(COD0033)

Written evidence submitted by Douglas Bain CBE TD, Acting Senedd Commissioner for Standards

EXECUTIVE SUMMARY

• The Code of Conduct should be rules bases with unenforceable principles for use as an aid to interpretation.
• The Commissioner should be empowered to investigate a complaint that any of the rules specified in the Code have been contravened.
• The Commissioner should have power to investigate conduct about which no complaint has been received.
• All complaints against a member of contravening the Independent Complaints and Grievance Scheme should be dealt with by the Standards Commissioner.
• The Code should include a rule prohibiting racism and discrimination.

INTRODUCTION

1. I have been Acting Senedd Commissioner for Standards since November 2019.  I was the Northern Ireland Assembly Commissioner for Standards for five years from September 2012. My evidence draws on my experience gained during both these periods of office.

2. In this submission I shall first respond to the particular request made in the Chair’s letter of 21 October 2020 for evidence about ‘the approach in Wales to the equivalent issues in a Welsh context to those we are considering:

• whether the Parliamentary Commissioner should be able to investigate breaches of the Code’s principles and the Seven Principles of Public Life;
• the remit of the Commissioner; and
• how the Code and Guide can effectively be enforced.’

I shall then address two of the other matters on which the Committee has called for evidence.

3. It may assist the Committee to know that the Senedd Standards of Conduct Committee has been conducting a review of the Senedd Code of Conduct.[1]  Where appropriate I make reference to my understanding of how matters are likely to be dealt with in the revised Code.

EVIDENCE

Whether the Parliamentary Commissioner should be able to investigate breaches of the Code’s principles and the Seven Principles of Public Life

4. Although the current Senedd Code provides that provides that Members ‘should’ rather than ‘must’ observe the Seven Principles of Public Life (‘Nolan Principles’) the long established interpretation is that compliance with the Principles is mandatory and enforceable.  The current Code also includes ‘Specific Standards of Conduct’ which Members must observe in relation to –

• the registration and declaration of interests,
• the use of Senedd resources, public access to information,
• the relationship between Members and Senedd staff and civil servants,
• compliance with the Determination on Members’ salaries and allowances and
• co-operation with investigations by the Standards Commissioner.

5. These current provisions are very similar to those that were in place in Northern Ireland when I was appointed as the first Northern Ireland Assembly Commissioner for Standards in 2012.  Principles are by their nature uncertain and open to interpretation by the Commissioner and by the Committee.  I believe that Members are entitled to know the minimum standards of conduct required of them and that, arguably more importantly, the public are entitled to know these standards.

6. In practice, both in Northern Ireland and in Wales, I have found mandatory enforceable principles unsatisfactory.  The conduct governed by them is misunderstood by a significant proportion of complainants who may lose confidence in the complaints process when their complaint based on a genuine, but mistaken, belief that a principle had been contravened is held inadmissible.  It appears that the lack of comprehension is often due in part to the inappropriate descriptive text attached to each principle. I recall that the Committee on Standards in Public Life were of the view that the descriptors used by them should be used in all cases.  I believe that causes confusion and favour tailor-made descriptors such as those in the current Northern Ireland Assembly Code.[2]

7. In 2016 the Northern Ireland Assembly adopted a new rules based Code of Conduct.  Principles of conduct were included but it is provided that they are not enforceable and can be used only in assessing whether a specific rule had been contravened.  In addition to the Nolan Principles there are principles of Equality, Promoting Good Relations, Respect and Good Working Relationships.  The Code has 21 specific rules of conduct. 

8. Advocates of enforceable principles sometimes argue that a purely rule based system cannot cater for novel kinds of misconduct.  I do not believe that if thorough research is undertaken specific rules could not be drafted to cover the diverse kinds of misconduct committed by elected representatives throughout the United \Kingdom and elsewhere.  The risk of any new kind of misconduct not covered by a rule should be very small.  But if it is considered that provision is required to cover even that small risk a ‘catch-all’ rule is a better solution than having a number of enforceable principles.  The bar for contravening such a ‘catch-all’ rule should be set at a high level to reduce the risk of spurious complaints based on it.  In the period between the adoption of the new Northern Ireland Code and the collapse of the Northern Ireland Executive the absence of such a provision had not caused any difficulties. 

9. I understand that the new Senedd Code is likely to adopt a similar rules based approach with non-enforceable principles that may be used only as an aid to interpretation.

The remit of the Commissioner

10. Section 2 of the National Assembly for Wales Commissioner for Standards Measure 2009[3] provides -

The principal aim of the Commissioner in exercising functions under this Measure is to promote, encourage and safeguard high standards of conduct in the public office of Member of the Senedd.

11. The principle functions of the Commissioner are specified in section 6 of that Measure which provides -

(1) The functions of the Commissioner are—

(a) to receive any complaint that the conduct of a Member of the Senedd has, at a relevant time, failed to comply with a requirement of a relevant provision,

(b)  to investigate any such complaint in accordance with the provisions of this Measure,

(c) to report to the Senedd the outcome of any such investigation,

(d) to advise Members of the Senedd and members of the public about the procedures for making and investigating complaints to which paragraph (a) applies, and

(e) the further functions conferred by section 7.

(2) A “relevant time” means a time when the requirement in question was in force but it is irrelevant whether the conduct in question is alleged to have taken place before or after this section comes into force.

(3) A “relevant provision” means—

(a) any provision of the Standing Orders relating to—

(i) the registration or declaration of financial or other interests,

(ii) the notification by Members of the Senedd of their membership of societies,

(iii) the registration or notification of any other information relating to Members of the Senedd or to persons connected to Members of the Senedd]

(b) any resolution of the Senedd relating to the financial or other interests of Members of the Senedd,

(c) any Code of Conduct approved by the Senedd relating to standards of conduct of Members of the Senedd,

(d) any resolution of the Senedd relating to standards of conduct of Members of the Senedd and

(e) any provision included in the Standing Orders (or in any code or protocol made under them) in accordance with section 36(6) of the Act[4].

(4) it is irrelevant whether a relevant provision came into force before or after this section comes into force.

12. Further functions of the Senedd Commissioner are set out in section 7 of the Measure which provides –

The Commissioner may (and if requested by the Senedd to do so must) give advice to the Senedd—

(a) on any matter of general principle relating to relevant provisions or to standards of conduct of Members of the Senedd generally,

(b) on procedures for investigating complaints that Members of the Senedd have failed to comply with the requirements of relevant provisions,

(c) on any other matter relating to promoting, encouraging and safeguarding high standards of conduct in the public office of Member of the Senedd.

13. The Senedd Commissioner has no power to initiate an investigation.  The absence of such a power has resulted during the last year in wholly unacceptable well publicised misconduct by a Member not being investigated because no one complained about it perhaps because it was assumed that it would be dealt with without a complaint.

14. Nor has the Senedd Commissioner any role in relation to keeping the Register of Members’ Interests.  That register includes details of financial and other interests that Members are required to register.  Maintenance of that register is the responsibility of the Standards of Conduct Committee and is carried out on their behalf by Senedd Commission staff.  That allocation of responsibility, which is mirrored in Northern Ireland, secures a desirable separation of the maintenance and investigatory functions.

15. The Senedd Commissioner, like his Northern Ireland counterpart, has no specific duty to keep the Code of Conduct under review.  That is the responsibility of the Standards of Conduct Committee although by virtue of section 7 of the 2009 Measure the Commissioner may, and if asked must, give advice on it to the Committee.

How the Code and Guide can effectively be enforced

16. Subject to the absence of a power for the Commissioner to initiate a complaint noted below, the current provisions for enforcement of the Code work well.  The Guide to the Senedd Code is, as the title suggests, no more than advice to members on how to ensure they comply with the Code.  The provisions of the Guide are not enforceable although regard may be had to them in considering whether or not conduct contravened the Code.  The Senedd Commissioner’s powers to require the attendance of witnesses and the production of documents have been used infrequently.[5]  In almost all investigations evidence and documents are provided on a voluntary basis. 

17. Paragraph 15 of the current Code of Conduct imposes on Members a duty to co-operate with investigations by the Commissioner.  However, in the absence of any power for the Commissioner to initiate an investigation here is, at present, no effective mechanism for dealing with a contravention of that provision.

18. I understand that the current complaints procedure[6] will be reviewed following on from the review of the Code of Conduct.

f) What should be learned from the development of the Independent Complaints and Grievance Scheme (ICGS) and what can be done to ensure there is no confusion between the two systems operating side by side?

19. The Senedd Dignity and Respect Policy[7] is, broadly speaking, equivalent to the Independent Complaints and Grievance Scheme.  Like the Code of Conduct it applies to the behaviour of Members ‘at all times, in all places and in all contexts (including where the Member is acting as a private individual, e.g. is on holiday).’  The Dignity and Respect Policy is a ‘relevant provision’ by virtue of section 11(3)(d) of the 2009 Measure and the Guide to that Policy states that ‘complaints against Members of the Senedd, … will be carried out by the independent Standards Commissioner under the Code of Conduct.’[8]  This avoids any risk of confusion between the two systems operating side by side.

h) How should the House’s commitment to tackle racism and discrimination be incorporated in the Code?

20. The current Senedd Code contains no provision prohibiting racist or discriminatory conduct.  Conduct of that nature would almost certainly be a contravention of the Dignity and respect policy and so could be the subject of a complaint to the Standards Commissioner.  The Northern Ireland Assembly Code, in addition to the principles noted at paragraph 7, has a rule requiring Members to comply with the law on equality.  I understand that the new Senedd Code is likely to adopt a similar approach.

17 November 2020