arguably the comparators with, for example, planning enforcement notices, fail to take account of, in that instance, the significant procedural safeguards and the duties on the local authority in those instances, and there are other examples set out within the White Paper, and the various procedural steps and stages of necessity prior to any draconian action, such as the issuing of an enforcement notice or indeed other notices of that kind.

So, there are concerns with the White Paper, which we’ve tried to highlight and address. There are also, in terms of the practical consequences—. For example, in relation to the White Paper, what’s proposed is the imposition of a duty on district judges, which fails to reflect the parlous state of our criminal justice system, including here in Wales. The current backlog in the Crown Court is in excess of 67,000 cases; it’s the worst it’s ever been. And in the magistrates’ courts, I think it’s in excess of 383,000 cases. So, the proposal to add additional obligations on district judges fails arguably on a practical level to take account of the parlous state of our justice system as it currently stands.

So, I endorse what Jonathan has said: there is a mechanism in place at the moment and it could be expanded with relatively little upheaval. It would have the benefit of being tried and tested and therefore lawful, in essence, and is not, what on the face of what is being proposed in terms of the criminal aspect—and, of course, that is what we are here to deal with—a fundamental change and challenge to the pre-existing law, potentially.

So, in essence, you would have concerns not just in terms of the principle of making it a criminal offence, but the practicalities of making it work as well.

The practicalities at the present time, as anyone reading the newspapers will be aware, are very, very significant. On a practical level, by way of a small example, I had a trial that had been on the list for a year and a half, due to start in Swansea for six weeks in January. It dates back some six or seven years to the date of the offence. The defendants have died, and that was pulled, for want of a better word, at very short notice because of the withdrawal of sitting days in the Crown Court. And similar considerations apply in the magistrates’ courts, and we appreciate, of course, that the proposals contained within the White Paper refer to a potential procedure in the magistrates’ court.

We think that, certainly concentrating on the proposal in the White Paper, in many respects, it is wholly unrealistic. It states that a key objective, a key principle to which any new regime must apply to, is the need for swift justice. Well, the proposal that they have then set out will not come anywhere near meeting that objective.

You only have to look at the papers on a day-to-day basis for examples that we can already anticipate will simply put a huge burden on the criminal courts, a burden—it currently is not coping with its existing burden—to add to it. For example, applications for correction notices against Rachel Reeves for claims in relation to her CV, which is dominating the papers today. One only has to look at the list of comments to see that—. When I looked at it this morning, there were 274 comments from members of the public with very firm views about it. To recall the very recent debate about the content of the Labour Party manifesto 2024 and the commitment that is stated therein: 'We will not make working people pay more tax, like national insurance.' And again, we have another very well-publicised matter in the news today, about the alleged intention by Reform UK to bring a private prosecution in circumstances where there is no protection for private prosecutions against, for example, decisions being taken for political reasons. That is a protection of course that applies to the Crown Prosecution Service, who will face judicial review if they bring prosecutions for political reasons.

The White Paper has no suggestion within it that there's been any sort of research done behind it as to the numbers of applications for correction notices and, thereafter, criminal proceedings following from it. We think it is entirely foreseeable that the courts, particularly with this proposal of a wholly novel, new stage of proceedings in the magistrates’ court of using district judges, and deputy district judges, as a 24-hour leave requirement tier, which is simply unheard of—it is not in any way analogous to any previous procedure; it is unheard of—would simply be swamped, inundated, with applications by voters of all political persuasions competing for correction notices.

Thanks. I can see Lee Waters has indicated to come in. Lee.

Thanks. Yes, there are a couple of things I'd like to ask questions on. You've presented a whole range of reasons why you think this is a bad idea. On the practicality point, that's an argument for not bringing any more criminal sanctions in, because the courts are swamped. I don't deny the courts are swamped, but I'm not sure that should be the first basis on which we make law.

On the question of safeguards, you said you had some concerns, but the proposals, as I understand them, do include various stepping-off points: somebody can withdraw what they're saying, once it's drawn to their attention; they can apologise; the CPS can decline to proceed on public interest grounds. So, what further safeguards do you think would be needed to give you some degree of confidence this wouldn't be misused?

So, in the first instance, any criminal procedure in relation to the making of statements ought to only be employed where there is evidence that a person has deliberately deceived. That, after all, as I understand it, was at the heart of the statement made by the then Counsel General, Mick Antoniw, who I can see is online in this committee. He specifically referred to findings of guilt in relation to politicians and deliberate deceptions. That means that at the very heart of it ought to be the requirement that only deliberate deception—that is, the intent to deceive—is established. That should, in accordance with usual criminal principles where serious allegations of dishonesty—because that is what deliberate deception is, an allegation of dishonesty—come with the requirement for the prosecutor to prove, to the criminal standard, firstly that the statement is false, and that the burden and standard of proof should squarely fall upon the person making such an allegation, if it is intended to employ the criminal law to deal with such sanctions.

In 2006, the Fraud Act was introduced, and in the Law Commission White Paper that preceded it, one of the subheadings—or maybe the heading—as I recall, was 'Criminalising Lying', and that is, effectively, what we are talking about here in the political context. That actually resulted in the Fraud Act, which practitioners broadly agree is one of the most effective pieces of legislation dealing with issues arising from false or misleading representations, but, as Jonathan has already indicated, that incorporates an intention of dishonesty, which is fundamental. But, more importantly, because of the serious nature of the allegation, are the safeguards of the Crown Prosecution Service in reviewing the evidence at a preliminary stage. That stage is being entirely sidestepped by the proposal being put forward: the ability of any individual, or any voter, to be able to make a complaint. The suggestion that the practicalities are not a consideration, hypothetically, I can appreciate, but, in reality, one only has to consider the number of disgruntled individuals reading today's papers, perhaps, who might then feel obliged to make a complaint. And so it is a very real consideration, but, more fundamentally, it is an entire departure from our present system, which has a reviewing body to ensure that only merited matters are put before the courts, and of necessity, and so we would urge, of course, that step to remain.

Can I just test that, because I'm not sure that's what is being suggested, because already, under current law, it's possible for any member of the public to complain about any old thing, but then the police have to apply a test and a threshold, as does the Crown Prosecution Service. This would be no different. So, why are you creating a degree of alarm that anything in a newspaper this morning that someone doesn't like they can complain about, and that would be treated seriously?

In the case of the White Paper, one can make a complaint immediately to the magistrates’ court—the individual makes the complaint to the magistrates' court. What you've just indicated, of course, demonstrates the safeguards in the system. Firstly, the police consider the complaint and investigate the matter, so there is thorough investigation at that stage. They compile evidence, which is then sent to the Crown Prosecution Service to demonstrate a prima facie case, which is then considered in accordance with their enforcement code and the two-stage test. Firstly, is there a realistic prospect of a conviction? Some—

But that's what we’re talking about here. 

Yes, but that's something considered by the Crown Prosecution Service, a body expressly geared to make that determination. The second aspect is a public interest test, which has equal weight, both of which have to be satisfied before the next stage, which is that matters proceed to, for example, the magistrates’ court, where there is a further step, because any application for summons is then considered at that level as well. So, there are various safeguards to ensure that only merited cases are brought before the courts. What's being proposed, as I understood the White Paper, is that a member of the public applies to the court, the matter is reviewed by a district judge, and thereafter proceedings are issued and the burden is on the maker of the statement.

Well, with respect, the White Paper is one piece of evidence the committee has received. That's not the proposal that has been put forward by the committee or by the Government, so let's not take one potential way of doing this as the last word on the matter.

Can I just, finally, turn to one question about the position of lying and the confidence in the system? My understanding of the system, in terms of you, in terms of lawyers, in order to maintain confidence in the integrity of the system, is that it is now a disciplinary sanction—you can be struck off—for knowingly putting forward false information. It's regarded as so serious to the confidence in your profession that, if you lie in court, then serious action is taken against you in order to uphold confidence in the legal process. Why should politicians be any different?

I'm not sure anyone has suggested they should be different. You made, quite rightly, the point that if a lawyer is found to have deliberately lied—not mistake, not error, but deliberately lied—with the onus being put upon the person making that allegation to demonstrate it and to prove it, then that lawyer risks a finding of professional misconduct, which can come with, and in many cases will, if that happens, a decision that they can no longer hold their present role and the confidence of the public in it. But there are very important safeguards there in place. Firstly, the burden falls upon the person making the allegation, not only that the statement is false, but also that it was knowingly false, it was deliberately false, there was an intent to deceive. It would be wholly wrong—it’s not the case and it would be wholly wrong if it was proposed, we submit—that the burden would fall upon the lawyer, simply when somebody has raised an allegation, to then have to demonstrate that what they said was objectively true. That's not how the situation works in misconduct matters for lawyers, and it should not be how it works in relation to misconduct matters for politicians, in our view. But we are there talking in any event about a civil procedure, a professional misconduct procedure. We're not talking about the criminal law, and the criminal law is a different realm, it is a different beast. Professional misconduct proceedings can quite properly deal with members of a profession who are alleged to have fallen below the standards required by their code of conduct. The prosecution and the use of criminal sanctions is another step altogether.

It seems to me the main difference here is how we design the safeguards, because you've conceded that the issue of safeguards is vital, and I completely agree. You've taken one example of a proposal put forward and have taken against it, but, in principle, surely it's possible to come up with a separate safeguard that can address your anxieties but still achieves the principle of moving away from self-regulation and giving confidence to the public, where somebody is deliberately, wilfully lying, that they can be dealt with in the appropriate way.

I hope I helpfully pointed the committee towards the existing provisions of the common law, the common law offence of misconduct in public office, which does penalises politicians where they carry out wilful misconduct. That will include deliberate deceptions and has in place a proper safeguard. It firstly makes it perfectly clear that the misconduct has to be wilful—that is, there has to be, in the context of a deliberate deception, an intent to deceive. There then ought to be some measurement of the seriousness of the conduct. It requires, the offence of misconduct in public office, that any such wilful misconduct is

'to such a degree as to amount to an abuse of the public’s trust in the office holder',

and we think that that is very well established and a perfectly good working test, working threshold. And it must come

'without reasonable excuse or justification.'

As I said at the outset, in my answer to the Chair of the committee, I could envisage the Senedd looking to see whether it wants to consider small incremental steps to widen, perhaps, the scope of the offence. The offence, at present, deals with a public officer acting as such, and, as we've observed, the divisional court has said that political campaigning falls outside that ambit of that common law offence of misconduct because somebody holding a public office but is campaigning at the time is not discharging their duties as a public officer—they are campaigning. And it may be that the Senedd wants to look very carefully at a small incremental change in that regard, or to the, if you like, temporal scope of the offence, in the sense that—. Sorry, it's the temporal scope of the offences under the Representation of the People Act 1983, which also has political offences dealing with false statements. Section 106(1) of the Representation of the People Act 1983 makes it an offence that, before or during an election, for the purpose of affecting the return of any candidate, they make or publish any false statement of fact.  So, the Senedd may wish to look at that offence to see whether there is a small incremental step that could be taken to perhaps broaden the temporal scope of that offence, so that it's no longer restricted to the period before or during an election, in some way. But those offences come with the very clear safeguards that, for example, in those cases, they are subject to the supervisory jurisdiction of the Crown Prosecution Service, which is an independent body and cannot take decisions from a political point of view. If it does, it's subject to judicial review. A person who is a registered voter is not subject to such protections. The other protections are the concentration on intent, which is at the very heart of the criminal law, and the burden and standard of proof, which falls on the maker of the allegation, not to the person subject to it.

Okay. So, I think we agree, then, that there is a legitimate place for the law here in dealing with the most serious offences of deception. There is a place for the courts and the Crown Prosecution Service, already established, as you say, and I'm not aware that the system is currently overwhelmed, be it the police or the  courts, by people making vexatious claims on those grounds. The question is, as you say, if it would be better expanding the existing law. Is it a question of building in safeguards, so they're designed to meet your concerns? But there's no in-principle objection to what's being suggested here; your objection is the White Paper that's been put forward by one set of evidence to the committee, and it's certainly not beyond the wit of man for us to devise a system that is able to both deal with deliberate deception and take into account your concerns.

Well, I am a criminal lawyer. I am not a democratically elected politician. It's a matter for the democratically elected politicians if they wish to, for example, consider, as I hope I have sensibly proposed, a small incremental expansion of the scope of the offence of misconduct in a public office. You could also look at section 106(1) of the Representation of the People Act 1983. But the safeguards that are inherent in those two offences ought to remain. There should be no attempt to dilute those safeguards, because they are crucial.

Thanks, Lee. I've got Peredur, and then Mick would like to come in.

Thank you very much for that—very interesting. I just want to go back a little bit. Lee was asking, and you alluded to it in your answer, what would happen if a solicitor or a barrister were to lie in court. What's that process, then? Is that then a self-regulatory process? Who would make that complaint? How is it dealt with? Just so that we can maybe draw some parallels with what we're trying to do, just to see how it works.

The complaint, in theory, could be made by anybody to the Bar Standards Board. That is an entirely separate body to the bar council, for example, and that undertakes an independent process, investigation, representation. Before any allegations are made, there is certainty as to the weight of the evidence supporting the allegation, and then adequate time given to respond. Again, that is potentially open to challenge. There is an entirely separate body that deals with that aspect of our work and would make findings.

So, that's not even a civil aspect. It's a self-regulatory bar association process.

I'm not sure 'self-regulatory' is the correct word. It is a separate independent body, which scrutinises—

But it's the bar association that would determine whether or not—

The Bar Standards Board was created under the legal services Act back in the 2000s. Up until that point, the Bar Council of England and Wales was in charge of its own disciplinary procedures, together with the Law Society, which acted in the same way towards solicitors. The then Government created a new statutory regulator called the Legal Services Authority. As part of that machinery, the Bar Council of England and Wales and the Law Society of England and Wales retained nominally the right to self-regulate barristers and solicitors respectively, but did so with the machinery being created that has, in effect, two autonomous wholly independent arms: the Bar Standards Board and the Solicitors Regulation Authority. They nominally sit within the framework of the Bar Council of England and Wales and the Law Society respectively, but they are to all intents and purposes independent and arm's length. They, in effect, act as the gatekeeper to any allegations of professional misconduct against barristers and solicitors respectively. Any complaint made to them will be reviewed. If it is meritorious, they will bring it, but again, anyone facing such allegations maintains the protection that the burden is upon the BSB or the SRA respectively to prove any allegation of misconduct. The standard of proof is the civil balance of probabilities, but—and this is not unique to the bar or to solicitors, but to all professions—the courts have made it very clear that although the standard does not change—it is the civil standard, the balance of probabilities—the more serious the allegation, the more cogent the evidence, the more persuasive the evidence must be before a tribunal will decide that the person making the allegation against the professional has satisfied that burden.

And then the tribunal is independent—

The tribunal is independent.

So, it's not your peers that would judge you; it's an independent tribunal.

Absolutely. They're not analogous, but of course, you have the standards commissioner that operates within the Senedd; the Bar Standards Board effectively enforces standards and the code of conduct within the barrister profession and the Solicitors Regulation Authority does the same thing for solicitors. The courts are not engaged at all in that process, unless and until something goes wrong. The courts will become involved—the High Court, that is—not in swift and cheap proceedings but in what can unfortunately be expensive, lengthy and very complex cases where there has been, for example, a failure to provide the solicitor, barrister, accountant or, no doubt, politician with the appropriate safeguards at the stage at which allegations have been made against them. 

I was just trying to draw parallels with what we have currently, what would need to be changed to work it through. So, I think that helps a little—

Obviously, we're here as representatives of the Criminal Bar Association. We are here because we understood that the committee and the Senedd were looking at expanding the scope of the criminal law, but I could certainly help with what one might envisage to be an independent misconduct procedure within the Senedd. You would set up an arm's-length body such as the Senedd Members standards board, with an appropriately resourced set of investigators, who could receive complaints from either the public or from other politicians. Presumably there is something like a code of conduct that could be in place, and presumably there is at the moment. If there's not, it could be easily drafted. And then any such complaints would be measured against that code of conduct to see whether there was a prima facie case or a case on the papers that the individual Member had fallen below the standards required in the code of conduct.

You would then have a set of procedure rules that would set out clearly who would determine that allegation. Conventionally, you would have, perhaps, three members on a panel. You might have somebody who has got particular experience, for example an ex-politician; you might then have somebody who has got experience in dealing with wider disciplinary matters, so somebody who is experienced in dealing with complaints against accountants, for example, together with a chair, with a legally qualified adviser advising that panel. The procedure rules would then set out a clear procedure for the person making the allegation, in this case the putative Senedd standards board, to set out what its allegations were in detail, with something akin to a charge sheet, together with a bundle of evidence that would, as they say, demonstrate that there is a case to answer, applying the usual standard for misconduct proceedings of balance of probabilities, but recognising that the more serious the allegation—and for a politician, there can be little more serious than the allegation of deliberate deception—there's a requirement and an acknowledgement that, in order to meet that standard of proof, there has to be particularly cogent, compelling and persuasive evidence before any such finding would be made. And then there would be provision for the Senedd Member to be able to submit any documentary evidence that he wanted, or she wanted, in reply, with a hearing date being set down, then a procedure for an oral hearing.

That might go as far as in the Crown Court, where the predominant method of evidence is giving oral evidence, but it would be entirely feasible to deal with it on the basis that evidence in direct or in chief could be on paper, witness statements could be taken, and the bundle of statements provided and effectively taken as read, but with the witness being made available for cross-examination by those acting on behalf of the politician subject to the complaint, with then the provision for submissions to be made on the evidence and, ultimately, the panel to rule on whether they found the allegation of misconduct proven or not. If found proven, then there would presumably be a further procedural code that would set out what the available sanctions are.

There would be a ladder of sanctions to deal with a different range of conduct, from the least serious, which is conventionally something like a warning, or a written warning, to, at the highest, disqualification. That is a procedure that doesn't involve the courts. It has cost implications, because of course, if you were to set that up, you'd have to fund the Senedd standards board, putatively, and you'd have to fund the investigations of complaints, and some thought would have to be given to the funding of representation, or at least the offer of funding of representation, to those facing such serious allegations, a feature that—just returning back to the White Paper—there are no references or consideration of whatsoever, we note. But you'd have to give some consideration if you were going to do that by way of a misconduct proceeding, all of which is likely to be quicker, likely to be more cost-effective, than engaging the criminal law.

How would that work with candidates as opposed to Members?

In order to do that, you would need to have some procedure in place whereby any candidate effectively agrees to the code of conduct. In order to be able to be a candidate to the Senedd election, I presume—I don't know the detail—there is some formality involved at present, not least, at the very minimum, you must have to put your name forward on some sort of piece of paper, or your party does, and you must consent to that, I assume; you can't be declared to be a candidate without any knowledge that you are, or you can't stand without knowing you're standing, or consenting to stand. So, whatever procedure there is in place in which a person at present declares their candidacy, all that would be required, assuming you had in place a published and available code of conduct—it's an easy matter; it would simply be available on the Senedd's website—would be for them to agree that the code of conduct applies to them during the period that they are a candidate.

What Jonathan has done is extrapolated what would exist as a barrister or solicitor if one faced professional proceedings in that capacity, and so there is a precedent, if you like, of sorts, that works, exists, is tested, is endorsed, is robust, and has been in operation for many years now, effectively acting as a sanction, and one can see how one could extrapolate the essence and apply it in the context of the Senedd system.

Diolch.

Diolch. Thank you. Mick, you've been waiting a while.

I'd like you to confirm my understanding of what you've been saying so far. Firstly, in terms of the position with regard to other public bodies, doctors, architects et cetera and lawyers are already subject to disqualification processes. Those are processes that are created by statute but that empower bodies to operate independently to regulate. My understanding from that would be that the actual procedure we have within the Senedd, where we have legislation, a Measure that has created an independent standards commissioner, we actually have the compatible part of that already. How it functions and how it might function better and resources and so on is a separate matter, but that, effectively, is the same thing operating within, effectively, a civil framework. So, that was my first understanding of I think what was being said. Please do correct me when I finish if I've got these wrong.

The second one is, of course, in terms of any criminal offence, there has to be a high threshold. I don't think there's any disagreement that there has to be a high threshold, but I think what you seem to be suggesting is that we actually have a plethora of laws that already do just that, and how regularly they're used probably is an indication of the actual thresholds that are set and the protections that are inbuilt, whether it's the Fraud Act, the Representation of the People Act, or indeed common law. A further offence would either just be duplicating what already exists or would be recreating a criminal offence that is of a much lower standard. That is what I really wanted to come to in terms of the questions I want to ask.

The first thing is that if there is a fairly broad criminal offence of deception—that is, a politician has lied—that can be made by any member of the public, the implications for that in terms of resource, abuse, whatever, is that, potentially, there could be many, many, many such cases, all of which have to be investigated, potentially by the police, then the Crown Prosecution Service, evidence would have to be obtained. All that time, the elected Member would be—. Effectively, you would be able to say that person is under investigation for an alleged criminal offence. That is something that concerns me, and I do take the points you make in terms of the cost-resource implication, but, presumably, following on from your most recent point, there would have to be some legal representation issue in that, because, as you said, such an allegation against a politician is of such significance that it would almost be as a matter of course that you should have the right to legal representation, really, from day one.

Can I just get to the crux of the points that I'd like you, specifically, to look at? There are two aspects to this: what happens within the Senedd, which has a degree of protected privilege, a privilege that is probably likely to be extended so there is parity across all the Parliaments of the UK, and, of course, what happens outside. Now, you've described the legal situation as it exists outside the Senedd, but, on the issue of parliamentary privilege, there were specific reasons, constitutionally, why the courts, which are an arm of government, are kept very, very separate from determining the viability of what elected Members do within the context of the Parliaments they are within. Do you have any particular concerns if that privilege were to be removed and what the implications might be for the courts within this process? Sorry for the rather long build-up to the question.

We would have real concerns about what we would see as the risk—real risk—of politicising the courts of England and Wales. At the moment, the criminal courts are only engaged when there is clear evidence of serious wrongdoing, deliberate intentional wrongdoing. To introduce the courts as some sort of third-party arbiter of hotly disputed statements where you may get two opposing sides using the same alleged facts, but to support different arguments and different, as they would put it, factual conclusions, would undermine the independence of the courts, and moreover, and more important than that, would not serve the public interest whatsoever.

You can't ignore—one can't ignore—the cost implications. We have all seen unfold in another jurisdiction that's very close to the UK, but physically, geographically, many thousands of miles away, where, in order to run successfully for office, you have to have at your disposal a huge war chest to deal with what has become part and parcel of elections in that jurisdiction, of the use of courts as part of the political dispute, with both sides, frankly, employing the courts to press for some political advantage. We do not regard that as anything desirable for us to follow in this jurisdiction.

We're focusing on the White Paper, because that is the proposal that we've specifically been considering. That document suggests that any potential voter can simply raise an allegation of falsity, without any evidence to support it, and then require the politician to have to prove, on the balance of probabilities, that what they said was true. We find it ironic that, in the same paper, there are at least three misleading assertions of fact—because an assertion as to law is indeed an assertion of fact, it's an assertion as to what the law is—that themselves would potentially fall foul of the very model that they are proposing within that paper.

The Senedd quite properly has a privilege for those who are acting as a Senedd Member. To some limited extent, both politicians and lawyers share one feature in common and that is that we are advocates; we are advocates for a cause. And there is a similarity in the way in which advocacy operates; it operates through argument. And we have, in our note for today's hearing, referred to the comments of the Electoral Commission, which have been themselves referred to by the divisional court, where the Electoral Commission recognises that political discourse requires

'campaigners to debate the relative merits of the arguments and claims being made by those campaigning for the opposing outcome.'

'Even official data can and will be presented by campaigners in a way that favours their argument—that is the nature of political campaigns. It will not always be possible to establish the truth about campaign claims in an independent truly objective sense.'

There is, in our submission, merit in those observations from the Electoral Commission. They're observations that the divisional court has endorsed and they're observations that, if ignored, we would suggest point to greater politicisation of the courts and a potential barrage of claim and counter claim, and the Crown Court—the magistrates' court in the first instance and then the magistrates' court, potentially, on an appeal from the magistrates' court, and the divisional court, the High Court, being asked to settle a dispute between opposing political campaigners. That is not how the courts have ever operated in this country. It's not how lawmakers have ever proposed using the courts in this country and we shouldn't take that lead in Wales.

It also touches on one of the desires, which is swift justice. However one would wish it, the reality is that these matters would inevitably be subject to appeals, and appeals depending upon, perhaps, the depth of pocket in some instances, or legal aid if that was, indeed, available. And so one of the principles that you're considering, which is the swiftness of the procedure, would be entirely circumvented.

Can I just go back to one observation that Mr Antoniw made about the type of misconduct procedure that myself and Mr Griffiths were discussing earlier? It is quite right that, in some cases, that is a statutorily created procedure. So, for example, police misconduct matters that are statutorily dealt with, they're created and there is a set of rules that is put forward by the Home Office and approved by Parliament, and those rules can change from time to time, but they only change via the legislative instrument. Although the Bar Standards Board and the Solicitors Regulation Authority exist within a statutory framework, the respective codes of conduct of the bar and solicitors are not regulated in the same way that, for example, the police have a legislated code of conduct and a strict procedural code that is, in effect, put in place by Parliament under the supervision of the Home Office. But the approach taken by the Bar Standards Board is, in fact, very similar to—it effectively follows—that which is set out in the police misconduct rules. That's because those rules, the police misconduct rules in themselves, follow very well established principles of procedural fairness, and therefore you do have there a very discrete model set out for you in the police misconduct rules, which you could easily adapt, it would seem to me, if you wish to go down that route.

I'm not quite sure, I don't know precisely what the current status of the standards commissioner is, but, presumably, in the same way as extending the scope of any standards regime for the Senedd to candidates it seems to me could simply be a matter of consent—if you wish to be a candidate, you need to sign up to accept that the code of conduct applies to you—likewise, assuming that every Senedd Member is asked then to agree to the code of conduct that’s in place, that wouldn’t, it seems to me, require separate legislation. It's simply: those are the standards that the Senedd put in place, and, if you want to be a Member of this place, then you have to agree to abide by those standards.

Mick, I don’t know if you’ve got any further questioning, but I just want to pick up on one point, and that’s the White Paper that you’ve been referring to, because, as colleagues said, it’s not a proposal of this committee, it’s just one of many submissions that have come in as part of our evidence, and the committee’s very much open to hearing a range of suggestions and possibilities as to how we can take this work forward.

It may be perhaps another misleading statement in that paper that we had not identified, because the title of it is ‘White Paper’. [Laughter.] It’s another representation then, I take it, that is arguably false. Let’s get them before the court and get them to justify, on the balance of probabilities, that what they said was true.

Or issue a correction.

You’ll understand, when I make those remarks, that we think that any such procedure would not be appropriate.

Mick, any further questions?

No, no, I'm satisfied. I may come back later.

Great. I've got Lee with his hand up, and then I'm going to see, Sam, if you've got anything you want to come in on.

Thank you for saying that, Chair, because I just think it might be helpful for witnesses to not keep focusing on one piece of evidence we’ve had and then trying to draw general statements from that. I think we’ve established now they don’t approve of the so-called ‘White Paper’ piece of evidence we’ve had. But the purpose of this inquiry isn’t just to look at that, it’s to look at the issue of deception and how we might achieve that. By constantly focusing on just that, it’s not giving us the best evidence, with respect.

Mr Waters, I can repeat what I said at the outset. You have two examples of criminal offences that deal with deliberate deceptions made by politicians. There will be others. There is a whole canon of electoral law that you can look at.

The offence of misconduct in a public office is a common law offence, but it seems to me you could seek to legislate for the same conduct. Whether it is wise to do that is a matter for the Senedd and its democratically elected politicians. You could look at both the offence of misconduct in a public office and the offence under the Representation of the People Act. You could, in the first instance, look to see whether the scope of the common law offence ought to be broadened so that it is not solely restricted—or, to put it a different way, so that it doesn’t exclude, as it presently does, those who are politically campaigning. You could look to see about making a small, incremental change there to widen it to, for example, people who don’t hold public office, who are campaigners, I suppose. But, again, I would urge you only to take those steps with great caution. I’m sure you would, of course, but I would repeat that.

Or you could look at the offence under the Representation of the People Act, and you could look—. Because of course that does cover any person. So, unlike the common law offence, where it only deals with those who are public officers and when they’re acting as public officers, section 106(1) of the Representation of the People Act 1983 relates to any person who, before or during an election, for the purpose of affecting the return of any candidate, makes or publishes any false statement of fact. You could look at whether restricting that offence to, as it currently is restricted, before or during an election, in fact should be widened, so that the temporal scope of that offence is widened in some small, incremental way so that it applies on a wider basis and not simply before or during an election.

So, those are two suggestions I made at the outset for you to look at. The two offences, the common law offence of misconduct in a public office and section 106(1) of the Representation of the People Act 1983 have clear safeguards. They are the appropriate safeguards. To what extent those offences should be widened or not, it seems to me is a matter for the democratically elected Senedd. 

Thanks. Can I ask, should we go down the route of creating a new offence or sanction, or whatever we may want to call it at this point, on the matter of deception, which is what we're looking at as part of this inquiry at the moment, in your view, how would or should 'deception' be defined?

There is already a definition contained within the Fraud Act, which is replicated in many other statutes and regulations, which is false or misleading statement, which is tried and tested in the courts, there is case law in relation to it, and it is sufficiently broad as to incorporate, I think, that which you're considering and determining. So, I think there is already an existing definition that is fit for purpose.

The Fraud Act, of course, adds that—. It makes it clear that a statement is not false unless the maker of it knows that it's false, or knows that it might be false. The Fraud Act also has the separate requirement for dishonesty, and they are separate. They are separate requirements, because the courts are alive to the fact that there may be cases—it may difficult to imagine the example—where somebody has said that they have deliberately lied, but it wasn't dishonest, because the purpose of it was, for example—I'm just speculating now—to save somebody else's life. So, the Fraud Act makes it clear that dishonesty is part and parcel of the offence.

The offence of misconduct in a public office doesn't specifically refer to dishonesty, but it really amounts to the same thing. Dishonesty is part and parcel of it. Dishonesty particularly, as understood now by the Supreme Court, and by the courts, is an objective test. It's that which reasonable, ordinary, decent people think is dishonest, and deliberately lying without good reason is dishonest.

So, if you were considering, for example, a whole new criminal offence, we would strongly urge that you incorporate both proof of falsity on the person making the accusation against the politician, that that should be to the criminal standard, and falsity should include, as the Fraud Act does, knowledge on the part of the person making it, that it is false, so that, for example, accidental, innocent purposes, even recklessness or negligence, fall outside the scope of a false statement; and that it should also come with the requirement to prove dishonesty, because that is what is being alleged, and one shouldn't make the allegation without, in effect, fronting up and requiring there to be a finding of explicit dishonesty.

Thanks. Peredur.

You mentioned the three Acts: the Fraud Act, the misconduct in public office and the Representation of the People Act. Why are they not being used currently in potential cases against politicians lying? Could you hypothesise why—? Why aren't they being used?

I could use some of the examples that I referred to at the outset today, but I certainly don't want any suggestion that there's any political bias on our part. Those were examples that were in the paper today. Let's concentrate instead on the ICDR paper—I won't refer to it as the 'White Paper', because even though it refers to itself as the 'White Paper', that is a misrepresentation. Now, I don't suggest—and I think it would be wholly wrong for me to suggest without any real evidence on it—that that was said dishonestly, that they even regarded it as false. I've got no evidence that they knew that it was false, or might have been, and certainly that it wasn't dishonest. So, it falls outside the scope of fraud. What evidence do I have in relation to that paper, other than the paper itself? Would you suggest that a fraud prosecution should be brought in relation to a paper that was submitted to this committee calling itself a 'White Paper'? That has been disabused today. We’ve been told that it’s not.

My question is more: since these Acts have hit the statute book, why haven't there been prosecutions against politicians, using these? Or is it beyond the scope currently and you would need to make those incremental changes?

I suppose the first and obvious answer is one that perhaps is not said enough in public, which is that in general we have a high standard of politicians, both in Wales, and across England and Wales, and in Scotland and Northern Ireland. That is something that we should praise ourselves for; we should be ever vigilant about, but we shouldn't denigrate that. I think that's the main reason why the courts don't see cases brought by an independent prosecution agency for offences of misconduct in a public office against our politicians, and why we don't see offences being prosecuted under section 106(1) of the Representation of the People Act 1983 about candidates publishing false statements of fact against their opponents. The main reason is because we have a high standard of politicians.

I also think parliamentary privilege, of course, would have a significant impact in that regard, the protection that that affords.

Or is the flip side of what you said, Jonathan, that people aren't aware that these pieces of legislation could be used in such a way?

That people are not aware?

Yes.

Well, I think the Crown Prosecution Service is well aware that it can prosecute offences for misconduct in a public office. They do bring prosecutions for misconduct in a public office. They bring prosecutions against all manner of different public servants. Your focus, of course, is solely in relation to politicians, but the offence, the common-law offence, applies to anyone holding a public office.

I suppose there is undoubtedly the requirement in those offences to prove that politicians have deliberately deceived. It is a high threshold, but it is quite properly a high threshold. It's the threshold, as I understand it, that Mr Antoniw referred to in the Senedd as being this is what the purpose is to look at, whether disqualification should follow politicians being found guilty of a deliberate deception. That requires proof of an intent to deceive. That is difficult. It's a high standard, and quite rightly so, as the divisional court again has said very recently, because there have been attempts to prosecute politicians. It's not something that is unheard of. Back in 2019, there was a very high-profile attempt to prosecute a politician, and the court made it perfectly clear that they regarded the existence of a high threshold as entirely proper in the public interest. They actually went so far as to say that

'a failure to insist upon a high threshold…would place a constraint upon the conduct of public officers in the...performance of their duties which would be contrary to the public interest'.

We want healthy debates. The Electoral Commission recognised that in the quote that I referred to earlier. It's part and parcel of political discourse, as it is in legal argument as well, that we have an adversarial system where two sides or more, as the case may be—three, four, five, six, seven, eight, nine, 10, as many sides as you wish—but all entitled to argue their case as strongly as they will. And in the nature of both political discourse and legal argument, often facts are referred to with conclusions being drawn as a matter of fact that are hotly disputed. It is very difficult, as the Electoral Commission has recognised, to often identify whether there is an independent objective truth. Any system that places that in jeopardy, we are of the view, would run the risk of a real chilling effect on political discourse.

And freedom of speech.

And the freedom of speech.

So, I think the answer is exactly that: it's a high bar and of necessity—absolute necessity—because of the serious impact of what's being proposed on freedom of speech.

Peredur, any further questions? Mick.

In fact, you just answered the point in the last two contributions that I was going to ask about, so that's been answered. But just to make the point, of course, that there have been prosecutions under the legislation, which have in fact prevented, for example, in one case, a person from taking up a position of a Member of Parliament, and there have been others in other cases. So, it's not the case that there aren't—. The point you make was the one that I wanted to draw on, and that is the importance of the high threshold, so you've really answered the points I was going to make.

Thank you, Mick. And also, just to pick up on this as well, just probably one of the final points of this session. So, I think Members have talked about scope and thresholds and things, but if we were going to create an offence or strengthen the current sanctions process against a Member, perhaps, who has deliberately misled in terms of deceptive or false statements, for how long do you think, retrospectively, somebody should be able to make a complaint? How long should that stand for, so, for example, the last six months, the last 12 months?

So, in cases in the magistrates' court, for example, in the vast majority of cases, there is a six-month limitation period, which is deemed appropriate for more trivial matters, perhaps, and that allows certainty in going forward for individuals. There are other time limits within other statutes in certain instances, with animal welfare cases, for example, or consumer offences, there's a three-year maximum limitation. More serious criminal offences, for example, of a sexual nature, do not have limitations. We, in recent years, have seen cases going back decades, sometimes as far back as the 1950s and the 1940s, of historic sexual offences, and so there is a wide gamut. But in the context of a vast amount of material and moving forward, perhaps the six-month limitation period is one that might be an appropriate period of time.

Thank you. And can I also ask whether you consider there should be a range of appropriate sanctions available, or should the only sanction be disqualification?

I'm sure a range, in the same way that, as a professional, one has a range of sanctions, from a warning to a financial penalty, a personal financial penalty and cost consequences, all the way up to disqualification on the basis that you're not fit to hold the position that you hold.

Thank you. Any further last questions from Members? No. In that case, can I thank you for coming in today and for your evidence and for the contributions? Just to let you know that a copy of the transcript will be sent as soon as possible, so you're able to check that for factual accuracy, but thank you very much for coming in.

Thank you.

Thank you.

So, I move to item 5, and a motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of the meeting. So, I propose, 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? In which case, we will now continue in private. Thank you.