National Assembly for Wales

Welcome to this afternoon's meeting of the Legislation, Justice and Constitution Committee. We have a busy itinerary this afternoon, but before we start, just a reminder that this is being broadcast live on Senedd.tv. The Record of Proceedings will be published as usual. We have apologies today from James Evans, our regular committee member, but an excellent substitute, who used to be on the committee before, Peter Fox. I'm delighted that Peter can join us as a super-sub off the bench.

As per normal, we are not expecting a fire alarm today, but if there is one, please follow the staff and the ushers to the fire gathering point, and if you could just make sure that your mobile devices are switched to silent. No need to mute and unmute your devices in front of you; they'll be done for you—they'll work for you.

So, with that, can I welcome the Counsel General and Minister for the Constitution, Mick Antoniw MS, in front of us today? Also, we have Michael Kay, deputy director of the elections division, Welsh Government, and Gareth McMahon, senior lawyer, Welsh Government. We are scrutinising, from this committee's perspective, the Elections and Elected Bodies (Wales) Bill. Thank you very much for being with us. Are you happy if we go straight into questions?

I am indeed.

Thank you very much. First of all, the obvious question: are you satisfied that this Bill is within the Senedd's legislative competence?

The answer is 'yes, I am'.

Thank you very much. Let me turn to the development of the Bill. We note that a consultation took place in October 2022, alongside a White Paper. Can you tell us what changes have been reflected in the Bill since the conclusion of that process and why those changes have been made?

Yes, what I can say is that the consultations that took place, through the White Paper, engaged with all of the key parts of the Bill—they were within that White Paper and, I think, have now appeared within the Bill itself. There were certain areas that we've had to reflect upon. One of them was one of the areas with regard to the establishment of an all-Wales database. For practical reasons, I think, we've decided that that is a step too far at this stage, bearing in mind where we are in terms of the technology. The engagement took place with, certainly, all of the niche and key electoral bodies that you'll be familiar with—the Association of Electoral Administrators, Wales Electoral Co-ordination Board, Electoral Commission and so on and so forth.

Thank you for that. You mentioned there that you've focused on certain areas, certain parts of the Bill in your consultation. I wonder whether you can just expand on that, Counsel General, and, perhaps, tell us why you didn't consult on a draft version of the overall Bill.

I think because, after the work that was done, the Bill itself, in terms of policy areas, is actually very, very narrow, isn't it? It's about automatic registration and the establishment of a statutory electoral mechanism. Much of the rest of it is to do quite technically with the process of administration of elections. I don't know whether, Michael, you want to add anything on that consultation.

No, I think you've covered the main point. As you say, we've done a lot of extensive engagement with specialist organisations on the detail of the Bill. The broad thrust of the policy propositions were in the White Paper, and those that required primary legislation to take forward that we saw had support in the consultation have been taken forward in this Bill.

Thank you very much. Adam.

Yes.

We had a mixed response on that point in our consultation. There was a feeling from returning officers that there was sufficient requirement on them for the use of the Welsh language. We're also conscious that we're operating in a mixed system here, where returning officers will be wearing a different hat for reserved elections to what they will be for devolved elections, so there's a difference in that aspect of it. But the short answer is that it doesn't require primary legislation, so it is something that we could look at taking forward in subordinate legislation in the future. We wouldn't need primary legislation to place a requirement on returning officer to abide by Welsh language standards.

Yes.

Diolch, Adam. Peter, over to you if you want to take us into the Elections Act 2022.

Yes, thank you, Chair. Good afternoon, Counsel General. How has the Bill and the Welsh Government's overall policy been affected, if at all, by the UK Government's Elections Act?

We had quite extensive engagement through the interministerial group on elections when the UK Government's legislation was going through. As you know, the area where there was a lot of disagreement was obviously over the use of ID cards and some of the administrative processes that were there. The position that we came to between the four nations—or, really, the three nations because of the Northern Ireland situation—was that we were going to introduce our own legislation in respect of non-reserved elections, et cetera, and Scotland were, obviously, doing the same thing, and then the UK Government elections, for the Westminster elections, would obviously go in their particular direction. So, we shared that information and we very respectfully disagreed with one another in terms of aspects to it. But what we did have were a number of common areas that we were engaged in, and they were things like undue influence, third party campaign finance and some issues around accessibility with disabled voters. And those have been incorporated into this legislation, so there will actually be a certain degree of consistency around that.

There were some areas—relatively minor areas, but nevertheless significant ones—where there were disagreements in terms of what the competence situation was. There were some concerns over that. So, the areas that that related to were intimidation and digital imprints, and those are ones where consent was then given by the Senedd. We felt that the ones—. I apologise, I've got a croaky throat, probably from doing too many talk sessions. So, there were a couple of areas where the policy divergence wasn't very great and, in the end, those were ones where the Senedd agreed that there should be legislative consent.

Yes. Thank you for that. It's great that there have been quite productive discussions, so that's helpful.

I can tell you as well that the inter-ministerial group on elections is actually continuing, and, from engagement we've had with UK Government Ministers, they're interested in our legislation. They will, of course, have seen the draft of it. And we have a further one of the inter-ministerial group meetings coming up within a couple of weeks' time as well, where we will be sharing what the developments are around that. Because, of course, even some of the issues of the UK Government Elections Act are still ongoing—the issue of online voter registration.

Yes. Thank you. In 2021-22, the Welsh Government laid legislative consent motions in relation to the UK's then Elections Bill, which we know is now the Act. In the first LCM, you said that proposals in the Bill may have merit and a case for implementing them for devolved elections. Which provisions did you identify in that Act to be of benefit to Wales, and how have you adapted them, if at all, to meet Welsh needs and priorities?

The main ones, really, were in the area of undue influence and some areas of accessibility, and so on, which we've incorporated into this Bill as well. And the other ones where we thought there was merit in them, it was a question as to whether we could do it within our own Bill, or whether it should go in the UK Government's legislation, and those were over the things like digital imprints. As I said, there wasn't a disagreement in terms of the policy objective; it was just a question of where it best went in. I think those were really the main areas. I don't know if there are any others, Michael.

I think you've already mentioned campaign finance, which is another example where one of our principles for electoral reform is simplicity. There is benefit in having a level playing field so that campaigners and administrators can have a level of predictability so that people don't fall between the gaps of expectations between a devolved and reserved election.

Okay, thank you. In the first LCM of the Elections Act, you raised your concerns in relation to voter ID and about the potential unintended consequences, such as voter and candidate confusion and the added complexity for electoral administrators. Chapter 2 of the Bill introduces electoral registration without the need for application. In a similar way, do you think that these provisions could also cause voter confusion, in that the automatic registration will only be for Welsh elections, and not UK elections, and what steps are you taking to ensure that the law being made will be clearly understood?

I don't think they cause any more confusion than the changes that were made by the UK Government's Elections Act caused. Where you have differing devolved responsibilities from the UK Government and us, I think the question is how you actually manage them, how you actually communicate them. What I do notice, for example, as the registration process is ongoing now for the general election, whenever that happens, I notice how local authorities, for example, have done that and they've explained to people that there is a requirement for voter ID, but that that doesn't apply to Welsh Senedd elections. I think there clearly will be an issue when we get to 2026, if this legislation is passed and we have the Welsh elections. Again, there will be a communications challenge, I think, in terms of explaining to people that you don't need to have voter ID, there are no restrictions on it.

There may be certain other issues that emerge with regard to online voter registration. We're in discussion with the UK Government on that. Just to explain that, that was a situation where we weren't able to go with the UK Government's proposals on voter online registration, because, again, as with voter ID, there was a whole series of restrictions that we felt were inappropriate. The UK Government has now dropped those that were under discussion; it's more a question as to whether there is going to be time for legislation. We'll see that imminently over the next few weeks or so, whether there are developments there. I don't know if that answers that.

Yes, I think so. Thank you.

Diolch, Peter. Adam, over to you, then.

Human rights normally form part of my competence assessment, both in respect of the Bill and, indeed, subsequently, once legislation is passed, in my role as Counsel General. We don't consider that there are any significant human rights issues. It does engage with article 10, which is to do with the issue of freedom of expression, freedom to communicate, but that is a very qualified right. It's one that has been tested before in the European Court of Human Rights, and so we're satisfied, though, that this is not only necessary, but it's also very much proportionate. So, I don't think there are any human rights issues that we should be concerned with. Of course, if the legislation is passed, it would be for the Llywydd, as well, to also carry out a similar competence assessment.

I mean, we’ve looked at that. I don’t think that there are any real concerns that we have on that. It replicates provisions that are in the UK Government's Elections Act 2022 with regard to reserved elections. As I said, it's a matter that the ECHR has considered in the past, and I think, when the ECHR did look at this, they basically considered the issue of third-party expenditure and restrictions on it, or controls over it, to be something that was a normal part of the regulation and the conduct and the organisation of elections. So, I think we're confident that it is something that is very much proportionate in terms of the article 10 qualified rights.

I don't think they do. I think the way we've framed the legislation as well, you'll see that, if someone is automatically to be added to the register, what first happens, before they are added, is they will be sent a letter; they'll be notified that the intention is to add them to it. They will have 45 days then within which to object, or alternatively to say they come in one of the other protected categories; that is, a category whereby people for particular reasons need to have anonymity, the safeguarding proposals that are there, but anyone who wants to object to being automatically added can do so and then they won't be added. What will happen is they then, of course, then go back into the normal paper system of paper registrations, which in fact is a sort of mandatory requirement. So, I think, because it is completely voluntary in that sense, that no one can be forced to be on it—I don't think that causes any problems. I think, even if that didn't exist, it would still be meritous to do that, to hold that register. What it doesn't do, of course, it doesn't oblige or require or force people to use up that entitlement to vote.

It's certainly an interesting question. It's a very specific question in terms of the extent to which you can define the various forms of undue influence or interference with elections or harassment that are there. What we've done is taken the undue influence element in order to have a certain amount of conformity, but it's certainly possible to look at other areas, in terms of the elections, where further regulations are required. I don't know, Michael, whether you have anything further you can add on that?

Just two short things. So, in the White Paper, we mentioned about campaign safety measures and what further support we might want to put in place. So, obviously, that's not the only part of under-representation of women, but it's something that we're looking at doing more on, and some of that will be in the finance regime. Some of it, it may be in regulation, but it's more likely to be other ways of action. Section 28 of the draft Bill obviously has the services to promote diversity in government, and including local government, so, there are compulsions on Welsh Ministers there to make sure there are schemes or mentorship in place with regard to protected characteristics. So, there is scope to do more in that space to promote women. In terms of what can be put in place to police the tone of politics, I think that would be something I'd want to talk to lawyers about, what options would be available to us.

Thanks, Adam. Alun.

Could I look at the question of the delegated powers that you are taking in this legislation? Since it's your Bill, Minister, I assume that you're content with the balance that exists in the Bill as published.

I am. I mean, it is a Bill that has quite a lot of delegated powers in respect of regulations; that, I think, is there because there are quite a number of areas that are really to do with pilots, the process, the organisation of elections, codes of conduct and things like that. Some of the powers in respect of regulations, of course, are more curtailed, particularly in some areas where, I suppose, it relates to the creation of offences and so on. So, I am satisfied, but I do think this is quite different to some of the policy legislation that will often come forward to various committees in the Senedd, because so much of it is quite technical and is quite to do with the organisation and the processes for the running of elections.

I appreciate that, Counsel General, and I'm grateful to you for that response, but, in terms of how these technical matters, as you describe them, are taken forward, might it not be useful for us to understand on the face of the Bill how you expect to exercise the powers that you're taking? If you look at the pilots you've just referred to in Part 1 of the Bill, there's very little there that actually describes those pilots in any real detail. And also, then, in section 27, in relation to a Welsh elections information platform, now, I think I know what the Government means by it and I'm sure that everybody in the committee has a view on what they think the Government means by it, but surely we should have something in writing on the face of the Bill that actually describes that in more detail.

I think there's a difficulty in trying to define what those pilots, for example, might be, particularly ahead of the 2026 election. I've stated in other committees—I'm not quite sure whether I've stated it here before—that our only intention in terms of pilots before 2026 is in respect of automatic registration. But, of course, one of the consequences of the election is that there are then a number of reviews that take place in terms of the assessment, and, depending upon those reviews, there are things that will be learnt in terms of what pilots might be—you know, what might be the recommendations in terms of pilots—as well as the sorts of developments that take place in respect of the ongoing changes in technology, innovation and so on. So, I think it's probably difficult to be more precise than that. What is important is establishing the principles within which, and the process by which, pilots can actually take place to ensure that there are certain protections there and the balance of those is right in terms of scrutiny and accountability of those, particularly where necessary and particularly where more fundamental changes might take place. Michael?

No, I think you summed it up nicely, Counsel General. I think, ultimately, the purpose of this is to make the framework clearer for the future of how to go about pilots, how to engage the Senedd in agreeing to those in a way that's slightly clearer than existing legislation in relation to pilots. The Counsel General has been clear that the only pilots we're envisaging at the moment—so, the only ones that we could actually detail more—are around automatic voter registration, but there may be other issues in the future, which would be piloted beyond the current administration, for example.

But the legislation, of course, gives you the right to do far more than that single pilot.

It does, but we've committed to not doing anything more than that pilot.

I don't have any disagreement with that. I understand that. But the legislation, of course, allows you to do a lot more. And I recognise the force of the commitment made by the Counsel General, but, as somebody once said, Ministers come and Ministers go. If the legislation is there, that can be used to do many other things in the future that aren't envisaged either by this Government or this Minister.

I think the problem is that it is very difficult to be precise about what the nature of pilots might be. There may well be, from the post-electoral review, recommendations that are made, either by the Electoral Commission, either from the various other sources, from Welsh Ministers as well, that certain things could be done, and those would form the basis of pilots. To try and identify those now and to try and identify what the technological aspects to them and advantages might be, what innovations there might be, I think would be extremely difficult. I think this is an area that's work in progress, and I think that's why the legislation focuses on, essentially, the mechanisms for scrutiny and accountability, particularly where pilots might lead to recommendations that make more fundamental changes.

Such as?

Well, fundamental changes to, you know, the time period of elections, how often elections should take place, what might be the format in which the automatic registration takes place, or the actual scope of qualification for elections and so on. I mean, it's difficult to be precise about what they might be. There might be one that basically leads towards a recommendation that would say, for example, the penalties ought to be increased, the criminal penalties, whether it be for undue influence or what the disqualification processes might be. Those are things that would be more fundamental, and you would expect, then, those things to have very specific scrutiny, and of course that sort of scrutiny is actually provided for within the Bill itself.

Diolch. Adam. Come back in, Adam.

Yes. Just to continue on a theme, then, would it be possible to use these powers to change voting from a Thursday to a Sunday? Would it be possible to introduce online voting, voting by mobile phone, voting in supermarkets and other places, and, indeed, a very, very fundamental change, which we've discussed before, which would be moving to a system of universal civic duty voting, sometimes called compulsory voting?

Leaving that last one for the moment, on all the other ones I think the Bill is designed in a particular way that is very specific. We do want to see how technology can advance the ability to participate in elections. You'll be aware, of course, we had the pilot on, really, the technicalities of how you can vote on different days. The digitalisation of the electoral register enables other things to be done. And I think it is a reasonable objective, at some time in the future, if we can do it robustly and safely, to have online voting. All those are things that are possible in the modern age. We're not quite there yet. On the other issue, in terms of compulsory voting, I think that's something that would require, probably, I think, very specific legislation, or certainly the enhanced superaffirmative scrutiny would be required in order to achieve that.

But, legally, you could—. I understand that the politics of it might proscribe other approaches, but a pilot could be held, could it, for universal voting, using this legislation?

I'm not quite sure how you could introduce a pilot for compulsory voting without actually overcoming all the hurdles that will exist, whether it be human rights issues that would need to be considered, and also the legislative mechanics that will be necessary for that to happen, because you would then need to create additional criminal offences or penalties et cetera in respect of that, quite possibly. Michael. Oh, sorry, Gareth.

Counsel General, these powers do allow you to use pilots to create additional criminal offences, don't they, because that's why you have the affirmative procedure referred to in your—

Yes, there is a process there that would allow changes to the criminal provisions that are there. That's at the scale of sentences that are there. Sorry, Gareth?

Yes, can I just clarify the response to that last question that you asked about mandatory voting? Section 5(3) of the Bill sets out the things that can be piloted by Welsh Ministers through regulations in the future. You talked about changing the day or the place. Those are things that clearly would be caught by section 5(3). I don't think imposing a duty to vote would be something that would be caught by section 5(3), so it would fall outside the scope of the powers.

In terms of the criminal offences, there is the power, as you've spotted—I think it's section 5(6)—that allows the regulations to create or modify or remove criminal offences, but there are restrictions on that, and you can see that in subsection 7. So, the restrictions are such that you could only impose or create a modifying offence that has a sentence of less than a year on indictment, or, currently, six months on a magistrates' court conviction. So, there are some constraints on how that power can be exercised.

Okay. That's helpful, thank you.

Thanks, Adam. Before we go on to Peter, could I just ask, very, very quickly? The statement of policy says in one place that Welsh Ministers may decide who the best organisation is for the platform, and, in another place, it says,

'it is envisaged the Electoral Management Board would take forward the Welsh Elections Information Platform.'

If it is going to be the electoral management board, would it not be simpler just to specify this on the face of the Bill?

Well, I think the point is that the intention is that the electoral management board will be the body. Whether that is the case in the long term, it depends what lessons you learn first on, whether there might be other options in terms of that platform being organised on an all-Wales scale, and whether the EMB might be the appropriate body. At the moment, there's no reason to think that it wouldn't be, but there is that flexibility in terms of what might happen in the future, what recommendations might come from the post-electoral scrutiny.

Okay, thank you. Sorry, Alun, go ahead. 

This conversation could take a while, because every time the Counsel General answers a question another question comes into my mind. The pilots that you've described in answer to earlier questions, I assume that there is no legislative or statutory requirement needed in order to change the methodology of counting votes. So, for example, the Welsh Government could introduce electronic counting without the need to change the law.

Well, I'd have thought that would be a matter for the new commission and the electoral management board to actually look at. So, if there were proposals there saying, 'This is how the counting system could best operate', I would have thought that would be something that would be the subject matter, potentially, of a pilot, and certainly there would need to be recommendations coming from the Electoral Commission, I suppose, on how those things might be operated. Michael.

The rules for the counting are obviously in the local government rules or in the conduct Order for the Senedd elections. I think we could change them to electronic counting through that secondary legislation, by making sure that secondary legislation was in place to provide for electronic counting. But I don't think we'd need primary legislation for that.

Okay. Could you drop us a note on that, please? I think that would be useful.

There we are. Thank you very much. Peter.

Yes, if I could also pick up on the piloting side of things. Regarding some piloting, you suggested that you didn't think it could give way to compulsory voting. Wouldn't it be sensible then, on the face of the Bill, to clarify exactly what the criteria for piloting is, so that there isn't any ambiguity around those elements, or is there a reason why they're kept vague?

Well, I think the answer is that I think they are actually within there. If you look at section 5, which sets out the 'Pilot regulations: powers', then there's quite a series of requirements in terms of how pilots would be regulated—section 7, 'Pilot regulations: procedure' and so on—and also, then, the scope that could take place.

I acknowledge that, but on that one specific point, which is quite fundamental, that Adam made, would it be sensible to have that identified in the scope of what's outlined there?

Well, I don't think you need to, and the reason why is because section 5(2) says that a set of pilot regulations can only make provision about matters that relate to a relevant electoral matter, and that's defined later on in the section, and that definition doesn't include something like mandatory voting. So, that's why I don't think you would need to do that. And if you did do that, it would beg the question: well, what else should be added?

Okay. Thanks for that. I'm going to move on, if I could, to electoral administration and regulation, and I've got two or three questions around certain sections, so they're quite technical, so I will just go through them. Section 1 inserts new sections into the democracy and boundary commission Cymru etc. Act 2013. Section 20E(3)(c) allows the Welsh Ministers to confer functions on the commission to be exercised by the electoral management board by regulations. What is the purpose of these functions, and why does no information about them appear on the face of the Bill?

Well, I think the purpose is to, basically, give Ministers the capacity to confer functions on the electoral management board. 

Just to elaborate a little bit further. The power that you're referring to is a bit of a technical mechanism, really, to ensure the appropriate division of work between what is going to be the Democracy and Boundary Commission Cymru and the EMB. The EMB will sit within the commission, and it will, essentially, be ring-fenced. It will only be able to undertake certain functions. And the purpose of that power is to add certain things to the list of things the EMB can do, which otherwise the commission would be doing.

Okay. Moving on to section 2, then, of the Bill. It makes consequential amendments to the 2013 Act, including a power to limit the scope of any direction so as to prevent the Welsh Ministers from issuing directions in relation to the commission’s electoral administration functions under Part 2A, or its functions relating to the Senedd constituency boundary reviews under Part 3A. Why have you decided to limit the scope of such directions?

Well, I think the purpose is to protect the independence of the commission itself, and I think that's what they actually do.

That's absolutely right.

Okay. Fine. Section 3, then, of the Bill omits section 18 of the Local Government and Elections (Wales) Act 2021, which contains provision that has not been brought into force regarding registration of local government electors without application. Why was section 18 of the Local Government and Elections (Wales) Act not commenced before its proposed repeal in this Bill?

The section 18 that you're referring to, which is in the Local Government and Elections (Wales) Act 2021, was a very narrow piece of legislation. It gave a power to do something, but it didn't have any detail in terms of how that might be operated. What this Bill actually does is just put more flesh on the bones of that. It actually gives a lot more detail in terms of, for example, how auto-registration would take place. So, the section 18 was basically just giving a power that, yes, you can auto-register, but it doesn't have the detail that we have here in terms of automatic registration, the 45 days' notice. What I think this Bill does is give much greater clarity and also further information about the safeguarding aspects of the Bill as well, none of which were in the 2021 legislation.

Okay, and you'll be pleased, the last from me. In the explanatory memorandum, you state that you will be removing the open register in Wales for Welsh elections as a safeguard against potential privacy issues arising from section 3. You said in evidence to the Local Government and Housing Committee that you would do this through regulations enabled by this Bill. But in your letter of 15 November, you said that you would do this through powers under section 53 of the Representation of the People Act 1983. Could you clarify which power you will use to remove the open register, and when will you use this power?

I'll check with Gareth in a minute, but I think the—. The power, correctly, I think, the first citing wouldn't be regulations in that sense. The power emanates from section 53 of the Representation of the People Act, and that's where I think there was probably some confusion in my earlier answer on that, which has now been clarified, hopefully, by the correspondence. Gareth, is there—?

No, I think that's it.

Yes. Okay. That's all from me then, Chair.

Thank you. That's helpful. Just before we pass on to Alun to take us on a little bit, can I just return to the issue of the electoral management board and choosing not to put it on the face of the Bill? You've explained that it might be because it might not always be the go-to organisation; there might be something else, and renaming, I don't know. Have you got something in mind already? Because it just strikes me that as we're taking through a piece of primary legislation, you're clear in your mind what that organisation will be right now, but a reluctance to put it on the face of the Bill.

There's nothing in place other than that when you're in an environment like we are, where you've got fast-moving technology, continual change year on year, you just don't know what the recommendations might be for the future or what the recommendations or what the views might be from the electoral management board. They might come up with proposals themselves. So, basically, there's nothing in mind as far—. The only thing we have in mind at the moment is that the electoral management board that is being created is being created, and that is one of its very specific purposes, but there might be opportunities. There might be a better way of doing things, so it's just to build in that possibility and that flexibility.

That's great. Thank you. Alun.

Okay. Just to pursue a previous questioning theme, in terms of section 6(2)(b), you allow regulations to be made in relation to a principal council's area, but without their consent. In which circumstances do you envisage using this power?

I think it's something that we wouldn't envisage happening regularly. It might be, for example, if they wanted to have a pilot that was an all-Wales pilot. What you wouldn't want is for it not to become an all-Wales pilot because one local authority didn't agree. Or it might be, if you look now at the Senedd constituencies, where you may have several local authorities within that, it's just basically to ensure that that can happen on an all-constituency basis. So, it's a power that I would expect probably never to be used, or very rarely to be used—'in extremis', I think, would be the legal phrase. But it's there just in case it became necessary to do so, to facilitate being able to actually hold these comprehensive pilots.

Okay. I think the committee's always worried when Ministers say that they're creating powers that they don't ever envisage using. The question that screams back is, 'So, don't take that power. Why would you want that power?', but I won't follow that particular path this afternoon.

But, in terms of the powers that you are taking, section 7(5) would appear to introduce the ability for regulations modifying primary legislation to be made by the negative procedure. Is that a correct interpretation?

Can you just repeat your explanation again of the—?

Section 7(5) would appear to introduce the ability by regulation to modify primary legislation.

Yes. I think there are different processes in terms of what would have to be done for that to actually happen. We're thinking particularly in terms of where something is being done without the consent of a local authority as well, for example. I'll go to Gareth.

The answer to the question is, yes, you could amend primary legislation using these pilot powers and it would be subject to the negative procedure, if it didn't otherwise fall within any of those categories in subsection 4. But I think the point the CG makes about the broader scrutiny and accountability process that would happen prior to those regulations being made is an important one, because it would involve the EMB and the Electoral Commission, who would be considering the proposals.

You're using the conditional tense quite a lot in that answer; I'm not sure that it's very reassuring, I'm afraid. But in terms of taking this forward, Counsel General, you've been very clear that if we're making changes to primary legislation, that should be done through at least an affirmative process. You've been quite clear about that throughout your time in office.

Yes. And I think that's set out fairly clearly in section 7(4). If you look at categories (a), (b) and (c) of that, both with auto-registration for a council that hasn't given consent, or for creating or widening the scope of a criminal offence. So, there are certain criteria in which it shifts from being negative to a very specific affirmative process, and, again, in terms of the laying of the statutory instrument and any specific recommendations that would come from the commission itself to enable that to happen.

Thank you, Alun. If we could turn, then, to the power in section 8, we understand that this could be potentially used to widen the existing delegation of power in section 5 from the Senedd to the Welsh Government. So I think the obvious question is how do you justify this. 

I think it's essentially about enabling the Welsh Ministers to modify it in order to make the pilots more effective. I know this is something that was looked at quite closely. Michael.

I think that's Gareth.

It goes back to what we were saying earlier about section 5(3). Section 5(3) has sought to define some of those areas where piloting might happen in the future. The purpose of that power in section 8(1) is to add further matters to that list in the future, if there was the policy intention. If a new idea came out to pilot, then there would be the option to add to that list in the future. But, of course, those regulations would be subject to the affirmative procedure.

Thank you. Section 5(6) specifies that pilot regulations can create, remove or modify offences that could, on conviction, lead to imprisonment of up to one year. Could the power in section 8 be used to widen the power to create electoral offences?

No. The power in section 8 is used to add to the list in section 5(3); it wouldn't be used to widen criminal offences.

Thank you for that. If I turn, then, to section 19, which enables Welsh Ministers to introduce permanent changes similar to those trialled in a pilot scheme, which you've touched on already, Counsel General. However, section 19(7) states that electoral reform regulations may confer, remove or modify power to make subordinate legislation. This is a very wide power that you're taking, so how can you justify that power being used to expand existing delegating powers under the Bill?

The power there is limited to the powers of the pilot and its scope, but it would be subject to the superaffirmative process, and I think that is set out in section 20 of the legislation. There's a whole series of conditions that are set there as to how that might actually happen. So, I think that protection is built in to the legislation itself. Perhaps, Gareth, you might have something to add. 

I think just the one point to add is that this kind of power and the scope of the power reflects the state of electoral law. There's a significant volume of electoral law that is in secondary legislation already. Just to give an example, we spoke earlier about section 53 of the Representation of the People Act 1983—that's the power that's used to make provision about how registration should be operated. Accompanying that power is a very prescriptive Schedule, setting out how the power can be operated. It's foreseeable that there could be a pilot and, as a result of that pilot, we need to make amendments to that power. That's the reason why it's there, and it just reflects the state of electoral law.

Thank you for the explanation. Adam, back to you.

I think it's the flexibility of change that needs to take place from time to time. What is important is not so much the ability to make the changes but what the checks and balances are on the exercise of those particular powers. As I've said already, those are very well specified within section 20 of the Bill. It not only provides condition but also sets the time period and also a duty on Welsh Government Ministers to have regard to, for example, the scrutiny process and the recommendations that are made.

Yes. 

I think because it forms a specific function of the Electoral Commission. The Electoral Commission of course is accountable to a very specific committee, isn't it—to the Llywydd's Committee—as well. So, that is an important check and balance on that as well.

I think you're right to draw attention to the fact that the Electoral Commission will obviously do the evaluation of any pilot that would take place, so it makes sense for them to be satisfied that a permanent change would be appropriate. I don't know if there's anything Gareth would want to add. No. 

They were certainly very controversial proposals, weren't they, in terms of the extent to which Parliament could change or set the framework within which the Electoral Commission operated. Those raised serious concerns about the extent to which it enabled, I suppose, a political interference. I can't remember what the outcome was of those; I think they might have been withdrawn in the end. I'll ask Michael in a minute to add to that. But in terms of the functions we have, well, of course, we fund separately the Electoral Commission in respect of the work it does, and the accountability aspect is to the Llywydd's Committee. So, that framework does not apply in respect of Welsh elections. But, Michael, you probably know more about this than I do.

I think there are just a couple of points to add. Earlier questions related to the two LCMs that we had in relation to the Elections Bill at the time. In between those two, there were quite a lot of changes to the Elections Bill to carve out devolved functions. The strategy and policy statements for the Electoral Commission was one of those areas, where it was clear that the strategy and policy statement that the UK Government would introduce wouldn't be in relation to the Electoral Commission's role in relation to devolved functions. The Counsel General wrote to the UK Parliament committee that was scrutinising this to outline that we don't see any need for it in Wales, because we're comfortable that the Electoral Commission operates properly in relation to its devolved functions, and, indeed, to reserved functions. There is a good degree of internal separation between when they're facing devolved responsibilities and when they're facing reserved responsibilities. That doesn't mean that we only deal with the Wales-based team; the UK-based team do look at what is happening in Wales. The evaluation of our pilots last year was carried out by the London-based team. So, we don't have a concern in relation to the Electoral Commission's ability to give an objective view on the running of a Welsh pilot. Sorry, that was a very long answer—apologies, Chair.

Good to have it on the record, nevertheless.

I don't think it's normal to have this within the legislation. What happens when a committee makes recommendations is there is a Government response to that. It's a response on which Ministers are scrutinised both in committee and on the floor of the Senedd itself, and practice has always been that a response is given to either accept recommendations or to say why certain recommendations might not be accepted, and what the reasons for that are. So, I don't think it was considered necessary to do that, because that process is not only well established, but because there are other mechanisms to follow that through in terms of scrutiny, rather than to put that on the face of the legislation. 

Material changes are ultimately going to be determined by the Welsh Ministers. I suppose, turning the question round, the question is what are immaterial changes. Material changes would be things that change the substance of a recommendation. An immaterial change would be whether there's a comma there, the word 'the' or 'and' or something like that—something that doesn't actually change the substance of that. That's something that happens quite commonly where we have consequential changes or inconsequential changes. Ultimately, were there any dispute on that, the ultimate mechanism for determining that would be, I suppose, interpretation by judicial review. Gareth. 

I don't have anything to add. 

And just to add on that, is 'material changes' a concept that, for the non-lawyers of us, is very well understood, as opposed to 'inconsequential', et cetera, et cetera? You've used other terminology. 

'Consequential', 'material'—I think they probably mean pretty much the same thing. Whether there's a legislative difference, I wouldn't see it, but—.

I don't think there is much of a difference, and I don't think I can usefully add much more than what you've already said. It would turn on exactly what the changes were to determine whether something is material or not, but I think what the Counsel General has said about something being of substance is what we'd be looking at.   

I think it's just the importance of the regulations themselves in respect of third-party financing, and so on, and if there were to be changes to a code of practice, then it's the way in which that is actually considered and the status that it's given. 

I think there are just two points to note, really. The Llywydd's Committee is a committee that's already mentioned in legislation. We have the Senedd and Elections (Wales) Act 2020, which also places a particular role on the Llywydd's Committee, so we see that there's some sort of precedent there. But also, the other point to note is that these provisions replicate existing provisions that the UK Government introduced to the Elections Act 2022, and they also made the decision to name the Speaker's Committee and, I think, the Levelling Up, Housing and Communities Committee in the Houses of Parliament to scrutinise it. So, what we sought to do there was basically mirror existing practice, and also the corresponding provisions that would apply to reserved elections. 

Can I ask what happens if the name of this committee changes in the next Senedd? 

Sorry, could you ask that again? 

What happens if the name of this committee changes in the next Senedd? We talked about this in terms of another organisation forming part of this Bill. Things can happen in the future. This committee does periodically change its name. 

I think that would have to be an amendment or a change in—. 

It has actually been taken care of in subsections 11 and 12. If the committee does change its name, then it's whatever the committee is called in the future, and if the functions move, then this function would move with that as well.

Okay. Counsel General and colleagues, do you have two minutes? Two or three minutes.

Yes, certainly.

Okay. Because I think we can cover, I think we can wrap up, most of what we want to do. I'll try and be quite quick. If I could turn to the general provision, section 67 provides for restrictions to apply to the making of regulations and Orders under the Bill. What is the purpose of the drafting of this provision and why has it been included, given the operation of section 154 of the Government of Wales Act 2006? And why does that section only refer to some of the provisions of Schedule 7B to the 2006 Act and not others?

I think it's about clarity, but—

Yes, it is about clarity, and it's basically because those restrictions that are described in section 67, they're of a fundamentally different character to the other restrictions that are in that Schedule. You'll see from looking at that Schedule that some things are ruled out completely. The difficulty with those particular paragraphs is that they concern consent or consultation, and it isn't possible to establish from looking at a Bill normally whether consent has been given or consultation has happened. So, what we’ve sought to do there is simply make it clearer. We thought it was desirable to ensure that the Bill made clear what can and can’t be done in terms of the regulation-making powers. 

Thank you for that explanation. Two final questions: one is, if the Bill is passed and enacted, when do you envisage that all provisions of the Bill and the accompanying subordinate legislation will be fully enforced?

Well, certainly we want it to be within a timescale that enables it to be in place for the 2026 elections. The Gould convention requires that that should take place at least six months prior to those elections.

Okay, thank you. Final question, then—the explanatory memorandum contains a significant Keeling Schedule. Now, as you know, we focus very much on accessibility, as you do as well, Counsel General. So, what consideration have you given to making this legislation accessible if passed, and more generally, consideration to the accessibility and alignment of legislation in this area, particularly in light of current Senedd reform and changes made to local government elections?

That's a very, very good point. Within the explanatory memorandum, of course, there is the Schedule that shows all the changes that are taking place. I think what is clear is that at some stage in the future, I think, to improve accessibility, there will need to be a consolidation of legislation. Certainly one of the things in my function as Counsel General when we look at consolidation is trying to work out the areas where it's most important to do it, and the timescale and time frame over which to do it. But as you know, this legislation has been scattered in various places over the years. I think this particular legislation does to some extent make things clearer in terms of Welsh elections, but in the longer term I think this area is ripe for a consolidation Bill, but don't ask me when—we have lots of other consolidation Bills that are being worked on at the moment that are in planning.

Okay, thank you. Well, we or future iterations of this committee will look forward to that consolidation in due course, sometime down the future.

Can I thank you all very much for appearing in front of us today? I think we've covered pretty much all bases. We don't intend to follow up in writing on things we've covered. If there are a couple of things, would you be okay if we followed up with you there? But it won't go over the same ground. Just in case we've missed anything.

Of course. Thank you very much. 

Thank you very much. Colleagues, we'll take a short break now, then, to allow the Counsel General and colleagues to leave. And if we could resume at twenty to. So, we'll go into private now.

Croeso nôl. We're coming back into public session here, continuing the session of the Legislation, Justice and Constitution Committee this afternoon. Our witnesses today have disappeared, so we're going to move on to the next substantive item, which is item No. 3, instruments that raise no reporting issues under Standing Orders 21.2 or 21.3.

We have two items in this section. Item 3.1 is SL(6)403, the Commissioner for Older People in Wales (Appointment) (Amendment, Transitional and Revocation) Regulations 2023. This is in relation to the appointment of the Commissioner for Older People in Wales and they provide that a newly appointed commissioner should be appointed on a fixed, non-extendable seven-year term of office. This ensures that their term of office in in line with those of the Children's Commissioner for Wales, the Future Generations Commissioner for Wales and the Welsh Language Commissioner. There are no reporting points, colleagues, so unless you've got anything to raise, I'll go on to the next one, which is 3.2 in this section. It's SL(6)411, the Register of Service Providers (Prescribed Information and Miscellaneous Amendments) (Wales) Regulations 2023. These prescribe additional contact information to be shown on each entry of the register of service providers maintained by the service regulator, Care Inspectorate Wales, as well as the mechanisms for collecting this information from new and incumbent service providers and for being notified when the information changes. Again, we've no reporting points, so unless you have any comments, we will note those.

We go on, then, to item No. 4, which is instruments that raise issues to be reported to the Senedd under Standing Orders 21.2 or 21.3. We begin with item 4.1, SL(6)402, the Non-Domestic Rating Act 2023 (Consequential Amendments to Secondary Legislation) (Wales) Regulations 2023. The Non-Domestic Rating Act 2023 implements a number of changes to the system of non-domestic rating in England and Wales. These regulations make technical amendments to secondary legislation in relation to Wales, which are consequential on a number of provisions in the 2023 Act. The regulations were laid before the Senedd at 4.00 p.m. on 27 October this year, and they came into force at 8.00 p.m. on that day. The letter from the Minister for Finance and Local Government explains the 21-day rule breach. Relevant to this item is the draft report, colleagues, but also the supplementary pack for the letter from the Minister for Finance and Local Government.

Now, we've had a Welsh Government response that was received after papers were published, so we've got a hard copy for colleagues here today as well. But our lawyers have identified three technical and one merits point. Kate.

Thank you. The first technical point identifies potentially defective drafting, while the second and third technical points seek clarification from Welsh Government in relation to certain matters within the regulations. In its response, Welsh Government confirms that all three of these issues will be addressed by way of an amending instrument as soon as possible. The merits point is just to note the breach of the 21-day rule. 

Okay. Are we happy to agree those reporting points? We are. So, we'll go on, then, to item 4.2. It's an affirmative resolution instrument, SL(6)404, the Environmental Protection (Single-use Plastic Products) (Civil Sanctions) (Wales) Regulations 2023. Again, we have a draft report in our pack. Section 5 of the Environmental Protection (Single-use Plastic Products) (Wales) Act 2023 creates an offence of supplying prohibited single-use plastic products. These regulations provide that a local authority, as regulator, may impose certain civil sanctions in relation to section 5 offences as an alternative to criminal prosecutions. The regulations also provide for guidance relating to the use of civil sanctions and for the publication of information on the enforcement action taken by local authorities. Now, I'm going to turn to our lawyers, who've identified four technical reporting points, and I don't think we've had a Welsh Government response yet. 

That's correct. Each of the four technical reporting points is seeking further information from Welsh Government about the form and meaning of the regulations, for example how a specific provision will be enforced, and we're waiting for that response.

Thank you very much. So, pending the response, are we happy to agree those reporting points? We are. We'll go on, then, to item 4.3, SL(6)405, the Waste Separation Requirements (Wales) Regulations 2023. In our packs, we have a draft report and a written statement by the Minister for Climate Change. These regulations set out the waste separation requirements in Wales, with the aim of ensuring that waste is managed in a manner that promotes high-quality recycling. The separation requirements apply in respect of all premises other than domestic properties and caravans. Hospitals will not be required to present waste separately for collection until 6 April 2026. A civil sanctions regime is introduced to enable Natural Resources Wales, as the regulator, to impose fixed monetary penalties, variable monetary penalties and non-compliance penalties. The regulations also provide for the publication of guidance relating to the penalties and enforcement. Our lawyers have identified six technical reporting points here. Again, we haven't had a Welsh Government response yet.

That's correct. Four of the technical points identify inconsistencies between the Welsh and English language texts. For example, in Schedule 1, where the English text refers to 'rigid paper containers', the Welsh text refers to 'rigid plastic containers'. One of the technical reporting points seeks further information from Welsh Government about its drafting approach. The final technical point identifies potentially defective drafting where references to subdivisions have been incorrectly described.

Okay, so still pending the Welsh Government response, if we're happy to agree those reporting points, we'll go on, then, to item 4.4, SL(6)406, the Prohibition on the Incineration, or the Deposit in Landfill, of Specified Waste (Wales) Regulations 2023. Again, we have a draft report, but also a written statement by the Minister for Climate Change, in our packs. These regulations prohibit the incineration, or the deposit in landfill, of specified types of separately collected recyclable waste. In addition, they prohibit the deposit in landfill of any wood waste. These regulations expand on the changes implemented by previous regulations to ban certain separately collected materials from incineration and landfill, and that includes glass, plastic, metal and paper. Again, we haven't had a Welsh Government response yet, I don't think—

That's right.

—but our lawyers have identified seven technical and one merits reporting point. Kate. 

Four of the reporting points again identify inconsistencies between the Welsh and English language texts. Two of the technical reporting points seek further explanation from Welsh Government, including one point that is very similar to the reporting point that was raised on the Waste Separation Requirements (Wales) Regulations 2023 that you've just previously considered. One of the technical points identifies potentially defective drafting, and, again, this is a similar point to the previous regulations, where they've referred to subdivisions incorrectly. Then, finally, the merits point notes that there is retrospective effect in these regulations. In particular, they deem a condition to be included in all relevant permits, including those issued prior to the making of the regulations, and we're waiting for the Welsh Government's response.

Thank you for that. If we're happy to agree those, then we'll move on to item 4.5, SL(6)407, the Prohibition on Disposal of Food Waste to Sewer (Civil Sanctions) (Wales) Order 2023. We have a draft report and, again, a written statement by the Minister for Climate Change on this. The Order makes provision in relation to the prohibition on the disposal of food waste to sewer. A civil sanctions regime was introduced to enable the regulator to impose fixed monetary penalties, variable monetary penalties and non-compliance penalties, and the regulator for the purposes of this Order is the local authority for the area in which the premises are situated. The Schedule to this Order provides that guidance relating to the use of civil sanctions must be published, and article 6 of the Order gives enforcement officers the powers of investigation in relation to potential offences, including powers of entry and seizure. We haven't received a Welsh Government response on this, I don't think. No. You've identified four technical reporting points from the legal team.

Thank you. Two of the technical points relate to potentially defective drafting, and this includes another reference to incorrectly described subdivisions. The other two technical points identify inconsistencies between the Welsh and English language texts, and we're waiting for the Welsh Government's response.

Thank you for that. So, if we're happy to agree those, we'll go on to item 4.6, which is SL(6)408, the Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Wales) Regulations 2023. Members will recall that section 5 of the Retained EU Law (Revocation and Reform) Act 2023 provides that retained EU law will be known as 'assimilated law' after the end of 2023. These regulations amend Welsh-made primary and subordinate legislation in consequence of this change of terminology. Now, this is the first time that the Welsh Ministers are seeking to exercise powers under the 2023 Act, just to note, and our lawyers have identified one merits reporting point.

The merits point simply notes that point, that this is the first time the Welsh Ministers are seeking to exercise these powers.

Thank you very much, and we don't need a Welsh Government response on that. So, if we're happy to note that, item 4.7 is SL(6)409, the Plant Health etc. (Miscellaneous Fees) (Amendment) (Wales) Regulations 2023. We have a draft report in our pack. These regulations extend the exemption from payment of certain fees payable to Welsh Ministers under plant health regulations of 2018 and 2019. The purpose of the regulations is to extend the exemption from the payment of fees for pre-export and export certification services relating to regulated material that is moving from Wales to a business or a private individual in Northern Ireland. This is known as the movement assistance scheme. Our lawyers have identified two technical and two merits points.

The first technical point notes that the regulations have retrospective effect, where the authorising enactment does not give express authority for this. We received the Welsh Government's response this afternoon and, in response to that point, the Welsh Government says that the Welsh Ministers are satisfied that the retrospective effect is lawful in this case.

The second technical point asked the Welsh Government to explain its approach to reviving an expired provision by amending a sunset date that has already passed and that is contained in a separate provision. In response to this, the Welsh Government says that because the provision has not been revoked, it can be revived by retrospective amendment of the sunset provision. We don't think that we have enough information from that response to give a view on that, so the committee may wish to follow up with the Welsh Government and seek further information on that point.

Thank you for that.

And there are also the two merits points. The first merits points noted an inconsistency between the explanatory note and the effect of the regulations. In response, the Welsh Government says that clarity and consistency are desirable, but the explanatory notes do not form part of the regulations. So, again, the committee might want to follow up with the Welsh Government on that point, because although the explanatory note is not part of the regulations, it is published within the same document, and so it could cause considerable confusion to a lay reader. And then, the final merits point is just to note that there's been no consultation.

Thank you very much. Colleagues, if you're happy with those points—and thanks for rapidly turning around a brief response there to the Welsh Government response, which came in very late—we might consider that in private and how we follow that through. Thank you.

We'll go to item 4.8, and the last in this section, SL(6)410, the Regulated Services (Special School Residential Services) (Wales) Regulations 2023. Again, there's a draft report in our papers. These regulations prescribe the provision of accommodation and care or nursing to a pupil of a special school as a regulated service for the purposes of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016, and will require a person providing such a service to register under the Act. We haven't had a Welsh Government response yet, but there's one technical reporting point that our lawyers have identified.

The technical point is seeking an explanation from the Welsh Government about its approach to the definition of 'hospital' in the regulations. 

Thank you very much. So, that brings us to the end of that section, colleagues.

We can go on, then, to item No. 5, which, as normal, are the instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 that we've previously considered. We only have one item in this today, and it's item 5.1, referring to SL(6)393, the Forestry (Felling of Trees) (Amendment) (Wales) Regulations 2023. And, in our packs, we have the report and also the Welsh Government response. We considered this instrument at our meeting on 6 November and we laid our report the same day. I just invite colleagues to note the Welsh Government response to it. Is there anything in particular to pick up on this?

No, we've got no further comments. 

No further comments. Are colleagues happy with this? Yes. Okay. Thank you very much. 

Then we'll go on to item No. 6, notifications and correspondence under the inter-institutional relations agreement. We begin with item 6.1, where we have correspondence in our packs from the Minister for Economy in relation to the next meeting of the inter-ministerial group on trade, which the Minister informs us was due to take place today. Now, following the publication of the supplementary pack, we have received a further letter from the Minister informing us that the meeting has been postponed due to the UK Government reshuffle and the existing diary commitments of the new UK Government Minister for trade. So, colleagues, we've provided everybody with a hard copy of the letter this morning and, if you're agreeable to it, we'll publish it with the next meeting's papers. 

Item 6.2, then. We have correspondence from the Minister for Rural Affairs and North Wales, and Trefnydd in relation to the Official Controls (Establishment Lists) (Revocation) Regulations 2023, and the Minister informs us that the regulations have not yet been laid before the UK Parliament, despite the expected laying date of 18 October. And the Minister goes on to state that the timeline is now unclear and she will update us as soon as she has more information.

And that brings us, then, to section No. 7, which is papers to note. The first of these, under item 7.1, is the written statement by the Counsel General and Minister for the Constitution, and the Minister for Social Justice and Chief Whip in respect of research to prepare for the devolution of policing in Wales. It's included there within your pack. The Ministers state that the Welsh Government has commissioned an independent team to work with key stakeholders to understand the benefits, opportunities, challenges and risks of a devolved policing model for Wales. So, if you're happy to note that, we'll go on to the final item in this section. 

Item 7.2, we have correspondence with the Counsel General and Minister for the Constitution in relation to the Retained EU Law (Revocation and Reform) Act 2023. We wrote to the Counsel General on 1 November, seeking clarity on a number of matters relating to the Welsh Ministers providing consent, which has been sought from UK Ministers, to make regulations under the 2023 Act in devolved areas. If you're happy to note that, I think this might be something we return to, then, in the private session as well. 

So, colleagues, with that part of our regular business disposed of, could I ask you whether, under Standing Order 17.42, you are content now to exclude the public from the remainder of the meeting so that we can go into private session. We are. So, if we can go into private, please, if I can ask our clerk.