Draft Proposed National Assembly for Wales Standards Commissioner Measure 2009 - Public Consultation
Response from the Co-conveners of the UK Study of Parliament Group Public Officials of Parliament Study Group, January 2009
Thank
you for the opportunity to comment on the draft Measure. The Study of Parliament Group (SPG) has recently published a major report into the operation of parliamentary watchdogs, in conjunction with the Constitution Unit at University College London. This is
Parliament’s Watchdogs: At the Crossroads.
(December 2008). One of the watchdogs under scrutiny has been the post of parliamentary commissioner for standards. The SPG has previously published Conduct Unbecoming: The Regulation of Parliamentary Standards
ed Oonagh Gay and Patricia Leopold (2004 Politicos).
We have some specific comments on the draft Measure, as follows:
Section 1(6). We would strongly endorse the earlier comments of the Scottish Parliamentary Commissioner for Standards with regard to the merits of a single fixed term. We have examined the position in other Commonwealth jurisdictions and there is clear evidence of pressure being applied to Commissioners who are seeking a second term. The UK Parliament Public Administration Select Committee (PASC) has recommended that the principle of a single fixed term be applied across the board to ethical watchdogs in its report Ethics and Standards in April 2007. This recommendation has been accepted by the UK Government in its response to PASC in November 2007.
Section 4. We commend the clear statement of independence of the Commissioner. However, we believe that thought also has to be paid to the question of accountability. Our study indicates that independence and accountability are in fact interdependent, reinforcing each other. A Commissioner who is not seen as accountable to the Assembly is in danger of having their findings rejected in practice. There is a requirement for an annual report to the Assembly under Section 16. We would hope that this would be supplemented by regular appearances before the Standards Committee. It would appear essential to ensure close links between Commissioner and Assembly. We would prefer some formal link with the Standards Committee to be set out in the Measure.
It is appreciated that the Commissioner should have the power to require the attendance of witnesses and to make public recommendations without the intervention of an Assembly committee. However, a key role for the Westminster Standards Commissioner is to build a culture of compliance with Members’ Code of Conduct. Section 6 of the Measure gives the Commissioner functions to advise the Assembly on standards of conduct. A requirement to consider, in the annual report, how this function has been discharged would be of benefit.
Section 7. The detailed stages for an investigation set out in the Scottish Parliamentary Standards Commissioner Act 2002 have not been replicated, and this results in some useful flexibility according to the type of investigation in mind. However, investigations of complaints should indicate the seriousness of the offence. Therefore, the statutory restriction in section 7(4) on the recommendation on the nature of the sanction appears rather unnecessary.
Section 13. Restrictions on leaks of investigations are clearly required. However, the Scottish Parliamentary Commissioner has indicated that the statutory restrictions on his powers to publicise his work has caused practical problems in highlighting his work. The current drafting of this section is closely based on section 16 of the Scottish Parliamentary Standards Commissioner Act 2002. We would suggest that attention is paid to the drafting of this section, to ensure that the Commissioner is not inhibited in drawing attention to the general role and also specific points arising from investigations. This would enhance the accountability of the Commissioner to the public. Visibility is an important element in that accountability.
Sharing roles. The Public Services Ombudsman for Wales has set out the strengths of using its staff to support the Commissioner. It has to be recognised that the duties of the post are very unlikely to become full time, particularly as Ministers are covered by a separate Code. There are some difficulties in using Assembly staff to support the Commissioner, as at present, which are outlined in the consultation documents. We have supported the important of independent resourcing of constitutional watchdogs in our reports. For example, the Commissioner should have access to independent, external sources of legal advice.
However, it is important that links are retained, as the advice tendered by clerks on standards matters is relied upon by Members as authoritative. The experience of the Wendy Alexander case in the Scottish Parliament has laid bare the dangers of too great a separation between the functions of advice and investigation. Clerks need recourse to authoritative advice on the laws relating to party funding, as well as parliamentary codes of conduct. Above all, the system of investigation must be comprehensible to Members and in this sense 'owned’ by them.
Oonagh Gay and Barry K Winetrobe
(submitted in our personal capacities) 12 January 2009
