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Y Pwyllgor Safonau Ymddygiad
The Committee on Standards of Conduct

Dydd Mercher, 21 Tachwedd 2007
Wednesday, 21 November 2007

Cynnwys
Contents

Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datgan Buddiannau
Introduction, Apologies, Substitutions and Declarations of Interest

Enwebu Aelod Pwyllgor o dan Adran 10.2 o’r Drefn Gwyno
Nomination of Committee Member under Section 10.2 of the Complaints Procedure

Adolygu a Diwygio’r Drefn Gwyno
Review and Revisions to the Complaints Procedure

Defnydd o’r Bleidlais Fwrw mewn Perthynas â Chwynion a Ystyrir ym mhob Gwrandawiad a’r Cyfarfod Llawn
Use of the Casting Vote in relation to Complaints Considered at all Hearings and Plenary

Cod y Gweinidogion
Ministerial Code

Statws y Comisiynydd Safonau
Status of the Commissioner for Standards

Blogs Aelodau’r Cynulliad
Use of Blog Sites by Members

Ymweliad y Cadeirydd â Phrifysgol Strathclyde
Chair’s Visit to Strathclyde University

Cofnodir y trafodion hyn yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir cyfieithiad Saesneg o gyfraniadau yn y Gymraeg.

These proceedings are reported in the language in which they were spoken in the committee. In addition, an English translation of Welsh speeches is included.

Aelodau’r pwyllgor yn bresennol
Committee members in attendance

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert

Llafur
Labour

Brynle Williams

Ceidwadwyr Cymru
Welsh Conservatives

Kirsty Williams

Democratiaid Rhyddfrydol Cymru (Cadeirydd y Pwyllgor)
Welsh Liberal Democrats (Committee Chair)

Eraill yn bresennol
Others in attendance

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Richard Penn

Y Comisiynydd Safonau
The Commissioner for Standards

Swyddogion Gwasanaeth Seneddol y Cynulliad yn bresennol
Assembly Parliamentary Service officials in attendance

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Keith Bush

Prif Gynghorydd Cyfreithiol a Chyfarwyddwr Gwasanaethau Cyfreithiol
Chief Legal Adviser and Director of Legal Services

Sulafa Halstead

Clerc
Clerk

Abigail Philips

Dirprwy Glerc
Deputy Clerk

Gareth Rogers

Swyddfa’r Comisiynydd Safonau
Office of the Commissioner for Standards

Dechreuodd y cyfarfod am 5.44 p.m.
The meeting began at 5.44 p.m.

Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datgan Buddiannau
Introduction, Apologies, Substitutions and Declarations of Interest

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: Thank you for coming along to the meeting tonight and for enabling us to make an earlier-than-scheduled start.

We have received an apology from Chris Franks, who is unwell. There are no other apologies.

5.44 p.m.

Enwebu Aelod Pwyllgor o dan Adran 10.2 o’r Drefn Gwyno
Nomination of Committee Member under Section 10.2 of the Complaints Procedure

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: This is for a member of the Committee on Standards of Conduct to take the Chair in the event of a complaint being lodged against the incumbent Chair. So, clearly, it cannot be me. I ask for a nomination.

Brynle Williams: I nominate Kirsty Williams.

Jeff Cuthbert: Will you accept the nomination, Kirsty?

Kirsty Williams: I will, although I do not envisage ever having to use it.

Jeff Cuthbert: Quite right. We cannot really second it. Is that agreed? I see that it is. Thank you.

5.45 p.m.

Adolygu a Diwygio’r Drefn Gwyno
Review and Revisions to the Complaints Procedure

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: Paperwork has been sent out on this item, including a briefing from the Commissioner for Standards. You may recall that this issue arose from the last time that we formally met, to hear a complaint against Nick Bourne AM regarding entries in his blog. We came to a resolution, namely that a breach had been found but that it was trivial or inconsequential and that the complaint should be dismissed. So, we clearly agreed that there was a breach—and I will refer to that for a different reason later—but that it was trivial or inconsequential and that the complaint should be dismissed. A number of complaints were sent in afterwards by the original complainers, taking issue with the words 'trivial’ and 'inconsequential’. We have to put aside the nature of the issue and consider whether—and this is the purpose of this item—those words are appropriate to what we mean, or whether the suggestion that is made in the commissioner’s paper to change them to 'failure of a minor nature’ might be more appropriate and less likely to give offence should something like this occur in the future. Commissioner, would you like to add anything?

Mr Penn: My note goes to that point, and my recommendation is to replace those words with something like 'complaints deemed to be failure of a minor nature’, which would be more acceptable to the complainants and to the public in general.

Jeff Cuthbert: Are there any observations or comments?

Brynle Williams: I am quite happy for those changes to be made.

Kirsty Williams: I agree that we should accept the advice of the commissioner and amend the words as suggested.

Jeff Cuthbert: Therefore, that is agreed. Thank you.

5.47 p.m.

Defnydd o’r Bleidlais Fwrw mewn Perthynas â Chwynion a Ystyrir ym mhob Gwrandawiad a’r Cyfarfod Llawn
Use of the Casting Vote in relation to Complaints Considered at all Hearings and Plenary

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: You may recall that this issue was raised as we were in danger, at our first meeting under the new powers, because we were only four in number, of a casting vote having to be used. While that was in order, it is not a desirable situation in which to be if we are considering important issues; we would like to have a clear decision and not rely on a casting vote. However, as the committee has only four members, it is not unreasonable to suggest that there could be occasions when we will have a tied vote, and we will have to deal with it. As you can see, we have received some comments and we need to consider whether or not we should retain the general principle for the use of the casting vote or strive for consensus. As there are only four of us, we need the provision of a casting vote to be used if necessary; we can adjourn meetings to allow for us to reflect and reconsider, but we cannot keep doing that. If we are to make progress, we need a mechanism by which to do it, which is a casting vote. What are your views?

Brynle Williams: It should be used when every possible avenue has been exhausted. One must be sensible about this, and I think that the only way forward is for the Chair to retain the casting vote. If we cannot get consensus after exhausting every avenue, it is the only logical way forward that I see. I do not know what Kirsty’s views are.

Kirsty Williams: I have learnt lessons from being in different circumstances recently, where the chair did not have a casting vote. I think that it is completely appropriate that the Chair should have a casting vote in the case of a deadlock situation. I appreciate, Jeff, that you will do everything that you can to establish consensus in the committee, but,  ultimately, you have been elected to the position of Chair, and you should have that casting vote.

5.50 p.m.

Jeff Cuthbert: That has established the principle that there should be a casting vote. A further issue is whether we would seek to amend Standing Orders, so that we could have a different type, if you like, of casting vote. As you can see, there is currently the ability to rule in the affirmative where further discussion of the matter is possible and to rule in the negative where further discussion is not possible. That rule applies to Plenary and the other committees. Do you feel that we should look at a different approach to the use of the casting vote, bearing in mind the nature of some of the things that may come before us and that we are relatively few in number? For example, one of the traditional ways mentioned by Walter Citrine in The ABC of Chairmanship is that, unless there is a majority in terms of a motion being proposed to create a new situation, the casting vote should always be for the status quo—in other words, you do not create a new situation via a casting vote. I suggest that we ask the commissioner’s office staff to look at how the issue of the casting vote is dealt with by other committees on standards of conduct—whether there are different procedures for the use of the casting vote in Scotland and Northern Ireland and so on—and come back to us on that. We can then make a final decision at the next meeting. We can either stick with the rules that we have or see if there is a better facility available. Is that fair? I see that you agree.

The next issue is that of the media strategy, and I am now being guided by paper STD(3) 03-07 (p1). We learn as we go along—there is nothing wrong with that—but you may recall that, following our last formal meeting, a press statement, and a blog statement, were issued that appeared to contradict what we had agreed. For example, an article that appeared in the Western Mail seemed to suggest that we had thrown out the complaint, which was not the case. We had found that there was a breach, even though it was, as we would say, of a minor nature. We need to consider whether we should introduce any sanctions, or have some right of recourse, should the committee’s decision be misrepresented, deliberately or accidentally. That is what we discussed informally and you have the papers before you. Do you have any comments?

Mr Penn: I have prepared a short briefing paper that sets out three possible options. The committee may wish to consider more. One is to have something in the code of conduct that could straighten the committee’s position—a paragraph preventing a Member from misrepresenting the committee’s decision, for example, or preventing the Member from making the decision public until you have published your report. That is a revision to the code of conduct.

The second option would be to be more proactive in terms of your media strategy, so that the committee itself would publish a report and issue a short, factual press release, putting the record straight. However, there is a time problem in that you cannot publish the report until 10 working days after the Member complained of has been provided with a copy, because the Member has 10 days in which to lodge an appeal. However, being more proactive with the media might be one way of doing it.

The third way is, if a Member issues a press statement, you could consider issuing a supplementary report to put the record straight. There may be other options that you could consider, but we could look at those three and any others, and bring them back for further consideration if you wanted to do something about this issue.

Jeff Cuthbert: I am grateful that you have spoken to your colleagues in Westminster and the Scottish Parliament. It is not a matter that has arisen there and so there is no model to follow in that regard. Am I interpreting your notes correctly?

Mr Penn: Yes.

Jeff Cuthbert: Kirsty, you wanted to raise a point.

Kirsty Williams: May I just say how cross I was to see that blog entry? That undermines the general regime of standards that the committee has tried to create in the Assembly. I think that such comments are hugely unhelpful and disrespectful to the whole process and to colleagues on this committee, and are untrue. The basic fact was that that press release blatantly misled the public in terms of what happened. On reflection, we should, perhaps, have acted as a committee and issued a statement at that time to make it clear that that was not true. However, a revision to the code that explicitly states that Members cannot misrepresent what happens here should be the first step forward.

Brynle Williams: I agree with you; however, once this committee has made its decision, I am not quite sure how we would implement that. If a complaint is not upheld, is it out of our hands, or should a press statement drafted by the commissioner be released in conjunction with the decision? I am not quite sure. Our decision can be misrepresented. As Kirsty said, I think that it casts aspersions upon this committee.

Jeff Cuthbert: It is disingenuous; it suggests that something has happened when it has not. We have to protect our integrity. I share the view that we need to have a provision—now that it has happened, it is regrettable, but we cannot undo things. Our record stands; we know what was agreed and that cannot be challenged. However, if I take your point correctly, Kirsty, and I will ask Richard to comment in a moment, we should make it clear—perhaps by adding to our code—that once a decision has been made, we do not expect Members to misrepresent the views of the committee in any way and, should that happen, the committee will feel free to clarify the situation equally publicly. That is just a suggestion. What are your comments?

Mr Penn: I set out in the first option that the committee, in the light of other experiences and a previous situation, decided to insert clause 19, which is about lobbying. It is open to you to recommend another change to the code, which would be something like: 'Members should not misrepresent the decision of the committee’. Such action would then become a breach of the code of conduct. That is the whole point. If you put it in the code, that could be a potential complaint. I do not think that the Assembly should be shy of being more proactive in this area and saying that you take complaints seriously and you publish your findings, perhaps in a more proactive way. So, a combination of those two might be the answer. Stopping a Member from misrepresenting what has happened is the key thing, but perhaps there should also be a degree of proactivity to make the public aware that you are active and are pursuing complaints properly.

Mr Rogers: Since paragraph 19 was inserted into the code, we have found that it acts as a deterrent. Rather than having to be enforced, it acts as a deterrent to Members. If they see that in the code, they will think twice about their press releases.

Kirsty Williams: We have to acknowledge that Members will try to put a particular spin on what has happened. One has only to look at the recent case in Westminster and the spin that has been put on the story by the MPs who have had to pay back money to Parliament. At no point did they misrepresent the decision. They confessed and said 'Yes, we have been found guilty and we are going to pay back the money, but here is what we think’. The issue is the misrepresentation of a decision taken by the committee. An amendment to the code of conduct that makes it clear to Members that they will be in breach if they do that, along with a more proactive, high-profile explanation to members of the public about what this committee is about, would be the way forward.

6.00 p.m.

Brynle Williams: This committee has to be high-profile and transparent. As the commissioner said, if we have to be more proactive with regard to the way in which we promote this, then, I am sorry to say, we have to do it. This is the committee responsible for the standards and ethics of this establishment. Even I know that, if I am in the public gaze or public employment, or whatever you want to call it, I have to play by the rules. We have no credibility out there and we will have no credibility whatsoever if we cannot maintain that. I am very sorry, but that is the way that I look at it. I am not an educated person, but even I can see that we have to be above reproach.

Kirsty Williams: May I suggest that we ask the commissioner and his aides to come back with a formal proposal?

Jeff Cuthbert: Yes. We need a formal proposal that embraces the points that we have made. Thank you.

6.01 p.m.

Cod y Gweinidogion
Ministerial Code

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: You may recall that this item has come about as a result of the change in our status, with the new powers. At the moment, complaints about the actions of Ministers would go to the First Minister and we were concerned whether that is what we want or whether there should be some independent mechanism for dealing with any such complaints. What are your views?

Mr Penn: The paper produced by the secretariat refers to the new ministerial code, published in July 2007, which refers to an independent element in the process. Hot off the press, Gareth has given me a copy of the Government’s response to the Public Administration Select Committee’s report on this issue. The UK Government has agreed that, while the Prime Minister should retain the right to make the judgment at the end of the day—it is his or her entitlement to make that judgment—there should be an independent element in the process. The Government has accepted that. In fact, it is going to be Sir Philip Mawer who has been appointed as the first independent adviser on ministerial interests. It will be Sir Philip, if the Prime Minister and the Cabinet Secretary agree that there should be an investigation, who will conduct the investigation, to give openness and transparency. That is what has been agreed in the UK Parliament. I think that my advice would be to look for some mechanism like that so that, if there is a complaint against a Minister, while preserving the First Minister’s right to make the final judgment in place of the Standards of Conduct Committee in the case of other Assembly Members, there should be some independent element, however it may be derived and whether performed by the commissioner or some other officer. It is that independent element that gives the public confidence. The Government’s response is very rational and accepting of the principles behind that.

Jeff Cuthbert: Could I suggest, from the Chair, that the best way forward is to at least have an independent part to the process? That seems right to me, as a matter of principle. I would also suggest that it is far better to go forward with the agreement of the First Minister rather than being at loggerheads with him, although I am not suggesting for one moment that there would be an argument. Perhaps we should write to the First Minister to say that we are minded to go down this road, especially in the light of the situation in Parliament, and seek his agreement. We will then be able to return to this matter at our next meeting, hopefully having had that agreement, and we will then be able to go forward together to develop some rules in terms of giving a degree of independence to the situation, following the model that has been outlined. Is that agreed? I see that all Members are in agreement.

6.04 p.m.

Statws y Comisiynydd Safonau
Status of the Commissioner for Standards

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Jeff Cuthbert: You may recall that there have been changes and that it was agreed, back in 2003, that we would like the commissioner to have a statutory status. We are able to do that, through an Assembly Measure, if we wish to generate it from this committee. What is your view in principle?

Kirsty Williams: I absolutely agree with the principle, and I think that the committee should make arrangements for the Measure to be drafted in order that we can take it to the Chamber.

Brynle Williams: I agree.

Jeff Cuthbert: I believe that there is a Scottish model, so we might be able to look at it to see whether we can utilise it, although we may need to modify it. We need to get this right, so we will certainly have to return to it at the next meeting.

Mr Bush: I suggest that, by the next meeting I bring forward a summary of what the provisions of the Scottish Parliamentary Standards Commissioner Act 2002 involve. That will help Members to see how the Scottish system works and to decide, in light of that, whether that is the general way that the committee wants to proceed. We can go into more detailed work in light of that decision.

Jeff Cuthbert: Is that agreed? I see that it is. We would be grateful if you can do that for the next meeting.

6.06 p.m.

Blogs Aelodau’r Cynulliad
Use of Blog Sites by Members

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: There is a paper from the Commissioner for Standards on this, and we have a private briefing provided by Keith. I have given two television interviews on this today; it seems to have excited the media.

Kirsty Williams: We have not been as popular since we dealt with the Freemasons. [Laughter.]

Jeff Cuthbert: I know. Allegations have been made by certain bloggers that we are doing this because we do not have enough to do. I can assure them that that is not the case. It is important, because the last three complaints to the committee relating to Assembly Members have been in relation to their blog sites, so we would be negligent if we did not draw the conclusion from that that there is a downside to blogs that Members ought to reflect on. We do not want a series of complaints relating to blogs coming to the committee that may be avoidable. I will use this as an opportunity to stress that under no circumstances are we talking about restricting freedom of expression, trying to dissuade the use of new technology or anything of the sort. However, if there are downsides to using blogs that Members ought to be aware of, it is our job to draw those to their attention, and they will then make their own decisions. Members should be made aware of any important considerations. It is recommended that that should probably be done through the issuing of a note.

As I said, we have the commissioner’s paper and Keith’s paper, so I will ask both for any further comments.

Mr Penn: You have covered the point. It is not part of my role to suggest that blogs are not an appropriate way to communicate with the community and constituents. However, there is a track record, as we had in the early days—as Kirsty will remember—on the use of Assembly resources. That was the cause of many complaints and we were certainly proactive then in encouraging Members to understand the rules without restricting their right to use Assembly resources. We simply made them aware of the rules. Interestingly, I have been meeting with new Assembly Members over the past two days and they have all referred to the issue of blogs—they are aware that it is a potential problem and have asked for my guidance. I am not going to give them guidance except to say that they should be cautious, because it is an area of activity that can produce complaints. Therefore, many Members are looking for a bit of guidance, although some will resist it. As you said in your introduction, it would be worth considering issuing a note to help Members to be aware of the issue. That is probably the right course.

Mr Bush: The only thing I wish to add is that my note has drawn attention to the fact that it is not only what people write on their own blogs, but the facility that they give to third parties to say things, that can get them into trouble. Interestingly, there was such a case before the courts in the past month or so, where Sheffield Wednesday Football Club supporters’ club is being sued by the directors of the club, because people posted allegations about financial impropriety on the supporters’ club website. So, the courts are becoming increasingly conscious of this issue.

6.10 p.m.

Obviously, this committee will specifically be concerned with breaches of the code of conduct that may be committed by Members giving a platform to abusive, defamatory or illegal conduct or statements generally. An element of that must be to make it clear that people cannot simply say, 'I did not put it on my blog; I simply allowed someone else to do that’, and for that to mean that they have a defence.

Brynle Williams: I am going to show my ignorance here, ladies and gentlemen. The bottom line is that you are not subject to any parliamentary privilege on a blog—is that right? If any Member posts anything on a blog, he or she has lost all parliamentary privilege, simply by having that blog.

Mr Bush: Absolutely. Parliamentary or Assembly privilege only attaches to publications that are made under the authority of the Assembly.  So, an individual Member’s blog is not covered by that privilege.

Brynle Williams: I am sorry for putting it in such simple terms, Chair, but it has to be clear in my mind. I now know exactly where I want to go and what it is.

Mr Bush: I should add for completeness that a person has a defence, of course, if he or she takes reasonable care to avoid something defamatory being said. So, if it is impossible for you to tell that something has been said—if it is an obscure reference to something that you do not or could not understand—the law will not impose liability on you in that situation. However, as we all know, many comments that are posted onto blogs are clearly defamatory and anyone who permits that to be done does so at his or her own risk.

Brynle Williams: So, no politician should have a blog site; it is as simple as that, but we do not live in a simple world.

Kirsty Williams: I think that the committee should agree to the commissioner issuing a note to Members, to make them aware of their responsibilities and the potential pitfalls in this area. It is not to restrict anyone; it is simply to make Members aware of their responsibilities and how blogs may or may not bring them into conflict with the code.

Mr Penn: I think that good organisations use complaints as a source of learning. The message to give is that we have received a number of complaints and we have learnt some lessons from that, which we are passing on to Members for their use and consideration.

Jeff Cuthbert: Absolutely. I think that we should ask Richard and Keith, perhaps together, to prepare a suitable note, based in particular on the powerful statement that Keith has included in his private briefing, which we can then perhaps e-mail. I do not know of any other problems that are coming up, but blogs are being used every day, so the sooner that this is done the better. Perhaps you could prepare something—I do not think that we need to wait until our next meeting—and circulate it to the four Members. We will then take feedback on this. We could perhaps meet should there be any minor tweaking to be done, if you are content.  I see that you are; thank you.

6.14 p.m.

Ymweliad y Cadeirydd â Phrifysgol Strathclyde
Chair’s Visit to Strathclyde University

STD(3)-03-07 : Trawsgrifiad

Jeff Cuthbert: The final item is the highlight of the evening as it is about my report on the conference at Strathclyde University that I attended. As you can see, it is just a written report on the discussion; there are no formal matters arising for us. The conference was about the role of lobbying organisations, or lobbyists, in the broadest sense. I have also included some of the concerns that I expressed. I basically said that I was not aware of any problems in Wales and that I did not want to see a tranche of rules and regulations being introduced just for the sake of it. It is a matter that we need to keep under review, and that is my conclusion at this stage. Are there any comments?  

Mr Penn: This certainly preoccupied the Scottish commissioner for his first three years in the post; it was a really big issue and went across a number of Members of the Scottish Parliament.  A lot of learning went on there and we can learn from it, but we have certainly not had any issues with lobbying in the seven or eight years that I have been in this post.

Jeff Cuthbert: Sulafa, is there anything that you want to say before we draw to a close?

Ms Halstead: I do not think so, Chair.

Jeff Cuthbert: I therefore declare the meeting to be closed.

Daeth y cyfarfod i ben am 6.15 p.m.
The meeting ended at 6.15 p.m.



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