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 Elkan Abrahamson | Evidence from Elkan Abrahamson
I have been asked to comment on Part 3 of the Bill and in particular to ;
1. Give my views on the effect and potential impact of including a duty on Welsh Ministers to make provision prohibiting the making or publishing of false and potentially misleading statements of fact under s.13 of the Government of Wales Act 2006;
2. Say whether the Bill itself should define what is or is not a ‘statement of fact’ and if so how the definition should read;
3. Give my views on whether the provisions should capture false and misleading statements of factor only false statements of fact;
4. Say whether the Bill should define what is or is not a ‘misleading’ or a ‘false’ statement and if so how the definition should read;
5. If the list of matter in sect 2b that may be included within an order made by the Welsh Ministers prohibiting the making or publishing of false or misleading statements of facts is sufficient or if any other matters should be specified on the face of the Bill;
6. Say what impact the proposals might have on electoral law;
7. Give my views on the justice impact=t assessment accompanying the Bill and the potential impact of Part 3 on the justice system;
8. Give my views on any human rights implications of Part 3 of the Bill.
I should start by saying that any steps to improve the integrity of the political process and the accountability of the political community are welcome.
I am conscious that Part 3 of the Bill does not change the position immediately and there is an assumption that further consultation is needed ; I understand the reasons for this but merely note that the delay, while understandable, is unfortunate. The fact that provisions will not have any impact until 2026 should not encourage people to delay the process unnecessarily. The sooner the provisions are enacted ( following a [recess of reasonable consultation and debate) the better , given that there needs to be some publicity and education to ensure that all potential candidates understand the provisions in 2026.
1. It is difficult to consider the impact of an enabling provision, even one imposing a duty, as this will depend on the drafting of the secondary legislation. The duty at the new subsection 2A ( ‘The Welsh Ministers must…)is open -ended, I.e. no time scale. I would suggest that a time scale be added so that it reads ‘The Welsh Minister must within (say) 12 months of this Act being passed etc.’ Without a time limit there is no accountability and no opportunity to challenge delay.
2. Whether the Bill should define ‘statement of fact’. Given that further consultation is to take place I would suggest not. I am not sure that the words ‘of fact’ are needed. S.11 of the Public Office (Accountability)Bill takes a different approach, albeit in a different context. It creates an offence of misleading the public. It requires ‘dishonesty that was significant or repeated(whether by means of falsehood, concealment obfuscation or otherwise)’ and an intention or recklessness as to misleading. ( please see the Bill for the full section) . It does not use the words ‘of fact’. This section will if the Bill is passed apply to Wales. The link to the Bill is here:
https://publications.parliament.uk/pa/bills/cbill/59-01/0306/240306.pdf
3. The provisions should catch both false and misleading statements. A misleading statement can have the same impact as a false statement. With regards to misleading statements the intent required should be intentional or recklessness. It is important that candidates appreciate they cannot avoid liability by simply reposting social media entries, they must take responsibility for checking the veracity of any statements before circulating them.
4. Whether the Bill should define what is false and misleading. l would suggest not for two reasons. Firstly these are terms which are understood by the public and arguably need no definition ( although they are sometimes defined - e.g. Fraud Act 2006 s.2(2) https://www.legislation.gov.uk/ukpga/2006/35/section/2
Secondly the Public Office (Accountability) Bill, if - as seems likely- it becomes law next year, will have an impact on public life and public accountability. The Act will apply at least in part to Wales. The Act contains terms including ‘false’ and ‘misleading’ which are undefined. I anticipate a body of commentary and ultimately case law will develop around the Act and this might help the Wales Ministers in their deliberations.
5. S.22(3) and the addition of (2B) contains a list and I am asked to comment on whether the list is sufficient. It is not of course a restrictive list - matters may be added or indeed subtracted. Again, given that further consultation is to take place, the makeup of the list is not vital. Having said this, I would point out an apparent contradiction between 2A and 2B. 2A says that the Welsh Ministers ‘must’ make provision prohibiting the issuance of ‘false or misleading’ statements and 2B allows the prohibition to be for false statements only or both false and misleading. I would suggest that 2B(b) be deleted. Similarly for reasons given above at answer 3 I would support the deletion of 2B(a).
6. I’m afraid this is outside my expertise.
7. The proposal will have a minimal impact on the administration of justice. I would anticipate that the provisions will rarely lead to investigations , frivolous complaints will be weeded out at an early stage, and prosecutions will be very rare.
8. The human rights implications are potentially Articles 5 ( re: deprivation of liberty), 6 (right to a fair trial) and 10 ( freedom of expression). No doubt these will be considered by the Welsh Ministers when formulating the provisions. Nothing in these articles prohibits the making of the provisions envisaged. Article 3 of the first protocol requires free elections and may have relevance depending on the wording of the provisions.
Elkan Abrahamson
Director Broudie Jackson Canter solicitors
Director Hillsborough Law Now
23/11/2025