SOC(3)SC-E004 - The National Assembly Commissioner for Standards

Bae Caerdydd /Cardiff Bay
Caerdydd /Cardiff
CF99 1NA

Ffôn/Tel: 029 20 898210
Ffacs/Fax:029 20 898936

Comisiynydd Safonau
Standards Commissioner

Lara Date
Second Clerk to the Committee on Standards on Conduct
The National Assembly for Wales
Crickhowell House
Cardiff Bay
Cardiff
CF99 1NA

4 July 2008

Dear Lara

Public Consultation: Assembly Measure to establish a statutory role of Commissioner for Standards

Thank you for the letter of 6 June 2008 from the Clerk to the Committee and for the opportunity to submit evidence to the Committee on Standards of Conduct about the proposed Assembly Measure to establish the office of a statutory Commissioner for Standards. As I currently hold the role of non-statutory Commissioner for Standards I naturally have views about the way the new statutory role should be supported based on my experience over the last eight years but I do not want to be seen to compromise myself as I am likely to be a candidate for the role of Statutory Commissioner when it is established. For this reason I do not consider it appropriate to respond to the first two questions but to focus my response on the third question about the principles underpinning the establishment of the statutory Commissioner’s Office.

In this regard I thought that it would be helpful to set out generally my experience since I was initially appointed in March 2000 as the National Assembly’s first Independent Adviser on Standards and specifically about the support arrangements I have enjoyed. This appointment was a Standing Orders requirement, and was similar in terms to what is in place today.

My initial activity was very much concentrated on the investigation of complaints. At that time, the Committee on Standards of Conduct took forward the 'policy’ for standards, and as part of its development of standards, the Committee (in 2001) commissioned an overarching review of the standards regime in the Assembly, which was undertaken by Professor Diana Woodhouse of Oxford Brooks University.

This review made a number of recommendations that impacted on the role of the Independent Adviser. In particular, Professor Woodhouse recommended:

• that the Committee consider that the role of the Independent Adviser be made statutory;

• that the complaints procedure should be revised so that complaints were received directly by the Independent Adviser (previously the PO received complaints and also make the decision as to whether they were admissible);

• that the Committee seek the co-operation of party managers in the development of a standards culture.

The Committee spent some two years taking forward the recommendations contained in the report, and made some key decisions in relation to the recommendations set out above.

The Committee agreed that the role of the Independent Adviser should be made statutory, but it was considered not to be a practical option at that time. The Committee therefore worked to establish the non-statutory role of Commissioner for Standards. This role had an enhanced remit and was seen as a 'half way house’ to the role being made statutory. I was appointed as the Assembly’s first non-statutory Commissioner in 2005 following an open recruitment process,

The complaints procedure was revised to give me responsibility for receiving complaints, and also for deciding (following preliminary investigation) whether a complaint is admissible, removing the Presiding Officer’s involvement in this part of the procedure.

The Committee also concluded that in seeking the co-operation of party managers, the same approach should be made with others, including the PO, Permanent Secretary, Clerk to the Assembly etc. The Committee considered that this role would be more effectively taken forward by the Commissioner. It was at this point that the Commissioner’s role became more proactive and this is how it has continued until now.

My current role is set out in Standing Order 33. As before, one of the Commissioner’s main areas of work is the investigation of complaints. I also have the remit to provide the Committee with advice on matters of general principle relating to standards of conduct, including the Register of Members’ Interests.

Support for the Commissioner

Support for my role has always been provided through Chamber Services (Table Office). This decision was taken as Table Office provided the Secretariat to the Standards Committee and also maintained the Register of Members’ Interests. Currently this support

role is provided by Siwan Davies, Gareth Rogers and Kath Thomas - although primarily, this work is undertaken by Gareth and Kath.

This support role has developed as the Commissioner’s role itself has developed. The team provides a front line service for the Commissioner and also provides all the administrative support required, this includes:

• Dealing with all correspondence/enquiries received;

• Providing advice to the public/Assembly Members as required;

• Processing complaints;

• Drafting reports/papers;

• Liaison with similar bodies (i.e. Standards Committees and other Commissioners);

• Ensuring the Commissioner is kept informed of developments in 'standards’ elsewhere;

• Ensuring payment of the Commissioner’s fees.

Also since the start of the Third Assembly, the Commissioner’s Office has undertaken some of the investigatory work on complaints. This investigatory work has only been possible since the responsibility for the Standards Committee has moved to Committee Secretariat - previously the Committee Secretariat was prohibited from participating in the investigation of complaints under the complaints procedure. I am keen that complaints are dealt with as efficiently and effectively as possible, and consider that this initial investigatory work by my Office is effective in expediting the handling of complaints and wish this involvement to continue.

As set out in Standing Order 33, the Commissioner also has the remit to advise the Standards Committee on matters of general principle relating to 'standards of conduct’ or the 'registration of Members’ Interests’. The Commissioner’s Office assists the Commissioner in providing this advice by identifying areas where there could be some concerns; undertaking 'research’ on the Commissioner’s behalf; liaising with similar organisations; etc.

A recent example of this is the inappropriate use of 'Blog’ Sites by Assembly Members. The receipt of several complaints regarding this flagged up a potential problem in relation to the general conduct of Members. Gareth/Kath undertook some research on the background, what the situation was elsewhere, and developed a paper on behalf of myself for consideration by Standards Committee highlighting the issue and action the Committee/Commissioner could take.

In taking matters such as this forward I have given my Office responsibility for researching, liaising with other legislatures and Commissioners.

Complaints against Assembly Members

The Commissioner’s Office deals with all day to day correspondence and queries received, including by e-mail and telephone. This has been the situation since I was first appointed (as Independent Adviser). In practice, Gareth and Kath consider this correspondence and deal appropriately.

The majority of complaint correspondence does not fall under the remit of the complaints procedure, and is therefore dealt with by Gareth/ Kath directly. I have given Gareth/Kath autonomy in this area. Examples of such correspondence may range from a general query about how to complain about an Assembly Member, to dealing with matters outside the Commissioner’s remit such as complaints regarding the conduct of Welsh Ministers or local authorities.

Where a 'proper’ complaint has been received, it is formally referred to me for Preliminary Investigation and the Commissioner’s Office provides all necessary support, and maintains all records of the complaint. Investigatory work has been carried out in relation to one complaint by Gareth/Kath - that work involved evidence gathering and clearing matters of fact with those involved in the complaint. It must be stressed that the role of the Commissioner’s Office in relation to complaint investigation is limited to the gathering of evidence or clarifying facts. Consideration of any evidence at any stage of an investigation is for the Commissioner alone.  

The Commissioner’s Office is also responsible (in my absence) for providing advice to Assembly Members in relation to all aspects of the Commissioner’s work, and this includes complaints. For example, in the most recent complaint considered, a Member had approached the Commissioner’s Office following publication of a news article that indicated a complaint was being lodged regarding their misuse of Assembly funds. Although a complaint had not (at that time) been received, the Member requested advice on the complaint process, options open to them, implications etc. I was unavailable, and therefore requested that Gareth met with the Member to provide the required advice. Again, I consider this to be an efficient and effective way of dealing with such queries.

Confidentiality

All complaints received are considered by the Commissioner as confidential. I also treat any approach for advice (either from a Member or otherwise) in the same confidential manner. This is essential to maintain the trust in my Office.

I have, from the outset, maintained this confidentiality - and this has included keeping information regarding my investigation(s) confidential from all - including the Standards Committee, Clerk, senior officials, etc. Only once my Preliminary Investigation is complete do I report to the Committee if the complaint is 'admissible’ and therefore requires a hearing by the Committee. If the complaint is not 'admissible’ the Standards Committee is not told of the complaint. I have required that those supporting me also respect this confidentiality.

There is, however, no mechanism for requiring those making a complaint or the Member complained of to maintain confidentiality. As a result there have been occasions where details of complaints have been made public. I consider that in such circumstances a common-sense approach needs to be taken in relation to what information is released and work with the Media Relations branch on how best to take this forward.

Distinction between Supporting the Commissioner and work of Chamber Services

In undertaking work on behalf of the Commissioner in relation to any part of his remit, those supporting me are undertaking that work for the Commissioner’s Office and not on behalf of the Assembly Parliamentary Service. It is vital to remember that I am an independent Assembly appointment and that any support for this role must also be 'independent’.  

It is clear that those currently supporting the Commissioner also have high profile roles in other areas of the Assembly. Table Office is a key office that regularly provides advice/guidance to Members. It is essential therefore, that a distinction is maintained between the work undertaken on behalf of Chamber Services and the work undertaken in support of the Commissioner for Standards.

Although there is no formal protocol/guidance in place, Table Office staff are able to maintain this distinction. There is a clear separation of duties within the team, and an understanding of the different roles by all in Table Office. I am clear about the different roles of those supporting me and am content with this approach. The experience in dealing with Assembly Members is also that they are aware of the distinction between the two roles.

However, there needs to be further consideration of the way in which the Commissioner is supported in light of the proposal to bring forward a Measure for a Statutory Commissioner. This is the opportunity to create a properly resourced independent Office for the Commissioner for Standards in line with the revised role and enhanced profile of the Commissioner. I hope that my experience over the last eight years will help to answer many of the detailed questions set out in Annex 1 and that those elements of the current arrangements that work well for me in my non-statutory role will be continued and where necessary enhanced when the support for the statutory Commissioner role is being considered.

Yours sincerely

Richard Penn
Commissioner for Standards