Part of the debate – in the Senedd at 4:33 pm on 8 April 2020.
Diolch, Llywydd. We reported on this Bill on 13 March and we made 12 recommendations, and, as the Minister has stated, she responded on 23 March. I welcome the acceptance by the Minister of recommendation 5 and the positive comments made in respect of our recommendations 4, 6, and 9.
I would like to make some general observations on the Bill, which has taken six years to prepare. It is a relatively complex Bill, and it includes 98 powers to make to make subordinate legislation. Now, many of the powers taken are justifiable, but we were concerned to hear the Minister say that many of them allow the Welsh Ministers to respond to future circumstances that could not yet be foreseen. So, we do not consider it appropriate for the Welsh Government to take powers to deliver policy that has not yet been fully developed or foreseen. We consider this to be a poor legislative practice. This approach provides too much power to the Government at the expense of the legislature.
Now, overall, the nature of many of the regulation-making powers taken in the Bill give the impression of it having been incomplete on introduction. This view is exacerbated by the clear intention of the Government to bring forward significant policy at Stage 2 of the legislative process in relation to prisoner voting, bypassing Stage 1. We note that the Minister has since provided draft amendments about prisoner voting in advance of the Stage 2 proceedings. However, this should not be seen as a substitute for Stage 1 scrutiny. The approach adopted circumvents the scrutiny and consultation with stakeholders that would have taken place at Stage 1. That the committee has to make such comments continually is disappointing, and we do so in order to ensure that legislation is properly and fairly scrutinised and good law is made.
I would now like to highlight three of the recommendations that the Minister has not accepted. The first, recommendation 2, relates to the need to introduce legislation that is fully formed on introduction. Section 18 concerns regulations to provide for a database of electoral registration. The Minister acknowledged the regulation-making powers were taken because of the lack of time to include information on the face of the Bill. We therefore recommended a superaffirmative procedure for these regulation-making powers in the first instance, followed by the affirmative procedure. The Minister rejected this recommendation, because it was not in line with the Welsh Government's legislation handbook on when to use a superaffirmative procedure. This, in our view, is not a strong or a persuasive argument, and I would ask the Minister to reconsider our recommendation. It would allow for more robust scrutiny of proposals that, by her own acknowledgement, would have been included on the face of the Bill if the Government's own timetable had permitted more time. Now, I recognise and welcome the Welsh Ministers' reference to guidance on good practice when putting forward their law proposals. However, our recommendation was based on our own analyses, which included the circumstances that gave rise to the provisions contained in section 18.
Recommendation 3 relates to section 26 of the Bill. Section 26 seeks to change existing provisions in the Representation of the People Act 2000. One of the key themes of the Bill is empowering local authorities and advocating decisions being taken at the lowest possible level. So, it is, therefore, surprising to see a provision in the Bill that permits the Welsh Ministers to direct a local authority to undertake a pilot electoral scheme against its wishes. It is even more surprising that a decision to issue an Order, as currently drafted in the Bill, would be subject to no scrutiny by the National Assembly.
The power in section 26 can be used to change electoral systems of a local authority, so this is not a minor or technical power. It could have a substantive effect on the political make-up of a local authority following an election, even if only for one set of elections. Any decision by the Welsh Ministers of any particular political party to use the power could, therefore, run the risk of being politically motivated and, therefore, contentious. Even if not politically motivated, this, certainly, could be the perception.
As we often highlight, it is important to distinguish how powers could be used by Welsh Ministers, rather than the intention of the Welsh Ministers currently in post when taking them. In the circumstances, we believe that the affirmative procedure should be applied to the making of an Order in question. The Minister's rejection of our recommendation on grounds that it is disproportionate is disappointing, given that the power is to be exercised without being initiated by a local authority, as is currently the case, and without scrutiny by the Assembly. In our view, this power does not sit comfortably in a Bill that seeks to empower local authorities.
Finally, I would reiterate our view that the regulation-making powers contained in section 109(2) of the Bill are too broad, and that, as we stated in recommendation 11, the word 'expedient' should, therefore, be removed from this provision. Diolch, Llywydd.