COMMENTARY ON SECTIONS Section 10: Investigation of Complaints by the Commissioner
19.This section requires the Commissioner to investigate complaints, and to report on them to the Assembly (i.e. in practice to the Committee on Standards of Conduct) in accordance with Standing Orders and the Assembly’s procedures for investigating complaints. So, the Assembly retains control of laying down the basic rules relating to the handling of complaints. The application of those rules to individual cases will be entirely under the control of the Commissioner. Subject to the provisions of subsection (3) the Commissioner is to report on an investigation to the Assembly (i.e. to the Committee on Standards of Conduct). The Commissioner’s report is not to include any recommendation as to what sanction should be imposed on an AM against whom a complaint is upheld. That will remain the province of the Committee on Standards of Conduct and of the Assembly.
20.If, in the course of carrying out an investigation, the Commissioner becomes aware of any circumstances which give rise to issues of general principle or of general practice that may be relevant to the functions of the Clerk as principal accounting officer to the Commission, then the Commissioner must communicate those circumstances in writing to the Clerk. An example would be if an investigation by the Commissioner were to identify some systemic weakness in the controls which applied to the payment of allowances to AMs, or some lack of clarity in the rules relating to such payments.
21.The Commissioner must also communicate to the Clerk in writing any circumstances which, upon further consideration by the Clerk, could require the Clerk to take action under section 9. This safeguard preserves the Commissioner’s independence by ensuring the Commissioner is never required to instigate an investigation without first receiving a formal complaint under section 6 of the Measure.
22.The Commissioner may, in circumstances which will need to be prescribed in rules made under the Assembly’s Standing Orders, dismiss a complaint summarily, in which case the Commissioner will not report to the Committee on Standards of Conduct but will, instead, notify the complainant and the AM in question, giving reasons for the dismissal. The current rules (National Assembly for Wales Procedure for Dealing with Complaints against Assembly Members) empower the present non-statutory Commissioner to dismiss a complaint which the Commissioner considers to be inadmissible (paragraph 2.3 of the Procedure), for example if it is not made within a year of the date when the complainant could reasonably have become aware of the conduct complained about or if there is insufficient evidence to support a complaint.