Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad

Legislation, Justice and Constitution Committee

01/02/2021

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Carwyn Jones MS
Dai Lloyd MS
David Melding MS
Mick Antoniw MS Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Chris Warner Dirprwy Gyfarwyddwr, y Cyfansoddiad a Chyfiawnder, Llywodraeth Cymru
Deputy Director, Constitution and Justice, Welsh Government
Dorian Brunt Uwch-gyfreithiwr, Llywodraeth Cymru
Senior Lawyer, Welsh Government
Julie James MS Y Gweinidog Tai a Llywodraeth Leol
Minister for Housing and Local Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
Gruffydd Owen Ymchwilydd
Researcher
Jennifer Cottle Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Rhiannon Lewis Cynghorydd Cyfreithiol
Legal Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu'r pwyllgor drwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30.

The committee met by video-conference.

The meeting began at 09:30.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introduction, apologies, substitutions and declarations of interest

Welcome, Members, to this virtual meeting of the Legislation, Justice and Constitution Committee. In accordance with Standing Order 34.19, I've determined that the public are excluded from the committee's meeting in order to protect public health. In accordance with Standing Order 34.21, notice of this decision was included in the agenda for this meeting. This meeting is being broadcast live on Senedd.tv, and the Record of Proceedings will be published as usual. Aside from the procedural adaptations relating to conducting proceedings remotely, all other Standing Order requirements remain in place. We have a full attendance of the committee. The usual housekeeping rules apply. Can I ask Members if there are any declarations of interest? I don't see any. 

2. Bil Etholiadau Cymru (Coronafeirws): Sesiwn dystiolaeth
2. Welsh Elections (Coronavirus) Bill: Evidence session

In which case, we can move straight on to item 2, which is the Welsh Elections (Coronavirus) Bill, an evidence session with the Minister, Julie James. For the record, this Bill is being dealt with as an emergency Bill, and we're taking evidence from the Minister this morning in advance of tomorrow's Stage 1 debate on the general principles of the Bill. So, I welcome Julie James, Minister for Housing and Local Government, Christopher Warner, deputy director for constitution and justice at the Welsh Government, and Dorian Brunt, senior lawyer with the Welsh Government. If you're okay, Minister, I'll go straight into questions. 

Yes, fine. Good morning.

Good morning. Perhaps just a few introductory questions from myself, Minister. This is an emergency Bill, and the Government has indicated it has a strong intention or desire for these elections to be able to proceed—the Senedd general elections—on 6 May. There is, obviously, an elections planning group, which has been meeting, which has been considering these issues. I understand there wasn't unanimity within that. But I wonder if you might just outline the background to the Bill, Minister, the aspirations of Government in respect of the 6 May target date and the purpose behind the Bill and any particular surrounding issues to that.

Thank you, Chair. I'm very happy to do that. As we all know, the Senedd Cymru elections are due to take place on 6 May, but as we also all know, that's in the middle of a continuing pandemic. There's absolutely no doubt at all that we've lived through the most extraordinary of times. We're all getting rather jaded with the idea of how extraordinary, but nevertheless, it's important to understand quite how extraordinary these circumstances are.

I just want to make absolutely clear that it's the Government's firm intention that the election should proceed on 6 May as planned. We want everyone in the election process to prepare on that basis. I just want at this point to pay tribute to the returning officers and electoral administrators across Wales who are working really hard to ensure that the poll can be held safely in May. Myself and my officials are continuing to work closely with them. Indeed, I met the regional returning officers and administrators on Thursday of last week. I really want to express my gratitude to them for the work they're doing in really difficult and uncertain circumstances.

Despite the fact that we know that, at the moment, the levels of infection are starting to decline in Wales, and that's very welcome, we also know, if we've learnt anything at all from this pandemic, that you cannot predict anything at all. Just before Christmas, for example, the circumstances of the pandemic changed approximately every 48 hours in terms of where we were with the new variant coming onstream and so on. So, we know that it's extremely difficult to make long-term plans in the middle of this pandemic. Therefore, it’s obviously prudent to make sure, although our firm intention is that the elections go ahead on 6 May, that we have all the right contingency arrangements in place in the event that the pandemic does present a serious threat to public health and, therefore, to the conduct of the election.

In order to do that, we need legislation. The committee, I'm sure, is well aware that, at the moment, the Llywydd can only move the election by a single month. The purpose of this Bill is to respond to the risks to the ordinary general election for membership of the Senedd because of the pandemic, with the objective of ensuring the election can be administered and proceed safely and the electorate can participate and vote, or, if absolutely necessary, that the election can be postponed in response to the pandemic to make it possible for the election to proceed safely and for the electorate to safely vote.

09:35

Thank you for that, Minister. One of the issues, obviously, as a legislation and constitution committee that we consider is obviously the human rights issues and also the competence issues. Human rights, of course, are within article 3 of the European convention on human rights, which is about the holding of free elections at reasonable intervals. I know this matter has been considered. I wonder if, for the record, you could just set out the Welsh Government's views on those two aspects—the human rights aspect and the competence aspect.

I'm very happy indeed to confirm that, in my view, the Bill is within the Senedd's legislative competence. That is also the conclusion reached by Llywydd. The Llywydd has laid a statement before the Senedd to confirm her determination on that point. I'm also very happy to confirm that we have considered the human rights issues and, in my view, we are satisfied that this is compliant with convention rights.

Thank you for that, Minister. I'll move on to further questions, then. Over to Dai Lloyd.

Diolch, Gadeirydd. Symud ymlaen i gysidro adran 1 o'r Bil yma yn nhermau etholiad 2021, allaf i ofyn pam dydy'r Bil ddim yn cynnwys darpariaeth fachlud fel bod darpariaethau’r Bil sy'n ymwneud ag etholiad cyffredinol y Senedd ddim yn cael effaith ar y diwrnod ar ôl i'r Senedd newydd gyfarfod am y tro cyntaf, ac fel bod gweddill y Bil ddim yn cael effaith ar 5 Tachwedd?

Thank you, Chair. Moving on to consider section 1 of this Bill with regard to the 2021 election, may I ask why the Bill doesn't include a sunset provision so that the provisions of the Bill that relate to this Senedd general election cease to have effect on the day after the new Senedd meets for the first time, and that the remainder of the Bill ceases to have effect on 5 November?

I think I caught all of that. Sorry, the translation cut out there, just at the last point. So, forgive me, Dai Lloyd, but I think I got the gist of it anyway. Section 1 defines 'the 2021 election', and every section refers to the 2021 election. So, in our view, there's no need for a sunset provision. The Bill can only relate to the 2021 election. The Bill only enables the date to be fixed before 5 November 2021, and although that's not a sunset clause per se, it's the very last date on which the election can take place. Once that happens and the remaining actions take place—the first meeting of the Sened and so on, as you set out—the Bill is effectively spent. So, the Bill's a short-term solution for a temporary crisis and its provisions are only intended for that worst-case scenario.

Diolch am hynna. Ymhellach i hynny, pam mai 29 Ebrill 2021 sydd wedi'i ddewis fel dyddiad diddymu?

Thank you for that. Further to that, why has 29 April 2021 been chosen as a dissolution date?

The Bill shortens the date of dissolution from 21 working days to seven calendar days, meaning the Senedd, as you say, will be dissolved on 29 April instead of 7 April. That is to allow additional time for the Senedd to consider vital coronavirus legislation in the lead-up to the election and for the Senedd to approve the day fixed for the election in the event that a postponement becomes necessary. The purpose of the shortened dissolution in Wales is to ensure that, in the event of postponement, it's the legislature that takes the final decision on the day of the poll. We consider that seven calendar days strikes the balance between being able to respond to the vagaries of the pandemic whilst ensuring all of those involved in the election could respond to any postponement as well.

So, just to clarify, if this became an Act, it could be used to abort the election as well as to postpone it. Is that what you meant in your last—?

No. It's to allow us up to seven calendar days before 6 May to still make the decision to postpone the election; we can't abort it in the sense it can't stop the election happening at all. But it would mean that the legislature would still be there. If we dissolved 21 days before, as is normal, and then the pandemic changed—and we know how fast the pandemic can change—then it would not be possible, obviously, to recall a legislature that's been dissolved. So, the issue here is that, if we require to recall the Senedd, we want to be able to do that right up until the last possible moment, really. So, it's striking the balance between the ability of the legislature to be recalled to make those important decisions and the ability of the election to be run.

Okay. Well, I mean, it's a choice of language, isn't it? If we were two and a half weeks in to an election campaign and then, on 28 April or whatever, we then postpone, that is, in effect, aborting the election for 6 May, isn't it, in simple terms. It's different to not starting the campaign, which is what most people would assume postponement meant.

09:40

So, obviously, again, it's our intention to have the election on 6 May, and all of the preparations, including all of the returning officers, as I said in an earlier answer, are heading towards that. But, because the pandemic has been so unpredictable, it would not be at all sensible not to put in place provision to allow us to do that. It would be far from ideal, obviously, but it does allow the legislature to do that. Whereas, if we dissolved 21 days beforehand, effectively the legislature no longer exists, you can't therefore be recalled, and the decision would have to be an Executive one, and we don't think that's the best position to be in.

Yes. Thank you for that; I do understand. The First Minister, in seeking to postpone, can make that request on the basis of it being appropriate or necessary. Now, I completely understand 'necessary', but I'm struggling to think what an appropriate reason would be that isn't necessary. These are just synonyms, surely, and, you know, why clutter the Bill with the word 'appropriate'?

So, the wording follows the wording in section 11 of the Scottish Bill—not that that's an excuse to have it. We felt that it added an additional piece of meaning in that 'necessary', I suppose, is a strict public health point—so, it's just not possible, because the public health pandemic, it's so virulent that nobody sensible would think you could run an election. 'Appropriate' might be because, actually, there are a number of things arising from the pandemic—and they all have to be pandemic related, just to be very clear here, but that, for example, it is just impossible to get the right number of staff to be able to safely run the election, or some other appropriate consideration. So, that's the purpose of that. So, whilst I accept that in normal English usage they are more or less synonyms, we did feel it added an additional dimension to the decision making.

So, 'appropriate' gives you a wider scope, which relates a bit more to practicality than the risk of an increase in death, for instance, as a result of the pandemic.

Yes. So, whilst I wish to underline that it is obviously related to the pandemic—so, it's not some other disaster or something—nevertheless, it might not be just the level of virulence of the pandemic in the general population; it might be some other appropriate thing, which everybody would consider was appropriate to take into account when you were considering whether to run the election, like, for example, the complete impossibility of getting the right number of staff to be able to safely run that election.

Okay, well, that's a very clear answer. Thank you.

Now, the First Minister has the power to request the Presiding Officer to put a motion to postpone in front of the Senedd, but there's no duty to consult, which is very different to the Scottish Bill. So, I just wonder why there isn't a duty to consult. And I also note that, of course, in Scotland, the entire process is with the PO. It's the PO there that triggers the request to the Scottish Parliament and the First Minister doesn't have a part in that process, but the Scottish Presiding Officer has to consult, and, indeed, the organisations that must be consulted are listed. So, why have you not followed that pattern?

Because we felt there was no need. Here in Wales, we've been working completely in partnership with all of the electoral administrators, the Electoral Commission, the regional returning officers and so on. We're in continuous dialogue with the Electoral Commission and the chief medical officer, of course, regarding the holding of the election, and therefore we just felt it wasn't necessary. If the Llywydd or the First Minister requests it, the Electoral Commission must provide them with advice on the matter of postponement—it's very difficult to see circumstances in which that wouldn't happen. And—well, we just felt in the circumstances of Wales and the way that our partnership working is that it just wasn't necessary.

Don't you think for clarity, though, and credibility, you'd have been better off just saying, 'This is a duty', if you're doing it anyway? And then, in an emergency Bill to postpone or, in effect, abort an election, at least then everyone could clearly see that the duty to consult was there and not merely implicit.

I do see that argument, David, but I suppose we just felt, given the partnership working that we're engaged in and the constant set of meetings and interactions between all of us, that there just was no practical need to say it was a duty, as we're basically working that way at all times. So, I'm not—. It's not something I would, frankly, die in a ditch over. If the committee felt very strongly that we should put a duty in, then we'd certainly consider that. We just feel it isn't necessary, given our current way of working and the current state of play.

09:45

Thank you. Good morning, Minister. Could I draw your attention to section 5? I just want to get a clear idea of the process here, should a request be made to postpone the elections. We can see from section 5(1) that the process starts with the First Minister asking the Llywydd to postpone the election. It's a matter then for the Llywydd to consider, with what seems to be full discretion, as to whether or not to accede to the First Minister's request to postpone the election. If the Llywydd doesn't accede to that request, it seems to me the whole process just ends there at that point. There's no vote in the Senedd; it's entirely at the discretion of the Llywydd. However, the Llywydd can then propose a date, but the Llywydd, in effect, has to have that date confirmed by a two-thirds majority in the Senedd. So, there's no absolute discretion there for the Llywydd. I make no comment as to if this is a good or a bad thing, but, just to be clear, the decision as to whether or not to postpone is entirely at the discretion of the Llywydd. Would that be right?

And should the decision be taken to postpone to a particular date, the Senedd has to confirm that date.

Yes, okay. So, it's possible—. I'm not saying this will happen, but it is possible to have a situation where the Llywydd simply says, 'No, there's not going to be change—there's not going to be a postponement,' or there's a deadlock because there's no agreement between the Senedd and the Llywydd as to what that date might be. It's possible, isn't it?

Yes, that is certainly possible, and, in those circumstances, I suppose our view is that it would—. We don't want an election where there isn't a two-thirds majority in the legislature for agreeing that that election should be on a particular date, and we don't want an election where there's basically an argument going on between all of the various parts of government about it. It has to be a decision of a two-thirds majority of the legislature and in agreement with the First Minister and the Llywydd, effectively, Carwyn, in order for that to happen. And that's deliberate. It's a very high hurdle to pass, because this is a very serious thing to do.

That's clear, thank you. In terms, then, of section 5(4)(b) of the Bill, quite properly, the Llywydd is required to set out the reasons for exercising her power. There's no requirement on the First Minister to explain his reasoning—I use the genders as they are at the moment—no requirement on the First Minister to explain his reasoning as to wanting to postpone the election. Presumably, the Llywydd would have to do it from a quasi-judicial position—'This is the reason why I propose the election should be postponed.' That aids transparency. I'm assuming the reason why the same requirement isn't there for the First Minister is (a) the First Minister will be fairly clear anyway as to why the request is being made, and (b) it's not the First Minister's decision, it's the Llywydd's decision—

The requirement to give reasons is imposed on the decision maker. Would that be fair?

That's exactly right. Almost certainly, the First Minister would put a statement out saying that he'd requested the Llywydd to exercise her discretion in this matter, but it's her decision, and therefore it's her statement as to why the decision is made—absolutely right.

And, of course, under section 5(6) of the Bill, there's the power to postpone multiple times up until 5 November, isn't there? I suppose that's unavoidable, given the fact that we can't predict how the virus will behave, but, clearly, multiple postponements would be very difficult for all, wouldn't they?

Absolutely, and, obviously, our optimal starting point is that we don't move the election at all, because that's clearly the best possible outcome for all of this, but these are all contingencies based on complete uncertainty, or the classic Rumsfeld remark of unknown unknowns. So, we have to put the biggest contingencies into the Bill that we can, but in the full and certain knowledge that, if we had to exercise a series of postponements, then, almost certainly, we would have to do something else, I would suggest to you. But these are the contingency options that currently face us, and none of them are palatable, are they? They're just—this is the best we can do in a very uncertain time. 

09:50

Well, there are three of us on this committee, Minister, with a particular interest in trying to understand when exactly we will no longer be Members. [Laughter.] But there we are. Thank you. 

Diolch, Cadeirydd. Symud ymlaen at adran 6, rŵan, o'r Bil a'r pwerau ychwanegol i amrywio dyddiad etholiad 2021. Oes modd i'r Gweinidog esbonio pam mae'n cael ei ystyried ei bod hi'n briodol cynnwys pŵer adran 6 i amrywio dyddiad etholiad 2021 ymhellach o gofio'r ffaith y gallai hynny alluogi'r Llywydd i ddiystyru penderfyniad dwy ran o dair o Aelodau o'r Senedd i bennu dyddiad penodol ar gyfer etholiad wedi ei ohirio?

Thank you, Chair. Moving on to section 6 of the Bill now, and the further powers to vary the date of the 2021 election. Can the Minister explain why it is considered appropriate to include the section 6 power to further vary the date of the 2021 election in light of the fact that it could enable the Llywydd to override the decision of two thirds of the Members of the Senedd to fix a specific date for a postponed election?

Yes, so this power is for concurrent disasters, if I could put it that way. So, if you've fixed a date for the election arbitrarily for some time in July and then, 10 days before that, a large plane falls on a big city in Wales or some other hideous disaster occurs, then it may be that it's absolutely necessary to postpone that election for a completely unrelated reason to the pandemic. And the fact that we're in this terrible crisis with the pandemic unfortunately doesn't preclude, as we know to our cost with flooding and so on, other disasters also occurring. So, the power is preserved for the same reason as it's always been there. 

Diolch am hynna. Yn symud ymlaen o hynna, ydy hi'n ymarferol bosibl dod ag etholiad ymlaen neu i ohirio etholiad o fis yn unig? Oes modd i'r Gweinidog esbonio sut y byddai hynny'n bosibl ym mhob achos?

Thank you for that. Moving on from that, is it possible in practical terms to bring forward or to delay an election by a month? Can the Minister explain how it would be possible in each case?

So, that would have to be done in consultation with the returning officers and the electoral community, and it would have to be the most extraordinary of circumstances, wouldn't it? And, in truth, if you made that decision only three weeks before the election, it would almost certainly not be possible to do that and we'd have to do something else in an emergency circumstance. But, nevertheless, the power is there in order to be able to react to an impending disaster, effectively, but—. Well, it's not for this committee, is it, but the practical reality is that, even if the election is postponed, you have to do it with sufficient time in the run-up to allow the returning officers to be able to order everything—so, to be able to print the ballot papers and book the venues and all that kind of thing. So, the truth is that a month isn't sufficient for that to be possible. So, we would find ourselves in a very extraordinary position of having to do something else, I would suggest to you. But we preserve the power because the power was originally there in order to be able to deal with these kinds of emergencies. 

Diolch am hynna. Nawr mae'r Bil yn darparu i'w Mawrhydi, trwy broclamasiwn brenhinol, ddiddymu'r Senedd a phennu dyddiad etholiad newydd ar ôl cael cynnig i'r perwyl yna gan y Llywydd. Dydy'r Bil ddim yn nodi rhagor o fanylion ynghylch sut byddai gwneud y proclamasiwn brenhinol yma yn gweithio'n ymarferol. Oes modd ichi roi rhagor o fanylion ar ffurf a dull paratoi'r proclamasiwn brenhinol yma, ei gyhoeddi, a chadarnhau a oes angen rhagor o ddeddfwriaeth i ymdrin â hyn er mwyn sicrhau bod adran 6 o'r Bil yn cael effaith?

Thank you for that. Now, the Bill provides for Her Majesty, by royal proclamation, to dissolve the Senedd and to fix a new election date following receipt of a proposal to that effect from the Llywydd. But the Bill does not set out any further detail as to how the making of the proclamation would work in practice. So, is the Minister able to provide further detail on the form and manner of preparation of the royal proclamation, and the publication of it, and confirm whether further legislation is required to deal with this in order to ensure that section 6 of the Bill is effective?

Yes, so—. Thank you, Dai. My officials are in touch with the palace about this, and we've prepared a section 116 Order, 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, and we propose that the form of wording can be used as a precedent or template for a proclamation under section 6 of this Bill. We would then 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.  

Diolch am hynna. A'r cwestiwn olaf oddi wrthyf i ydy ynglŷn â dyddiad y cyfarfod cyntaf wedi etholiad 2021. Mae hyn yn adran 4 o'r Bil. Mewn gwirionedd, dim ond o ddiwrnod mae'r cyfnod mae'n rhaid i'r Senedd gyfarfod yn cael ei ymestyn. Oes modd i'r Gweinidog gadarnhau pam mae'n cael ei ystyried bod angen ymestyniad 24 awr, ac ar ba dystiolaeth a gafodd y penderfyniad yma ei seilio, yn enwedig o ran yr ymgynghoriad a gafodd ei gynnal efo'r swyddogion canlyniadau rydych chi wedi sôn amdanyn nhw eisoes? Mae paragraff 26 o'r memorandwm esboniadol yn cyfeirio ato fe.

Thank you for that. And the final question from me is with regard to the date of the first meeting after the 2021 election. This concerns section 4 of the Bill. Now, truth be told, it's only by one day that the period within which the Senedd must meet is extended. So, can you, Minister, confirm why it's considered that an extension of 24 hours is necessary and upon what evidence was this decision based, particularly with reference to the consultation undertaken with the returning officers that you've already mentioned? And this is referred to in paragraph 26 of the explanatory memorandum.

09:55

Yes, indeed. Thank you. This is just because of the conversations we've been having with the regional returning officers about the timing of the count, the length of time that the count might take, and what it's necessary to be able to set out in order to do that. You'll see that we've reached an agreement with them that no constituency count will start until the Friday morning. That's to allow them the best possible chance of getting their staff that are involved in administering the election the day before to come back into work on the Friday refreshed and able to undertake the count. We are imagining that they will have much less staff flexibility than normal in order to do the overnight count.

We're also considering, for example, where there are counting centres where normally a multiple set of constituencies are counted, that those may have to be done consecutively rather than concurrently, and so the whole process just takes much longer. The regional count is then done, as you know, after that, and so it's our best estimate with the regional returning officers that a 24-hour period of extension is necessary in order to still have the amount of time to do everything else that's necessary once everybody has been returned. So, it's just a practical piece done in consultation with the returning officers.

Minister, can I just clarify why, under sections 7 and 8, any postponement of by-elections for the Senedd or to local authorities can themselves be postponed, but for reasons unrelated to the coronavirus pandemic? So why are those postponements not tightly related to the pandemic?

That's just a precedent established in the Coronavirus Act 2020 itself, where the equivalent powers do not include reference to coronavirus, I suppose because the clue is in the title of the Act. Our expectation is that a postponement would be connected to the pandemic, but we want some flexibility, particularly here, where there may be staffing or other issues associated with the returning officers. So, there's no scientific reason for it, David; it's just we followed the precedent in the Act itself from which the original postponement of the by-elections came.

I'm not being critical here, because that wasn't quite the answer I anticipated, because it did seem to be a practical explanation. If the expectation was—let me just pluck something out of the air—that mid-September was going to be the optimum time given that conditions had deteriorated and didn't allow the May poll to go ahead, you might just say, 'Well, what's the point of having an election in July, with just six weeks left of that term?' or whatever. But you seem to indicate that that isn't a practical thing, and then, under those circumstances, the coronavirus situation may have started to subside, but you'd still want to postpone. But from what I—

—it's not what the purpose of this power is in sections 7 and 8.

These are for local government by-elections and so obviously, once the by-election has happened, they go to the local government elections, which is the following May. I know for example on 6 May, we have a large number of by-elections taking place across Wales, because the returning officers have combined them together as that's their best estimate of their practicality. But it's perfectly possible that a returning officer dealing with other issues may decide that they'd be better off separated in certain circumstances, and that's a matter for them. And actually, it's not that uncommon to do that, to have them six weeks before and then run the main elections.

The other complication you haven't raised with me but is certainly sitting there is that the 6 May elections are combined with the police and crime commissioner's poll, which has certainly complicated the issue. Were the election to be postponed, I think the returning officers would be vehemently of a view that that should be separated out, because the complexity of that poll and the by-elections and the complex Senedd elections already is not something that's optimal, shall we say. So, we're just giving the most flexibility to the returning officers to set the date of the poll depending on their local circumstances and their practical consideration.

10:00

A Senedd by-election would go to the date of the poll. No returning officer would do that. That doesn't make any sense, as you say, because the person would only be in office for a month. So nobody would contemplate that. These are the local government by-elections that we were particularly concerned with. 

Okay. And the regulations here would be negative. Do you think that's appropriate, given that you are postponing a poll, and perhaps the added check, always, of affirmative might be appropriate?

The negative procedure is chosen for the straightforward reason of the time frame of the emergency Bill, and so on, and the time frame in which we need to get everything operational. There's no magic in that—we just need to do it as fast as possible in the circumstances. 

Minister, could I just—before I go on to Carwyn Jones—get some clarification on this issue around the arrangements in respect of the police and crime commissioner elections? Because the decision-making process that Welsh Government and the Llywydd may engage in in terms of the date of the election obviously has significant implications, if it's felt it's not appropriate or safe to do the Senedd elections. Well, of course it's not a matter of competence for the Senedd or for the Welsh Government in respect of the police and crime commissioners. So, what engagement is taking place between the Welsh Government and the UK Government in respect of that potential conundrum that might arise?

Yes, very close engagement. In fact, I'm seeing Chloe Smith MP this afternoon. She's the UK Government Minister with responsibility for elections. I've been meeting her on a fortnightly basis for some time. We're in very close liaison with them. From a policy point of view, it's very difficult to envisage a circumstance in which the UK Government decided that mayoral elections in Bristol and Merseyside couldn't take place because of the pandemic, but we thought it was safe to go ahead the other side of the bridge. It's very hard to understand how that could happen, and conversely, if we thought it was unsafe, it's hard to see how it wouldn't be unsafe the other side of the bridge the other way round. So, we're obviously tied together in policy terms, so we are in very close liaison with the UK Government to understand their thinking as it develops. And they're in the same place as us. They say exactly the same. They want the elections to go ahead on 6 May, but it's prudent to continue to consider whether that's practical in the light of the pandemic. 

The only point of divergence between us is that I'm not sure that they understand entirely why we are not happy to have the police and crime commissioner elections on the same day. After all, they chose to put them together with ours against our vehement objections, and so I think they think that's a lesser consideration than we do. So, if the elections were moved, I imagine they'd be moved both sides of the border for their mayoral and local government elections primarily, of course. At that point, we would then, I think, seek to separate the elections. I'm not sure the UK Government thinks that's a particularly big consideration in their thinking. 

Okay, interesting. Thank you for that, Minister. Carwyn Jones. 

Thank you, Chair. Minister, two questions from me, one on section 13 of the Act, which modifies the 2007 Order. If we look at section 13 of the Government of Wales Act 2006, now that already enables Welsh Ministers to make provisions for elections by way of Order. My question would be: why did you feel it wasn't appropriate to use those powers to make the necessary changes to the National Assembly for Wales (Representation of the People) Order 2007? Was there some kind of issue with the breadth of those powers, for example?

Our approach was to make the permanent changes to the conduct Order via the amendment Order that the Senedd agreed before Christmas. The temporary changes are made in this Bill. So temporary changes to primary and secondary legislation are for 2021 only and are contained in the same enactment to enhance the accessibility of that enactment, and the permanent changes are made in the Order itself, which has a much longer time span. So, this is just for accessibility. We're trying to basically put everything that pertains to these elections and their extraordinary circumstances together.

Okay, thank you. And then section 10(3) of the Bill creates the effect of those seeking election to the Senedd becoming candidates on 7 April regardless of the election date. Now, we already know that that means, in effect, that there will be an overlap of 22 days for most Members, because they will be Members and candidates at the same time. That clearly creates issues in terms of election expenditure. Has there been discussion with the Commission as to how that might be resolved? I know this isn't unprecedented—there are three of us on this committee who'll remember the days before 2011 when we were both Members and candidates at the same time, which was the practice in local government rather than, at that time, in Westminster and Edinburgh. So, has any thought been given to communicating with the Commission as to how to resolve that issue—how you separate out a Member's legitimate expenditure from a candidate's political expenditure? 

10:05

Yes, indeed, we're having exactly those discussions. We haven't provided for the changes in the Bill itself, because we think that the changes slightly depend on when the new date for the election is. And obviously, at the moment we're still planning for the election to take place on 6 May. So, if there is a postponement, we will almost certainly have to bring forward legislation after that postponement in order to sort out the various difficulties around the election expenses, and so on. 

And actually, just incidentally—and not a matter for this committee, I suppose—we're also having a long conversation with the Commission around the codes of conduct and changes to the ministerial code, and so on, about people being, still, Members of the Senedd and not being put in an advantageous position against other candidates, and so on. So, there are a range of policy considerations here, but we'll probably have to bring legislation after the postponement, Carwyn, if we were to postpone.

Obviously, if we postponed—. I'm plucking dates out of the air here. I just want to make that clear, Chair, just so no hares are set running. But if we were to postpone a month, those would be very different circumstances than if we were to postpone to the last possible date, for example. So, you might need a completely different set of election expenditure issues. There will be issues about wasted costs, and so on, and what to do about that. One of the ones that springs to mind is you've ordered Correx boards that say, 'Re-elect Carwyn Jones on 6 May 2021', that gives you—

Then, obviously, that would be a wasted expenditure because that board would no longer be of any use to you. So, there will be issues that we have to consider, and we'll have to consider them if a postponement is brought forward. 

No need to worry about spending money in that regard anyway, as I said. [Laughter.] Just finally, just to confirm then, obviously the proposal is that the Senedd will remain in existence until 29 April, so just about three weeks beyond the original date, and there will anyway be that overlap in April where most Members are also candidates at the same time.

As I say, it's not unprecedented. For the first 12 years of the Assembly's life, that's the way things were. 

Our current intention, though, is that the Assembly is in recess during that time, and then there will be a recall if necessary to deal with issues arising under this emergency Bill. So, just to be absolutely clear, that is not for business as usual in any sense. 

No, I understand that. I know the intention is we wouldn't be coming back, and I know you understand the issue—you've said that in your answers. But care must be taken to ensure that there is sufficient distance between an individual's expenditure as a Member, and an individual's expenditure as a candidate. 

Absolutely and, as I said, we are working with the Commission on that, and there are code of conduct issues and so on as well that would need to be addressed. 

Okay. Thank you, Carwyn. Minister, section 12 of the Bill provides the Welsh Ministers with a wide power to make regulations, again, not in respect of whether they are necessary or appropriate. I'm not going to pursue that; I presume the answer will be very similar. If there is any variation on that, please just add it on. What I'd like to ask about is why the power in section 12 is needed in addition to the power in section 13 of the 2006 Act, which already enables Welsh Ministers to make provision for elections by way of Order, subject to the affirmative procedure? 

Again, this is just to do with the unpredictability of the pandemic, and trying to get ourselves into a circumstance where we can cover off—I don't, unfortunately, know the Donald Rumsfeld quote off by heart, but you know, the 'known unknowns', the 'unknown unknowns' and so on. So, trying to get ourselves into a position where the legislation is sufficient in itself to be able to cope with all the eventualities that may or may not arise, and our view is that the existing power is limited and not conferred with this in mind.

10:10

And you're obviously well aware, Minister, of the position this committee has tended to take on Henry VIII powers being subject to the affirmative procedure, whereas section 12 of the Bill provides a Henry VIII power that is subject to the negative procedure, and as such it could be used to make retrospective provision to revoke primary legislation and to modify this legislation if it should be passed. I wonder if you could elaborate on the Government's thinking around that.

The particular issue about retrospectivity is the issue around what would happen to financial losses to the public purse as a result of abandonment of polls that would otherwise be held, and the liability of returning officers and others under provisions of the Representation of the People Act 1983, in relation to polls that were required to be held but were not held. And it's us covering them retrospectively for decisions that may have been made to abandon those polls where expenditure has been incurred. So, it's entirely to do with protecting the returning officers from decisions that were made in good faith, and necessary decisions, but which were necessarily made prior to this.

I entirely agree with the committee about the necessity, in normal circumstances, for affirmative procedures for Henry VIII powers, but these are extraordinary times and this is an emergency Bill. As I said in answer to a previous question from David Melding, ordinarily I am more than happy to say that things should be affirmative if the committee wants, but the need for speed is paramount here, in order to give effect to this in good time.

Okay. I think you've answered some of the additional questions I wanted to ask. We'll go straight over to Carwyn Jones in respect of the postal voting issue.

Thank you, Chair, and Minister. One question from me on this. We know that the Scottish Bill goes into more detail in terms of postal voting and preparations for, perhaps, more people to vote by post, but the Welsh Government has decided not to include contingency legislative provisions for postal voting in the Bill itself, so the question is 'why?' One issue might be, I suppose, that there might be a question mark as to whether every local authority in Wales would have the capacity to implement, for example, an all-postal ballot election. I was just wondering what the thinking is behind not reflecting, perhaps, what Scotland has done.

The issue for us on an all-postal ballot in Wales is the PCC election. At an early stage, I had consulted with the UK Government, and Chloe Smith in particular, about whether they would be prepared to move the PCC elections, which are obviously on the same date and not a devolved responsibility, to an all-postal ballot, and the answer was, 'No, they would not contemplate that in any circumstances.' And so, we would have a situation, if we tried to do that, in which, on the same day, returning officers would have had to have a complete set of polling stations open and have all the administrative capacity to run a completely—. It was not possible to do it. We accepted their advice that there just was not the capacity in the system to do it. Had the UK Government gone to an all-postal ballot—this is a long time ago, just to be clear, and we've been having these discussions for months; this isn't in the last week or so—then we might have started to explore with the returning officers whether it was possible, but given the circumstances that they would not contemplate it, we took the advice that it just was not practical.

However, there are a couple of things around postal votes and so on that we're still in discussion with the returning officers about, so it may be that there are minor amendments at Stage 2 that put into effect some issues around postal ballots. That's still under discussion and we have a series of meetings this week with them about some of the complications of running these polls. They are very concerned. We are pushing postal ballots. There will be household notification letters going out via the Commission. There are a number of communications going out, from the Government, from the Commission, and from the Electoral Commission, all asking people to consider signing up for a postal vote, but it's true that the electoral administrators are very concerned about a bulk of applications coming in on the last possible day and how they could possibly administer that, so we are asking people to try and apply as early as possible in those circumstances. But I don't rule out minor amendments at Stage 2, if necessary, as a result of those conversations with the returning officers around the administration of the postal ballot.

10:15

Thank you for that, Minister and Carwyn. David Melding.

I just wondered if similar reasoning was applied to the decision not to, in this Bill anyway, unless you subsequently amend it, have a facility for early voting.

Likewise, we're not having a facility for early voting if the poll goes ahead on 6 May, and I reiterate that that's what we'd like to have happen in all the circumstances. But, if it is necessary to postpone the election from 6 May and we were able to separate it from the PCC elections, then we would certainly want to explore the possibility of early voting. And again, in conversation with the UK Government, that was not something that they wanted to consider doing for the PCC elections and trying to run—. Already, that's a complex ballot, with different voting systems, different franchises and so on, for the administrators. Trying to run an all-postal or an early voting system for one set of elections and not the other is just beyond contemplation, isn't it? You'd have an elector turning up at an early voting station being told that they had to come back anyway on the date of the poll to vote in one of the elections; I mean, it just doesn't work.

And just the scale of early voting—. I mean, you've said an early voting centre. So, that indicates that you're probably thinking of one or two, but probably not several in a constituency, and are there equality issues—? I mean, how might it be structured, just in case we go down this road in a postponed election?

So, it's still under discussion with the returning officers about the exact nature of it. The two things most under discussion are opening all the polling stations early—again, we're very used to having a polling date on the Thursday of a given week, but that's just custom and practice, isn't it? So, if we did have to move the election and all the circumstances that we've just discussed, then it's possible to move it to a Monday and have voting over the weekend preceding it, which is done in very large numbers of other countries. But we're in discussion with them about whether it would be possible to open all the polling stations over those two days, or whether large civic centres, tertiary colleges and places with easy access, and so on, would be the best way to do it. And that's very much under discussion, David, at the moment, taking into account all the things you've just mentioned—equality impact assessments, disability, all those sorts of issues—and, frankly, the ability of the returning officers to staff up safely and effectively all of those different arrangements. So, that's an ongoing discussion.

So, early voting could look a bit like voting on multiple days. Is that the practical effect of what you've just said?

Yes. That's exactly what we're discussing. The polls are already open 7.00 a.m. until 10.00 p.m. and nobody thinks it's worth opening them from 6.00 a.m. until 11.00 p.m., for example. The numbers of people arriving in the first and last hours are very small already. So, the idea would be to allow people to vote on multiple days. And then, as I said, the issue is whether you open every polling station from 9.00 a.m. to 5.00 p.m. on the two preceding days and then from 7.00 a.m. until 10.00 p.m. on polling day, or whatever. I mean, that's a matter for some discussion between us and the electoral administrators.

And the final question, then, from me: do you regret not following the practice that they adopted in Scotland, where they did introduce their Bill in November and it followed a pretty regular parliamentary procedure? Now, we're dealing with this as an emergency Bill, and it's really dealing with a contingency that we fully realised that we had in November. So, on reflection, do you think that you should have introduced the Bill in the autumn?

Well, these things are always about the art of the possible, aren't they, and in November, of course, we were dealing with a very stretched set of resources, dealing with both the pandemic, and an increasingly virulent pandemic, and the onset of Brexit. So, it is, I'm afraid, just the art of what it's possible to do in the circumstances that prevail at the time. So, obviously, everything is better if you do it in good time, but we are only able to do what it's possible to do, so, this is what it's been possible to do.

Okay. Minister, that really concludes the session. If there was anything additional that you wanted to add, although, obviously, there's a very small amount of time for that—. But in the absence of that, obviously, there'll be a transcript of evidence to you in due course. Thank you for your evidence session this morning, and for the clarity of your answers. I think that concludes this particular session. We're ready now to move on to item 3. I think we'll just give the Minister a moment.

10:20

Diolch, Mick. Thank you very much, Mick, it's been a pleasure to be here. And, obviously, we'll be talking about this again only tomorrow.

3. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3
3. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3

Okay. I think we're ready to move on now to item 3. We move on to the Health Protection (Coronavirus, International Travel, Operator Liability and Public Health Information to Travellers) (Wales) (Amendment) Regulations 2021. Members have the report, the regulations, the explanatory memorandum, we have the letter from the Trefnydd of 22 January, and the written statement of the same date. This instrument makes amendments to three sets of regulations related to health protection and travel. The regulations were made on 22 January, and came into force at 4 a.m. on 23 January. If I can go over to the lawyers now for some reporting points.

Diolch. There are familiar reporting points around a breach of the 21-day rule, and consultation, et cetera. With regard to human rights, the explanatory memorandum says there's no change to the engagement of rights in respect of the international travel regulations or the public health information regulations, which is fine, but these regulations also amend the pre-departure testing regulations. So, the Welsh Government was asked to confirm the position regarding the pre-departure testing regulations. The Government response was received this morning, and the Government confirms that pre-departure testing regulations are engaged in the same way. And as regards consultation, these regulations change the duties on international travel operators when they provide information to passengers travelling to Wales. And the draft report asked the Welsh Government to explain what action it took to make travel operators aware of these changes. The Welsh Government response received this morning confirms that operators were notified of these changes on a UK-wide basis on 14 January, and that was done through the established communication channels and via industry representative organisations.

Okay. Thank you for that. Any comments, any observations from Members? I don't see any, so we move on to item 3.2, which is the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (No. 3) (Wales) Regulations 2021. Can I just go over to the lawyers for any comments on this?

Again, there are some familiar merits points, but no Welsh Government response required in this case.

Okay. Any comments, observations from Members? I don't see any.

4. Offerynnau sy'n codi materion i gyflwyno adroddiad arnynt i'r Senedd o dan Reol Sefydlog 21.2 neu 21.3 – trafodwyd yn flaenorol
4. Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3 - previously considered

So, we move on to item 4, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. We have considered—. We have five sets of regulations, which we considered on 25 January. We laid our reports that same day and we've now received the Welsh Government responses. So, if I can go on to the Marketing of Seeds and Plant Propagating Material (Amendment) (Wales) (EU Exit) Regulations 2020. Welsh Government response in respect of this instrument has been circulated to Members ahead of the Plenary debate on 26 January, and we're now just invited to formally note this response. Any comments from you, Gareth?

Any comments or observations from Members? I don't see any. Then following on from that, the National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2020. Again, invited to note the Welsh Government response to the technical and merits points that we raised in our earlier report. Any comments, Gareth?

Members, any comments or observations? I don't see any to that. On to the Health Protection (Coronavirus, International Travel and Restrictions) (Amendment) (No. 2) (Wales) Regulations 2021. Again, we've had the Welsh Government response. Any comments from the lawyers? No. Members? No comments or observations there either.

We're on to, then, the Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 2) Regulations 2021. And the same again. Are there any comments from the lawyers? Members? No.

And then on to the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) Regulations 2021. Again, we've had the Welsh Government response, which has been circulated. Any comments or observations from Members? No. 

10:25
5. Is-ddeddfwriaeth sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.7
5. Subordinate legislation that raises issues to be reported to the Assembly under Standing Order 21.7

In which case we now move on to item 5.1, the Candidate Election Expenses (Senedd Elections) Code of Practice 2021. The code has been prepared by the Electoral Commission to give guidance as to what does or does not fall within Part 1 or Part 2 of Schedule 7 of the National Assembly for Wales (Representation of the People) Order 2007. Those Parts are relevant to the definition of election expenses and, therefore, in particular to what expenses a candidate is required to report. There are some reporting points that have been identified. Gareth. 

Yes, there are two reporting points. The first notes that the code refers to rules on donations without further explanation as to what those rules are, and although those rules are outside the scope of the code, it might be helpful if the code signposted readers to where the rules on donations can be found. 

The second point notes—

Sorry. The second point notes that the code makes express reference to a candidate on a regional list being guilty of corrupt practice if they make a false declaration regarding expenses. But the code does not alert readers that the same would also apply to a constituency candidate. The Welsh Government has not yet responded. 

Okay. So, we await that response. Any other comments or observations from Members? No, I don't see any.

6. Offerynnau statudol y mae angen i’r Senedd gydsynio â hwy (Memoranda Cydsyniad Offeryn Statudol)
6. Statutory Instruments requiring Senedd consent (Statutory Instrument Consent Memorandums)

So, if we can move on, then—thank you for that from the lawyers—to the Electronic Commerce Directive (Education, Adoption and Children) (Amendment etc.) Regulations 2021. We have the relevant papers, including the letter from the Deputy Minister for Health and Social Services of 19 January 2021, and the written statement and a commentary. The statutory instrument consent memorandum relates to the Electronic Commerce Directive (Education, Adoption and Children) (Amendment etc.) Regulations 2021, which were laid before the UK Parliament on 18 January 2021. The consent memorandum was laid before the Senedd by the Welsh Government on 19 January. The consent memorandum notes that the objective of the regulations is to amend Schedule 11B to the Education Act 2002 and provisions in the electronic commerce directive to disapply the country of origin principle, and to make other consequential amendments to reflect the fact that the UK is no longer a member of the EU. And, of course, Members will be aware that the committee wrote to the Llywydd in November seeking clarification on the interpretation of Standing Order 30A and suggested that it be subject to a formal review. I think the Deputy Minister has also stated that she's not minded to table a motion for debate. If I can go over to the lawyers for any comments. 

No, no comments. 

Okay. Any comments, observations from Members on this? No, I don't see any. 

7. Papurau i’w nodi
7. Papers to note

In which case, we move on to item 7 now, papers to note. We have the letter from the Minister for Environment, Energy and Rural Affairs of 25 January 2021. It's in relation to the Official Controls (Temporary Measure) (Covid-19) (Amendments) Regulations 2021. The Minister's noting that she has given consent to the Secretary of State to make this instrument in relation to Wales. If there are any issues on this, I'd suggest that we raise them in private session. Okay. 

We move on, then, to item 7.2. We have correspondence with the Lord Chancellor and Secretary of State for Justice in respect of the Making Justice Work in Wales evidence that we've been taking. We've had a positive response. Is there anything on that, Gareth, that you want to add?   

No. We're just in discussion with officials from the Lord Chancellor's department to arrange a suitable date. 

Okay. Any further discussion on that we can deal with in private session. 

8. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o weddill y cyfarfod
8. Motion under Standing Order 17.42 to resolve to exclude the public from the remainder of the meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Which brings us, really, to moving into private session. So, in accordance with Standing Order 17.42(vi), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree that we now move into private session? I see there is agreement. So, we now go into private session.  

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:29. 

Motion agreed.

The public part of the meeting ended at 10:29.