BGW2 EV19

Committee on Standards of Conduct

Changes to the Government of Wales Act- Standards of Conduct Issues.

The Committee on Standards of Conduct is responsible for keeping under review and advising the Assembly on its Standing Orders and guidance as they relate to the conduct of Assembly Members. The Committee has asked me to write to you to outline its views on possible changes to the Government of Wales Act’s provisions on ethical standards and to ask that you consider including them in the proposed Bill to amend the Act.

The Committee contains Members from the four main political parties in Wales and operates in a non-partisan manner. The Committee has unanimously agreed the proposals set out in this letter.

Background

Over the last 6 years, the Assembly has adopted a range of changes to its ethical standards arrangements based on the Committee’s recommendations. Among the more significant of these have been a more robust procedure for considering complaints against Assembly Members and the establishment of the post of Assembly Commissioner for Standards. However, other changes that the Committee considered desirable could not be introduced because of the constraints of the Government of Wales Act.

Without the opportunity offered by the proposed Bill, it seems unlikely that time would be able to be found in the legislative programme to address these issues.

Requested Changes

In the light of the Queen’s Speech, the Committee considered whether changes to the Government of Wales Act should provide for the Assembly to have greater control over the regulation of procedures relating to its Members’ standards of conduct. The Committee’s overall conclusion was that changes to the Act in this area are desirable.

The Committee agreed that, rather than specific measures to address particular issues, changes should be drafted as permissively as possible to allow the Assembly the autonomy in future to frame its own procedures in respect of ethical standards. Although the White Paper "Better Governance for Wales" had not been published when the Committee considered this matter, this approach seems to be very much in line with the UK Government’s own proposals as described in paragraphs 3.30 and 3.32 of the White Paper.

Specific Issues

The Committee feels that the general approach of broad enabling provisions giving discretion to the Assembly to frame its own ethical standards is the right way forward. However, the Committee has identified two specific areas where it believes changes to legislation are currently desirable. These are set out below.

Statutory Commissioner for Standards

The Committee’s main priority would be to give a statutory basis for the post of Commissioner for Standards and the powers he or she would exercise. The Assembly has recently established the post of Standards Commissioner within the Assembly’s current Standing Orders. Although this innovation has been welcomed, the Committee believes that the Commissioner might usefully be given the following powers:

• to be able to call (within defined parameters) for persons, papers and records;
• to have the right to determine when and how to carry out any investigation;
• to compel witnesses to co-operate;
• to clearly establish privilege against defamation for all reports, statements and communications on a complaint;
• to deal with complaints against Members according to procedures agreed by the Assembly; and
• the power for the Assembly to place such other duties and limitations on the Commissioner, in relation to ethical standards as it agrees in Plenary. (For instance, promoting ethical standards and advising the Assembly on ethical matters.)

The current complaint procedure and Standing Orders provide the Commissioner with some authority and protection in each of these areas but this is predominantly a moral authority underwritten by the authority of the Standards Committee. There is no right to call for "people and papers" and although there is a presumption that the Commissioner’s reports and investigations are privileged as part of the Assembly’s proceedings, this has not been tested before the courts.

Defence Against Failing to Register or Declare Interests

There is currently no clear-cut legal defence to the offences outlined in Section 72 of the Government of Wales Act. These provisions have already caused some difficulties for Members of all parties in relation to registration of interests. Members may have failed to register a particular interest despite having taken all reasonable steps and exercised all due diligence to comply with the requirements. However, the Member would still appear to be technically guilty of an offence without any defence, such as "due diligence" being available to them. The Committee believes that this is an area where the Assembly should be able to legislate to frame its own rules in the light of its specific circumstances.

Lobbying for Reward or Consideration (Paid Advocacy)

In addition to the two specific areas above, the Committee has also identified 'Lobbying for Reward or Consideration’ (Paid Advocacy) as an example of an area where the Assembly’s ability to consider adjusting the rules on ethical standards may be frustrated by the rigidity of the provisions in the current Act.

The Scottish Standards Committee has identified this as a problematic area and has recommended changes to the Scottish Parliament’s rules to allow Members to receive assistance in connection with the preparation of a Member’s Bill, amendments to Bills or on matters relating to Bills. This is subject to the proviso that such assistance is neither accepted by, nor given to, the Member in consideration of the Member promoting that Bill or that matter. Such changes could be made by Act of the Scottish Parliament.

Section 72(4) of the Government of Wales Act contains very similar provisions prohibiting lobbying for reward or consideration. These provisions could impact on Members’ ability to receive expert assistance from voluntary and other specialist interest groups that may offer assistance to Members in drawing up legislation or other proposals. It might also prevent Members from receiving more general research and briefing assistance from stakeholder groups. Although this is not currently a major worry, it could become a bigger issue in future as the Assembly gains more legislative powers as a result of your proposals.

Conclusion

The Committee considered this matter before the publication of the White Paper. However, the approach outlined in the White Paper, allowing the Assembly greater freedom to make its own decisions on procedures, is one which, I believe, accords very closely with the Committee’s view that the Assembly should be given more general permissive powers to regulate the Standards of Conduct of its own Members.

I commend these proposals to you, therefore, and I would be grateful for your response in principle to them. If you require any further information or explanation I would be happy to provide this or to meet you if you think it would be helpful.

If your officials need to discuss any of the detailed points set out above, the Clerk to the Committee, Andrew George on 029 2089 8206 will be able to help.

I am copying this to the First Minister for information and to the Presiding Officer, in his role as Chair of the Assembly’s advisory committee on the Better Governance White Paper.

Kirsty Williams

Chair