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The standards commissioner criticised “clumsy” plans to make it a criminal offence for Senedd members and candidates to deliberately deceive the public.

Douglas Bain, who investigates complaints against Senedd members, raised concerns about clause 64 of the elections bill which would disqualify politicians for deliberate deception.

A key vote on the proposal on lying politicians, which is being spearheaded by Adam Price, Plaid Cymru’s former leader, will be held on Tuesday, July 2.

Giving evidence to the standards committee a day earlier, Mr Bain broadly agreed with the position set out by the Welsh Government which will try to remove clause 64.

He questioned why making a false statement should have such “draconian” consequences when other arguably more serious misconduct may not.

‘Troubled’

He told the committee: “I believe that that would be sending entirely the wrong message about how the Senedd regards bullying, harassment and inappropriate sexual behaviour.”

Mr Bain warned seeking to impose a fixed period of disqualification would have no regard for the seriousness or triviality of the deceptive statement.

He said: “It seems to me quite wrong that that should be dealt with and attract the same sanction as disqualification as a very serious case of false statement, which a member knew was false and caused serious harm.”

He added: “I’m also troubled … with the idea that making a false statement should bar a person from standing for the Senedd for four years in effect. As I understand it, that would mean they wouldn’t be able to stand at the next Senedd elections.

“I struggle to see how that can be justified.”

‘Clumsy’

Mr Bain pointed out that a false statement would be public knowledge, suggesting it is best left to voters to judge whether a candidate is fit to be a Senedd member.

He warned that if clause 64 is enacted, any complaint about a false statement would have to be suspended until the risk of prejudicing a police investigation or prosecution passed.

“That inevitably would lead to a very substantial delay in the complaints process and that I think is inherently undesirable,” he said.

Mr Bain, who was appointed in 2021, described the drafting of clause 64 as “clumsy at best”, adding: “And I think that’s being rather generous.”

He warned sub-clause seven would give “far-reaching” powers for Welsh ministers to change legislation although it would be subject to Senedd approval. 

‘Defect’

Mr Bain raised concerns about a lack of penalty provisions in the bill, saying: “That’s quite extraordinary to have an offence but there’s no penalty that the court can impose.”

The former barrister described the six-month window for bringing a prosecution as a defect.

He told members: “If it’s discovered six months and one day after the statement was made, that it was seriously false and deliberate, quite appalling conduct – nothing could happen.”

Mr Bain, who is based in County Down, Northern Ireland, criticised a lack of detail on what would happen if a politician appealed against a conviction.

“It cannot be right in my mind that if there’s an appeal going on that the disqualification should kick in,” he said. “If the person is successful, there’s no remedy.”

‘Black hole’ 

He pointed out politicians would be disqualified from standing for election to the Senedd but not the UK Parliament or councils: “There appears to me to be no rational reason for that.”

Mr Bain argued false statements should be dealt with under the existing Senedd complaints process, saying it would be much quicker due to a huge backlog in the criminal courts.

He was appointed acting commissioner in 2019 when his predecessor, Roderick Evans, stood down after Neil McEvoy, the former Plaid Cymru MS, secretly recorded him.

Mr Bain said criminal cases would be referred to the “political offences” unit at Crown Prosecution Service headquarters in London, leading to huge delays.

He raised the example of Mr McEvoy’s allegations against Sir Roderick appearing to “disappear into a black hole for a long time”.

‘Ridiculous’

Mr Bain criticised the “unfortunate” drafting of clause 64, which was added to the bill at a previous amending stage after Labour’s Lee Waters abstained.

He said the clause gives politicians 14 days to set the record straight, questioning what would happen if a person was on holiday and did not find out until the 15th day.

The investigator told committee members: “The way it’s drafted at the moment, they wouldn’t be able to avail of the defence which frankly is ridiculous.”

Responding to concerns about a “plethora” of malicious complaints and potential conflict with human rights law, Mr Bain did not think either would be an issue.

In closing, he said: “I just think this is an incredibly complicated approach to solving a problem that really isn’t there. To my mind, this can already be dealt with.”