Cynulliad Cenedlaethol Cymru

Welcome to this morning’s meeting of the Standards of Conduct Committee. Can I welcome members of the committee and also observer Members? Just to clarify at the outset, the meeting is bilingual and interpretation is available. We have apologies from James Evans and Jane Dodds. At this point, do Members have any declarations of registrable interests they wish to declare? No. Diolch. 

I will move on to item 2, which is our first session this morning in the inquiry into individual Member accountability. It's the seventeenth evidence session on this that we have taken. Can I welcome all of our witnesses this morning? I'll just ask you, if you don't mind, to briefly introduce yourselves and your organisations before we open to some questions from Members. Azzurra, I'll go with you first. 

Good morning, all. Thank you for having me here today. My name is Azzurra Moores, and I am the policy lead at Full Fact, the UK's independent fact-checking organisation. 

Tom. I'm just going in the order you're in on my screen. 

Bore da. I'm Tom Brake, the director of Unlock Democracy. I was formerly a Liberal Democrat Member of Parliament for over 20 years, and when I was a Government Minister I was one of the Ministers responsible for bringing in the Recall of MPs Act 2015. Thank you. 

And then I've got Juliet. 

Good morning, everyone. Thank you so much for having us. I just wanted to quickly say that our thoughts are definitely with you and your constituents after the storm at the weekend and the ongoing flood warnings. My name is Juliet Swann. I'm the nations and regions programme manager for Transparency International UK. I'm based in Edinburgh. I look after our work outside of Westminster with a focus on Wales and Scotland. Just to briefly introduce TI, TI UK is the UK chapter of the global anti-corruption movement, Transparency International, which has over 100 chapters on every continent. In the UK, we work to expose corruption risks and failures of integrity and offer pragmatic solutions to secure effective reform. 

And then Rose, as well. Bore da. 

Good morning, everyone. I'm Rose Whiffen. I'm a researcher at Transparency International UK, and I work specifically on political integrity. 

Thank you, and can I thank you all for joining us this morning? Can I just start by perhaps asking you if you're able to share any of your views on measures that can be implemented to improve trust in politics and whether the creation of a new criminal offence or civil process on deception would address the issue of public trust? 

Shall I go first?  

Great. Thank you, Juliet. 

A large part of the problem of declining trust is that people think the system is rigged in favour of some over others, and that rules aren't applied equally and that rule breakers aren't held to account. At TI UK, whilst we absolutely think that deception is a problem in politics and declining trust is linked to those failures of integrity, we think that strengthening accountability mechanisms alongside improving the transparency of how decisions are made and how politicians are held to account are the most important responses to this. We do think if the problem the Senedd is seeking to address is the public think politicians are all liars, then it's really important that the solution will change that perception. So I think something we would really stress is that you deliberate on what is it that you want to see change and which proposals might meet that change. As I said, we want reforms to be pragmatic and offer lasting improvement, and so we just think that criminalising lying risks introducing a new accountability mechanism that the public still wouldn't see working. I think Rose can maybe add some other thoughts about the transparency of the current process and other reforms that we think would benefit accountability. 

Thanks, Juliet. I'll go to Rose and then I'll bring in our other witnesses after that. 

Thanks, Hannah and Juliet. In terms of the processes that we believe could be improved, TI UK has some long-standing recommendations to improve transparency and accountability that we believe would enhance public trust in politics. These include things like lobbying transparency, caps on political donations and spending, improved reporting of gifts and hospitality, better regulation of the revolving door, and also improving ministerial accountability. There's already been an improvement in Westminster on this recently, which was giving the independent adviser powers to initiate investigations, which we hope to see in the Senedd soon. We also believe in reforms to strengthen accountability mechanisms, like the standards regime. Out of these proposals, the opportunity that this committee has is more in that final area. As we've outlined in our response to the inquiry, whilst we don't necessarily think that a justiciable offence of deception would assist with public trust, we do think there are other ways that the standards regime at the Senedd could be strengthened and that could go some way to improving the levels of accountability, the operation of the system and the public confidence in the mechanisms.

A few ideas that we had would be bringing lay members into the standards committee when it's considering complaints against Members—this would hopefully introduce more independence into the system—and looking at ways of making any Senedd vote on sanctions less prone to go down party lines, which, again, we think would hopefully improve the process and alleviate questions of politicisation of the process. Also, we had ideas about improving transparency. As Juliet mentioned, we do think the transparency of the investigation process is good in that the reports are published online by the commissioner, but there could be an issue of the public seeing where a breach has potentially occurred but not necessarily seeing the outcome of that investigation clearly enough. Yes, the reports are published, but is there a way that we can show that an investigation has occurred and that a sanction has been given? Potentially one way to do that is, on Members' pages, showing where an investigation has happened, and the outcome of that, just to give more transparency and to showcase that an investigation has happened. Additionally, if one of the purposes of this reform is to make sanctions harsher for lying in politics, then the Senedd already has the mechanisms to do this, and that would be through bolstering the sanctions that the commissioner and the committee mete out. 

Thanks. I'm sure there'll be further questions on some of those points from committee members. Tom, do you want to come in next?

Thank you, Hannah. First of all, there's no doubt that trust in politics and politicians in recent years has been on a downward trend. In Unlock Democracy, we would argue that there a variety of reasons for this. We've seen the expenses scandal, we've seen a tendency of politicians to overpromise and underdeliver, we've seen a series of sexual misdemeanours in the Westminster Parliament, we've seen our former Prime Minister Boris Johnson, over partygate, lying in Parliament, and most recently we've seen freebiegate in relation to freebies under the present Government. So, there are a range of reasons why trust in politicians is at the low level that it is. 

In terms of solutions, at Unlock Democracy, we are going to be publishing, hopefully this week, what we've called a democratic integrity White Paper. Bearing in mind some of the evidence that was given last week, maybe we should refrain from calling it a White Paper, but what the paper does is sets out 54 recommendations of ways in which we think trust in politics could be restored. Some examples of those would be, for instance, setting a £200 cap on any freebie that any politician can accept, and anything above that they have to decline. It would include, for instance, drawing up a job description for Members of Parliament.

When we sought to press the standards commissioner in Westminster on Nadine Dorries's apparent unwillingness to perform her role as a Member of Parliament, the parliamentary commissioner's response was that there isn't a job description against which she can be held to account. So we are suggesting that maybe an alternative would be to produce a job description, and then the code of conduct, and in Westminster the Recall of MPs Act 2015, would then reflect that in terms of a Member of Parliament not following their job description and not doing what they were expected. So there are various solutions there that we would propose.

We do have concerns about the idea of creating a criminal or civil offence of deception, with some of the problems that might be associated with that, particularly around, for instance, the risk of vexatious complaints, something that I think we will probably return to later. And we also have concerns that that sort of legislation might make it quite hard for, for instance, the candidates, particularly candidates from perhaps the smaller parties, or independent candidates who don't have access to legal advice. It might actually deter them from standing as candidates in elections to the Senedd in the first place. So those are some of the concerns that we have.

Therefore, we think that there is a strong place for the Senedd to look at the existing code of conduct and look at the role the current standards commissioner plays. To echo something that Rose said earlier, if, for instance, there are concerns about Senedd Members marking their own homework, then I have some personal experience when I was on the House of Commons Commission of the role of lay people on the House of Commons Commission. It was very clear that they brought a completely different perspective and on occasions stopped, perhaps, the groupthink that politicians of all parties on the House of Commons Commission adopted in some cases. That may be a model, for instance, that the Senedd might want to consider in relation to the standards committee in the Senedd. But those are just some proposals. Thank you.

Thanks. Can I just clarify when that paper is planning on being published?

We're rather dependent on one of the national newspapers deciding when it wants to do that, so it may be that we will give up waiting and publish it. But we expect that within this week we will do that, and of course, we will share that with you.

Thank you. And Azzurra, I'll go to you last but not least for those opening comments. 

Thank you very much. I agree with a lot of what my colleagues already said, so I won't repeat that too much. At Full Fact, the UK's independent fact-checking organisation, we really believe that trust is going to be restored by politicians taking responsibility for what they say and how they say it. We feel very strongly that trust needs to be earned and not just legislated for. As an example to this particular inquiry, we think that Welsh citizens will be better served by seeing their political system adapt more robustly to hold politicians to account for the truth and accuracy of their statements. My colleagues have already outlined some really interesting responses for how that might happen. We certainly agree with looking at how the standards committee could introduce lay members and be slightly strengthened in their powers.

Something I think Full Fact can add to this discussion is particularly about the accuracy of statements and how correction notices can be used in order to increase trust in politics. We're really sympathetic to proposals that the International Centre for Dispute Resolution put forward about introducing correction notices, but we don't think that this should be included within the criminal justice system. Actually, we're quite concerned that co-opting the criminal justice system to determine the truth and the accuracy of statements would be disproportionate and potentially dangerous, partly because we don't think it will work in practice. We really are concerned about the idea that introducing a criminal offence will result in political point-scoring. You've seen it a lot in previous examples where Members have been under investigation by the standards commissioner, and people have used that as an example to essentially already determine guilt in an investigation. We think by adding a level of criminality, we're really concerned that this will do more damage than good.

We'd like to see the standards commissioner, and particularly this inquiry, explore how can correction notices be used within Parliament more robustly, more widely, in order to really give Members the opportunity to take control of what they say and to really take responsibility of how they say it. So, I’m sure we'll explore that a little bit more in today's session, but, just as an opening remark, those are our initial thoughts. 

Thank you very much. Lee. 

Thank you. Just on Azzurra's last point there about the partisan misuse of the process, I'm not sure you could point to the Welsh system and say in the way we use our standards process that there's any evidence of partisan mischief, as an aside.

My main question was to all three, really, because each of you acknowledge that trust in politics has declined, and you've each pointed to processes that have been developed to address that. That hasn't arrested the decline in politics that I've seen from any evidential basis. So, what makes you so confident that continually trying to tweak internal systems is the right way to respond to this growing problem, because you all seem to present technocratic approaches of tweaks to the current system, and yet I think you can strongly argue that that is simply repeating an approach that isn't working?

Tom. 

Well, I suppose, first of all, to draw parallels to the Westminster system, yes, that system is very slow, but, eventually, the action the Committee of Privileges took in terms of presenting a report to the former Prime Minister before they were due to publish it, in which they were clearly going to sanction him very heavily, and led to him leaving Parliament, did eventually achieve a result. I think, in the present system, there are ways in which it does work and I think, clearly, the same is true for the standards committee in the Senedd. And I think we would like that to be looked at in greater depth to find ways of making that work more effectively. I don't know whether those attempts have been made, but, certainly, looking at the overarching principles that Members of the Senedd have to comply with, and looking at rules 1, 2, 3 and 4 in particular, but there are a number of other rules, they are quite clear in saying that Members of the Senedd are now allowed to lie. So, surely there's a way in which the standards commissioner, the standards committee and Members of the Senedd generally can ensure that those rules are applied effectively. We think—and this is certainly something that we're arguing in the White Paper I mentioned earlier—that setting out very clearly, whether it's Members in Westminster or Members of the Senedd, what the sanctions are for a range of misdemeanours and making those public are things that we think would have an impact and would help reinforce the existing system. 

Now, clearly, if that didn't work I would understand why the Senedd might then look at alternatives, but even before going for, perhaps, a new offence, you'll have heard from the witnesses last week a number of ways in which, perhaps, existing legislation, whether it's the Representation of the People Act 1983 in relation to candidates or other legislation as it affects misconduct in public office as it affects elected officials, might also be routes that you might want to consider. Thank you.

Can I just jump back in because the evidence that I've seen is that trust has dropped, as you said, since the Westminster expenses scandal? Again, it's a scandal that hasn't touched the Senedd, so judging us on similar grounds is not always right. So, all the things you've mentioned haven't reversed that. All those insider system changes you've suggested and tweaks to the standards process, none of that has reversed that, and yet all of you are putting your faith in changes to the standards process, particular with the examples of Westminster. And I'm just not sure from your evidence that you've got a strong argument to say that that's likely to be effective.

Tom, do you wish to respond that before I bring in Rose and Juliet, who have indicated?  

I'll just come back and say I would argue that perhaps the standards commissioner and the standards committee in the Senedd more generally haven't looked at reinforcing those measures in a way to make them more effective than they currently are. And it may be that some of the rulings, for instance, in relation to perhaps Members who have re-tweeted certain things where they have been found to be in breach but haven't actually been sanctioned, maybe that's an area where perhaps more firm action could be taken in the future. Thank you.

I'll go to Rose, Juliet and then Azzurra, and we'll take it from there. Thank you.

Thank you. I think I would say, simply, that this measure introduces a lot of risks to the system, which the other witnesses have outlined, and I think it begs the question: why not explore these other options first before embarking on a proposal that does carry so many risks? I understand you're saying these are tweaks, but if you look at them as a total, it represents a package of reform that would hopefully have more of a significant difference, rather than just one single tweak, if you take it as a package of reform.

Thanks. Juliet.

Yes. Unsurprisingly, I agree with Rose. We're not just talking about improvements that could be made to the standards committee; we're talking about other areas as well. And, equally, I just do have concerns about the practicality of outsourcing to the courts and whether that really would add value for the public. I'm not convinced that it would improve the transparency of the process. I'm also—as I touched on at the outset—concerned that, by introducing a new accountability mechanism for the public that then doesn't work in quite the way they think it will, you just risk actually causing a decline in trust rather than improving it. And my final point is that I think a lot of what's happened to hasten the decline of trust outside of actual political activity is this massive, complex ecosystem of disinformation and misinformation that we live in now, and, again, I would implore you to think about that wider ecosystem as well. I guess I've been referring to it in internal chats as though it just feels a little bit like whack-a-mole on lies, rather than trying to actually really improve the whole system. But I am really sympathetic that, you know, things don't seem to be improving, and I think we do need to work together and make a concerted effort to really shore up those institutions so that they are robust in the face of distrust, declining trust and misinformation.

Chair, just a very quick follow-up there to Juliet, because I'm not quite sure—she seems to be arguing on the one hand that nobody would notice this and people wouldn't see it working, she said, but also simultaneously arguing it might further erode trust. I'm not sure how both of those things can be true.

What I'm trying to get at is that if you introduce a new system and you say to the public, 'You think all politicians are liars, so we've introduced this new system where you can accuse them of a lie, and if they are a liar, they either have to withdraw it or they will be punished in some way', and I think my problem is, especially if you look at the consultation responses that you receive, that the things that the public perceive to be lies probably wouldn't actually be classified as such in the proposed systems that you've been talking about over the past few months. So, I worry that, because they wouldn't see it working, they would see complaints coming in, but they would either be dismissed as not a lie or they wouldn't go—. I mean, I have other comments on how it could be abused as well, which is a slightly different thing, and I think it's just all of these layers of—. Sorry—I think I've explained myself. I hope I've explained myself.

Thank you. Azzurra, did you want to come in on that point? I've got a couple of Members who've indicated too—I've seen them.

Thank you. All I would say in response to that, because some colleagues have already outlined some initial thoughts, is we know that trust in politics is increased when transparency is increased in institutions, and I think what some of our proposals have outlined is an increase in transparency in the system. Now, that's not to say that the Westminster system is currently perfect, and there is a lot that we are also trying to increase on a transparency front there as well. But when we know that's something that works, when we know that the more transparent the system, the more people can see what their politicians are doing increases trust in politics, we feel as though that is the right place to start. It's an easier answer, it's a quicker solution, it's a cheaper solution, and it would allow us to really put the trust back into our politicians and say, 'We want you to take the responsibility for what you're saying'. So, certainly, a lot of the things we've outlined actually haven't happened in Westminster yet. So, when I talk later about the correction notices, it isn't something we've seen in Westminster; only recently Members of Parliament in Westminster are able to correct the record. This isn't a problem that you have in the Senedd. But to allow more transparency within your system feels to us the way in which you could start restoring trust and, perhaps, look at these proposals once you know for certain that that isn't working. 

Thank you. I've got Mick, who indicated first, and then I'll go to Peredur.

Just one point, because it's an area that concerns me deeply, particularly within the environment of parliamentary privilege, you mentioned earlier your concern about what would work and also the risk of vexatious complaints actually being counterproductive and actually creating the exact opposite effect. Could you expand a bit on your thoughts on that, please?

We'll go to Tom first. Thank you.

First of all, in relation to parliamentary privilege, I do have those concerns. Obviously, as a former Member of Parliament, I think that that's a very important aspect of being a Member of Parliament, including in the Senedd. And I think the associated issue or concern that I have is that, if the courts are going to be, in effect, adjudicating on statements of fact, which I suspect many politicians will think are statements of opinion, and coming down on one side or another, and then if you have a correction notice model, for instance, requiring politicians to retract statements, then I'm absolutely certain that there will be certain politicians who will use this to their advantage, in terms of referring to political interference by judges. And I'm afraid that I feel that there's a real risk, as to what we saw in relation to the 'Enemies of the public' headlines in the Daily Mail that happened when the High Court ruled that the former Prime Minister couldn't trigger article 50 himself but that Parliament was required to do it, that we might see many more headlines of that nature by politicians suggesting that the courts were interfering in their freedom of speech.

And in relation to vexatious complaints, I know there are many experienced political campaigners on this call, and I've got 40 years of political campaign experience, and I am quite confident that, in a Senedd election, or if this were to apply in Westminster, there would be a number of constituents who will seek to use said legislation during the course of an election campaign to try to derail the campaigns of other candidates. And unless the definition of 'deception' is one that is quite tightly drawn, there are real risks of that. I'll just give you a couple of examples. We had a conversation last week with Samuel Fowles, the barrister for the Institute for Constitutional and Democratic Research project, and I asked him whether he thought that a leaflet that I put out that explained that waiting times were at record highs under Theresa May's Government, and another leaflet that claimed that the Liberal Democrats had the best ever local election results, whether those are things that he thought could be subject to a correction notice. And his answer was 'yes.' He didn't deem that someone referring those two phrases to a court would be deemed to be vexatious. He believed, or stated, that he thought that they would be statements of fact that a judge might think were worthy of being challenged. So, I'm not only concerned about vexatious complaints, potentially, under some of the proposals that have been put forward in evidence to you, but I'm also concerned about some that would appear to be legitimate complaints about statements that I suspect every single politician on this call has published in one or other of their leaflets in any election that they have stood in. Thank you.

Juliet.

I guess that this is maybe an appropriate time for me to talk to you about SLAPPs—[Inaudible.]—why we call them SLAPPs, because strategic litigation against public participation is a real tongue twister. I think one of the things that we envision might be an avenue for abuse is akin to a SLAPP. So, the threat of legal action as comes about through SLAPPs is a tool open to abuse by those with deep pockets who wish to silence discussion for their own benefit. Those who seek to prevent people speaking truth to power basically use their financial resources to quiet challengers. Now, these SLAPP suits have little chance of success, but that's not really the point. The point is to send letters threatening libel action and threats for huge damages, which often block publication, and, if they don't block publication, the next stage is to further turn the screw by dragging out pre-trial proceedings.

Now, I would make this comparison to SLAPPs because they are a way that the wealthy and the powerful can use the legal system to stifle freedom of speech, and I really think that there is a risk that creating an offence of political lying would create a situation where you could see lawyers being instructed to demand a politician retract a statement under the threat of it being challenged as a lie. And the legitimacy of the case to answer isn't the issue; it's the use of the threat by someone who is prepared to spend time and money taking the case. The politician in question would then have to determine if they were prepared to risk the case going forward or simply retract the statement, and the legal action is basically a way to intimidate, regardless of the validity of the case, because the accuser isn't afraid to throw the money at the legal action, regardless of success or failure; they just want you to be scared enough to shut up, and I think that could be a real problem.

I also am really interested in—and I've been thinking about this a lot, and I don't think I have necessarily the best way to describe it, but—the way that people double down on lies and say, 'Well, you're accusing me of lying; you're taking away my freedom of speech.' And I can just see that feeding into the disinformation, the misinformation, system that I referred to, and somehow almost leaning towards autocracy, rather than leaning away from it. As I say, I haven't quite parsed that completely, but I wanted to share that with you as well as a thought that I've had.

Okay, thank you.

Thanks. I've got Peredur who's indicated, and then I'll bring in Adam after that.

Diolch, Cadeirydd, and thanks for coming this morning. Following on from Juliet and Tom—and Azzurra, actually—talking there about lying and deception, how would you go about defining that? Because, obviously, Tom, you mentioned that, depending on the definition, it could cause issues, but could you maybe give some thoughts about how you would go about defining it?

Azzurra.

Thank you. I can give a fair bit of background as to how Full Fact defines deception. So, as a fact-checking organisation, this is something we are doing day in, day out in order to understand whether or not what someone is saying is true or false, and we do this particularly in a political context in Westminster. We also do it a lot online as well, on combating misinformation, but that's less relevant to this inquiry. And I would say our work is really defined in looking at evidence, and sometimes opinion circumvents the evidence, but we look at facts, we look at detail, we look at the research behind someone's statement, and we call things out when they are what we believe to be right or wrong.

But I think something that I have quite a strong concern about with this proposal is the idea of deliberate deception, and I think there is a really, really delicate boundary here on defining 'intent', and I think that, really, defining 'intent' could do a lot to worsen trust in politics than to increase trust in politics. When you are calling someone out and saying they are deliberately deceiving someone, I think that would do some quite serious harm. But defining truth and defining a falsity is a really tricky thing. As a fact-checking organisation, we know that we need quite a large team of fact checkers. We have specialists who understand certain types of data, who are specialists in crime statistics or health statistics, and I think we hold some concerns about whether or not the courts might have this expertise in order to do that, and how quickly they might be able to do that.

So, how to define a fact really is just based on what the evidence is at hand, but also it's about working with the individual and understanding what they meant by what they were trying to say. So, our process works as, once we have looked into something, we go back to the individual who made that claim and try and understand what they were trying to say, what was their intention. And in some instances—and, actually, I shall argue in quite a few instances—it wasn't a situation where they had deliberately miscalculated something, or they had deliberately misjudged something; they had been given the wrong briefing or they had misunderstood the statistics, and I think, actually, there's a lot of human error involved in this, which is why, at Full Fact, we issue corrections and we ask someone to correct the record, and I think that's something that the Senedd should quite strongly consider, because, actually, it's not always an act of deliberate deception; sometimes it is just an inaccuracy that needs to be corrected.

I think it was Tom and then Juliet.

Thank you. So, in relation to a possible definition, there is one in the Fraud Act 2006 that might be appropriate, but, as per the examples that I gave earlier of the lines that I have used in leaflets, I hope that any definition would not identify those two statements as being deception. The argument that was put to me last week in a conversation with Samuel Fowles is that, because I had failed in those leaflets to specify, for instance, the time frames over which I was claiming that waiting times were at record highs, that could lead me to be seeking to deceive the public. Well, clearly, that wasn't my intention.

Another example that I can give where, again, I think it's important that a definition is really strict or stringent, is, in my first election campaign, I put out a leaflet that said that my opponent, the then sitting Member of Parliament, lived in Brighton. The reason we put this out was because someone had gone to a meeting that he was speaking at and asked him whether he travelled regularly from Brighton to Westminster. He'd answered 'yes', and we thought that he lived in Brighton and a leaflet went out saying he lived in Brighton. I then got a solicitors' letter that required me, rightly, to retract it, because he didn't; he lived in Victoria. So, on my part, that wasn't a deliberate attempt to deceive, that was something that was accidental, and, had I known he lived in Victoria, I would certainly have said that instead, because the point was he didn't live in the constituency. So, I think whichever definition that you choose has to be very carefully picked, because, otherwise, I think there will be severe consequences for candidates and, potentially, Senedd Members.

Just on the question of candidates, if this gets into a legal battle, all of you who are careful with your election expenses, will the legal cost of any battle around any appeal end up on your election expenses? Because, if it does, I suspect there are going to be a large number of candidates who are either going to break the rules in terms of how much they've spent on their local campaign, or they're going to have to curtail their campaigning quite heavily to avoid breaching the rules on how much they can spend on their elections. Thank you.

Chair, could I quickly come in on that?

Very, very briefly, Lee.

I think there's a pattern here of people trying to fight their battles on our turf, really, because the examples that Tom Brake was giving there were not really ones that apply to the proposals that the Senedd was considering most recently, which gave way to this inquiry. Because, under those proposals, there would be an opportunity, once the potential deception had been drawn to the attention of the person, to withdraw that. There were several safety valves built in, that they wouldn't be applicable to trivial matters, they would be on serious matters, where there was wilful intention to mislead with statements that were known to be false or deceptive. So, I do think there's a danger here, because we're not looking at a specific set of proposals. And we saw this last week with the Criminal Bar Association—they were projecting all sorts of examples, when that's not actually what we're talking about.

Can I just come back to that? Clearly, it may be the case that the proposal that comes forward doesn't have the impact that I'm suggesting, but in any process, for instance, that involves a candidate in an election campaign that has an appeals process, for instance, that the candidate might want to seek legal advice on, they will be incurring legal costs, and if those legal costs have to be associated with their election expenses, then that is problematic.

Thanks. Juliet.

So, I think, on definition, for me, there are three areas of concern. Obviously, yes, it would definitely need to be defined very clearly, and I can see how that could happen, but I think it would need to be defined clearly in a way that understood how politics works. I found a quote, which was:

'Each side of a political divide has its own truth',

and I think we can probably all recognise that. I think, also, it would need to be something that the public really grasped and understood and didn't feel like it was muddied in a way that meant that they couldn't accuse people of lying, because, as I've said, I think that could be problematic.

But then, I think, thirdly, and this sort of pulls into something Azzurra mentioned, for me, there's something about defining the origin of the deception. Because where would ultimate responsibility lie? Does it lie with the political party, if it's something that they've issued for the candidates or the politicians to say? Does it lie with the civil service, if they've provided some briefings? Does it lie with political party staffers who are working in your offices and have provided you with a briefing or a draft of a speech? Does it apply to civil society organisations, if they've provided you with a briefing and then somebody accuses it of being a lie? I just think there could be a real blame culture if the speaker or the publisher who was being accused was not the generator of the lie, and a real chilling effect, where civil society and the like were unwilling to brief or provide evidence for fear that their statements, if repeated by politicians, could be labelled as lies. So, actually, interestingly, a proponent of introducing a justiciable offence of deception accused me of making mistakes in a blog I wrote representing our position, so I'm like, 'Well, where would that go?' I just think, for me, there's something underneath there and I just wouldn't want people who are, maybe, junior staffers in civil society organisations, or people who work for you in your offices, being really worried that stuff that they produce was going to lead to criminal proceedings or civil proceedings or some kind of justiciable proceeding.

Thanks, Juliet. I'll just ask, on a technical thing, if you can just try and indicate by putting your actual hand up, that would be helpful as well, because my understanding is that people are putting their virtual hands up, but, of course, it's making sure that people are unmuted on time. So, I will try my best to catch everybody, but I think it's just a technicality. I have written down and I know everybody who's indicated to come in, so I won't miss anybody. But, before I go back to Peredur, Juliet, can I just ask about the autonomy of parliament principle, which was upheld by the recent Paterson decision by the European Court of Human Rights? Do you have any reflections on that? And then, Peredur, I'll bring you straight back in, then.

Yes. I think I mentioned this in our—. Well, I know I mentioned this in our submission. I think, for me, there's definitely, as a student of law and politics, a separation of powers argument. And I think Rose can speak to this more as well, about some of the other institutions that have said how important this is. And yes, the recent ECHR judgment, so Owen Paterson v. the United Kingdom, one of the things that they said, when they were saying that it wasn't justiciable through the ECHR, was that Parliament should be responsible for policing itself. So, yes, I think Rose has some really good stuff to say on this, so perhaps Rose could—

Rose.

Yes. So, just to add, in Westminster and the Senedd, it's a hybrid system, which is often praised by the likes of the Organization for Security and Co-operation in Europe, because it's a system that has accountability that maintains parliamentary sovereignty whilst also granting a degree of independence, and, especially, the separation of functions of investigation and adjudication is praised. The Westminster Foundation for Democracy note that sometimes the downside, if you outsource to external regulators, is that this might actually discourage Members from taking responsibility for their own conduct, because they don't see it as having as much ownership.

Thank you. Peredur, do you have any further questions on that?

Just to follow on from what Rose and Juliet have just been saying, really, who should investigate? If there was an accusation made, who is best placed to investigate? Should it be the police? Should it be somebody else? Should it be the standards commissioner? How do you build that case? We heard last week and before about a capacity issue as well, so how does that build into some of that? So, I don't know if Rose has got some further thoughts on who would be best placed to do it, especially if it's self-regulating or if it's external. So, it goes to those questions, really.

I think Azzurra just put her hand up, and I could see Tom had indicated previously. So, Azzurra, I'll come to you first and then Tom.  

Thank you. We aren't particularly wedded on which parliamentary body investigates this. My initial instinct would be that it would likely be the commissioner for standards, partly because we think that what the commissioner would be able to do is, when looking at the code of conduct, they would be able to look at it in a holistic way, so, of course, looking at a breach of honesty, but also a breach of other values, so transparency, for example: have they been transparent about what they were saying, have they shown leadership? I think some of those things for us are quite important. As we've mentioned earlier in the statement, we don't think this is something that should be looked into by the courts. So, the police or any other body that is external to Parliament wouldn't be something we would want to see, but I'd be open to this inquiry exploring other mechanisms. So, if it isn't the standards commissioner, we'd be open to looking at and understanding who else you might think could have that power. Of course, there is a capacity problem. Investigating claims takes, as I said, a long time, and it is something that requires a lot of detail and understanding. So, whichever body takes on this responsibility would need to have increased powers and increased capacity, but we think that should come within Parliament, rather than external to it. 

Thanks. I've got Tom, then Rose, and then Peredur will come back, if there are any further questions, before handing to Adam. Tom.  

Just briefly, on the autonomy of Parliament, I think it is essential that Parliament retains its autonomy, and it would seem strange, if, at a point where, as I understand it, the Senedd may be given more powers of privilege, that, actually, the Senedd chooses, in relation to deception, to go in the opposite direction, so to speak. And obviously, as I've mentioned before, the problem is that, if the proposal is that the courts start policing statements of fact, which politicians would probably consider to be statements of opinion, then I think that starts to damage the courts. And one of the arguments put forward by others in support of using the courts is because they are respected. I am really concerned that if the courts start adjudicating on these decisions that respect will start to get lost, because they will be making decisions that some politicians are going to be arguing are highly political and are seeking to curtail their freedom of expression. 

In relation to who should take action, I agree with Azzurra that I think the starting point should be to try to work through the standards commissioner and the standards committee, making sure there is a clear menu of sanctions set out, so that everyone knows what they are and they are publicised, Members of the Senedd know what they are. And, as I said in an earlier contribution, if members of the public are worried that this is all about Members of the Senedd supporting their mates, albeit mates in other parties, then why not consider bringing lay people into the standards committee, so people can see there are outside, independent people who are contributing to the debates as well? Thank you.  

Thanks. Rose. 

Thank you. So, I echo the responses of Azzurra and Tom, so starting with the commissioner, and I think that a bonus of it being with the commissioner is that they will have the experience of looking into cases like this on a repeated basis, and you'll have consistency of judgment, because it will be a single person that will be investigating, whereas if it were individual judges there might be some inconsistency. Also, ways to improve could be that—. Historically, commissioners for standards do have a legalistic background, so, for example, Daniel Greenberg in the Westminster system is a barrister, but that could be more explicit in the appointments process, if that was something that was deemed to be of value, having that legalistic background. Additionally, if you wanted to improve the independence of the process, you could change the system so that the commissioner's reports can't be disregarded by the committee. I think that could be a way to strengthen the process as well.

Diolch, Cadeirydd. 

Peredur, any further questions? Tom, did you want to come back in on Rose's point there? 

Yes. I just wanted to add that I don't think any of the witnesses today are claiming that the standards commissioner, the standards committee, process is one that is perhaps as streamlined as it could be. So, we accept, I think, the point that action needs to be taken quickly, and there must be a way of reviewing how those processes work to ensure that a decision is taken swiftly. For instance, under the recall legislation, that is, again, perhaps not quite as accelerated as people would like, but there are cases where someone who has been found guilty of, I think, perjury, was out within six months, because, in the recall petition, her constituents didn't want her to continue in that role. So, the processes can, I think, be streamlined to deliver action more quickly than is currently the case. 

Adam.

Thank you. I'm really enjoying the conversation and look forward to having further conversations with you on your proposals for democratic reform. I just wanted to start with the issue of parliamentary autonomy, and whether there are some circumstances where external accountability for parliamentarians is valid. If I, as a Member of the Senedd, take a bribe to ask a question or give a speech, I can't use parliamentary privilege to prevent those parliamentary proceedings being used in evidence against me in a case brought under the Bribery Act 2010, whereas I could as an MP. It's a question, really, to Transparency International. This is your core business really, isn't it, anti-corruption. Which do you prefer, the Welsh system in terms of bribery and parliamentary privilege, which is limited, or the absolute privilege that currently pertains, even in cases of bribery, in the circumstance I described, at Westminster?

I don't know if either Juliet or Rose wants to pick up on that. Juliet.

It's a really interesting question, and I think the debate about extending privilege to the Senedd and Holyrood is something that I'm persuading my colleagues to take more of an interest in. I think your question, obviously, is really difficult. I would say that the initial investigation should still be with the standards commissioner, and then you would take it forward, depending on what the standards commissioner discovered. Rose, did you have anything additional, or Tom?

If I can offer maybe some help there, there were two amendments to parliamentary Bills while Tom and I were MPs at the same time, I think, to the Parliamentary Standards Act 2009, which was in response to the expenses scandal, and also a bribery Bill, which fell at the subsequent election. There were two specific amendments that explicitly removed article 9 of the Bill of Rights 1689 in terms of its application to bribery, but, unfortunately, they weren't passed, and so we're left with the position as I describe it. It would be interesting to look back; maybe you can write to the committee and see what Transparency International's position was at that stage.

The Vienna commission, as it's known, the European commission on democracy, have written a lot about this. There are trade-offs here, aren't there? There are trade-offs between the legitimate desire to protect parliamentarians from harassment, but, on the other hand, you don't want to create a position of inviolability either, and so what the commission has argued is that you have to have a balancing act between those two principles, and the idea of absolute privilege, really, is highly questionable. So, if you take that view, then there are always circumstances when parliamentary autonomy needs to be ceded for external investigation and external accountability.

Moving on, I was just wondering, following on from Lee Waters's point really, I'm just wondering if you all had a chance to look at the proposal that we did actually get passed at section 64 of the Bill, because it seems to me that that does actually, in terms of its definitions, in terms of the defences that it provides, it does actually meet many of your core objections that you've shared with us this morning and in the evidence. I'm just wondering: did you have a chance to look at that specific proposal in your evidence?

Juliet.

I think there are a couple of things. Yes, obviously, in your knowledge of very specific legislation at Westminster, you have me at a disadvantage, and I will revert to my colleagues and see if I can get information back to the committee on that. I do think—. Sorry, I forget—. On—. No, I've completely forgotten what I was going to say. Don't you hate it when that happens?

Maybe—

Can I bring Tom in, and Azzurra in, and then we'll come back to Juliet? 

Just before Tom comes in, maybe you could address these questions as well, because I know time is short now. I'm just wondering—. Tom and, I'm sure, everyone here will have come across the Public Authority (Accountability) Bill, often known as the draft Hillsborough law, and Government is committed to introducing the Hillsborough law. That has a clause within it that would make it a criminal offence for a public official to intentionally or recklessly mislead the general public or media. So, for civil servants and public servants, it's analogous to what we're discussing here. I'd be very interested if you could say do you support that provision within the Hillsborough law, or do you object to it on the same grounds that you're objecting to applying the same principle, effectively, to elected officials.

Tom.

Thank you, Hannah. First of all, in relation to your point, Adam, about inviolability, clearly none of us are proposing that lying by Members of the Senedd or candidates is not something that should be actionable, and we're suggesting, certainly, that, for Senedd Members, that should be done through the code of conduct and the standards commissioner. In relation to the offence of deception and the amendment at Stage 2, yes, it does provide some defences—so, for instance, the reference to a defence would be that the statement was an opinion. But my worry is that, as I mentioned, the conversation we had last week with the ICDR suggested that those statements that I had made in those leaflets wouldn't be considered statements of opinion, they'd be considered statements of fact. So, I don't know whether in your amendment you would consider them to be statements of fact or not, because I think that that would help me to understand whether those protections are there.

And in relation to Hillsborough, I do support that. And a criminal offence to intentionally mislead the media, again, I suppose, are we comparing like with like here when we're saying that, potentially, those statements I referred to in my leaflets, according to some reading of what's being proposed, would be potentially subject to or become a criminal offence? And I'm not sure that it is fair to compare those sorts of statements of fact, if that is how the ruling on them would come forward, to something that, in relation to Hillsborough and public officials holding back information, was critical to the understanding of a very large tragic incident.

Azzurra.

Thank you. In terms of the Hillsborough law, I haven't seen the most recently drafted text, but once I've seen that I'd be happy to follow up to the committee in writing with our thoughts. Adam, in terms of your question regarding some of the safeguards that were in the original proposal, I think there is a lot there that we would agree with. So, actually, from Full Fact’s perspective, not including opinion is quite important, so long as that is defined correctly. And also the idea of not including anything that you would see that wouldn't meet a trivial threshold. So, we really wouldn't want any sort of proposal to look at really trivial matters, because that's not actually helping the issue at hand and that certainly won't do anything to restore trust in politics.

I think our objection comes from the fact that it still looks at an outside body to regulate this and it still looks at the courts intervening with these matters. We think there is a simpler and easier solution within Parliament that could tackle the issue in the same way, just more effectively and more quickly. So, yes, there's a lot I think is really beneficial in the original proposal, in the ICDR's proposal—we just think those models could be taken into a parliamentary system.

I did remember what I was going to say. There are a couple of things here. One is that we do see the benefit of making the common-law offence of misconduct in public life a statutory offence around corruption, and I think that again relates to the seriousness of what would be occurring. And this is what I wanted to say, because it's about the intent: what does the lie want to happen? If the lie is because you are saying that you didn't receive a bribe to influence legislation, then that could be punishable through bribery offences. If the lie is to generate corruption, then that ought to be punishable through corruption offences. If the lie is fraud, then that can be punishable through the existing fraud offences.

I just worry that introducing a lower threshold for what is constituted as a lie just opens up the system for the public in a way that wouldn't meet their expectations. And also I just think it would be really hard to prosecute. But as Azzurra said, I totally agree we need to strengthen the existing systems, and some of the proposals from the ICDR—I agree with her—we could bring them into the system. I don't see anything wrong with correction notices, although Azzurra will tell you that sometimes nobody pays attention to them. So, there has to be some way of making sure that you actually do something. And I do also worry about correction notices and the doubling down aspect of that. 

Thanks. Adam, do you have any further questions before I bring Sam in? 

Lots, but I'll try and be brief. You mentioned, Tom, the prorogation case. Isn't that an example of why we need this law more generally? Because, in that case, quite extraordinarily, three senior Scottish judges found that the Prime Minister misled the Queen about the purpose of prorogation. And yet, there were no further personal political consequences for the Prime Minister in relation to that. The case that you've mentioned that went before the privileges committee, of course, was only as a result of a motion by the official opposition that wasn't voted on because, essentially, the Government knew it was going to lose. But there was no action in Parliament despite the fact that a senior court found that the Prime Minister had lied on a matter of extreme importance. Wouldn't he have been caught by the terms of this kind of offence if it had been on the statute book across the UK? 

Thank you. I'm not sure I can definitively answer that question of whether he would or would not have been caught, but I suppose the point I'm making about the article 50 case is that as a consequence of—. Well, I think that was an example where some were arguing that the courts had interfered inappropriately in parliamentary business—I don't necessarily agree with that—and made great capital out of that fact. And my worry is that if there's a series of cases triggered by legislation that allows people to take criminal civil cases around lying, that could also have that consequence in terms of the perception amongst some members of the public about the independence or otherwise of the courts. So, I think that's my concern. 

And in relation to the privileges committee case, again, I would argue that notwithstanding the series of events—and I accept that that process was a very long-winded one—the outcome eventually was that a Member of Parliament decided to leave Parliament because he was expecting a report to be published that was going to very heavily sanction him, and he felt at that point it was better to walk than to remain. 

Finally, Tom, you were tempting me into litigating the veracity or otherwise of election claims on Lib Dem election leaflets. I'm not going to go there, but—

We don't have time either, Adam. 

No; we'd be here all morning. No. I think that you raise an interesting point in relation to election campaigns, of course, because there is existing legislation, isn't there, that's already on the statute book that you were alluding to, since 1895. And by the way, I've gone back and read Hansard, and, at that time, there were many Members who were claiming that it would open the floodgates and it would lead to vexatious claims and would be misused for political purposes. That hasn't been the case. There tend to be limited cases, and isn't that because of the provisions in the Act, of course, now re-enacted as the Representation of the People Act 1983? So, there's the defence that you believed it to be true, for example, which is mirrored in section 64, but also there are other sections of the Act that allow the courts to reject frivolous or vexatious claims. Couldn't you actually replicate those protections, in using the same principle, that it's wrong, actually, to deliberately spread falsehoods, and apply it more generally, outside of the very narrow confines of the current section 106?

Well, that is possible, and certainly, again, other witnesses have suggested that might be an area that the Senedd might want to consider, in terms of applying that Act not just in the run-up to and during election campaigns, but in the aftermath, to Senedd Members. But I think the reason why there haven't been many cases coming forward is because, on the whole, candidates are reluctant to, in effect, defame their opponents in an election campaign. When I misrepresented the position of the sitting Member of Parliament, it was corrected immediately. I think there's a difference with that sort of thing, which candidates, I think, on the whole, tend to avoid, because they know there are consequences under the Act. But if the Act were to be amended to cover statements of fact/opinion, in the way that some are arguing, I think you would have a significantly greater number of cases brought under that amended Act.

A suitably termed and focused definition that avoided statements of opinion or belief could have, potentially, the similar deterrent effect that you described in the case of election campaigns.

I think that is certainly something that should be investigated, but I think, as other witnesses and I have made clear, our starting point is looking at the standards commissioner, the standards committee and the code of conduct, and trying to go down that route.

Juliet, would you like to come in now?

I won't reiterate the point about what the public think is a lie and what we define as a lie, and how that might actually be a problem in terms of the end result of improving trust. My understanding is, around section 106, that there's a lot of work that goes in from electoral management board-type operations and, indeed, the police as well, working with candidates to make sure that they understand the limitations of what they can and can't say. So, I would question whether there's resource available to extend that. And very quickly, while we're talking about candidates, we talk a lot about access to elected office and how we want to improve the diversity of candidates who are elected to office, and I worry that knowing that there was an expanded definition of what could or couldn't be taken to court would discourage some candidates from even seeking office in the first place.

Thanks, Juliet. Adam, I'm going to bring Sam in now, because I'm conscious we've only got five minutes or so left in our allocated time for this session. Sam, thank you for waiting.

That's quite all right. Thank you, Chair. This one should be quite easy for the four members, because you can either nod your head or shake your head in agreement or disagreement. Do you believe that an opportunity to correct the record should form part of any procedure? Yes. I can see nodding heads there. Azzurra.

Thank you. I mentioned this a little bit earlier on, so I don't want to continue mentioning the point, but I think correcting the record really should be the focal point of any conclusion of this inquiry, partly because, ultimately, what we are trying to do here is ensure that the public have good information, and that it helps them to make informed decisions. Whenever we're trying to talk about lying, we're not really talking about lying, we're talking about the public not having correct information. So, from Full Fact's perspective, that correction system could be formed quite easily within the standards committee, but I think that there are other ways that could be explored as well. Ultimately, it's about giving people the chance to amend what they say, correct what they say, add any additional context to what they say, and anything that happens here needs to be done in a way that is very visible, very transparent, cross-referenced as much as possible and really accessible for people. This is something that we already have in the Westminster system, but we also see it in the media as well. The media do have obligations to correct their articles when they've been found to include any inaccuracies. So, yes, we very much encourage that to be a quite singular and important part of any conclusion that comes from the committee. 

Thank you. Juliet, I saw you indicate there.

I think it's definitely worth investigating and worth considering. There is still an underlying concern as to whether people would accept the need to correct the record. I think that's something about how politicians actually interact with the system themselves and how they take responsibility for their statements. Again, that's probably reflected in what we've been trying to say this morning all together—that making it a stronger mechanism inside the system would mean that accountability and challenge from opposition parties and critical thinking on the part of the public would be a way of helping to stop, as Azzurra says, the misinformation that the public are getting hold of. But I can't help but think how often people double down on a lie or a mistruth, and I still worry about how any sort of system can cope with that. This is where I get really pessimistic about politicians, and I'm very sorry. 

Thank you. Just to build on that, in terms of the sanctions, what would your views be on sanctions for a new offence, or what mechanisms for deception would lead to, sanction-wise, be that disqualification, financial penalties, or a criminal sanction? I'm just wondering what your views are. I'm not sure who wants to kick off on that. 

I think there needs to be a very clearly set out menu of sanctions that the standards commissioner can publicise, so that people understand that the consequences of doing this are likely to be that. I think that if there was a means of tackling lying, and I think there should be, probably there does need to be a graduated scale in terms of who has that lie impacted, how much traction has it got, has it harmed people. So, I don't think that you would automatically disqualify a Senedd Member until the end of that term of Parliament because, yes, they had lied, but it was a small lie. But I think ultimately, as I mentioned at the very beginning, given that I was one of the Ministers responsible for introducing recall, the Senedd should try to find a means of giving the Senedd power to enforce recall. I know it's difficult because of the political system that you're adopting, but I think Transparency International have advocated the STV system that is used in Scotland for the Scottish local elections, when someone there is forced to stand down—that that might be a route. Certainly, the idea that someone subject to recall would then be replaced by someone of the same party I think is failing to allow voters to set out their views, because it's very clear in Westminster that recall has often led to a Member of Parliament of one party being replaced by another from another party.

Thank you, Tom. We are doing a separate inquiry on recall as well. I saw Rose indicate. 

I think that the severity of the punishment should vary according to the severity of the offence and also the number of infractions. To echo Tom's point, there should be a procedure for escalating from softer to harsher measures, and that should be very transparent. I also just wanted to raise a point here about the role of advice. In both the Senedd and the Westminster systems, it's the role of the standards commissioner to give advice on the rules and how Members can follow those rules. And I do wonder—. With this new system, we can presume that the judges won't be performing this role, so who would, and could this be the standards commissioner? But, at the same time, it seems inconsistent if the one giving the advice isn't the one who decides if an offence has taken place. So, I just wanted to raise that as well.

Okay. Thank you. Juliet or Azzurra, anything to add on sanctions, because I'm very conscious of the time? Anything?

Nothing to add from my end, no. Thank you.

Thank you. I'll hand back to you, Chair.

Thank you. Lee, I've seen you with your hand up, but we are on 10:30. Can you make it less than 10 seconds?

It's a quick follow-up for Azzurra. She's asking us to put our faith in the correction system. Just a brief reflection on how it's currently working—she said it's extant. For example, Full Fact issue correction notices. Do they lead to corrections?

Yes, absolutely. They often lead to correction, but I would say that we are a small organisation with limited capacity, and I think if the political system were to take on a correction system model, they would be even more effective. Now, of course, they don't always work, and there are other things that we do alongside the correction system that increase trust in politics, such as training sessions, and work directly with departments to ensure they are trained on how data can be more transparent and accurately presented. But yes, they definitely do have an effect, and we often find that the corrections that are most effective are the ones where people are making minor mistakes that are quite important—so, a figure, for example that they might have got inaccurate. So, I will say that I think there is huge value to them, and certainly something that should be considered. But I'd be happy to share more details of that with you if you are interested.

If you could share more details, and perhaps if there are any further questions—I'm conscious of time—you could follow that up in writing in response to that as well. But as we are just over our time 10:30 slot to finish this evidence session, can I thank you all for your contributions? It's been incredibly interesting and helpful. Just to say, a transcript will be provided to you as soon as possible so you can check for factual accuracy. I know there have been a number of things that individual witnesses have said they will follow-up with the committee, and, likewise, there may be a number of points that the committee will follow-up with you as well. Thank you very much for your time this morning.

Thank you.

Thank you.

Thank you.

Thank you.

Can I propose that the committee just takes a short break to allow for the next witnesses to arrive?

Croeso nôl to this meeting of the Standards of Conduct Committee, and we move into our next session, which is another item for our inquiry into individual Member accountability—evidence session 18. I'm very pleased that the committee is joined by chief constable Amanda Blakeman this morning, on behalf of the chief constables. Croeso, chief constable.

Diolch. Thank you.

If I just move to ask a broad question, I'm sure members of the committee will have other questions they want to come in on, on the back of that. Can I start by asking if a new offence on deception or false statements was introduced, do the chief constables have any views on how deception or the making of false statements should be drafted in the legislation and any potential practical impacts arising from different definitions?

There are a number of practical things to move through, and also in terms of drafting. I think the initial view is: is there a set of legislation in place already that allows us to be able to move through the same incidents? Secondly, when drafting, it's also the more practical application of being able to investigate that I think we've had a view in relation to, particularly in relation to access to documentation, et cetera, and also the impact in terms of resource and demand. So, that's my particular concern in terms of impact. In terms of how we draft, I think it would be useful to explore that further in terms of some of the individual areas that you're looking at, if that's okay.

Yes, sure. You mentioned the question of legislation being in place already. Is the legislation in place one you consider could be enhanced or that is there for this purpose already?

There are current removal options, as I understand. So, there's the recall petition, which I understand, really, only is a mechanism by means of which elected politicians can be removed from office, by way of recall; a disqualification after election if convicted of a criminal offence, sentenced to imprisonment; and there's also a code of conduct there that requires Members to be truthful. So, there is a broad range in relation to the powers already available to the Senedd. There are a number of different areas that you can look at in relation to deception offences, et cetera, that may be applicable, depending upon what the instances are. It's very difficult to say without looking at an individual instance and then looking at the relevant legislation that would be in place to have a look at whatever it is that is alleged.

Just on the point of recall, there isn't actually recall in place for the Senedd yet, but it is something this committee is doing work on as to how recall could look for the Senedd and the introduction of that for the next Senedd election as well. Just in terms of the detail of drafting, from chief constables' perspective, what evidentiary basis or material would be needed to prove that statements were wilfully deceitful or, on the balance of probabilities, false?

It would be really useful for total clarity to be written into the legislation as to what a false or deceptive statement is and what is general political discourse. It would be really difficult to categorically say here without looking at the individual cases that need to be investigated on their own merits, and that can only be done when all of the information is known. In practical terms, being able to investigate wouldn't be an exhaustive list of things that we would need to look at, but audio transcripts, witness statements, closed-circuit television, phone downloads and access to potential ministerial documentation. So, there's a lot to look at, and clarity in relation to exactly what a false or deceptive statement would be would be really helpful.

Is there any precedent that the police could apply to investigating what would be an opinion and what would be a statement of fact?

Well, again, we don't generally investigate on the basis of opinion; it is generally in relation to a statement of fact. Our job is to conduct a fair and transparent investigation; it's not usual for us to provide opinion. We use qualified individuals, specifically trained subject matter experts, when we are looking at it. So, for instance, with collision investigations, we use specific subject matter experts to be able to do that. We work on the criminal threshold that is beyond all reasonable doubt. I know you've mentioned already the balance of probabilities. So, policing, as I say, in name, works on that criminal threshold, beyond all reasonable doubt. That does exclude civil orders that we do participate in and take out in relation to, for instance, stalking protection orders, as one example. So, that is something that we would have to bear in mind. I'm a little bit concerned about the balance of probabilities, especially when looking at a criminal offence, because that generally goes to beyond all reasonable doubt.

On that point, the balance of probabilities, would that pose any practical challenges, as compared to the investigation, as you say, of an offence of beyond reasonable doubt?

I think it would. In a policing world, there's an extremely high bar before police decide to intervene with a formal investigation. This should be an opportunity for advice and an opportunity to correct false information, if that's determined to be a better course of action. There's always a reasonable defence in relation to it, if somebody's made a statement where they didn't realise that to be the case at the moment. We are invoking quite a high threshold in terms of investigating that—for somebody to say, 'Well, I didn't realise that was the case, and therefore, I would like to redress that', and make that absolutely clear.

Obviously, in terms of demand, there's an increase in the number of Senedd Members at the next election from 60 to 96. So, there's a demand issue, as well, in relation to, I would imagine, what potentially could be the opportunity for a number of allegations to be made, and for us to be able to then try and work through to identify where that bar should be if there has been a false statement made, rather than an incorrect piece of information that's been released or has been held, that somebody wants to correct. So, I think that's why it becomes really difficult to put in the balance of probabilities, rather than the beyond all reasonable doubt.

Thank you. Peredur has indicated to come in.

Yes. Thank you, chief constable, and thanks for making time to come and talk to us today. I'd just like to ask you—. You were talking there about investigating statements being made. I'd imagine that a bulk of potential statements being made like this would potentially be on social media. So, could you talk to us about how you investigate social media claims of defamation, or anything like that, that might have a parallel to the way that you would investigate a question of deception if it became a part of legislation, and what the challenges are when it comes to that and what sort of things—? Are there any parallels we could draw in that to be able to understand the practicalities of what we're doing?

Okay. Investigating via social media is incredibly difficult. You mentioned there the way that we investigate, and I think the first thing is to understand whether we're looking at a civil matter or whether we're looking at a criminal matter, and then it is as per a standard investigation that we would do, which would be to track and trace individuals, to interview them, to gain statements, to create screenshots, to download phones, et cetera. So, it's quite an extensive investigation to get all of the facts available to us in order to be able to put anything that looks as if it is relevant to the legislation, the offence being alleged to the individual, for them to have the right and proper opportunity to be able to explain the situation and put any defence forward that they need, and then to CPS to see whether there is sufficient for the threshold to be met for a charge in relation to it. So, a huge amount of work that goes into social media can be really tricky because of the size and scale of it. It's not just Wales; it's a global phenomenon. So, that causes us issues, as well as identifying individuals involved in conversations, et cetera. It's a really difficult area. So, we're looking at a huge amount of work, a huge amount of resource and a lot of demand, which I think is why it needs to be absolutely clear—crystal clear—in the legislation in terms of what it is that the legislation is seeking to achieve and what the parameters are that are set out within that. Because I think if it's not drafted properly, we could find ourselves in a situation of investigating a lot of things that actually don't get very far.

Do you have any further questions, Peredur, before I bring Lee—

I think Lee identified that he wants to come in on this. 

Thank you. I just want to test that anxiety about the volume and the nature of the claims you may be drawn into. Presumably there are a number of offences now where you have vexatious complainants, and I presume you have experience of being able to filter out the wheat from the chaff, do you not? 

'Filter out' is quite a strong term to use. With anybody that makes a complaint, we take that seriously, we look at that, we make an assessment of it. There's generally a huge amount of work that goes in to making that assessment. There is an opportunity for dealing with malicious or vexatious complainants. The Independent Office for Police Conduct also have a methodology for dealing with vexatious complainants. But it is challenging. We would have to, at some point, understand the mens rea of that individual: is there intent to be vexatious or is there intent to try and draw forward a proper and clear offence that they feel should be investigated? So, it's a really challenging area, the possibility of there being a vexatious complainant, and that's likely to include interview. So, we aren't simply able to filter out individual claims, we have to look at them all on the basis of merit, and then make an assessment after that, and that does require quite a lot of work.

Surely you get a range of what you might regard as less serious or trivial complaints at the moment. You don't investigate them all to the same level, do you? 

We take every complaint that is made seriously and we do an assessment in relation to it, and that means that we have to do the necessary work to understand what evidence is there—

Do you not filter some out at a fairly early stage?

—in order to support it. We don't dismiss people. 

I'm not suggesting you dismiss them, but you make a judgment, sometimes at a fairly early stage, as to whether something deserves further enquiry or not. For example, during COVID, I had people complaining that I was driving when I shouldn't have been. Well, that wasn't something that was pursued, because that was not seen in the context of being a serious complaint. So, you apply that kind of yardstick all the time, don't you? 

No, we don't apply that all the time. If there is a complaint made, we're duty bound to look at it, and we have to make an assessment of it. So, a filtering system that you describe, I think we would have to understand what this is. And clearly, what we're talking about here today is a very serious matter. False and deceptive statements of fact made by Members and candidates is always going to be seen as serious, so—

Is your evidence to the committee that every complaint you get has the exact same amount of resource applied to it, or do you not make a judgment as to whether or not things are worth pursuing further? 

We make a judgment, but it depends on the seriousness of the allegations that are being made.  

Sure. And so this will be no different from any other law that complaints are made against, will it? And the maturity of applying it will develop, as in every other law.   

It's a serious piece of legislation that's being put forward, though, isn't it, making a false statement—

All legislation is serious, surely. Is it not? I'm just not convinced that, in practice, every complaint that is made about anything gets the sort of resource you were telling us earlier, because the maturity of applying that develops, and I'm sure it would be the same with this.

I think public standing of individuals to represent in the Senedd is seen as quite serious. So, we would have to apply the proper standard in relation to that, wouldn't we?

Sure, of course, as is true with all laws at the moment. The police have developed a real maturity of being able to apply that in a proportionate way, and I'm sure the same will be seen with this. In terms of your concerns, I guess one of the problems we have is that we don't have a specific piece of legislation that we're looking at. So, we're talking, obviously, of a range of possibilities. You mentioned your concern about opinions and so on being looked at, but, actually, the proposal that was before the Senedd that led to this inquiry was looking at deliberate lies, with the public interest test being applied, so there will be a range of safeguards and a range of opportunities for people to withdraw the complaint. This will be rather tightly drawn, and surely that would address quite a number of your potential anxieties.

As I said when I started, the clarity in relation to how the legislation is put forward or drafted is a concern for us, otherwise we will face a situation where we will have lots of complaints that are based upon somebody's opinion of an individual, rather than the facts that are there in front of us, and to get to those facts, we have to do an investigation.

Of course. And if we get to the point where we do introduce a law, then that would be subject to scrutiny, which you'd have a chance to respond to, so those concerns could be built into the way that law is drafted. At this stage, we're looking at the principle of should the criminal law be applied when somebody is setting out to deliberately and wilfully mislead, and that's the subject matter of this. Any law can be made operational. Your concerns are it should be made operational and it should bear in mind the constraints you work under. Of course it should, but that's not an in-principle argument against drafting such a law.

Our role is simply to conduct a fair and transparent investigation, when you boil down to it, and in drafting a piece of legislation, we want an opportunity to do just that. But I wouldn't want today's group to not be aware of the amount of resource that goes into conducting a fair and transparent investigation.

Thank you.

Thank you. Just on that, in terms of resource and scope, I'd like a reflection on behalf of the chief constable on the practical implications of the time frame in which any allegation or complaint about a deceptive or false statement could be brought. The proposals we've discussed are around, for example, a statement made in the last six months, or a statement made in the last 12 months. From a practical and operational perspective, do you have any reflections on that?

I haven't got any particular reflections in relation to it. Again, without repeating myself, how that legislation is drafted, and whether it's a summary or an indictable offence, does make a difference, doesn’t it? Because, clearly, summary offences have a got a time limit on them, indictable haven’t. Clearly, that needs to be taken into account when you’re looking at six months and 12 months, because it could be drafted in a way that we aren’t able to act upon it.

Peredur. 

Based on that, could you tell us how long normally an investigation of something on social media like this would take? You were talking to Lee Waters there about how you’d go and investigate. Is there an average timescale for a decision being made, and maybe how long these stages take? 

I can’t give you a timeline in relation to it. Each case is dependent on the complexity, the nature of the evidence, where it is, how quickly we can get that evidence recovered, whether that’s got to be by way of an application in relation to a telecommunications company, whether that’s got to be by statement, interviewing the individual and getting that matter to the Crown Prosecution Service. That is all relevant. Obviously, summary offences tend to be those that are, by their nature, quicker to investigate, and we can therefore work within those time frames. Indictable are more serious offences, and, by their very nature, are more serious, are more complex. It would be impossible for me to give you a timeline; it's each of those on their merits, I’m afraid.

But in your experience, though, with a summary offence, roughly how long does that take? Are we talking days, weeks, months, years?

Anything from a few days to a few months, and then working with CPS colleagues to get a decision in relation to it. We might have further work to do in relation to the case file, et cetera.

And then the more serious ones could take a bit longer again.

Yes. And clearly, we're working with our CPS partners as well. If you're looking at a more serious offence, then clearly we will have additional work to do around case-file build et cetera.

Thank you. 

Thanks, Peredur. Just picking up on those points, if a new offence on deception or the making of false statements were introduced, and if there was the ability to correct the record built into that, would that have any practical effects on the investigation and the work of the police into any complaint?

Again, I am so sorry to keep saying it, but it depends upon the individual matter in front of us. Clearly, any political matter has got the potential to be high profile, hasn’t it? Therefore, once an allegation is made, I would suppose the individual that has the allegation being made about them is going to want to put that record straight. So it may be that those matters work themselves through at the very start of any complaint being made, any allegation being made, and any investigation starting. But we’d still need to check that on the basis of its merit, look at the legislation, look at whether any offences have been committed.

Would you need a clear time frame that sets out perhaps the scope, the time a person has to correct the record, so that can be built into any complaint investigation?

I think that would be really helpful in terms of any legislation being drafted, but I still feel that we would need to look at the basis of the claim, the allegation being made and the position in relation to the individual, because correcting something after it has been made maliciously will still take a little bit of investigation just to understand whether or not that is actually a defence or an opportunity to try and correct the fact after it's been made, if you can see what I mean.

I'm going to bring in Sam Kurtz now. 

Thank you, Chair. Just developing a little bit of this theme around procedure and practical implications, if you don't mind, are there any practical challenges you may foresee in conducting investigations into allegations of deliberate deception by Members or candidates to be Members?

Complexity, access to information, access to ministerial documents, how we would be able to do that quickly and speedily, and the timelines involved in any legislation that is drafted. I've already mentioned summary and indictable. And then the resources to be able to do that. So, within each of the four forces at the moment, the team that takes the general responsibility in relation to bribery and corruption issues in relation to public office, and that's generally during election periods, are our economic crime team, who also have the responsibility for cyber crime, an area of demand that is increasing continually. I'm doing my budget planning at the moment, as other chiefs are, and we're continually reviewing that team to see whether or not we need to put more money in and expand it because of the demands that are already there. So I think that's the other practical application: the resource to be able to actually conduct investigations of this nature.

Thank you. And I know you've touched on it in previous answers, but if a new offence of deception or the making of false statements were introduced, what would be your views on the risk of malicious or vexatious complaints?

Really challenging to deal with, and as I've said, you'd have to prove the intent of the person making the allegation to understand whether it was truly vexatious or whether it was somebody who had previously complained actually raising a legitimate complaint on this occasion.

In the example of a political opponent raising a claim against another one, would that trigger an instant thought within an officer's mind as to how they would approach that, or would each one, as you were describing to Lee Waters previously, be taken on its merits initially and then subsequently further information and an investigation would take place?

I think, with the whole purpose of this being transparent investigations, it would have to be on its own merit. Clearly, we would take all of those things into consideration, but we would be looking for evidence rather than opinion or political discourse and that type of motivation, which is all part of understanding somebody's motivation for making a complaint in the first place, as to whether it's vexatious or whether or not there is actually evidence there. But we would be keen to pin down that evidence really quickly—so, having a look at how we are able to access documentation et cetera quickly, because at the moment I don't think that we are able to do that as speedily as perhaps we would need to if you were looking at putting a timeline around some of this offending.

Okay, thank you. Sticking with vexatious and malicious complaints, Compassion in Politics have said in their response to this committee that the police have already powers and procedures in place to address malicious or vexatious complaints that could be applied in this instance. Do you agree with that, or do you think a separate offence needs to be brought in if legislation is required on the deception element? 

I wouldn't suggest that we need separate legislation. I think dealing with this matter and then understanding whether somebody is vexatious or not would take a little bit of undoing in terms of identifying, the investigation in relation to the allegation that is being made. I feel there are opportunities to deal with vexatious complainants but practically proving that somebody is malicious or vexatious is a real challenge. So, I do think there is adequate, probably, legislation in place. We are entering, perhaps, a new area here in relation to, perhaps, political opponents et cetera.  

Okay, thank you. Thank you, Chair. Back to you. 

Thanks. Adam indicated to come in. 

Good morning, chief constable, and thank you for joining us this morning, and very interesting drawing on your current experience. There's one area, isn't there, which has been touched upon, where we have some experience that is directly relevant to our subject of discussion this morning, which is the Representation of the People Act provisions that apply during election periods. They've been in existence, actually, for—I have to be accurate here—certainly over 100 years, and it's now section 106, I believe, of the Representation of the People Act 1983 that makes it an offence to make a false statement in relation to the conduct or character, I believe, of a candidate during an election period with the intent of affecting the outcome of that election, in essence—it's not quite the terminology of the Act. 

I'm just wondering if you had any reflections from an operational point of view. You have officers that are specialised in this area. In terms of the kinds of things that we have been discussing, is it a well-understood piece of law now? You have good operational experience and you've discussed, I think, earlier—or certainly we discussed earlier in evidence—the ways in which informal resolution, shall I put it in those terms, often happens. I was wondering if you could talk a little to that and also do you have any data you could share either now or in correspondence on how many complaints are made across Wales over a year, depending on an election period, maybe, over the last 10, 20 years or so, so we can get a sense of what the volume of complaints is, and how many of those then actually get through to prosecution, which I suppose is an important data point as well? 

Okay. So, the Representation of the People Act 1983, section 106, covers, as you say, the making of a false statement as to candidates, only applicable during an election period. So, more or less what we're looking at here is the installation of that continuous expectation. During an election period, for instance, I stand up a gold group that my economic crime team form a big part of in order to deal with complaints that come in during the election period to make an assessment as to whether or not they are relevant to the Representation of the People Act, whether or not it is actually an advisory conversation with the individual making the complaint to go through the legislation and to point out that it isn't relevant or it is relevant.   

So, during an election period, my demand goes up, and I stand up the resource to be able to do that because, clearly, it is for a defined period of time over the year. I don't think it would be impossible to give you relevant data from the four forces in relation to that election period as an indication in relation to what level of complaint we might need to see, but I think it would also be important to look at the amount of hours that we take to do an assessment, have a conversation with the individual, rather than say a complaint was made and there was no further action because it wasn't relevant to the Representation of the People Act. So, if that's something that you would like, then we can, clearly, get that data for you.

Yes, that would be very helpful indeed. Just one point. So, the Act uses the term 'false statement', doesn't it? Now it refers to, particularly, the conduct or character of a candidate, but just focusing in on that phrase, 'false statement', is that something, in general terms—I'm speaking as a lay person here, chief constable—is that something that policing in general, used to understanding the language of the law—. You know, what is a false statement? Some witnesses, for example, have said actually proving what is true or false is very difficult, and, in some contexts, nigh on impossible in an absolute sense, 'beyond reasonable doubt', to quote you. But, in the context of this offence, but also more generally, determining whether something is a false statement is something that policing are used to having to do, because of the various offences that you have enacted.

Within the bounds of 'beyond all reasonable doubt', yes; within the bounds of the balance of probabilities is more difficult. And the reason for that is because you're then catering, potentially, for people's opinion, and that's really difficult, which is why I think it's important to look at that qualifying issue, in terms of criminal offences and the beyond all reasonable doubt, because that gives a clarity around fact versus opinion. And it is, on occasion, really difficult to—. There's a huge amount of work that would go into negating or proving somebody's opinion of somebody in terms of a factual basis.

Yes. I've read, generally speaking, across the UK, that there have been relatively few complaints that make it through to prosecution. Is one of the reasons for that, do you think, the way that the offence is currently constructed, and so it also includes intention, intent, as part of the constitution of the offence? So, it's not just that you've made a false statement, but you've made it deliberately, with a particular purpose—in this case, to affect the outcome of the election. Is that part of the thought process, or the investigative process, that you go through—not just that it's false, but it also is intentionally so, with a particular purpose in mind?

Yes. And definitely from the point of view of looking at that criminal investigation being successful in terms of an outcome, that's clearly going to be really relevant, isn't it, if that intent is sitting there, and has been proven at the end it. And I suppose the drafting of the legislation, under the Representation of the People Act, obviously there's quite a high bar to hit there, in relation to outcome in relation to it. But that doesn't mean that we get any fewer complaints; they still need to be worked through, which is the point that I make in relation to writing legislation that I am, and the other chiefs are, then able to make sure that we can respond to. And it takes me back to your data question, to understand exactly what the impact of it will be. Because it's not only the positive of it, is it, it's also the allegations that are made that still need that investigation.

And just staying with this process of evaluation and going through the different stages—I'm very interested in this example—is also the other element, which I hope I'm right in—? I'm sure I'll be fact-checked later. There is another element in the Representation of the People Act, I believe, which is also—I'm going to term it as—'reasonable belief' in the truth of the statement, that somebody therefore had reasonable basis for making the statement they later found out was untrue. And as we heard in evidence earlier, often, in those circumstances, people will retract. Again, is that a key element for you? So, one of the things that you'll want to do then, having received a complaint, is go to the person who made the alleged false statement and say, 'Well, tell me a little bit about why did you make this statement, was there some basis for you believing that it was true?' Is that part of the stages that you would go through?

So, an allegation is made, evidence is gathered by way of statement or any ancillary evidence, and then we would speak to the individual to identify was the intent there that was relevant to the mens rea in order to be able to commit the offence. And that's the opportunity for the person to say, 'Do you know what, I didn't realise that that was the case. I didn't realise that it was a false statement. I would like to put something out correcting it', which is potentially what we were talking about earlier on in evidence. We would still have to go through the sequence of events in order to be able to make sure that we had gathered all of the evidence and given that person the right to reply—under caution, I would assume—in order to be able to put their case forward and then for us to be able to make an assessment with CPS as to whether or not there is sufficient to charge that individual with any offence, should that be the outcome of this inquiry.

Yes. So, as you correctly remind us, of course, even if you decide that a complaint merits a full investigation, if I can use that informal term, maybe, then there's that further stage, then, isn't there, for the CPS to decide whether it merits prosecution in terms of the evidential basis and the likelihood of a successful conviction and the public interest test. From what I'm getting, really, this confirms what you were saying earlier, chief constable, that, actually, getting the actual text of any offence right has a really strong impact, then, on the way that you investigate. And so having these different elements—the intent, the reasonable defence—these are the kinds of things that you would look for in any new offence in order to work out how you would approach it. 

Yes.

Just one final thing: the low level of cases, generally—. As I said, I'm a very sad person and, as I was saying earlier, chief constable, I read Hansard from 1895, but the debate there was very interesting, when this offence was first introduced, and many of the interesting debates and discussions we're having now were actually mirrored then, with some people believing that there would be a huge backlog of cases that would actually hold up elections and that it would also be misused, particularly for people with a higher level of resources—that rich candidates, basically, would use them to the detriment of poorer candidates et cetera. I think it's generally accepted that this law has worked well and that there has been a relatively low level of cases and that it's observed pretty well and it's worked and it's stood the test of time, effectively. Do you think that that's a fair assessment, and has it had a good deterrent effect, and, in terms of the balanced judgment that you've always got to make, because any new offence will involve new resources, as you've said, but, in this case, this particular offence, actually, has functioned well and has probably achieved its original objectives?

So, any legislation focuses the mind, doesn't it, in terms of what people are able to and not able to do, and I wouldn't disagree with anything that you've said there in terms of the success of this piece of legislation. I would like to further investigate the data to understand how many complaints are made versus how many are successful, because, from a policing perspective, should this come into legislation, we have then got to resource it. And understanding that, outside of the context of an election period, is really important for us, so that we are not in a position where we frustrate matters. And anything that has a political element to it has the potential to be incredibly high profile. I don't need to tell you that. So, there is that additional work that we need to do around safeguarding individuals, media attention et cetera. So, I would like the opportunity to have a look at that data and extrapolate that across a year so that we understand the impact of it. 

I look forward to seeing that. Thank you very much, chief constable. Thank you.

Thank you. Just one final point before we run out of time for this session: in the response to the written consultation, you covered the engagement and advice work done with, for example, parties in advance of an election period, and the work to stop people making a statement rather than taking a complaint forward. Would you be able to expand on that just before we close the session, please?

So, in terms of the work that our economic crime teams do with candidates, our teams are there in order to make sure that people are fully aware of what the legislation says and to give some practical examples of that. So, we do a huge amount of work in relation to it. I would, again, imagine that we would have to expand that work further, wouldn't we, in terms of people taking up public office and having that necessary understanding of what the legislation says and how it applies to them. Obviously, within that, we've also got article 10, the freedom of expression, which, obviously, the legislation would have to take cognisance of. Those two things sit next to each other, so it's really important to be able to articulate the difference between the two and give people the opportunity to be able to make decisions for themselves in relation to what they say publicly, information that they assert, positions that they assert, so that they don't fall foul of something unwittingly.

Can I thank you very much for your evidence and your time this morning? It's appreciated in helping our work on this matter. Just to say, a transcript will be provided to you as soon as possible , so you'll have an opportunity to check that for factual accuracy. But can I thank you again, chief constable, on behalf of the committee? Diolch yn fawr iawn.

Diolch yn fawr.

Colleagues, we will just move again to a short break to allow for the changeover of witnesses, and that is until 11:35.

Croeso nôl to this meeting of the Standards of Conduct Committee, and we will move to item 4, on our inquiry into individual Member accountability, and it's evidence session 19. We're very pleased to be joined now this morning by Sam Fowles from the Institute of Constitutional and Democratic Research, and Jennifer Nadel from Compassion in Politics. Before we move to the questions I know Members have to ask you this morning, could I ask each of you just to give a brief introduction to yourselves and your organisations and anything you'd like to set out at the outset of this morning's session? Sam, I'll come to you first, if I may.

Sure. Thank you, Chair. My name is Sam Fowles. I'm principally a barrister, specialising in public and regulatory law. I've argued a number of the significant constitutional matters of recent years, particularly involving political lying, for example, Miller v. The Prime Minister, which concerned the prorogation of Parliament in 2019. I also have substantial criminal law experience, such as arguing the Post Office appeals, which helped expose the Horizon scandal. I serve as director of the Institute for Constitutional and Democratic Research, which is a group of lawyers, academics and practitioners of various types who are attempting to provide democratic thought leadership for the constitution. Until the election, I served as counsel to the all-party parliamentary group on democracy and the constitution in Westminster.

If I might make just a couple of introductory points, hopefully, this will save some time with questions, going forward. I did want to start by just setting out the limitations of my evidence. Of course, I think there have been well over 10 hours of evidence, and I understand that a substantial part of that has been asked to comment directly on the ICDR's proposal. I'm obviously not going to be able to respond to more than 10 hours of evidence in less than an hour. What I propose to do instead is to submit a written response, a document that mops up everything that I'm not able to cover today, and I'll submit that in the coming weeks.

Many of those critiques, however, that I have noticed are not really fundamental or substantial; they can be fixed with fairly simple technical amendments, and, of course, the ICDR only submitted this paper as a working document, as a start. So, what we've done is we've tried to listen and we've tried to make those technical fixes. So, you have before you—at least, I hope you have before you—a version 2 of the ICDR paper, which includes those technical fixes, and those amendments are set out in the table of amendments on page 5. There are just a couple of substantive points to make. The first, just to be very clear, is that all of the analysis of the ICDR's proposal seems to have been on the basis that it is a criminal law proposal, and I want to be very clear that the ICDR was, in fact, agnostic over whether the criminal law or civil law route is followed.

Second, there is a fairly fundamental legal principle that I need to correct, and that was raised, I believe, last Monday, where a critique of our proposal was made on the basis that there is a legal principle that the more serious the allegation, the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Now, that principle was put to you and the authority that was given for it was a case called B (Children), and that was a then House of Lords, now Supreme Court, case from 2008. I just wouldn't want the committee to get the wrong impression of what that case is, because, in that case, the Supreme Court actually rejected that principle. So, that case is not an example of the Supreme Court saying, 'This is a fundamental principle of English and Welsh law'. This is the court saying that, in cases like the law that is proposed by the ICDR—the correction notice—that principle is inappropriate, and let me read to you what Lady Hale said, which was this, at 68:

'Lord Nicholls' nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings'.

And then she gives some references.

'It is time for us to loosen its grip and give it its quietus'.

Its 'quietus' means its end. So, to be very clear, that is not a principle of law that the courts apply in this sort of situation, and so the ICDR has not applied that principle.

Third, I wanted to make a correction and I thought I might use this opportunity to show, because a number of critiques have suggested that correcting the record is an incredibly extreme sanction, in fact, how easy it is to do. So, we have received new evidence that suggested there was an error in what was written in the ICDR paper, and that was a technical error. We used the phrase 'real possibility' when, in fact, we meant the phrase 'real prospect'. And the phrase 'real prospect' is a term that's very commonly used in law, and the case of Morrison—and I've given the reference to that in the updated paper—is one such example. So, very happy to say that, when we said 'real possibility'—that's not a legal concept—we were trying a little bit too hard to be colloquial and easy to understand. We've now replaced that with the technically correct term, which is 'real prospect' and I'm more than happy to correct the record.

There was also a point in the ICDR paper where we suggested that the rate of response to Full Fact requests for correction amongst recent Cabinets has been 0 per cent. We did make it very clear that that was just to our knowledge. We've now received updated information from Full Fact about corrections. We can now say that the rate of response to their corrections is just under 11 per cent amongst recent Cabinets. Amongst the leaders of the major parties in Westminster, that rate of response remains 0 per cent.

So, I'm hopefully doing two things there: No. 1, providing a bit of extra information, and, No. 2, demonstrating how easy it is to correct the record when necessary. I will leave it there, but, obviously, I'm happy to talk about anything you'd like me to talk about.

Thanks, Sam, and we will definitely take up your offer of a further written response to help us in our work, as well. Jennifer, over to you.

Thanks so much. I'm Jennifer Nadel. I'm the co-director of Compassion in Politics and I'm also the director of Compassionate Politics at Stanford University. In my previous life, I was a barrister and then a journalist, and I've worked in and around Westminster for 38 years. So, I have watched Westminster very, very closely and politics very closely during that time. Four years ago, Compassion in Politics became particularly concerned about levels of public trust and also levels of veracity amongst a very small number of bad actors, and we launched a public petition, which got over 200,000 votes and is still being signed, in favour of a law, an offence that would make it a crime to deliberately deceive the public. Similarly, we've done polling, which I provided evidence on before, that shows that 71 per cent of the public support such a measure.

It's been a great privilege to listen to the committee at work and to hear the other evidence that you have taken. The observation that I would like to make is that we are at a really, really dangerous moment in history. When we first met, President Trump had not been elected, but we now have a President who has an enormous influence over the political field across the world, who has no compunction about lying. Across Europe, we see the rise of the right, we see the rise of populist leaders, and I think that we have a very small window to try and shore up our democracy against the impact of deliberate disinformation by political leaders.

The other thing that sits with this is the low levels of trust. Politicians have the lowest trust of any profession. Last year's Ipsos veracity index had it at 9 per cent of the public believing what politicians say, and that drops down to 2 per cent among under-24s. So, having only 2 per cent of young people believing that they can trust what a politician says needs to be addressed, and one of the reasons that I—. I have a slightly different view from Sam. I think that it needs to be a criminal offence, and I think that it needs to be a criminal offence that is drafted to really target the very bad actors. I think that there are a number of different ways that we can do it. I have heard a lot of evidence about how things shouldn’t be done, and I really want to focus on the kind of buffet of options that you have that could give effect to the courageous and bold intention and commitment that was given.

The final thing that I will say is that, two weeks ago, I was in Australia, at the Commonwealth Parliamentary Conference, with 600 members of parliament from across the globe. I spoke to them about what Wales was doing, and the support was absolutely overwhelming, and I had many politicians from other countries saying that they wanted to know how it went and that, once the Bill was drafted, they were really interested in trying to take it to their own countries. So, I think that we have to remember the bigger picture, and we also have to remember that you are at the cutting edge. When you are at the cutting edge, there will be lots of people saying, ‘We can just rearrange the deck chairs’, and we are beyond that time.

Thanks, Jennifer. Just before I go into some questions, I think Adam just wanted to make a point at the outset, so I should have brought him in earlier. Adam.

Diolch, Adam. Thank you for setting that out.

If I come to you first, Jennifer, I'm just interested in what you said about some of those very bad actors and how we would determine who they were through any further sanctions. I take on board what Sam said in terms of the ICDR paper on criminal or civil sanctions—that they were agnostic on that. So, if I could ask you, Jennifer, first why you believe that the introduction of a new criminal offence of deception is necessary.

I think that it is necessary for two reasons. The first is to have something visible that the public understand, which will begin to turn around public trust. This isn't going to be the only answer, but it will be a really clear signal that politics—. I make these statements in the knowledge that everyone on this call is doing an incredible job, and it does not fall into the category of politicians that we are talking about. But, politics needs to visibly take action to show that it is cleaning up its act so that it can begin to restore trust, and it needs to defend itself against the bad actors that we have. The Reform Party now has five Members of Parliament, and they are going to be coming for the Senedd as well. We have political actors who are willing to do whatever it takes to gain power, and willing to say whatever it takes to win the argument, and we’ve seen that—. I think all of us are political and we’ve all seen how this works, so I’m really interested in a measure that will disincentive and stop them.

I was very attracted by some of the things that the chief constable said in terms of the higher burden of proof required in criminal proceedings. I’d also like to draw out the fact that she has a special unit during elections that could then be kept on to deal with these matters. And also, of course, the CPS has guidance on the issue of when it is in the public interest to bring an offence, so that guidance can be issued along with the Act, in terms of what constitutes the public interest in bringing an offence under this legislation. So, those are a few things I would say.

In terms of the fear of overwhelm of vexatious statements, I would say that, for a complaint to be made, it needs to be accompanied by evidence that the offence has been committed. You can’t just say that someone’s lied, in the same way as you can’t just say, ‘My house has been burgled’ if there’s no evidence of anything missing, or having been broken into. So, you have to provide evidence in order to make a complaint—evidence that an offence has taken place. So, I think, with the specialist unit continuing through non-election times, a high standard of proof and a public interest filter on the cases that are actually brought, this could be incredibly effective.

Thanks, before I come to you, Sam Fowles, I see that Sam Kurtz just indicated. Did you want to pick up on one of the points that Jennifer just made then?

Yes, please, Chair. Thank you. Jennifer, I’m just interested in your observations there around a political party specifically, and your language towards it. I’m not a member of the party, and they’re currently not represented in the Senedd, but I found that a little bit concerning, that you’re basically advocating for a specific criminal law to stop a political party.

Thank you. I'd like to correct the record and take out my reference to Reform. It isn't about one political party, and we've seen bad actors across the political spectrum. I think the point I would like to make is that we are seeing a rise in a new brand of populist politician, many of whom display a lack of regard for the truth and who use mistruth to undermine the democratic processes and pollute the water within which all politicians swim. And the loss of voter trust can't be detached from rising levels of political violence and hate. There's an ecosystem where we have a negative feedback loop, and I'm interested in an intervention that will try and create more of a positive loop. But thank you so much for raising that, and I would like to remove that from the record. You're absolutely right and I don't want to single out any particular party.

Thank you, Chair.

Sam Fowles, if I come to you now, and those similar questions around why you believe new sanctions on deception are necessary, and the rationale behind your proposals to perhaps depart from that more traditional political model, where parliaments are, effectively, self-policing. 

Well, the short answer is, 'It hasn't worked.' As set out in the ICDR's report, the self-policing model we've witnessed, and even when the administrative model was introduced to the self-policing model, we've witnessed a decline in public trust in politicians to historic proportions. The Full Fact data, I think, shows that politicians simply don't—. And, obviously, I can't talk about the Senedd, because we don't have data for the Senedd, but certainly my view so far is that everyone I've dealt with in the Senedd has held themselves to a very high standard, and so I complement you on that. According to the data we do have, which relates to Westminster, politicians simply don't respond to requests to correct the record, even when those requests are detailed and from an independent organisation like Full Fact. An 11 per cent success rate is very low, and I think there seems to be justification for the public's general and historic distrust of politicians.

But the reason for that is not because I think politicians are inherently bad people or anything like that; it's a structural reason. It's because there is no incentive to comply with the existing rules around truth telling because those existing rules are not enforced. The data for that is set out in the ICDR's paper. But let me give you a fairly clear example, which is that I think Peter Oborne has categorised every time that Boris Johnson made a false or misleading statement. He was only ever sanctioned for one of those false or misleading statements, and it took over two years to get the job done. I don't believe that Boris Johnson is reflective of most politicians, but that's sort of the point. It's not fair that most politicians should be tarred with that brush. And I think the public should have trust in politicians, but they will only have trust if (a) we can cut down on political deception, and (b) politicians show that they take this very seriously, and show us that they take this seriously by taking action such as that which is proposed here.

For me, the fundamental thing is to ensure that the rules are policed by an independent body, and that's why I favour the courts. And I would say I'm very much in line with public opinion on this. According to University College London polling—I think it was conducted by YouGov, but I can provide the precise polling data—the vast majority of the public trust judges and believe judges should be responsible for enforcing the rules of the political game, not that politicians should be in charge of enforcing their own rules upon themselves. And so the model is based on ensuring that we have an independent body that enforces the rules.

The reason that we have proposed the model that we have is simply that when a traditionalist criminal offence was proposed, a lot of politicians in the Senedd were very concerned about the intention element, and they were also concerned about being accused of things without having the chance to correct the record. So, what the ICDR model does is provide a chance for politicians to formally correct the record. Now, this isn't a sanction. It is about protection of the public, because the public is harmed whether or not a politician intends to make a false statement. The public is misinformed, regardless of whether the intention is to misinform or not. So, we have created a model where statements can be verified, and if they're not true, they can be corrected, and then everyone can go home. Only if someone actively refuses to correct the record will this sanction be in place. So, this answers the big concern that Senedd Members raised with me when the last amendment was proposed, which was that the intention element was not clear, was difficult to prove. Now, the intention element will be very clear. It arises where you've been told by a court that your statement is factually incorrect, you've been asked to correct it, and you've actively chosen not to do that.

Now, that is deception. That is certainly deliberate deception. I would say the bar code of conduct very clearly states that we consider it deceptive if a barrister knowingly fails to correct the record. So, I think that avoids the problem or adds a welcome additional bit of clarity to the situation, and also provides for a model whereby politicians can correct the record in a neutral way.

Thanks, Sam. I'm sure colleagues will have some questions and want to come in. Just one more from me before I bring Peredur in in the first instance. Something you said around the challenge at the moment is that there's no incentive, because existing rules are not enforced. So, you're saying that this is a way in which to have a more serious sanction for deliberate deception, and also making sure there is a mechanism for it to be properly enforced.

That's correct, yes. So, you have a genuine deterrent, which is the disqualification Order, and you have an independent—and this is really important—an independent and trusted body that can enforce that, and that's either the civil court or the magistrates' court. 

Thanks. Jennifer, did you want to come in on that, sorry? 

Yes, just very quickly, just to add in there two other things. One is to try and create a deterrent because the Act will be successful if very few cases are brought under it, because it is sufficiently fierce to act as a deterrent. And the second thing is this independence that Sam's mentioned. The public really have to see that politicians aren't marking their own homework, and there are three—. The committee's heard evidence about three different models that exist and work well. We had the Representation of the People Act just referred to; Mr Lewis, in his evidence, referred to the Fraud Act, and we also have the Hillsborough law, which would be another way of approaching it. I've spoken over a period of time to the team behind the Hillsborough law and they did consider including political statements in that, but decided to exclude it because they felt it might impede its passage and their first goal was to get the core thing over. But they certainly—. There was a lot of debate about whether they should include political statements, so that would be another model—a duty-of-candour model that when that duty was broken then an action was triggered. 

Thank you. Peredur. 

Diolch yn fawr. Thank you very much for your time this morning. It's very interesting to see the different aspects of this from the hours, as Sam has alluded to, of evidence that we've taken so far. And part of that evidence has been that, possibly, the sanctions or the standards process could be bulked up in the Senedd, and we're in the process of doing some of that work now, with recall as a sanction of being able to remove a Member, potentially.

So, my question, Sam, is following on from the logic of what you're saying about being able to correct the record and that aspect. Could the standards process be adapted to compel a Member to correct the record and that it wouldn't trigger the potential criminal offence until the standards process had been followed, so that you'd take some of that work away from the courts and maintain a measure of that self-policing, but that you could bulk it up by bringing in, as we've heard from other witnesses, lay people into that process, so that it's not us as politicians marking our own homework, before you take it to that next step? So, it's building in a more robust standards process prior to potentially bringing in a law, or as an add-on to be able to do that. I'm just interested in your thoughts around a hybrid-type of model.   

Well, I speak both from my public policy expertise from my academic work, but also I have argued a case before the Committee of Privileges in Parliament, and I've argued matters through the standards process in Parliament. And in fact, I believe I'm one of the only barristers to actually win in front of the Committee of Privileges, or successfully defend in front of the Committee of Privileges in about a decade. I can honestly say that both of those experiences were some of the most Kafkaesque experiences of my life.

Now, I have six reasons why the standards model is incredibly problematic. 

And that's the standards model in Westminster rather than in Wales. 

I've used the standards model in Westminster and the standards model in Cardiff, and looked at both of those, because I wanted to look at the broader issues with the standards model in principle as well.

The first is that those models lack public trust. We saw, just last week, that arm's-length bodies are being investigated in Westminster because there's a genuine lack of public trust in arm's-length bodies. Just to compare that, over 70 per cent of the public trust the courts. They lack independence, and that's because, firstly, I think, in Cardiff, the model is ultimately dependent on approval by politicians, and the same is true in Westminster. But even if that is not the case, they are seen to lack independence, because they are seen by the public as part of the institution. The perception here is as important, in many ways, as the practicality, not to quote Kemi Badenoch too closely there.

They also lack accountability. I've looked very carefully and I can't find a way that the standards commissioner is accountable, save to politicians, and the same is true in Westminster. Similarly, that problem also arises with bringing in lay tribunals and members of the public. That's done in Westminster. There's an appeals process to what's known as the body of experts, or the committee of experts, in Westminster. That body has singularly failed to improve public trust, but is, to all intents and purposes, unknown to public, and conducts its deliberations in secret. You're not even allowed lawyers at that stage. Compare that with judges, who conduct their business in public and are accountable, because they're accountable for their decisions to more senior judges, and it goes up the chain.

That brings me to my next point, which is the standards model lacks clarity and predictability. The big advantage of the courts is the adoption of precedent, which is that the more senior courts clarify how the law should be interpreted, and more junior courts are then bound by that interpretation. This means we have a very clear understanding of what the law means and how the law is going to be applied. That doesn't exist under the standards model, and it means that standards commissioners can, and do, apply the rules in arbitrary ways. So, for example, in a case that I argued, the standards commissioner applied the rule against bullying on the basis that, if someone felt they had been bullied, then they were held to have been bullied. He didn't ask himself whether that opinion was reasonable.

This was a fundamental error that would never have been made by a judge, but because it was made by the standards commissioner, the MP in question was put through hell and their life was made very difficult, but also their job was made very difficult. It was very difficult for them to continue with their role of holding the Secretary of State to account, because the Secretary of State claimed that, simply by asking questions of her in committees, that MP was bullying her, and the standards commissioner, wrongly interpreting the rules, agreed. So, that's clarity and predictability.

They lack speed. The standards commissioners in Westminster and in Cardiff can take years, and they certainly take months, to come to any decision, whereas the courts can and do resolve these matters in a matter of weeks. They lack transparency, because, again, there is no hearing. They don't conduct their business in public in the same way that the courts do.

Could some of these issues be fixed? Potentially. If you were to design a standards model, and perhaps we'd taken a run with your suggestion and applied it to the ICDR model, say you put the correction notice in the hands of the commissioner and then the disqualification notice in the hands of the courts, well, firstly, you would have to ensure the commissioner takes decisions swiftly—as swiftly as the courts have shown they can take decisions. Secondly, you'd have to provide the same level of procedural protection and fairness for those involved—so, being represented by counsel, for example. Thirdly, you'd have to introduce some form of the doctrine of precedent: who is the appeal to from the standards commissioner? Is it to more politicians, is it to someone who's actually qualified to interpret rules in that way? Who would be qualified to interpret rules in the most clear and fair way possible? Well, that would be judges. Can you make sure that it happens in public?

Perhaps you could do all of these things, but that would be a significant resource commitment; you'd have to essentially redesign the standards commissioner system, you'd have to pay for likely more people to come and make decisions in the standards commissioner's stead, you'd have to ensure that the advocates could be heard and could be paid, and you'd have to do all that from scratch. My view is, given there is a tribunal that already does all that and already answers all of those questions and is designed for this sort of thing and trusted by the public to do this sort of thing, why not go with what works already.

And there is a final point that I'm not sure that you would need to remedy, which is are you going to give the standards commissioner the discretion to decide when it's appropriate to even start the process of a correction notice. Is this something the standards commissioner can decide on their own? The current standards commissioner has been on the record as saying that he thinks that attempts to address political lying are a solution to a problem that doesn't exist. How do we hold the standards commissioner accountable for the decisions that he makes and the decision he makes not to pursue a correction notice? Would you allow individuals to make an application to the standards commissioner for a correction notice, as they can make an application for judicial review to the courts or for a private prosecution to the courts?

Again, with the courts, the mechanisms for this already exist. With private prosecution, you would need to go through parts 7 and 8 of the criminal procedure rules, for example, as you would need to do if you were to bring a claim to the courts under the ICDR model. Again, those procedural guarantees don't exist in relation to the standards commissioner. So, I suppose my answer is, yes, you could do it in theory, but you would need to do an awful lot of work to bring it even close to the standards of fairness, accountability and trust that you would get from the courts.

Diolch, Sam. 

Lee Waters.

Thank you. I have couple of questions. I know you said you were going to be submitting some written evidence to the committee, but as last week's session from the Criminal Bar Association had rather a lot to say about your proposals—and, I thought, very unhelpfully, muddling your proposal with a Government proposal, which seemed a pretty fundamental error for criminal barristers—I'm going to give you just a brief chance to reply, because of the force of their criticism of the paper you submitted to us. And then I'll come back to you on a different issue.

I'm really grateful for that, Lee. I'm obviously not going to go through every point. I've highlighted what I think was their most fundamental error, which was to suggest that the principle of requiring a higher standard of proof for more serious allegations applies in this sort of area. The Supreme Court has been very clear that it doesn't, and you can actually tell that just by reading the case that they cited.

I think their other big criticism was about the reverse burden of proof. I don't think that was a fair criticism. Firstly, I would note that the majority of authorities they cited involved the reverse burden of proof in relation to criminal sanctions. The court of human rights has already held that you can impose a reverse burden in relation to criminal sanctions. So, if that was what we were doing, there would be a route to do it lawfully, but that's not what we're doing. The correction notice is not a criminal sanction. Contrary to what the Criminal Bar Association claimed, the ICDR proposal certainly does not allow a citizen to simply apply for a correction notice and then require the politician to prove that what they said was right. That's not how the proposal works at all. The procedure for applying for a correction notice would, firstly, be to make an application to the court, if you're using the criminal route, and then that application would be made by information.

And so, contrary to what the Criminal Bar Association said, we're not skipping out or changing the criminal procedure rules. That's an established route under the criminal procedure rules, that you would use part 7 of the criminal procedure rules, and part 8. And that essentially means that you make your application to a judge and you include a witness statement, which exhibits all of your evidence to essentially prove your case. You would then need to prove that there is a real prospect that what the politician in question said was false or misleading. Before you do that, you've got to prove that it's made by a qualifying person—so, that it's made by a Senedd Member or a candidate—and that it's a qualifying statement, which is that it's a statement of fact. Then, you have to prove that there is a real prospect that it's false. Only then will the politician be asked to provide evidence to contradict your position. 

The reason that we've chosen this model, rather than just leaving it all up to the claimant to prove, is because of cases where a politician says, 'Well, I have evidence from the security services that something has happened'. Obviously, it's impossible for the public to fact check that. It is, however, possible for a court to fact check that, because we have procedures in court, and they're called 'closed-material procedures', where, essentially, we hear closed evidence. I use those a lot when I'm dealing with information law cases. And I'm in the Supreme Court on just such a case in the next few weeks. But we also use them in cases that involve national security. So, this allows for the courts to essentially do a fact check that the public aren't able to do. However, if you wanted to draft it as just saying, 'The applicant must prove that the politician has made a false statement' and, perhaps, give the court discretion to use a closed-material procedure to call that evidence, that would work equally well. So, it's two different routes to the same thing.

Just to break it up a bit, I suppose the main concern we've heard from all of the witnesses is just an anxiety about the whole criminal justice system getting involved in this level of political debate and whether or not that is appropriate. We heard some, I thought, persuasive evidence this morning about concern about the spread of lawfare and the way that the threat of legal action and solicitors' letters can be used to intimidate and also impose a cost and that this would be far better dealt with within the existing parliamentary processes. That, I think, is the nub of the case against the argument you're making, and I just wanted your response to that.  

Let me answer that directly. Firstly, I think the threat of lawfare has been advanced on a fairly extreme basis. One person suggested, 'Well, look at all the times that someone on Twitter has accused Rachel Reeves of lying.' The suggestion that everyone who puts something on Twitter will go through a legal process of bringing a claim, funding a claim and then taking the risk that, if their claim is found to be vexatious, they could be prosecuted for a criminal offence, I think, is a tall order. And you can actually see that in practice.

Let me give you a couple of examples of that. More than a third of people in the UK believe that Tony Blair committed war crimes in Iraq and should be prosecuted for war crimes. All of those people have a right, in theory, to bring a private prosecution against Tony Blair. Only one such prosecution has ever been brought. So, millions of people saying, 'We think he's guilty of these crimes', millions of people being able to bring a prosecution for those crimes, one such prosecution being brought. The committee has before it a number of examples researched by its own lawyers of similar laws in other jurisdictions. I was not able to find any evidence of a floodgates thing happening in any of those jurisdictions, and no-one else has produced any such evidence.

And finally, let me give you an example of where similar warnings were made. The same sort of argument was made in relation to the hate crime law in Scotland that came into force in March, and, in fact, in the first week, there were a large number of reports under that law. It turned out that most were actually from opponents of the law who were trying to show that it was ridiculous. Those reports have dropped off completely, and, in fact, there are now so few reports that the Scottish police no longer keep a monthly record; they've switched to a quarterly record, because there wasn't any point in counting on a monthly basis.

We crunched the numbers a little bit and looked at if the rate of reporting for the ICDR model were to be the same as the rate of reporting in May for the Scottish hate crimes law. Then given that, in Scotland, there are a 5.3 million potential defendants, and, in respect of the Senedd, there would only be 60 to 90 potential defendants most of the time, you are looking at a rate of fewer than 0.06 reports per week.

Let me go one step further, though, in that this law contains really strong safeguards, and I would argue stronger safeguards than any other equivalent provision, and those safeguards are, firstly, the criminal offence of making a vexatious claim; secondly, the high burden of proof that you have to discharge to bring a claim in the first place—so, the proposal is that, before a claim is even put to a politician, before a politician has to respond to a claim, or even, in theory, know about a claim, that claim has to be reviewed by a judge. Now, we use this for judicial review; judges review claims for judicial review, and say, 'Does this have a real prospect of success?' We suggest doing the same thing in respect of these cases.

Now, in a judicial review, the judge has to deal with multiple points of fact and very complex points of law. In this sort of case, the judge will only ever have to deal with one point of fact, and won't have to deal with complex points of law, so we think the judges can do it quicker.

And how do you think this will cut across the issue of parliamentary privilege?

As parliamentary privilege currently stands, it doesn't impact it at all. In the Senedd, privilege only extends to protection from contempt and defamation proceedings, so it wouldn't touch this at all. Say you were to extend Senedd privilege to be Westminster-style privilege, well, then it may impact it, but the essence of privilege is that privilege can be waived. So, privilege is not something that is imposed upon you and binds you, privilege is something that you decide the extent of, and so it would be within the Senedd's power to say, 'We consider truth-telling to be so important that we waive privilege in this matter.'

Now, can I just say one more word on parliamentary privilege? This is a concept that was developed a long time ago, and was intended to address the king, the executive, abusing his power over parliamentarians. It wasn't ever intended to allow parliamentarians to conduct themselves at a lower standard than other professionals would conduct themselves. It wasn't intended for parliamentarians to avoid legitimate scrutiny and legitimately being held to account. And so I would argue that it would be very proper for the Senedd, if we ever get to the point where Westminster-style privilege is extended—and I will say I did check with someone in the Cabinet Office about this last week, and they weren't able to give me any sort of schedule or date for such a thing to be extended, but if it were ever to be extended in the distant mists of the future—it would still be open for Senedd Members to waive it and proper for them to do so.

And finally, you said at the beginning that you were agnostic about whether or not civil or criminal was the best way forward, and Jennifer Nadel indicated that she had a further view; in evidence last week, Professor Emyr Lewis suggested that he thought that extending existing civil classes would be an appropriate way to take this forward. Could you just, briefly, if you could, talk about the balance of arguments between civil and criminal as the best way forward?

The principal thing that recommends the civil courts is, I suppose, twofold, both perception and procedure. So, perception-wise, there seems to be a concern about using a criminal sanction. The civil courts are very used to imposing regulatory sanctions. The civil courts also have the advantage of complying with the civil procedure rules, which means their procedure is clearer and more consistent than in the magistrates' courts. So, as a litigator, my preference might be for the civil courts, because I get the advantage of the civil procedure rules, which means I know where I stand more clearly.

The advantage of the criminal courts is, as Jen quite rightly says, it makes a stronger statement to the public. It shows how seriously Members take this. The magistrates' courts are very used to applying regulatory sanctions, and a good example of that would be sanctions under the Licensing Act 2003 and a closure order under the Licensing Act, which I think it was suggested—. Maybe I misunderstood, but I think it was suggested last week that a closure order under the Licensing Act would require someone to meet the CPS test for bringing a criminal prosecution. Now, that just isn't true. A closure order under the Licensing Act is a regulatory order, and so the CPS test isn't ever used in that, it's entirely irrelevant. But take a closure order under the Licensing Act: a magistrates' court deals with that in 24 hours, or possibly 48 hours, I think, and is required to do so by law and discharges that legal duty. So, the advantage of the magistrates' courts is they've got experience of doing these quite swift, time-dependent regulatory proceedings.

I wouldn't say that a civil court can't do that. For example, you can hear a judicial review in 24 hours, and I think my record is about three days from first claim to deciding a judicial review, but others have done it quicker. So, civil courts can do things very quickly as well, but magistrates' courts just have that experience of a very swift regulatory process.

Thanks, Sam. Hannah's had to drop out, I think it's an internet connection issue, so I'm just taking the Chair, if that's okay with Members, for a second. I'm very conscious of time, and I'm also conscious that I've heard a lot from Sam and not an awful lot from Jennifer. Adam has got a question, and maybe Jennifer could, potentially, answer it—I'm not sure what that question might be. Adam.

No, they are well anticipated, Chair. They are both questions to Jennifer, actually. In the field that you lead in and work on, Jennifer, if you read the likes of David Runciman, Yascha Mounk, Anne Applebaum et cetera, they're all very pessimistic and are pointing, potentially, to the end of democracy itself. Do you share that view that we are facing an existential threat to democracy? And is this why you're a supporter of the proposal that we're discussing?

Yes. I think I would be a supporter, anyway, but I think that's a really important factor. We are in a really, really dangerous moment. We had the lowest voter turnout since 1928 in the last general election. And recent polling shows that a large number of young people don't perceive democracy as having any particular value, that a strong leader could do the job maybe better. And if we care about democracy, we have a very limited time to take action, and the action we take has to be visible, it has to be clear and it also has to—and this is shorthand—evince a concession of some of the privilege that politicians have reserved for themselves. And, of course, since democracy was first invented, it has been a process of letting go of part of the privilege so that it expands. So, I would see bringing in the same sorts of measures that would face the public if they were to commit a fraud, seeing them being applied to politicians in the same way as they might apply to the public, as one really visible, clear way of showing, 'We are with you. We're doing our job, but we're not preserving our own internal processes; we will stand and be judged as you stand and be judged.' And I think this gives an opportunity for that. Thank you, Adam, for raising that.

I'd just like to finish with one—. It's a historical question, really, and I'd be interested in your views. Hannah Arendt is probably the thinker who has written most about the politics of lying, and she drew heavily upon her own experience of Nazi Germany. But a contemporary of hers, Karl Loewenstein, who was the creator of the tradition known as defensive democracy, or sometimes militant democracy, wrote a very famous paper in 1937, where he argued—democracy facing similar existential challenge at that time, of course—for 14 defences that democracy needed to put in place. And one of them was laws to prevent the spread of what he called 'false rumours', what we would call 'disinformation'. He pointed to laws that had been enacted in, I believe, Finland, Switzerland and Czechoslovakia in those cases—three countries that actually didn't internally fall to fascism. Czechoslovakia, sadly, of course, fell externally. Do you think that that was a coincidence, that those three countries did actually enact a law to make it illegal to spread false rumours in the political realm? And do you think that has some—? Is it a lesson from history? Does it have some relevance to us today?

I think it's hugely relevant to us, because what we know at the moment is that lying pays. Once the lie is told, even if you correct it afterwards, the damage is done. You can't unthink something that has already been thought. It's called the pink elephant paradox in psychology—once it's there, it's there. We can all remember what figures are on the side of a bus; you know, those images stick, so we have to adjust the law to change the balance, to change the drivers, so that there is more of a disincentive against using lies than there is in favour of lies. And for the ruthless and unscrupulous leader at the moment, it's a no-brainer, it's an absolute no-brainer. So, this is more than just beefing up internal measures, this requires really firm, clear action. And as I've said, I've been travelling for the last month. I've met with military experts, geopolitical experts, and all of them, civil servants, share the same view that our world is in a dangerous moment, that nothing that we have taken for granted can be taken for granted, and we have a very limited window to take clear, effective action, and the only things we will regret are the actions that we don't take to shore up democracy while we still have it.

Thank you very much. 

Thanks, Adam. Thanks, Jennifer. Can I apologise for dropping out? I've found a way back in via my iPad. But Sam Kurtz, I know you've got a brief question you want to ask. I'm aware we're over time, but, if witnesses are okay for another few minutes, I think committee members are as well. But thanks. Sam Kurtz.

Thank you, Chair. I appreciate that. Just looking at the resourcing and capacity of the courts to deal with this, I’m not sure whether Sam or Jennifer wants to jump in first. I’m conscious of the time as well, so succinct answers would be really helpful. Thank you. Jennifer I can see you—. There we are. You are unmuted.

So, if we take the criminal approach, a case will only reach court if, first of all, the police decide that there is a prima facie case, and then the CPS decide that it is in the public interest to prosecute. So, those two hurdles will have to be cleared. In extremis, you could introduce another one, which is that the DPP has to give permission for a prosecution to take place. We had that in our original Westminster Bill. I don’t think that it is necessary, but you can make it work, and I would argue that it’s really important that vexatious and thin cases don’t reach the courts, and that this is for the lies that are really going to impact democracy and pollute the water that all of us swim and work in.

Sam.

May I say, succinctly, first: excellent jumper? Top stuff. 

Thank you.

Jen has given a very good answer if you use a pure criminal model, and I would just remind you that the ICDR model acknowledges that one version of it is that the initiative to begin a correction notice or a disqualification notice lies only with the CPS or lies only with the ombudsman. So, the ICDR model can work along those lines as well.

If you use what I call the judicial review version, where individuals can bring judicial review against the Government—so, if you give individuals the initiative to apply for a correction notice—again, when you look at the reports, and the comparison with the Scottish hate crime Bill, you are probably looking at a very low level of reporting. So, I don’t think that the courts are going to have too much of a problem dealing with 0.06 reports per week. The reason for that is that there is a high bar to bring in your claim in the first place. So, you have got to, first, put your money where your mouth is. You have got to prepare your evidence—you have got to find your evidence and you have got to put it in witness statement form. You have got to make your application to the court. You have got to succeed in that application. So, the first time a single judge sees it, the complainant will have already gone through a significant number of barriers before they can bring it. This is a very good way of vetting out complaints that are trivial or vexatious. Making a complaint carries with it its own risk, and so, even if you use the judicial review model, then you are not going to see a significant resource impact on the courts.

That said, I would also strongly encourage, as a general point, legislators to resource the courts better. The real way of solving or avoiding this problem is solving the existing issues in the courts. So, I would certainly encourage that, but I don’t think that these proposals are going to significantly add to those issues. I would also note that, in all of the evidence that I have seen, of people claiming that they would, they have just made bare claims. No-one has actually ever produced any substantial evidence or analysis or statistics or numbers to support those claims. We are the only ones that have put that evidence before you, and it actually points to levels of claims being relatively low.   

Thank you, Chair.

Just one very final, brief question from me before we do have to, sadly, close this session, which has been very informative. In a separate evidence session on this, concern, or a reflection, was raised regarding distinguishing how we treat deliberate deception, as more being more serious than, perhaps, other aspects of political misconduct, whether that is, for example, harassment or bullying. Do you have any reflections on that? Happy to go to Jennifer or Sam first. Jennifer.

I think that if we lose grip on what's true, then all bets are off. We are not talking about something that affects one or a small number of individuals; political deception unhinges or untethers us from the factual basis upon which democracy relies. So, the consequences of political disinformation cannot be underestimated, and it's a different from a wrong that involves a perpetrator and a victim. This is a wrong that is done to society and that undermines democracy as a whole.

I would point out that there is already a class of wrongs committed by politicians that we recognise that harm society. It was suggested that the—and I'm going to use the example of the crime of misconduct in public office, which essentially applies to abuse of office for personal gain—. That's a very broad summary, but that's essentially where it sits. I'll put in writing my submissions on that. The courts and the Law Commission have both found that it's not appropriate for political lying in this way. But the reason I reference it is that is shows that, for certain wrongs, we recognise that they need to sit outside the internal procedures, and so abuse of office is one. I would say, for the reasons Jen has given, because political deception harms democracy as a whole, harms citizens as a whole, that sits alongside those particularly serious wrongs that we do think are appropriate to be dealt with outside of the political milieu.

There's also a practical reason, which, for the standards model, is actually quite appropriate for dealing with things like harassment, because it is something that happens between two or three, or a small number of individuals. There has been a degree of success in that, setting aside the problems of interpretation that I've already set out. It's not ideal, but it's better. The standards system has never been able to deal with political lying, because it is structurally inappropriate, for the reasons that I've already given.

Thank you. Sadly, we have actually not just run out of time, but we've gone over time. Can I thank you very much for joining us this morning? I know Sam has already said that there'll be a follow-up submission. I'm sure there will be things that the committee might wish to follow up in writing—any questions we didn't quite get to, or reflecting on some of the things that were said, if we want some further information from you. Also, just to let you know that a copy of the transcript will be sent to you as soon as possible, and you will have the opportunity to check that for factual accuracy, of course. But thank you very much for your time this morning. We appreciate it.

Thank you.

Thank you very much. I would echo that, if anyone does want to e-mail me with written questions, I'd be delighted to receive them and will answer.

Thank you very much. I'm sure there'll be some correspondence from the committee. 

We'll move on to item 5 now, which is papers to note. Members are invited to note written submissions from the Criminal Bar Association, Reform Political Advertising and Hank Linderman. Are you happy to note?

I will, then, move on to item No. 6. I will now 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. Diolch yn fawr.