Cynulliad Cenedlaethol Cymru

Welcome, everybody, to this morning's meeting of the Standards of Conduct Committee. Just to say that I welcome members of the committee, and also observer members, to this meeting this morning. The meeting is bilingual and interpretation is available. We have one apology, which is from Lee Waters, one of one observer members. I have to ask Members at the outset if they have any declarations of registrable interest that they wish to declare. Adam.

Diolch, Adam. Thank you.

Can I welcome Professor Blick and Dr Govan to this public session of the committee on our inquiry into deception this morning? We're grateful for you giving your time this morning to join us on this important subject. We've got a range of, as you can imagine, questions that we are raring to ask you this morning as part of our inquiry, but perhaps at the outset I could ask you just to give a very brief introduction to yourselves, and just set out your views on whether making false or deceptive statements should be made an offence, and the reasons for that view. Thank you.

Shall I go first? I'm Andrew Blick. I'm a professor of politics and contemporary history at King's College London and here today I'm speaking in my capacity as director of the Constitution Society, which is a charity for the purposes of promoting awareness of constitutional issues in the UK. We don't, as a society, have specific positions as such normally, other than we think that constitutional matters are important, should be taken seriously and people should be made aware of them.

In that sense, our position on the issue we're talking about today is it's really good that you're committed to looking at this; it's a really important subject. I think it's also fair to say that what you're doing is path-breaking in the UK, and potentially internationally, so we just welcome the fact that this subject is being taken seriously. The misleading of the public is clearly a problem constitutionally and democratically. Looking at ways of addressing it that we don't yet have available to us is definitely of value. So, for that reason, we welcome it.

I'll hand over to Dexter—. I don't know if I'm supposed to make declarations of interest, but the relevant one was already made by one of your Members anyway—that I have participated in the workshop referred to.

My name is Dr Dexter Govan and I'm director of research at the Constitution Society. So, I'm here on that basis. 

Thanks, both. Can I ask at the outset if you think—? I know about the workshop you've done and the work around it. Can I ask, perhaps from a practical perspective, for your views on what measures or mechanisms could be used to address the issue of deception or false statements, and whether that is an offence or whether that's strengthening existing standards processes? I'd welcome your initial reflections on that. 

I think what's going on here is quite interesting as a path of development. Clearly, misleading the public, including outright lying and other forms of misleading, is not new in politics, it's probably as old as politics itself, but that doesn't mean that the nature of the problem doesn't change. I suspect that, in particular, two things are relevant here. One is, as we know, technology; misleading information can spread more quickly and in ways that are harder to regulate, I think, than was previously case, particularly social media. We can see, very unfortunately, in events over the summer of 2024 what the stakes are here—that misleading the public can have absolutely catastrophic consequences. So, I think, potentially, the nature of the problem is changing.

Also, I think we are seeing a more general tendency, in that the way in which we try and regulate the behaviour of public office holders and politicians is changing. Historically, we tended not to write these things down at all, what was once called—. It's an outdated term, I think, now, but what was once called the ‘good chaps’ theory, that people just behave themselves—whether that ever really works. But that was what we tended to rely on. Then we moved increasingly to trying to write these things down in documents like, at UK level, the ministerial code, ‘The Seven Principles of Public Life’, those kinds of things, and sometimes those things would have a regulatory mechanism attached to them, like the ministerial code has the adviser on ministerial interests.

How well does that work? I think we now may be moving into a time where we're starting to look for harder regulation of some of these principles, and that may represent what we're talking about here today. For instance, the ministerial code in Northern Ireland now has a statutory basis. I think it has done since the St Andrews agreement. And also, at UK level there are signs that the courts may be willing to take the ministerial code into account in judicial review to influence its decisions. The point being I think we are seeing a movement towards harder regulation, and certainly I think that's what this signifies.

If we present this as a choice, a dichotomy between strengthening the existing regulation and good practice and the creation of a criminal offence, one might argue that the introduction of a criminal offence, even if that's a fine as opposed to a five-year jail sentence or whatever, could have a deterrent effect. So there are options available in terms of what you use to enforce it.

Just on that last point, do you have a view on, if an offence were to be introduced, what that should look like, whether it should be criminal or civil or whether there should be a scale dependent on the matter in question?

I would stress again that, as a society, it's not for us to stipulate these things. I think the only concern would be that an overly severe penalty might incur issues with the European convention on human rights and free speech, as we saw in Salov v. Ukraine, where the court viewed a five-year jail sentence to be inappropriate as a ruling for political deception. So there would be concerns certainly with that level. I’m not a lawyer, so it wouldn't be legal advice, but in theory that might have some implication on any criminal penalty, but certainly at the more extreme end that would be something to consider.

As Dexter rightly says, there's the European Court of Human Rights case law, but the proposal as envisaged for current purposes is taking that into account, and is obviously much more carefully, much more narrowly defined, and certainly it's not that kind of punishment we're talking about. As was said, we don't have a specific position, but an argument in favour of making it a criminal offence is that it makes it very clear that this is a serious thing. I think calling it a criminal offence, some people might find that a bit off-putting, but equally it does signify as well, aside from the things you can then do because it's a criminal offence, that this is a serious matter, and it's something more than a rap on the knuckles from a committee, which most people, maybe, in the outside world see as politicians telling other politicians off. This takes it into a different territory, which I think is a significant thing to think about. And then also it does mean, I guess, that you're then introducing—again, I'm not a lawyer either—procedures that you couldn't use if it was either a civil offence or if it was being resolved politically. But again, I don't want to go too far into that because that's not my area of expertise.

And just one final point from me before I bring others in. I think you've touched on it, both of you, in your previous responses around trust in politics and a potential offence acting as a deterrent. So, would you say from your perspective you see the creation of such an offence of deception to try and address some of that, to restore some of that trust in politics that you say has been eroded? You say it's been there since the dawn of time, but there's the amplification of that through the social media mechanisms that exist today. 

As you just said, there's been a problem—if you want to call it a problem—or a tendency for politics to involve the misleading of the public and the public not necessarily to trust politicians. There is polling evidence to suggest that overall trust in politicians is at an all-time low. If you look at the veracity index that's been brought out every year since 1983, it's at its lowest point. I think politicians in general were the least trusted of all the categories that respondents were asked about, with about 9 per cent trusting them to tell the truth. So there's an issue there. 

I don't think anyone would claim this is going to solve all of that. Also, in a sense, a degree of mistrust in politicians is quite a healthy thing. You wouldn't want people to be completely credulous of politicians at all times anyway. However, this could be part of a package of measures that might help. That's what I would say. And I think the way in which it might help is not necessarily by the particular cases that might be brought, because in a way the sign of success would be no cases have to be brought. That would be the best success. Or cases don't have to be brought any longer. I think it could help as part of a package of measures. 

It could raise the stakes in terms of the possible negative consequences for not telling the truth, which may figure in the way politicians behave. It could contribute to a cultural change. It might make people feel, in time, that they could trust politicians more. Again, let's not overstate it, but it could help. And so obviously the best outcome of all would be that maybe it gets used a few times. The first few times it's used could, in a way, generate less trust because they're going to attract attention, but then in the longer term it could contribute to a culture in which politicians were less likely to do this, and in which the public might be willing to be more trusting of them. 

And I suppose another factor in all this as well is that it's not all politicians. I'm not claiming you're all untrustworthy. There's a very dangerous thing, of which you're all aware, of people saying they're all the same, they're all as bad as each other, which is not the case. And it could be useful as a way of identifying those ones who are the problem, who are contaminating the whole political class through their behaviour, and perhaps discouraging them from either being in politics or behaving that way when they're in politics. 

I think it's important to stress, certainly with regard to social media, that it's difficult to envisage a circumstance in which this would impact active disinformation being spread by multiple different sources across social media, but what it certainly would do is set, perhaps, a higher standard if it was brought in at a criminal level, or at least there would be a perception that it was a higher standard than what exists currently.  

Thanks. I'm going to bring in Jane Dodds now. 

I think that's the right group. If we're doing it at a UK level, I would say it should be Members of Parliament, including peers, and people running for election, partly because obviously when a general election is called, there are no MPs—there are just people contesting seats. For one thing, it's quite useful to have a rule that covers what people say inside and outside Parliament, because, again, certainly at a UK level, there are differences there. And also, it protects parliamentary proceedings, which are really important, because it's important that Parliament is told the truth by members of the executive, because one of the functions of a Parliament, or the Senedd, or any legislature in our system is to hold the executive to account. And then, it's equally important that electoral processes have as much integrity as possible, and misleading voters is also a problem. So, I think you're covering two really important areas where misleading or lying, or whatever we want to call it, is a problem that needs to be dealt with. So, I think covering those two basic bases is the right way forward.

Yes. Obviously there are some guidelines, through electoral law, on candidates and lies about opposing candidates during election periods, but I think it would be fair to say those are quite tightly confined at the moment, and, you know, broadening those then, within this offence, would seem a reasonable step alongside elected Members to me.

I don't necessarily have a view on the exact time period. I suppose it's useful to work back to what is the principle underpinning the time period. And I suppose—not terribly helpful, but—it shouldn't carry on for ever; we shouldn't be able to hold things against people that they said 30 years ago, probably. But, equally, it may be that a thing said comes to light later, for various reasons, that still should be actionable. And also it may be that a particular claim made only gets exposed later, but is still serious enough that there should be a way of—. It may be that other things come to light that make a previous claim more of a problem than it previously was, or whatever. So, I think those are the two principles. But, in terms of the time frame, I can't give you a definite figure. I don't know if Dexter's got one.

No, not at all. I think a consideration that has to be made relating to time frame is also how long it's going to take to enact these things, and, for me, that would be the biggest practical concern about the whole thing. If it takes two years to action such an offence, then there are real issues there.

That is a significant question. I suppose—. Yes, so, for instance, if somebody is tweeting, or whatever we call 'tweeting' now, and they're doing it from a private account—. Yes, that is—. Sorry, that's an interesting question you've just raised there. I suppose there will be points when it's difficult to separate the private person from the public individual. If they're a holder of public office and they're using official channels of communication, then, clearly, that's very obviously a public communication. If, during an election campaign, in official election materials, they're making certain claims, that's very clear. I can see that you could get into grey areas.

It might be interesting to look at some of the case law around electoral cases of false claims. And I'm not familiar with the case law, but I suspect there may be some interesting points in there around what constitutes making a false claim. But I think you've just highlighted, 'Well, there may be some grey areas', but then that's partly—. Were this to be a thing that goes the courts, this is partly a thing that courts will make decisions on. That's their job, and they will develop case law around it. So, I think a court is capable of addressing this issue. There'll be an attempt to define it in legislation, but, equally, a court is there to investigate, to look at the evidence and to make that decision. So, I can't necessarily answer that right now, and I can see it would be an issue, but, equally, I think that's exactly the kind of thing that we ask a court to do. I don't know if you've got anything to add.

No. That covers it.

Diolch, Cadeirydd.

Diolch, Jane. I'll turn to James Evans now, for some further questions.

Diolch, Cadeirydd, and thank you very much for coming today. I’ve got a few questions that I’m going to ask, but we'll see. Since you touched on the courts there very briefly, I’m just interested: Parliament is there to set the law, and the courts are there to enforce the law. Do you think, bringing this in, there could be an element that some people could say that we’re politicising the courts, that they’re going to have to rule on political decisions and that could actually make them non-party political? I know they should act independently. Do you think is a risk that some people could see this as, ‘Actually, we shouldn’t be doing this. We’re actually having courts deciding on political matters, which probably they shouldn’t be doing'?

Are they frozen, Cadeirydd?

I think they may have frozen.

I wouldn't want to answer that question, either.

As much as you'd like to make somebody think that you'd stunned them with your question, I think you might have frozen then.

Yes, sorry. We're back now, I think.

We're back again now.

Did you catch that question?

Yes, politicisation of the courts, which is a good question. Now, I think, as a general principle, it’s good to avoid involving the courts in political matters. I think that’s kind of the way the UK constitution tends. Obviously, other jurisdictions, there’s more court involvement in political matters. However, the courts aren’t completely excluded from political matters. The courts are getting involved, for instance, in quite important matters related to devolution; we’ve seen this happening, and we’ve seen the courts involved, for example, in the prorogation case in 2019, major political constitutional matters, and I think, though certain sections of the media didn’t like it, the court actually have performed an effective role and acquitted themselves well in dealing with matters that actually it wasn’t appropriate, necessarily, for a legislature to be deciding for itself, because that begins to look like self-regulation, which is a problem in other areas of society and is also a problem in the area of politics. So, yes, in a sense, it’s regrettable if courts have to get involved, but they will have become involved because of poor behaviour by certain politicians. So, if we want to blame someone for the involvement, it’s certain politicians and their behaviour that have led us to this point.

So, I think you’re absolutely right if you’re saying it’s regrettable that the courts need to be involved, but I think to have them there as a backstop is not in itself a deal breaker for me; it’s partly how it’s handled. It would be a shame if there were constant cases being brought—obviously, that would be a shame; I hope that wouldn’t happen, but it shouldn’t be a reason not to regulate. And the idea that the courts—. The courts do get involved in making political decisions, they’re doing it on quite a regular basis, but, obviously, a minimalist involvement is better if possible.

I wouldn’t have concerns in that regard.

I think Mick wanted to come in, Cadeirydd.

Yes, Mick. Do you want to come in on the back of that point?

Yes. That brings us, doesn’t it, to the constitutional question of parliamentary privilege. How important is parliamentary privilege? I put that within the context of a UK Government that’s, basically, said it wants to extend parliamentary privilege so it is consistent across all four parliamentary bodies within the Senedd.

Yes, this is certainly an area I would have concern for. Equally, parliamentary privilege is limited in Westminster, and I do think there’s a world in which the two things can coexist, but, clearly, there would be quite an easy circumvention were parliamentary privilege to be extended to the Senedd.

And I think the other thing to say is that parliamentary privilege is an important thing, but, actually, at UK level at the moment, it’s also acknowledged by observers as being a bit of a mess at the moment. We’re relying on legislation going back to the seventeenth century that was brought into being in quite a different set of circumstances involving—. We all know the back history to it. And actually, aspects of it could do with updating and also clarifying. There are issues around who actually is covered by privilege. Would I be, for example? Would I be covered by privilege giving evidence to you today in the same way that you're covered by privilege? These are all issues that would need looking at, so, in a sense—. The fact that the Government are talking about extending it—. I absolutely agree it should be the same across all territories, but that sounds to me like a good occasion for a full overhaul of the whole concept, which could include within it those areas where we do not extend parliamentary privilege and where, actually, we have standards relating to the behaviour of people in Parliament that we think should be applied and shouldn't be overridden by privilege.

We are talking also here about the ministerial code, which is clear that Ministers who unwittingly mislead the House need to correct the record immediately, and Ministers who knowingly mislead the House are expected to resign. Now, that suggests to me that the ministerial code doesn't fit with, necessarily, parliamentary privilege. So, these are all things that would need to be looked at.

The issue of clarity of privilege is one thing, but, for example, the creation of a criminal offence effectively removes parliamentary privilege, doesn't it? It means there will be no parliamentary privilege and it means, for any individual, anything you can say can be potentially reported as a criminal offence. That has implications. You mentioned about numbers, and, of course, the issue that then comes, it seems to me, is how do you define, and, of course, you then put the courts in the position of determining whether someone is actually able to continue as an elected Member of Parliament. Do you have any concerns about the removal of parliamentary privilege within that context? And you then came on a little bit to talk about something that I think is probably equally important and that is there's a difference between a criminal offence, but also the creation of a standard that can lead to the removal of someone. I wonder if you can perhaps explore that a little bit.

Yes. Well, I suppose we can look at somebody, a former Prime Minister, who said certain things in the House of Commons that were then investigated by a parliamentary committee after they were no longer Prime Minister. They resigned as an MP before the report came out, but the punishment that would have been imposed on them would have meant that they would have had to have had a by-election, so, in effect, they were being removed as an MP or would have had to have been re-elected. So, we can see there that somebody—. Again, you're quite right, by the way, to say there's a difference between a criminal offence—. Then you are getting into territory where something that somebody said in Parliament means they can be prosecuted under a criminal offence. That is a difference, but not, I would submit, one that can't be dealt with.

So, we've seen that that can be done by a committee, that a committee can, effectively, remove someone as an MP. They might get re-elected again. Johnson's one example, there are others, but it's about things that he actually said to the House of Commons that led to what would have been a removal if he hadn't have gone anyway. So, it can happen. The difference is that's a committee doing it.

One of Johnson's big complaints about that whole process—I'm not saying I buy it, incidentally—was that this wasn't a fair judicial proceeding, that it was a—. I think the term 'kangaroo court' cropped up. We are actually moving, potentially, if we go down the path we're talking about today, to a full judicial proceeding. So, in that sense, I think it could be helpful and I think it was the case that—. Although I accept there are all kinds of challenges involved in involving the judiciary in this—I wouldn't go into that lightly—it might also be the case that, if you look at the experience of the parliamentarians who were involved in investigating what Johnson had done, I think they were exposed to unfair pressure and treatment by the media and by some of their own parliamentary colleagues, and I think it might be fairer to take that procedure out of Parliament and not expect people to judge their own peers in the same way, and put it into a court in extreme cases. Maybe that Johnson case was such a case, I don't know; I wouldn't want to speculate. But I think it shows that, actually, sometimes, you're putting Members in an unfair position if you're dealing it with it via a committee.

Mick, I'm going to bring James back in, because I'm conscious that James has some further questions, and we've got some other areas we want to get through in the time we have remaining—

Mick's covered some of the areas I want to cover on privilege. Mick and I both share an interest in this area. But one thing I am worried about if privilege is removed is also the impact on somebody's human rights and article 10 and the right of freedom of expression as well. If we brought a deception rule in here and a sanction, how would it impact on someone's freedom of expression? Because I can stand up in the Senedd now, under privilege, and say that I believe that the world is flat. That is a complete and utter lie, but I could say it in the Senedd without fear of recourse. If this sanction was brought in, if I said, 'In my opinion, I believe that the world is flat', then that doesn't fall under this sanction, does it, because that's me expressing my own freedom of expression? So, where do you think this interacts with human rights? Surely, it's going to put the courts in a very difficult situation if they're trying to start judging on individual politicians' infringements on their human rights.

I wouldn't necessarily agree with that. I mean, there are limits—you know, free speech isn't completely unlimited in any context currently, and I think we trust the courts to adjudicate that based on legislation that exists. So, I think there might be issues in the detail of any proposal in terms of what's permitted and what's constrained, but I think that's a question of specifics, rather than a question of principle, which I think has broadly been addressed over time in these long-standing debates about what the limits on free speech should be. We have limitations, for example, on advocating terrorism and things like that, which we trust the courts to administer with regard to people's right to freedom of expression. So, I don't think there's a question of principle here; there might be a question of detail in whatever legislation or frameworks are implemented. That would be my view on it.

Yes. I agree with that.

Okay. My final question, as well, which is a bit of a generic, general question: do you think that this could inadvertently—it was raised in the Senedd at the time—be seen as a badge of honour, somebody getting sanctioned in this way? People from the extreme left or the extreme right would love this, saying, 'Look, I've expressed a view and I'm being curtailed by the courts, by this process. We're removing freedom of speech. Horrible, nasty establishment. You don’t want us to say anything. I've got no way to express myself.' Do you think there's an unintended consequence of bringing this in that, actually, it may have all the right intentions, but it could actually fuel some of that far right, far left extremism, and a distrust of the courts and criminal justice system here in the UK? And I'm done, Cadeirydd. Thank you.

I think that's an entirely reasonable point. To get back to the case you gave earlier, you could become a hero to the flat earthers who would say that the round earthers were all involved in a conspiracy against you, and it's not going to lead to anyone who believes that the earth is flat no longer believing that the earth is flat and it may embolden them in their cause, and also other causes like that. So, I think that's entirely possible, or certainly in the short term, but we would hope that this kind of measure, again, could contribute to a longer term cultural shift in which discourse was hopefully of a slightly higher quality and those kinds of views perhaps had less adherence than they've had in the past. It might, in time, close off some of the levels of support for those kinds of attitudes. Who knows? But on the other hand, the alternative to trying is to admit defeat: that there's nothing we can do about these kinds of viewpoints, that anything we try is bound to fail and only strengthen the opponents of principles of democracy and our constitution. So, I can see an even bigger problem with just saying, 'It's all hopeless, so why are we trying?'

Thanks. I saw that Adam indicated to come in on the back of that. Perhaps, Adam, you'd like to pick up on definitions, as well, at the same time, to get us started, because I'm keen to cover other areas and I'm conscious that time is running. So, Adam.

Right. I've got a few supplementaries, but maybe I'll cast my eye over the notes in due course. Just taking our minds back to the Boris Johnson case, isn't it, in a sense, though, still indicative of the general rule that, in a self-regulating parliament, politics will always win in the end? Because the actual initial move that led to the creation of that Committee of Privileges inquiry was an opposition motion referring the case, and the reason that it won is that the Conservative whips realised that they had a huge rebellion on their own side on their hands, and so the Tory party was split, effectively; they weren't going to come to the defence of the Prime Minister. So, in a sense, doesn't it actually prove the point that—not in any way questioning the integrity or objectivity of the committee—the process was still very much a political one, rather than a judicial one, in that sense?

I think it's true, and also it relates partly to the nature of the UK constitution and the UK electoral system that we tend to have a system where the Government is of a single party that normally has an in-built majority in the House of Commons, and, therefore, if anything's actually going to be brought—. If it's going to be held to account over this kind of issue, it'll be because of pressure within its own ranks over a problem that it can't actually contain any longer within its own ranks, and it spills over into an actual potential rebellion in the House of Commons. So, it's to do with, as you say, the self-regulating nature of the system, and then the fact that the most important pressure of all in the system is the pressure on your own side. So, yes, we are relying on—. In a way, that serves to highlight how, under the current system, that's what we're relying on: we're relying on self-regulation. And I suppose, partly, a question for us today is, 'Is self-regulation enough?' And you could say that, in the case of Johnson, in the end, his various behaviours came back to bite him and led to his exit—who knows, he may come back again—from No. 10, and then also his exit from Parliament came about because of his behaviour, and the fact that there was revulsion even on his own side about what he was doing. But it did take quite a long while before it happened, and it was reliant upon all kinds of contingencies, such as perhaps the decline of the Conservative Party in the opinion polls, which was going on at the same time, so that he was no longer seen as being a political asset. If that wasn't the case, would there necessarily have been the same degree of pressure on him? I don't know. So, in the end, the question, I suppose, to ask—the central question—is, 'Is self-regulation enough in this area, and does it do the job?'

I would point—

I'm interested in the arc of the development of the British constitutional principles that you alluded to earlier. Before the—. As you say, you referred to the 'good chaps' theory, or the honourable gentleman and honourable ladies period, where conventional norms were enough. There was the assumption that no MP could lie; you couldn't accuse another MP of lying—I got chucked out of Parliament for actually accusing Tony Blair of lying—because the assumption was that everyone would behave honourably. Before that period, of course, there was hard-edged accountability in the form of impeachment. It was invented here and exported, but that stopped around 1840; I tried to resurrect it. You had the impeachment phase, then you had this phase where people were expected to behave well. Profumo, when it was proven that he lied, resigned, and that was the tradition. Why do you think that phase has come to an end, it seems? Even with codes of conduct and self-regulation, it doesn't seem to be enough to raise public trust, because politicians are not behaving according to those traditional conventional norms. What's changed in politics? 

What's changed? That's a good question. I suppose the first question is, 'Has anything changed in some places?' Are, actually, the public holding politicians to higher standards than they once were? Is that part of the problem? I think it may be. Is there more scrutiny of politicians than there used to be, more freedom of information? Freedom of information was believed to be yet another magic bullet to increase public trust. Well, it doesn't necessarily, because it's a bit like going to the sausage factory, isn't it? Some stuff it's better not to know about. I'd like to put that there. I'm not completely dismissing the idea that there are problems, but I think it's partly perceptual and partly more awareness of what's going on that can lower trust.

Then also, once these rules and codes are published, you actually have a set of standards that you can try and hold people against, and that can lead to more criticism as well, because what we now call the ministerial code was once a document called 'Questions of Procedure for Ministers', which dated back in some ways as far as the first world war, but it wasn't publicly available, and the public weren't even allowed to know it existed. So, how were we to know that somebody violated the ministerial code when we didn't know what the ministerial code was?

Now we've got to a point where the current Prime Minister does things that aren't even a breach of the rules, but still can be criticised when he makes declarations about receiving gifts that were within the rules, so it's quite a different shift we've seen. There's actually an organisation we support, called the United Kingdom Constitution Monitoring Group, which has pulled together a lot of these different principles across various different codes, which we can send to you. They've pulled them together into a kind of list of 20 principles from official documents, which we believe kind of captures some of the key bits of the UK constitution. So, in a way, it's all there in writing.

You only really read about the ministerial code when something's supposedly gone wrong. So, just to say, with all those things, we shouldn't automatically assume things have got worse, but I think it also may be the case that some politicians have realised that, particularly in the context of declining trust, the penalties for actually breaking the rules are quite low. If the public assume all politicians are as bad as each other, which, as I've said before, I don't think is the case, then if you really are a bad one, what have you got to lose by behaving badly? Because, in the end, you can just say, or people say on your behalf—which they said on Johnson's behalf—'You haven't really done much, and other people have done the same.' So, it may be that there’s bad learning going on, that the costs of breaking rules or departing from norms aren't that great, and therefore you might as well do it, and even if you do get found out, you'll get found out further down the line, but you'll get to be Prime Minister along the way, or whatever.

So, I think that might be something to do with it, which then points to why, I guess, we're having this conversation today, because we're looking for: is there something more outside the existing tools and codes and enforcement mechanisms that we can try that might work? And, in truth, we don't know for certain, but that's why this very interesting idea is being discussed. And, Dex, are you going to—?

No, to return to your question, it's not uniform across countries, but this is also an international phenomenon, isn't it? The UK is by no means unique in declining trust for politicians, so I think there is something more at play than simply suggesting politicians now are uniquely badly behaved in the UK or therein.

Prompted by the Chair, I just wanted to ask what's your view on where we can set the boundary, then, in a framework for adjudicating on deliberate deception between, for example, statements of opinion or belief, which we would want to protect as part of free expression, and statements that are clearly purported to be statements of fact, which, if we know they are untrue, of course, would be an example of deliberate deception. So, how do we set the boundary between those?

I think, personally, that's a matter for the Parliament. I think we would obviously stress a tightly constrained framework on that, particularly at an initial stage. If this fundamentally boils down to a position of principle, the idea is not that this is going to hopefully be implemented across every politician in every Parliament in the world. So, in a sense, the more tightly it can be constricted, the better, I would say. But, again, were one to do it, that would be my view, rather than a kind of expression—.

And I think you'd need to find a way in which the court, if it was a court making the assessment, could make the assessment and you couldn't, for instance, just say, just by putting the words ‘I believe’ in front of something, then that's your kind of get-off-free card, that you can then mislead people. So, you'd need to look beyond just the form of words that people were using when they were perpetrating the alleged deceit or misleading statement, that they couldn't just evade responsibility by certain generic phrases being inserted.

But again, I hate to say it, because I've said it a few times, but it would be partly for a court on a case-by-cases basis and building up case law—hopefully not too much case law—that could make these kinds of decisions because that's what they're equipped to do. But it's useful, maybe, in the design stage to think about—and I'm sure you've done this and I've seen it in some of the literature around this proposal anyway—to re-run certain instances where we think a misleading statement has been perpetrated by a candidate or an office holder and ask, 'What kind of mechanism would deal with this? What does that mechanism look like? What would be the unintended consequences of that mechanism? Would it work? Is this the kind of statement we want to deal with by this means, and would it actually do the job?' So, I think to actually look at some real-world examples might be a useful exercise.

Thank you very much. 

Thanks. I'm conscious we are at the end of our time. Do you have a couple of minutes just so one of our Members can perhaps touch on things around procedure before we wrap up? 

Yes, of course. 

Yes, that's fine. 

Thank you. Peredur, I am going to turn to you and see if you want to pick up very briefly and cover some of the questions or concerns around the procedure part of this.  

Yes, no problem.

If a new offence of deception was introduced, any thoughts around that process? And following on from what you were saying there, those real-world examples that you were talking about, are there any pitfalls that you can see or any procedural aspects through the courts or through the Senedd that could cause us issues or things that we should be looking at?

I think it's been raised already. I think the extension of parliamentary privilege is going to be—. Which is not to say that it invalidates the whole thing because speech in Parliament is still regulated to some extent, and it's about creating a framework of different things that overlap properly to ensure that it's regulated across the board, but that, to me, seems to be something I think the committee should be paying attention to and the possible implications there, absolutely. 

Yes. And I suppose, on a more practical level, it's how quickly you can move. Because if this is during an election campaign, if someone can advantage themselves in an election campaign by doing this, maybe you'd be able, depending on the mechanism, to stop them from running again at the next election or something, but that's quite a long way off, so you want to create the penalty, you want to create the cost to be great enough, and that partly involves how quickly the thing can happen. But then, doing it quickly obviously creates challenge as well. Again, neither of us are lawyers, but those are the kinds of practical—. And I'd fully endorse what Dexter said, that we've got to be very careful around privilege and the Bill of Rights, but I don't think that should be a deal-breaker. 

And any thoughts about either a defence or being able to correct the record? So, that aspect of, 'I made a genuine mistake; it wasn't wilful deception, but I did deceive people because I said something that was factually incorrect.' Any thoughts about how you'd do that? You know, a lie can go around the world within seconds, but it takes a long time for the truth to get out. So, procedurally, how would you—?

Well, I think the drafters of the envisaged proposal in doing that are responding properly to the desire not to have an excessive measure involved. That's why I think the proposal we're talking about today, which is being discussed, is a good response to some of those problems. I guess, in a way, trying it is seeing what happens, but it is always difficult. This is a problem with press regulation as well, that the correction, to caricature, gets put on page 20 after a headline saying the opposite previously, so it was perpetrating a mistruth. So, it is a problem. 

I think in the case of genuine error, I'm not a lawyer but I would imagine there would be a strong argument against a public interest in prosecution if somebody had fully recanted what they had said that was unintentionally misleading. So, I think you could almost leave that to the prosecution on that basis.

And what about in the courts? You have a right of appeal in British courts, so where does that—? This offence could have meant that you've not been able to stand at this election, or you've been removed from office, somebody else has been put in your place, you then go through an appeal, you win that appeal—any thoughts around that?

It's difficult, but I think it's an unusual profession, isn't it? So—. Yes.

Yes. I mean, there are methods of redress in the legal system already for dealing with things when appeals occur after an event. So, I think that would be one where I wouldn't want to get into the specifics of that, but I don't think, on principle, those necessarily, you know—.

Yes. And I think there are some roles where the standards are high, and if someone is found to have broken a particular rule, it means they can't do that job any longer, and that doesn't just apply in politics; it can apply in other areas as well. But I think the stakes are sufficiently high that, even if, for the particular person concerned, it turns out to have been unfair, there's another set of standards that mean you had to apply it in that way. And I think we'd all recognise that it's reasonable to have very high standards for the way people behave in politics and in holding public office of this type, even if, in some cases, it might mean that somebody has unfortunate treatment and turns out not to have been guilty of the offence. I mean, I don't think that's going to happen often, but, yes, again, it's another thing to be looked at.

And finally, Chair, if I may. With the aspects of what we've been discussing this morning, are there any examples anywhere in the world that you've come across, through research or through others, where they've got this right in some elements or partially right, that we should be pointed towards or to look at, to get some information or to think, 'Well, that's a good way of doing things'?

We could get back to you on that, if you want.

Okay. Thank you. Diolch, Cadeirydd.

Thanks. I think we have run out of time now. I don't know whether Sam had any pressing issues, because you—. Great. Okay. That leads me to say 'diolch yn fawr', thank you very much, to you both for your time this morning. A copy of the transcript will be provided to you as soon as possible, so that you can check that for factual accuracy, and I'm sure the committee might have some further questions perhaps to correspond in writing, following on from this session. So, diolch yn fawr iawn, thank you very much, for giving up your time this morning. We appreciate it.

Thank you very much.

Thanks a lot. Goodbye. Have a nice morning. Bye.

Thank you.

I'll now move us to item 3, a motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of the meeting. So, I propose, in accordance with Standing Order 17.42(vi), to resolve to exclude the public from the remainder of the meeting. Are Members content to agree the motion? Great. In which case, we will now continue in private.