The next item is the motion to annul the Local Government (Coronavirus) (Postponement of Elections) (Wales) Regulations 2020. I call on Suzy Davies to propose this motion. Suzy. 

Motion NDM7329 Suzy Davies

To propose that the Senedd in accordance with Standing Order 27.2:

Agrees that The Local Government (Coronavirus) (Postponement of Elections) (Wales) Regulations 2020, laid before the Assembly on 29 April 2020, be annulled.

Motion moved.

Diolch, Llywydd, and I move the motion. Thank you, everyone, for staying to listen to this. I just want to begin by making two things plain. The first is that these regulations protect various officers from liability for non-compliance with the usual legal requirements that govern the calling and conduct of by-elections. Those usual requirements were suspended by the Coronavirus Act 2020. These regulations now seek to extend that period of suspension and protection, and so they are important.

The second point I want to make is that there are similar regulations that apply in England that extend the period of suspension even further. That's not important, partly because my constituents in the Ogmore valley and central Swansea don't live in England, and partly because there isn't a Senedd election in England in May.

Now, there will be common criticism that applies to both these sets of regulations, but it's up to Members of Parliament to challenge those made for England. I would like this Welsh Parliament to fully understand these Welsh regulations, the purpose of postponing by-elections for a year or so, and then to ask whether we as the legislature think that that's a suitable way to deal with deferring local democracy.

Now, in my region, there are two casual vacancies: one in Castle ward, due to the sad death of the very well-respected councillor, Sybil Crouch; and one in Nantymoel, which is due to the imprisonment in early March of the less well-respected councillor, David Owen. The provisions of the Coronavirus Act 2020 came into force, disapplying sections 39 and 63 of the Representation of the People Act 1983 for the period 15 March to 24 April 2020. So, progress on those two by-elections was paused.

Those provisions ordinarily require a returning officer to order an election, fix a date and issue the necessary notices, and they render various officials liable to summary conviction for non-compliance with those requirements. So, protection for those officers against liability for non-compliance, which ran out on 24 April, did need repairing, and it's absolutely right that Welsh Government officials wanted to bring in new regulations swiftly. So, they still left officials vulnerable for a good 10 days, and managed to break the 21-day rule in laying statutory instruments again in the process of doing that, but, let's be generous, it was a very, very busy time; nobody got hurt.

But I've got to say that the instrument is full of errors: there are misreferences to this being an Order, not regulations; there are wrong dates in it; there are wrong sections referred to; there are references to provisions of the corona Act being limited to two years, without noting that these enabling powers—sorry, the powers for making these regulations—are an exception to that rule; there's reference to a Royal Assent, which is completely meaningless in this particular context. So, as a piece of law, regardless of intention, it is a mess and, on these grounds alone, perhaps we should be arguing that they should be annulled and a new set laid immediately—preferably ones that make sense.

But the main reason I'm asking you to consider annulling these regulations is that they're not proportionate. Law should always be proportionate, but that principle was confirmed, even though it needed no confirmation, in other corona regulations made just a few days later. So, that principle was definitely in the Government's legislative mind. So, I'd like to hear from Government what is proportionate about effectively postponing any by-elections from March this year to between February and April next year—what is proportionate about denying my constituents the opportunity for local representation for almost a year, or even longer, without public consultation? And can we remember that not all wards are multi-member wards? How were these dates reached, when Welsh Government only spoke to a few people involved in electoral law and co-ordination? Because their convenience does not outweigh the views of this Senedd and the people we represent. And I don't think it's a response to say that:

'Further views of stakeholders will be sought retrospectively on supplementary provisions' without saying who or what you have in mind. 

So, I'm asking this Senedd to think very carefully of its constituents and the democracy of which they're being deprived by these regulations without just cause and to annul these badly drafted and unnecessarily oppressive regulations. Let's ask the Government to lay new ones without the mistakes, with shorter periods of postponement, and accompanied by an explanatory memorandum that offers an explanation of why we need this length of postponement, and, if needed, to come back with another set later, and maybe even another set. But I'm just asking you to be sure that you're content to leave your constituents without representation for so long. Thank you.

I call on the Chair of the Legislation, Justice and Constitution Committee, Mick Antoniw.

Thank you, Llywydd. Am I clear to speak?

Yes, I can hear you. Carry on.

Diolch, Llywydd. The Legislation, Justice and Constitution Committee did consider these regulations on 18 May. In our report laid before the Senedd, which was on the same day, we raised one technical reporting point and three merits points, which we draw to the attention of the Senedd.

The technical reporting point related to the clarity of the effect of the regulations. The regulations are made using powers under sections 67 and 68 of the Coronavirus Act 2020. Under the regulations, a 'relevant election' means:

'An election to fill a casual vacancy for a county, county borough council or a community councillor in Wales'. 

The relevant period is the period beginning on 16 March 2020 and ending on 31 January 2021. Now, it was not immediately clear whether a relevant election would be subject to the postponement provisions in the circumstances where the ordinary statutory time frame for holding such an election were to fall partly within the relevant period and partly after it. At our meeting, we considered the Welsh Government's response to this point and we were content with the explanation provided to us that, if the date fixed by the returning officer for a poll falls within the relevant period, then the poll will be postponed, and, if the polling date falls outside the relevant period, it will not be postponed.

We also noted the Welsh Government is considering whether any further supplementary provision needs to be made under section 68 of the 2020 Act in connection with the regulations. As a member of the LJC committee, Suzy Davies did raise concerns about the regulations during our meeting 18 May, which were noted on the public record.

My group will not be supporting the motion to annul brought forward by Suzy Davies today. Whilst all of us hold democracy close to our hearts and will do all that we can to uphold democratic principles, we have to consider the wider context. Millions of people globally have been infected with a virus that has cost many lives and is spread by face-to-face contact. Our country is in lockdown. Lives are on hold and many people have lost their jobs and businesses have collapsed, and, for a lot of people in Wales, the future is uncertain. Measures taken have been necessary to stop the exponential spread of coronavirus. How, then, can we hold by-elections? And the answer is that we cannot in a safe or meaningful way. Elections in many cases require face-to-face discussions, public meetings, often necessary to make informed choices. Electronic voting alienates a percentage of the public, who are living in poverty and cannot afford computers, as well as those unable to use the equipment. Therefore, in just these two examples, people are not treated equally and may be unable to vote through this inequality. So, unfortunately, my group believes that elections at this moment in time should be suspended, and we will vote against this motion.

I call on the Minister for Housing and Local Government, Julie James.

Diolch, Llywydd. Elections are essential to our democracy and anything that impacts them should indeed be taken seriously, and so I'm very happy to have been able to hear the views of colleagues in the Chamber today. These regulations do two very important things: they postpone any by-elections that would have been held between March this year and January next year, and they protect those who organise our elections from criminal prosecution as a result of the necessary actions that they have needed to take to protect both the public and their staff. This means that any by-elections that arise between 16 March 2020 and 31 January 2021 due to a casual vacancy will be held between 1 February 2021 and 16 April 2021. The exact date of the election will be determined by the appropriate returning officer. By disapplying sections 39 and 63 of the Representation of the People Act 1983, we've also ensured that the actions or omissions of returning officers in relation to a poll that was due to be held but was postponed cannot result in criminal prosecution.

These regulations were made using the negative procedure, as that is what the Coronavirus Act 2020 requires. Section 67 provides the power to the Welsh Ministers to make the regulations and section 67(7) specifies the procedure that applies. It was also necessary to disapply the 21-day convention, as the Act only gave returning officers indemnity for the period of 15 March to 24 April. By disapplying the 21-day convention, it allows us to bring the regulations into force by 5 May, avoiding any unnecessary gap where returning officers could be liable for acting in the public interest.

At the time of producing these regulations, there was a great deal of concern from the electoral community about the safety of holding elections. On 18 March, both my UK counterpart and I wrote to the electoral community to give our full support to returning officers who needed to suspend elections before the Coronavirus Act 2020 came into force.

I do not take the postponement of elections lightly; these regulations have been necessary due to the unprecedented health emergency we're currently living through. It would be impossible to hold fair and open by-elections while there are significant health risks to the population. We would risk disenfranchising those in at-risk groups and be risking the health of voters, the candidates, the campaigners and the electoral staff. These regulations allow returning officers to choose the most appropriate date to hold a postponed election between 1 February 2021 and 16 April 2021. This period allows for a sufficient time to have passed for us to have a better understanding of the present public health emergency, and plan accordingly with the electoral community and within the existing legislative framework.

This is in advance of 6 May 2021, when the current police and crime commissioner and Senedd elections are due to take place. The Senedd and PCC elections being held on the same day introduces considerable complexity into arrangements, as they will be involved with two different franchises and voting systems. It would not be desirable to add postponed local by-elections to those complex arrangements, and adding the dates of February to 16 April when a by-election must be held is therefore necessary.

The UK Government is requiring postponed by-elections to be held on this date, but because of the complexities involved that I have just set out, this was not appropriate for Wales, and so our by-elections will be held earlier. Allowing returning officers to set the date allows them to use their expertise to take into account local factors to arrange the most appropriate date, and due to the urgency with which these regulations are needed, some of the technical detail of how this postponement will be managed has been left to a later set of regulations.

I wrote to the electoral community on 5 May setting out the reasoning behind the current regulations and what would be covered in the second set. These will include a number of issues, such as previously cast postal ballots, expenses and compensation for the suspended polls.

I continue to work very closely with the electoral community and other UK administrations on managing these suspended polls and ensuring elections can be held safely and fairly. Diolch, Llywydd.

Suzy Davies to reply to the debate.

Diolch, Llywydd. Can I just thank Caroline Jones and the Minister for responding to that, and particularly to the Minister for the reasons why elections won't be postponed until May? But, that's actually not part of what I'm arguing for anyway, but I'm grateful for the update.

Regrettably, though, both of you have missed the point that I was trying to make, which is not about introducing by-elections imminently or any sooner. I'm asking this legislature to be sure that the Government is making it plain to us about why they're delaying it arbitrarily, it seems to me, until February. There is no opportunity to introduce by-elections any more quickly than that, even if coronavirus were to end tomorrow, which, obviously, it's not going to be doing that. But, we are delaying something here for the best part of a year without any process at all being available to us to shorten that period, should it turn out to be the situation that earlier by-elections would be possible. So, just to reinforce that point: I'm not asking for earlier ones, I'm asking for Government explanations of why we have to wait a year from now, when we've had no consultation and no explanation as to how that particular period of time was reached. But, thank you, everybody.

The proposal is to agree the motion. Does any Member object? Yes, I can see objections and therefore we will defer the voting on this motion until voting time.

Voting deferred until voting time.