Should Senedd members be criminalised for lying?

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

The Elections and Elected Bodies (Wales) Bill is currently before the Senedd.  Clause 64 would make it an offence for a Senedd member or candidate (S) to lie when acting in either capacity (i.e., it could not arise when S acts in a private capacity).

This article discusses clause 64 and argues that it has defects and that holding S to account for misbehaviour needs to be taken forward in a more considered and holistic way.

Clause 64 was inserted by an amendment tabled by former Plaid Cymru leader, Adam Price, at the committee stage of the bill (Stage 2). Counsel General, Mick Antoniw, promoter of the bill, opposed the amendment but he was outvoted. The bill (including clause 64) will now be considered by the Senedd at Stage 3.

Clause 64

Clause 64 amends  Schedule 1A to the Government of Wales Act 2006 (GOWA) and creates an offence where S, in the required capacity:… wilfully, and… with the intent to mislead, make[s], publish[es] or cause[s] or permit[s] to be published on [S’s] behalf, a statement purporting to be a statement of fact which [S] know[s] to be false or deceptive in a material particular.

Note it must be proved that S has the necessary intention and knowledge, a high bar. Recklessness will not suffice (i.e., where S’s mind is closed to what would be obvious to others).

If convicted, S is disqualified for four years from being a Senedd member or candidate. There are no other potential sanctions such as imprisonment or a fine.

There are specific defences available to S. These include where: S acts in the interests of national security; or S retracts (and apologises for) the inaccuracy within 14 days of the statement being made or published, or of the inaccuracy being brought to S’s attention.

No prosecution can be started after six months following the statement and no private individual or entity can bring proceedings.

Issues of framing

As drafted, the offence could apply to any dishonesty, whether serious or trivial. Although a statement must be false or deceptive in a material particular, ‘material particular’ does not appear to relate to seriousness.

Using a silly example to make the point, this could relate to a statement by S in Senedd proceedings about the content of a restaurant menu so long as the statement about the menu is false or deceptive in a material particular (i.e., it substantively relates to the menu and not something else).

The rationale for the ‘national security’ defence is understood but ‘public interest’ rather than ‘national security’ would make the defence more effective. The latter will include the former.

For example, S might make a false statement at the request of the police so that sensitive information does not get into the public domain in order to, say, prevent crime or protect people. This would not relate to national security; yet making the statement could be justified as in the public interest. As drafted, the defence would not be available in those circumstances.

No private individual or entity can bring proceedings. In Stage 2 proceedings it was clear that it was envisaged that prosecutions would be brought by the Crown Prosecution Service to avoid vexatious actions.

But, as drafted, proceedings could be brought by anyone who is not a private individual or entity. This includes the CPS but also other public bodies such as local authorities.

Even if that defect were cured, any prosecution would still be dependent on a complaint being received and investigated. While having the CPS as a prosecutor might prevent vexatious prosecutions, it does not prevent inappropriately (politically) motivated complaints which the police will then investigate. There must be a question about whether that call on police time is justified.

Comparisons

In introducing clause 64 Adam Price made comparison with lawyers or doctors who can be disqualified for misbehaviour. But this analogy does not stand up.

Lawyers or doctors are not criminalised by disqualification. Their misbehaviour might lead to a criminal conviction which might be the basis for disqualification, but this would be separate. Criminalising S through disqualification is excessive.

Lawyers and doctors are not elected. Politicians are elected and can be ‘de-elected’ through the ballot box or not being retained by their party as a candidate. The context is different.

Disqualification for lawyers or doctors can arise from a range of misbehaviour. This includes dishonesty but also, for example, sexual misconduct or harassment. Clause 64 is limited to dishonesty.

Even if drafting flaws could be cured, significant questions arise concerning criminalisation through disqualification and confining misbehaviour to dishonesty.

Broader context

Clause 64 needs to be placed in a broader context concerning upholding standards in Senedd affairs. Existing provision affecting Senedd membership first needs to be mentioned to give context.

There is Schedule 1A to GOWA which sets out circumstances in which S is disqualified (clause 64 adds to Schedule 1A); disqualification can arise in various circumstances (e.g., for holders of certain offices or occupations, under 18s, and bankrupts). As to misbehaviour, S is disqualified if guilty of an offence and imprisoned for more than a year.

There is also existing regulation of Senedd members. Under Senedd standing order 22  a Senedd member can be censured, have rights and privileges withdrawn, or be excluded from Senedd proceedings (or a combination) for misbehaviour leading to breach of relevant standing orders, Senedd resolutions or the Senedd members’ code of conduct on standards..

So, under existing provision S is disqualified if imprisoned for more than a year. For behaviour which does not lead to this, S may nevertheless be sanctioned (but short of disqualification) under Senedd standing orders.

There is therefore a deficit in the accountability framework concerning behaviour where disqualification cannot follow (e.g., where there is imprisonment under a year, or no imprisonment) but where disqualification (or removal of S from office) might nevertheless be considered appropriate. Clause 64 addresses this in part but it is problematic for reasons mentioned.

Recall petitions

One potential remedy to be considered is the recall petition, available to UK parliamentary electors but not to Senedd electors. Under the Recall of MPs Act 2015 an MP can be subject to a recall petition resulting in the MP losing their seat and a by-election ordered (although the MP is not disqualified from being a candidate). Successful recall does not lead to disqualification but does lead to removal from office. A recall petition is successful if at least 10% of electors in the constituency petition and can arise in three circumstances.

These are: where an MP is convicted of an offence and imprisoned; where after a report from the Parliamentary Committee on Standards, the House of Commons orders an MP’s suspension for at least 10 working or 14 calendar days; or where an MP is convicted of providing false or misleading information for parliamentary allowances.

A 2019 example of a recall petition occurred when Brecon and Radnor Conservative MP, Chris Davies, was replaced by Liberal Democrat Jane Dodds in the ensuing by-election.

A recall petition framework for Senedd members applied appropriately to Wales could help remove the deficit. It would also overcome issues over clause 64 (e.g., criminalisation and being limited to dishonesty).

And, recall petitions are being considered by the Senedd Standards of Conduct Committee (SCC) as part of its enquiry into Individual Member Accountability. The SCC is currently taking expert evidence before carrying out public consultation. Rather than enacting clause 64, it would be better for the SCC to look at what is proposed by clause 64 as part of its overall enquiry into S’s accountability.

Clause 64 should be removed at Stage 3 and action deferred until the SCC reports.

Upholding Senedd standards is important and Adam Price’s initiative is to be commended as it raises the issue’s profile. Although S should not lie, S also should not be violent, a bully, or a sexual predator. A more holistic and in-depth consideration can lead to a better outcome.