11. & 12. Debate: The General Principles of the Welsh Elections (Coronavirus) Bill and The financial resolution in respect of the Welsh Elections (Coronavirus) Bill

Part of the debate – in the Senedd at 5:45 pm on 2 February 2021.

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Photo of Julie James Julie James Labour 5:45, 2 February 2021

Firstly, section 3 of the Bill shortens the dissolution period from 21 working days to seven calendar days. This will allow additional time for the Senedd to consider vital coronavirus legislation in the lead-up to the election. Were dissolution to take place as set out in legislation, Members would cease to be Members from 7 April, and our Senedd would be dissolved. It would be irresponsible to dissolve this Senedd for a whole month during a period of national crisis, when its scrutiny has been a crucial element of the response to the pandemic. It is at times of national crisis when the scrutiny of the work of the Government by the legislature is most vital.

The shortening of the dissolution period also provides that this Senedd is available to take a decision on any postponement of the election. It would be wrong to legislate on changes to the date of the election without guaranteeing that the Senedd itself would be able to make the final decision. Consequently, section 10 also modifies the time at which a person becomes a candidate in the election. This is currently tied to the dissolution period. The Bill decouples the two, so that a person will become a candidate at the Senedd election at the same time as they would have done had the Bill not proposed to shorten the dissolution period to seven calendar days. To mitigate for any delays to the count itself, section 4 makes changes to the post-election timetable, allowing an extra day for the first meeting to take place if there is any delay because of coronavirus.

The elections planning group made a number of recommendations to increase flexibility in the conduct of the election, and we have included these in section 10. Emergency proxy votes will be available to voters for a reason relating to coronavirus, meaning that voters will have additional options in the event that self-isolation prevents them from attending a polling station in person. The Bill also introduces more flexibility with regard to the delivery of nomination papers, and how a candidate can consent to nomination.

The most talked-about provision in this Bill is also the provision that we hope never to have to use. That is the new power for the Llywydd to postpone the date of the poll to a date no later than 5 November 2021, for a reason relating to coronavirus, as set out in section 5. In section 6, the Bill also prefers the Llywydd's existing power to postpone the election for up to a month for reasons not relating to coronavirus. Again, I would like to emphasise that it is our firm intention that the election should go ahead as planned on 6 May, and this provision is included only as a contingency option in the event that it is not safe to hold the election on the grounds of the risk to public health.

The Bill does not, in itself, make any changes to the date of the election. It only provides the ability to do so should it be needed. A postponement would be initiated by a proposal made by the First Minister to the Llywydd, who in turn proposes a new date to be put before the Senedd. A motion to postpone the election must have the agreement of the Senedd by a majority of two thirds of the total number of Senedd seats.

As a further safeguard, the Bill proposes a role for the Electoral Commission in relation to postponement. If the Llywydd or the First Minister requests, the Electoral Commission must provide them with advice on the matter of postponement. Similarly, sections 7 and 8 also address the issue of by-elections for the Senedd and for local government. They provide a power for the Llywydd to postpone Senedd by-elections, and a regulation-making power for Welsh Ministers to postpone local government by-elections.

Finally, section 12 confers a regulation-making power on the Welsh Ministers to make any incidental, supplementary, consequential, transitional, transitory, or saving provisions that they consider appropriate for the purposes of, or in connection with, giving full effect to the Act. This is necessary to ensure that, in the event of a postponement of the election, Welsh Ministers have the capability to make necessary arrangements for impacts that could not have been foreseen during the Bill's development. This power will also provide for practical arrangements such as dealing with candidates' deposits, the destruction of postal votes, and so forth, which can be dealt with by way of secondary legislation.

I was pleased to give evidence yesterday to the Legislation, Justice and Constitution Committee about the Bill, and I'm extremely grateful to the Members and officials, who managed to produce a report by lunch time today. I have considered the recommendations of the committee this afternoon, and I am pleased to accept the majority of them.

In particular, I can accept recommendations 8 and 9 on using the made alternative procedure, rather than the negative procedure, in respect of the regulations; and part of recommendation 4, which would place a requirement on the First Minister to consult the chief medical officer before making a recommendation for postponement. We believe that the provision with regard to the Electoral Commission is already sufficient.

Recommendation 6, which requires the Llywydd to make a statement explaining her decision in the event that she uses her existing power to vary the poll by up to a month, we accept this in the interests of transparency, even though there is not an equivalent duty on the Llywydd in a normal election. We will bring forward amendments to deal with these issues.

I'm sorry to say that there are a few recommendations that we are not in a position to accept at this time. In relation to recommendation 1, the Welsh Government does not publish its assessments of compatibility with human rights legislation, but we are satisfied that the Bill is within competence and does not breach the Human Rights Act 1998. I do not believe the sunset clause, as suggested in recommendation 2 is necessary. To the extent that the Bill requires time limits, they are already built into the text of the Bill.

And in terms of recommendation 3, the term 'appropriate' adds flexibility, and removing it would reduce flexibility. It is worth noting that the term 'appropriate' is also used in the Scottish Act. I consider that we should retain that flexibility in the Bill, given the unpredictable nature of the pandemic and its impacts.

In respect of recommendation 5, the committee's understanding, as set out in paragraph 65 of the report, is broadly correct. The Llywydd does have discretion to propose a date. However, it is the Llywydd who fixes the date, but only if the date is agreed by a supermajority.

In response to the committee's specific questions, the Bill does not make provision for whether or not a motion can be amended. Such provisions could be made in Standing Orders, and we have initiated a discussion with Business Committee about the procedures that may be appropriate. In the absence of specific provision in Standing Orders, the tabling and selection of amendments would be a matter for the Llywydd. If the Senedd does not vote in favour of a date proposed by the Llywydd, the Llywydd can, in principle, propose an alternative date. Again, provision about this can be made in Standing Orders. Proposing a new date would not require a fresh proposal by the First Minister. The First Minister's power relates to proposing that the election be postponed, not to the date. The Llywydd cannot fix a date for a postponed election under section 5, other than one expressly approved by a supermajority of the Senedd.

In response to recommendation 7, a section 116 order has been prepared—the Senedd Cymru letters patent and proclamations Order 2021—which is due to be made by Her Majesty in Council on 10 February. The Order includes a form of wording for a proclamation under section 4(2) and section 5(4) of the Government of Wales Act 2006. We propose that the form of wording can be used as a precedent or template for a proclamation under section 6 of the Bill. We would arrange for the proclamation to be published in the gazettes, and we would, of course, work with the Llywydd to draw the attention of everyone involved in the election to a change in the date immediately. My officials are in touch with the palace about this.

On recommendation 10, I cannot confirm the precise details at present, but the type of amendments I'm exploring relate to adjustments to how postal-vote applications are processed to minimise the rejection of such applications.

And finally, in response to recommendation 11, I can confirm that I intend to table an amendment at Stage 2 that would confer power on the Welsh Ministers to provide for additional voting days in the week before polling of the Senedd election, if the poll is postponed, and as long as the poll is not combined with the police and crime commissioner elections.

Also under consideration today is the financial resolution motion that has been tabled. The main costs in this Bill would arise in the event that the election is postponed. Our estimation of the costs are set out within the regulatory impact assessment, which is being laid before the Senedd alongside the text of the Bill. These estimations are sourced from figures for the election in 2016, published by the Welsh Government, and have been updated to current prices using the gross domestic product deflator series to arrive at the cost of 2021. The assumption in the estimate of these costs is a worst-case scenario.

Deputy Presiding Officer, I urge Members to vote in favour of both the Bill and the financial resolution to ensure that we all have options available to us in responding to the pandemic. Diolch.