Cynulliad Cenedlaethol Cymru

Good afternoon. Could I welcome Members and the public to this afternoon's meeting of the Member Accountability Bill Committee? Before we go into our evidence-collecting session, could I just remind people of a few housekeeping rules? We are operating bilingually and therefore simultaneous translation is available if you're in the room on the headsets, or if you're online, it should be available to you via our translation team online. There is no fire alarm scheduled this afternoon, so if one does take place within this building, please follow the directions of the ushers, and I'm sure that everyone else will stay safe in their own in buildings. We have no apologies. Does any Member wish to declare an interest at this point in time? I see that there are none, so we can move on. 

We'll move to our first evidence session. I welcome Alberto Costa MP, who is Chair of the House of Commons Committee on Standards, and also Dr David Stirling, who is a lay member on the House of Commons Committee on Standards. Can I welcome you both to today's session? Clearly, you will be aware that we are looking at the Senedd Cymru (Member Accountability and Elections) Bill, which relates to the concept of recall and the Standards of Conduct Committee. We've got a few questions. Hopefully, we can gain from your experience being on a similar committee in the Commons. With that in mind, I'll go straight into our questions, and we start with Sam.

Thank you, Chair. Good afternoon, gentlemen, thank you for joining us this afternoon. The first Part of this legislation is looking to introduce a system of recall for the Senedd; at the moment, that system does not exist. I'm just wondering if perhaps you could give us an overview on how the recall process is working in terms of its effectiveness in the Houses of Parliament, and whether you think it may have had a positive effect on the way in which Members behave in the Houses.

Alberto, would you like to start?

Thank you, Mr Rowlands, for your question, and it's a pleasure to appear before the committee this afternoon. As your Chair introduced me, I'm Alberto Costa, the Member of Parliament for South Leicestershire, and I chair the House of Commons Committee on Standards, as well as the House of Commons separate but sister Committee of Privileges. I'm one of the longer serving Members of Parliament on the standards committee.

Mr Rowlands, you asked a question about the recall provisions as passed by colleagues back in the 2010 Parliament, the Recall of MPs Act 2015 to be precise. This is an important Act of Parliament. Fortunately, it is rarely used, in that there have been only six recall petitions since the Bill was turned into an Act. And of those six petitions, most of them resulted in the MPs in question being removed from the House of Commons. It's an important part in the standards landscape of the House of Commons and it acts, of course, as a deterrent, or we would like to at least think it acts as a deterrent, to egregious behaviour within the House of Commons. So, it is working as an Act.

I think the issue that I would raise as an MP member of the Committee on Standards in respect of recall is the threshold under which it operates. It was brought under the basis of a threshold of 10 or more days. If the Committee on Standards felt that an MP ought to be suspended for 10 or more days, then that would be one of the three ways in which the recall provisions would be triggered. There are two other ways in which it would be triggered. It's only been triggered once in respect of a fraudulent claim for the separate Independent Parliamentary Standards Authority body, which sets MPs' salaries and regulates the costs regime that MPs operate, and separately in respect of custodial sentences of 12 months or more.

So, it's been rarely used, but it's been an effective tool. But I think what you ought to consider in bringing in a recall provision is a threshold. And I know that the suggestion that you have is for it being in operation in a slightly different way from the recall Act that we have, but I think it would be fair to say that for some members of the Committee on Standards that 10-day threshold for us has made us pause and think when setting the number of days of suspension. David, would you like to add anything?

The rather colourful phrase that's been used by one or two members of the committee is that, in deciding on the number of days of suspension, we often find ourselves in a position that can be described as 'deciding from how high the guillotine should fall', in the sense that anything that we suggest over 10 days is going to lead to a suspension, and so that has given us some pause for thought around the suitability of that threshold. I think we've also, it's fair to say, had discussion around what should be required of a recall petition in order to trigger a recall, and is the current target, which I think is 10 per cent, a suitable target. And our system also requires those people wishing to sign in support of the recall to sign a petition, so, in effect, attending the signing station is declaring publicly your intention. And it has been recommended to us that it would be more sensible to have the opportunity to sign for and against, so that a genuinely anonymous ballot could be held. So, those are some of the thoughts we've had around recall. 

Thank you for those responses. There are, clearly, a number of differences for us here in Wales, because a future Senedd would be completely proportional representation. So, the impact of recall is unlikely to make a political difference in terms of the political make-up of the Senedd. So, that's one of the things we're considering—how the effectiveness of recall may be. But just going back to the point around the—. In the House of Commons, if there's a 10 day or more suspension issued to a Member, that's one of the three ways you describe triggering a recall. Ten days—has that been the same number since the recall system came in? And has that been considered to be about right, or do you think that's too short or too long?

If I may, it has been 10 days since the inception of that particular Act. And I think, following on from what my colleague David said, it does play on our minds when exercising our decision-making power in respect of recommendation for a sanction. At the end of the day, what the committee does is make recommendations to the House of Commons. It doesn't have the power to set the suspension; it has the power to make a recommendation to the House. But that recommendation—the recommendation of 10 days—some members, historically, of the committee have felt that that's perhaps on the low side. But we did have a standards landscape review, and what the previous Committee on Standards decided inter alia is that the House should consider a review of that particular piece of legislation. But, from the Committee on Standards perspective, if you take the threshold days away—. Recall provision is a very important power that the House has given and it is exercised very carefully. But the debate isn't so much on whether it's appropriate to have recall; the debate is really on the threshold, if a debate is to be had.

Yes, that makes some sense. And then just on our draft Bill, or the Bill that's been laid, should I say, before us, there is no trigger in there at the moment for a recall to take place and, instead, it suggests an issuing of recall guidance by the standards committee. Do you think it's more effective to have a threshold on the face of the Bill, or do you think it's perhaps better to have it within guidance? I guess guidance can mean that things can move more easily, if necessary, whereas, as you'll appreciate, once something is on the face of a Bill, it's more difficult to unpick. What would be your thoughts?

Maybe David can answer that one.

I think the benefit of having it laid out specifically is that it provides a degree of clarity for everyone involved, despite the difficulties we've described around where that threshold should be set. One of the things that came out in Sir Ernest Ryder's review of our standards process was that we needed to recognise the requirement for natural fairness within the system, and it recommended the establishment and publication of a procedural protocol. The rules and procedures are clearly laid out within that so that everyone knows at the outset how decisions are going to be reached. So, I think that has a benefit. I can see that there might be—. Leaving the decision to the committee entirely may lead to confusion in some people's minds as to the level of sanction required.

That's fairness to the Member who may be subject to a sanction, to understand what may be a likely outcome of that process. Yes. Okay, that’s understood. Chair, I'm comfortable there for now. I appreciate time's flying.

Thank you. Before I move on to Sioned, I have another question on this. As Sam has said, the Bill currently talks about guidance to be issued and, therefore, not a threshold. Can I ask Alberto or perhaps David, both of you, with the threshold, I think you said earlier that your mind is more focused, therefore, on the consequences of your decision as to what the sanction should be—is, therefore, guidance creating more possibility of inconsistency as a consequence of not having that threshold?

That's a very interesting question, Chair. Look, I think we're fortunate that, unlike any other employment tribunal, we're not a court of law. We don't have hundreds of cases. So, we're dealing with a relatively small pool of precedent. We do have precedent, but it's a very small pool. So, it's very much reliant on the 14 members of the committee, and it's a large committee, with seven lay members and seven Members of Parliament, for them to consider what might be an appropriate suspension sanction, in terms of the number of days. But I think, if I were to offer any advice to your committee, it would be that you seek external professional advice from the judiciary involved in workplace disputes, as well as trade unions, to get a better understanding of the sorts of levels in which, in the ordinary workplace, suspensions are granted. I don't think we've had that. We've just operated on general advice that the committee has had, but we've not commissioned specific advice yet in respect of the number of days sanctions. I think I would certainly benefit from professional advisers giving an overview of what happens in other professional workplaces when it comes to suspension.

David.

If I may, Chair, I think one of the—. While we're clearly mindful of the effect of recall, it's not foremost in our minds when we're determining a sanction. Ensuring consistency with previous sanctions is important; ensuring that any sanction is appropriate and proportionate to the breach that has been determined is also important. But the consequences of the sanction, to some extent, have got to be quite a distant second. For instance, there's no political consideration given to what impact it might have if we were delivering a 12-day sanction at a time when a Government might have a minor majority. Those things are not part of the consideration, and I think it's one of the strengths of having lay members there, to be able to provide that assurance that those political considerations are never being brought into the discussion.

Thank you. Sioned.

Can I start, Alberto?

Of course, yes.

I think it's very difficult to point at a sanctions process and say, 'That has demonstrated that it's delivered a result by preventing misbehaviour.' My overwhelming experience, in dealing with Members in the House, is that people go into that place with the best of intent and intend to abide by the code of practice. There are some bad apples, and it's important that, when such behaviour is identified, it's dealt with.

And I think it's also important for the public trust in the institution that those situations are not just dealt with, they are seen to be dealt with and dealt with fairly and dealt with swiftly. So, I think we have demonstrated that—that, when cases of egregious behaviour have been identified, they've been dealt with swiftly. When cases that are perhaps minor or inadvertent have been identified, those breaches have still been dealt with, but in a much more proportionate way, often by rectification by the commissioner.

So, I think that the standards are working—the standards regime is working. Does it prevent poor behaviour? I don't think it does. I think that the best intentions of MPs are what prevents behaviour lapses. And we are there to pick up either the inadvertent mistakes, which can grow, or the egregious behaviour, which, unfortunately, will occur anywhere in a human organisation.

David, do you want to answer that first?

I can do. Clearly, in Parliament, there's a separate process for the independent complaints and grievance scheme, which will deal with issues of sexual harassment and bullying. The issues around honesty could well reach us in terms of bringing the House into disrepute, or bringing the Member into disrepute. So, I think those are probably covered in the standards regime that we have at the moment. Do you want to add anything, Alberto?

I think you've really hit the nail on the head. There is a catch-all paragraph in the House of Commons code of conduct, which is reputational damage to the House of Commons. So, if an MP has committed sexual misconduct—and actually, we do have an example to cite—where if an MP commits sexual misconduct, and that is not within the direct ambit of the independent complaints and grievance service, which David referred to, it can nevertheless come to the Committee on Standards if the commissioner decides to initiate an investigation on the basis that that sexual misconduct has caused reputational damage to the House of Commons. As I say, we have one example of such a case. So, whilst it's not a direct sanction under the recall provisions, the House was able to deal with a sexual misconduct issue involving an MP outside of the workplace under the umbrella jurisdiction of paragraph 11 of the MP code of conduct.

Can I ask, therefore: does the ICGS refer any cases to you as a committee or does it deal with all those cases and you just keep a watching brief of what's going on with the ICGS? 

So, a little bit of context here in answering that question. The ICGS was created about seven years ago, following a seminal report from Dame Laura Cox. When I was first elected as a Member of Parliament, allegations of bullying or sexual misconduct or harassment were dealt with by the Committee on Standards, and that was one of the foundational reasons for having lay members on the Committee on Standards. But following Dame Laura Cox's report to the House, to both Houses of Parliament in fact, MPs decided to create the independent complaints and grievance service, and the key word is the first word, ‘independent’. It is completely independent of MPs.

So, the Committee on Standards was divested of its function as a regulatory body within the standards landscape when it came to bullying, harassment and sexual misconduct. So, our committee has absolutely no direct involvement in that respect, and nor should it, given that there are MPs as members of the Committee on Standards. We don't have any involvement at all in those cases. Not only that, but the House of Commons' Standing Orders, the rules of the House of Commons or the sort of constitution of the House of Commons expressly exclude the Committee on Standards from having any oversight of the independent complaints and grievance service.

So, in answering your question, there has been a complete detachment between the Committee on Standards and the ICGS. There are courtesy evidence sessions where the director of the ICGS might come privately or publicly before the committee, but that's really as a matter of courtesy to update the committee on the separate and independent work that the ICGS does on behalf of the House.

And does the ICGS actually also issue sanctions? 

Yes, it does, and it has its own process. So, the Parliamentary Commissioner for Standards, over which the Committee on Standards has oversight—. So, we're an oversight body over that regulator, with one exception: we don't have any involvement, as I've mentioned, with the ICGS work. It is for the commissioner to oversee the ICGS, and investigations are held and organised by the ICGS and reported to the commissioner.

And there's another body that was created following Dame Laura Cox's report, called the independent expert panel, which is another panel of professional lawyers, and by ‘lawyers’, I use that word loosely. It's not just regulated lawyers, but there's a former judge, academic lawyers and others involved in the legal profession who make up that panel, and they adjudicate on cases referred to the IEP by the commissioner, and they then issue sanctions appropriately. Those sanctions are ultimately adjudicated by way of acceptance or not by the House of Commons in cases involving Members of Parliament. So, they do have recommendations on sanctions. But there is an anomaly in the current recall provision that suspensions involving bullying, harassment and sexual misconduct cases do not automatically engage recall, due to the fact that the legislation predates the creation of the IEP. 

Thank you for the clarification on that. Lesley.

Thanks very much, Chair. Good afternoon. I suppose my questions initially are to Alberto because it's around how you feel your standards regime works with having lay members on it, but it is really good that we have a lay member with us, and I'm sure we'll have some questions for him as well. But I just wonder how you feel their role plays out in your committee.

I was going to pass that to David straight away as a lay member, but from an MP's perspective, I think it's very important that we have, in our standards landscape, lay members involvement. It's not just in the Committee on Standards that we have lay members. As I've mentioned, there's the independent expert panel that is wholly lay members, although we don't call them lay members, but they are effectively—they're not elected representatives; they are individuals that have been chosen because of their legal expertise.

So, we have those individuals as part of the standards landscape and they deal with bullying, sexual misconduct and harassment, and the reason that they deal exclusively with that—and I hope your committee would agree—is that bullying, sexual misconduct and harassment, there's nothing special about being an elected representative when it comes to those three misconduct activities. Therefore, having wholly independent lay members in respect of that issue is of critical importance. As I say, that was one of the foundational reasons that the Committee on Standards brought in lay members in the first place. It was at a time when the committee adjudicated on those activities.

I think what the lay members bring to the committee is, firstly, the ability for MPs to say that we have additional independent protection, because we have seven independent lay members. Secondly, we have given lay members voting rights. Initially they didn't have voting rights on the committee, but they've got voting rights, and the situation now is that out of the 14 members, the lay members—. And I don't think this was ever intended; there was never a debate about this in the House when this was approved during my term as an MP, but, as a consequence, the lay members now have a majority on the committee. As Chair, I only have a casting vote in the event of a division, which is a very rare occurrence in the Committee on Standards. So, we have a situation in the House of Commons today where the lay members have a majority on that committee.

You just mentioned about voting rights, and I see you were a member—. Well, you've been a member of the standards committee since 2020, and I think voting rights came in at some point between 2012 and 2020, I'm not quite sure; I don't know if you know.

It was 2019 they came in.

It was 2019. So, obviously, that was something that was introduced. Do you know why that was introduced? Was that for more protection, do you think? 

So, there wasn't a full debate in the House of Commons on this, and I would encourage your committee to look at Hansard for that, but we were moving very swiftly with the separate creation of the ICGS, and the focus of MPs at the time was on Dame Laura Cox's report. I think one of the anomalies that the lay members had prior to my involvement with the Committee on Standards was, 'We don't have a vote, and we ought to be given a vote', and that came pretty quickly during the same time as the focus actually was on the creation of the ICGS.

So, if your question is, 'What was the foundational reason for having lay members on the committee in the first place?', the foundational reason was the committee used to deal with bullying, sexual misconduct and harassment, which are not unique to elected representatives and should rightly be dealt with as in any other workplace. But we have not had the debate subsequent to that creation, other than the landscape report that Lady Harriet Harman produced, as my predecessor, the very welcome report on the importance of the lay members currently being on the committee, and the principal importance is the independence that they bring. But I'm sure David will want to add some of the additional reasons for having lay members on the committee.

Thank you.

Yes. I'm not entirely sure what the point would be of having lay members on a committee if they weren't able to be involved in the decision making. 

I agree. That's why I couldn't work out why it had gone on for so long, really.

Well, I think Westminster is a very old and traditional organisation, and so things take a little while to change, would be my suggestion on that matter.

There are a couple of things that struck me. I've been a member of the committee since 2023, and I've been impressed, first of all, by the lack of distinction on committee, under three Chairs, between lay members and Members of Parliament. Everyone has a voice, and that voice is recognised and respected. And the other thing that I will say is I was also pleasantly surprised by the lack of partisan behaviour from amongst the MPs. All of the colleagues that I've worked with who are Members have not come in with the background of a whip or a party, but have genuinely come in to uphold the standards, which I think is commendable.

Thank you. I think, Alberto, you touched on a few of the benefits of having lay members. I wonder if there's anything else you want to expand on that, and also if you think there are any disadvantages to having lay members on the standards committee.

I wouldn't say 'disadvantages'. The one thing that I think you ought to give careful thought to is, ultimately, what we are is a workplace dispute forum; we're not a court of law. I don't think in our country, in the whole of the United Kingdom, there are any regulatory bodies—or there must be very few—that have 14 members that sit as a panel, and we've not really given much thought—. We've been very busy on other policy-related matters, but we've not really given thought to what is it like for an MP to come before a committee when we've got our adjudicating hat on, with a panel of 14 people.

When it comes to the separate ICGS, they have a large panel, but they choose from their panel a number of their members to form a sub-group or a sub-panel to hear a case. We don't do that; we just have all 14 of us in attendance. I would suggest that you give thought to whether such a large number is appropriate and mirrored in other workplaces. So, it's not so much a distinction between lay members and MPs—and I welcome David's comments—but it's about the overall numbers.

David, is there anything you want to say?

No. I was also struck by that comparison, of the way the ICGS, out of a cohort of seven, will choose a panel of three to conduct a review. It can, clearly, be quite daunting for individuals to come before a panel of 14 people, despite the fact that MPs are generally fairly robust and used to challenge. It's a different sort of challenge when, potentially, people are impugning your integrity.

Yes. Absolutely. In our Bill's provisions around the appointment of lay members, it's set out about the disqualifying offices and the maximum length of term of office. So, for instance, I'm standing down at the next election; in two years' time, I could apply to be a lay member. Do you think two years is around the right time? Have you got a view on that, and also anything else around the provisions and the term, and whether a term of office should be renewable, for instance? 

David, do you want to maybe answer that one?

I'm happy to start with that. I think political independence is really important for lay members, and I think it would be really hard having been a Member of Parliament, even after a five-year break, to come back and genuinely say you were independent. I think that's a challenge. As lay members, one of the things that we have to assure the selection panel on is that we can be politically neutral and that we haven't expressed strong political views or been involved in political campaigning prior to our selection, or indeed during our term of office. I think that is important, and people may guess at our political backgrounds, but that's speculation. So, I think those things are important.

In terms of terms of office, we're appointed for six years. I think that's about right. It's longer than a parliamentary term, which means that—. So, for instance, after the last election, Alberto was the only MP returned as part of the committee. So, having the lay members there provided a degree of continuity, which I think is very important.

I know one of your suggestions is that there might be a possibility to renew a term after that period. I think that that also brings in a danger. I think there's a value in a fresh voice and fresh thinking around the table. So, I personally wouldn't be a huge supporter if someone suggested that we were able to stand for a second six-year term. I think that would be too long. I'd be too old, apart from anything else. [Laughter.]

Not at all. I think one of the things, if you're thinking about the Senedd setting up, you know, if this Bill becomes an Act, and the way it's set up, one thing that's very important, you wouldn't want everybody finishing after six years. So, all the lay members come in on this day, and then six years later, all the members—. You'd need that continuity. I think six years—. I mean, our Senedd term is going to be four years after the next election, but I think it's really important it is longer than that, so you go over the term, so that there is that continuity. As you said, Alberto was the only one last time. That could obviously happen with the Senedd. But I think the one term, that is also important around fresh thinking. Six years is a long time, isn't it, to be in a position like that?

I think when lay members first came in, the initial appointments were for four and six years, so that not everyone was leaving at the same time.

Yes. You had that. I think that would be good. Thank you. Alberto, is there anything you wanted to add?

No, I'd just echo David's comments.

Thank you, Chair.

Okay. Sioned, we'll come back to your questions.

This is a difficult one to answer. We have a relatively small number of cases come before us, and we have never had a position where the committee has been divided. We've had some fairly robust discussions, but we've been able—and I think it's a testimony to the three Chairs—to reach a consensus on all of the cases that we've considered. So, setting at the outset a target of a two-thirds majority, I'm not sure how helpful that would be, just as a personal opinion. Alberto.

Yes, I would just add to that, from an MP's perspective and a member of a political party, I think that you should, as a committee, not worry too much about the issue of partisan conduct, because the reality is that the Committee on Standards is not the sort of committee that an MP would join to make a name for him or herself. It's not the Foreign Affairs Select Committee or the Treasury Select Committee or anything. It's a committee that really does a lot of back-room work. So, the sorts of MPs and the sorts of Members of the Senedd, I would have thought, who would want to be partaking in that sort of role would be those who are committed to ensuring foundational democratic integrity and that the Nolan principles are working properly in the institution.

So, the partisan element, from my five years, I haven't seen that. In fact, I would add—. As I mentioned at the beginning of the discussion, I also Chair the separate Committee of Privileges, which is exclusively the seven MP members of the Committee on Standards. It does not have lay members on it, because it deals with matters pertaining to the privileges of the House of Commons. Of course, we had a seminal case involving a former Prime Minister, which I'm sure you're all very familiar with. At the time, there was a majority on that committee of the governing party. So, the idea that party politics kicks in, well, the evidence settles that beyond doubt, at least from the House of Commons perspective. I don't think any member, lay member or MP, would want to look foolish in acting in a partisan way when the evidence points in a different direction on a case that's adjudicated.

Well, again, I think the House of Commons has evidence to bring to your committee, in that we did have another seminal case where party politics did kick in. It was the case involving the former MP Mr Owen Paterson, and the House—. The governing party chose to vote in a way, exercising its majority, and the politics of that kicked in very swiftly. The governing party, notwithstanding its clear majority, had to do a volte-face on that particular matter, and I think any governing party will have that particular episode at the forefront of their mind when dealing with standards-related cases. And so, I would be less worried as to whether or not it's a simple majority or a two-thirds majority, because ultimately the political damage to the governing party will be severe, given the experience of the House of Commons.

Buffy.

Thank you, Chair. I have two very brief questions on own-initiative powers. Could you outline your experience of operating in a standards regime where the commissioner has own-initiative powers?

David, should I go first on this one?

Please, yes.

So, I think it's really important—. If you value an operationally independent regulator, I think it's of critical importance that that operationally independent regulator can initiate their own investigations, and so that's not an issue that, from my experience, has ever caused anxiety within the standards landscape of the House of Commons.

I think the issue that we are currently debating is oversight of that regulator, and ensuring that the oversight function that we have as a Committee on Standards is seen by the public, and by those regulated, and by complainants, to be properly working. We're having a discussion on that, to ensure that we enhance the current operation of our oversight, to ensure that as a committee we feel that we're conducting our oversight as the House intended. I don't know if David maybe wants to add to that.

Perhaps not on the oversight issue, but in terms of the independence of the commissioner and ability to initiate investigations. MPs are under a great deal of scrutiny, and so I think it's relatively uncommon for an issue to reach the commissioner without having already been highlighted by someone else. What happens, I think, more often is that the commissioner will instigate an investigation and, in the course of that investigation, other things will come to light. And, during that process, he has full powers to extend the scope of his investigation to look at other breaches that may have occurred. So, I think it's, as Alberto said, entirely appropriate for the commissioner to have that independence as to when to initiate an investigation or where to extend an investigation, and it's not something that we as a committee would in any way seek to influence. 

Okay. Thank you. I think you've answered a little bit of my next question. So, what would you say are the benefits of having own-initiative powers, and how does this impact on the standards regime?

I think David's just answered those points, because it safeguards the commissioner's operational independence to enable the commissioner to respond to events, rather than wait for complaints that may or may not arise. And this undoubtedly strengthens accountability in demonstrating the independence of the system.

Thank you. That's all from me, Chair. Thank you for your answers.

I think I can anticipate the answer to my next question, but the Bill now puts a duty under the Government of Wales Act 2006 to have a standards of conduct committee as part of the Senedd. It does not have a duty at the moment. So, I'm assuming that your answer would be that you have no—. I think that you would support the view that it should be compulsory and a requirement within the Act to actually have a standards of conduct committee within the Senedd. 

Yes. If I may understand, though, that question, because it's in an Act, does it make the committee justiciable? Is that the proposal, that your committee could fall under the supervisory jurisdiction of the courts?

Good question. I'll ask my legal advisers. Sam? No. The answer is 'no'.

In which case, it would mirror the House of Commons, because under privilege, of course, and under the Bill of Rights, our committee is not a statutory committee. It's set up by Standing Orders, the internal rules of the House of Commons, its sort of day-to-day constitution, if you like. So, the answer is then an unequivocal, 'yes'.

Okay. Thanks for that. Now, we're going to move on to appeals, and you've obviously highlighted—. To me, there are three elements in the House of Commons: there's the Committee on Standards, there's the ICGS and there's the expert panel, and all three work collectively, in a sense, or have different roles within the process. Within the Senedd, the Bill actually introduces one committee to do all three roles at this point in time, even the appeals. Regarding the appeals process, do you believe that perhaps we should have a separate appeals committee to the standards committee, because otherwise we could end up with the same people marking their own homework, if you know what I mean?

If I can answer that unequivocally. This is one of the major issues that I had when I first became a member of the Committee on Standards. I was very concerned that we did not have a system that, in my opinion, was—. In my opinion, it could have been enhanced. To help your committee to understand, what we had at the time was a parliamentary commissioner who investigated, adjudicated, prosecuted, effectively, before the standards committee and then was able to remain during our deliberations, wearing a different hat as an adviser to the committee. And in the committee at the time, there was no appellate system, so the committee was a first forum for workplace disputes and effectively an appellate body as well.

The Owen Paterson case allowed the committee to give further thought to that, and it rightly decided to appoint an expert, a former High Court judge by the name of Sir Ernest Ryder, to look at our system and identify whether it was capable of being enhanced. He did look at the system and he produced a report, a report that the House decided rightly to follow. So, we now have a system that, whilst not a court of law and whilst not justiciable, gives, I think, better confidence to the public, to complainants and to respondents.

So, we have a system now where the commissioner can investigate complaints; it's an inquisitorial process. If it's a less serious matter, the commissioner is empowered to rectify the matter by way of an apology. If it's a more serious matter, the commissioner cannot adjudicate, but the commissioner can opine and present by way of paper a report to the committee, and the commissioner does not prosecute before the committee, does not present the case before the committee. The committee may hear the MP; it's for the committee to determine, if the MP requests to give evidence to the committee. And at the conclusion of the evidence gathering, the committee and the committee alone adjudicates, deliberates and adjudicates, and the adjudication of the committee is not on appeal; it's not an appellate body. So, the adjudication is, if you like, a first forum, a workplace forum, a dispute body, which can make a recommendation to the House of Commons. And it's for the respondent to the complaint, the MP, to decide for him or herself if they wish to appeal, and they are able to appeal to this body called the independent expert panel, which does not have any MPs, it does not have any of the lay members of the standards committee—it is a completely separate body, operationally independent of the standards committee.

So, what we've created following Sir Ernest Ryder's good advice is we have the commissioner who investigates. The commissioner then, on a more serious matter, refers it to the Committee on Standards and simply gives an opinion. It's for the Committee on Standards to adjudicate, and, if the MP is unhappy with the outcome of that adjudication, the MP can apply to appeal to a separate body called the independent expert panel, and only after that process is concluded does the House of Commons then receive the recommendation of the independent expert panel.

So, my advice to you would be, given that I've been a very long-standing supporter of having this tiered system, is that you do create an appeal system separate from the Standards of Conduct Committee. Otherwise, you're acting as a first workplace forum as well as an appellate body, and I don't think you should be wearing those two hats.

Thank you. David, do you want to add to that?

Yes, I wouldn't disagree with anything Alberto says. I think it's really important that the appellate body is independent of the first decision and there's an opportunity to look at the appeal independently. I think it's also worth stressing that there need to be grounds for the appeal, and so the first test the independent expert panel will say is, 'Will we hear this appeal?' So, if the appeal is, 'I don't agree with Alberto and his committee, end of', then the IEP won't hear that. But if there is new evidence, or if the appellant is able to demonstrate or to evidence that our procedural protocols have been flawed or not followed, then that appeal will be heard. So, I think it's a really important balance.

Thank you. Do any other Members have questions? We've almost come to the end of our session anyway. Yes, Sam.

Yes, thanks, Chair. And thank you again, both, for sharing the first-hand experience of how it works for you.

One of the phrases you've both used, and in particular Alberto, often is those words 'the standards landscape', and it just strikes me, in our considerations of this Bill, I wonder whether you think there's a risk that because we're considering an element of a standard process or procedural consideration, because we're perhaps viewing it in isolation as a piece of legislation, is there a risk, do you think, as a Welsh Parliament, we're not bringing in that standards landscape, as you describe it, and perhaps could miss some important elements of that landscape, because we're looking at this thing very much in isolation?

I think that's a very good question, Mr Rowlands, and I would strongly encourage you, if I may, to look at the previous Committee on Standards, the House of Commons committee's last report of the 2019 Parliament, which was published, I think, in May of last year. It sets out what is a complex landscape system in the UK Parliament. As an elected representative of the House of Commons, just to name a few, I am, as an MP, regulated by the Independent Parliamentary Standards Authority when it comes to costs and my salary. I'm regulated by the Parliamentary Commissioner for Standards. I'm regulated by the Committee on Standards. I'm regulated by the independent expert panel. I'm regulated by the ICGS. I'm separately regulated by the Electoral Commission. So, there are a lot of bodies there that regulate, and I think, when we were looking at the landscape, we'd set out with a notion at least, not an objective, but a notion, of, 'Can we try and simplify the system?' and we concluded that we just couldn't. It was a complex system.

But we have made recommendations to the House of Commons, and that's why I suggest you have a look at that report. We also came up with a diagram, a sort of flow chart that really outlines the different bodies that are involved. In fact, there are more than the ones I've just mentioned.

But, again, if there's any comment that I would make to your committee it is, whatever you decide to do, I would urge you to ensure that you've got appropriate guidance, training and education for those that are to be regulated under your new system and that you ensure that you have appropriate bodies that issue the guidance and the education and the training to mitigate against the risk of inadvertent breaches of your own standards regime occuring.

I think it's really important in any regulation that the standards and the rules are there as guide rails rather than mines in a minefield. It's not about trying to catch people out, it's trying to provide a framework that is easy to follow, and I think that's been one of the challenges that I've seen for MP colleagues coming before us. The range of parties that they need to ensure they're on the right side of can be difficult. They're all very intelligent people, so it's a mitigation rather than an excuse, often, for breaches. But I think that it really needs to be an important consideration in how you bring this in. Alberto's, I think, spot on that whatever guidance is produced needs to be as clear and succinct as possible, with as many signposts to what might potentially go wrong as can be included.

Thank you. Thanks, Chair.

Okay. We've come to the end of our time, as it happens, so I'd like to thank you very much, both, for your evidence this afternoon. You will receive a copy of the transcript—I'm sure you're aware of this—and if there are any factual inaccuracies please let the clerking team know as soon as possible. It's been very much appreciated to understand your experience of this, and it's been very helpful to us, so, thank you very much for your time today.

Thank you for the invitation.

Thanks very much, thank you.

For members of the committee, we're on item No. 3 with papers to note, and there are no papers to note for this meeting. 

So, I'll move on to item 4, which is a motion under Standing Order 17.42(vi) and (ix) to exclude the public from items 5, 6 and 8 of today's meeting. Are Members content to do so? I see they are. So, we'll now move in a private session until we reconvene to discuss item 7.

Can I welcome the public back to this afternoon's meeting, where we'll move on to the next item of evidence for the Senedd Cymru (Member Accountability and Elections) Bill? We will have two witnesses—Jonathan Elystan Rees at the moment is running a little bit late because of a commitment he has in the court, as it happens, but also can I welcome Alexander Greenwood, who's also representing the Criminal Bar Association, to this meeting? You're very much welcome, and we very much appreciate your time this afternoon to look particularly at Part 3 of the Bill and some of the issues related to that. So, I'm going to move on as quickly as we can and we start with Sioned.

Good afternoon. I'm sure I've been introduced, but my name is Alex Greenwood. I'm the Criminal Bar Association representative for Wales and Chester. We've been provided, obviously, with the Bill, which Mr Rees and I have considered, and the questions that we were sent on 5 November setting out specific points. We've provided a joint position statement in relation to clause 22 of the Bill, which relates to the conduct of Senedd Cymru elections. We're not constitutional lawyers, we're not able to comment at this stage, because it's not within our remit, as to the scope of what's proposed within clause 22, but specifically what has concerned us, because, of course, we are representatives of the Criminal Bar Association, is the proposal to create criminal offences, effectively as secondary legislation arising from the Bill that's proposed. That causes us some concern.

We gave evidence back, I think, in the spring in relation to assorted proposals. We note that they've been refined, and commend the refinement. But insofar as any criminal proposals are concerned, we've provided the committee with the proposed draft of what we would deem to be an appropriate criminal law, if you like, governing false or misleading statements—‘representations’ is the phrase that we use—as a potential way forward for the Senedd to legislate in relation to that aspect.

We note, of course, the commendable requirement of Members not to publish false or misleading statements, but we anticipated, by virtue of clause 22(4), that we were being asked specifically to concentrate on the creation of a new criminal offence, so we've provided a draft in that regard. I don't know whether the Members have had an opportunity to consider our observations as to the potential criminal offence that we propose, but we trust that that's of some assistance.

I appreciate that that's not directly answering your question, but that seems, to us, our remit on behalf of the Criminal Bar Association and as criminal practitioners. I am a criminal practitioner—that's my field of expertise: regulatory and criminal law. I will attempt to be more specific in order to assist, of course.

Of course. The proposal to prohibit the making or publishing of false or misleading statements is, of course, commendable. None of us wants lying politicians, to put it in the vernacular. But we have considered the scope of any offence and whether it should be limited to Members or candidates, or whether it should be more broad in its considerations to reflect, for example, third parties, again using the vernacular, put up to it on behalf of candidates.

What we have proposed is an all-encompassing offence that doesn't limit the individual by their status, but provides an offence to take into account of false or misleading representations, which is a phrase that has a wealth of case law behind it, is tried and tested in the criminal courts and increases in scope, in one sense, those for whom criminality would potentially result, in order to avoid the use of third parties, for example, but limits the scope by requiring it to be an offence committed dishonestly—that would be a prerequisite of the offending—and, also, with an intention to make the representation affect the return of any candidate in the election.

We appreciate that that may be beyond the scope of the Government of Wales Act 2006, in particular section 13. It may require—we're not constitutional lawyers—consideration of the delegated powers the Senedd has, but it seems to us that it would be broader and more encompassing to avoid that circumvention by the use of third parties. So, what we've attempted to do is draft a widely applicable offence that would then be narrowed by the requirement of dishonesty, which is standard in relation to false or misleading statements and broader in terms of its remit.

We note, of course, within clause 22 the reference to statements of fact, for example, and we question and wonder about the applicability of such a term. What is a statement of fact? What we would propose is the use of the phrase 'false representation'—again, a tried-and-tested phrase—which includes representations that are false or misleading. And so it is broad in its remit, it covers the phraseology contained within clause 22 and could have a far wider application—although, as I say, whether that falls within the remit of section 13, or, in fact, would require further consideration and other legislation, is something that we have not, at this stage, reflected upon.

Can I welcome Jonathan Rees KC at this point in time?

Good afternoon.

Good afternoon. I'm very pleased—. Did you catch the question originally?

I didn't catch the question. I have inferred that it's to do with whether the proposed offence that we have suggested in our position statement falls within the competence of the Senedd.

I'll take those in reverse order. In relation to the Bill, there is no offence that's presently drafted, because we understand the proposal in the Bill is to create a duty on the Welsh Ministers to make a prohibition on the making of false or misleading statements of fact that may have the intention of affecting a Senedd election, but the details of any such provision are absent from the Bill.

We understand why that's been done, but, for my part, and Alex may have said this already, because an allegation that somebody has deliberately tried to interfere with the outcome of an election to Senedd Cymru by use of false statements or representations is such a serious matter—it's inherently a serious matter—it is something that ordinarily we would suggest ought to be dealt with by way of primary legislation, with the accompanying scrutiny that is due to primary legislation, rather than being a matter for Welsh Ministers to create by way of regulation. Obviously, I understand that there is a degree of scrutiny that is required in the making of secondary legislation, but to mark the importance of such a serious alleged offence, it ought to be dealt with, we would suggest, by an Act of the Senedd.

We observe that, as presently proposed in the Bill, the making of a criminal offence that prohibits the making of a false or misleading statement of fact with an intention to affect an election of the Senedd, by way of imposing a duty on the Welsh Ministers to do that within the scope of section 13 of the Government Wales Act, requires it to fall within the competence of the Senedd, because, as I read section 13, the Welsh Ministers can't effectively do anything that is outwith the competence of the Senedd if the Senedd was to do it by way of an Act of the Senedd. That is how section 13 operates. So, we would take the view that whichever route you take, whether it's primary or secondary, it has to fall within the competence of the Senedd.

If we assume that what the Senedd wishes to do by creating a new prohibition on the making of false or misleading statements of fact in relation to Senedd elections is within the competence of the Senedd, we make that assumption because you are seeking to do that at the moment within the terms of the proposed Bill, albeit by way of secondary legislation brought about by order of the Welsh Ministers. But the better way to do it is via an Act of the Senedd, and we have proposed a way of doing that by simply spelling out a new offence of making a false representation with intent to affect an election as a new section 13A to be inserted after section 13 of the Government of Wales Act 2006 in your new Bill.

Leave aside at the moment the mechanics, because that of course is a matter that is your expertise, not ours. We have intended to help not with the parliamentary mechanics, but with the fundamental principle, which is that it is a serious new criminal offence that is being proposed. We have done our best therefore to draft from a criminal practitioner's point of view what such a criminal offence should look like, might look like, drawing on previous precedent for offences involving the making of false representations, false statements of fact—every statement of fact is of course a representation. So that's what we've set out in our position statement.

As far as the scope of it is concerned, firstly, if I take the various provisions in turn, and if I can use the labels that myself and Alexander have put on it, new section 13A(5) deals with a proposition from myself and Alexander that such an offence ought to be an either-way offence. The consequences for anybody who is convicted of an offence of making a false representation intending to affect an election to Senedd Cymru will be very serious whatever the sentencing powers are, and it's a matter that ought to come with the right to elect jury trial.

The jury trial process is something that is fundamental to our democratic society. It introduces into the criminal courts the democratic representation of the people. When you're dealing with an offence of making a false representation with intent to affect an election and our democracy and how we are represented here in Wales, we think it is appropriate in those circumstances that a person charged with such an offence has the right, if he or she would wish, for a democratic representation to be part of the process in determining his guilt—that is, a jury trial.

Just as an aside, the provision in new section 13A(5) is drawn directly from the Fraud Act, so it mirrors the way in which society approaches the making of false statements with intent to gain in financial circumstances. And for my part, I don't see why the Fraud Act doesn't apply to making a false statement in order to affect the return of any candidate in that election, unless you could, I suppose, draw on the potential financial consequences that might flow to somebody who becomes a Member of the Senedd.

That's clearly not what the Fraud Act had in mind, and it's not what you have in mind, either. What you have in mind is penalising deliberate attempts to interfere in our democracy. It is a type of fraud, but it's a type of fraud the target of which is not financial, it's to do with our fundamental rights, the way in which we organise our democracy in Wales and the operation of the Welsh Parliament, Senedd Cymru. Therefore it’s a very serious matter and I think it can properly be looked at as another limb of fraud. It is a different type of fraud, it's a type of fraud relating to elections and democracy.

We then, if I can go from sub-clause (5) up to clause (1), have set out there how we would suggest you might consider phrasing the fundamental elements of such an offence. The offence is not restricted in this drafting to, for example, a candidate in an election, and it would be open to you, of course, to take this draft and you might wish to consider whether you wanted to narrow down the scope of persons who are potentially criminally liable to, for example, candidates or agents—I don't know.

But it would seem to me—and if Alexander takes the view, he will express it—or I don't see a reason why you would wish to limit it in that way. As Alexander did say earlier—I did catch this—election campaigns involve all sorts of people, not just the candidates, not just agents on their behalf, but many people might be working on behalf of an electoral candidate. I don't see why you would consider the making of false representations on the part of an electoral candidate, even if it's without their knowledge, why you would exclude that from the scope of the offence, if the purpose is to affect the return of that candidate in an election. So, that's why we've left it as broad as 'a person'—it can be any person, it would seem to us.

But there are, obviously, three very important fundamental ingredients that then do go on to limit the scope of the offence. The first proposal is that it only applies before or during a Senedd Cymru election. The second is to include the requirement of dishonesty, and then the third is to make it a requirement that any such offender has a specific intent in making the representation to affect the return of any candidate in that election. Obviously, we took those words from—I'm not sure if this is the right technical term for it, but I call it this—the enabling provision that you've set out in the current draft Bill, focusing on an intention to affect the return of any candidate in that election. For my part, I don't think that is an overly broad offence. Inclusion of those three ingredients makes the scope of it clear and, in fact, makes the boundaries of it well defined.

There's some further assistance—. In the questions that we were asked by the Chair in writing about whether, for example, the scope of any such offence should include facts that are not just false, but also potentially misleading, our sub-clause (2), we hope, answers that. Again, it's an answer that we've drawn directly from the Fraud Act, which was a piece of legislation in 2003 that came from very detailed scrutiny of these very questions by the Law Commission over a long period of time, and we think making it clear that a representation is false includes it being untrue or misleading. They're really much the same thing. I'm not sure that there is actually a distinction. If there ever was, the criminal courts have become very well tuned by the Fraud Act to now regard it as much the same thing—and 'true' or 'misleading' as the same thing. They are both things that are false. But it also comes—falsity—with knowledge on the part of the person making the statement that it is wrong, that it is false, or might be false. So, again, we think that's important.

And then, finally, two other matters, again drawing on the Fraud Act, we've included, we would suggest you give consideration to making it clear that any representation includes a representation not only to fact, but also to law. In one sense, law is a fact. There are legal facts. And without descending into the political arena, I don't think it's hard for any of us to think of, over the last 10 years, for example, very hotly debated topics based upon politicians' understanding of the law. I will give some examples, without descending into the political arena—for example, the European Convention on Human Rights, the operation of the various EU treaties at the time of the referendum. I'm not saying anything about what was said in the debates about those areas, and what are continued to be said about the debates in those areas, but the debates themselves involved representations, statements, allegedly, of fact, made by politicians, as to what the law is. I don't see why you would exclude that from a statement of fact or a representation of fact.

Similarly, under Fraud Act, a representation specifically includes a representation as to the state of mind of either the person who makes the representation or any other person. Again it's only spelling out there what is obvious: that is, that the state of mind of a person is a fact. It is a fact. So, if, for example, I was to say that person A never had any intention of ever putting into action any of his manifesto commitments, that is a statement of fact. It's a statement of fact when I am alleging that I know the state of mind of my opponent, of person A. And I don't see why, if you are looking at potentially criminalising false statements made as statements or representations of fact, in the context of intending to affect the outcome of elections in the Senedd, you would exclude statements of fact, representations of fact, made by one candidate, for example, about the state of mind of another if the person making that statement—and the statement was actually false—said it dishonestly, and that they knew that it was false, what they were saying, or might be false. Please excuse me, I've got a bit of a cold that I'm wrestling with.

And similarly, if I was a candidate in an election, and I make a representation as to my own state of mind, that again is a statement of fact. So, for example—and this may be more difficult to prove, but I'm going to start off, perhaps, looking at hypothetical evidence and work backwards—let us assume that somebody had got hold of my journal, and the night before I was to give a big press conference, releasing my proposed manifesto at the outset of an election campaign, I wrote in my journal, 'I have no intention whatsoever of ever following up with any of this rubbish. As soon as it's out there, the public will lap it up, and once I'm elected I can rip it up and forget all about it. Moreover, it puts me at an advantage over my opponent, because he, rather foolishly, has some old-fashioned idea that he should only be putting the truth about his intentions in his manifesto.' I write that in my own secret diary and, the following day, I then hold a press conference in which I release my manifesto that's got all sorts of wonderful presents for the public that I know that they will love, and I stand there on stage and I hold up my manifesto—it having been read out on my behalf—and with a big beaming smile, I say, 'My word is my bond'. That's my election slogan. Now, I'm making there obvious representations as to fact about my intention in those circumstances, when, actually, my diary would reveal that they were false, and I knew they were false and, indeed, good evidence that I was being dishonest. Again, I don't see why you would wish to, in some way, carve out representations as to the state of mind of a person from your understanding of what is a statement of fact or representation of fact.

Thank you for that. It's been very interesting to have an understanding of some of the challenges. Now, if such a prohibition was put into the Bill, because, as you say, it's not there at the moment, would you expect us, therefore, to have a full consultation on those points, because there are clearly many interesting points you've made there, and, therefore, far more detailed scrutiny of the specific issues you've raised?

Yes, I would, and I would also expect there to be a full justice impact assessment. It's part of our thinking that because this is an interesting and also serious proposal for a new provision of criminal law in Wales, that it ought to be dealt with by way of primary legislation, it ought to have proper consultation and scrutiny, and it ought to have a proper justice impact assessment.

The proposal at the moment of simply creating a duty upon the Welsh Ministers to act on the Bill, requiring a prohibition to be created, means that, in fact, at this stage at least, there is no justice impact assessment on the consequence of imposing that duty. And there will be a consequence, there will be an effect, because you're not proposing at the moment simply to draw to the Welsh Ministers' attention that they have the power to do this. The Bill actually says, 'The Minister must do this', and we understand from the justice impact assessment for the rest of the Bill that it's very clear that the Welsh Government at least understands that that provision in the Bill requires them to create a prohibition via a new criminal offence. It actually says that. So, there is a justice impact that will flow from the present proposal, but no such impact assessment has been done. I understand the reason why; it's because it's very difficult to carry out an impact assessment on a criminal offence—a serious criminal offence—that we don't actually know the terms of.

Alexander.

But that is why it's a good reason why we say it ought to be dealt with by way of primary legislation, and the terms ought to be known before the Senedd decides to pass legislation that will create this new criminal offence, and that is the effect of what the Bill presently suggests. I can see Alexander's got his hand up.

Yes.

I was going to endorse what Jonathan has said. As you rightly identified, what we have, I hope, illustrated is the need for significant consultation as to the implications of what is actually being proposed. What we propose is a far broader, perhaps, offence than that set out within the remit of clause 22, but we reflected the purpose in our phraseology, 'the intention by making the representation to affect the return of any candidate', but we add, because, as Jonathan quite rightly observes by analogy, the comparator between making a false representation in this context and making a false representation 'for gain', which is the phraseology of the Fraud Act, i.e. money, that there is a similarity in terms of ultimately seeking an objective, whether that is power or whether that is money. There is a similarity in methodology, and that's why we're able to draw analogy with existing legislation, the Fraud Act 2006, and the case law that arises.

But what is imperative, and this acts as a gateway towards prosecutions, is the use of the phrase 'dishonest', because that doesn't feature in clause 22. It's something that we discussed, I know, when we appeared before the committee back in the spring, the requirement and the necessity when alleging serious matters such as this—false representations—is to have that gateway of dishonesty, because ultimately that is what you are saying: tarring and labelling somebody a criminal by virtue of a false representation by implication infers dishonesty, but this is not because of the serious nature of the offence, because of the parallels that can quite properly be drawn with the Fraud Act 2006, where dishonesty is integral. This should not be what's called a strict liability offence, an offence where you simply have to demonstrate that what was said was false or misleading. The necessity for a guilty mind and dishonesty surely is an absolute necessity, as it is when dealing with offences of making a false representation for gain.

So, we draw analogy with the Fraud Act. We think there is a direct comparator. We think, actually, it affords an easy mechanism of drafting legislation, because although the intentions may be different—the intention for loss or gain, as opposed to the intention to affect the return of a candidate in an election; as Jonathan properly identifies, the serious nature of the consequence is power as opposed to money—they are comparable. In many instances, of course, one leads to the other. But they are comparable, and therefore the necessity. Because, ultimately, a conviction for this sort of offence is career-destroying, life-destroying in many instances, and so the necessity of having that element of dishonesty that is replicated within the Fraud Act is crucial.

But also, in another sense, in order to prosecute, any cases have to pass the evidential test. There has to be a realistic prospect of a conviction and, in applying that, filtering out malicious allegations is also very, very important to ensure that the system is not swamped. There are, sadly, people out there who monitor, no doubt, every word politicians say, with a view to making a complaint thereof. Without that crucial safety net of the necessity of dishonesty—. Being able, on the evidence, to demonstrate that the person who made the representation knew that it was false or misleading is, in our view, crucial to ensure that the system isn't swamped. To ensure that only meritorious claims, assertions or charges are preferred is vital, and, when one is dealing with life-defining allegations such as this nature, surely it is entirely appropriate that that additional hurdle is included. So, it has many important functions, not least to ensure the system itself isn't swamped.

We dealt with a very different proposal back in the spring, which we felt would swamp the justice system, where individuals could make a complaint. That still remains a concern, but that is why you have that gateway. That is why these shouldn't be strict liability offences. I'd probably differ in relation to the definition of 'untrue' and 'misleading'. I think 'misleading' is a lower bar. I can think of examples, but I shan't trouble you with them at this stage. But, no, I agree with the generality, of course, of what Jonathan has addressed you upon.

Thank you both so far. You've taken on a lot of our questions already in your contributions. I want to move on, I think, to Lesley. I think it's Lesley on question 7. Are you doing that, Lesley—question 7?

Thank you, Chair—yes. Good afternoon. I was going to say 'good evening'. Good afternoon. Just if we could have your views, please, on whether it should be specified on the face of the Bill, the time period in which any prohibition has effect, and the timescales within which a prosecution could be brought after an election.

Shall I go first, or, Alex, would you like to go first?

I'm happy to go first. We do have, in plenty of examples, particularly in consumer legislation, specific time limits in relation to animal welfare offences. They do exist in law and are in existence. The usual is either a six or 12-month period after the date of discovery of the offence, when the authorities are on notice, and, in some legislations, you have then a fallback of a maximum of three years after the commission of the offence. And so, finality can be reflected within a time limitation. There are certainly plenty of examples of that. And insofar as summary offences are concerned—that is, lesser offences only dealt with in the magistrates' court—there are strict time limits, in any event, which can only be altered by legislation.

Of course, what we propose is a charge, which would be capable of being prosecuted in the magistrates' court or the Crown Court. But, certainly, if the Senedd wanted finality in terms of elections, it may be that the sensible way forward would be to reflect the maximum period between which elections could be held, then that could be included in any legislation. But the typical way in which these matters are expedited is to have a time limit of, if you feel it is appropriate, a six-month period from the date of the discovery of the offence or the date when the prosecution authorities are put on notice, and then a fallback of a maximum period, as I say, perhaps a five-year period, reflecting the maximum period of the electoral cycle. So, that can be done. Ultimately, that is a matter, of course, for your determination, and is another reason why consultation is entirely appropriate.

Thank you.

It seems to me that there are potentially two relevant time periods. The one time period is the period from the making of a false representation or false statement, and the period of time after which a person remains potentially liable to criminal proceedings. And I think that Alex has dealt with that point very thoroughly, and I would just adopt everything that Alex has just said. If your question, though, was aimed at the issue as to what is the time period that is meant by 'before or during' a Senedd Cymru election, then that ought to be specified, if it's not already. What do I mean by that? Well, we took the words, 'before or during' a Senedd Cymru election from, I think, the—. Where did we get that from? We got that from your current clause 22(3), where you're proposing inserting into the Government of Wales Act, section 13, a new subsection (2A), which says that

'Welsh Ministers must make provision...under subsection (1)(a), prohibiting the making or publishing of false or misleading statements of fact before or during an election'.

Now, I had assumed, therefore, that there is already legislation that makes it clear what is the period 'before or during' an election. I may be wrong about that, but, again, just from my general knowledge, we all know about concepts of purdah where, for example, when we're approaching the period of an election, Government work ceases because everybody then turns their attention to campaigning. You will all know better than I—and I won't include Alexander in that, because he may know the answer—. But I have always assumed that there is already legislation that sets out, identifies, the start of the period before an election to the Senedd and what is the period during an election. There must be. If I'm wrong about that—. Certainly, if that's right, then you don't need to do anything further unless if you wanted to. For absolute clarity's sake, you could simply make it clear that 'before or during' a Senedd Cymru election refers to the period identified by whatever other legislative provision there is that makes that clear. If that's not right, if there isn't any current clear legal position as to the start of the election period, as it were, then that ought to be defined. That ought to be spelled out.

Thank you. There is. It's dissolution, so I'm guessing that that is in statute. 

Yes. You might want to think about changing the wording so that you refer to 'the dissolution', from the point of dissolution onwards, or something of that nature. On the other hand, you may be thinking of an even broader offence that is not confined to that period but is just general. So, from any point of time in the political environment, if you make statements that have the ultimate intention to affect what will be, at some point in the future, an election, if it's false, you may want to consider prohibiting that. But it would seem to me that confining it as you have done in the draft new sub-clause (2A) to section 13 to the period before or during a Senedd Cymru election is really the important period, because that's the key point where everybody's mind is focused on the election—not only candidates, not only the people working for them, not only those campaigning for them, but also, importantly, the electorate as well. So, that's when there is a real risk, I imagine you've identified, of elections being affected by people making false statements. That's the real danger time, isn't it?

Thank you.

And I think that was—

Just—. I'm so sorry. I just—

Just a quick one, and perhaps you can answer this as well, Alexander. When Jonathan talked about the period of time broader, that would open up the competency question as to whether the Welsh Government has competency over things that are beyond the election, basically.

I think the competency question is a good one, and we haven't reflected on that to a very significant degree. We've reflected upon what we've been asked to consider and provided a solution, but that's certainly something that needs more reflection, as to whether it remains within the remit of section 13 of the Government of Wales Act.

But, just dealing with the period, really, it's from the time of the notice of the election, one anticipates, until the time that the polls close on election day. That would seem to be the requisite period, which keeps any prospective offence potentially within the remit of the primary legislation, and also, in terms of scope, it narrows down the scope for complaint. And then, if you wanted a final cut-off date, five years thereafter, as a safety net, so we can all move on and concentrate on the following election, as it were.

Thank you. Buffy, question 8, I think, hasn't been quite answered.

So, that's the question about human rights, isn't it?

No, no.

Sorry. So sorry. 

We don't get our questions—

I think it has been answered, but I will ask it again, just for some clarity. I think that and question 10. So, what are your views on if a prohibition on false or misleading statements should also apply to referendum campaigns and to campaigns related to a recall poll?

As these both will come under Welsh Government competencies, effectively.

Yes.

Should we expand the legislation to cover those as well?

Well, firstly, as I understood the proposal to introduce recall polls, they would fall within the scope of a Senedd Cymru election, would they not?

Right. Well, that's a good question. We are not quite clear on that yet.

Right. Well, I think the answer to that is: that's a political decision that you have to take a view on. Do I have any particular views? I don't think I do, as to whether you should extend this to cover false statements made during the course of referendum campaigns. I can understand why the question is asked, and I can understand certainly an argument that could be made to do that, but that doesn't seem to me to touch upon my specialism as a criminal practitioner, and that does seem to me to be a sort of political decision, really.

I would agree with that, although I do think, as a matter of logical approach, if you have a mechanism that requires, then, a recall and, effectively, triggers an election, then it would seem logical to have a similar set of rules in relation to that scenario, and likewise referenda, in the same way that you would as to whom then governs you. The consequences are, ultimately, the same, albeit a gateway from one to the next, and so, as a matter of logic, it would seem sensible to extend. But, ultimately, I agree with Jonathan—that's a political decision.

Thank you. We've got we've gone over time, so I'm conscious of questions, but we've got one question which, I think, is question 12. Sam, you're 12.

Yes. Thanks, Chair, and, gentlemen, thanks for all your time this afternoon, and also I just want to commend you for entertaining this Part 3 of this Bill as it is before you, and also for attempting to put something together that attempts to achieve the thing that this thing tries to do.

I keep coming back to the practical enforceability of what is in front of us at the moment. I'm still struggling to find an example of something that could be prosecuted in what's currently laid out in the Bill, so I was just wondering what your views are on the likely enforceability of a prohibition of false or misleading statements before or during an election. And then, perhaps, also, from your own experience, a view on the speed at which complaints could be investigated and prosecuted.

My thoughts are these: what's important is to have a benchmark, and so evidential considerations, of course, are important, and one appreciates it is very difficult, in some instances almost impossible, perhaps, to hold to account, and that high bar of including dishonesty only adds to that hurdle. But what you have if you have this benchmark is a clear and unambiguous message sent out to those who seek to be representatives of the people that it is a very serious matter to mislead in the manner in which it has been suggested that people have been misled in referenda, for example. I'm thinking of buses with figures on the side of them. It's a matter for others to determine whether that was misleading or not. But one has a benchmark then.

But it is difficult. I agree with your analysis. The evidential considerations are difficult, the investigation phase. But they should be, should they not, because these are serious allegations, and in order to make them you need concrete evidence. So, I accept that criticism, it's an inevitability, but the point, I suppose, ultimately, is that you have a clear and unambiguous benchmark as to the serious nature of offending, should Jonathan's example of the politician who writes in the diary, 'Everything I say is a lie' and then goes out and says it occur. It's unlikely, perhaps, ever to come to light, but it might. But you have an absolute demonstration by the state that this sort of conduct is not tolerated and is extremely serious.

So, I agree there would be evidential difficulties, the period of time during which investigations could take place may be lengthy, but that doesn't mean to say that the state should not hold these matters in extremely high regard and demonstrate that through, perhaps, the use of the criminal law.

I'll just come back on that quickly before, perhaps, Jonathan wants to come in. Do you think the only way to demonstrate that these issues are held in very high regard would be to introduce laws such as this?

No, there are other ways, but if you want to demonstrate the seriousness—. Goodness me, we prosecuted people for holding parties during the COVID periods. If you want to demonstrate seriousness and society's disgust at this proposed conduct, then is that not what the criminal law is for? So, there are other ways, but, of course, it's how effective they would be. Ultimately, what is the criminal law for if not holding to account those who make false or misleading statements dishonestly in order to obtain power? We draw that analogy with fraud, which seems to be a very effective one and seems to have significant merit. So, yes, there would be significant evidential difficulties, yes it is a high benchmark we propose, but that does not mean to say it should not be introduced and would not be then a benchmark against which politicians would have to reflect upon their words and statements.

I would adopt and endorse everything that Alex just said there. I'd only add just two points, I think. One is this: I wouldn't encourage the view that the success or otherwise of a criminal offence is measured by the number of successful prosecutions. It's a trap that is perhaps easy to fall into, but it's misleading and it misunderstands the role that's properly played by the criminal law. Indeed, I think there is a good argument that you should measure the success of a criminal offence by the absence of any successful prosecutions, actually. So, there's that point that I make.

The second point would be this: in addition to Alex's point about how a criminal offence of dishonesty being established on the statute book in Wales would demonstrate how seriously Wales takes protection of its democracy and how seriously it would regard any dishonest attempt to interfere with our democracy, it would also make clear that there is no impunity gap that allows politicians to, in some way, be held to a lesser standard of account than other people for whom their business is in terms of financial gain—not political gain, but financial gain. Everyone else is held in that world to the same standard of facing a prohibition against using false or misleading statements with intent to gain.

There is then a third consequence, I think, which is this: if Wales introduced a criminal offence of making a false representation with intent to affect an election that was bounded properly by the requirement for dishonesty and intention, knowledge that the statement is false or might be false, it may be that other politicians might become less inclined to allege that their opponents are indeed making false representations. I'm saying this as a member of the public now, not as a specialist. I think it is recognised that there has been something of a decline in the standards of public debate and discourse. There are many reasons for that, not least the pervasion of social media, which has encouraged a much more febrile and aggressive approach.

At the moment, one person can allege that their political opponent is telling lies or telling untruths, knowing that, in fact, there is no prohibition on it. And if there was a prohibition, the answer to that would be, 'Well, prove it; take some action'. So, I think that there is some merit in introducing it, not only to demonstrate to potential offenders that there is no impunity, but it might also have an effect on others that they become less inclined to make such allegations if they know that actually there is no impunity, there is actually a criminal offence, it is a criminal offence to do that, and if there's evidence that an opponent is being dishonest, is making false or misleading statements of fact in order to try and affect the election, well, investigate it, prove it, take it to court. 

We've well passed the time we were supposed to conclude, but I think you've provided us with some very interesting and compelling evidence this afternoon in relation to the Bill we are scrutinising. So, thank you very much, both, for that, and thank you also for the submission you've made, which we will carefully consider.

Just for your information, you've been before a committee before, so you know that you'll receive a transcript of the session this afternoon, and if there are any factual inaccuracies in that transcript, please let the team know as soon as possible. Once again, thank you for your time, and thank you for your contribution this afternoon, it's been much appreciated.

Thank you very much.

Thank you. Can I thank you for the invitation? I appreciate it. 

For Members in the committee, as we agreed under item 4, we will now move into private session for item 8 and the remainder of the day.