Cynulliad Cenedlaethol Cymru

Welcome to members of the committee, but also our observer members, to this meeting of the Standards of Conduct Committee. The observer members are joining us for our work around deception. As always, the meeting is bilingual, and interpretation is available. We have apologies from James Evans, and I understand Peredur Owen Griffiths will be joining us shortly. At this point, do Members have any declarations of registrable interest that they wish to declare? Great.

We'll move on to item 2, which is part of our inquiry into individual Member accountability. It's evidence session 20. I'm very pleased that, today, this morning, we are joined by Huw Irranca-Davies, Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs. We've got a number of questions, as you can imagine, the committee would like to get through this morning, firstly around recall, and then on the subject of deception, but, Deputy First Minister, if I can just ask just to, perhaps, introduce yourself first, and also your officials that are in attendance today. Diolch.

I'm Huw Irranca-Davies, Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs, and this falls within my portfolio. If I could turn to Will and Ryan there to introduce yourselves.

Bore da. [Inaudible.]

Will, we can't hear you very well.

Apologies. Can you hear me better if I have my headphones on?

Yes, that's much better.

Will Whiteley, deputy director for Senedd reform.

Good morning. I'm Ryan Price, and I'm head of Senedd reform policy in Welsh Government. 

Thank you, all. Like I said, we will, this morning, try to cover the area of recall, before, perhaps, moving on to the larger issue around deception. Deputy First Minister, if I can just start by asking you if you'd be happy to outline the Welsh Government's position on the introduction of a system of recall for the Senedd.

Yes, thank you, Chair. Well, as we set out during the scrutiny of Senedd Cymru (Members and Elections) Act 2024, we support—Welsh Government supports—the introduction of a system of recall, so that we can enhance Member accountability. It is very important, we believe. There's a point of principle here that, where Members are found to fall well short of their expected standards of behaviour, the electorate do have the opportunity to remove them.

The other aspect I would touch on, Chair, is that, where we have a recall mechanism, it'll need to be part of that broader, more coherent standards framework, so it can be utilised where it is the most appropriate action. So, we're looking forward to what the committee brings forward, because I know you've been taking a lot of evidence on this, as well as consultation. So, we're looking forward to the outcomes of your deliberations. But, yes, we're supportive of the introduction of a system of recall. 

Can I just pick up on that point that you made around the strengthening of the standards system as a whole? Does the Welsh Government have a view on whether matters that disqualify Members need to be changed, or how that system needs to be strengthened to ensure confidence in it, and how that would perhaps relate to any legislation on recall? And just linked to that, if I may, at this point, actually, because we're conscious of where we are in the seventh term and the electoral cycle, the Welsh Government's views on any timescale required for the introduction of a legislation for it to be in place ahead of the 2026 election.

Yes, indeed. Well, if I deal with the second point first, if we’re looking to legislate on these matters before 2026, I'll be frank with you, there are implications then for the wider legislative programme. So, we'll have to do some rapid manoeuvring. So, this is really in anticipation of where you might get to as a committee on your deliberations. I am discussing with the Counsel General and the Minister for Delivery the implications for that legislative programme. We are preserving a space in year 5 of the legislative programme for any legislation that may be required, but this does depend on what you bring forward as a committee and the scope of it and the complexity of it as well. So, you might be able to help us in that respect, depending on what you bring forward.

On the issue of disqualification criteria, that is a really interesting point. Look, I'm a former UK parliamentarian as well. I think probably the triggers at Westminster are a useful starting point for this discussion, although, again, it's for you as a committee to decide. But we don't have to be bound by what they do at Westminster. It's not the exact formulation that we have to follow, not least, by the way, Chair, because they of course have been looking at what they do to change their system for the triggers and so on within Westminster. So, they are open to reviewing their own one. So, I can give you some provisional views, if that's of some help.

Provisionally, my view would be that, if you have imprisonment, that has to be a trigger to recall, and also a lengthy suspension. But the question of what a suspension is—. A lengthy suspension from the Senedd should be a trigger for recall, but, again, I’m interested in what the committee brings forward on what that might mean. We've been keeping an eye on the evidence that's been given to you and the different views that have been given to the committee. Some of the concerns we've noted have been that a 10-day threshold for suspension without any discretion for the committee may actually tie your hands. So, I'm going to be very interested to see what you come forward with as your conclusions, whether that threshold should either be higher or it should be more innovative, perhaps with a bit of flexibility, a bit of discretion for the committee, for example, for a suspension of less than 30 days, otherwise your hands will be completely tied.

Does that help in terms of some of our views at the moment? I think Westminster is an interesting starting point. It shouldn't bind us, though. But some of the evidence you've had already suggests that it might be worth looking at some discretion for the committee itself.

And contrary to that, some of the evidence we've also had from, perhaps, the people who have to deal with the electoral administration side of things, is that, from their perspective, the simpler the system, and the commonality with Westminster, should we be able to do it, from their perspective, they feel that is better for them. So, I think we take on board what you're saying in terms of use it as a starting point, it doesn't have to be exactly the same, but I think we need to consider from the practical perspective as well. Do you have any views on that?

No, I think you're right. In some ways, we're beholden to the committee here. You're taking the evidence, you're seeing the contrary views on this, and there is that balance between simplicity and flexibility, discretion, and something that is very clear and understandable, something that has—if not a direct mirror image, something that has echoes of what the Westminster parliamentary system is as well. But, honestly, we're looking forward to what comes out of your committee, because it's not as if you've had one set of views. There are different views you're receiving on this. 

Diolch. I'm going to bring Sam Kurtz in now.

Good morning to you; thank you for joining us. I just want to come back to you on a comment you made at the beginning. Is it our job as a committee to make life easy for you and Government in the timetable to deliver legislation? Or should we as a committee come forward with what we believe is the best solution, regardless of timesacles? Your perception, please, would be really helpful on that. 

Well, look, first of all, it genuinely isn't for me to tell the committee how complex or straightforward a proposal it should come forward with, or the timescale. As I mentioned at the outset, Sam, we're holding a slot, if you like, provisionally in the fifth period of this Senedd term in anticipation of you bring forward something. The question is how complex and how much additional work that that will then need. If it is more simple and straightforward then the extrapolation would be it would be more simple to deliver within the legislative timetable. If it requires more complex working through, then that could have implications for the way that we bring the legislation through. But, look, Sam, it's not for me, honestly, to tell the committee what to come forward with. You are hearing the evidence and it's a difficult decision you have to come to. 

Okay, thank you, Deputy First Minister, for that. And in discussing this, we've had some conflicting evidence around whether in a recall a party as well as the individual should be, quote unquote, 'punished' in that sense. Just the Welsh Government's view on whether in a recall system it should be automatically that whoever is next on the list takes the position of the Member recalled, or that there be some by-election mechanism. What's the Welsh Government's view?  

Well, this is really fascinating and it reflects the difference between the system we are moving to, with a fully proportional system, and a first-past-the-post system. In a first-past-the-post system you can see the way that recall would work; it's there within the Westminster model. So, the question here is: how do—? Sorry, the question is that the committee is trying to get to an understanding of: how do you bring forward something that (1) makes sense to the electorate in terms of recall and filling that post behind it, and also that fits with the new electoral system?

So, my thoughts would be at the moment that it needs to provide something meaningful, Sam, that would make sense to the public, as an outcome that makes sense to them. So, it's like: what's the purpose of the recall in a system that is a proportional system? Is it, as you say, to punish the individual or to punish the party? The option of holding a by-election with the new electoral system was well articulated, well rehearsed, in the discussions on the passage of the reform Bill earlier this year. The Government remains firmly of the view that there isn't a form of by-election that you would see under the first-past-the-post system that would work within this new system. The fit isn't there.

There is another fundamental concern that I have with a by-election approach, which is that it's not clear with that how it meets the stated intention of providing a mechanism for managing individual Member accountability. If this is about that individual Member accountability—. It could easily turn into an opportunity to undermine the proportionality of the Senedd as decided at the previous general election in Wales. So, that's a really tricky one.

But if there isn't—. I can outline some thoughts. If there isn't a by-election, the most straightforward, understandable to the electorate and most powerful way for the electorate to have their say is through something that looks like a simple vote on whether to keep the Member or not—almost like a recall poll, if you like. It's very straightforward, very understandable, and works as a fit within the system. So, you'd have, in effect, something like a—. And again, I have to make it clear, Sam, this is for the committee to deliberate on, but you asked me for some thoughts on it.

So, if you had a straightforward 'yes/no' question on the ballot paper just requiring a simple majority, it's very, very clear. It allows the electorate then to show support but also opposition, gives an opportunity as well for the Member to explain themselves to their constituents and their voters, and it does also, by the way, in terms of if you were to do a more first-past-the-post system of petition followed by a by-election vote. There are costs that come with that as well, but actually, it's more to do with what makes sense to the voters. You're looking at replacing an individual; we've had a Welsh general election preceding this.

So, those would be my thoughts at the moment, Sam, but I know it's a tricky decision for the committee. 

So, just taking that then, and your description there, there would be, under what the Welsh Government are perceiving to see recall as, an option for the Member who's caused an indiscretion—let's call it that for the benefit of this—to win a poll of some sort and remain as a Member of the Senedd. Is that correct?

Well, the fundamental point is to give the electorate the option to decide on the future of that individual. But, yes, a straightforward 'yes/no' vote would be really simple and clear, and doesn't then, in using your words, look to punish the party; it looks to seek a view from the electorate on that individual. That seems to me to fit those two criteria that I suggested were worth looking at. One is, 'Does it fit within the new system of a proportional voting system?', and secondly, 'Does it deliver the outcomes that the electorate are seeking to do', which is, 'Do we want this individual or not?'

Okay. And just one question from me, Chair, if that's okay: in delivering this, then, would that be the Senedd voting on this and then that ballot taking place, or would you see a recall petition followed by a 'yes/'no' question, a referendum on the individual's ability to remain as an MS?

Well, again, it's one for the committee to decide, but, if you are looking to do a streamlined system, then one of the options is that you move, on recommendation from the Senedd for recall, straight to this 'yes/no' vote, and that is it. So, you don't have a petition followed by a ballot; it's a one point of answer. It's a 'yes' or a 'no'—'Do you want this person to continue or do you want them not to continue?', based on the deliberations of the committee that says, 'This individual needs to face recall'.

Okay. Thank you. Diolch, Cadeirydd. Thank you.

Thanks. Before I bring Peredur in, can I just pick up on one of those points that Sam made? As you said, Deputy First Minister, if we were, say, to look at what we're calling a 'yes/no' vote—so, that person that, as Sam put it, may have committed some kind of indiscretion and, obviously, there's a rationale as to why they are in that situation—do you think, therefore, if we were to go down that route, then alongside that we very much need to make sure we strengthen some of the sanctions, as part of the current standards system, in terms of what could lead to disqualification and what leads to recall?

Cadeirydd, I think the point you make is a really valuable point. It's what I said in, I think, my initial remarks—that this needs to fit in to that wider system of conduct and behaviour and standards. So, I know the committee is looking at that issue, and I think my personal feeling would be that it seems to make sense. You need to give that clarity.

Peredur.

Thank you, Cadeirydd. Sorry I wasn't here right at the beginning; I was running from one committee to another. But I'd like your views—. Just taking that on, then, from what the Chair was just saying, does the Welsh Government have a view, or you  personally have a view, on what should trigger that? So, say that we'd strengthened the standards process and there were certain sanctions in the Senedd that would trigger a 'yes/no' vote, as you've explained, of the constituents, what should trigger that? What types of things should trigger that process?

Okay. Well, I'm definitely not going to pre-empt the committee's deliberations on this, because I know you're taking good evidence on this. But, as I mentioned earlier, Peredur, I think the Westminster approach in terms of standards is a good starting point. But it shouldn't be the be-all and end-all for this committee to look at, because it would need to be something that fits the Welsh context as well, and bear in mind Westminster is also looking at whether it can improve its approach to this as well, so keep a good eye on that. There are other aspects, though, that I know the committee is looking at: things like what happens if an individual decides, mid course—and we've had this before, Peredur, as we know—that a horse wants to switch lanes? Sorry, a bad metaphor there, but an individual who wants to switch party groups. What do you do then? What does the electorate expect that happens on that? Or what do you do, for example—and, again, we have had this before—if there's non-attendance by an individual at proceedings—so, not carrying their share of the work that all Senedd Members need to do?

If you look at, for example, the issue around changing party groups and so on, if you apply recall to that, there are some potential real unintended consequences. So, if you do that, it could inhibit the ability of a Member to say, 'Well, I have completely fallen out of love with my group—with my group in the Senedd, with my party', or whatever. And if you make that a matter of automatic recall, then it could actually inhibit, if you like, the ability of that Member to say, 'Well, I've had a fundamental change of heart here in principle, and I realise it's difficult for my electorate who voted for me', but the question for the committee is: should that be subject to recall if what it means is that it binds people into a political group in the Senedd for ever and a day and they can never move away from it? They cannot express dissent, they cannot move away. I know we've seen previously, Peredur, too much of this going on, some people would argue, too frequently in previous Senedds, but there might well be legitimate reasons why somebody says, 'I want to remove myself from that political group.'

But there could be alternative ways, then, that that can be dealt with within the Senedd itself. So, you could remove yourself from the group and sit as an independent. Some people have removed themselves from a group and gone back into the group. It would seem slightly odd if that was to automatically cause the recall and then the individual was to say, 'Well, I've resolved my differences now. I'm back in there.' But there might be different ways, and it might well be that the Business Committee wants to look at that aspect of how it could be dealt with. So, it might be that the Business Committee could deal with that in Standing Orders—

Sorry, I think that's dealt with within the current legislation that we've just passed anyway, to a certain degree.

Yes, it is. It is.

So, other than that, then, the model in Westminster is to do with expenses, it's to do with being banned for 10 days or more, and then a custodial sentence. Are there any other thoughts that you might have on anything else that we should be considering, or on any of those—? Is 10 days too short, for example, in your view? Are there any other aspects that we should be looking at?

Well, I don't want to say to the committee, 'Here's a view that you should take as gospel from the Government', because you are taking good evidence at the moment on this. But, as I mentioned to the Chair earlier, Peredur, this question between simplicity and, in some ways, for the electorate as well, mirroring in some ways what the Westminster approach would be, and also the flexibility of the Senedd to actually say, 'It needn't automatically be 10 days. We could have some discretion, if there was mitigation by the individual', et cetera, that makes it slightly more complex. So, I'm really, genuinely interested in what the committee will bring forward, because there are different views on this. It doesn't have to be exactly like Westminster. I reiterate that. But, if you add complexity to it, it probably needs to be understandable for the electorate as well, about why you're taking a different approach. Now, there might be very good reasons. The committee might well decide that it wants some more flexibility, so it's not an automatic 10-day suspension that triggers it. We might want some discretion to be able to say, 'We can look at mitigation.' But, I'm waiting to see, genuinely, what you bring forward, based on the evidence that you've heard, because there have been quite differing views on this.

Just before I finish, based on that, and that, usually, the process would be that this committee would make the recommendation to the Senedd, the Senedd would vote on whether or not we agree with the sanction that might trigger this happening, do you think that if it was for one of the reasons that would trigger a recall vote, does that need to be a straight majority, or do you need a supermajority for it to happen, bearing in mind that most reports from this committee tend to go through unanimously? I don't know how many haven't in the past, but, generally, they go through in unanimously. Is that something that you have a view on or had any thoughts about?

No, Peredur, I don't have a view on that at the moment. I'd be interested to hear what evidence you have on that, and whether there are alternative views on whether it's a supermajority or a straightforward majority, but I can't bring to you a Welsh Government view on that at the moment.

Okay. Diolch, Cadeirydd.

Thanks. And finally on this, Mick.

Can I just ask what is the position of the Welsh Government on the issue of parliamentary privilege? There's been, obviously, some discussion and evidence around this, and, of course, there are proposals from the UK Government in terms of the extension of parliamentary privilege to have consistency across all the UK Parliaments. What position does the Welsh Government take?

The Welsh Government takes the view that parliamentary privilege is a very precious instrument within parliamentary procedures. Parliamentary privilege should be used sparingly but wisely when it is deployed. In the whole of my nearly 15 years within the UK Parliament, there were only two occasions on which I used parliamentary privilege. The benefit of parliamentary privilege when used well—and it does have a relationship to the discussions that the committee is having and the evidence it's taking—is that parliamentary privileges allows you to speak, within some parameters, with the freedom to express the views of your constituents, particularly when there is deep injustice or when there isn't another platform where you are afforded the opportunity to speak loudly and clearly on behalf of either individual constituents or constituents collectively.

So, parliamentary privilege is very, very important indeed, and I know that, within the Senedd, we've discussed for some time the model of parliamentary privilege within this Senedd, compared to the tradition within the Westminster Parliament. But I think the Welsh Government would be wary of something that inhibited the abilities of individuals, such as you and other Members of this committee, to stand up and actually try and right wrongs, in the proper way, using parliamentary privilege sparingly and wisely. So, we have to be very, very cautious, I think, and the Welsh Government's feelings are very clear on this. Previous Ministers have said this very clearly as well—that we have to make sure that we don't trespass upon that essential right of parliamentarians to speak freely on behalf of their constituents and against injustice.

Okay. Thank you.

Mick, do you have any further questions to do with recall?

No, I don't.

I'm sure we're going to come back to that matter shortly. Before I do move us on to bring other Members in and focus on the inquiry around deception, just a couple of very, very quick questions for you, Deputy First Minister, on recall, and that is: since it was referred to this committee during the passage of the legislation, has the Welsh Government undertaken any work with stakeholders and are aware of their position on recall, or to inform the Welsh Government position, and also any work that has been done by the Welsh Government to potentially prepare for the introduction of a recall system and legislation around it?

Cadeirydd, thank you. I can be very, very clear: it's interesting appearing in front of the committee today, because we are standing ready to support the work of this committee in bringing forward recommendations around the introduction of a system of recall. But we are awaiting the conclusions of this committee. We need to actually see those, see what the suggestions, the recommendations, are, see whether there is a consensus feeling on the way forward. So, this means that the preliminary work that we would need to do on the broader policy options and the risks, by the way, of different options put forward—some of the ones we've explored today—will be answered once we understand the committee's intent. So, we are waiting with bated breath here; we don't want to pre-empt where the committee would go. I know some of the questions today have sought to seek my understanding or my initial feelings or Welsh Government feelings on some of the specific measures, but the next step is awaiting the conclusions of this committee so that we can then move ahead.

Are you confident that the Welsh Government has the capacity to do this work in the necessary time frame?

Well, we've put aside that space in year 5, and we've had those discussions, as I mentioned, with the Counsel General and the Minister for Delivery. We're preserving that space in year 5. The question is the simplicity or the complexity of what the committee may bring forward, because that has an impact, then, on the capacity to respond to the committee's deliberations. But we stand ready, Chair. We're just waiting to see how straightforward or how complex your recommendations might be, and when they're delivered as well, Chair.

On that point, as we're looking to conclude this work in January and make recommendations, does that timetable work for Welsh Government? If the work slipped at all, would that have an impact?

January is what we had understood you were working to. So, on that basis, my previous comments stand firm now. We stand ready to work with the recommendations of the committee there, and we're keeping that slot open.

I've got Peredur just on this issue, and then we will move to the matter of deception, because I know Lee's already indicated to come in. So, I'll take Peredur, and then I'll go to Lee.

Just on what you just were saying there, Deputy First Minister, will this then, assuming—? We'll make recommendations; would this be a Government Bill in the same way as the Senedd elections Bill, the previous one, went through, or are you seeing this as a committee Bill being supported by Government?

That question is actually open for discussion at the moment. But, in keeping that slot open, we are open to the idea of bringing this forward, clearly, as a Government Bill. But the sooner we have the deliberations, the sooner we can answer that question, then, Pred.

Okay, diolch.

Diolch. I know our observer members—we're joined by Jane Dodds, Adam Price and Lee Waters today—are keen to ask questions with regard to the inquiry into deception. Lee, you've already indicated and waited patiently, so I shall bring you in first.

Thank you very much. I just wanted to better understand the nature of the Government commitment and what the Minister is saying this morning. So, my understanding of the commitment given during the passage of the original Bill was that the Government was committing to bring forward legislation before 2026 to create an independent judicial process. That's what the Government is committed to do. Separate to that, it's invited this committee to come forward with proposals, and your most recent letter of 1 November says that

'the government’s work can take account of the outcome and recommendations of your inquiry.'

But those are two separate issues, aren't they? Regardless of what the committee comes up with, I just want to check that your commitment to bring forward legislation to create an independent judicial process stands regardless, because that is the Government's commitment.

Yes, that's correct. It's the same commitment given as proceedings went through, Lee, so that commitment stands. 

So, in that sense, regardless of what the committee comes up with, the Government has got to discharge a commitment. Obviously, we all want the commitment to be informed by the work of the committee, but I just want to be clear that—. You seem to be suggesting that, because of the pressure on the legislative programme, what you come up with would depend on how complex a set of recommendations for a Bill came from the committee. I just want to make sure that I've understood that the position is a bit more nuanced than that.

No, the commitment stands, but it will, Lee—as a former Minister, you'll know—add to the work that we have to do, depending on the complexity of it. But the commitment stands, exactly as it did when it went through the stages of deliberation previously. So, that commitment is still there. So, come what may, that commitment stands, it's just that, from a Welsh Government perspective and a civil service perspective, there may be more or less complexity in bringing forward that commitment.

Understood. Okay, thank you.

Thanks, Lee. Can I just ask on that, Minister, if you could set out what work the Welsh Government has done to develop any of these proposals since that commitment was made to the Senedd?

Yes, indeed. In terms of the work that we've undertaken so far, my officials have been reflecting on the options that have been put forward to the committee in the consultation document, and considering what would be the benefits or the consequences, the drawbacks, of each approach. So, they've also been reviewing—not just following, but reviewing—the evidence that the committee has received to date, both in response to the consultation and also in those oral evidence sessions as well. So, we're continuing to look at the evidence that you've taken, what's come through in the consultation, and reviewing those options in readiness for what may come forward with your final deliberations, then.

Could I ask, too, before, I'm sure, other Members will want to come in shortly, if you could set out the Government's view on how any new offence or civil process on deception could interact or would interact with existing offences, such as those under the conduct Order for Senedd elections and assisting legislation on misinformation? We've heard evidence, obviously, from those who have to administrate these things at election time, and from others too, on whether other offences could be modified to capture instances of deliberate deception by politicians, such as the common law offence of misconduct in public office. Is there a view from Welsh Government on that? And if that was the case, would you consider that legislation—? Would that be within the legislative competence of the Welsh Government and the Senedd?

Yes. This interplay on competence is vitally important to understand. I can give you some initial thoughts here. How any new process would engage with those existing offences in the conduct Order would need to be considered as part of any detailed development of new legislation. And it's including, by the way, whether, for example, wrongdoings could sit alongside each other. So, that's one area that we'd need to look at, but that's only one example of the complexities and challenges that come up in looking at the question of scope—so, for example, whether any new processes should cover, for example, statements made by both candidates and Members, candidates as well as Members. Now, there are, clearly, real challenges associated with trying to capture statements made by both in the same process, the same regime, as candidates and Members operate under, fundamentally, constitutionally, two different roles; they're subject to different statutory regimes. So, that's one element of complexity that I'm hoping the committee can help unravel so that we can then actually interpret as well.

And in terms of interaction with existing legislation as well, if you look at one aspect, for example, on misinformation, this is pertinent because it'll depend on the detail included in any new legislative provisions that are brought forward. So, there are relevant offences, currently, in section 179 of the Online Safety Act 2003; there are also common law offences relating to defamation and malicious falsehoods. They'd need to be considered, then, in the development of any new proposals for legislation.

And then you rightly flag as well, Cadeirydd, the complexity then of the compliance with the European convention on human rights, and I know you've been hearing evidence on this from witnesses to your inquiry. So, any new legislation would need to be cognisant of article 10 of the European convention on human rights. It is one—to be very clear—of the more carefully guarded rights. So, the question of whether an approach coming forward, a new approach coming forward, is proportionate is going to be key in determining whether it's considered compliant with that part of the human rights legislation or not.

And just one other thought for you as well: there's the issue then of, or the question of, amending the offence of misconduct in public office. So, an early and initial analysis of this would be that expanding this to relate to deceptive statements made by Members of the Senedd and candidates potentially—candidates to be Members of the Senedd—is a very complex area, not least because it is a common law offence. So, it's difficult to provide, Cadeirydd, a view on competence at this stage without specific detail on that and related matters. We've got to wait to see what you bring forward and then we can make a proper analysis of it. So, at the moment, it's difficult to say what we feel on scope until we see the firm proposals.

Yes, the challenge for the committee is that we're coming up with some recommendations and suggestions, not a detailed piece of legislation. So, I recognise, around competency, it isn't until you have the detail there that you can test how far that strays. But I'm going to bring Sam Kurtz in now. 

Yes. 

Diolch, Cadeirydd. I'm just looking to touch on the procedure. I'm looking at the question from Lee Waters previously. I just wondered if you could explain the Welsh Government's definition of 'independent judicial process'. Is it criminal or civil? A bit more detail would be helpful.

Yes, it's—. Well, this genuinely is an area, Sam, where we are looking for whether it's firm recommendations or suggestions from the committee as to how this might feature, because that is the commitment that we've agreed to take forward, this independent judicial process, but there are different ways in which that can be done. You've been taking evidence on it. I don't want to pre-empt the committee, because there are different ways to do it. You've identified—put forward—two different options, I understand, within the consultation document. One would be an independent judicial process using things like the criminal courts, another using something like an independent Welsh tribunal. Now, I know that you've had evidence both for and against those options. One of the big concerns that has been raised by some who've given evidence, I understand, is around how do you avoid the politicisation of the judiciary within this process. So, Sam, I won't pre-empt where you get to on this, because this is one of the exceptionally complex areas of the committee's deliberations, but I'm looking forward to seeing what you come forward with. And I know that the evidence you've received has been of very different views on this.  

Okay. Chair, I saw Mick was animated, he wanted to come in here, so I'm happy to delegate. 

Mick, is that linked to that point? And then I'll go back to Sam.   

Just two points, one of which hasn't really been covered very much. Of course, when the standards committee sits, in terms of its function in responding to reports from the commissioner, it sits as a quasi-judicial body, but, equally so, as part of the process, there is also an appeal structure, which, clearly, as it has operated up until now, has been before a judge, which, effectively, is an independent judicial process. I'm just wondering whether Welsh Goverment's given any thought to that appeal side, because obviously any issue that might result in recall or serious implications for a Member may well end up in any appeals process, before anything else can further—. Has any thought been given to that? Or are you just, really, awaiting the recommendations from this committee? 

Well, this will very much—. Any appeals process, Mick, is very much going to depend on the suggested way forward from the committee. So, for example, if it were to be relying on the courts or on an independent tribunal, there are, of course, existing appeal arrangements for those bodies, so that could be a basis for an appeals process. But if it were something of—and I know some have given evidence to you on this approach—a self-regulation approach, then the committee is going to need to consider and decide whether appeals would be possible in that approach, both against a decision on whether the wrongdoing has taken place, and also against any sanctions imposed. So, the current arrangements, as you know, in relation to, for example, code of conduct, are there are no appeal arrangements in place. I think that might help inform the committee's approach on it. So, it will be depend on the way forward that the committee suggests.

Huw, it we were to have an appeals process, who would bear the costs of that process, in your view?

Well, thank you for raising this, because there will, of course, be costs and financial resource implications for any bodies involved in the new process, whether those are existing or whether those are new bodies, and this will require detailed consideration. From looking at some of the evidence that you've had already, Cadeirydd, I know this point has been made by other stakeholders out there. The chief constables have made this point, as well as the Public Services Ombudsman for Wales, and the Adjudication Panel for Wales as well, and I think they've made that in evidence, both written and otherwise.

My view would be, because there are going to be, clearly, specific cost implications, and some broader implications, they would need to be set out in a regulatory impact assessment to accompany any Bill coming forward, alongside any additional impact assessments as well. There are clearly going to be costs with this, and those need to be properly done within a regulatory impact assessment. But it does depend on the type of way forward what those costs might be and what those resource implications are.

Thanks. Jane, did you want to come in on that point?

Chair, I am aware that Adam has been waiting, so I'll let him come in first. Thanks.

Adam.

Thank you very much, both. Just to stay with this question of the independent judicial process for a second, Huw, as somebody who was involved in conversations that led to the agreement, I'm very interested in hearing more about what the Welsh Government's view is now. Are you clearly of the view that merely saying that, with the standards process, which is justiciable now, of course—that's true—justiciability does not make it an independent judicial process, does it? We have a self-regulated process. There have been cases where it's been suggested it could be taken through the courts, but that wouldn't constitute an independent judicial process, would it?

Well, honestly, Adam—and thank you for noting the involvement that I had in some of the discussions as part of the previous co-operation agreement on this—I think, as I've laid out, on the independent judicial process, some of which you've heard already, things such as the use of an independent Welsh tribunal, criminal courts, things like that, those clearly stack up as an independent judicial process there. But you have heard some concerns to the committee about how you avoid the politicisation, then, of any such process like that. So, it's for the committee to consider what the best way forward would be.

Sure. And I'm sure the committee will want to address those issues, but I think we seem to be in agreement, then, that an independent judicial process is either an administrative tribunal or the criminal courts.

I just wanted to touch on the other elements within the commitment that the Government has made. So, the independent judicial process is one of the elements; the other one is scope. The commitment, I think, does commit the Government to bringing forward legislation that would relate to both Members and candidates. That's still the case, is it not, Huw?

Yes, indeed, Adam, and we're looking forward to seeing what the committee brings forward on this. There was general consensus from those debates when the Bill was going forward, when the Elections and Elected Bodies (Wales) Act 2024 was going forward, that disqualifying criteria should focus on the most serious and pernicious deception. And I think that, I suspect, is where the committee might be looking. But when you then look at whether that approach, in terms of Members and candidates, should be within the ambit of the offence, from the work that the Government has undertaken to date, and looking at the evidence that you've had, we can see that there are significant complexities and challenges with capturing statements by both Members and candidates in the same regime. I alluded to that earlier in my response, because they're fundamentally, constitutionally two quite different roles, between you and I as elected Members of the Senedd and a candidate seeking election—they’re subject to different statutory regimes. So, Adam, I just wonder whether the committee wants to consider those different constitutional roles that Members and candidates play, and whether it's appropriate that a new regulatory system relating to deception is applied to both in the same way. There are offences, for example, set out in the conduct Order already that make a person guilty of an illegal practice when making false statements about, for example, the personal character or conduct of a candidate in order to affect the return of a candidate in an election.

There are these practical implications, Adam, which I'm flagging up, and they're real—the practical implications about determining whether provisions can be extended to candidates. Let me give you an example. If you've got a statement by a candidate that is going to be captured in this way, then what's the impact, then, on bodies that could be involved in the process due to different jurisdictions? So, potentially different bodies involved, depending on who made the alleged false or deceptive statement of fact. It could mean a different process and more complexity in place, even though the same wrongdoing has potentially taken place. So, there are complexities with this, Adam, that I think you'd probably recognise as well.

Thank you for that clarification. So, the commitment still stands that the legislation will apply to Members and candidates, but it's possible that it might have different routes or different frameworks for Members and candidates for the reasons that you describe.

Yes, that's what we're looking forward to you as a committee actually bringing forward. Just to restate very clearly, Adam, for the committee's benefit, the Government does remain committed to the statements that we’ve previously made on bringing forward legislation before 2026 for the disqualification of Members and candidates found guilty of deliberate deception, through an independent judicial process. And, as you’ll recall, the Government also committed to inviting this committee to make proposals in that respect, recognising some of the complexities that we've just been through. So, we are looking forward to the recommendations and conclusions of the committee.

Thank you, Huw, for putting that on the record once again. I just wanted to ask a few questions about the timetable. You referred to year 5, but, for those of us who haven't been in government, Huw, perhaps you could explain more precisely which month currently is chalked up for the introduction of the Bill. Do you have a timetable that takes you through all the way to Stage 4? Tell us a bit more about that.

Adam, I can't give you the month-by-month on that yet, because it genuinely does relate—. Whilst we've blocked out a slot for that, and we're standing by ready—we're genuinely standing by ready—to see what the committee brings forward then, then we're going to have to get to work on that and deal with whether it's relatively straightforward or the complexity of it. So, any legislative approach on this, whilst, as I've said before, we have put aside and we stand ready there with that legislative slot, it is going to be subject to the content and the timing of the recommendations made by the committee as well on this. So, I'm looking forward to seeing the outcomes of the committee's deliberations, and hopefully in fairly short order.

Huw, the Cabinet handbook, I think, gives you a rough idea in terms of the average length of time necessary to enact a Bill. I think it varies. You would normally look for 18 months but you can, I think, do it in nine to 12 months if necessary. So, am I right in thinking you would have to, to reach the commitment or in order to deliver on the commitment, you'd have to introduce the Bill some time in the spring.

This will depened—. Yes, look, we're holding that slot. We haven't worked back because e genuinely want to see what the committee brings forward, hopefully in fairly short order there. But we have that slot and we're confident that we can bring forward proposals, as long as the committee also brings forward in a manageable time, which I'm sure you can because the timetable you're working to should help us with that. 

I was just wondering, if you stay with me a little bit in terms of the legislative mechanics because it going to be a very short timetable, if the Bill has been discussed at the—. Normally, when you include a Bill in the legislative programme, it would be discussed at the legislative executive committee, for example. It would have gone to the legislation design committee. You'd have a Bill manager in place and a Bill facilitator. Have all of those elements already been put in place in terms of this Bill? Do you have a legislation plan as well?

Adam, we do not have firm timescales in place yet, but we're anticipating, as the Chair was saying, that this will come out of committee fairly shortly now, and that will allow us then to plot that through. And we can happily then come back to the committee and lay out the timescale by which this can be delivered.

And will you be the Minister in charge? 

Yes, indeed. 

Okay. I look forward to continuing the conversation with you then. 

Diolch, Adam. I'm going to bring Jane in now. Thank you. 

Adam has asked some of my questions, but I just wanted to go back to this issue of candidates, and the distinction you make in regard to potential challenges around a candidate coming under this framework. I just wondered if you could say a little bit more about what you think those challenges are or could be. And also, my understanding—but excuse my ignorance—certainly in Westminster, is that everybody becomes a candidate from the time an election is called. I may be wrong, for the Senedd—I've not been a Senedd Member before—but, for Westminster elections, there are no Members for a period of 25 days or longer prior to an election being held. So, potentially everybody can fall within that kind of—. We're all then candidates. So, I just wondered if you wouldn't mind explaining a little bit about what you think the challenges are, and that situation where we all revert to being candidates before an election. Diolch. 

Yes. I won't touch on, for now, the complexity of the Westminster system—sorry, the approach of the Westminster system—but I know that the committee has been looking at that as a possible blueprint to work from, and we've been keeping an eye on the evidence that you've been having as well, with different views on it. But I touched earlier on on some of the—. I think most people recognise that difference between being an elected Member—an actual Member of the Senedd—and the hurly-burly of being a candidate, and the different regimes that currently govern the two of them in terms of conduct. 

So, one of the challenges you have as a committee is in seeing whether the two can be bound within one regime, or whether there are different approaches that need to be applied. I don't envy you in that task, I have to say, and I know that there are contrary views out there as to whether both Members and candidates can be captured within one streamlined regime. Currently, there are different approaches and not only different regimes, but different oversight as well. So, I won't pre-empt where the committee might come to on this, because I think you're taking the evidence at the moment and hearing from witnesses. I'm intrigued as to how you might square this, because it's certainly throws up some of the complexity of what was a good in-principle approach of saying, 'Can we capture both together?', and then to say, 'Right, what are the practical realities of this?'

May I just ask two more questions, if I may, please, Chair? May I just follow up slightly on that issue? I just wondered if the Government or yourself as the Cabinet Member in charge feel that there are such radical differences between a candidate who has been chosen by a party and is now that selected person going forwards, and a Member—particularly, if you wouldn't mind, just coming back to that period prior to an election—that is between an election being called and the election. So, in 2026, my understanding is—but I'm looking around; have I got this wrong—we are all candidates. There are no Members. So, from the Government perspective, why is there a difference for you? Because you've hinted heavily that—I may be wrong, but you've hinted heavily—you think there may be a difference? So, could you maybe just explain what you feel are the differences, or maybe you have a particular view, and that particular 25 days as well, prior to the election?

Yes. It's because of the different regimes that currently exist and also because, if concerns were raised about a candidate, then where that would land. Would it land in exactly the same spot as a formally sitting MS or a current Member of the Senedd now, or would it be under a different regime, different jurisdictions? The challenge for the committee is seeing whether there's one streamlined approach that can be done.

But let me raise one interesting issue that is a really good example of the sort of complexity: if a candidate, in that run-up, that crucial few weeks that you were referring to, faced an allegation or was facing an investigation, let's say, for example, about a statement that they made that was deemed to be potentially deceptive, and let's say that investigation was still continuing at the time that they were successfully elected—the ballot boxes were emptied and they were elected to the post-2026 Senedd—what happens to that individual then? Are they held back from taking their seat? What would be the reaction of the public while the investigation continues, but they haven't yet been found either guilty or innocent of the deception? So, there are some real complexities here, Jane. As I say, I don't envy the committee in trying to find its way through this. I think you should look at what Westminster is doing, but not necessarily be bound by it. But, certainly, the other question is—and you put it quite well—is that candidate, in that 20 days, 25 days before, in effect, as good as a Member of the Senedd in waiting, or are they a different beast? Because, at the moment, there are different beasts under a different regime, under different structures.

Thank you. Diolch yn fawr iawn. And just one more question. I can see Adam wants to come back in, and Peredur as well.

I've got several people wanting to come in, so, yes.

Yes. Sorry. Just really—. I'm really sorry; I think we may have pressed you as far as we can on this timetable of the legislation. You can understand that it's a little bit concerning to hear that, if the committee and the observers are putting forward a system, given the commitment the Government's made on this particular part of the Bill, that there could be circumstances in which it may not come to the place where it should do prior to 2026, which is the essential deadline, really, for us, in terms of the behaviour of candidates and Members. I wonder, Chair, through you, if we could ask for a little bit of information from the Government around the circumstances in which the timetable will not allow or will allow. Would that be a reasonable request? I feel it's really important—and Sam has raised it, Adam has raised it—that we have clarity around the Government's position on the timetable for this particular piece of legislation. Thank you.

I'm sure there'll be a number of things that the committee will want to follow up in writing, perhaps, Deputy First Minister, with you, perhaps more of the specifics to help the committee with its work. And just to pick up—. I've got Mick, Peredur and Adam who have indicated, and I'm conscious of time, so I'm going to ask people for very, if you can, concise questions and concise answers, in as much as you can do for such a complex subject as this. But I just want to very quickly pick up on that timetable point that Jane has made as well. The commitment in Plenary was very much to bring forward legislation before 2026. Can I ask why the Welsh Government believes that legislation is necessary by 2026? Why set that deadline?

Yes, we stand by that commitment, Chair, to bring that forward by that deadline. So, regardless of the complexities or otherwise, that is our commitment that we've made previously, and we stand by it. So, just to give that clear reassurance to you and to committee members.

And can I also just ask, sorry, around—? That commitment specifically relates to legislation on disqualification. So, does the Welsh Government believe that disqualification should be the only sanction available if legislation was introduced, and also, likewise—we have had evidence where it has been raised and then a contrary opinion raised on it, but—around specifically focusing on deception as something that needs a stronger sanction than, perhaps, other forms of misbehaviour or misconduct in public life?

Yes, it's a really important point, Cadeirydd. So, the Welsh Government's commitment specifically, as you say, relates to legislation on disqualification. I'm very aware that the committee has heard from others about the need for sanctions to be proportionate. So, from the evidence that you've taken to date, the question of what the sanction should be for deliberate deception, whether there should be a range of sanctions available—. And that is very closely linked, Chair, to how narrow or how broad the wrongdoing is actually defined. So, if you've got a broad definition, this would likely mean a need for a range of sanctions to be available, which could take into account the seriousness of each individual instance. Now, I know that the committee, from what we've seen, has heard that the implications of the wrongdoing being very clear at the outset could be really helpful in terms of increasing the deterrent effect of legislation. So, we're looking forward to seeing the outcome of your deliberations on that. 

If the committee does determine that disqualification is the only sanction available for deliberate deception, then it'll be very important to give careful consideration, Chair, to whether the disqualification should then be automatic, or whether there should be opportunities for any mitigating or any aggravating factors to be taken into account when deciding if the sanction should be applied. So, in a scenario, for example, where the sanction is automatically applied, it then leads to that question of whether there'd need to be an automatic standard length for the period of disqualification, or whether those mitigating or aggravating factors can be taken into account on the length of the disqualification. 

And just a couple of other thoughts. In terms of what the length of that period should be, one option could indeed be the remainder of the Senedd term. Now, this could mean, of course, that the individual could stand at the next election, with the voting public being very aware of what the wrongdoing is that has been committed, and they could decide then, the electorate could decide, whether to vote for this person if they wish to stand at the next election, in the full knowledge of that information. But there's another key determination for the committee, and that's as to who should be responsible for making that decision on the sanction to be applied. So, you'll be aware—committee members will be aware—that, in the case of local government, it's the Adjudication Panel for Wales deciding whether a breach has taken place and also what the sanctions should be. So, the panel has, I understood, suggested that this provides for it the flexibility, then, to apply sanctions that could be considerably different in impact, could be proportionate, then, to the particular circumstances of the individual case. So, again, there's some real complexity to work through here for the committee, Chair, but I hope those thoughts are helpful for you.

I've got Mick, Peredur, and Adam, and we have five minutes left as allocated time, so I'll reiterate, again, concise questions and concise answers, if possible, to get everybody in and cover all the ground.

I can withdraw. I was just going to make a couple of comments, but I'm happy to leave it.

Thank you, Mick. Peredur.

Just going on from what you were saying there, Huw, just your thoughts on where there's recall and deception, the two bits that we've been talking about, and, bearing in mind the question asked earlier, what would be a trigger for recall. Any thoughts about how those two bits come together?

Well, particularly on the issue of deception, one of the things that the committee will need to come to a mind on is how narrowly they focus that issue of deception, how they frame that, because if it's broad, again, it adds some challenge with that; if it's more narrow, more specific, it can act then as a clear deterrent: if you do this, this will be the impact. It acts as a deterrent as well as a sanction that can be used ultimately. So, one of those issues, Peredur, would be, for example, how do you deal with vexatious complaints. So, we're all familiar with this in our day-to-day lives. Most of us will have come up against it occasionally within the current systems, but how do you deal with those when you're bringing forward this offence of deception? So, I would just encourage the committee to give some really detailed consideration to that. Is there, for example, merit in there being a body established to filter complaints, as a way of reducing the potential for frivolous or vexatious allegations? Now, this could be alongside how the wrongdoing is defined accurately, ensuring that only the most serious instances of deception lead to disqualification or sanctions, and I think that's an important piece of this jigsaw.

Diolch yn fawr.

Adam.

Going back to the Members and candidates issue, the current criminal offence of making a false statement to influence an election about the conduct or character of another candidate, that does apply to sitting Members, doesn't it, and candidates? And I think, recalling the Phil Woolas case, which you will be familiar with, I think, Huw—

Yes.

—the position is that a sitting Member elected at an election, who faces, then, a charge or an allegation of having made a false statement, sits until they have been found guilty, and only when all of the judicial processes have been exhausted do they eventually lose their seat. So, it goes some way, I think, does it not, to meeting some of the issues that you raise, and does it provide potentially a template, possibly, for a wider application of an offence of false statement, making a false statement?

Adam, thank you, that's really helpful, and, look, that's the sort of thinking that we're hopeful will come forward from the committee's deliberations.

Well, on that moment of concord, I think I'll leave the questions.

Peredur, very briefly, then.

Just quickly, just a thought. With regard to deception within the Senedd, potentially, because of privilege, perjury doesn't come into it, does it, but could perjury be used as a way? It's just a thought, because it is a criminal offence, and it's something that we haven't actually taken any evidence on. But I might be barking up the wrong tree.

Yes, Peredur, it's not something that we've considered or that I think that the committee has taken evidence on, but I'd be happy to come back to you on that.

Thank you. I think we are towards the end of our allotted time for this session. I think, as we've identified, Deputy First Minister, there'll probably be a number of more specific questions from the committee to write to you, if you'd be happy to respond in that way, particularly around the points Jane Dodds and others made around time frames, because we recognise—. Just one final question. That commitment to bring it forward by 2026, is that because the Welsh Government believes it's necessary by that point, or was that just part of the commitment in Plenary, and, actually, what preparatory work has been done? Because I'm conscious that the capacity of this committee to make recommendations and do work only goes so far.

We're absolutely standing by the commitment that we've made on previous occasions, just to reassure the committee and Members, and more than happy—. If you were to write to me, Chair, on us scoping out how we would honour that commitment, we're more than happy to do that then, so we can give you some further assurance.

Okay. Diolch yn fawr. So, thank you, Deputy First Minister, for your contributions and for coming along. This morning's session has been helpful in taking forward some of the work of this committee on this important matter. As usual, you'll be sent a transcript as soon as possible to check for factual accuracy, and, as I said, the committee will be in touch in writing for some further clarification on a number of the matters that were raised today. But thank you very much for your time.

Thank you, Cadeirydd. Thank you, everybody.

I'll now move to item 3, and a motion under Standing Orders 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? Diolch. In which case, we will now continue in private. Diolch yn fawr.