The Standards of Conduct Committee (the Committee) is undertaking an inquiry into Individual Member accountability and the potential for it to be strengthened.
There are several ways that individual Members of the Senedd are held to account:
§ Once elected, a Member is accountable to their constituents and ultimately, a Member who stands for re-election is held to account by the public at each election.
§ Members can be disqualified and removed during a Senedd term for specified reasons including if convicted of a criminal offence and sentenced to a custodial sentence of 12 months or more.
§ Members are also expected to meet the standards of behaviour and rules set out in the Senedd’s Code of Conduct, and may face sanctions for breaches of these rules.
§ However, there is no provision the Senedd itself to recommend the removal of a Member during the Senedd term.
As part of the Senedd scrutiny of the Senedd Cymru (Members and Elections) Act 2024, the Standards of Conduct Committee was invited to consider ways of strengthening the individual accountability of Members by the Reform Bill Committee, in light of the evidence which they have received. The Counsel General has also specifically invited the Committee to consider the introduction of a process of Recall and how to regulate Members and candidates who seek to deceive, following proceedings on the Elections and Elected Bodies Bill.
The Committee will seek to present its conclusions to the Senedd with a view to informing any legislative proposals which Welsh Government may bring forward ahead of the 2026 elections.
This consultation is seeking views on potential options for improving the accountability of Members, including in the following areas:
§ The introduction of a mechanism for the Recall of Members (some form of public poll in the relevant areas between elections that gives electors an option to remove a Member from the Senedd when a complaint of misconduct has been upheld);
§ Reasons for which Members may be disqualified during a Senedd term;
§ The merits of the introduction of an offence of deception;
§ Increasing the available sanctions for breaches of the Code of Conduct.
The Committee would welcome your views on the questions posed in this consultation by Friday 27 September 2024. Please submit your response in English or Welsh via the online form.
A glossary of key termsused in the consultation is included at annex A.
A list of the Committee evidence sessions and other Senedd proceedings relating to these matters is included at annex B.
Disclosure of Information
Before submitting information to the Committee, please ensure that you have considered the Senedd’s policy on disclosure of information. Alternatively, a hard copy of this policy can be requested by contacting the Committee Clerk (0300 200 6565) or Seneddstandards@senedd.wales
Contents
Making of False or Deceptive Statements of Fact by Members and Candidates
Recall and Disqualification as Sanctions
Annex A: Glossary of Key Terms
Annex B: List of Committee evidence sessions and relevant Senedd proceedings
Inquiry into Individual Member Accountability – Consultation
Background
1. During its scrutiny of the Senedd Cymru (Members and Elections) Bill, the Reform Bill Committee recommended that the Senedd’s Standards of Conduct Committee should develop options for strengthening individual Members’ accountability, including consideration of a recall mechanism, the disqualification arrangements and the sanctions available to the Committee when a complaint about a Member is upheld.
2. Recall mechanisms are the means by which an elected politician can be removed from office by their constituents between elections.
3. The UK Parliament was the first legislature in the UK to introduce a system of recall for Members of Parliament (MPs) in 2015. If certain conditions are met, voters in the relevant constituency will have six weeks to sign a “recall petition” if they wish for their MP to be removed from their seat. If at least 10% of registered eligible electors sign the petition, there will be a by-election in that constituency via the First Past the Post (FPTP) electoral system. The recalled MP may stand in the by-election.
4. From 2026, Members of the Senedd will be elected entirely via a closed list proportional representation system as a result of changes to the Government of Wales Act made by the Senedd Cymru (Members and Elections) Act 2024. If a recall mechanism is to be adopted by the Senedd then it must be designed in accordance with the new electoral system. There will be no provision for a by-election in the event of a vacancy during a Senedd term, with a vacant seat being filled by the next person on the list instead.
5. The Government of Wales Act 2006 sets out the circumstances when a person is or becomes disqualified from being a Member of the Senedd.
6. A proposal to introduce an offence of deception was debated by Members during proceedings on both the Senedd Cymru (Members and Elections) Bill, and subsequently the Elections and Elected Bodies (Wales) Bill.
7. As part of his commitment during Stage 2 proceedings on the Senedd Cymru (Members and Elections) Bill, on 13 March 2024, the Counsel General wrote to the Committee[1] to draw its attention to the amendment tabled relating to the disqualification of Members convicted of the offence of deception, tabled by Adam Price MS and invited the Committee to explore disqualification as part of its inquiry into strengthening individual Member accountability. The Committee agreed that it would be part of its work.
8. In May, the Elections and Elected Bodies (Wales) Bill was amended during stage 2 to alter the criteria for disqualification so that a Senedd Member or candidate in a Senedd election convicted of the offence of deception would be disqualified for a period of four years. The Counsel General, whilst not supporting the amendment, referenced the work the Standards of Conduct Committee to explore disqualification..
9. The amendment was removed during stage 3 of the Bill but the Counsel General committed to introduce legislation before 2026, stating:
“Welsh Government will bring forward legislation before 2026 for the disqualification of Members and candidates found guilty of deliberate deception through an independent judicial process and will invite the committee to make proposals to that effect.”[2]
10. During the term of a Senedd, Members are expected to meet the standards of behaviour and rules set out in the Senedd’s Code of Conduct which applies at all times. This code sets out 8 principles – based on the established principles of public life, also known as the ‘Nolan’ principles and an additional principle of “Respect” - which set out clearly expectations on Members. The Code also has 24 specific rules of behaviour that apply to Members at all times. Complaints about potential breaches of these standards by a Member can be made to the independent Senedd Commissioner for Standards who is empowered to investigate complaints and who reports their findings to the Senedd’s Standards of Conduct Committee.
11. The Committee then considers these reports and if a breach is found, it reports to the Senedd. The Committee has the option of recommending that a sanction should be applied to a Member, such as exclusion or the withdrawal of certain rights and privileges as a Member of the Senedd. We are exploring whether new sanctions should be available to the Committee and the current range of sanctions codified and restated.
Recall mechanisms
12. Recall mechanisms are the means by which an elected politician can be removed from office by their constituents between elections if certain conditions are met.
13. The Committee has heard a range of evidence broadly in support of the House of Commons model for recall. However, there are a number of significant differences between the Senedd and the House of Commons which will need to be factored into any consideration of a system for Wales.
14. The Committee would welcome your views on:
§ Whether the power to remove a Member of the Senedd during a Senedd term when a complaint of misconduct has been upheld is important to you, and the reason for your answer.
15. The following questions in this section are based on the practical implications of recall, if you do not consider a recall system to be necessary, you do not have to answer these questions.
16. In the House of Commons, there are three grounds for recall:
§ The MP has, after becoming an MP, been convicted of an offence and sentenced to be imprisoned or detained for a period of less than 12 months (including suspended sentences).
§ Following a report from the Committee on Standards, the House of Commons orders the suspension of the MP from the house for at least 10 sitting days (or 14 calendar days.
§ The MP has, after becoming an MP, been convicted of providing false or misleading information in support of an expenses claim under section 10 of the Parliamentary Standards Act 2009 (if they provide information which they know to be false or misleading in a material respect in support of a claim for allowances).
17. The Committee heard that consideration is being given in Scotland, by way of a backbench Member’s Bill, to introduce grounds for recall if a Member does not participate in Scottish Parliament proceedings for a period of six months or more without good reason, such as ill health.
18. The Committee also gave consideration to whether Members who ‘cross the floor’ - i.e. leave one political party to join another during a Senedd should be subject to a recall petition. There were mixed responses on this issue from the witnesses, although most were not in favour.
19. The Committee would welcome your views on the following issues in the development of a recall procedure for the Senedd:
· Whether a suspension of 10 sitting days is the appropriate length to trigger a recall process or if it should be higher, lower, or within a range;
· Whether misuse of expenses or allowances (a breach of Rule 9 of the Code of Conduct) should potentially trigger a recall procedure;
· Whether changing political parties i.e. moving from party A to party B within a Senedd term should trigger recall procedures;
· Whether a lack of attendance and participation in proceedings without good reason for a period of six months or more should trigger recall procedures;
· Whether a Member convicted of a criminal offence with a sentence of less than that which would automatically disqualify them should be subject to a recall petition (see paragraph 17);
· Any other areas which should trigger a recall.
20. It is important that eligible voters signing a recall petition feel able to express their views freely.
21. In the House of Commons system, eligible voters only sign the petition if they are in favour of recalling the MP. This means that there is no option for voters to show support for the MP to remain in post and that when entering a polling station, their intention to sign the petition is known to others. Concerns were raised with the Electoral Commission that the ‘lack of secrecy’ may have stopped some electors from signing a petition in a previous Recall process.[3]
22. The Electoral Commission has suggested to the House of Commons that consideration should be given to whether eligible electors should have the option to complete an equivalent to the signing sheet to indicate they oppose the petition.[4] For the two petitions in 2019, the Electoral Commission was not aware of any complaints about the secrecy of the signing places.[5]
23. In the House of Commons, the threshold of signatures for recalling an MP is 10%. If 10% of eligible electors sign a recall petition, there will be a by-election in that constituency and the outgoing MP may contest that election if they wish to. The Senedd Commissioner for Standards has highlighted that if the threshold was set at the same level (10%) for a Senedd recall procedure, given that the Senedd system will not lead to a by-election, 10% of the electorate could directly remove a Member.[6] In light of this consideration, we are seeking views on the appropriate threshold for recall or removal in the Senedd.
24. Like in an election, eligible voters are able to sign a recall petition for the House of Commons in person at a designated signing place (similar to a polling station) or by post or by appointing someone as a proxy to vote on their behalf. The Committee is seeking views on whether recall petitions for the Senedd should also allow electors to vote by post or by appointing someone as a proxy.
25. The Committee would welcome your views on the following questions, if a recall petition is used:
· Whether the recall petition should provide an option for showing support for the recalled Member to retain their seat;
· What threshold of signatures should be required in order for a petition to be successful.
· Whether electors should be able to sign a petition by post or by appointing someone as a proxy.
26. In the House of Commons, if an MP’s actions meet the conditions for recall (see paragraph 8), arrangements are made so that eligible electors have 6 weeks to sign a recall petition in the relevant constituency.
27. Data from the Electoral Commission shows that for previous recall petitions in the House of Commons the majority of people who signed the petition did so early in the six-week signing period.[7] The Committee also heard concerns that the length of time that the petition had to run for impacted on the location of designated places as spaces such as schools which are typically used in elections are not available.
28. We would like views on whether the time available to sign a petition should be shorter for the Senedd. One possibility could be for the petition to open on a single day, across a greater number of designated areas, with longer opening hours, rather than over a multi-week signing period in fewer designated areas. Alternatively, the number of weeks to sign the petition could be shorter, for example, four weeks, as has been suggested by the Electoral Commission as an alternative[8].
29. The Committee would welcome your views on the following questions:
· Whether a recall petition should be open on a single day, across a greater number of designated areas, or over a multi-week signing period in fewer areas? If the petition should be open for a multi-week signing period, how long it should be open for.
· Any other related considerations relating to ways in which constituents can access or participate in the process?
30. The Committee has identified the following potential recall processes that could operate in the Senedd:
i. Option 1: A recall petition is run asking whether the Member should be recalled. In the event a Member is recalled, the next candidate from the party’s list on which the removed Member was elected would fill the vacant seat. This approach means that signing the petition would remove the Member, rather than result in a by-election in that constituency. The proportionality of the last election result would be maintained and vacancies could be filled quickly. Independent Members would not be replaced.
ii. Option 2: A remove and replace petition is run, which would give an option to either keep the incumbent Member or remove them and replace with the next candidate on the party’s list. This would be subject to a campaign period and allow the Member subject to the ‘recall’ process an opportunity to defend their position with the electorate. The proportionality of the Senedd would be maintained. Independent Members would not be replaced.
31. The Committee would welcome:
· Your views on the proposed two options above;
· Whether there is an alternative system which could be explored.
Disqualification
32. Candidates running for election to the Senedd must meet the necessary qualifications to ensure that they are not disqualified. Under Section 16 and schedule 1A of the Government of Wales Act, a person is disqualified from being a Member under the following conditions:
§ Is under the age of 18;
§ Doesn’t fulfil citizenship criteria;
§ Has been declared bankrupt;
§ Has been found guilty of corrupt or illegal practices at elections;
§ Has been imprisoned or detained followed convictions (minimum 12-month sentence); or
§ Has been subject to orders under part 2 of the Sexual Offences Act 2003
§ An existing member of other UK legislatures
§ Hold disqualifying office.
33. If a Member of the Senedd is disqualified, that person ceases to be a Member and their seat becomes vacant.
34. We would also like to seek views on whether, if a Member has, after being elected, been imprisoned or detained following convictions of a 6 month sentence this should be grounds for automatic disqualification in the Senedd, as is currently the case for sentences over 12 months.[9]
35. The Senedd Cymru (Members and Elections) Act 2024 provides a new condition for disqualification: that an individual who is not registered in the register of local government electors at an address within Wales is disqualified from being a candidate for election to the Senedd. We are interested in whether there are any other circumstances in which a Member should be disqualified.
36. Matters on deception are dealt with in the next section.
37. The Committee would welcome your views on the following:
· The length of prison sentence which should trigger disqualification;
· Other than deception, which is dealt with in the next section, are there any other areas which should result in disqualification from membership of the Senedd?
38. One area the Committee heard evidence on relates to disqualifying Members and candidates for election to the Senedd for making false or deceptive statements.
39. Members and candidates would be liable to disqualification when they ‘wilfully’ and ‘with the intent to mislead’ make, publish or cause or permit to be published on their behalf a statement of fact which they know ‘to be false or deceptive’, while acting in their capacity as a Member or as a candidate to become a Member.
40. During the legislative stages of both the Senedd Cymru (Members and Elections) Bill and the Elections and Elected Bodies (Wales) Bill, there were amendments tabled that would have created a new criminal offence of wilfully or with intent to mislead, making or publishing a statement known to be false or deceptive. Under the proposed amendments, offenders would be disqualified as a Senedd Member or from standing as a candidate in a Senedd election for a period of four years. The amendments did not reach the final stages of the bills, but there was the support on the part of Members for the general principle of holding Members to account for making false or deceptive statements of fact. During the Stage Three debate on the Elections and Elected Bodies (Wales) Bill the Counsel General made the following statement:
“Welsh Government will bring forward legislation before 2026 for the disqualification of Members and candidates found guilty of deliberate deception through an independent judicial process and will invite the committee to make proposals to that effect”[10]
41. The Senedd Members’ Code of Conduct already requires Members to be truthful. Rule 2 of the Code of Conduct is “Members must act truthfully”. The Guide to the Code of Conduct further explains:
“A white lie (e.g. claiming to be ’fine’ when a Member is actually tired) or some other minor lack of truthfulness, would not be regarded as a breach of this Rule. Equally, while Members are expected to reasonably fact-check and verify their assertions, it is inevitable that sometimes ‘incorrect, but honestly-made,’ statements will occur. For instance, a Member might inadvertently misquote a financial figure (“£60,000” rather than “£600,000”). Provided the Member has corrected the error at the earliest opportunity, complaints of such nature are likely to be considered frivolous or vexatious.
A complaint would normally be based upon an alleged lie. Amongst other things, the substantiveness of the consequences of a lie are likely to be a factor in the determination of sanction for such behaviour.” [11]
42. The Committee therefore wishes to consider the most appropriate and effective route to addressing false or deceptive statements. The Committee is currently considering the following three options and is open to other suggestions:
i. Option 1: The creation of a criminal offence of deception, which would be investigated by the police and tried before the criminal courts.
iii. Option 2: Using an existing investigative body, such as the Public Services Ombudsman and an independent Welsh Tribunal, such as the Adjudication Board for Wales (if the making false or deceptive statements of fact is to be a matter for civil sanction).
iv. Option 3: Strengthening the existing Code of Conduct (Rule 2), subject to approval by the Senedd, to prohibit more explicitly wilful lying or deception and strengthen the sanctions which could be applied. These would continue to be dealt with through the mechanisms of the Senedd Commissioner for Standards and considered by the Standards of Conduct Committee and Senedd.
However, this decision-making route would not be appropriate if it was decided that the candidates as well as Members of the Senedd should be caught within the scope of the offence. If this was the case, the jurisdiction of the Senedd Commissioner for Standards would have to be extended in order to cover candidates as well as Members of the Senedd. Furthermore, if the Commissioner’s jurisdiction extended to candidates, it is likely that the Commissioner would have to report to an independent decision-making panel, perhaps along the lines of the Independent Expert Panel used at Westminster under the Independent Complaints and Grievance Scheme and which is chaired by a retired senior judge.
43. The Committee would welcome your views on:
General principles
· Whether you agree or disagree that the making of false or deceptive statements by Members of the Senedd or candidates to become Members should be grounds for disqualification.
· The risks and effect of malicious complaints being made against Members and how such risks could be mitigated.
· The consequences arising from a prohibition on the making of false or deceptive statements of fact and the privilege protections for Members contained in the Government of Wales Act 2006.
· Issues related to human rights if a criminal offence or a civil sanction system was introduced, particularly the rights of freedom of expression (Article 10) and freedom to stand in an election (Article 3 of Protocol No. 1 - Right to free elections).
· The three options set out in paragraph 38 and which would be most appropriate and effective or any other options you may wish to suggest (more detailed questions are set out below should you wish to address the specific issues relating to these options).
Scope
· Whether both Member and candidates to become Members should be within the ambit of an offence.
· If a candidate is to come within the ambit then at what point should they become subject to potential liability.
Option 1 – criminal offence brought before the criminal courts
· Should making a false or deceptive statement of fact be made a crime or be made subject to civil sanctions.
Option 2 – civil offence adjudicated through an independent judicial process
· Views on the nature of an independent judicial process and the options offered by the Committee above in paragraph 42.
· If the making false or deceptive statements is made subject to a civil sanction, what standard of proof would be most appropriate - the civil standard (i.e. “on the balance of probabilities”) or the criminal standard (i.e. “beyond reasonable doubt”). Although not common, there have been instances where professional disciplinary bodies have operated to the criminal standard.
Option 3 – strengthening the existing Code of Conduct and standards procedures
· What other measures and mechanisms could address deception or false statements. For example, through existing standards procedures or potential recall mechanisms.
Penalties or sanctions, including disqualification
· Considering disqualification as a criminal sentence or civil sanction, what length of a period of disqualification that would be appropriate? Should there be a fixed period of disqualification, or a period (within a set range) to be determined on a case-by-case basis so that any mitigating circumstances that could reduce the period of disqualification are taken into consideration?
· What sanctions other than disqualification that might be an appropriate penalty for the making of false or deceptive statements of fact?
General issues
· What defences should be available to an allegation of deception.
· The interaction between proceedings for making false or deceptive statements (whether it is civil or criminal) with the rules set out in the Senedd Members’ Code of Conduct which already require Members to always act truthfully.
· Views on the resource implications for existing bodies or bodies that might be created to investigate and decide complaints of false or deceptive statements of fact.
Recall and Disqualification as Sanctions
44. The Senedd Commissioner for Standards investigates alleged breaches of the Code of Conduct and reports findings to the Standards of Conduct Committee. The Committee then considers these reports and if a breach is found, may recommend a sanction to the Senedd which the Senedd then decides. The sanctions currently available to the Senedd in cases of misconduct are:
§ the Member should be excluded from Senedd proceedings either generally or specifically - for example, proceedings at particular meetings of the Senedd or its committees - for a time to be specified in the motion for exclusion, and in accordance with Standing Orders;
§ that certain rights and privileges of membership of the Senedd should be withdrawn from the Member concerned, including:
i. withdrawal of a right of access as a member of the Senedd estate;
ii. exclusion from other activities which a Member might normally have a right to attend; and/or
iii. removal of representational, ceremonial and related privileges which a Member might normally enjoy.
45. There is no power to remove an individual from the Senedd entirely. Where deemed appropriate, any combination of the above sanctions may be applied.
46. The Committee would welcome your views on whether there should be additional sanctions available to be recommended in extremely serious cases (which may include matters such as deception), including:
i. Recall sanction: The Committee could have the power to recommend that the Member is subject to recall. This would create a standalone sanction to trigger recall procedures, rather than a suspension of a certain number of days.
ii. Disqualification sanction: The Committee could have the power to recommend that a Member is disqualified. This would mean that in the event of extremely serious breaches that do not trigger the existing conditions for disqualification, the Committee could recommend the Member’s disqualification.
47. Any sanctions would require majority approval by the Senedd.
48. The Committee would welcome your views on:
· Whether the Committee should have the power to recommend sanctions of disqualification or recall of a Member of the Senedd?
· Whether there any other sanctions should be available to the Committee?
Annex A: Glossary of Key Terms
Closed list proportional representation
A form of electoral system where each party puts forward a list of their candidates for multi-member constituencies. Winning candidates are taken from the lists in order of their position, and seats are allocated proportionally using a formula. It is the system that will be used for elections to the Senedd from 2026.
Code of Conduct
The Code of Conduct for Members of the Senedd provides rules and guidance for all Members on the standards of conduct expected of them in the discharge of their Senedd and public duties. All Members of the Senedd must comply with the Code.
Disqualification
Individuals meeting certain criteria are disqualified from being Members of the Senedd and/or candidates standing for election to the Senedd. The Electoral Commission published guidance on the disqualification criteria used for the last Senedd election.
False or Deceptive Statements
A person ‘wilfully’ and ‘with the intent to mislead’ makes, publishes or causes or permits to be published on their behalf a statement of fact which they know ‘to be false or deceptive’.
Parliamentary Privilege
Parliamentary privilege grants Members of the Senedd special rights, powers and immunities to enable them to speak freely in Senedd proceedings without fear of being sued or prosecuted. Members of the Senedd have more limited rights than Members of Parliament. This quick guide looks at privileges in more detail.
Postal Vote
Electors can apply to vote by post if they do not think they will be able to get to a polling station on polling day. Recall petitions for the House of Commons allow electors to sign petitions by postal vote.
Proxy Vote
Electors can apply for someone they trust to vote on their behalf if they know that they will not be able to get to a polling station on polling day. When completing an application, the elector needs to give a reason why they cannot attend in person. Recall petitions for the House of Commons allow electors to sign petitions by proxy vote.
Recall
A process by which an elected representative can be removed from their position between elections.
Sanctions
If the Standards of Conduct Committee decides that a Member of the Senedd has breached the code of conduct, the Committee can apply sanctions to that Member. These sanctions range from concluding that a breach has been found but that no further action should be taken to the exclusion of the Member from Senedd proceedings for a specified time or the withdrawal of rights and privileges from the Member.
Standards of Conduct Committee
The Standards of Conduct Committee has been set up by the Senedd to consider matters set out under Standing Order 22, particularly complaints referred to it by the Commissioner for Standards. It is also responsible for reviewing the code of conduct for Members of the Senedd, guidance on the code and complaints procedures, and rules for lobbying.
Senedd Commissioner for Standards
The Senedd's Standards Commissioner (whose full title is the Senedd Commissioner for Standards) is an independent person appointed by the Senedd to provide advice and assistance relating to the conduct of Members. The Standards Commissioner is an independent investigator of any complaints against Members that they have breached the Senedd's codes, protocols or resolutions. The current Standards Commissioner is Douglas Bain.
Suspended prison sentence
Suspended sentences are custodial sentences where the offender does not have to go to prison provided that they commit no further offences and comply with any requirements imposed. They are used only when the custodial sentence is no longer than two years. A suspended sentence is both a punishment and a deterrent.
Vacancies
When a Member of the Senedd leaves their seat between elections, a vacancy is created in the Senedd. Members could leave their seats for a variety of reasons, including if they die or resign, or become disqualified.
Annex B: List of Committee evidence sessions and relevant Senedd proceedings
Standards of Conduct Committee evidence sessions:
3 June 2024 - Standards of Conduct Committee:
· Evidence session 1: Joe Rossiter, Institute of Welsh Affairs
· Evidence session 2: Douglas Bain, Senedd Commissioner for Standards.
10 June 2024 - Standards of Conduct Committee:
· Evidence session 3: Graham Simpson MSP (private).
· Evidence session 4: Professor Jonathan Tongue, University of Liverpool (public)
17 June 2024 - Standards of Conduct Committee:
· Evidence session 5: Professor Alistair Clark, University of Newcastle
· Evidence session 6: Mick Antoniw, Counsel General.
24 June 2024 - Standards of Conduct Committee:
· Evidence session 7: – Dr Sam Fowles, Cornerstone Barristers and Jennifer Nadel, Compassion in Politics.
1 July 2024 - Standards of Conduct Committee:
· Evidence session 8: Douglas Bain, Senedd Commissioner for Standards
· Evidence session 9: Jane Dodds MS.
Other Senedd debates relating to Recall and Deception:
30 April 2024 – Stage 3 consideration of the Senedd Cymru (Members and Elections) Bill
2 July 2024 – Stage 3 consideration of the Elections and Elected Bodies (Wales) Bill.