Lying ban would be bad for parliamentary democracy and devolution

Mick Antoniw MS – Counsel General 

The Elections and Elected Bodies (Wales) Bill is about improving our electoral system by introducing automatic registration of electors and creating a new Welsh structure for the efficient management and administration of Welsh elections.

It is very encouraging that the UK Labour Party has announced it intends to follow suit and introduce similar legislation for UK elections. This can only be good for democracy.

However, it is ironic that at a time when we are likely to have a new Labour Government in Westminster which is also committed to extending full Parliamentary Privilege to all the parliaments of the UK equally, that we are facing an amendment to our Elections Bill has the effect of severely restricting it by creating a new criminal offence of “deception”.

Parliamentary privilege is the constitutional immunity for parliaments to be able to speak, discuss and legislate free from possible civil or criminal sanctions. It is regarded as a cornerstone of parliamentary democracy and freedom.

Deception 

The amendment is well intentioned. We do need stronger standards and rules with regard to false information and deceptions but I have no doubt in my mind that the amendment is significantly flawed, both constitutionally and operationally. More importantly I believe there is a much better way of legislating.

This amendment has been suddenly bolted on to Elections Bill at the penultimate amending stage. This means it has had no effective parliamentary scrutiny. The rest of the Bill was consulted on in a White Paper 18 months ago, and has since been subject to detailed conversations with stakeholders, including those led by a Senedd Committee.

It is wholly inappropriate to introduce an amendment of such significant constitutional importance with no scrutiny of the general principles, no consultation, no engagement with judiciary, police, lawyers, academics, the crown prosecution service, or any other stakeholders.

The Welsh Parliament does not have a revising second chamber so making change without such proper scrutiny is bad for democracy.

The amendment also seeks to bypass the work currently underway with the Standards of Conduct Committee inquiry into Member accountability. I am confident that this inquiry will lead to effective, workable legislation that will establish a mechanism for the recall of members who fall below the standards expected of them by the public.

Legislation

This is the legislation that will hold Members to account for false or deceptive statements and the intention is for it to be in place for our 2026 elections. I am committed to this as is the First Minister.

Parliamentary privilege is not about protecting individual members but about protecting the freedom of the Senedd itself to act on behalf of the citizens of Wales, to speak freely and without fear of the courts, the wealthy or the teams of corporate lawyers who may line up to suppress criticism or accountability.

It is a cornerstone of democracy established in 1689 to protect free speech. We also need to understand that this amendment will make the Welsh Parliament a constitutional outlier in the UK. We will have less parliamentary protection than any other Parliament in the UK and probably in Europe. This is bad for parliamentary democracy and bad for devolution.

It will potentially lead to a suppression of free speech in the Senedd and the right of members to speak up without fear on behalf of their constituents often against corporate and wealthy interests.

Senedd members need to be aware that if allegations are made against them that they will be reported to and investigated by the police and there is no legal aid available. Every member will be liable for potentially substantial legal costs that might be incurred to defend themselves no matter how unfounded the allegations.

In such an environment of risk, I fear that passing this amendment may well discourage people from standing for election to the Senedd or from speaking out on behalf of their constituents when they most need to do so. We need to think about this very carefully.

I also fear the possibility of significant disruption to future Senedd elections if, as seems likely, rival candidates make claims against each other. As the old saying goes, legislate in haste, repent at leisure! Of course I may be wrong, or Members may be of the view that parliamentary privilege is unimportant or that my fears are unfounded.

Unfortunately, we have not had the scrutiny necessary. All the options and risks and benefits have not been explored. I am therefore, convinced that the inquiry by the Standards of Conduct Committee is the best way forward and I am committed to legislation that is workable and effective being in place by 2026. The committee must be allowed to complete it work.