National Assembly for Wales

Good morning, everyone, and welcome to this meeting of the Senedd Standards of Conduct Committee. There are no apologies this morning, and the meeting is bilingual, with interpretation available. Do Members have any declarations of registrable interests? No.

We'll move on, then. This is evidence session 5 of our inquiry into individual Member accountability, and it's my pleasure this morning to welcome Dr Sam Fowles and Jennifer Nadel to the meeting. If I could ask you both to give a short introduction to yourselves and to set out your views on disqualification criteria. Sam, can we begin with you?

Yes, of course, Chair. Thank you very much. My name is Sam Fowles. I'm a public lawyer, which means my expertise covers both constitutional matters and criminal matters. To give an indication of what I've done in those areas, I've argued constitutional cases at every level, including up to the Supreme Court. One that you may be familiar with is Miller and the Prime Minister, which was the prorogation case in 2019. I've also argued a number of devolution cases involving both Wales and Scotland. In criminal matters, I specialise in regulatory prosecutions, which is, of course, somewhat relevant to this particular hearing. There's a case you may be aware of: I was counsel for the appellants in the recent Post Office appeals that exposed the Horizon scandal. But in a more day-to-day sense, I specialise in prosecuting regulatory issues, including environmental matters and slum landlords. 

Obviously, we'll get into the technical matters of this as we go on, but I wanted to just make a point on the principle. And just so we're clear, I'm here specifically to talk about the proposed clause 64 in the forthcoming Elections and Elected Bodies (Wales) Bill—that was my understanding. Of course, I'm happy to give my opinion on other things, but please do flag them to me going forward. I'd like to make one point of principle and a point of practicality about clause 64, if I may, beginning with principle. At a constitutional level, it is well recognised within not just the Welsh constitution, but the British constitution, that there are certain actions that are taken that undermine the integrity of the democratic system so fundamentally that they cannot be dealt with within the political process, and the archetypal example of this is bribery. In the case of the Crown and Chaytor, it was held that even Westminster privilege did not withstand a prosecution for bribery. That was a cash-for-questions case, I believe. And despite the fact that the wrong act supposedly happened within the House of Commons, which benefits from Westminster privilege, the prosecution nevertheless went ahead. And my submission is that it is appropriate that political deception is treated as one of these classes of wrongs that undermine the integrity of the democratic system.

That brings me on to a point about the separation of powers. I've noticed, in the debate about this, that there's been a number of references to the separation of powers—I want to be very clear on that. It is clear that the role of the courts in the separation of powers is to enforce the rules, and the role of the legislature is to make the rules. And that was made very clear, even when those rules concern the conduct of the legislature. Lady Hale's speech, giving judgment in Miller, made that very clear. Separation of powers is not a carte blanche for elected representatives. The two branches perform different constitutional functions and it's right for legislators to make the rules—and one would hope legislators make rules that elevate the standard of political debate—but the courts are both more competent and better placed constitutionally to enforce those rules.

Those are obviously very broad, high-level points, and I'll be happy to answer questions drilling down into them. The broad high-level point on practicality that I want to make about clause 64 is that, in my analysis, and what I was impressed by when I first read it, it draws on very well-established legal principles. So, as a prosecutor looking at that clause, I knew exactly what to do and I knew exactly how to apply it, because I have applied the same things in various different contexts. It wasn't showing me anything new. For me as a prosecutor, the level of familiarity and the level of clarity that that brings is essentially the key thing that I'm looking for as a prosecutor in terms of law that I can apply.

Those are very general points. I'm happy to go into more detail, but I suspect you will want to ask questions, so I'll leave it there.

Yes, we certainly will, I'm sure. We've got lots of questions to ask. If I can ask you, Jennifer, for a short introduction to yourself and your views on deception.

Thank you so much, and thank you all for inviting me to join you. My name is Jennifer Nadel. I'm the co-director of the cross-party think tank Compassion in Politics, which in Westminster worked with over 100 MPs on a cross-party basis. I'm also the director of compassionate politics at Stanford University's Center for Compassion and Altruism Research and Education. My interest here is how we modernise the democratic system so that it commands the respect of the voting public at large. I think we are at a dangerous moment in history, where faith in democracy and in the political class is at an all-time low, and where false actors have entered into the political space and are exercising a dangerous degree of influence.

Just to talk a bit more generally about what we do, we look at ways of reforming the system and restoring voter trust. We look at ways of modernising it. I recently presented a documentary for BBC Radio 4 called Broken Politicians, Broken Politics, which looked at the impact on politicians' mental health that arose from the environment that we're in. We look in a multifactoral way at how to improve the functioning of politics both for politicians and for the voting public at large. We do a lot of polling with the public and one of the things that we consistently pick up on is the gulf between how the public perceive politicians to be able to act and the way that they themselves are expected to act. If we take the issue that we're here to discuss today, which is deliberate dishonesty—not accidental dishonesty, not misstated or overstated opinions or rhetorical flourishes or political argument; we're talking here about deliberate factual misrepresentation—and if we look at how that is governed outside of politics in the course of employment, whether in the financial services, whether in the car showroom, wherever members of the public find themselves, they are expected to act with a level of honesty around factual matters and they do not see that reflected in their political class.

We know from the recent polling that voter faith is at an all-time low and that this is a very dangerous warning signal for us all. We conducted a petition four years ago with the public, and over 201,000 people signed it, calling for a measure such as the one you're considering in clause 64 to be implemented. It's the most lively, engaging intervention that we have had experience of in the political space. We've also conducted regular polling with Opinium, and Opinium's most recent polling on this matter that we conducted just last month shows that 72 per cent of the public support a measure such as the one that you're considering. Perhaps more instructively, only 7 per cent of people oppose it and only 4 per cent of people strongly oppose it.

This has overwhelming public support and I think it does because it's a really commonsense measure. We all learn from a very early age that lying is wrong, and yet, we see—. Obviously, working in politics, I'm aware that this is a very small minority of people that we're talking about that have an overwhelmingly deleterious effect, adverse effect on the political space. We're talking here about a few bad actors who have led to this widespread distrust. And so, we think that this is a commonsense measure that has overwhelming public support, that it brings politicians into line with the lived experience of most of those they govern. We're also aware of the Hillsborough law that the Labour Party have now committed to bringing into law, and that this will introduce a duty of candour on public servants. We think it would be invidious that public servants would be under a higher duty of candour than their political masters. 

In addition, I'm aware that there is some argument as to whether recall would be the appropriate way of achieving accountability. I would like to argue very strongly that that's completely inappropriate. Either deliberate deception—fraud, if you like—is wrong, in which case it should be treated in the same way as bankruptcy and other very serious matters are treated—. It cannot be left to the public to decide whether or not deception is or isn't okay, because that normalises something that—. It's really up to Government to say that this isn't okay, because we cannot have the normalisation of dishonesty in politics, nor can we leave it to the population at large. We've seen in America that proving that someone is a liar, if someone is a charismatic demagogue—. Whether or not they're lying is not actually material to whether or not people want them in office. And so, if we think that deception is wrong, then we have to create a very firm rule around that.

We think that very few people would actually fall foul of this rule, but what we think it will do is send a very strong message to the public that politicians are honest, that they do not condone deliberate deception, that they will not condone it, and that this can really be a reset. We think that the Senedd has an extraordinary role to play in this, just as you have with future generations—created leadership. With the other measures that you're currently considering around gender representation and automatic voting, these are really exciting moves that have the capacity to shift the dial nationally and globally. We really applaud what you're doing and hope that you will lead in this area as well.

Thank you very much. I'm very conscious of time; we're 15 minutes into our session already now and we only have an hour scheduled. I know that I and all of the Members have a range of questions we want to ask, so if I could politely request that you keep your answers, both, a little briefer. It will help us to really investigate your points of view as much as possible in the time that we have allocated. And I think I would speak on behalf of the committee as Chair in saying that we are united in trying to ensure that all Members of the Senedd don't make statements that they know, deliberately, to be false. I would say that the whole Senedd would be behind us on that, and I know we are as a standards committee. 

I am intrigued as to why both of you feel that criminalisation is the way forward on this issue when we have a very robust standards process here at the Senedd that deals with all sorts of issues and, you know, maybe strengthening the standards regime could be the answer to this, rather than criminalisation. You talked, Jennifer, about things that are not okay need to be criminalised. Our standards regime deals with all sorts of issues that are not okay, but only a tiny proportion of those would be criminal offences. So, if I could just ask you both to outline why you believe that criminalisation is the only answer to this. Sam.

So, three things, and those are presentation, reach and independence. Presentationally, political lying stands outside the standards regime in terms of how the public view it. The public see it as a far more serious issue and, as a constitutional expert, I also consider it a more serious issue than most things a standard regime covers, because it fundamentally undermines not just confidence in democracy, but the functioning of the democratic process. So, simply treating it as part of a standards regime that covers a lot of other things as well doesn't say to the public, 'We take this as seriously as you do'. Reach is the second thing. The standards regime covers only Members of the Senedd; it doesn't cover Ministers and doesn't cover candidates. And, indeed, it would be impossible to cover candidates in the standards regime. So, when you have candidates—and it tends to be candidates—from the extremes at both ends of the political scale, who engage in the most egregious forms of political deception, the standards regime can't touch them and, indeed, there is no regime that can touch them. So, it's necessary to use the criminal regulatory regime, in the same way that we do for lots of other things. And the third is independence. Now, this is not to suggest that, as a matter of fact, anyone in the Senedd is making decisions on anything but the most objective and honest basis, but, again, as is recognised in law, the appearance of a lack of objectivity is as damaging as a lack of objectivity itself. And because the public don't trust political institutions to have a system that is essentially reliant on politics, and, under the standards regime, of course, ultimately, any decision goes for confirmation by the whole house, that appears to the public, and appears to a lawyer, as, essentially, politicians sitting in judgment upon themselves, and so, as both a voter and also if I were ever accused of this sort of wrong, I would prefer an entirely independent tribunal, i.e. a court of law, to litigate on that, and I think the public, when the public see that, they are more likely to have confidence in a court of law than what would appear to them to be a political process.

Can I just jump in there, Sam, and ask if that is your belief, then, do you believe that the standards committee and the standards regime itself should be abolished and that all of the issues that we look into should be criminalised?

No. As I mentioned, there are different levels of wrong and, of course, the standards committee covers an enormous range of possible wrongs. But political deception sits in a different class—and I'd say it sits in the same class as, for example, bribery—and so it's right that wrongs of a higher level are dealt with by their own regime, whereas the standards committee has a hugely important role to play in looking at the vast range of other issues that you look at.

And Jennifer.

I'll just add very briefly that the main reason why we think that this should be a criminal offence is because we're really talking about fraud, and fraud on the electorate, fraud on the public, and of fraud that pollutes the public space and threatens to undermine the very nature of democracy. And while we think the standards committee has a very important role to play, it has not been able to restore confidence amongst the voting public in the level of honesty of politicians, and the recent survey that you all will have seen from Ipsos really reinforces that point that existing measures have not been enough to restore faith. So, that's point 1, but point 2 is that we're not talking here about professional misconduct; we're talking about something beyond that which is criminal and which in any other walk of life would be considered a criminal offence.

Okay. Thank you. If I could just briefly ask both of you about the practical ramifications of this because I know from evidence in Scotland, where they did consult on this for quite a long period—there was a three-year implementation period—. Here, of course, section 24 has been rapidly inserted into our legislation, so there's been no time for any consultation whatsoever, and, in Scotland, when this was brought in, the police there logged more than 3,000 complaints within the first 48 hours and over 7,000 complaints in the first week. So, what could you tell me on your views about the practicality of how the police could handle such a change?

Can I just clarify, are you talking about hate crimes there, because obviously we're talking very specifically about deliberate deception, and I think you're referring to the hate crime measure?

The Hate Crime and Public Order (Scotland) Act 2021.

Yes. So, under the Hate Crime and Public Order (Scotland) Act, it's important to understand the context of that to begin with. That was a law probably about which there was more misinformation about the extent of that law than any other, and coming from an array of sources, and in fact I debated a former politician on television who said it was a uniquely repressive law. It turned out that he, when he was in Government, had passed an equivalent law in Westminster. So, the extent of that law was vastly misrepresented. Despite that, in a country of nearly 6 million people, there were only 7,000 reports in the first week, and that's including a large number of reports that were a specifically co-ordinated campaign in order to up the numbers of spurious reports. That number dropped off immediately, and there is now a very low number of weekly reports under that law. Just to give a comparison, given that what's being proposed, clause 64, would most of the time only have about 60 potential perpetrators, and at maximum times, when for example an election is happening, have a few thousand potential perpetrators, it would work out at about 0.08 reports per week, if reports were made at the same rate as the Scottish law, which has 6 million potential perpetrators. So, that's the context there. 

In terms of the level of scrutiny that this has received, this amendment has now been debated by the full house at least three times. It's been debated extensively in the press, including by me in The Guardian, and it's been debated in committee, and I think we have very clear examples of how the police have capacity for it and how they can consider it, because we can compare it with the hate crimes legislation in England, for example, where police are able to deal with reports in a matter of weeks. For example, a client of mine made a report under hate crimes legislation recently, and it turned out that the police decided it didn't meet the threshold and that decision was made within seven days. The thing that allows this to happen is clarity of drafting. So you don't need lots and lots more police; you need clearly drafted laws that can be understood and applied very easily, and that's what we have in this situation. We've got a very clear set of instructions for a prosecutor and, if necessary, a very clear set of instructions for a court, about how to make its decision.

Okay, thank you. I'll bring in Peredur Owen Griffiths now. Pred.

Diolch yn fawr, Cadeirydd. Thank you for coming in this morning. It's very, very interesting to hear your views about this. I just want to explore some of the international examples. In our research, we've looked at some international examples, but whether or not you could point at one or maybe two international examples where this is done well, and/or where it has been introduced and it has been problematic, and whether or not there are things that have been learnt from that in drafting this piece of legislation in this section. I don't know if I want to go to Sam or Jennifer first. Sam.

Shall I defer to Jennifer, unless she wants to bat it back in my direction?

I was going to defer to you, and just really say that those examples were used as the basis for this drafting, and so I'm not an expert on those international examples, but what I do know is that the learnings that exist from them were taken into account when drafting this, and also that the measure has proved effective in two instances, one in Singapore and one in Austria, where it has fired a warning shot over the bows and it will fire a warning shot because of its efficacy in this respect over the bows of right-wing leaders—or extreme leaders, I should say—who make false statements, and a former member of the Austrian Parliament is now serving an eight-month sentence, I understand. But I will pass over to Sam for any finer points.

Yes. I'd refer, I think, to the Western Australia criminal code, and what's quite interesting about that is that Western Australia have fairly recently reanimated a law from the 1913 code. So, I think the first point to flag about this is that this is an example of a legislature that is seeing the changing challenge, the changing threat, and adapting and legislating to respond to that. Now, the Western Australian code looks at a person who, in the course of an examination before either house of Parliament or before a committee of either house or before a committee of both houses, knowingly gives a false answer to any lawful and relevant question put to him in the course of examination. And they're guilty of a crime and liable to imprisonment for seven years. So, this isn't exactly the same thing that's being proposed, and I think there's good reason for that. The first difference is that this specifically deals with examination, so it's in a more limited set of circumstances, but applies to a wider array of people, because a person—the definition of a person in that law—could be a legislator or it could be a member of the public, and it, of course, imposes a rather more severe penalty. Now, this is aiming at a slightly different challenge to what we're aiming at with clause 64. It's aiming at people specifically who are being examined not giving truthful answers, rather than looking at the problem of the integrity of the system as a whole. But the reason that this is a useful example is that it shows that it can be enforced. For example, a Member of Parliament, Barry Urban, was recently sentenced to three years in prison for a number of charges, but these included five counts under that law. The reason I refer to this is that it is a practical demonstration that these sorts of laws are enforceable and can be enforced. Jennifer has given a number of other examples of where they have been enforced. Also, we haven't had any reports of a chilling effect from any of these examples.

Thank you for that. Just something you mentioned earlier, to do with Members, and you talked about candidates and others as well—and, obviously, we're in the middle of a general election at the moment—. What's the difference, or how would the interplay between section 106 of the Representation of the People Act, when it comes to candidates—? How would the interplay work here, because we're talking more about Members of the Senedd after being elected in this committee at the moment, but is there any interplay there that would cause issues, or are there any other laws that might cause any issues of competence or be cross-saying each other so that they don't dovetail as well as they could?

Can I just clarify with you which Representation of the People Act?

Nineteen eighty-three.

Nineteen eighty-three.

Yes.

If you'll give me a moment to just pull that up so that I make sure I'm looking at the same section as you are.

Yes. 

And just remind me of the—[Inaudible.]

It's the one says a person who—. It's to do with making it a criminal offence to make or publish

'any false statement of fact in relation to the candidate’s personal character or conduct',

of an electoral candidate.

Yes, I see. Hang on. Is it 104? One hundred and six. 

So, this deals with election literature. Is that right?

It does. Yes, that's right. 

So, this is specifically targeted at statements made about candidates, which is helpful to an extent, but it's not necessarily dealing with the challenge and the harm that's being targeted by clause 64, because, a lot of the time, the false statements that we're concerned with are not about other candidates. They may be about a politician themselves, and so the example that I—the hypothetical example that I—would give is when a politician says, 'I did not sleep with a prostitute on 4 May.' Now, if that were a lie, that would not be caught by 106. It would likely be a very, very important issue for that politician's constituents to know the truth or otherwise of that statement, and that's without any moral judgment on that area of work, but for a lot of people it would matter. 

Another example, possibly a more real example, might be, 'I have never met with the Russian ambassador', at a time when we are, at least in a quasi sense, at war with Russia, if there is, for example, a photograph of you meeting the Russian ambassador a few years before. Again, that was a statement that was said by a candidate not about any other candidate, about themselves, but a very, very important point in relation to whether that person is a suitable member of the legislature. And so I think that 106 establishes an important precedent, but it doesn't target the harm that we're trying to target here.

And with regard to the interplay with it, you're a legal expert—well, I'd class you as a legal expert, anyway—and you've looked at the drafting of this Bill; is there anything there that strikes you that would not interplay well with other laws that you use regularly or are aware of, or are there any other competence issues from a devolved nature that would cause issues for us?

Sure. I've reviewed the possible clashes and reviewed the competence issues, and actually to flag that I worked on this as part of a team with Lord Hendy KC, Matt Hutchings KC and Josef Cannon KC, and our legal advice will be published in the next couple of days, and we'll make sure that you all get a copy of that. To give you the headlines, we considered whether it would clash with, I think, section 42 of the 2006 Act, which provides a privilege in respect of the law of defamation, and concluded that it would not do so, because the law of defamation is, in particular, contained within itself. That's to say, the law of defamation is a term of art that we understand, and in the same way that the existence of a privilege in relation to defamation doesn’t prevent Members of the Senedd, for example, from being convicted of fraud, or, if one were to incite racial hatred on the floor of the Senedd, there would not be a privilege in respect of that—. So, in the same way that it doesn’t create a friction with that issue, I don’t think it would create a friction in this case, not least because defamation is harm to the reputation of an individual. So, for you to defame me, you would have to say something that impacts negatively on my reputation, and whether or not that thing is true is just one small aspect of a defence to defamation. For example, you can defame someone with a statement that isn’t true, and still they would not succeed in a claim of defamation against you because it might fall into one of the other exemptions. So, this is a criminal law matter; defamation is primarily a civil law matter. Never the twain meet in practice.

I’ve also considered the competence issue, in particular in relation to the Human Rights Act and the European convention on human rights, and it’s established that, while lying may fall within the article 10 right, the article 10 protection is not as strong in relation to a false statement as it is a true statement, and, therefore, if your interference with that right is by law and is a proportionate mechanism for achieving a legitimate aim, then it is lawful under the ECHR, and, by extension, the Human Rights Act. This seems to me a quintessential example of something that is a proportionate means of achieving a legitimate aim. The defences in clause 64 are strong; the defences essentially insert a safety valve for any Member who is accused of lying in the Senedd or lying in a campaign, but with the option to clarify or withdraw the statement within 14 days either of saying it or of being informed that it is not a true statement. It also contains a defence if it can be reasonably inferred that the statement is a matter of opinion or analysis rather than purporting to be a statement of fact. And so the infringement on the article 10 right is really very, very narrow, and clearly in pursuit of a legitimate aim. So, if I were giving you legal advice in a situation where I was your lawyer and you were my client and you said, ‘Right, I want to JR this on competence grounds,’ I would say, ‘You’re going to get a huge cost bill against you.’

Thank you very much. Diolch, Cadeirydd.

Thank you, Pred. I'll bring in Natasha Asghar now.

Thank you so much. Good morning, both. Can I just follow up, just before I go into my questioning with Sam, please—and Jennifer, please feel free to give me your answer on this as well? Naturally, if we do go forward and clause 64 is approved, agreed and everything goes around the lines that you were just referring to, Sam, as you just mentioned about the Bill, so obviously, you mention, you've got candidates, you've got parliamentarians, you've got Ministers; in your view, who should foot the Bill? Because, technically, as a candidate, the party has put you in the position that you're in. As a Member, you've been elected by the public, so you're an official figure, and, as you mentioned, in a Bill like this—and I'm coming down to the question that I'm going to be going down with you very soon—there are certain cases where malicious intent is there when it comes to complaints, so I just wanted to ask you both: who should foot the Bill in this instance?

In a prosecution, if you're successful in your prosecution, you claim your costs back from the convicted defendant. So, if someone breaches this and is convicted of breaching this law, then they will be paying the prosecution costs.

Which are roughly how much, if you don't mind me asking, just for the benefit of the committee?

A prosecution cost can go from anything from about 300 quid—. Well, I mean, if this were a multi-handed murder trial, then we'd be in the realms of potentially hundreds of thousands. It's not going to be. Prosecution costs, I think, will be in the thousands. If it gets to £10,000, then people have really been working hard, so I'd be very surprised if it got as high as £10,000.

Jennifer, do you have anything you wanted to add to that before I go to my other question?

No. No, I don't, except to say that, obviously, this is an instance where people are deliberately doing something that's wrong, not accidentally doing something that's wrong.

Okay. Coming back to my actual question now, which is: what issues related to malicious complaints against Members can you potentially see arising?

I think, being completely candid, there will inevitably be a malicious complaint under this, in the same way that, in any criminal law or civil law, you will find a malicious complaint being made. The question is how robust are the systems to deal with that malicious complaint. Again, it comes down to clarity of drafting. So, when I give advice on these things, the amount of time it takes me depends on how clearly the statute or the case law gives me an answer to this.

And so a malicious—. In order to be successful with this sort of complaint, you've got to get it right down the middle. It's got to be something like, 'I have never met the Russian ambassador.' 'Here is the photo of you with the Russian ambassador.' So, a complaint like, for example, 'This politician says he abhors taxes and believes in low taxes, but in his manifesto he voted for this tax on trees, and so he must be lying to me,' that's not going to get anywhere, because it falls so clearly within the defence of, 'This can reasonably be understood as an opinion.' So, I think malicious complaints will get booted out very, very quickly. The police and prosecutors are going to be able to deal with them and knock them away very quickly.

Now, there also is a risk that comes with making a malicious complaint, and that is the possibility of being prosecuted for wasting police time or even perverting the course of justice. A malicious complaint in this sort of scenario carries a very high risk of that (a) because there's a very clear bit of drafting, but (b) it's very easy to infer motivation, and it's likely that complaints will, in and of themselves, demonstrate their motivation. So, it's also going to be easier than, for example, if someone makes a complaint about someone cutting down a protected tree, which, incidentally, would carry a £20,000 fine, potentially, and so possibly a more serious penalty than is being proposed here. It's quite difficult in that situation to infer whether the complaint is malicious and so quite difficult to prosecute for wasting police time. In this situation, it's much easier to infer that. So, I think not only is it easier to vet out malicious complaints in this case, it's also easier to go after the people that are making malicious complaints, and so I think people will be more and quite reluctant to do so.

If I can just add that, in an earlier iteration of the Bill, there was consideration given as to whether or not a specific penalty should be introduced for making vexatious and frivolous complaints. It was decided that it wasn't needed, because the existing law adequately covered this eventuality.

Yes. It's also worth looking at the Scottish example, and, indeed, the English example, on hate crimes and saying that hate crimes legislation is something where it's very easy to make a malicious or spurious complaint, and, as I mentioned earlier on, despite the massive publicity suggesting that the offences in Scotland were much broader than they actually were, with the exception of the first week, there has been a very, very low number—you're talking, maximum, double figures—a very, very low number of complaints at all, let alone spurious complaints.

Can I just very briefly pick that up? Of course, that 7,000 figure received a lot of publicity, but when the complaints went away, there was no follow-up news piece saying, 'Oh, actually, there are very few complaints now', so that 7,000 figure has really stuck in the public consciousness, but it doesn't bear examination when one looks at what happened afterwards.

I think there were about 50 or 60 last week.

Thank you so much. I'll move on to my next question now. We often hear about the term 'human rights', so are there any issues, any sort of problems that you can see that may breach human rights, for example, if an offence of deception was indeed introduced?

As mentioned to your colleague, when we talk about human rights, the relevant legislation in this case is the European convention, as implemented in the UK by the Human Rights Act 1998. The relevant clause is article 10, which is freedom of expression. Often, people talk in the sense of breaching human rights, implying it's a binary. That's not how the law works. The law says that, with the exception of articles 2 and 3, so that's torture and life, the rights are all qualified. So, it's not simply a case of, 'Are you breaching human rights, yes or no?' It's, 'Does this infringe upon the right to free expression?' and 'Is that infringement legitimate or lawful under the European convention on human rights?'

So, yes, anything that impacts on speech is potentially an infringement. For example, the law against fraud is potentially an infringement on the article 10 right. However, it is a legitimate and lawful infringement where it is by law, where it is in pursuit of a legitimate aim and where it is proportionate to the pursuit of that legitimate aim. And in this case, obviously, it will be facilitated by law because what we're discussing is a clause to a Bill, the European court has recognised that safeguarding political discourse is a legitimate aim, and for the reasons I mentioned earlier, it is proportionate because there are very clear defences.

When we talk about 'proportionate', we say, 'Have you achieved a balance between protecting the right and achieving your aim?' This achieves that balance by the core offence, which is protecting the legitimate aim, and then the clear qualifications and defences to the core offence. The qualification is, 'Does it purport to be a statement of fact?' and 'Is it material in that statement of fact?' and then the defences are, 'Can it reasonably be inferred to be an opinion or an analysis?' and 'Was it corrected, if not?' So, you've got a very careful balance being drawn here, and I would be very confident if I was asked to defend this in a judicial review.

Thank you so much for your answers. Thank you, Chair.

Thank you, Natasha. Before I move on to Mark Drakeford, I should point out that our next evidence session has to be cancelled for today. So, Jennifer and Sam, if we could ask you to indulge us so that we can scrutinise you fully in this session, would you be able to stay a little longer, if that's the case?

Yes, that's fine.

Wonderful. I'll bring in Mark now.

Thank you very much for being with us this morning. I'll just start by echoing what the Chair said in opening—that the committee will always be very anxious to find ways of upholding the highest standards of integrity and probity in the operation of the Senedd. So, we have that shared starting point. I suppose our inquiries are whether section 64 is an effective additional tool in doing that. I wanted to just explore with you the point in the political context where fact and opinion collide and how useful this section will be in distinguishing things that are very clearly just statements deliberately made in the face of the facts and those places where these are just different views on a subject. In the last Senedd election, a political opponent of mine said that I had sanctioned a programme of mass vaccination of the Welsh population during the COVID era knowing the vaccination would do harm. Is that caught by section 64?

I am very reluctant to comment on a political example between two existing politicians. If this has passed and you want me to prosecute, I'm sure my clerks will be contactable. Rather than getting into that, let me give you a hypothetical that's sort of along similar lines. Let's stick with the prostitute example—the assertion that Member of the Senedd X slept with a prostitute. If that did not happen, then it's caught. If Member of the Senedd X is pro-prostitution knowing that it's harmful, that is very clearly reasonably inferred as a statement of opinion. It's possibly not a particularly nice or polite one, but it's a statement of analysis, and would, therefore, clearly be caught by the opinion defence.

I'm afraid I think my example is much more pertinent to the committee than the two you've just offered us. One is clearly a matter of fact, the other is clearly a matter of opinion. What I'm—

I think—. Sorry.

I'll just finish. Just one moment. I won't be long. I'm just more interested in those areas where fact and opinion collide in a much less clear-cut way than the two examples you've just rehearsed. I'm not asking you for legal advice, I'm just asking you for your view as to whether or not section 64 is sufficiently well constructed to deal with those many examples in political life where my fact is your opinion, and your opinion is my fact.

I think there is, in many cases, a bright line. There is a line between presenting analysis in a rhetorical way that may sound factual—. For example, again, let's keep it hypothetical, but let's go a bit closer to the context that you were talking about—that vaccines are harmful. That statement, 'Vaccines are harmful', is one that, personally, in my personal politics and knowledge of the area, I would say was entirely false, but is a statement of analysis, and there are various bits of evidence that people point to to say that. That MS X promoted a programme of vaccination knowing that they were false speaks to your knowledge, and so they are making a statement about the nature of your knowledge of the situation. If there is no reasonable way of showing that you had that knowledge, i.e. there is no piece of paper that says, 'Dear Mr Drakeford, here is conclusive proof that vaccines are going to kill you, or are dangerous', I would say that's a false statement, and I think it would be quite a difficult statement to defend.

I'm keen to come back to this point more, Chair, but we should hear from Jennifer. Apologies for cutting across you earlier. 

I'm sorry, I interjected wrongly. Just to build on what Sam was saying, if scientific evidence existed, and that evidence had been shown to a Minister, and the Minister had denied its existence, then that would be a clear case. And of course, once the duty of candour is introduced we will then be in a situation where public officials will be bound to answer those questions with candour. But it's more than a statement of opinion if someone states as a matter of fact something that is just opinion, that a particular vaccination is harmful, is known to be harmful, when there is no evidence to justify that statement.

The difficulty will be that there will be some evidence that some vaccination does do some harm to some people. It will be very limited numbers of cases, and the good that is done to the vast majority through vaccination will have outweighed the harm done to a much smaller number of people in much more limited circumstances, but there will be evidence of some harm to some people. The resolution in section 64 is that all of this is best resolved through a criminal prosecution. Does that seem proportionate to you?

Yes, I think it does, because again, I was quite specific in highlighting that the point that would be caught by the clause is the state of your knowledge, not the question of whether it's harmful. Yes, I do think it's proportionate, and I think it's appropriate, because I think the best forum for working out whether something is a statement of opinion or a statement of fact is a courtroom. Indeed, the courtroom has been the forum for this exercise for literally centuries. In cases of defamation, for example, the first question the court asks itself is, 'Are these statements statements of fact or are they statements of opinion?' The courts and the legal system are full of knowledge and experience that allows us to make that distinction. We'll look at the evidence, we'll look at the context, we'll ask questions. That is a far more appropriate forum than a political forum, where anything could be fact or anything could be opinion, and the primary arbiter of whether something is right or wrong isn't whether it's fact or opinion, but whether it has political support. And that's not said as a criticism. I think it's entirely right that that is what happens in a legislature. It's proper that the question that legislators ask themselves ultimately is, 'Does this have political support, does this have the support of the nation, does this have the support of my ideals?' Fact should play a role in that, but the ultimate fact-finding forum is a courtroom. So, I think it's proper to take these questions outside the realms of political combat, which in turn will improve the standards of political discourse because you will know that when you are applying your expertise, your ideals and your knowledge and understanding of the zeitgeist, you're doing so on the basis of facts and with the help of externally acknowledged facts.

Chair, I've got two points I want to pursue. Given that we just heard the case again as to why the courts are a preferable forum for resolving these matters, maybe I'll take that one first. The committee is, other than in this session, looking at the whole issue of recall, and whether or not there are a series of actions that a Senedd Member might undertake that would lead the Senedd to say that that person's continued membership of the Senedd should be put back to the people who elected them in the first place. If the Senedd is to be trusted to identify those sets of circumstances, why is it not to be trusted to do it in this case? Why is this so different that the work that the committee is doing to identify those instances and to trigger a process that could lead to the person leaving the Senedd altogether—? Would it not be better for this to be made a more prominent part of that overall process?

No, for three reasons. Firstly, I think we need to learn from what's been tried before. The Westminster Parliament tried this, instituted a recall mechanism. The only result in relation to public trust was that public trust in politicians went down. So, relying on the recall mechanism to combat or attack the problem we're trying to attack, which is that only 9 per cent of the country trust politicians to tell the truth, clearly hasn't worked in Westminster. That's No. 1. 

No. 2 is the principal argument, which is that you as a committee and you as a legislative body are looking at a package of different standards measures, and these cover a wide variety of things. The question is: are these all things of the same level of seriousness? And I say they are not. For me, political deception is akin to political bribery. It sits within that very small but very serious class of harms that undermine the very integrity not just of the Senedd, not just of an individual Member or political party or committee, but of the democratic system itself. That's why we set bribery outside the realms of political combat.

I think it's right that we set deception outside the realms of political combat, which brings me to my third point, which is that the nature of deception fundamentally undermines the efficacy of the political process. Whereas other standards issues certainly don't do it any good, political deception denies voters the right to make an informed decision about their representatives. There was a recent poll by Ipsos which led to the—. For me, it was quite a witty headline, which was 'British public wrong about nearly everything'. And this poll was conducted looking at what the British public believed were the facts around various public policy issues, and it concluded that around many of the leading public policy issues, the British public were serially misinformed. Now, a big part of that is because they have been misinformed, and if you are unaware of the facts around a political issue, then that is compromising your right as a voter to exercise your opinion on a political issue. And so, it is appropriate, I think, that deception goes in that small category of fundamentals, rather than being left to a process that it will, in and of itself, inherently make less effective.

Can I just add to that that the law already provides for those who are declared bankrupt to be disqualified from office, and that's the precedent I think we should follow with deliberate, intentional deception, that it has to sit—? You know, it's part of declaring the rules of the game rather than something that people can really decide, 'Well, it wasn't such a bad case of fraud. It wasn't such a bad case of bankruptcy'—that it's absolute. And to say that somebody who has been declared bankrupt is not fit but someone who has committed fraud is fit doesn't sit right.

We started all this by talking about the need to restore trust, people's trust in the political system. The resolution I suggested to you, incorporating this issue within the standards procedure, would trust the electorate to make the final determination. I think you said, Sam, that people who deliberately say things that are not true denies voters the right to create an informed view of the issue. Your preferred option, the criminalisation of the process, doesn't that deny voters the right to have the final verdict on all of this, in their hands, whereas the way I suggested to you would trust the public?

I think that rather misses the core issue. Voters want to know—and they've been very clear about this in multiple polls—when they're voting, they are doing it in a situation where the rules of the game are being followed. So, simply chucking it back to them and saying, 'Look, this person may be deceiving you, or may not be; you can just figure that out for yourselves', is, I think, incredibly unfair to voters. On the other hand—

Just to make it clear, that is not what we're proposing. When this committee will set a series of tests, the Senedd will have decided that somebody has failed that test. It's not saying to people, 'This person may have told you something untrue or not'; we will have said, 'The person will have failed that test, now you decide, knowing that, whether this person, knowing everything else you know about them, is someone you want to continue to be your representative'.

Well, then it brings it back to the problem that I mentioned earlier, which is a problem of independence, where what the public will see in that situation is politicians sitting in judgment on each other. It also will be a case of, 'Has this person found insufficient political support in the legislature, to get away with this or not get away with this?' And this is not a mere hypothetical. For example, I recently—and you may have read about this case—acted for and defended a politician in Westminster in the Committee of Privileges, and it was actually the first time that a politician had been successfully defended before the privileges committee in more than a decade. The reason that politician was sent there was because he flagged and asked the Speaker whether the house could debate a report that another politician had been found to have deceived the house. So, a select committee report, cross-party, had found that a certain politician made a misleading statement. That politician was not punished for that misleading statement. The only person they did attempt to punish was the individual who asked for a debate and then told the public that the debate was not to be permitted. And it's examples like this that show the inherent risks with the question of truth or falsity being a political process, where power is truth rather than truth is power.

Now, I think that is very, very rare in both the Senedd and in the Westminster Parliament, but it certainly happens in Westminster and has the potential to happen in the Senedd, and what matters is what the public sees, and the public sees that potential. So, the public knows it's not going to get a say unless that person has already failed the political test, not the reality or the truth test. So, that is why it is better to have an institution that the public still has a high level of trust in to determine truth or falsity. It is much better to hand that question to that independent—and not simply independent in practice, but independent in the public's mind—to make that decision. And then if you want to amend this so that the public gets to decide the length of the ban, well that's another issue.

Can I just pick up on that? I agree completely with what Sam's saying, but even, let's say, that we have it completely watertight—the standards committee is able to convince the public that it is not MPs marking their own homework—on the issue of honesty, we have seen across the globe that the public are not always willing to sanction popular demagogic politicians on the basis of their dishonest statements. So, it's essentially creating a situation where recall becomes a popularity contest: is this person, this politician who has made fraudulent statements, charismatic enough, popular enough, likeable enough, go-to-the-pub-and-have-a-drink-with-able enough to not be sanctioned? And if one were to draw an analogy with another serious offence, one wouldn't leave it up to voters to decide whether or not they should be sanctioned if this were another serious offence. If this were a sex offender, one wouldn't be saying to the public, 'Well, is this sex offence serious enough for the person no longer to be a politician?'. So, I think that there is something that is fundamentally so serious about fraud, not about accidental or rhetorical flourishes, but deliberate with the mens rea as well as the actus reus of fraud that has to be taken into the criminal courts and not left to a popularity contest.

Also, just one final, very short point, even in the best-case scenario, and I'm sure this committee will come up with the best-case scenario in terms of a new standards process, it's not going to touch on candidates; it's only going to touch on MSs, and probably, in all likelihood, won't touch on Ministers either, who are subject just to the ministerial code. So, even in the very, very best-case scenario, where you bring Ministers into the standards process as well, it's only targeting about 50 per cent of the problem.

Mark, any further questions?

Do you mind if I just have one very last point? Sorry, I've had far too much. 

Go on.

One of the things that is troubling me—and I'll ask it to Jennifer, in a way—is trust in politics is particularly eroded amongst some parts of the population whose views some of us may not like or share, including those people who I think you may have been suggesting were particularly prone to support the type of populist politician that you were referring to. Are we likely to increase the trust of those people in the democratic process if they are taught that the state is now trying to criminalise the views that the state doesn't find convenient? Because isn't that what will be said to them? Doesn't all this actually end up furthering the belief of those people that they live somewhere where those views can't be expressed and be debated? 'We don't like what you say, and therefore we're going to use criminal law to try and prevent you from saying it.'

But that's not what this law is doing. This law is not restricting unpopular opinions or even odious opinions; this law is solely targeting the deliberate misuse of factual information, stating things as factually accurate that are not, and I think that that's important. We live in a democracy and we defend the right for people to say things that we vehemently disagree with.

I just thought it might be helpful just to tell you about another bit of polling that we did in terms of the proportion of the public that actually believe what politicians say. Our polling showed that one in five people don't believe a single word that politicians say; over half believe less than a third of what politicians say; and only 3 per cent of the public believe more than 80 per cent of what politicians say. I mean, that is a really unfortunate state of affairs, and this measure, I think, will have a huge impact on that, because it says, 'We are only going to say things that are factually accurate. We will argue passionately and use all the rhetoric at our disposal to convince you of the rightness of our views, but we won't mess around with the facts.' Facts are facts, and we are at a very dangerous moment in history. We are all aware of what's happening in Westminster and the potential for people who have a blatant disregard for the truth—one person in particular—to be reaching Westminster, and for that person's party to have members that will be entering this Parliament as well, and we have a moment in time, a moment in history, to try and really reassert the primacy of honesty in the political space. And again, I would point to the duty of candour on public officials. If public officials can be sanctioned by the criminal law, why is it that that their political masters should somehow be exempt from that sanction? I'm not sure that that's right.

I think, ultimately, trust in politics is that politics doesn't give voters a guarantee that politicians will tell the truth. That's the fundamental thing that we're lacking. So, the importance of this law is to provide that guarantee, so a voter can look at a politician on television, in their village hall at the hustings, in the Senedd, and say, 'Well, if that person is lying to me, then they're going to get a very, very serious consequence.' And it's not just a very, very serious consequence that happens through political processes in the Senedd, what will appear, to the average voter, to be behind closed doors; they're going to get a very serious consequence in a way that I understand, and through a system that I've been taught about since birth, that criminal things are wrong things. I think it's only by giving the public that guarantee that we can start to restore trust in politics.

Just to pick up on that, we have a situation at the moment where lying pays. If a politician deliberately—. Again, I know that we're only talking about a very small percentage, but that very, very small percentage, unfortunately, pollutes the water in which all of the honest politicians with huge integrity swim. But at the moment, the balance is all in favour of lying, because there is no sanction that is severe enough to take away the benefits of those lies and repeating those lies. We've seen those lies take effect. We've seen them influence the course of our country. We've seen them influence the course of history. And just to come back to the point I made originally, if I were a salesperson trying to sell a car and convinced the purchaser that this was a safe car and completely trustworthy and completely reliable, and I knew that it was a death trap, there would be consequences, but as a politician, there is no consequence, and that is wrong.

Thank you. If I could just finish with some technical questions. Jennifer, it was a comment that you made there that made me think about this. You gave an analogy of a sexual offence and how that wouldn't be brought to the committee and then perhaps to a recall process for a decision to be made, but sadly, that could actually be the case. If a complainant didn't want to take a legal prosecution, they could instead decide to come to the standards committee and for us to progress a case like that. That got me thinking, then, about who you foresaw could actually bring a prosecution, if section 64 goes ahead. Currently, offences under the Government of Wales Act 2006 require the director of public prosecution's consent. So, Sam, could I ask, would you foresee this as being similar to that?

Yes. The offence explicitly excludes private prosecutions, which is important. So, in practice, this is a CPS matter. Now, it's been raised that, in theory, perhaps a local authority could also prosecute. But in the same way that in theory a local authority could prosecute someone for theft, as the power sort of exists, it's not used, and there are good practical reasons for that, not least because local authorities have their own legal and practical realm, and they stay within it. So, the legal and practical effects of clause 64 is that that the CPS will prosecute.

And would there be a right to a trial by jury thereafter?

It's an either way offence, so, yes. 

Okay. Thank you. Any final comments, Jennifer?

Just to say that, because the CPS is involved, that, again, is another filter against the vexatious and frivolous, because the complaint has to go to the police, so instantly police time is wasted if it is vexatious and frivolous. And, secondly, a prosecution will only be brought if it's in the public interest. So that, again, acts as a filter to ensure that this measure can't be abused. 

Okay.

Sorry, I just want to correct myself. I think the proposal is to—. It's not clarified whether it's an either way offence, I believe, but the proposal is to clarify on amendment that it will be an either way offence, which means you can elect a trial by jury.

Well, thank you, both, very much for attending the committee this morning. It has been really very interesting and very useful for us to speak to you. A copy of the transcript will be provided for you as soon as possible, so that it can be checked for factual accuracy. So, thank you, both, very much indeed.

Thank you.

Now, as I alluded to in the course of that session, unfortunately we have to postpone our next evidence session, which we were due to hold with Jane Dodds. 

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