Commissioner for Standards - Richard Penn

Evidence To National Assembly For Wales’ Committee On Standards Of Conduct

Dear Mrs Hunt

Commissioner for Standards: Consultation on the draft Proposed Measure

Set out below is my response to the most recent consultation on the Committee’s draft proposed Measure to establish a statutory Commissioner for Standards. I am grateful for the opportunity to contribute, and in providing this response, I would refer once again to the written submission I have already provided, and to the oral evidence given at Committee on 20 October 2008.

In the most recent consultation the Committee asks for views on four specific points. I have responded to these points in turn below. However, I have also included in my response general views on some of the specific provisions contained in this latest draft Proposed Measure. I appreciate that this may be outside the four specific questions posed in the consultation, but I consider it appropriate to raise these matters.

Consultation Response:

A) Do I support the key provisions set out in the proposed Measure?

I have previously made the point that, in my view, there is no need for a Measure to give the role statutory status in order to facilitate the type of work the 'Commissioner’ has been doing for eight years. I can however, fully understand why there is a commitment to having this Measure.  

In terms of the key provisions contained in the draft Proposed Measure, I am happy to support these in general terms, but would offer the following comments:

• I am pleased that the Measure offers flexibility in setting the rules for the investigation of complaints (Section 7(1)). However, I am not sure that there is a need for Section 7(3) to be included within the body of the Measure - I think it would offer even greater flexibility for this to be embedded within Standing Orders or within the rules for consideration of complaints mentioned in Section 7(1)(b).

• Although I have never experienced any problem with Members, complainants or witnesses co-operating with any of my investigations, I accept that the proposed Measure provides the Commissioner with some 'teeth’ in this regard (Section 8).

• The Schedule offers flexibility in staffing arrangements and the provision of services needed for assisting in the exercise of the Commissioner’s functions.

• Section 15(1): I am not sure that this Section quite works in practice. The RIA - para 27 - specifies that the transitional provisions relate to investigations that have commenced under present arrangements. Under those arrangements, the Assembly does not receive complaints, they are made directly to the Commissioner who reports to the Committee only if the complaint proceeds to formal investigation. Also, under present arrangements the Assembly would not be investigating a complaint unless the Commissioner had already referred it on - it would not therefore be appropriate to refer such complaints back to the Commissioner.

B) Do I think the proposed Assembly Measure will achieve its overall purpose and aim?

Yes.

C) Do I think the estimated financial costs of introducing the proposed Measure, detailed in the Explanatory Memorandum, are accurate.

The estimated costs of introducing the Measure, as set out in the draft, are linked to the actual costs incurred by me as non-statutory Commissioner for Standards. I would anticipate that a statutory Commissioner’s remuneration and contracted hours of work may well be considerably higher than those I have enjoyed in the last eight years. The Measure also highlights the fact that the majority of these historical costs derive from the level of activity generated from the investigation of complaints, and I agree on that basis that it is not possible to provide a reasonable estimate of this aspect.

There are some other aspects of the Measure that differ from the current position - and which may incur some additional costs: the payment of reasonable allowances to witnesses (Section 8(c)); issues relating to staff and services (paragraph 6 of the Schedule). At this stage, I do not consider it is possible to provide a reasonable cost, but it may be something that might be flagged up in the Explanatory Memorandum.

D) Are there further provisions that I would like to see added to the proposed Assembly Measure?

I think a key responsibility of the Commissioner for Standards should be to promote standards generally and to help build the ethical framework of the National Assembly for Wales. As I have already mentioned, there is little mention of this within the proposed Measure, and I would like to see this side of the Commissioner’s work built in to the Measure much more overtly.

Section 6(1) states that the Commissioner may give advice to the Assembly (a) on matters of general principle; and (c) on any matter relating to the promotion of high standards of conduct in public life. I believe that the Commissioner should have the ability to provide this advice to individual Assembly Members, political parties, etc, and I am not sure this would fall under the definition of 'Assembly’ as set out in 6(1).

General Comments

The role has been referred to up to now as the Commissioner for Standards. I think the name of the Measure should reflect that to provide consistency, to become the 'Proposed National Assembly for Wales Commissioner for Standards Measure’.

Section 1(3) states that a person is not eligible to be appointed as Commissioner if they are, or have been at any time during a two year period, a member of staff of the Assembly. The Committee might consider it appropriate to extend this exclusion to include staff of the Welsh Assembly Government. Section 1(8) is also relevant.

My current appointment as Commissioner for Standards ends on 14 March 2009. I assume that the Measure will not be approved in time for an appointment to be made before that date and that therefore arrangements will need to be put in place for the interim period.

Richard Penn

Commissioner for Standards