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A proposal to disqualify dishonest politicians from the Senedd is wholly unrealistic and could see the courts inundated with complaints, barristers warned.

The Criminal Bar Association, which represents practising members in Wales and England, criticised calls to create an offence of deliberate deception.

Jonathan Rees, a Welsh barrister, urged real caution before making any changes made to the criminal law as he gave evidence to the Senedd’s standards committee.

He suggested the Welsh Parliament could instead expand the scope of the “tried-and-tested” offence of misconduct in a public office which is subject to important safeguards.

Mr Rees raised concerns about a model proposed by the Institute for Constitutional and Democratic Research, warning a new offence would put a huge burden on courts.

‘Infringements’

The think tank recommended disqualifying Senedd politicians and candidates from office for deliberate deception, to further the aim of restoring public trust in politics from record lows.

But Alex Greenwood, who practises regulatory and criminal law, warned the proposed model could infringe on longstanding rights under the European Convention on Human Rights.

He told the committee: “It fails to address, potentially, fundamental issues not just in terms of  European human rights case law but also natural justice and common law.

“There are fundamental issues … in terms of the reversal of the burden of proof, in terms of arguably infringements with the right to silence.”

Cautioning that crucial safeguards could be sidestepped or diluted, Mr Greenwood warned of the practical consequences of creating an offence with courts already struggling to cope.

‘Unrealistic’

He said: “The current backlog in the crown court is in excess of 67,000 cases – it’s the worst it’s ever been – and in magistrates’ courts, I think it’s in excess of 383,000 cases.”

Mr Rees added: “In many respects, it’s wholly unrealistic. It states that a key objective … is the need for swift justice. Well, the proposal they have then set out will not come anywhere near meeting that objective.”

The King’s Counsel pointed to examples including “fake claims” on chancellor Rachel Reeves’ CV and Labour’s manifesto commitment not to raise tax on working people.

He said: “We think it is entirely foreseeable that the courts … would simply be swamped, inundated with applications by voters of all political persuasions competing.”

Labour’s Lee Waters countered: “On the practicality point, that’s an argument for not bringing any more criminal sanctions in … I don’t deny the courts are swamped but I’m not sure if that should be the first basis on which we make law.”

‘Disgruntled’

Mr Greenwood said: “In reality, one only has to consider the number of disgruntled individuals reading today’s papers….

“But, more fundamentally, it is an entire departure from our present system which has a reviewing body to ensure only merited matters are put before the courts.”

Mr Waters said the paper’s model should not be treated as the last word, pointing out that it is only evidence to the committee rather than a firm Welsh Government proposal.

The former minister suggested it would be perfectly possible to address the witnesses’ concerns while departing from a system of self-regulation in the Senedd.

In July, the Welsh Government committed to introducing a ban before the next election.

‘Disputed’

Mick Antoniw, then-counsel general, the government’s chief legal adviser, said: “The Welsh Government will bring forward legislation before 2026 for the disqualification of members and candidates found guilty of deception through an independent judicial process.”

During the meeting on November 18, Mr Antoniw, now a member of the standards committee, reiterated concerns about the implications for parliamentary privilege.

Under the principle, parliamentary proceedings receive protection from legal challenge and Labour has committed expanding privilege in the Senedd to match Westminster.

Mr Rees agreed about the danger of politicisation, saying: “To introduce the courts as some sort of third-party arbiter of hotly disputed statements … would undermine the independence of the courts and, moreover …, would not serve the public interest whatsoever.”

He warned of a chilling effect on political discourse and freedom of speech.

‘Lack of rigour’

Responding after the evidence session, Richard Symons, of the Campaign Against Political Deception, said: “I understand that the statements made to the standards committee have not been approved by the Criminal Bar Association membership or its governing committee.

“So I make no criticism of the CBA. However, Mr Rees KC and Mr Greenwood didn’t appear to have familiarised themselves with the basic tenets of the Senedd standards system and admitted to not having read the existing code of conduct.

“They also failed to grapple with key legal principles (which one might expect criminal practitioners to know), such as that the courts have already found that similar measures do not breach human rights, 

“Any citizen can bring a private prosecution (so prosecutions don’t need to be subject to a “reviewing body”), the courts already have mechanisms to make sure claims are meritorious before they are heard in full, and the courts already rule on the truth of political statements.

“The disappointing quality of evidence was matched by the lack of rigour with which committee members queried it. Only Lee Waters seemed to question the shortcomings.”