Why the Standards Commissioner handled the latest complaint against Andrew RT Davies badly

Martin Shipton

Should the Senedd’s Standards Commissioner have reprimanded a councillor for publicising a complaint he had made about former Tory group leader Andrew RT Davies?

The Commissioner, Douglas Bain, seems convinced that he had a duty to severely tick off Plaid Cymru’s leader on Powys County Council, Elwyn Vaughan, over comments he made to Nation.Cymru.

Yet there appears to be no legal justification for him to take such a view.

Last week Cllr Vaughan was shocked by Mr Davies’ choice of language when he criticised Plaid Cymru members during a TV interview.

His party’s official line is that it will, after next year’s Senedd election, talk with any other group about a working arrangement that would result in ousting Labour from power.

‘Poison’

But Mr Davies said on ITV Wales’ Sharp End programme: “Separation and the poison that is in the veins of Plaid Cymru activists against the union of the United Kingdom is not something that will achieve success for Wales.”

Cllr Vaughan considered the phrase ‘the poison that is in the veins of Plaid Cymru activists’ to be beyond the pale. He told Nation.Cymru: ““It is utterly disgraceful for the former Tory leader at the Senedd to use language that has its origins in Nazi Germany and has more recently been used by Trump to demonise minorities.

“By expressing himself in such an irresponsible way, Andrew RT Davies is pushing the boundaries of what is acceptable and seeking to normalise the extreme.

“It is shocking that someone in such a prominent public position should behave in such a way and I am reporting him to the Standards Commissioner. In my view he is bringing the Senedd into disrepute.”

In his complaint to the Commissioner, Mr Davies cited examples where Hitler had used the “poisoned blood” motif to dehumanise racial minorities, most notably Jewish people.

Similar language has also been used repeatedly by Donald Trump to describe undocumented immigrants, who are said to be “poisoning the blood of our country”.

Commissioner Bain quickly decided that Cllr Vaughan’s complaint had no merit. He wrote to the councillor stating: “Mr Davies, like everyone else, enjoys a right to freedom of expression. Indeed, as a politician commenting on matters in the political sphere, he enjoys an enhanced right and may say things that might in other circumstances be unacceptable.”

Offensive 

Mr Bain went on to refer to a – very different – case brought by a councillor against the Public Services Ombudsman for Wales in which it was observed that ‘in a political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational, and aggressive that would not be acceptable outside that context, is tolerated’.”

The Commissioner said he was “satisfied that, whilst you and some others may have taken offence at the language used, Mr Davies was entitled to say what you allege he did.”

He dismissed the complaint, but didn’t leave his comments at that. Addressing Cllr Vaughan directly, he said: “As an experienced politician you must be well aware of the confidentiality of the complaints process. That confidentiality is necessary to avoid the risk of prejudice to any investigation. It is both disappointing and reprehensible that the duty of confidentiality was breached on this occasion.”

My view is that in reprimanding Cllr Vaughan in this way, the Commissioner overstepped the mark. Elwyn Vaughan had legitimate concerns about what he reasonably considered to be Andrew RT Davies’ Nazi-inspired use of language on a TV programme. He exercised his freedom of speech by communicating his views to a Welsh news outlet, only to be castigated by the Standards Commissioner.

Confidential

I sought a response from Mr Bain and received this response from a spokesperson for the Senedd Commissioner for Standards: “It is a long established practice that the complaints process is regarded as confidential. That confidentiality is necessary to avoid the risk of prejudicing the investigation of complaints.

“Section 16 of the National Assembly for Wales Commissioner for Standards Measure 2009 imposes a duty of confidentiality on the Commissioner and his staff.

“Rule 19 of the Procedure for Dealing with Complaints against Members of the Senedd imposes such a duty on Members of the Senedd. Natural justice requires that complainants should maintain the same confidentiality. “Paragraph 5 of the model Code of Conduct for councillors imposes a duty of confidentiality on them.”

I think the Commissioner has missed the point. No one is arguing that the progress of a complaint as it is considered should be anything but confidential. But there is no reason in a free society why the nature of the complaint shouldn’t be in the public domain. Indeed, there are countless examples where politicians have been under investigation for alleged standards breaches that have been extremely widely publicised.

At the Senedd, it was known for many months that the MS Rhys Ab Owen was under investigation by Mr Bain for inappropriate behaviour – and indeed there were many stories written, published and broadcast about his situation.

In my view the Commissioner should revise his position and apologise to Cllr Vaughan.

This is not, incidentally, the first time that a Standards Commissioner has come down on the side of Andrew RT Davies.

PA

Five years ago the Western Mail published the testimony of a number of Welsh Conservative staffers who claimed that Mr Davies was employing his wife Julia on a salary of up to £35k for doing little work. Some of them had been unaware that she was employed as his PA and that, for example, her Senedd email account had not been activated. At the same time, she was running a business as a hypnotherapist.

Subsequently I was tipped off that staff at what is now the Senedd Commission had looked into the matter and formed the opinion that there was a prima facie case against Mr Davies.

In accordance with the law, the matter was referred to Mr Bain’s predecessor as Standards Commissioner, Sir Roderick Evans. After talking to a number of Andrew RT Davies loyalists in the party, Sir Roderick decided to take the case no further.

I sought disclosure under the Freedom of Information Act of the Senedd Commission’s findings, but was denied access to them on the grounds that Mrs Davies’ privacy rights as an employee must be protected. I argued that it was a Standards matter rather than a strictly employment matter, but I lost the appeal.

One of the arguments put forward by the Senedd Commission against releasing the data to me was that both Mr and Mrs Davies would be upset if it entered the public domain. I bet they would.

I always have an inward laugh when Mr Davies rails against the waste of public money.