Who guards the guards? Is the Senedd’s standards system fit for purpose

Dr Arun Midha, Lay Member committee on standards, House of Commons  

The recent decision by the Senedd’s standards committee not to find a breach of its code of conduct where 4 Members had admitted consumption of 2 bottles of wine on Senedd premises, at the height of the COVID-19 restrictions, has raised some important issue: Is the Senedd’s standards system still fit for purpose?

If the establishment of Senedd standards committee and the role of the Commissioner on Standards established in 2009 was an answer to the old question of  ‘Who will guard the guards?’, it also has to regularly consider the related question of ‘How will the guards be guarded?

I will shortly conclude my six-year term as a lay member of the Parliamentary Committee on Standards. Over the past six years the Committee has adjudicated on several prominent cases, including Boris Johnson (three times); Ian Paisley, Jnr – which led to the first trigger of the Recall of MPs Act 2015; Keith Vaz – which resulted in the longest suspension of an MP in recent times; and Owen Paterson, for an “egregious” breach of lobbying rules, sparking an attempt by the government to sideline lay members and restructure the standards system.

This has afforded me a significant opportunity to see at close hand a Parliamentary standards system in action where there could well be lessons for the Senedd in terms of how it oversees standards of elected representatives in Wales.

Investigator

Unlike its Commons counterpart, the Senedd’s standards system has no independent lay input into the decisions on conduct of members (the Standards commissioner, who is a lay person, has no decision – making power, they rather act as the investigator presenting their findings to a standards committee comprised of members of different political parties).

The Commons system, crucially, as was shown in the recent Paterson case, benefitted from having an equal number of lay and MP members all of whom had a vote. The system is not perfect but as Sir Ernest Ryder a former Lord Justice of Appeal who, in a recent report for the Commons committee on the future of standards concluded, the existence of lay members on the Committee with an equal number of MPs reflects both the public’s interest in the regulation of standards and the imperative that the governance of standards should be by Members of the House.

In this light, should the conduct of Senedd members continue to be judged only by other Members with potential concern  that ‘Members could be accused of marking their own homework’.  Or should their actions be subject also to independent scrutiny through lay input into decision-making as is the case in the Commons and indeed pretty much all of the professional regulators across the UK?

Given that the Senedd standards committee, has acknowledged in its final report on the 4 members that the decision was based on a subjective judgement of whether the ‘Nolan’ principle of integrity had been broken, mean that is it time now to address the related question of ‘How will the guards be guarded?

Subjective decision

Can conduct be left to a necessarily subjective decision on whether a ‘Nolan’ principle had been broken?  I believe the answer is no. As Lord Evans, Chair of the committee on standards in public life (in evidence to the Commons standards committee) explained: “the principles of public life are designed to be a high-level statement of the overall direction in adhering to standards and were not designed to be enforced”.

Principles should rather be seen as underpinning values that sit behind specific rules. They are not investigable. They are not rules that can be enforced and breaches of which can be punished; they are simply a decent, respectable, and honest guide to behaviour. Given this, is there a fundamental flaw in the Senedd’s approach where it seeks to make judgements on principles where, by its own admission, these are subjective.

As I depart the House of Commons Committee, what I have learned is that the lay voice in conduct matters is important, not least in supporting greater public confidence in the standards system. Is it time for the Senedd to consider adopting similar approach as without public confidence in the process, the respect a democratic society should have for its elected representatives will sadly diminish?