Y Pwyllgor Safonau Ymddygiad

Standards of Conduct Committee


Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Mark Drakeford
Natasha Asghar
Peredur Owen Griffiths
Vikki Howells Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Mick Antoniw Cwnsler Cyffredinol
Counsel General
Professor Alistair Clark Prifysgol Newcastle
Newcastle University
Ryan Price Pennaeth Polisi y Senedd, Llywodraeth Cymru
Head of Senedd Policy, Welsh Government
Will Whiteley Dirprwy Gyfarwyddwr, Diwygio’r Senedd, Llywodraeth Cymru
Deputy Director, Senedd Reform, Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Bethan Garwood Dirprwy Glerc
Deputy Clerk
Meriel Singleton Clerc
Samiwel Davies Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Mae hon yn fersiwn ddrafft o’r cofnod. 

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. This is a draft version of the record. 

Cyfarfu’r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:15.

The committee met by video-conference.

The meeting began at 09:15. 

1. Cyflwyniad, ymddiheuriadau a dirprwyon
1. Introductions, apologies and substitutions

Welcome, everyone, to this meeting of the Senedd Standards of Conduct Committee. This meeting is bilingual and interpretation is available. We have no apologies this morning, and can I just check with Members if there are any declarations of registrable interests? No, okay.

2. Ymchwiliad i Atebolrwydd Aelodau Unigol: Sesiwn dystiolaeth 5
2. Inquiry into Individual Member Accountability: Evidence session 5

So, we are now on our fifth evidence session of our inquiry into individual Member accountability, and it's my pleasure to welcome Alistair Clark to the meeting this morning. If I could ask you, Alistair, to give a short introduction to yourself and your views around recall.

My name's Professor Alistair Clark. I'm a professor of political science at Newcastle University in the north-east of England. My research has been into electoral integrity and standards issues. My views on recall are that I think it can be a useful thing for institutions to have available to them. I don't think it should, by any manner of means, be the first port of call for holding Members accountable for standards or behavioural issues and should only really be used in the last resort. But I think it is a useful technique to have available for institutions.

Thank you. If I can begin, then, with some questions around triggering a petition, and I know you have already given evidence to our sister committee, the Reform Bill Committee, on this. So, in your view, what sorts of circumstances are the appropriate ones to trigger a petition? Should we be looking to Westminster, for example, as a good pattern there, where you have the three-pronged approach of a prison sentence that's less than 12 months, because disqualification kicks in thereafter, suspension of at least 10 sitting days, or someone who is convicted of an expense offence? Is that the right area for us to be looking at, do you think?

I think there are two ways into this. One is a process that's instituted by the institution, whichever means that is. You have that with the Westminster Parliament, with its suspension for 10 days or more, the offence from the expenses Act, for instance. But the other way into this, which you find in some countries through the world, is through recall petitions.

Now, I think what the Westminster model has done has merged those two things in an overall process. So, the first step of their recall process is that institutional check, if you like: prison sentence, suspension for 10 or more days, or a violation of the expenses Act. That, I think, removes the problem of things being raised that, to be honest, are just political issues, for instance. It removes, to some degree, the politicisation of the standards process, because I think there is a danger here of that potentially happening. Where Westminster then goes is it puts this out to a recall petition, and I think what it's done, as I say, is merge those two different approaches to recall worldwide, really, into one process for them.

There have been complaints about how it's worked in the wrong way. From memory, I think there have been five or six, depending on whether or not you count Scott Benton in this one or not. Nevertheless, I think it's worked reasonably well. The complaints have been around how it's been organised for the petition end of things. I think the institutional side of things has run reasonably well. So, I think both those approaches are things to be thought about. I think Westminster have broadly got the approach reasonably right and they've taken account of, I think, best practice elsewhere.


Thank you. And, of course, one key difference between the Senedd, the Welsh Parliament and Westminster is the fact that we have Members who are elected on a proportional representation basis, and, post Senedd reform, that will be applicable to all Members. Now, previously, we have had instances at our Parliament of Members being elected on that regional ballot, elected under a party name, rather than their own personal name, and then deciding to switch parties. In fact, I think we had one Member who changed parties three times during the last Senedd. There's certainly, perhaps, a growing argument that that, in itself, is undemocratic for people who've chosen to have a particular party represent them at the Senedd. So, I wonder what your views are around that and whether that changing of your political party should be grounds for triggering a recall petition.

To be honest, I think we get into the realms of politicisation and, in that particular one, it's certainly not at Westminster, I'm not aware that it is elsewhere. I think the danger is that recall issues should really be issues about parliamentarians' conduct, and about Members' conduct. I think this is really the main issue. When it come to changing parties and so  on, this is really a political issue rather than, necessarily, a conduct issue. I can understand where the argument comes from, however; I do understand that. But I think going down that route really endangers, I think, the whole process as being to do with Members' conduct, so I'd be reluctant to take it down that route if someone just crossed the floor from one party to another. Granted, doing so three times I think is slightly more than problematic, but I'm not sure that that's something that a standards and recall process should be really dealing with, to be honest.

Thank you so much, Chair. Morning, Alistair. Alistair, my question has two parts and I hope that's okay with you.

Of course.

Firstly, you said that Westminster has got it near enough right, so what can we do in Wales to pretty much get it right and get it right close to the 100 per cent?

Well, I think you have quite a difficulty in the sense that you're heading towards a proportional representation list system. I think there are two questions, or two parts, to recall. The first is just actually recalling a Member. The second is: what do you do with it? There's the standards element to it and there's also an electoral system element to this. And I think that's made more problematic by having proportional representation closed list systems, because, traditionally, what would happen under those systems is not a recall election, where you go back to the electorate and ask their opinions of the list of candidates and get them to elect someone again; what would happen would be that the next placed person for that party on the list becomes the Member. And I think that's more standard practice under proportional representation systems. I think the question very much for the Senedd is which way does it want to go in that regard. I think it's quite plausible for the Senedd to go down the road of just having—if someone's recalled, then having the next available member for that party to replace them. That keeps the party balance as elected, but there's a new Member. I think that's perfectly plausible and in line with international standards. If you wanted to have a recall election, it is then going to get much, much more complicated, unfortunately, because you couldn't run an election under [correction: you couldn't run an election using] proportional representation under those circumstances, unfortunately. So, you would need to think what form of electoral system you would want to run that particularly specialised type of election. I think that that's—well, obviously—another choice. To my mind, and off the top of my head, there are probably a couple of options there: back to first-past-the-post, albeit in a much larger constituency, because you would be talking about one of the larger proportional constituencies to begin with, but potentially something like the alternative vote as well, which is a preferential system, but where you end up with the candidates needing 50 per cent of the vote through transfers to be elected.

So, I think that there's a choice there about whether you go down the route quite simply of having the next person on the list for that party stand up and become the Member, or go down an election route. Going down the election route for a proportional system would be, let's just say, unusual. I think it's more standard just to have someone come up, whoever was next on the list to come up and become the new Member. There is also an issue there, I think, about—and this is one for the political parties—. Traditionally, in things like by-elections and things like that, the incumbent party often tends to lose. Now, would an incumbent party that has had one of its Members recalled be content to put that back to the people, with the potential for them to lose that seat? I think that's one, really, to be decided. 


Thank you so much for that, Alistair. Coming to second part of my question—sorry, Chair, I promise I'll make it brief—before I interjected, you were talking about conduct. Obviously, I think that the committee is aware that, at the moment, there are only two ways where a recall can be called—so, jail time and, sorry to sound inappropriate, but fiddling funds is the second. Do you think that we should look to broaden those characteristics, or do you think that we should just focus on those two that actually are there at present? Could there be more areas that we look into that, perhaps, could potentially call in a recall situation?

This is one that I think that you can argue almost indefinitely, unfortunately. I think that the danger for a standards procedure such as this is that it gets overly politicised. Why we've ended up with, I think, prison and the expenses end of things for the Westminster recall model is quite simply that these are fairly objective standards, by comparison with—. Well, what do people always complain about politicians doing? Being economical with the truth and things of this sort. That's much more political, so I'd caution, probably, against going in that direction and broadening this. I think that you want to keep this fairly tight, because it's quite a serious thing to remove someone who is elected. I don't think that we want to remove the weight of that decision. So, I think I'd caution against broadening it too much.

Thank you, Alistair. If I could link in with your last comment there, and take us back to the process of a possible petition, you said yourself that it's a very serious process. With that in mind, do you feel that a Member should have a right to appeal anywhere along the line there? 

I think that—sorry, excuse me. I think there is an argument for a Member to have the right to appeal. However, if you're going down a standards process, and you've investigated whatever the issue happens to be to begin with, then I would assume that the Member has been given the right to put their case to the standards committee to begin with. So, you have a sort of control there for that anyhow. Again, there are different models of practice here. There are some systems that do allow Members the right to appeal. There are some systems that don't. I think that this is really one for the committee to decide how much they want to delay a decision, because sometimes—. Sometimes the argument that a Member would like to appeal a decision is just a way of actually postponing a decision, and I think that, again, gets into difficult territory. If you have had a Member given all the time possible to provide evidence, to give their side of the case and so on, it's difficult to see what further an appeal would bring. So, I can understand why that, in and of itself, to coin a phrase, sounds appealing. But I think that, so long as the Member has been given all the time possible to give their case, to contribute evidence and so on, if there wasn't the right to appeal, I'm slightly more relaxed about that.


Thank you. I appreciate your views on that. Do you feel that the triggering of a petition should be subject to a vote in the whole of the Senedd, the Welsh Parliament, rather than just a decision taken by the standards committee? And if you do think that it should be a decision for the whole Parliament, do you feel a simple majority decision would suffice, or should we be looking at, say, a two-thirds majority?

I'd probably row back from the supermajority line, because I think that would be very, very difficult to achieve, and you would end up, I think, in the process where you almost torpedo the point of this as a standards process, because, inevitably, reaching a supermajority is difficult to achieve, for very good reasons. So, I think a majority is what I'd be looking at, but I think it should go to the whole Parliament, rather than necessarily just the standards committee. I think that gives the standards committee the reassurance that its judgment is supported by its peers, if we can put it that way. But I think a majority is sufficient. I think a supermajority would end up with you virtually never ending up using the recall process. I'd like to put it this way: I hope it's never used to begin with, and I'm sure we all hope that, but you want a process, I think, that's meaningful, and I think that's one thing that I think could be used to blunt the instrument.

Thank you. And one final question from me. I think it's impossible to look at the issue of recall without touching on disqualification, and for us to be assured that the processes that we've got around disqualification are right as well. So, with that in mind, do you feel that the matters disqualifying Members need to be changed? So, currently we've got a prison sentence of 12 months or more, and certainly we are finding some feedback that people are uncomfortable with that, and they can't understand, for example, why a prison sentence of six months wouldn't be sufficient to disqualify a Member.

I can understand that point of view. Obviously, if someone's been in prison for six months, it's very difficult for them to fulfil their role as a Member, and you're not the only Parliament that's discussing these issues at the moment. The Scottish Parliament is as well, and, indeed, they've been talking about extending it to people with—you know, issues around sex offending and so on as well. I can understand very much the six months point of view, and I think I'd support that, to be honest. It's very difficult for someone who's in prison to be representing their constituents, quite simply. You're not in prison lightly, let me put it that way. So, I think that would be a reasonable thing to do. I don't want to push it further than that, to be honest, because I think, again, you get into that grounds of that this is actually really serious, removing an elected representative, to begin with. So, if someone was getting a caution or something of that sort, I'm not sure I'd want to go down that kind of road. But I think a six to 12 months' imprisonment—I don't really have an issue with that.

Thank you. I'll bring in Peredur Owen Griffiths now with a series of questions for you. 


Diolch, Gadeirydd. Diolch, Alistair—thank you for coming in this morning. I'd like to just touch on some of the things that Natasha was talking about earlier. You mentioned first-past-the-post, you mentioned the alternative vote; could a by-election happen under the D’Hondt system, where you've already got five, potentially—? In a D’Hondt system where, after 2026, you have six seats, and one of those Members is up for a recall petition, could you run a D’Hondt by-election based on that? Is that doable, and how easy is it to do, or how difficult?

Do you mean rerun with new candidates?

No, the five stay in place, but to try and—just going back to your point that, in recall petitions, very often the incumbent party loses—allow the public to have a decision in that process.

D'Hondt in and of itself is not really an electoral system, it's a seat allocation process within electoral systems. I think I'd just remove D’Hondt from the reasoning in this regard, to be honest. I think if you're going to have the voters give their say and hold a by-election, something of that sort, I think it would probably need to be something like first-past-the-post or the alternative vote, for the simple reason that you would be electing one candidate for a larger area from however many candidates wish to stand.

This is why I asked about rerunning it, but again that's difficult to do, because under D’Hondt people are not giving preferences for the candidates as they would have been under something like the single transferable vote. You can't really rerun something under that kind of system, at least as I understand it. So, that's what I would say to this. With trying to elect a single candidate, you get yourself in that position where you end up asking voters to do something a bit different to what they've originally done in electing the whole regional list to begin with, if that makes sense.

Yes, thank you for that. I have another question around—you mentioned it earlier—the next person on the party list. I'm assuming that you mean the original party list. In Vikki’s example, where somebody changed party three times, it would be the original, to go back to the balance that was there at the outset of the Parliament. I'm assuming that, but I just wanted to check that that was the case. 

Yes, that's what I meant. It would be the next person on the original list. There have been cases in places where that next person is not available—they've gone off and done something else, and what have you—in which case it would then devolve to the next person under that. I think that's normal enough, but it would be the list that had been there originally on the election.

And if somebody was elected as an independent, and therefore wasn't on a list, leave the seat vacant. 

There's not much you can do in that regard. If they're elected as an independent, then by definition they're on their own. The seat would probably need to be vacant. I'd not expect that many independents to be elected to begin with, given how the thresholds would work within the electoral system. But yes, the seat would then need to be vacant.

Thank you. We've talked in this committee about different ways of progressing or running a petition. Assuming that we have a petition system, one alternative that has come about in some of the deliberations that we've been having is similar to Westminster, where you have a petition and then you have a by-election. That's the Westminster model, if you like. So, you go to the electorate twice. Also, some people have talked about, bearing in mind what we were just talking about now about the next person on the list, that that's available, that there would be a vote where two people are named, so potentially you've got the person being recalled and the alternative. What were your thoughts around that? Are there any other permutations that we haven't thought about yet?


No, I don't think so. One question that's been in the back of my mind that you've just brought up is whether the person who's recalled can actually stand again, and I think that's a fairly fundamental decision. I guess that depends on what it is that they've done. If a candidate who's been suspended, or whatever, can actually stand again, I think that's a fairly obvious decision. What you describe sounds perfectly reasonable to me. There's nothing jumping out at me that I don't hear you having talked about in that regard, if that makes sense.

Assuming that we're having a two-stage process and that we're doing a petition because the circumstances have been met for that, in Westminster the trigger is 10 per cent. Is that reasonable? Is that the right figure? Should it be higher? Should it be lower, bearing in mind people might well have been under the system getting 40-odd per cent of the votes initially? So, those sorts of questions. And then, how do you run that? It if reaches 10 per cent, do you stop or do you carry on? 

Obviously, the people who are going to run that are going to be the electoral administrators in whichever region or area it is. The returning officers and their local authority teams are going to have to run that. There's going to have to be resource put behind that, because, obviously, there are two processes being talked about here, and that will have to be organised on the geographical basis that that regional list, or whatever, is at. Whatever percentage you decide on needs to be 10 per cent of that bigger electorate, not just a single constituency electorate, if you're talking about the regional lists. 

Is 10 per cent a reasonable amount? Remember it's 10 per cent of that electorate who think there should be a recall. That's a different thing to saying someone should be elected with 40 per cent, for instance. This is just saying that 10 per cent think there should be a Member recalled. Is that reasonable? There are different models around the world. There are some places with more, there are some places, I think, with less. The very first case in the Westminster system where they did this was, if I remember rightly, Ian Paisley Jr in North Antrim. He failed to get the 10 per cent, and so just continued. 

I think 10 per cent is probably reasonable. Could you stop the process once 10 per cent is reached? I'd be reluctant stop any process after you've reached a point without actually having a proper answer from the electorate, because it may mean that, I don't know, one elector has been given the chance but another can't because they've been away working, or something. Why should one get the chance, dare I say, and one not? I'd be uncomfortable, let's put it that way, about the process just being cut off once that 10 per cent is reached.

Another thing you could do, however—and I think this has been one of the criticisms of the Westminster model—is make sure that the whole process is not open for too long a time, so that it is, I don't know, let's say open for a couple of weeks or something of that sort. One of the criticisms, certainly, of the Paisley case was it was actually open for quite a long time and there weren't enough places where people could go and sign the petition. I think that's another aspect that you need to think about: how do you practically organise people going to sign a petition, where can they do this? Is it council offices, is it other places? That kind of decision needs to be thought about as well.


On that point, if you're trying to open it up, rather than curtailing the time, would you make postal and proxy available?

Not if it's over a period of time, no. Certainly not proxy. If you've got it available for, I don't know, let's say three weeks, hypothetically, then there is, on the whole, time for people to, if they're away for work, come and do it the week after, for instance. I'd probably keep postal. They're signing a petition, so I'd probably keep one form, at least, of remote signing, let me put it that way, because there might be people who, for very good reasons, can't get to the council office to sign the petition; they may be hospitalised or something of that sort. But I think I'd have a choice of one or the other, not both proxy and postal.

I think Westminster is six weeks. If you make it shorter, for example three, would you give people the option to say, 'I don't agree with this petition' as an alternative? If you're not going to be closing it after 10 per cent, there is an argument that there should be an opportunity to show that people disagree with the petition as well. So, there are a few arguments there in different ways—just some thoughts on that.

My main thought on that is you actually just get into the process of organising an election, in that case, because you're asking people for their choice on a particular opinion. Indeed, it would effectively be a kind of local referendum, to some degree, whereas signing a petition, I think, has a slightly different character to it, if that makes sense, and I would think it's probably less costly to organise well. Because if you're giving people different choices, then there needs to be a means of counting those sorts of different choices, reporting those different choices. Sure, there needs to be a way of measuring if the 10 per cent is reached with the petition, but it's a slightly more complex process if you're asking people to decide between various different options. So, I'm satisfied just with signing a petition in that regard, and I think that's how most recall processes around the world operate, rather than giving people options.

And if the individual resigned during that six weeks, or three weeks or whatever, would you just stop the petition?

I think so, yes.

Thank you. I've got about seven minutes before my enforced departure, so if you don't mind, I'm going to put my questions to Professor Clark, and then if I leave during his answer, the rest of you will hear it.

Professor Clark, I want to go back to where you started, the melded system at Westminster. We heard evidence last week that suggested we should do away with the petitions part of this process altogether and that it would be preferable to have strong systems at the Senedd to make sure that we have the right triggers before someone could be removed from the Senedd and robust ways of interrogating whether or not those figures have been reached—through the standards committee, through a vote on the floor of the Senedd, allowing the person concerned to make their case themselves. If all of that led the Senedd to believe that this person had reached that threshold, then would it not be better simply to go to the electors of that area with a 'remove or not remove' question? What's the point of the petition, in a way, if the Senedd itself has done its job? We've just heard in your discussion with Peredur the complexities of the petition. Does it add anything sufficiently worth while to make the expense involved and the effort required on behalf of electors as well worth having? If we were to do without it and to go just simply on the basis of a Senedd robust process out to the electorate—in Wales, after 2026, people will be elected off party lists in paired constituencies—what should the threshold be in such a remove-or-retain ballot, and should the threshold need to be reached in both constituencies? Or should it just be—say the threshold was 20 per cent—that the 20 per cent is reached over the two constituencies combined, given that paired constituencies may be very different in nature here in Wales, depending on what the Electoral Commission determines? Sorry to give you such a lengthy list, but my computer is threatening to leave and restart in four minutes and 25 seconds.


No problem. Let me try and respond as best I can. I think it's a choice, obviously, for the Senedd, whether or not it goes down the route of it having the final say in this regard. Now, that's perfectly plausible. There are places around the world that do have that model, that it's down to the institution, so I don't think it's necessary to go back to the electorate. I think, in this day and age, it's probably a wise thing to do that, but I don't think it's necessary.

As for going back to the electorate with, 'Do you remove or not remove?', well, in effect, that's what the petition would be doing anyhow, so I'm not quite sure I get the difference between a petition and that sort of idea. I think, as you've explained it, at least, the two things in my mind seem fairly similar—that's what the 10 per cent would be effectively saying, 'Yes, let's remove', and then the next step would be to have a by-election.

With regard to the twinned constituencies, I think that's quite interesting. I've not given that a lot of thought, but my gut feeling is that it should be across both rather than just the one. I think that would probably be best advised, rather than just focusing on the one. What should the limit be of the going back to the electorate and saying, 'Remove or not'? Again, back to my point about the petitions process, I think 10 per cent is fairly reasonable. It could be higher. Some places have higher, some have lower, but I think 10 per cent is reasonable, and remember that's just 10 per cent of people who think there should be something happening with this Member.

So, I think what I take from your question is that the big decision here is whether the Senedd devises processes that are robust to decide whether or not a colleague should be excluded, should be recalled, and whether or not you proceed on that basis or whether or not you go back to voters in some way, shape or form. I think either are plausible, quite frankly, and then, if the Senedd's processes are robust enough, I don't necessarily see that that's entirely problematic in the institution holding on to this as a process.

My question was more that we should go back to the public, but do we need to go back to the public twice?


Okay, yes.

It seems very unlikely to me that we will have a by-election system.


We will simply have a remove system, and then the person will come off the list.


And, 'Why do we ask the same question twice?' is probably what I'm asking you. Is it not better to have not a petition system, but one return to the public? The Senedd believes the triggers have been reached to put that question to you as the electors, but we only ask the public once, and the question is, 'Do you want to retain this person or do you think they should be removed?' If they're removed, you can get the next person off the list; you won't have a by-election, I don't think.

Sure. Okay, thank you. I now understand properly, yes. I don't have a problem with that as an approach. I still think, in some way, what you're suggesting is just a development of the petition system. It's not opposed to it; I think it's just a development of it. I wouldn't have a problem with that whatsoever. Both of those things—the next person on the list, and the institution having robust practices—are in line with international practices elsewhere, and there's a degree of innovation and going back to the electorate with that question. So, yes, I think that's a perfectly plausible process to take forward.

Thank you, Alistair. I think Mark's computer has done as it threatened to and restarted itself, so it's a good job that he asked you all those questions in one go. I'll just check with other Members if there are any addition questions that they wish to pose to you before our session finishes. Pred.

Just a quick question around if we've got a robust systems to trigger a petition or a process. Something that occurred to me: if somebody had a prison sentence on a matter of conscience, is that different from anything else, or would it still be subject to this, or is there a way of putting something in the system to be able to look at that? Is that something that you've given any thought to?

It's not something I've given any thought to. I can see the issue, however, and I think that I'd, basically, put that one back in the Senedd's ballpark and say that if you're producing legislation on this, then it's perfectly possible to have an exclusion of that nature in that legislation. I'm not sure what the issue of conscience might be—I don't know, let's say some sort of pacifist demonstration or something of that sort—but I think it's perfectly possible to have a clause in legislation allowing for that.

It was just something that I was thinking about over the weekend and thought maybe we should be considering it.


Of course, of course. I've given it no thought. That's just very much off the top of my head. I do see the issue, but I think it's certainly possible to carve something out there, if you wanted to.

Thank you, Pred. Professor Clark, thank you so much for your evidence this morning. It's been really, really useful for us, and I'm sure that we will keep in touch with you, if that's okay, as our work on this important matter progresses. A copy of the transcript will be provided to you as soon as possible, so that it can be checked for factual accuracy.

I now propose that the committee takes a short break to allow our next witness to arrive.

Gohiriwyd y cyfarfod rhwng 09:59 a 10:07.

The meeting adjourned between 09:59 and 10:07.

3. Ymchwiliad i Atebolrwydd Aelodau Unigol: Sesiwn dystiolaeth 6
3. Inquiry into Individual Member Accountability: Evidence session 6

Welcome back to this meeting of the Senedd Standards of Conduct Committee. This is going to be our sixth evidence session now on our inquiry into individual Member accountability, and it's a pleasure to welcome the Counsel General Mick Antoniw and his officials to this meeting. We have a series of questions for you, Counsel General, as we try to work through the best approach for our Parliament in relation to recall or removal. So, if I can start off with the circumstances for triggering a petition, we're really interested to know your views on what circumstances you feel might be appropriate for triggering a petition. Obviously, we are looking to Westminster at the moment, with its three-pronged approach of a less than 12-month prison sentence, because more than 12 months leads to disqualification, a suspension of at least 10 sitting days or someone who is convicted of an expense offence. Do you think those are broadly the areas that we should be looking at, or have you got any other ideas there?

No, I think that broadly is right. I know that, of course, the House of Commons are also looking at some of these issues and reviewing their, I think, 2015 Act. Of course, the trigger is really the key for so many reasons in which to legislate in this particular area. I think the starting point is that any action that leads to the disqualification and removal of an elected Member is, obviously, a very serious step, a very significant step, and has to be analysed and scrutinised very, very carefully, which is why I'm pleased to see that that is what is happening.

I think, generally, we want to try and at least have some sort of consistency across the Parliaments. Obviously, we have to look at the discrete and distinct circumstances of each of the Parliaments of the United Kingdom, but I think there are common traits. So, I think a suspension from the Senedd for a period of time—that is, obviously, something you'll consider and recommend, whether it's two weeks, three weeks, or whatever it should be—is obviously a key trigger in respect of a whole number of standards issues. Other disqualifications that exist already—bankruptcy, I think, is one—. The other disqualification, of course, is a period of imprisonment, and I think the imprisonment is actual imprisonment as opposed to suspended, so I think the issue as to whether there should be a distinction between a penalty of imprisonment, suspended or otherwise, is obviously something that needs to be looked at. Twelve months does seem rather high. Should it be any sentence of imprisonment? Should it be a lower level—I know, obviously, debates are going on in Scotland, who also are considering similar legislation—the idea of possibly six months or a lower period? Those are matters to be considered, but I think we are in the same ballpark as Westminster, and, indeed, Scotland, in terms of the direction that we want to take. So, I very much look forward to the recommendations that come from your committee, Chair, and, obviously, we'll give consideration to those in how we proceed.


Thank you, Counsel General. And just to clarify there, so you feel it would be worthwhile us looking at the issue of disqualification and whether a Member should be disqualified for a prison sentence that is less than 12 months.

Well, I think so, because I think, in many ways, what you're looking at are events that happen where action needs to be taken, or where the committee will want to consider making recommendations and how it does that, but also where there are other things that have happened that would disqualify someone from automatically being able to stand for the Senedd, or an event occurs that results in criminal charges being brought against an individual, and that, again, triggering. So, that broad range of triggers I think is really important. It's one of the keys, I think, to any legislation that comes forward.

Thank you. Can I ask your view as to whether you think that recall should be simply a matter of conduct, a conduct issue that's come through the standards committee, or whether you think that there could be room for issues that the electorate might feel are a barrier to democratic representation? I'll give you a concrete example there. We know that, within our Senedd, we have had instances in the past of a Member who was elected on a party list—which, obviously, is going to mirror the system that we'll find post Senedd reform—of that Member who was elected on a party list then deciding to change party. That has happened on some occasions, not once, not twice, but three times with a Member. There's certainly a growing opinion among the electorate, it seems, that that doesn't leave them with the representative that they had elected at the ballot box. I just wonder what your views are around whether there is room for us to be considering this as part of a recall or removal process as well.

There is room for it to be considered, but, of course, we did consider it, I think, within the Senedd Cymru (Members and Elections) Bill, and I think the approach we've taken there is that it is probably a step too far in terms of legislating to interfere in the democratic processes that take place within the Senedd and the circumstances whereby someone might feel they need to leave a political party. I think the approach that's taken there, certainly in terms of my thinking at the moment—and, again, it's very much that we're all thinking our way through this, we consider the evidence on this—would be that, if someone did do that, what they couldn't do is either form another party or join another party, and that they would then have to sit as an independent. The reason why I'd be concerned about being over-specific in this is that there might be events, for example, in a party. A political party might, after an election, change its policy and position on something that the person is not able as a matter of conscience or whatever to agree with, and, therefore, feels that they have to leave that political party. Their argument would be, course, 'Well, I'm in the political party, I was elected on a particular manifesto et cetera,' if the circumstances have changed. So, I think, the dialectics and the dynamics of politics—. I think, once someone is in the Senedd, it would be inappropriate to be able to change the balance and the structure of the party in the way in which people were elected by going into another party. But I think sitting as an independent and not able to form a new party would be, in my thinking at the moment, the most effective way forward.

Thank you. That's really helpful. Obviously, this is a very serious process, recall or removal, if it goes ahead. Do you feel that a Member who has been given that as a sanction should be entitled to appeal that decision?


I think within the—. The process, as I see it, would be that a complaint is made, a report is made, in the usual way to the standards committee and the standards committee makes a recommendation, which has to be approved. But, before that happens, I think, probably, there has to be an appeal process. I think there might be all sorts of human rights issues if there wasn't an appeal process. I'm not sure to what extent I'm right in saying that, but I know that there is an appeal process at the moment and it's been exercised on a number of occasions. I think there might be issues in terms of legal challenge if there were not. For example, I suppose one of the issues might be in terms of consistency, whether particular standards apply to one individual, a particular penalty, but then a different penalty is imposed by the committee of a higher threshold or something. So, I think the issue in terms of the standards committee, also in terms of its consistency of how it operates, is going to be something that's worth considering as well.

I don't like to use the term 'sentencing policy' in that way, but, if you have two comparative standards, how do you draw comparators with them? Each of them is going to depend on their individual circumstances, so there's no way of being really definitive about it, but I think being able to have an appeals process that at least concerns all those sorts of challenges or issues in terms of evidence that's been accepted and so on—. There needs to be an appeals process. What I would say, though, is that I think it needs to be something that's exercised very quickly. I know, from previous matters that have been before the standards committee, that the process has gone on for a very, very prolonged period. So, I think something that operates efficiently is really important, but I do think there needs to be one. I suspect the approach—. What happens at the moment is an appeal to a High Court judge, isn't it, is what normally happens and the evidence is then considered there and representations are made—that might be the way forward. So, you're doing it right at the moment, but, again, yes, you do need to think about that and how that would operate.

Thank you. And one final question from me, and it's really around this issue of consistency, I suppose. Currently, any sanction that's recommended by the standards committee goes to a vote in the whole Senedd for each Member to decide whether they support that or not. Do you think that it should be the same process for a recall petition—that that's put to the whole Senedd? And if so, do you feel that a simple majority would be sufficient, which is what there is now for standards committee recommendations, or do you think we would need to move to that supermajority, that two thirds?

It's a very, very good question and I don't think there's an easy answer to it. My inclination, in terms of what public expectation would be, would be that there would be a simple majority. I suppose the concern would be if there was one party that had an overall majority, but, of course, you have that within the Westminster system, and I think it comes down to the integrity of Senedd Members acting in a parliamentary way, properly. So, my thinking at the moment is probably a simple majority. I think to have a two-thirds majority would, potentially, I suppose even more over-politicise the decision-making process. I think the process has to be seen as one where whips can't apply; I don't think it'd be appropriate in any circumstances for there to be a whipped system. Everyone would be participating, I think, in terms of their own individual integrity. So, my thinking is a simple majority: a recommendation, a report, comes to the Senedd, the Senedd considers it and considers accepting the recommendation.

Chair, just on that very final point. Counsel General, I understand the point you make about an objection to the simple majority if there is one party with a majority, but isn't the bigger objection to a two-thirds threshold that it gives a whole series of parties a blocking minority?

Now, I heard what you said about not being whipped and so on, but politics is tribal in its nature and, in a two-thirds majority, if it were a Member of a particular party who was being considered, the rest of the Members of that party would have, in effect, a blocking minority. Isn't that a stronger argument in favour of a simple majority?


Well, I think that you're right on that, and I think also that also moves towards the view that the public expectation would be that if you've gone through the process where a report has been received by the committee, representations have been made by the individuals concerned, a recommendation is then made to the Senedd—. It would be, I would have thought, an exceptional circumstance in which a Senedd would reject a recommendation that came forward. Obviously, the power lies with the Senedd, but I think that the public expectation would be by a simple majority. And you're right: the reverse is that, if one party has the majority, then there are issues there, but you're equally right that, in the nature of the Senedd as we have it, anyone who has more than—. If a group of parties were able to block on the basis of a minority vote, I think that would be unacceptable to the public.

Thank you. I will bring in Peredur Owen Griffiths now. Pred.

Diolch, Cadeirydd. Bore da, Mick. Just on something that you said in relation to Vikki, and I asked the previous witness as well, if you changed the fact that the trigger could be a custodial sentence, possibly below six months—. Say somebody had a custodial sentence for a week on a matter of conscience, how would you treat that within this process, just as a hypothetical, just if you'd thought that through?

Well, it is an important point and, of course, we do know that there have been protests of conscience on a variety of issues, from the Welsh language to anti-apartheid campaigns to nuclear campaigns. I seem to remember, in the 1950s, there was the Committee of 100 and so on. So, there have been these—which are part, in many ways, of the democratic process of our society—peaceful protests, but protests that could lead to imprisonment. And, of course, we have seen similar things recently on environmental issues.

I think that that is really a matter where, I suppose—. I suppose, ultimately, the power lying in the Senedd to accept a recommendation or to be the ultimate determinant is one factor. But I think the key there is actually the trigger. If the trigger is too low, it does encompass situations like that, and I think that's one of the things that has to be borne in mind.

You have raised a really important point, because I think that it is part of the way in which our society democratically operates, where protests have been taken to break the law on matters of conscience and so on. I think that, probably, the most effective way is the trigger, but one would hope that, if there were issues like that, it's how the committee would actually deal with them when the evidence came through, in terms of the recommendations that it would make.

So, I think that it is something that is really worth exploring further—how you would deal with that sort of situation. It might be that, basically, it's the trigger level. If the trigger is set at six months, then I think that you are probably excluding nearly all of those sorts of circumstances. But it probably needs to be scrutinised a bit further, looking at the factual evidence of what's happened in the past.

It depends, doesn't it? If we reduce the disqualification element down to six months, and then anything below six months would trigger, does that trigger automatically then trigger a recall or a petition or whatever process that we decide, or does it trigger a discussion by the standards committee to produce a report for the Senedd? So, is a lot of it to do with how the actual process would work? Maybe that's something that we can look into and see—. So, extrapolating what you were saying there, if the trigger was hit on a custodial sentence, that one would be beyond the control of the Senedd because the courts would make that distinction, rather than the standards committee, which would be involved in any sanction that involved over 10 days. So, there are two distinct issues there. If there's a very good chance that somebody did go to jail for a week, they would probably be in front of the standards committee anyway, but how is there a horse and cart and which way do they go around, and do they work in tandem? Any thoughts on that?


Well, I think and I think most people would argue that any criminal offence that occurs is a criminal offence, et cetera, and probably needs to be looked at and addressed in some ways as to the impact it has on the perception of the Senedd and the role of Senedd Members, and the perception of the public as well. I think that the key, really, is at what level do you set a trigger. If you set it too low, it begins to encompass all sorts of more complicated situations. Those are situations that can probably be dealt with by actions of the standards committee and the recommendations that it makes. Once you set a trigger and there's, for example, anyone with a sentence, suspended or otherwise, of, say, six months or more, then, really, that has to apply across the board, doesn't it? I find it difficult to think what the very exceptional circumstances might be that would justify something different happening.

I suppose one of the things you have to consider as well is whether there is a discretion in terms of the recommendation there, and what the circumstances of that discretion might be. Discretions are always very difficult in terms of things like disqualification. There is no discretion at the moment in terms of the 12-month period as it applies within Westminster and, indeed, within the Government of Wales Act, I think, in terms of the Senedd, so there's obviously a need for some deeper thought, and I think, also, other opinions as well on this.

Of course. Let's assume that a trigger has been hit, and one of those elements has happened, and that we are going through the process of a petition or another process. If we were having a recall petition—. We've had some evidence from lots of different witnesses, talking either about a two-stage process, similar to Westminster, where you have a petition followed by a by-election, or that you have a one-stop where, basically, you ask whether or not you want the person removed or not, and then those processes. Have you given any thought to that—whether or not Westminster has got it right—bearing in mind that we will be in a PR system from 2026 and the complexities or running a by-election in a closed list system?

The answer is that I've given quite a lot of thought to it, partly because that thinking triggered by the deception issue that's arisen within the Elections and Elected Bodies (Wales) Bill, and it always brings me back to the issue of standards and recall. I don't think that the system that we're moving to would allow for by-elections. The way I see it really is this: a report is given to the standards committee, the standards committee considers that and goes through the appropriate steps, it reports to the Senedd, the Senedd then votes on the acceptance of that, and, once that happens, it triggers a process. I think the appropriate process then would be—. And I think the problem is in the terminology, because it's not so much a petition; it's more a sort of referendum, isn't it. What it would do is it would trigger a public vote, and the vote would be that the person should be removed, and the voting options would be to vote for that, to vote against that or to abstain. So, effectively, it is a referendum where the members of the public are made aware of the issue, the process is triggered, and they have their say and the individual candidate has their say. It is not a by-election process because there are no other candidates able to stand. If the majority vote is that the person should be removed, then obviously the next person on the list would be the person that automatically takes that particular place. That preserves, I think, the balance of voting from the Welsh general election. So, thinking what we call it—whether we call it a referendum, or maybe there's a better term to do it—it is not so much a petition because a petition is to ask for permission to do something, and it's not a by-election because there are no other candidates. So, it is a sort of referendum, in some ways, on the individual, as to whether the public want them to remain as a Senedd Member.


But there would be two candidates because the next person on the list would be the other candidate, potentially.

Except that candidate wouldn't be participating, and that only takes effect if the person is removed. So, it's a decision by the public: do you want this person to stay as a Senedd Member, and, if you don't, they will be removed? The fact that there would be someone—

I think there would have to be a threshold, and I think that's, obviously, a matter for the committee to consider. Thresholds are always difficult in votes, and we don't have a threshold in, for example, the police and crime commissioner elections, or any others. But I think it would be important that there was some threshold. I see the figure of 10 per cent being suggested in different places. It seems to me 10 per cent of a paired constituency is still quite a substantial number of people. I think that's something where I'd be very interested in the committee's thoughts around that, but I think that there should be a threshold. 

In what you explained earlier, though, there'd be three options, but you're talking now as if it's a binary choice, or just one. How would you see it working? So, do you see it as a referendum where you've got two questions or a referendum where you've got one question?

I think the one question would be something along the lines of, 'Should So-and-so continue to represent you as a Member?'.

That then leads to a threshold, rather than—. Would you allow people to vote by proxy, by post?

I think you would have to apply the same standards as you do for a normal Welsh election.

And would you have that on one specific date, similar to a by-election, or would you have it open for a number of weeks, similar to a recall petition in Westminster?

The answer is 'I don't know'. There's an argument that would say that it should be the same as happened with the Welsh election, with the original election that put the person in position. But, of course, as you know, one of the options to the Elections and Elected Bodies (Wales) Bill that we have going forward is exploring the options of different ways of voting, and eventually online voting. So, I think it's one of those things that, as technology and capacity moves forward, in any election that takes place in the future, should be done on the best way of maximising participation. I don't think it should be something that is static, that is staid. If, in a number of years' time, we're able to do online voting or voting in different places at different times, and so on, then why shouldn't we do that? So, I think the maximisation of participation in any public referendum of this sort is probably the underpinning principle.

And you said earlier that 10 per cent feels about right, because, in a paired constituency, that would still be a substantial vote. If it reaches that 10 per cent, if it's held over time, when you reach the 10 per cent do you stop, or do you keep it going? Any thoughts on that?

No, I don't really have thoughts on that because I haven't really been able to consider the views of others in terms of what would be an appropriate threshold, just that I think it probably is important that there is some threshold. You wouldn't want something that is so low and where the difference between 'yes' and 'no' might be so marginal that it discredits the democratic process to some extent. I think it's one of those things to give further thought to. My gut feeling, really, is that there should be a threshold. What that threshold should be, well, you don't want any restriction on the vote being able to be effective, and you could say you shouldn't have any threshold whatsoever—we don't have thresholds in elections—so, therefore, those who choose to participate, et cetera, will determine the outcome. I just have a feeling that, as we move down this road, at least some threshold would be beneficial. I think, with postal voting, for example, it almost guarantees that there is a certain level of threshold, but it remains to be seen.


And because it's a paired constituency, would you have a threshold of 10 per cent in one and in the other, or 10 per cent overall, or whatever the threshold would be? 

I think you'd have to do it across the board. That's my gut feeling on it. Obviously, it's a matter for the committee to explore, but I think having differentials in one area and another poses complications that shouldn't be there.

And an alternative voting system or an STV system for a by-election is something that you wouldn't consider. 

Well, we looked at this, didn't we, very much with the Senedd Cymru (Members and Elections) Bill about different voting systems. I think there is a difficulty when you have a particular system that achieves a certain balanced outcome, depending upon the votes, of then introducing a different system that actually can change that balance of the original election. I think that would probably be wrong. So, my feeling is that it should be, really, as I've described, that you move to the person next on the list, et cetera; you don't start introducing new or different voting systems. 

And on that list system, I'm assuming—and you'll correct me if I'm wrong—that it should be the initial list that that person was elected upon, rather than if that person had changed parties or changed to be sitting as an independent. So, it would, effectively, be the way they were elected in the first instance that would determine the next person.

That, in my view, would be logical. I don't know whether there are reasonable arguments as to why that shouldn't apply, but it seems to me that, in removing someone, what you're not doing is initiating an event that changes the political nature or the balance within the democratic institution. What you are doing is basically enabling someone to be replaced whilst retaining that balance.

But the only alternative then is if somebody was elected as an independent. Do you then leave that seat vacant because that changes the balance?

I think probably that is the only option. I can't really see any way around that. We did look at that very, very carefully, didn't we, and we discussed it during the process of the Senedd Cymru (Members and Elections) Bill, and I think we left it, firstly, that it was likely to be a very rare occasion, and, secondly, that there was no other way, really, of doing it. So, if you had that situation or even if a list was extinguished and there was no-one left on it, then all you would do is you would have to leave those particular seats vacant, and that would then be dealt with when the next Welsh general election took place.

Okay. Well, I think that's exhausted my questions this morning. Thank you.

Thank you very much, Pred. I'll bring in Mark Drakeford now. Mark. 

Chair, thank you. Counsel General, I've got two slightly detailed questions arising from your exchanges with Peredur, and then I've got a couple of broader questions. If I do the detailed ones first, Peredur asked you about the question of, in a paired constituency, if there were to be a vote amongst people in that paired constituency on whether or not to remove somebody, whether you would need to get to threshold in both constituencies or just overall, and you said, if I understood you correctly, that you thought it should be overall, as it would be complex to do anything different. But do you think there is a respectable case for saying that, actually, fairness should trump anxieties about complexity here, because it is possible that the Electoral Commission will pair constituencies of very different character? Last week we talked, for example, about the possibility of a pairing between Blaenau Gwent and Monmouth, which can be contiguous constituencies in some of their length. Could you not have an issue that was very concerning to people in one of those constituencies, but really wasn't of great concern to the other constituents, and unless you have a threshold that applies to both, people in one half could actually determine the outcome for the other half? So, that seemed to me an argument for fairness—it is more complex, I can see that—but is the argument for a threshold in both halves one of fairness, and should we be thinking about that as well?


Well, on that question, the answer is, 'I think there are arguments both ways on it'; I think you're absolutely right on that. The argument in terms of simplicity and the fact that, I think, when people are elected to the Senedd as part of a list, there aren't any thresholds; it's basically the composition of all the votes across the board. That probably justifies saying, 'Look, if you do set a threshold'—and, of course, there is an argument that you shouldn't have a threshold; you just take what comes—'you just basically take the composite on the paired constituency.' But I accept equally so there are issues that could arise—as you say, there are differences in areas and so on. It's difficult to think what the circumstances might be. I mean, we can speculate in terms of different types of circumstances that might be of more interest to an industrial rather than a rural constituency, or all sorts of others. I don't have a definitive view one way or the other. My gut feeling is that, probably, if you're taking a paired constituency, you take it across the board. But, listen, I'll be really interested in the thinking of the committee on this in terms of how to do this, and I think, obviously, the input of evidence from other parties with expertise in this area is something that would be of value as well. So, I think the case can be made both ways on it.

Thank you very much. My second detailed question is to do with the party list. So, let's assume for a moment that the arguments you've made this morning would prevail, there would be no by-elections, but in effect it's the next person off the list that would come into the Senedd, what if the next available person on the list has left that political party— 

—and moved to another party? Does that person then get skipped?

Well, I think the reality is you have to go down the list. If someone has left the political party, I think, effectively, they've left their party list and would lose eligibility on that. But it is one of those things I think you just—. In legislating in this area, you have to try and encompass all those sorts of circumstances, and if the underpinning principle is that by removing something, what you're not doing is seeking to change the balance of the democratic institution overall and the balance of the outcome determined by that election, then if someone has moved from one party to another, it seems to me that it's perfectly right to say they would not be the next person on that list.

Thank you, Chair. Do you want to take Peredur next, Chair, because I think it's on this point?

Sorry, if I may. Just on this point, regardless of whether or not the gender quota Bill goes through, there's a very good chance that parties will decide the zip within their lists anyway, because it's something that is a matter of principle. For example, if somebody was recalled and removed from the Senedd, and that person might be male on that list, next person would be female, that would probably do what we want it to do within supporting women especially into the Senedd. If it was the other way around, would there be any discretion available to parties to then choose the next person they would like from that list or not?


I think we're getting to the realms now of how simple do we want to keep the process, to what extent do we want to specify the balance in terms of gender and so on, and I think it's really a matter for the committee to consider how that might work. And, again, listen, there are arguments in favour of what you're suggesting; I just think that once you start going down a road where you have a list and you start trying to look at circumstances to change the order of that list, it certainly becomes a lot more complicated because then, one, there's a problem if you start putting in discretions, but also other circumstances that might arise. Mark Drakeford mentioned the position of what happens if someone has changed party, and I think that is certainly very understandable. The issue of gender, of course, becomes another factor. You might have someone who's no longer on the electoral register and doesn't want to come back on it. I think, under the Senedd Cymru (Members and Elections) Bill, of course, we've provided a framework for a period of time for someone to come back on to the list, so you'd need to consider how that might interreact with it, some of those details.

I think those are the things that need to be carefully considered, certainly in terms of putting together a Bill, scrutinising it, but also making sure that it's workable, understandable and has clarity. Sometimes, when you do that, you have to move away from some of the complicated discretions that you might want in the world of perfection. So, I suppose my answer to that is those are valid considerations. I'll be interested in what the committee wants to recommend on that when you've explored that further because I don't think it's an easy choice; you are swapping the simplicity of the system I initially suggested by putting in a number of alternative criteria and so on, and there are advantages and disadvantages to that.

Certainly, as we move into new systems and so on, I very much favour the issue of clarity and then a subsequent review, as we're doing with a lot of our legislation; after the first set of elections and so on, there will be reviews to see how things have worked and so on. So, I don't really have a satisfactory answer for you on that, I'm afraid, other than those are things that obviously need to be looked at very carefully in terms of the devil in the detail of any legislation that might come forward.

Thank you, Chair. So, to the broader question, Counsel General, it's a two-part question, and I'll give you the first part first, which is many witnesses have said to us that the Westminster system has worked reasonably well and is essentially sound, but it has a process in which there are internal thresholds that are set by the Westminster Parliament through its standards procedures, and if somebody falls foul of those thresholds, there's then a two-stage process: a petitions process, followed by a by-election. We've been hearing evidence that suggests that given that we're not to have a by-election, that we should have a single process post the Senedd's own consideration. That would mean that the Senedd's thresholds would have to be robust, and the processes by which someone was assessed—their behaviour assessed against those triggers—would have to be careful and make sure that they observed the human rights of the individual concerned and so on. But once the threshold has been met, is there not a case for just a single stage in which we then say to the public, 'Do you want this person to continue or not?' What's the point of a petition on that issue followed, essentially, by a by-election—well, a further vote; it wouldn't be a by-election—on exactly the same issue? Do you think a two-stage system is still preferable, or should we be thinking of a one-stage process?


I think that the one-stage process is the one, that is, that the Senedd has voted to accept a recommendation from the standards committee, and that basically therefore means that you move forward to a vote. Because we really can't provide for a by-election—. I think the problem is in the use of the term 'petition', because you're no longer then petitioning for an event, et cetera; you're actually going straight into a public vote, and the public vote and the one that I would—. Certainly, my thinking at the moment, and that's without the benefits that you have now of considering all the evidence that's coming through, is that the appropriate way to do it would be that you would be saying to the public, 'This person, as a result of events, has triggered a—whatever you want to call it—referendum or a vote by you as to whether you want this person to continue as a Senedd Member,' and the vote would then be the 'for', 'against' or 'abstain', and the issue for you also is to consider the issue of a threshold and if that threshold is achieved, if there is one, then that person basically, if the vote goes against, is removed, and the next person on the list takes the place.

Thank you. That's very clear, Mick. A final question from me. I'm leaving the issues of a threshold aside for now, because you rehearsed those very well with Peredur. So, my question, then, is—. So, we've heard a witness this morning describe that one stage as an enhanced petition process, so I think they had in mind something quite akin to the petitions process. So, a ballot will be open for a number of weeks, people will be able to go to a number of polling stations and cast their vote whether or not to retain that person or that they would leave the Senedd and be replaced. But, last week, we heard someone who described that single process more akin to a by-election process—a single day in which you hold it as you would a by-election, in which you all turn up to the polling station on that one day, or have postal votes, and then cast your vote for and against that person's retention. If we were to have a single process, do you have any views as to whether the merits of the Westminster petition process, the longer process, or the more traditional by-election process, would be preferable?

I think my preference would be a system that facilitates the maximisation of participation. I think that is something, actually, that equally applies to our elections themselves, and that is of course why we have piloted from time to time, looking at voting on different days over a longer period of time, and potential other options in the future. So, the merit to a single day is that it brings things to a conclusion very quickly, but of course I think single-day voting, certainly in my view, is actually quite restrictive. It excludes people for a period of time. I think there are advantages to being able to vote over a period of time. I think this is an area I think, again—. I'm not trying to avoid the issue. My preference would be that the option would be what would actually best maximise participation within that decision-making process, and if the conclusion you came to was, well, to be honest, holding it over a longer period of time with different ways of voting and so on, if necessary, that would be what I would go for. As long as it is robust and it is compliant with all the things that we would expect from an election process, that would be my preference. These are ultimately matters about the ownership of the people in terms of the electoral processes. I think what might happen, though, is if you do it for this, the argument would equally be, then, 'Why aren't you doing it for the broader Welsh general election?' and so on, because I think equally those arguments apply to the initial elections as well. I don't know if that doesn't fudge it a bit, but it gives my thinking on that.

Thank you. Do you mind, Chair, if I add one final—? It's an observation, perhaps, more than a question. We've heard about the trade-off between the petitions system and the one-day system. I think we were told last week that in the Belfast case, the one that didn't meet the threshold, there were only two stations open during the longer petition period, whereas I think we were told there were 96 polling stations on one day. So, there's a bit of a trade-off, I would guess, for us to think about in terms of the Counsel General's basic point around which method promotes greater participation. It would be, I think, unfeasible—in a financial and other sense—for a local authority to keep a full range of one-day venues open over three or six weeks. So, there's an issue there for us to think about against the Counsel General's test of which of these two approaches allows the greater participation by citizens.


I think the more expensive the process, the more that begins to actually discredit it as well, so you do want something that is viable, and you do want to look at the alternative voting options on the basis that firstly, don't forget, hopefully, we'll have a system in due course of automatic registration, so everyone will be on the electoral register. There is an option, for example, to say that everyone should have a postal vote—you don't have to ask for it, you automatically have a postal vote and everyone is distributed with that postal vote. That would enable a different option in terms of holding it within a far narrower space of time, and if you didn't want to do it by postal vote, there would be certain centres where you could go to do it. Maybe at some stage in the not-too-distant future, I think it's likely we'll be looking at online voting. So, I think all those are valid things that need to be thought about.

Thank you, Mark. I'll bring in Pred and then Natasha.

Just on this, wearing a different committee Chair's hat, I suppose, the financial aspects will need to be looked into carefully, and, as Mark said, that balance between the two.

On that financial and possibly other aspect as well, should the person be allowed to campaign? Because I think there are specific rules around recall petitions that mean that political campaigning is tightly monitored. Just on this process that we've been talking about this morning, do you have any thoughts about the person being removed, or likewise the other way, possibly promoting somebody who would be the second person on that list, whoever that may be? Is there something there that needs to be regulated well to make sure that it's fair?

It's a really good question, and I'm not really sure I've thought through myself what the appropriate answer to that is. I suppose the starting point would be if you're putting someone on a petition where there is a for and against vote, the question is what information is being put out to the people in terms of when they come to make that decision. We might all know what the recommendation of the standards committee is, et cetera. There would need to be some sort of information that goes out with, I suppose, the voting ballots, as to, 'This is why you're having a vote, and this is what your choice is'. You could encompass with that a right to the individual to put a statement with that saying why, et cetera.

The answer is I don't really know. I haven't really formed a view on that, only that logic would seem to imply that there should be at least some capacity that if people are having a vote, they need to have proper information that enables them to exercise that particular vote. I think that's probably more incumbent on a system where you are having, effectively, a referendum vote that's determinative, rather than a by-election. In a by-election, naturally, all the rules would apply as normal in terms of different candidates standing and so on, so those options would be there. Under this system, you've raised one of the things that needs to be thought about. I think that would be one of the things where we would need to engage with and consider with, I think, the Electoral Commission as well. I'm sure they would be very important advisers in that respect.

Thank you, Chair. Counsel General, thank you so much for the answers that you've been giving so far. I've been listening to them intently. We all know we're halfway through this term, we've got another few years to go before the next election. In 2026, we've got more Members coming in. Obviously, I understand that the committee are doing everything that they can to try and ensure that we get all of the information together and provide it to you to be able to implement this. But of the people that we've been speaking to so far, many of them have actually said that the Westminster model is a good model—it's not perfect, nothing in this world is, but it's quite a good structure. Do you see any likelihood or any feasibility that we may, at least, be able to have a structural skeleton in place before we go into the next election for the system to be implemented further, potentially, in the next term? Because we're doing all of this work, and, like I said, with more Members, unfortunately, and I'm not being distrustful of anyone, there is the likelihood of more risk for such a situation to occur where a recall may be needed. So, I just wanted to ask you: time wise and research wise, is there a likelihood that this could be in place quicker than we perhaps anticipate?


The answer is, first, the implementation, I suppose, whether it's the committee that brings forward the legislation, or whether it's the model we've had for the Senedd reform legislation, that the Welsh Government does it on the recommendations of. It seems to me this is a matter that's in the ultimate ownership of the Senedd. The commitment given from Welsh Government, from the First Minister, is that we would like to see this legislation in place by 2026. I think that is the public expectation, as well. That's the commitment that's been given. I think that what has happened in Westminster, and, indeed, what is happening in Scotland, all provide—. I think we're all thinking along the same routes. Westminster, of course, has a skeleton version that I think is the one that we are looking at working on, but adapting to the specific Welsh circumstances.

It would also be helpful, in fact, if you also looked at the issues that have arisen within the elections and elected bodies Bill. That is something that will be coming up at Stage 3, and that is the issue of deception, because that's come into those discussions as well, how that might be dealt with as part of this legislation, as part, I think, of a standard. I suppose I'll put my neck on the line at the moment and say I don't think criminalisation is the way that it actually works, I think it's probably unworkable in terms of that, but we'll deal with that at Stage 3 later on. But the reason I raise it now is because I think it is relevant within the framework of what this legislation might do.

The Welsh Government is committed for this to be in place, and we'll do everything we can. I don't think it is necessarily going to be a long, complex Bill, because the skeletons, as you say, are already there. It's a question of deciding all those fine points, making sure the proper scrutiny and engagement have taken place and then producing a Bill that we could have in place prior to 2026. I think that's what we all want to achieve, that's the commitment we've given, but, obviously, much depends on the speed and the ability of the standards committee to come forward with that and with clear recommendations in terms of legislation and how that legislation is to be put together. I've had those discussions already with the First Minister, and I'm also giving considerable consideration to this in view of the issue that's arisen with the elections and elected bodies Bill, because I think this legislation is the appropriate place where that can be properly legislated on.

Thank you so much, Counsel General. Thank you, Chair.

Thank you, Natasha, and thank you, Counsel General. It's been an incredibly useful session with you this morning. We'd like to thank you for appearing before us today. A copy of the transcript will be provided for you as soon as possible, so it can be checked for factual accuracy. That brings us to the end of this evidence session.

4. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod hwn
4. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of this meeting


bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).


that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

I propose, in accordance with Standing Order 17.42(vi), that we resolve to exclude the public from the remainder of the meeting. Are Members content to agree the motion? Members are content. In that case, we will now continue in private.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:04.

Motion agreed.

The public part of the meeting ended at 11:04.