Standards of Conduct Committee

I have no doubt that lay members will make a substantial contribution, not just to the work of the committee itself, but also to the public perception of the work of the committee. While I fully understand why they shouldn't be involved in legislative scrutiny issues, I think it would be very important to involve them fully in everything else. I've noticed, for example, a possibility that they might be used in some sort of appeals process. While that has some merit, it also has the downside, which I think outweighs the benefits, that that would mean they weren't involved in the initial consideration of a report from me.

An alternative solution—and you'd need to consider whether this could be done under Standing Orders—would be that, when a complaint first came to the committee, before it was shared with the Members, a decision would be made, presumably by the Chair, to nominate, let's say, three people who would be the appeal panel, and I would envisage them being a mixture of lay members and full members. They would not take any part in the initial consideration of the complaint, which would be left to the others. Given the increase in the size of the committee, I think that option is now feasible.

The other downside of having lay members dealing with appeals alone is that they would miss the experience of dealing with the initial consideration of a complaint and any issues that arose during the investigation. If they were to be a truly independent appeal panel, they'd have to be excluded from everything.

Thank you for that. Instead of turning straight to correction notices, I might come to Members and see if there are any specific questions on the introduction of lay members. I can see Mick Antoniw has his hand up.

One of the problems I find with this is that the idea, the concept—. We've seen what's happened in Westminster, et cetera, and we've also seen the complications that have arisen out of the Westminster system. I think there's a big mistake in looking at something the scale of Westminster and then trying to automatically transpose it here.

The difficulty I find is the clarity as to what the role of a lay member would be. It seems to me that it's there to add a level of expertise, an external input, and I think that's where Douglas's comment about perception is important. I get very sceptical when you start looking at the appeals process, because what is it you're actually appealing? Is it appealing the decision, is it appealing the facts that have been determined and decided, is it appealing the penalty and the recommendation that's been made? So, I have a real concern over the clarity of what it is we are trying to do, the direction that we're actually going in. I think we need a little bit more clarity on that.

I can see an advantage in the committee—considering, particularly, certain complex events that have come before the committee—having that external expertise within the committee when it comes to making its determination. I have more concerns about what its role might be in terms of an appeals process, because I think an appeal has to be a very specific thing that you're appealing, rather than a complete rehearing of anything and everything that has been done. So, I was just wondering, Douglas, what your thoughts are about that.

Thank you for that. As I, I hope, made clear in my earlier evidence, I am totally opposed to the reintroduction of an appeals process. I think we've seen the difficulties with it in the past. Nothing has changed, it only leads to—

Apologies, commissioner, for interrupting. I've just had a message that we need to take a technical break. So, if you bear with us, and if our millions of viewers that are watching can bear with us, while we take a short technical break. Thank you.

Croeso nôl, pawb.

Welcome back to this session of our Standards of Conduct Committee, where we are in session discussing proposals around the introduction of lay members to the standards system in the Senedd, and also in respect of the introduction of a correction notice.

I'm pleased to welcome our standards commissioner, Douglas Bain, to this morning's session. Douglas, if I may, just start again, by asking you for some very brief reflections from your perspective on the proposals to introduce lay members to the system in the Senedd. Diolch.

Yes, I very much welcome the proposed introduction. It's something I advocated for in Northern Ireland and have in the Senedd since starting to work there. I think it has principally two benefits. First of all, the additional perspective and possibly expertise that lay members might bring might give assistance to the work of the committee—when considering complaints, in particular. But perhaps more importantly, I think it will increase public confidence in the work of the committee and deal, to some extent, with the misperception that the committee mark their own work.

Thanks. I know that Mick had a question previously, so I will return to you again, Mick.

Okay. Thank you for that, Douglas. I think that there is a broad range of understanding and agreement about that point. The perception point, I think, is particularly important. How people perceive things seems to me to be something that gives credibility to the system. The other one, though, of course, is the expertise. We know that some of these cases can be quite complicated, can be extremely sensitive. So, having a range of lay members with that expertise to contribute, I think, is of value. I suppose that my question is, really, this: it's the focus as to what we expect of the lay members; what their status is within the committee; what their role would be; the levels of expertise we expect them to have; the pool; whether they are there as a matter of course in all standards matters or whether they are something that is brought in in terms of particular types of case. So, really, just your thoughts on that.

But also then one further thought, because there have been suggestions in terms of an appeals process, and I know you've had robust views in terms of an appeals process. I suppose where I'm a little bit concerned is that suggestions in terms of a sort of review, appeal process subsequently involving lay members as opposed to, if there is to be an appeals process, what that appeal is. How focused is it? What are the parameters that that might entail that we ought to at least be thinking about were we to go down that road, were the Senedd to establish an appeals process? Because I think that there's a grave danger in an appeals process that is not focused that what you end up doing is an attempt at rehearing everything in a way that is dysfunctional and disjointed from the consideration of all of the early evidence. And of course if you have lay members involved in that early on, it's a question as to what the purpose of an appeals process would actually be. So, I was just wondering what your thoughts were on that, Douglas.

If I could deal with the appeals process first of all, as the committee are aware I have been totally opposed to an appeals process from the time it was first suggested that it be reintroduced, and that's based very largely on the experience of the previous appeals process, which of course was a very tightly drawn process, but despite that it still resulted in significant delay to no good effect. I think the case for it is even weaker if there are to be lay members on the committee, because they will bring independence to the process, and doubtless some of them will have experience of dealing with complaints elsewhere or legal matters. I just can't imagine why it's really being considered going down this line. And of course you make a very good point as to what would the appeal be about. I've identified four, I think, possible things that could be made subject to an appeal. It could be about the commissioner's decision about whether a complaint was admissible; it could be about the commissioner's decision either to issue or not to issue a correction notice; it could be about the findings of fact made by the commissioner; then it could be about the committee's decision on the merits of an appeal; or it could be about the committee's recommended sanction. I think it would be a nightmare, and if there were Members who wanted to disrupt the system, it could be used very easily to achieve that end.

Okay, thank you. I didn't really have any more points on that.

Thanks, Mick. Douglas, can I just ask on that, on an appeal system and taking into account, as you said, the challenges when there was one as part of the standards landscape in the Senedd previously? Do you have any thoughts on whether an appeal system that made clear at the outset what an appeal could or could not be about, and if a panel was chaired by a lay member who perhaps had judicial experience, would that address some of the concerns, not only in terms of the function now, but also in terms of previous problems in previous Senedds?

It would certainly be better than a less restricted appeal system, but I think you would still get the same difficulties as were encountered in the past. You have to ask yourself: supposing there was an appeals panel, perhaps of three people, why would it be sensible to assume that their decision would be any better than a decision taken by the full committee, including the lay members, which presumably is going to be a committee of around eight? It doesn't seem to me that—. There was some merit in the idea of an appeal on a point of law to, effectively, a sitting judge. I can see no merit in an appeal to another part of the standards committee. And of course, you would then encounter the difficulty that these people would have to be excluded from the earlier consideration of the complaint.

Peredur, you indicated that you had a question.

Just on something you said earlier, commissioner. With the appointment of lay members and bringing that level of independence into the committee and bringing expertise, do you have a view on the recommendation, I think, that's in the report at Stage 1 of who shouldn't be lay members—I think there is a recommendation there that disqualifies members of the House of Lords and former Members of the Senedd, for example—and maybe a comment on how you would foresee what sort of skill set would be required for somebody to be a good lay member on a standards committee, because you did mention there if they were a former judge or something along those lines? So, if you could just unpack that for me, that would be interesting.

I might just add to that too, if I may, commissioner, because I think it'll save me asking an additional question. Peredur's question was on what attributes and experience should a lay member or could a lay member bring to it, but also I think in previous answers we talked about not just the independence of those members, but independent expertise, so perhaps in terms of what you think that expertise could look like in order to supplement and strengthen what we already have.

On the first point of eligibility to be appointed as a lay member, I think that the proposed list is not far from what I would want to see, though I think there is merit in the idea that people who have held office as a Member or a councillor or staff of a Member or a councillor should be not eligible for four years after ceasing that appointment. The other omission from the list, I think I'm right in saying, is a Counsel General who is not a Member, which would plainly be inappropriate.

On the expertise and what they would bring to the committee, of course the most basic expert requirement for them is that they should be people of common sense. Not to suggest that the Members don't have to have common sense, but these people are coming from outside the political bubble and will look at things in a different way. I would be loath to go down the line of saying there must be one who has experience in the law and one who has experience of medical matters. I think common sense is the appropriate thing. Previous experience of dealing with complaints might be useful, but I don't think it's essential, and I think the best way is an open competition. It would be for the selection panel to weigh up the merits of all aspects of the candidates. No doubt experience in the law, for example, might be a plus point, but could be outweighed by lack of common sense.

Thanks. Do you have any further questions on that, Peredur?

Not on that point, but Mick has got some.

Okay. I'll bring Mick on this, and then we may need to move to talk about culture.

Yes. Just a couple of points on that. I, of course, see the suggestion that experience of the law might be separate from a degree of common sense as an interesting concept that might be explored in other ways. I suppose one way to look at it is, with lay members, we're talking about here, I think, aren't we, a certain number of lay members on a committee who would be permanent members of that committee, so they would basically participate in everything, wouldn't they? So, they would be part of the committee, as opposed to people who would be brought in. I would perhaps just get that by way of clarity, that that's the thinking there. So, effectively, the size of the committee and the nature of the committee will have changed fundamentally right from the beginning on everything the committee does. But I suppose whether that might leave open that there might be something exceptional where a particular form of expertise would come in, but that could be something that could be brought in as a non-membership thing in terms of evidence or advice, I presume—. Might that work? What are your thoughts there, Douglas?

Yes. I agree with you entirely. I think it's essential to the introduction of lay members that they take part in everything that the committee does other than legislative scrutiny. I'm sure that the committee, if it believes that it needs expert assistance with something, can bring in someone as an assessor in the same way as I will in future cases, without any statutory authority. I'm quite satisfied that it's open to me to do that. I see no reason why the committee couldn't do exactly the same.

Okay. Thank you.

Thanks. Peredur, did you have a further question? You indicated.

It was on the notice of correction. I had a couple of questions there. I just wanted to explore what your thoughts were on—. Obviously, you use them currently in your determination, as in, to a certain degree, you would use that discretion that you have to say, 'Well, this has been corrected already.' But would you be able to give us an idea of how you foresee any notices of correction working with some of the work that you do in investigating complaints of either misleading or otherwise? So, if you could give me an idea of what your thoughts are on the use of notices of correction, or whether or not you've seen it work well elsewhere and it's something that we should be looking at to form our opinion.

I find this whole issue of correction notices a little difficult, because there has been very little written about it. I imagine what's intended is that if I receive a complaint that a Member has made a false statement then I should be able to issue a notice. That, of course, would have to be covered by the procedural rules, because at the moment there's nothing. But there are a number of questions that arise from that. Is it simply to be a correction notice in relation to a matter that I could investigate otherwise? For example, what about factually incorrect statements in committee or in Plenary? Now, these at the moment fall, in the first instance, at any rate, to the Llywydd. Is that to be the case? What about alleged factually incorrect statements by Ministers, when acting in their ministerial capacity? At the moment, I cannot investigate a complaint about that, so would I have power to issue a correction notice?

Then is the commissioner's decision on whether or not to issue a correction notice to be final, or is there to be any sort of review? You see, in many cases, I'm sure, it will be pretty straightforward to decide whether a statement was factually incorrect. But I can envisage lots of cases where it won't be clear at all, so that in itself will require an investigation, presumably using the powers available to me to investigate a complaint. And what happens after? I mean, suppose the Member complies with a correction notice—and I have some comments about that later, but—supposing the Member complies, is that the end of the matter or do I still investigate it and report? There are a whole lot of issues that I just don't think have been thought through at the moment about this, and I'd very much welcome the opportunity to engage with the committee about these.

On the proposal that the notice should require the Member to publish a correction with equal prominence, well, that's very straightforward if it's a comment or a statement made on social media. But what's the position if, suppose, the Member has made the false statement in a one-to-one interview with a journalist, who has then written a front-page story in which this comment appears? Now, there is no way the Member could arrange for the correction to be published on the front page of a newspaper. So, that needs to be looked at. And similarly, what about comments made during tv interviews? How are they to be corrected?

My preferred solution would be to give the commissioner power to prescribe the terms of the correction notice, how it should be published, the size of it and all the other details. And then, coming to the breach, the proposal originally made was if the person failed to publish the correction notice or didn't publish it in the way that had been required, that would be deemed to be—I forget what the word was—deceitful conduct. That seems to be unnecessarily complicated and also wrong in principle. To say someone is deceitful is very serious indeed. The failure to publish a correction notice might be through administrative oversight, and I think it would be wrong to label a Member as deceitful for that. A better solution would be simply to provide that failure to comply with a correction notice is a breach of the code, have a rule in the code requiring Members to comply, and then that would be looked at as a separate matter.

As part of that—. You're saying there if the power was given to yourself as the commissioner to decide how that correction notice would be deployed, if you like, would that then become more of a discussion between yourself and the person complained about to say, 'I can do that', or, for example, your example of that front page, 'That's impossible for me; what would be—?' Would that become more of a negotiation rather than a direction, and would that cloud things a little bit in how it would be deployed?

I think it would be it would be a negotiation in one sense, but a rather one-sided negotiation, in that certainly you would listen to the Member's views, but, at the end of the day, I think it's up to the commissioner to decide. Otherwise, you could delay the process hugely.

Do you have a sense of how frequently this might happen, just from your dealings with cases over the last few years—whether or not there is an instance where you would have thought that this would be an appropriate method of dealing with a complaint?

Well, I can think of a number, mostly relating to one Member. But, of course, it will be very easy to avoid this provision, in my view, because this is about statements of fact. If Members start the practice of saying, 'In my opinion, x is y', then that wouldn't be a full statement of fact—it's a statement of opinion. So, I think it is difficult, but I think it's something well worth pursuing. But I think the devil, as always, will be in the detail. Indeed, the other question that your legal advisers will wish to consider is whether these powers could be conferred on me under Standing Orders; the other powers that I have are under the Measure.

And finally from me, Chair, if I may, do you think this would go towards the other aspects that we've got of helping to improve trust in the system, and in democracy and politicians?

Well, it certainly should, and, put the other way, I can't see that it could do any harm. But I would hope it would have a beneficial impact. I would hope it would make certain Members more careful about the views they were expressing. I suppose the real difficulty is going to be, though, if we ever get into the field of misleading statements, as opposed to incorrect ones, what is misleading? Is it misleading to give only one side of the argument? But I think we're some way off getting there.

Thank you.

Thanks, Peredur. Just turning back to, I think, that you talked about, in some of the work we did, there was that recommendation that a correction should be given equal prominence to the manner in which the misleading statement was made. And you're right to raise the challenges with that, if it's, say, in a media interview, to actually give that then equal prominence if a correction notice does need to be issued. But, that aside, do you have any views on—? At the moment, a Member can raise, obviously, a point of order in the Senedd Chamber. But do you have views on, perhaps, within the structures we have in the Senedd, the form a correction notice could take? Should a Member have to make a short statement in the Chamber, which is then on the record? And then is there perhaps more that can be done to give a correction notice more prominence and more transparency within our own Senedd communications or the website, and such things as that?

I certainly welcome the proposal about correction statements on the floor of the Senedd. I think that's—. Frankly, I was surprised it wasn't already there. I think there's a good argument for further steps of publishing the correction notice on the Senedd website, perhaps requiring the Member to publish it on their own webpages, and I would quite welcome the power to publish it on the Senedd commissioner's website, but I'm not sure that I could do that because of the present provisions of section 16 of the Measure.

That's helpful. Do any other Members have any other questions in respect of correction notices? No. I don't know, commissioner, whether there's anything that we haven't covered this morning that you would like to take the opportunity to share with the committee? Obviously, there'll be an opportunity to follow this up, and we would welcome any further correspondence with you as we progress this work, at least in the remaining weeks of this Senedd.

No, Chair, there's nothing else. Thank you.

Can I thank you for joining us for this morning? Apologies for the slight technical hiccup, but I'm glad we were able to progress with this work. So, thank you again for your contribution. As is standard, there will be a copy of the transcript, which we'll provide to you as soon as possible so that you can check that for factual accuracy. Thank you very much again for joining us this morning.

Thank you, all.