Senedd Cymru | Welsh Parliament
Pwyllgor y Bil Atebolrwydd Aelodau | Member Accountability Bill Committee
Bil Senedd Cymru (Atebolrwydd Aelodau ac Etholiadau) | Senedd Cymru (Member Accountability and Elections) Bill
Ymateb gan Undeb Gwasnaethau Cyhoeddus a Masnachol Cymru | Evidence from Public and Commercial Services Union Wales
Thank you for the opportunity to respond to the consultation on the Senedd (Member Accountability and Elections) Bill. I’m writing to you on behalf of the PCS Wales Executive Committee; the PCS union represents members in the civil service and related areas.
Our responses to the consultation have been grouped together under relevant subject headings relating to the Bill’s contents.
As currently drafted the member may be subject to a recall petition during the time they are appealing their conviction. Members cannot control the timing of the UK Courts (and should not seek to) therefore their appeal may not be heard before they have lost their post as a Member of the Senedd. There is no mechanism to reverse the recall petition if the courts later decide to overturn the case on appeal. This is a significant impact on the affected Member’s right to a fair trial as their appeal in the courts effectively becomes a part of the recall process.
Whilst there is a requirement in 5(4) to carry out a “public consultation on a draft of the guidance”, there is no stipulation as to how long or what form that consultation must take nor of any particular stakeholders that must be informed of the consultation being open beyond current Members and the Senedd Commissioner for Standards.
PCS support this measure as it allows for matters of concern to be referred by multiple Senedd Commission staff without having to have an individual act as the lead complainant against the Member in question. This is particularly important for matters of Dignity and Respect where a process is currently lacking for the Senedd Commission as a body corporate to notify the Standards Commissioner that it (e.g. via HR services) is aware of circumstances that it feels warrant investigation by Senedd’s Commissioner for Standards.
While this measure is a significant improvement on the current set-up, we would also note that without the external commissioning of expert advice on matters of bullying and sexual harassment, the process as outlined in the Bill risks laying too much power at the individual judgement of the Standards Commissioner.
The block on a recall petition within the last 6 months of a Senedd term means that an available sanction is removed under the new terms and prevents a Member from facing the public for that matter separate from an election – when it will be the entire party list being questioned not the conduct of that individual member within the list. It also risks those who report a Member’s misconduct feeling that their complaint is subject to political pressure when the Standards Committee is not able to go through the full process in sufficient time to give recall as a potential sanction before the 6month cut-off.
In addition, as the replacement will not go through an election procedure (they will simply be appointed as the next available on the list for that party), the cost of a byelection need not be factored into the decision-making process.
There is a serious risk of confusion with the language of the proposed question.
“Remove” and “Retain” are complex language and similar sounding in English.
“Diswyddo” and “Cadw” are less similar in Welsh but a direct translation of these to “Dismiss” and “Keep” would be better terms to use in the ballot and for campaigning purposes around the ballot.
There is limited provision in the Bill as drafted related to the funding of both Remove and Retain campaigns. There should be restrictions on the funding available to both sides of the campaign with regulations similar to those for a referendum, identifying official campaign groups for each side of the question and allocating maximum spend and requirements to register funding/spending with the Electoral Commission as with election related expenses and referendum rules.
The campaign funding measure also gives no mention of a right to a mailshot by each side similar to that permitted (and funded for 1 mailshot per household or per voter) for each candidate during an election.
Currently there is no provision included in the Bill for a by-election following a remove vote for an independent candidate – or for any party that has exhausted its candidate list from the previous general election to the Senedd. A mechanism is required to ensure that representation of the people is maintained in order for the remove/retain vote to be a fair question not swayed by the possibility of underrepresentation for a constituency if the consequence of a “remove” result is underrepresentation for that constituency.
All Llywydd roles (as drafted) can only be carried out by the Llywydd. There is no capacity included for a Deputy Llywydd to fulfil these roles. This is particularly important where the Llywydd may be the subject of the recall petition and/or have a conflict of interest in an individual being subject to the provisions. To give a transparent view for the decisions of the Llywydd, a provision should be included in the Bill for the Llywydd to set aside and allow a Deputy to take such roles where appropriate.
Lay Members should be subject to the full rules of a Member of the Senedd with regard to their role on the Committee, including being subject to investigation by the Commissioner for Standards for their conduct in that role. They should also be subject to the full range of sanctions of the Committee – including recall of some form as described earlier in the Bill.
A limit of 2 terms of office can act as a safeguard against institutionalisation. However, a limit of 2 terms of office in total, particularly when a lay member may resign from a term due to becoming ineligible as a candidate for a future Senedd election, is a very limiting. Those with expertise to join the Standards of Conduct Committee as a Lay Member should be able to do so. Any term limits should only apply for consecutive appointments and/or have a minimum gap between appointments rather than being a hard limit to a total of 2 appointments.
A previously sitting Senedd Member should only be eligible to be appointed as Lay Member of the Standards of Conduct Committee after two terms out of office, as a means of avoiding potential conflicts of interest, and in the interest of promoting the perception of independence of Lay Members.
Is it appropriate for the Senedd Commission to determine the level of pay for a Lay Member of the Standards of Conduct Committee? The legislation is unclear if this is considered an employed role at the Senedd Commission or a role similar to an independent advisor that should be sought through the Welsh public appointments process and be subject to the recruitment and remuneration rules of such. Should this rate be set by the Independent Remuneration Board and as such be a part of the money set aside for appointed offices rather than coming from the budget of the Senedd Commission for its own staff and internally determined functions?
It’s unusual to disqualify those who are, or have been, a member of a Town/Community Council. Disqualifications usually stop at the level of Principal Council. It is also limited to councils within Wales where other disqualifications are not Wales specific. Similarly, the PCC disqualification only applies to the Welsh PCC roles and not all UK equivalent roles.
The exclusion of paragraph 8 of Schedule 1A of GOWA2006 is significant as it removes the requirement for a Lay Member to be “registered in the register of local government electors at an address within a Senedd constituency”. This effectively means that the individual is not required to be resident in Wales or have any significant connection to Wales whereas the rules for Members of the Senedd now require them to have some Welsh connection even if only by the limited rules for voter registration.
It is our understanding that this Act is what gives candidates for election and elected members access to the electoral role for a constituency. There does not appear to be any provision here for the body presenting the opposing view to be given any access to a list of electors in order to contact the electorate for the “remove” side of the poll. This creates an imbalance in the campaign as the “retain” side would have access to the list as the Member in question remains a Member for the duration and so retains their right to access and use such lists to contact the electorate of that constituency.