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Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol

Constitutional and Legislative Affairs Committee

25/03/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dai Lloyd AM
David Melding AM Yn dirprwyo ar ran Suzy Davies.
Substitute for Suzy Davies.
Dawn Bowden AM
Mandy Jones AM
Mick Antoniw AM Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Keith Bush QC Tyst
Witness
Professor Laura McAllister Cadeirydd y Panel Arbenigol ar Ddiwygio Etholiadol y Cynulliad
Chair of the Expert Panel on Assembly Electoral Reform
Roger Awan-Scully Canolfan Llywodraethiant Cymru
Wales Governance Centre

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Ben Harris Cynghorydd Cyfreithiol
Legal Adviser
Gareth Howells Cynghorydd Cyfreithiol
Legal Adviser
P Gareth Williams Clerc
Clerk
Ruth Hatton Dirprwy Glerc
Deputy Clerk
Stephen Davies Cynghorydd Cyfreithiol
Legal Adviser

Cynnwys

Contents

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau 1. Introduction, apologies, substitutions and declarations of interest
2. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3
3. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 3. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3
4. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE 4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU
5. Offerynnau sy'n cynnwys materion i gyflwyno adroddiad arnynt i’r Cynulliad o dan Reol Sefydlog 21.2 neu 21.3 - trafodwyd yn flaenorol 5. Instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3 - previously considered
6. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C 6. Written statements under Standing Order 30C
7. Papurau i’w nodi 7. Papers to note
8. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 2 8. Senedd and Elections (Wales) Bill: Evidence session 2
9. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 3 9. Senedd and Elections (Wales) Bill: Evidence session 3
10. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 4 10. Senedd and Elections (Wales) Bill: Evidence session 4
11. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod 11. Motion under Standing Order 17.42 to resolve to exclude the public from the meeting

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.

Dechreuodd y cyfarfod am 13:00.

The meeting began at 13:00.

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

This is a meeting of the Constitutional and Legislative Affairs Committee. On to item 1, we've had apologies from Carwyn Jones, and Dawn Bowden will be a little bit late but she is on the way. In terms of housekeeping rules, the usual housekeeping rules continue to apply. Are there any declarations of interest?

2. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3
2. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3

If there are none, then we move on to item 2: instruments that raise no reporting issues under Standing Order 21.2, and we start with the Council Tax (Additional Provisions for Discount Disregards) (Amendment) (Wales) Regulations 2019. These are regulations whereby certain people are disregarded when determining whether a dwelling is subject to a discount on the amount of council tax that is payable. The classes of people who are disregarded are set out in Schedule 1 to the Local Government Finance Act 1992. These regulations amend the 1992 regulations to add eligible care leavers to the category of people to be disregarded for the purpose of calculating council tax. Any comments or observations?

So, if there are none, item 2.2: the Local Authority Fostering Services (Wales) (Amendment) Regulations 2019. These regulations amend the Local Authority Fostering Services (Wales) Regulations 2018 in several ways, including to allow a local authority provider to appoint an officer from another local authority to be responsible for the management of the fostering service. Are there any comments or observations?

If there are none, 2.3: the Civil Enforcement of Parking Contraventions (County of Monmouthshire) Designation Order 2019. This is an Order that designates the areas described in the Schedules to the Order as civil enforcement areas for parking contraventions and a special enforcement area for the purposes of Part 6 of the Traffic Management Act 2004. The Order would enable Monmouthshire County Council and Caerphilly County Borough Council to enforce parking contraventions within the areas described in the Schedules through a civil law regime, as opposed to enforcement by police or traffic wardens in a criminal context. Any comments or observations?

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

If not, we now move on to agenda item 3: instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We start with negative resolution instruments: the Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. These are regulations that make amendments to four statutory instruments relating to town and country planning. Any comments or observations? There are some.

Yes, there are four technical reporting points and two merits points, starting on pack page 5. The Welsh Government response was received after today's papers were circulated, so Members should have hard copies. The first technical point raises the issue of how all this exit-related legislation fits together and how it all works together. In this case, the regulations are dependent on other regulations being proved by the UK Parliament in time, and it wasn't clear what would happen to these regulations if those other regulations were not approved in time. The Welsh Government response confirms that the Welsh Ministers would have to make further regulations if those other regulations were not made in time.

The second technical point notes that the regulations refer to any provision of retained EU law that implemented certain EU directives. The draft report suggests it would be much more transparent if it was made clear exactly which bits of retained EU law were in play here. The Welsh Government accepts the points, noting that the approach adopted was deliberate but that it intends to make new regulations to be more specific when referring to retained EU law.

The third technical point notes that 'Town and Country Planning Wales' is missing from the subject heading to the regulations. It's standard practice to include a heading that reflects the subject of the regulations, along with the territorial suffix.

The fourth point points to some definitions used in the English version that do not contain the corresponding Welsh text, while the Welsh version does contain the corresponding English text for those definitions. The Welsh Government accepts those two points and will seek to address the errors by correction slip.

The first merits point notes that the published version of the regulations has the wrong name of the Minister in the signature clause, but the Welsh Government states that the version that was actually and physically signed was signed by the correct Minister. So, there seems to be an administrative error that has happened during registration of these regulations. The second merits point simply notes that these regulations were sifted by the committee and it was agreed that the negative resolution procedure was appropriate.

13:05

Okay. Well, there's a certain amount of progress in a number of those items in the response. Any comments or observations? Okay. Noted.

We now move on to item 3.2, the Council Tax (Exempt Dwellings) (Amendment) (Wales) Order 2019. This Order amends the Council Tax (Exempt Dwellings) Order 1992. Council tax is not payable in respect of exempt dwellings. Classes of exempt dwellings are prescribed in the 1992 Order. The Order inserts a new class into the 1992 Order, which exempts dwellings in Wales that are occupied by one or more care leavers, and where every resident is either a care leaver, a relevant person within the definition in class N of the 1992 Order—students, et cetera—or a severely mentally impaired person. And the Order defines the term 'care leaver' with reference to a category 3 young person, as defined in the Social Services and Well-being (Wales) Act 2014. Any observations or any comments on that?

Yes. One technical point starting on pack page 25, which simply asks if the reference to 'persons under 25' would be more precise than references to 'persons aged 24 or under'. So, the draft report just probes a little around the different ways of referring to age. The Welsh Government's response we received this morning, so, again, Members should have hard copies available. The Welsh Government says it carefully considered the different approaches and decided on the approach of 'age 24 or under', confirming that this includes anyone up to the age of 25. And the Government notes that this approach has also been used in another set of regulations laid before the Assembly.

Okay. We note that.

Item 3.3 is the Flood and Water (Amendments) (England and Wales) (EU Exit) Regulations 2019. These regulations make amendments to secondary legislation in the field of environmental protection, water and flood. Any comments there?

There's one technical point and two merits points starting on pack page 39. The technical point notes a defect in the way one sentence would read once the amendment had been made. The Welsh Government accepts the error and will correct it by making amending regulations. The first merits point simply notes that these regulations were sifted by the committee and the negative resolution procedure seemed appropriate. The second merits point explains that the regulations have 'England and Wales' in the heading because Welsh Ministers have certain cross-border powers in relation to water supplied by water undertakers operating wholly in Wales or mainly in Wales, thus the England and Wales cross-border element.

Any other comments? Okay, so we note that.

We move on, then, to item 3.4, the Plant Health (Fees) (Forestry) (Wales) Regulations 2019. These are regulations that increase certain fees payable to the Welsh Ministers for various licences, inspections, checks and works relating to plant health. You've identified some—

Yes. One merits point in accordance with Standing Order 21.31, noting that these regulations increase fees payable to the Welsh Ministers for various licences, et cetera, relating to plant health.

Okay. Any comments? No.

On to item 3.5, the Forest Reproductive Material (Great Britain) (Amendment) (Wales) Regulations 2019. These are regulations that amend the Forest Reproductive Material (Great Britain) Regulations 2002 in relation to Wales. The 2002 regulations were made to implement European legislation on a Great Britain basis. The 2002 regulations have since been amended, including in 2014, in respect of England and Scotland only. As such, the amendments made by these regulations are necessary to bring Welsh legislation up to date with EU law obligations, and to make provision in line with the law of England and Scotland. Any observations?

Yes. There's one merits point, starting on pack page 78. These regulations amend a set of Great Britain-wide regulations and the merits point notes that those Great Britain-wide regulations were amended in respect of England and Scotland back in 2014, so the question is asked why the changes are only now being made in Wales, and the Government has not yet responded.

So, we're waiting for a response on that. Okay, that'll come through in due course. Any other comments? No.

Item 3.6: the Plant Health (Forestry) (Amendment) (Wales) Order 2019. This Order applies, in relation to Wales, certain provisions that have already been made to the Plant Health (Forestry) Order 2005 in relation to England and Scotland. It introduces a new provision as well to allow the disclosure of information from the HM Revenue and Customs to the Welsh Ministers. Any observations?

13:10

Yes, there are four technical points, starting on pack page 99. The first two technical points raise the issue of these regulations amending legislation that seems to apply in relation to England and Scotland only. The third technical point notes this Order seems to amend another piece of legislation in two contradictory ways, and it isn't clear which amendment is intended. The fourth technical point notes the amendment made by this Order seems to have already been made, so it seems to be unnecessary to be doing this again, and we are waiting for a Welsh Government response.

We'll note those as well. Okay.

We move on to item 3.7, which is the Agricultural Wages (Wales) Order 2019. This Order is made by the Welsh Ministers under the Agricultural Sector (Wales) Act 2014, which we're all familiar with. It makes provision about the minimum rates of remuneration and other terms and conditions of employment for agricultural workers. It deals with a number of matters: increasing the rates of pay, also identifying certain deductions that can be made where, for example, accommodation is provided. I think there are a number of technical points identified.

Yes, there are three technical points, starting on pack page 139. The first raises the same question the committee raised in the 2018 version of this Order, which is a question about the clarity of what deductions can be made from agricultural sector worker wages when, for example, the employer provides accommodation for workers. For example, when an employer provides a worker with a house for a week, can the employer deduct £1.50 an hour from the worker's wages throughout that week, or is it a total of £1.50 for that whole week?

The second technical point notes that when, for example, a worker has been employed for exactly 24 months, two separate entitlements to sick pay seem to apply, so it's not clear which one is intended to apply. The third point notes a typographical error in the Welsh version of the Order, and the Welsh Government has not responded yet.

So, we're waiting for a response. Those items will come back. Any other comments on this? No.

We move on to item 3.9, then, the Invasive Alien Species (Enforcement and Permitting) Order 2019. [Interruption.] Sorry, I beg your pardon. The Sea Fishing (Penalty Notices) (Wales) (Amendment) Order 2019. This starts at pack page 225. The committee considered and reported on the Sea Fishing (Penalty Notices) (Wales) Order 2019 last week. This was the issue as to whether it was ultra vires insofar as it referred to Welsh fishing vessels registered in Wales, but outside Wales's seas. That matter has now been addressed by the Government.

Yes, and the merits note simply welcomes the speedy response taken by the Government to the error that was raised at last week's meeting, and that breach of the 21-day rule seems entirely justifiable in this case.

Okay. Any comments or observations?

Item 3.9, the Invasive Alien Species (Enforcement and Permitting) Order 2019. This is an Order permitting and licensing provision needed to comply with the requirements of EU regulations on the prevention and management of the introduction and spread of invasive alien species. It also provides enforcement provisions and prescribes offences and penalties. There are a number of technical points that have been identified there as well.

There are three technical points, starting on pack page 236. The Welsh Government response was received after today's papers were circulated, so, again, Members should have hard copies of the response. The first technical point notes the Order is made by both the Welsh Ministers and the UK Ministers, and is therefore laid before both the Assembly and the UK Parliament. As a result, the Order's in English only.

The second point notes a minor error in the explanatory memorandum. The draft report notes this as a drafting error, but given the minor nature of the error and the fact that it is in the explanatory memorandum, Members may be content to withdraw that as a technical reporting point.

The third technical point questions a cross-reference in the Order. The Welsh Government response helpfully clarifies that the cross-reference in the Order is correct in that it correctly refers to the power to detain.

13:15

Okay. Any comments? We note that.

The Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Supplementary Provisions) Regulations 2019. The 2018 Act established the statutory system in Wales for meeting the additional learning needs of children and young people. Part 3 of the Act continues the Special Educational Needs Tribunal for Wales and renames it the Education Tribunal for Wales. These regulations make amendments to section 91 of the 2018 Act, which provides for the constitution of the education tribunal, including the appointment of the president of the tribunal and other members of the education tribunal. I think the relevant area is page 298. The issue that's raised there, of course, is the issue of a conflict with regard to the appointment of the president of the tribunal. Do you want to comment on—?

Yes. The draft report has one merits point, which questions the use of supplementary powers to make changes to the appointment process that applies to the president of the Education Tribunal for Wales. The Additional Learning Needs and Education Tribunal (Wales) Act 2018 sets out the procedure for the appointment of the president of the Education Tribunal for Wales, which involves both the Lord Chancellor and the Lord Chief Justice. These regulations amend the appointment process in the 2018 Act so as to remove the role of the Lord Chief Justice. And the draft report asked the Welsh Government to expand on the use of supplementary power to reverse something in an Assembly Act. 

At the same time, the draft report notes what the Minister for Education said during Stage 4 proceedings about her intention to make these changes by regulations. The draft report suggests that Stage 4 is not the best way to gain cover for using supplementary powers in this way, and the Government has not yet responded. 

Okay, so we're waiting for that response as well. Some important issues there. 

Item 3.11: the Qualifications Wales (Monetary Penalties) (Determination of Turnover) Regulations 2019. These regulations make provision for how Qualifications Wales is to determine the amount of a monetary penalty to be imposed on an awarding body that has failed to comply with a condition of its recognition, or a condition of approval to which its approved qualification is subject. And you've identified some issues there as well, I think. 

Yes, one technical point and one merits point, starting on pack page 307. The technical point notes there could be a lack of transparency about the use of the word 'month' in the regulations. While the meaning of 'month' is the meaning given in the Interpretation Act 1978, that is, a calendar month, that may not be of great use to many readers of these regulations. And the draft report notes correspondence between this committee and the Counsel General last year, where it was agreed that use of footnotes to expand on the meaning of certain important terms would be useful, but there's no such use of a footnote in these regulations, which could have helped clarity and transparency. 

The first merits point notes that the regulations allow Qualifications Wales to set monetary penalties, subject to a cap and subject to reasonableness and proportionality, but the draft report also refers back to the committee's Stage 1 report on the Qualifications Wales Bill, which cited an important passage from the explanatory memorandum with the Bill. That passage is at the top of pack page 309, and the passage from the explanatory memorandum states that the Assembly will have

'the opportunity to debate and scrutinise the amount of the penalty',

but here we are seeing the regulations that give Qualifications Wales a wide discretion as to the setting of monetary penalties, leaving little for the Assembly to scrutinise as to the actual level of those penalties. The draft report also notes the position in England, where the extent of Ofqual's discretion is set out on the face of primary legislation and not in subordinate legislation. 

And the second merits point notes some concerns that were raised during consultation about the potential for both Ofqual and Qualifications Wales to impose financial penalties on the same organisation. The explanatory memorandum refers to close working between Ofqual and Qualifications Wales, including co-ordination of monetary penalty decisions, and this close working appears to be done by memorandum of understanding, but the memorandum of understanding could be more explicit about co-ordinating monetary penalty decisions. 

The third merits point notes the potential for confusion in that the explanatory memorandum says what factors Qualifications Wales is likely—. Sorry, the Act says what factors Qualifications Wales is likely to take into account when making monetary penalty decisions. The explanatory memorandum, on the other hand, says the factors Qualifications Wales will take into account when making monetary decisions. So, there is a slight discrepancy there.

And the draft report also notes and probes that question of transparency a little further. For example, if there is a duty to act transparently, then how does that fit in with a list of factors that are likely to be taken into account? It's not a comment about the regulations themselves; it's more a general point about transparency, if Members are content to leave it in the report.  

13:20

Okay. Any comments or observations? Just note that. Okay. 

4. Offerynnau nad ydynt yn cynnwys materion i gyflwyno adroddiad arnynt o dan Reol Sefydlog 21.2 na 21.3 ond sydd â goblygiadau o ganlyniad i ymadawiad y DU â'r UE
4. Instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the EU

Move on to item 4, then: instruments that raise no reporting issues under Standing Order 21.2 or 21.3 but have implications as a result of the UK exiting the European Union. Item 4.1: the Rural Affairs, Environment, Fisheries and Food (Miscellaneous Amendments and Revocations) (Wales) Regulations 2019. These regulations introduce miscellaneous amendments to a number of statutory instruments relating to education, environmental protection, agriculture, animal health and welfare, education, environment, food, plant health, sea fisheries and water. The majority of the changes amend out-of-date references to European and domestic legislation. The instrument also makes a small number of revocations in relation to redundant legislation. Any comments? 

Only to note that here's another example of domestic legislation that will form part of retained EU law on exit. 

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

Okay, on item 5, which is the Genetically Modified Organisms (Deliberate Release and Transboundary Movement) (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. There were 11, I think, items that we'd identified. We have referred these to Welsh Government. We did ask for the matter to come back here. We're still awaiting a response, so I would suggest that we defer this to the next meeting. Hopefully by then we will have had a response. Can that be agreed? 

Item 5.2: the National Health Service (Clinical Negligence Scheme) (Wales) Regulations 2019. The committee considered the report on these regulations at its last meeting. The Government response was received following the meeting on Monday, and Members therefore have the opportunity to reconsider the reporting points in the light of the response. And the report must be laid before the Assembly this afternoon, and I understand we now have a response. 

Yes. So, the committee asked last week why there was no regulatory impact assessment, given the apparent significant nature of these regulations. The Government response is there on pack pages 346 and 347, which sets out some policy considerations and some financial impacts. And the Government response concludes in paragraph 5 of the response, stating there is no major policy impact being made by these regulations. 

These regulations, they move from a private scheme to a state based scheme for clinical negligence indemnity for the provision of GP services. Are there any comments or observations on that? If there aren't any, then we move on.

6. Datganiadau ysgrifenedig o dan Reol Sefydlog 30C
6. Written statements under Standing Order 30C

Item 6 is written statements under Standing Order 30C. The Regulation (EC) No 1370/2007 (Public Service Obligations In Transport) (Amendment) (EU Exit) Regulations 2019. These are the ones, I think, relating to state aid and the issue as to the dispute between Welsh Government and UK Government over whether state aid is or is not devolved. Any comments there? 

Nothing further.

There is ongoing engagement, so the issue in terms of the legal arguments remain unresolved at the moment. 

7. Papurau i’w nodi
7. Papers to note

In which case, we move on to item 7, papers to note. There's a letter from the First Minister to the Chair of the External Affairs and Additional Legislation Committee. I think that's at page 356. Can we note that, and if any issues arise, take up it up in private session? Agreed.

Item 7.2 is a letter from the Chair of the Equality, Local Government and Communities Committee to the Llywydd. And a letter from the Chair of the External Affairs and Additional Legislation Committee, 14 March 2019. Again, can we note that, and any issues we'll take up in private session?

A letter from the Counsel General and Brexit Minister with regard to the State Aid (EU Exit) Regulations 2019. Again, just to note that. Is that noted?

Item 7.4 is a letter from the Minister for Finance and Trefnydd regarding the Nutrition (Amendment etc.) (EU Exit) Regulations 2019. Again, a letter to note.

Okay. We now move on to item 8, which is the evidence session. We have a five-minute break. Is that agreed? We'll move into private session.

13:25

Gohiriwyd y cyfarfod rhwng 13:25 ac 13:29.

The meeting adjourned between 13:25 and 13:29.

8. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 2
8. Senedd and Elections (Wales) Bill: Evidence session 2

Okay. I welcome Laura McAllister, who's chair of the expert panel group in respect of this legislation. Thank you for attending the committee today. We have quite a wide range of questions to you, in a very short space of time, so we'll do our best to get through as much as we can, and we obviously have a number of witnesses subsequently. Just to kick off then, why should the voting age be reduced to 16?

13:30
Professor Laura McAllister 13:30:05

I think, Chair, what I'd say about that first, just to make a caveat, is that none of us who worked together on the expert panel were evangelical advocates of votes at 16. We all came from fairly different backgrounds in this regard, in that we had different opinions, but none of us were energetic champions, let's say. So, we could see the arguments both for and against lowering the voting age to 16.

But, if you look at the terms that were set for us as an expert panel, and terms that I was keen to adhere to as chair, we were asked to weigh up the evidence, domestically and internationally, with a view to coming to a conclusion as to whether this was the right thing for Wales to pursue, and that we did. As you will see from the report, there's quite a lot of evidence there that is both international and domestic, particularly using Scotland, Jersey and Guernsey, and the Isle of Man, which, of course, are geographically closest to us. And I think that the conclusion we came to was that there wasn't a strong argument against lowering the voting age, and that the opportunity and potential of lowering the voting age was something that we felt was compelling in its own right.

So, I'm very happy to take you through some of that thinking, but I wanted to make the point right at the outset that this was empirical evidence, rather than a kind of crusade to do it politically, because that really wasn't our task, and none of us fitted into that bracket anyway.

If it was possible to sum up succinctly the evidence for doing it, what would it be?

Professor Laura McAllister 13:31:44

I think I'd focus particularly on some of the logistics about starting the voting journey at 16 versus starting at 18. I think we all know from our own experiences and young people around us that 18 is quite a turbulent time in a young person's life. They tend to have either left home to start university or college, or employment, or lots of other things are happening, whereas I think that at 16 most young people are still resident with their parents or guardians in their home. There’s more opportunity, really, for influence in terms of encouragement to vote to happen from parents and guardians. And probably most significantly I think, in terms of that differential between 16 and 18, there is the fact that it offers a big opportunity for effective citizen education and political education through the systems that we already have.

You can look at schools and colleges as either a captive audience or a huge opportunity for promoting a different, more engaged citizen in the future, and we definitely came down in the latter camp, in that if we were to introduce votes at 16, we say very clearly that that should be aligned with a much more expansive programme of political and civic education. And I think that that requires quite a lot of investment, actually, in both time and resource, for it to be done effectively. But, I think, if the two things go hand-in-hand, then for me, 16 gives an opportunity to start a young person on the democratic journey with the right tools to be able to be a constant voter rather than an occasional voter, which I think we know young people have tended to be up until now.

I'll come on in a minute to the issue of the citizenship and political education aspect of it, but in terms of the arguments against lowering the age to 16, we've received some evidence already on that. How would you sum up what the strongest arguments were against the voting age being reduced to 16?

Professor Laura McAllister 13:33:49

Well, for me, they're pretty muddled, in all honesty, and I know you've received evidence from one of my academic colleagues in this regard. Interestingly, most academics who research this area tend to argue against votes at 16, rather than in favour, but without very significant empirical evidence, in my opinion, which is where I think the expert panel report has filled quite a big gap. So, I think what they tend to say is that there is no single age threshold at which a young person becomes an adult, and that’s factually correct, of course, and we do set out in our own report the table of all the different ages at which a young person takes on legal obligations and rights. So, in a sense, we argue the same on that, and we didn't find that argument compelling, that there should be a single age, actually, because they're are very different for very different subjects.

I think they come at it from a point of individual rights, which I think is mistaken, because we weren't making the case that there was a juncture at which an individual acquired the rights and responsibilities of being an adult. Instead, what we were saying was that this was an opportunity for a programme of much greater democratic engagement and citizenship, and that we felt the logistical opportunities to engage with young people at 16 were stronger than they were at 18.

I think opponents also talk about the limited boost to turnout that has occurred so far in the countries that have introduced votes at 16, but, again, I would counter that by saying that, like all good academic research, it has to be longitudinal. So, at the moment, most of the countries that have introduced votes at 16 have only done so fairly recently—Austria, 2007; Scotland, 2014. These are in the last decade, effectively, and, really, you need a whole pattern of cycles of election to work out whether there will be a dividend from including younger people in the franchise.

13:35

Okay. In your report, you obviously make great play—you put emphasis on the importance of political and citizenship education as part and parcel of what needs to be done if we're to reduce voting to 16. Within the Bill, of course, there is no specific duty in that respect. Perhaps you could just say a little bit about why there is such an emphasis on the political education; what your concerns are around that; how crucial that is to the issue as to whether whatever decision is eventually taken by this Assembly with regard to the legislation, but, also, the fact that there's a fairly glaring omission within the Bill itself in order to create a duty to facilitate that. I've summed several questions into one for time.

Professor Laura McAllister 13:36:50

I understand the point. I think, in terms of the remit of the Bill, from our point of view, clearly, it would have been preferable to have seen a commitment to move in the direction of citizenship and political education, but I understand there is a degree of overlap, obviously, with executive responsibilities in that regard, and the origins of this Bill, having come from the Llywydd and the Commission, might have made that difficult. But I think whatever happens in amendments further down the line, there needs, in my opinion, to be a very strong, aligned commitment to improving the curriculum and extra-curricular engagement with young people around politics and civic education. And, in fact, it goes back to my earlier point that this isn't something that applies exclusively to young people. I mean, personally, I think people of all ages and in every bracket of age would benefit from improved citizenship and political education. However, we don't have opportunities for intervention amongst older people. And whilst those people who argue against would say, 'Older people vote', I think there are a whole range of cultural reasons why that's the case, and, of course, we know people in the middle age brackets now are actually declining in terms of turnout. So, I think this is a generational opportunities to invest properly in the youngest age group of people so that by the time they vote at 16, should this legislation come into force, they'll be permanent voters, not just occasional voters.

In terms of what you said, Chair, around what kind of profile of citizenship and political education should be provided, we set out some evidence in the report about how we see it. We don't think it should purely be the mechanics of how you vote, the practical considerations about going to a polling station and casting your vote, nor should it be just about electoral systems because, obviously, we use various different electoral systems in Wales and elsewhere. We think it should be about how to evaluate political offers, so to speak. So, in lots of European countries, evaluating manifesto commitments can be incorporated into the curriculum. Consideration of implications of a significant policy intervention is considered. So, this could be quite expansive, actually, quite radical and quite fresh in terms of democratic renewal, and I think our thinking came from the fact that we know that we have—however you want to term it—a problem with democratic engagement, some would say a crisis. If we're going to address that seriously, then it seems to me doing something through schools and with the youngest age population is probably the most advantageous way of going about it.

I don't need a detailed answer from you because we'll explore this with other witnesses over the period of time, but was the expert panel satisfied with the adequacy of the level of political education for the purpose of reducing the voting age to 16? Was that something you considered?

13:40
Professor Laura McAllister 13:40:03

Do you mean what's currently in place through the Welsh baccalaureate?

Yes. The emphasis in your report is that it should be put in place to accompany—. That seems to imply that you're not satisfied that it is in place. 

Professor Laura McAllister 13:40:16

Yes, I think that's a fair conclusion to draw. I think that, clearly, this was slightly outwith our terms—to actually look at what currently goes on. But, in the context of what we were recommending by way of change, it seemed to us that it was appropriate to critique some of the current provision that happens for young people. I think our take was that it's rather piecemeal. It's quite ad hoc. Clearly, the Welsh baccalaureate provides some opportunities, as does an A-level provision in politics, for example. But, it's very easy for a young person to weave their way through secondary education without getting any of that, really, or very little of it. I think that if we are to introduce younger people into the franchise, then this gives us an opportunity to address an issue that I think would be of benefit for us much more widely than this: critical thinking, political analysis of the kind I've mentioned before.

I suppose that what else I would add would be to say that I think we've been quite fearful of the notion of political education for fear of it being biased or driving young people into one particular ideology. But, I think that if you look at other European countries, they manage to do this really easily in a balanced, fair way. They have a different teacher training programme to ensure that this is done adequately and fairly. But, I don't think that this is about indoctrination or brainwashing. I think that young people are very sensible, by and large. I think that they have the same capacity as anyone else to weigh up arguments that are set before them. But I do think that this should be aligned very closely with the recommendation about lowering the voting age.

Yes. You've answered most of what I wanted to ask, basically, but at this moment in time, Wales wants 16-year-olds to vote in the 2021 elections. There has been no education for those kids previously, so, how are they supposed to make an informed decision in 2021? I think, personally, it should be left as it is until that education—those three or four years of education—is actually in place.

Professor Laura McAllister 13:42:32

I understand your point, and that was raised with us during our work, actually. The reason that we didn't suggest that there needed to be events ordered in that way—first the political education and then the legislation—was that I think you can procrastinate around 'when' for quite a long time: the point of intervention. For me, the most compelling evidence came from the Electoral Commission in Scotland, which talked about how they'd used the independence referendum—. I'm not making any claims that an independence referendum is the same as a normal election, by the way, because clearly it's quite different in terms of noise and profile and engagement and so on. Nevertheless, the Scottish Electoral Commission talked quite a lot about how the votes at 16 gathered momentum in a very short space of time, actually, and that even in the ensuing elections—the Scottish parliamentary elections in 2016 and the local elections the year after—young people reported to the Electoral Commission that they felt that they'd had enough exposure to citizenship and political education to be able to make informed choices.

In fact, the Electoral Commission talked about how end-loaded that was, if you know what I mean—that, actually, young people got engaged with it much closer to the time of the election and referendum, despite it having kick started some time before. So, I take your point, and I think you can argue that, and it's a credible argument. But, for me, I think 2021 is a really significant opportunity for us. It would put us in line with some other countries that have got proven evidence of this having boosted numbers of young people voting. I think that we can still have enough time built in to give some proper preparation through various means—maybe not curricular in that sense; you know, formally curricular—to give young people enough tools to be able to make decisions.

Could I go to David Melding? Sorry, I'm going to try to move things quickly.

Yes, I just want to test this hypothesis that it's by having an education programme that you justify votes at 16. I believe in votes at 16, but for completely different reasons. It seems to me that that age group is a massive consumer of education. The whole issue of early adulthood doesn't get enough attention in our politics. The mess we've had since the second world war in vocational education is very difficult to understand, I think. Having that age group more likely to vote would definitely, in my view, rebalance some of that and the intergenerational issues that we face. But I think it's a non sequitur to say, 'Well, we need a small 'p' political education and education in citizenship, therefore, we allow people to vote at 16', because voting at 18 still requires surely a small 'p' political education and citizenship. We should be doing that from when people go to high school, shouldn't we? I do not see the logical connection that, therefore, they should vote at 16 as essential to delivering that.  

13:45
Professor Laura McAllister 13:45:50

I think I understand the point you're making as being that you could effectively do this without political education in sequence—that we've mentioned a moment ago. But I think what we were trying to say in the report, by aligning the recommendation with an assertion that we need better provision, was, 'This could be a benefit to everybody in the franchise, not just to young people', because obviously today's 16 and 18-year-olds will be the 18 to 24-year olds of the future and older subsequently. So, it seems an opportunity to us to actually address a problem that is long-standing and deep seated. If we are going to do that, we could, of course, put a resource into educating another age group, for example, 45 to 54-year-olds. But there are a number of reasons why that probably wouldn't be a good use of public money and investment: one—capture and reach and then, secondly, opinions are hardened and tightly formed by that point.      

My real point, which wasn't succinctly expressed, I think, is that we should be doing this education work anyway, whether the voting age was 21 or 18. 

Professor Laura McAllister 13:47:06

Yes. That's a fair point to make, but in terms of what we were asked to do—to make a conclusion over the appropriateness of lowering the voting age to 16 and 17—this seemed to us to give an opportunity to kick start something, which, as you rightly say, David, should be present more widely and more consistently anyway. But, I guess, given it isn't, and given it isn't expansive enough, this is an opportunity to do so. 

Okay, I've got to move on. We will, of course, hopefully have the education Minister at some stage to explore that further. Dawn Bowden. 

It's not within our area of responsibility, and so on, but I'd be interested in your views on whether you think lowering the voting age for the UK Parliament would be the obvious next step, particularly as the evidence in your report says that the higher the importance that's seen to be given to an election then the higher the turnout. So, does that, to you, seem to be the obvious next step? 

Professor Laura McAllister 13:48:07

Well, I suppose it depends what you mean by obvious, because clearly there have been some attempts to address the issue of votes at 16, both for elections and referenda at a UK level. As you know, there was an amendment moved in the Lords around the EU referendum, with a strong argument given by one of your colleagues, Eluned Morgan, around the future responsibilities of young people inside or outside the European Union. However, I don't detect a really strong appetite for legislative change in the UK Parliament currently, and, in a sense, that's not our concern. The only area where I might suggest it would be a concern is in terms of clarity for a young person as to which tiers they can actually vote at. But I think we have to look after what we can look after here, which is local government and the national tier of our parliamentary elections, and I think we have a quite unique opportunity to do something about that in time for 2021. 

It might well be that if Scotland and Wales have votes at 16 at national level, then the UK Parliament follows suit, at some point. But, equally, that might take some considerable time, because I think we have a more cohesive programme of constitutional reform and renewal here. Despite some really good initiatives at UK Parliament, I'm not seeing a real groundswell of opinion that is convincing about votes at 16 for UK parliamentary elections. 

Professor Laura McAllister 13:49:48

Of course it could, yes.

—as a result of 16 to 18-year-olds getting more involved in an Assembly election. You touched on it, briefly in your answer there as well about the confusion that might reign then between that age group being able to vote in a local government election and an Assembly election, but not in a UK election, a bit like we see with foreign nationals that can vote in certain elections and not others and so on.

Anyway, my next question was more of a technical question, really. You refer in your report to the committee's predecessor's report, 'Making Laws in Wales', which recommended that there should be a presumption in favour of publishing draft Bills. Do you think the Commission should have consulted on a draft Bill on the voting age provision? Would that have been your preference?

13:50
Professor Laura McAllister 13:50:41

Well, I think the presumption in favour of draft Bills is a good one, but expedience and timing have probably made that more problematic now for this piece of work around votes at 16. Clearly, we, as an expert panel, had a very limited amount of time to work—not even one full calendar year, really, to look at what was much bigger than votes at 16, obviously, in terms of the terms of reference we had. So, I guess, in an ideal scenario, a draft Bill would have allowed more of these issues to be aired at an earlier stage. I would draw attention to, obviously, our own consultation and our own evidence gathering around this area. The Commission, obviously, then embarked on its own consultation, which was well received, I think, and well responded to. So, I don't think there are any really serious concerns on my part about the process, and I think this does at least give us an opportunity to rehearse some of the general principles before amendments. 

Is there anything not included in the Bill that you would have liked to have seen included?

Professor Laura McAllister 13:51:52

Well, I think you'll be aware—you can see for your own sake—it's a hefty report in terms of the expert panel and, clearly, only one chapter of that was around votes at 16. So, if you're asking me, 'Should more of the expert panel recommendations have been put into a Bill at this stage?' then my obvious answer is 'yes'. But I understand, obviously, the constitutional constraints around ensuring that you can gain a supermajority for any constitutional change, and, of course, these areas have huge political delicacy. I mean, the size of the institution I think was most—. Perhaps I shouldn't say that, but I think most Members here appreciate that their time is extremely stretched, and you're under enormous pressure in terms of what you do and how you scrutinise the Executive in particular. We know that increasing the size of the institution is not without its own challenges. But, from our own point of view, we saw these three areas of size, electoral system reform and votes at 16 as being part of a package of democratic renewal, and I hope that all of it will come to fruition at some point. But, in an ideal world, it would have been good to see these in one Bill together, but I appreciate the reasons why that was unlikely to happen.

Right. The expert panel also made recommendations around the number of Assembly Members and the voting system. Do you think that these changes should have been made in the same Bill?

Professor Laura McAllister 13:53:22

Well, yes, I think so. As I mentioned, it would be beneficial to have connected up the strands of the constitutional reform that we were recommending based on the evidence that we had. But, clearly, a supermajority makes that somewhat difficult and, in fairness, I understand that when you have a supermajority for a decision, most of the parties have to be on board to enable that to get through. And every party has its own democratic structures internally to go through. So, I think, probably, time has militated against the inclusion in this Bill. But I hope there will be another Bill in this Assembly that will deal with what I regard as being one of the most significant issues this faces, which is the size of this institution and, therefore, how you elect the additional Members.

Finally, do you think that changing the name of the Assembly to Senedd will remove any confusion about the role of the Assembly and improve voter turnout?

Professor Laura McAllister 13:54:28

I think it would probably be quite hard to make a connection between a name change and voter turnout, but I think it's part of a suite of interventions that I would support. I think, clearly, we've had a long and chequered history in terms of the powers and the structure of this institution—from the original corporate body to something de facto and then de jure much more distinct. But I think in the public's mind, and all of our polling that's conducted both by our colleagues in the Wales Governance Centre and beyond shows that in the public mind there is still a lack of clarity over the difference between the Welsh Government, the Executive, and the Parliament or the Senedd. So, I think a change of name to 'Senedd'—. And I wouldn't wish to get involved in some of the semantics around 'Senedd Cymru', although I'm across them. I don't have a particularly strong view on those, I have to say. I think the move to using the term 'Senedd' and making sure that yourselves as Members of the Senedd are categorised differently is a very positive one, and I hope in the public's mind, over time—this won't happen immediately, of course, but over time—they will better understand the relationship between the Executive that does and the Parliament that scrutinises what they do.

13:55

Yes. I just wondered if you or the panel thought about separating out the issue of increasing the number of AMs and the electoral system, because they're both very significant issues. By connecting them, it seems to me, you've made it much more difficult for them to pass. You could have kept the same ratio in any increase to constituency and regional Members, couldn't you, and therefore kept the same system we have now?

Professor Laura McAllister 13:56:08

Well, 'yes and no', I think, is the answer to that. The first point to make is that we were charged with assessing what number would be an appropriate number in terms of the size of this institution, and the second part of our remit was to then decide what electoral system might be used to elect them. The two go together, David, because if you look closely at our recommendations, we suggest than an Assembly of between 80 and 90 is appropriate, based again on international evidence and the exhaustion of other opportunities for improving business. But actually, we come down quite heavily in favour of the upper end of that bracket, closer to 90 than to 80, and you're quite right to say that if we were recommending 80, then effectively you could create a model of the additional member system that would generate 80 Members.

Well, I mean, you could do it with any number that's divisible by three.

Professor Laura McAllister 13:57:00

Well, you could, but it would counter some of the principles against which we measured the electoral systems, such as degree of proportionality or hyper-proportionality, relationship with electors and Members and so on. All of those were considered in our deliberations, but on balance we were drawn to a system that met more of the criteria that we set as an evaluation of the electoral system. Just very quickly, I think it would have been quite hard, actually, to have made a single recommendation about size alone, because the minute that the notion of size is circulated, people immediately want to compute how those new Members might be elected. If there is then a threat to, for example, proportionality or diversity or accountability, then I think you get debates happening around the electoral system without a serious infrastructure of evidence, which I hope we provided in our report.

Ie, diolch, Gadeirydd. Dim ond i—. Wel, rhagor o athronyddu, os ŷch chi eisiau. Yn naturiol, Bil sydd wedi cael ei gyflwyno gan y Comisiwn o dan law'r Llywydd ydy hwn. Ydych chi'n credu, yn y lle cyntaf, y dylai'r Comisiwn fod wedi achub ar y cyfle yma i gydgrynhoi'r holl ddeddfwriaeth mewn perthynas â diwygio etholiadol? Hynny yw, mewn geiriau eraill, ydych chi'n meddwl y dylai Llywodraeth Cymru fod wedi cyflwyno un Bil ar bob agwedd ar ddiwygio etholiadol ar draws pob etholiad?

Yes, thank you, Chair. Just a bit more philosophising here. A Bill has been introduced by the Commission—that's what we have before us—and it's under the auspices of the Presiding Officer. So, do you think that the Commission should have taken this opportunity to consolidate all of the legislation in relation to electoral reform? So, in other words, do you think that the Welsh Government should have introduced a single Bill on all aspects of electoral reform across all elections?

Professor Laura McAllister 13:58:33

Well, I understand the point, Dai, entirely, but again, I guess, we're talking about expedience, timing. I mean, clearly, the Welsh Government is working on its own legislation, I understand, around votes at 16 for local government elections, which I think is important. By the way, it's entirely important from our point of view that the first election that should take place for young people to vote in—sorry, I've expressed that very badly—should be at the higher level rather than the lower level. And that's not being hierarchical about the value of local government, but we know that the turnout is higher for Assembly elections than for local government elections, and I think it's really important that 2021 comes before 2022, when we might have votes for 16 and 17-year-olds at local government elections.

Your wider point, I mean—. Would it have been better to have a consolidating Bill around all of this? I guess, in some respects, it would, but some of this is part of the constitutional reform and renewal programme that the Llywydd has led, as I understand it, from her first appointment into that role. I think there are things around the parliamentary structure, and around the franchise, and indeed around the protocols about business and disqualification and dates of meeting after an election, that I think are right to come from the parliamentary side. So, I think, on balance, I can understand why this has been presented in the way it has. 

14:00

Un cwestiwn bach arall ar fater gwahanol: beth ydy'ch barn chi ynglŷn â'r darpariaethau yn y Bil yma mewn perthynas â'r modd y mae'r Comisiwn Etholiadol yn cael ei oruchwylio?

One further question on a different issue: what are your thoughts on the provisions of the Bill relating to the oversight of the Electoral Commission?

Professor Laura McAllister 14:00:22

I think that's a good point. It wasn't something that we considered within our work because it simply wasn't in the terms of reference. But setting that aside for a moment, I think it's appropriate that the Electoral Commission comes under the scrutiny remit of this institution, just as I think that it's right and proper that this institution has control over its own franchise, because we know that as it currently stands the franchise for national elections here is tied with the franchise for local government elections. I think that's inappropriate for a national parliament. So, a follow-through on that would be to say it's right and proper that the Electoral Commission comes under the remit of this institution. I think, probably, more work needs to be done about how that would be operationalised and how it would be funded and how you as an institution would ensure that there is proper oversight of its activities, but, in principle, I think it's the right one. 

To follow up on that point, any recommendations the Law Commission makes in terms of electoral law and the administration of devolved elections can be brought forward by regulation under section 36 of the Bill. Now, interestingly, the Welsh Government has said it doesn't think that's appropriate; it wants to do it by primary legislation. So, I just wonder if you have a view on that. So, this Bill's already, in that respect, possibly redundant. 

Professor Laura McAllister 14:02:04

Yes. Well, I guess that's one extreme interpretation, isn't it, of how that might pan out? I mean, I can see the point that the Welsh Government makes about the appropriateness of primary legislation in that regard, and I guess what we see here is something that is—as was alluded to in the previous responses—straddling some areas of Executive responsibility and some of the legislature. I think there's probably a way around that in terms of Stage 2 of the Bill because it would be a pity if the very healthy recommendations and positive parts of the Bill were tripped up by anything further down the line, but I can see the point of view that the Welsh Government is making in that regard. 

And then, on disqualification—I can't remember if this was in your remit, but as a very keen observer of our procedures—do you think it delivers an effective system in terms of disqualification, both to encourage a maximum number of candidates and then not to disqualify people who have just been unwary of a very confusing system, which I think a lot of us felt had happened in 2011?

Professor Laura McAllister 14:03:16

Two thousand and eleven, yes. I think that's a good point. I mean, 2011 was unfortunate, wasn't it, in terms of getting to the brink, really, of oath of office and so on and then discovering that there were issues around disqualification? So, I think this is a good clarification of that. The way I understand it is there's only two additional qualifications built in around membership of the House of Lords and the Lord Lieutenants and High Sheriffs and so on. I mean, obviously, that's not going to add a great deal of volume in terms of disqualification, but I do think it smoothes and clarifies some of these.

You make a very good point in terms of encouraging the broadest range of candidates because it's anomalous to have civil servants, for example, who are working at a fairly junior level not to be permitted to stand for elected office. Clearly, at certain junctures, it would be appropriate for them not to stand and not to take office, but for most people in that environment, if we're serious about getting a more diverse slate of candidates, which I'm massively committed to, then I think we should look to broaden the base of individuals who are encouraged to stand. And I think the political parties are broadly in support of that as well in terms of how they're looking to encourage a broader range of people. 

Okay. If I can take you back to one area, because we're coming to the end of the key areas that we wanted you to cover and will go over with some of the other witnesses later on, and we've got other areas to explore. It's just this position that, for example, as you know, we have a Legislation (Wales) Bill going through and part of the objective is to simplify the law to increase access and to make it more understandable. So, here we're in a situation where, in terms of local government, we're going to have legislation coming through—we're promised legislation—which will also seek to make changes in terms of the voting age and will deal with, obviously, some of the similar issues. We have this in this particular Bill here. Now, I form the impression that you weren't too concerned about the fact that this whole issue was now being divided, really, into two different categories. Do you have any real concerns over anomalies or issues of emphasis—for example, political education and so on—that may rise in one or not the other? Because here we have a Bill that's brought by the Llywydd. In Scotland, the Bill, I think, was brought forward by the Government there, and I think there's a concern—I'm saying there's a concern that some of us have—over the fact this is being done on a piecemeal basis.

14:05
Professor Laura McAllister 14:05:53

I think you've got a strong point there, and I wasn't suggesting, when I made the remarks about the local government franchise, that that was an ideal scenario, but more the case that we have to have the decoupling of the franchise between the local government side and the Assembly. And secondly, we have a pressing deadline of the 2021 elections, if the institution is keen to make that change for the next Assembly elections. And then, if you add to that the need to have enough time for the Electoral Commission and electoral administration generally to look into some of the data protection issues around younger people—. Because, clearly, if you're going to include 16-year-olds in the franchising, they need to look at 14 and 15-year-olds in any cycle because they will be eligible to vote in an electoral cycle that's forthcoming. So, of course, there are sensitive issues there around data protection for younger people.

So, I think what I was trying to say, really, was not that this is a perfect way of doing it, but if we're time sensitive, which I think we are, then this is an opportunity to introduce a pioneering piece of legislation around votes at 16 in time for the next election. And I'm not sure what the benefits would be of waiting, in all honesty. You could argue that then there might be a better co-ordination of the executive and the parliamentary sides to this, but I think, on balance, for me, more pressing is that we can introduce this change in 2021 and kick start what I hope will be a really expansive programme of political education. I think, obviously, therein lies another issue because that's more likely to come in as part of a piece of education legislation, I assume, rather than anything else. But, you know, I think needs must in terms of making these changes, and we can either wait for the perfect moment or we can work within the parameters that are before us.

Can I, then, in the last couple of minutes we've got, ask just two very short questions? I know they'll obviously hit quite more complex areas of thought on this. Bearing in mind the comments you've made about the adequacy of political education so far, if there was no change in the current provision, should we wait to introduce votes at 16 until we're satisfied that that system is in place? And at what age do you think the political education process should actually start?

Professor Laura McAllister 14:08:32

Should actually start?

Should start, yes. I mean, if people vote at 16, should we be starting the moment they go, for example, into secondary school?

Professor Laura McAllister 14:08:39

Well, I mean, this wasn't something that the expert panel articulated, but, from my own point of view and from academic research that I've looked at, I think, certainly at the beginning of secondary education is an appropriate time. It has to be age appropriate, obviously, and age specific in terms of how young people are introduced to the methods of voting and the rhythms of elections generally, and so on. But I think there are ways of doing that and there is evidence from elsewhere in Europe where that's happened. Your first point, Chair, around should we wait—

It's really about whether we're being led by the deadline that has been set as opposed to—

Professor Laura McAllister 14:09:22

Well, I think it goes back the point that David made, really. The two things are helpful together, but I think there is still a strong argument to go ahead with votes at 16 in the 2021 elections, as long as there is a clear picture of how improved citizenship education would be instituted subsequently, because, in a sense, this isn't about—. This is about enhancing the democratic experience; it's not about suggesting that 16 to 18-year-olds won't be able to vote without that in place. That's like suggesting that people over 60 wouldn't be able to vote unless somebody explained the process to them. So, I think it could still happen, but enhancing it and improving it would come about through the education that we discussed.

14:10

Yes. I agree with that point. Any other comments from the members of the panel? Are there any final comments that you'd like to make to us?

Professor Laura McAllister 14:10:16

I don't think so, Chair, no. I think we've been pretty thorough.

I think this is going to be an ongoing process. Well, thank you very much for attending. We will, of course, send you a transcript of the evidence. If you do feel, when you read the transcript, that there are any particular points that you want to clarify or to add to, we're more than happy to receive any further comments or submissions from you. Thank you for attending.

Professor Laura McAllister 14:10:38

Thank you very much.

9. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 3
9. Senedd and Elections (Wales) Bill: Evidence session 3

Good morning. Or good afternoon, rather; I've lost all track of time. I blame it all on Brexit. Thank you for attending this meeting. If you are happy, unless you have some opening comments you wanted to make, we'll go straight into questions. We go to Dai Lloyd.

Diolch, Gadeirydd. Fel y byddwch chi'n gwybod, Keith, yn ogystal â'r Bil yma, mae Comisiwn y Cynulliad yn ystyried cyflwyno ail Fil, a fyddai'n gwneud diwygiadau pellach i beth mae'n nhw'n ei gysidro ar hyn o bryd. Ac mae Llywodraeth Cymru hefyd yn debygol o gyflwyno Bil i wneud newidiadau i etholiadau llywodraeth leol. O gofio hynna i gyd fel cefndir, a fyddai hi wedi bod yn well gwneud hyn i gyd mewn un Bil, felly?

Thank you, Chair. As you'll be aware, Keith, as well as this Bill, the Assembly Commission is considering bringing forward a second Bill, which would make further reforms to what is currently being considered. And the Welsh Government is also likely to bring forward a Bill to make changes to local government elections. So, bearing all of that in mind, would it have been better to do all of this in one Bill?

Dwi ddim, yn bersonol, yn gweld beth yn y pen draw ydy'r gwahaniaeth, achos rŷn ni'n sôn am newid y gyfraith, ac nid yw'r broses o fynd o gwmpas newid y gyfraith yn effeithio ar beth yw'r canlyniad yn y pen draw. Mae yna lawer iawn i'w ddweud dros gadw pethau mor syml â phosibl, ond dwi yn deall bod yna ystyriaethau eraill, yn enwedig mewn cysylltiad â'r cwestiwn o faint o Aelodau, sut mae'r Aelodau yn cael eu hethol. Felly, does gyda fi ddim teimladau cryf y naill ffordd na'r llall.

I personally don't see what the difference is, ultimately, because we're talking here about changing the law, and the process of making changes to the law doesn't affect the ultimate outcome. There's a great deal to be said for keeping things as simple as possible, but I do understand that there are other considerations at play, particularly in relation to the number of Assembly Members and how those Members are elected. So, I have no strong feelings one way or the other.

Diolch am hynna. Ydych chi'n credu ei bod hi'n briodol, felly, taw Comisiwn y Cynulliad sy'n cyflwyno'r ddeddfwriaeth yma, yn hytrach na Llywodraeth Cymru?

Thank you for that. Do you believe that it's appropriate, therefore, that it's the Assembly Commission that's introducing this legislation, rather than the Welsh Government?

Wel, i raddau, yr un yw'r ateb, mewn gwirionedd. Ond dwi'n gallu gweld, o bersbectif cyfansoddiadol, fod newidiadau sydd i fod i gael cefnogaeth ar draws pleidiau—ac mae'r ffaith bod angen yr uwch-fwyafrif yn tanlinellu'r ffaith bod y math o newid rŷn ni'n sôn amdano yn rhywbeth sy'n cael ei gyfrif yn rhywbeth di-blaid, felly yn ddi-wleidyddiaeth plaid ac yn rhywbeth ar draws pleidiau—yn dangos cyfiawnhad dros rôl y Comisiwn.

Well, to a certain extent, the response is the same. But I can see, from a constitutional perspective, that changes that seek support on a cross-party basis—and the fact that you need that supermajority does underline the fact that the kind of change we're discussing here is something that is regarded as being over and above party politics, as a cross-party issue—seem to justify the role of the Commission in this.

Ymhellach i hynna eto, manylyn bach arall jest i athronyddu arno fe, byswn i'n meddwl, ydy, yn naturiol, fe fyddwch chi'n ymwybodol y ceir darpariaethau yn y Bil yn ymwneud â'r etholfraint y gallai Gweinidogion Cymru eu gwneud ar hyn o bryd gan ddefnyddio'u pwerau gwneud Gorchymyn presennol o dan adran 13 o Ddeddf Llywodraeth Cymru 2006. A fyddai hi, felly, wedi bod yn fwy priodol i Weinidogion Cymru ddefnyddio cymhwysedd gweithredol presennol i newid yr etholfraint?

And further to that again, another detail to philosophise on in this regard I would have thought is that you'll be aware that there are provisions in the Bill relating to the franchise that could already be made by the Welsh Ministers, using their existing Order-making powers under section 13 of the Government of Wales Act 2006. So, would it therefore have been more appropriate for the Welsh Ministers to use existing executive competence to change the franchise?

Wel, dŷn ni ddim yn sôn, ydyn ni, am y cwestiwn o roi pwerau ychwanegol i Weinidogion Cymru—dŷn ni ddim yn sôn am adran 36. Eto, dwi'n teimlo mai tryloywder y broses, efallai, sydd yn bwysig. Ac, fel mae pawb ohonom ni'n ymwybodol, mae prosesau'r Cynulliad mewn perthynas â deddfwriaeth gynradd yn dipyn mwy tryloyw ac yn agored i sicrhau lefel uwch o graffu nag ydy pwerau sy'n cael eu gwneud trwy ddeddfwriaeth eilaidd. Mae yna gwestiynau hefyd, efallai pan gawn ni gyfle i sôn am adran 36—. Mae'r cwestiwn o gymhlethdod a ffurf cyfraith etholiadol yn bwnc pwysig iawn ac efallai eto fod yna resymau pam fod yr angen am ddeddfwriaeth gynradd yn hytrach na deddfwriaeth eilaidd.

Well, we're not talking here about the question of giving Welsh Ministers additional powers—we're not talking about section 36, are we? Again, I do feel that the transparency of the process is the important thing here. And, as all of us are aware, the Assembly's processes in relation to primary legislation are a fair bit more transparent and open to a higher level of scrutiny than would be the case were legislation made through secondary legislation. There will be an opportunity to discuss section 36, I'm sure, but there is this question of complexity and the form of electoral law, and that is a very important topic, and, again, there may be reasons why there is a need for primary legislation in this area, rather than secondary legislation.

14:15

Thank you, Chair. I just wondered what you thought about the name change and whether you think that's actually going to improve public perception of what this place actually does.

Well, I think there are tensions here, I must say, between on the one hand the aim, which as I understand it is the primary aim of this part of the Bill, which is to improve understanding of the role of this institution, and on the other hand the other aim of enhancing and underlining the status of the Welsh language. Clearly, to allocate a monolingual Welsh name to an institution isn't the easiest thing for everybody in our society to understand. Now, I think it's possible to over-emphasise that, and, as we know, we've got this example in Ireland where the first Dáil Éireann met just over 100 years ago, and by now everybody knows what Dáil Éireann is, everybody knows what Seanad Éireann is, who the Taoiseach is, who the Tánaiste is, and so on. So, clearly, over a period of time, everybody in Wales, if this is the outcome, would understand the function. But if on the other hand the aim is to immediately boost understanding by adopting a name in both languages that is as close as possible to the names that are commonly, if not predominantly, used in Commonwealth countries for legislatures, then clearly you wouldn't go for a Welsh-only name.

There are also issues, of course, about the question of if you do go for a Welsh-only name, what that Welsh-only name should be. There are some practical issues about that. But just to sum up, I think it is effectively a matter of policy, really. It's a question of what is the policy objective. Is it the underlining and promotion of the status of the Welsh language or is it immediate understanding that this is a Parliament? Those two may point in different directions, and it's a matter for the Assembly to decide where the balance lies.

Indeed, and there has been some debate, hasn’t there, about how we distinguish in the name this Parliament from the Westminster Parliament, which is also referred to as 'Senedd', and so there needs to be some differentiation around that. I think your suggestion then was the use of the term 'Senedd Cymru' as opposed to just 'Senedd'. And am I right in saying that you were also suggesting there wouldn't be a need to write into legislation the English translation because, if the two languages have equal status, then whatever language is used, it would be translated in any event. Is my understanding correct?

Up to a point. I think the second point is that, if the name of this institution becomes 'Senedd' or 'Senedd Cymru', I'm not clear that you then need to put it in inverted commas, as it were, or you may refer to it as the 'Welsh Parliament'. Because everybody will refer to it as the Welsh Parliament anyway, clearly, even if they say, 'Senedd Cymru, the Welsh Parliament'. I think there is a bit of ambiguity about saying that you may refer to it as the Welsh Parliament. People do refer to  this institution by all kinds of names, it seems to me, and if what you're saying is that, in practical terms, people might call it 'Welsh Parliament', then I don't think you need to say that. And it might also introduce some uncertainty among people as to what the legal status of the English name was. So, if you were producing a contract or some kind of legal document that referred to this institution, would you be entitled to refer to it as the 'Welsh Parliament'? So, my feeling is that there should be a clean decision—either for a Welsh-only name, as a legal name, or equivalent, equal, English and Welsh names.

Now, going back to the opening part of your question, which was, 'Should you qualify it in some way?', I do think strongly that that is essential, from a legal and constitutional point of view and from a practical point of view. And the reason I say that is this: I've been involved in teaching public law, for example, to students, and studying the British constitution, or the UK constitution. And Parliament is a very important element of that—in fact, it is the central element of the British constitution. So, if you then allocate the name, in effect, particularly in Welsh, 'Senedd'—it means 'Parliament'—to another institution within the same constitutional space that's a recipe for confusion. It's particularly true in the Welsh language, because, every time you use the word 'Senedd', you would have to qualify it; you'd have to say, 'Senedd San Steffan'—'the Westminster Parliament', or 'Senedd Cymru'. And all kinds of legal concepts, like parliamentary sovereignity—sofraniaeth seneddol—you'd have to go around saying sofraniaeth Senedd San Steffan.

So, I think that there are some real, practical issues about people's understanding and identification of where this institution stands in the larger constitutional space, which, in my mind, do cause question marks about simply using the word 'Senedd' without referring to it being 'Senedd Cymru', and, if you had a bilingual name, it being the 'Welsh Parliament'.

14:20

Just to follow on from that point, are you saying that you have a concern also that, depending upon which term is used, it could actually have implications for understanding or confusion around other pieces of legislation that have come into being that haven't been prescribed with the terminology that may be used in this legislation?

Well, I think there is a risk of that. We have lots of legislation, of course, that refers to legislation being laid before Parliament. Of course, if you use 'Senedd', then, if it's cael ei osod o flaen y Senedd, there's no ambiguity, but what if you have bilingual legislation? There's going to come a time, clearly, when we have a properly bilingual version of what is now the Government of Wales Act 2006. And that will refer, no doubt, to 'Parliament' and 'Senedd', and it'll have to make it clear which it's referring to, as well as to what is now the Assembly. So, I think it's a little bit of a can of worms, quite frankly, which would need to be thought about very carefully in terms of what the practical implications might be.

Do you think there are issues within this, then, for the—? You know we have the Legislation (Wales) Bill going through, which is effectively an interpretation Act—that this may actually have implications that need to be thought about a little bit with regard to that piece of legislation.

Well, that would need to be amended, it seems to me. Because one of the things that it defines is 'National Assembly for Wales'; so that would need to be amended, clearly, at some stage. And, depending on which gets to the finishing line first, you would have to decide which was the Bill that would be amending the other.

That takes me on to one other point, then. In terms of the—. When we start talking about which gets to the finishing line first, well of course we're using amendments to primary and secondary legislation, in terms of achieving the lowering of the voting age, and of course we have been promised a local government Bill, which would then implement something similar to that. And, in terms of what is quite significant constitutional change, it does seem as if it’s being done on rather a piecemeal basis—legislation coming from the Llywydd, not the Government, but also then, within the context of codification and consolidation, we are making quite a dramatic change in a fairly fragmented way. Does that cause any concern to you?

14:25

Well, perhaps this is where I can put in my six-penn’orth about section 36, because the aim behind this is clearly to facilitate the work of the Law Commission—and I should declare an interest immediately, because I'm a member of the advisory committee. I don’t get paid for it, but I’m a member of the advisory committee for Wales of the Law Commission. So, I know a bit about the work that the Law Commission has been doing to rationalise and codify the electoral law.

Their report, their interim report, is at the moment gathering dust on the UK Government’s desk, because, of course, they've got other things that they seem to be doing at the moment. But the idea that they have in their interim report was that they would come up with some kind of framework legislation that would cover those elections for which the UK Parliament is responsible—so, UK parliamentary elections—but it would also bear in mind the need to provide a framework within which the Scottish Parliament and this Parliament and the Northern Ireland Assembly, if it existed, could provide a consistent form of electoral law—and bear in mind that it also covers local government elections as well as devolved legislature elections—that there would be a single framework within which everybody could fit. It would be, of course, up to the Assembly to decide exactly what it wanted to put into it, but the idea of the Law Commission would be to facilitate that kind of approach.

I think that there are dangers. It’s very unfortunate that they haven’t been able to move further on with that, but we are where we are and there clearly are dangers about producing something that perhaps didn’t fit into that overall framework.

Wel, cam yn ôl ychydig bach, o feddwl—. Jest mynd yn ôl i’r tun yna a oedd llawn abwyd yr oeddech chi’n sôn amdano fe, potentially, achos ar hyn o bryd, yn y Gymraeg, mae yna Brif Weinidog yn San Steffan ac mae yna Brif Weinidog yn fan hyn, achos mai’r cyfieithiad o 'First Minister' ydy 'Prif Weinidog'. Ac mor belled ag yr ydw i wedi sylwi dydy’r awyr ddim wedi cwympo i mewn eto o ran dryswch. Felly, buasech chi’n gweld, gyda defnydd fel y mae’r 'Dáil' wedi cael ei ddefnyddio ers canrif rŵan, effeithioldeb o'r defnydd a phobl yn gallu rhesymoli’r cyd-destun. Ar ddiwedd y dydd, buasai pobl yn gallu datrys pa Senedd dŷn ni’n sôn amdani efallai.

Yes, a step back, perhaps, thinking about—. Just returning to that can of worms that you talked about, you said that, in Welsh, there is a Prif Weinidog in Westminster, and there’s a Prif Weinidog here as well—it’s a translation of 'First Minister' as well as 'Prime Minister'. And yet, the sky hasn’t caved in in terms of confusion there. So, as you can see from the 'Dáil', which has been used for a century now—you see it with the use of that language and people are able to understand the context. Ultimately, people will be able to realise which Senedd we were talking about.

Dwi ddim yn dweud nad ydy’r problemau yn rhai y gallwch eu gorchfygu mewn rhyw ffordd, ond, yn achos y 'Prif Weinidog' yn Gymraeg, dyw’r broblem ddim yn codi yn Saesneg, ac mai 'First Minister' a 'Prime Minister' ydy’r termau. Ond, yn Gymraeg, ie, mi allwn ni ychwanegu cyfeiriad at Gymru neu’r Deyrnas Unedig neu beth bynnag er mwyn egluro pa Brif Weinidog dŷn ni’n sôn amdano fe.

Ond, rhywsut neu’i gilydd, rwy’n credu y byddai problem llawer iawn gwaeth yn achos sefydliad sydd yn ymgorffori llywodraeth ddatganoledig yng Nghymru. Byth a beunydd, bydden ni’n gorfod defnyddio terminoleg wahanol ac anghyson wrth siarad Cymraeg a siarad Saesneg, a dwi yn rhagweld y byddai hynna yn creu problemau. Ond fe hoffwn i danlinellu’r ffaith mai mater o bolisi ydy hyn—fel cyfreithiwr, does gyda fi ddim barn ynglŷn â p’un sydd fwyaf pwysig, ond dwi'n credu bod angen bod yn ymwybodol bod yna densiynau yn tynnu i'r ddau gyfeiriad.

I’m not saying that the problems are insurmountable, but, in the case of 'Prif Weinidog' in Welsh, the problem doesn’t arise in English, as you have 'First Minister' and 'Prime Minister'. But, in Welsh, yes, we can add a reference to Wales—'Prif Weinidog Cymru' or 'Prif Weinidog y Deyrnas Unedig'—to explain which Prif Weinidog we are talking about.

But, one way or another, I do feel that the problem would be far worse in the case of an institution that embodies devolved government in Wales. We would be forever having to use different terminology and inconsistent terminology in speaking Welsh and speaking English, and I predict that that would lead to problems. But I would like to highlight the fact that it’s a matter of policy—as a lawyer, I have no view as to which is more important, but I do think that we need to be aware that there could be tensions in this regard.

14:30

Okay, thank you. You'll be aware, also, that of course there have been judgments in respect of the issue of prisoners voting, and that isn't covered in this piece of legislation. Do you have any particular view on that?

Well, clearly, for—. The UK Parliament's approach to votes for prisoners is in total disobedience to the European convention on human rights, as has been repeatedly made clear by the courts, including the European Court of Human Rights. So, I think, from a legal point of view, it clearly would be highly desirable if the Assembly were to act—as I think it probably is required, in any event, to act—in accordance with convention rights. Now, having said that, of course, it's a complex issue, because what the European Court has said is not that all prisoners must have rights, but that there should be a proper, reasoned examination of the question. And I think it might even be possible, if that full examination of the issue were to take place, and, ultimately, for good reasons, for rational reasons, the Assembly were to say, 'Having thought about it, we don't think prisoners should have voting rights,' I think that would be compliant with convention rights. But there are clearly sorts of provision that could be acceptable and would clearly satisfy convention rights, such as, for example, providing voting rights to those who are within a short period of their release, who will be coming out of prison, and then maybe—you know, you're coming out a week after the election, and you have no say over the composition of the legislature that's going to be governing your life for the next four years and 11 months and three weeks. So, I think that it would be highly desirable, but of course it is something of a hot potato from a political point of view. From a legal point of view, I think there is no justification for not addressing the problem at some stage.

So, that's a matter that obviously needs to be given further consideration by this committee. We're not aware that this, of course, has been addressed in that detail, but the point you're making is that it has to be properly considered to satisfy the requirements of the court judgments.

Exactly, yes.

Thank you, Chair, and can I thank you for your answers on section 36, because then I don't have to ask you about that, and, being a non-lawyer, I'm very pleased about that? But, if I could, I'd like to just ask you a couple of questions about section 27.

Now, my understanding is that the Bill includes provisions in section 27 for the oversight of the Electoral Commission. What are your thoughts on putting obligations on the Assembly when the Assembly could actually do this without the need for legislation?

Yes. Well, again, the legal purist in me would say this is placing a duty on yourself, which really is not a useful exercise, but, of course, the purpose of legislation is whatever the legislature wants to make it, and, as I understand it, the purpose of this is to reinforce the requirement for the Assembly to look into this matter and come up with some detailed suggestions. So, I don't, as I say, want to stand on legal purity. But I think that—. I think there's no argument that, if you have an electoral commission whose job is to supervise the application of electoral law that is made by a number of different legislatures, then it does seem to me it's got to have oversight by, and a relationship with, all those legislatures, in the same way that the Law Commission now, which used to be a purely UK body, effectively—. Now that Welsh legislation is becoming more and more important, it's developing its relationship with the Assembly. Now, of course, England and Wales institutions accountable to more than one legislature are not constitutionally very satisfactory, but they're something that we have to live with. We do need to look in detail about how that relationship might develop. Clearly, the Electoral Commission themselves may have a lot to say about that—how it might most usefully develop from their point of view. So, I'm totally in agreement with the principle behind that provision. But I think that that does need a lot of work in terms of what it is that really is required to be done in practice, and may there be other ways of achieving it. I don't know.

14:35

Okay. The Welsh Government is bringing forward—or we understand that it is bringing forward—amendments at Stage 2 that will replace the duty that's contained in section 27. I don't know what your view is on that and whether such substantive changes at that stage of the legislation would be a good thing.

Well, I've read some of the correspondence. It seems to me that their attitude is a constructive one. So, I think I'd prefer to wait until I see the amendments before deciding whether I think they're good or not. [Laughter.]

I just want to take us on to the issue of disqualification. I think, in the fourth Assembly, we suffered serious reputational damage from the eventual disqualification of a Member, and another Member who seemed to fall into a very similar category wasn't disqualified. I think there was a difficult process, anyway, and the whole issue was looked at. Do you feel that the Bill captures the recommendations of the Constitutional and Legislative Affairs Committee in the fourth Assembly, which looked at this issue very, very thoroughly?

Yes, I think, broadly, these provisions do put right the thing that I think needed to be put right. Clearly, the detail needs to be looked at. Perhaps one source of complexity is separating out those offices that are constitutionally incompatible with even being candidate to be a Member of the Assembly, from those where it's the conflict of interest arising out of dual membership, really, that has to be dealt with. These are clearly two quite different categories, and I think it's a good idea to have separated them out. I think that when it comes to looking at the detail, perhaps some of that detail might need to be thought about. I notice, for example, if I've understood it correctly, that those employed by the Assembly will not be constitutionally disqualified from being a candidate. Now, it's different for civil servants, of course, because we know that a civil servant may be, basically, in an administrative post in a benefit office or something of that kind, where there's no incompatibility and the most that one would expect is that somebody would divest themselves of that office before becoming, if they are elected, a Member. But I'd just ask the question: if some of my former colleagues sitting around the table here were to put themselves up for election in an Assembly election—perhaps the elected Members might think that a little bit odd. I don't know.

But that's the only person, yes. So, the chief legal advisers and so on: they wouldn't be disqualified.

So, the key difference here, isn't it, is that we want to encourage a process where people are allowed to put themselves forward? They may, however, not be successful but they wouldn't have put into jeopardy their other position. From those positions that require, without any doubt whatsoever, impartiality, and therefore, just by standing, you compromise your ability to perform that office—. 

14:40

Exactly, yes. Yes. 

So, how do you think the balance appears at the moment? I think you've pointed out that the president of the tribunal service is at the moment capable of being a candidate. Is that the case? 

The president of Welsh tribunals is an office created by the Wales Act 2017, and so this is a post—it requires somebody of the status of a High Court judge to carry that out and has overarching disciplinary and managerial responsibilities in relation to the devolved tribunals. In a way, that's more closely connected to the work of the Assembly than a Lord Chief Justice might be, given the fact that criminal law and so on is reserved. I just threw that in as an example of how careful one needs to be to make sure that everybody's captured one way or the other and that they're put into the appropriate category.

There are some difficult practical issues, because, of course, we don't, in Wales, in our devolved tribunals, have full-time heads of individual tribunals. They are basically fee-paid people—I think with one exception—so it would be perfectly possible for somebody to be active in all kinds of spheres of life and to perhaps be thought about as a potential candidate and then to divest themselves of that role if they became a candidate. Incidentally, they wouldn't be able to be the head of a devolved tribunal if they were involved in politics. So, they'd have to make a choice from that point of view as well. So, sometimes it may not be entirely clear which is the right category to put somebody into. But as long as everybody is captured in one way or the other and the main constitutional offices, such as, obviously the ombudsman and so on, are ones that you can't be a candidate if you hold that office—I think that would be reasonably satisfactory.  

And a lot in that list are—. It's surprising that lord lieutenants and sheriffs were only excluded from their immediate jurisdiction and not from other parts of Wales. I can't think there'd be many sheriffs or lords lieutenant that would want to stand for election, because they clearly would recognise that they've adopted a very different vocation, in terms of public life. So, some care around that list of those that are not allowed to stand, and I note that you've given one example that perhaps should be on that list—. 

If I move to those that are disqualified from serving and holding a particular office, this seems to me where the difficulties we got in 2011 occurred, because that list is usually fleshed out by order and will change, because new bodies may be created, membership of which creates a conflict of interest if you're a serving Assembly Member and so forth, and that, basically, is what hit us in 2011. I know that a lot of thought was given to the proposition that on taking the oath to become an Assembly Member after successful election, one way around this would be to say that by taking the oath you resign any disqualifying office. Now, this Bill doesn't do that, and I just wondered: do you think that would just be much simpler if we did adopt that approach? 

Well, I think that what's proposed is a big step forward. Yes, I think it would be an added refinement to say that if you hold one of these offices then you automatically cease to hold it if you take the oath as an Assembly Member. That certainly would be an alternative and, of course, you don't eliminate the risk of an inadvertent disqualification entirely by the new arrangements, because it does place an onus on a candidate who is elected to know whether they're going to have to resign or not from a particular office before they take the oath. And I think many people would say this is not really much of a burden to place on people. But, yes, if you wanted to eliminate it completely, then you could devise something that would have that effect.

14:45

Just on that point, presumably it creates an area of conflict and uncertainty in that belonging to other institutions—. It's all very well for us to say in our legislation that you are 'deemed to have', but that might not necessarily apply in other areas—that you have to consider the totality of the legislative framework that relates to that individual.

Well, the rule is: the last Act is the one that counts. So, this would be an implied amendment to any rules that apply to membership of other bodies. There could be, I have to say, some practical issues, of course, because, if you were, let's say, a member of a devolved tribunal, and you're in the middle of a—.  I know this is very unlikely to happen in practice, but you can see that if somebody suddenly disappeared from being a member of a tribunal, then that itself could cause difficulties. Whereas, otherwise, they might at least be able to defer taking the oath for a week or two to enable other arrangements to be made. So, it needs to be thought about—what the practical implications of that approach might be. 

Okay—a new concept of legislative disappearance. Dawn Bowden.

I think the question was already covered—it's on section 36. 

The Scottish Government intends to introduce legislation on electoral reform in 2019. Is this a better approach to bringing forward changes to electoral law?

Well, I'm not sure what they're going to be. Without knowing in detail what it is they're going to be doing, I—. This goes back to my point that it's the substance that counts, not the way that it's done. You know? So, when the law is changed—it's the law, it's an Act of Parliament, or an Act of the Scottish Parliament, or an Act of the Assembly—nobody knows, nobody has any interest in who proposed it, as long as it actually does the job. But I go back to what I did say, which is that I think that the Law Commission's work, which they've been working on in quite a bit of detail for some years, was done jointly with the Law Commission for Scotland, and it may well be—I haven't checked this, I'm afraid—that their discussions with the Scottish Government about implementing their interim report or developing the ideas in their interim report are further advanced than they are in relation to the UK Government. So, in principle, there's a lot to be said for doing it all in one go, but that, of course, has to be set against other priorities, such as getting things changed as soon as possible.

Okay. And, finally, in your written evidence you said that section 37 relating to the powers of the Commission will enable the Commission to develop its activities in terms of charging for goods and services 'within sensible boundaries'. What did you mean by 'sensible boundaries'?

Right. Well, can I just preface this by saying that, clearly, there is ambiguity about the present situation? And that's particularly true in relation to charging for services where the Act, as it stands at the moment, is, to say the least, unclear as to how far services that are not directly related to the functions of the Commission are involved. And what this amendment will do is to remove that ambiguity. But how could that, from a practical point of view, have a difference? Well, for example, the use of the Assembly estate by outside bodies. Now, I can remember, of course, the time when they wanted to make an episode of Doctor Who in the Siambr, and I think that, quite rightly, the Commission thought that that wasn't consistent with the dignity and so on of the institution. But one can think of other kinds of activity that might be consistent, where it would not be possible—. You know, the Assembly might have to grant facilities, or the Commission might have to grant facilities, to somebody like that without there being any recompense or with fear about the legality of recompense for the facilities, the staff and so on, which are all being paid for. So, that kind of thing might be possible. I've been in meetings—international legal organisations and so on have held events, seminars and so on. I think I've been in one, actually, in this room. Now, that can be done, of course, by the event being sponsored by an Assembly Member, but many of these bodies would be only too pleased—they would regard it as being entirely appropriate and sensible—if they were to make some contribution towards the cost of the services that they are using. And what I meant by sensible bounds is—. Perhaps I should say this: I understand that Stormont, as a beautiful building in Belfast—they actually hold weddings there nowadays. Now, that's because it's a bit underused, it seems to me, at the moment—I'm not suggesting that as a possibility—but you can see that a boundary needs to be put between the things that are appropriate and the things that are not, but they aren't necessarily—. The things that are appropriate don't have to be very closely and directly connected with the work of the Assembly, it seems to me, provided that they don't undermine the work of the Assembly and they help to contribute towards the cost of maintaining the institution and thereby take the burden, to some extent, off the taxpayer.

14:50

Just a couple of points—I'd just like to take you back, then, to section 27, only because you made an interesting point there about the oversight of the Electoral Commission. You did make the point that the Assembly needs to give very serious thought to this matter, and I think that's a very important comment. You then went on to suggest that perhaps amendments can be brought forward in September, which is not very much later. Just in terms of your views about the seriousness of this, do you think there is a sort of simple, practical way of dealing with this, or it's something that probably needs a much longer term approach or review of evidence?

Well, again, I suppose one goes back to waiting to see what the Welsh Government come up with. It does seem to me that it's not something you can rush, that, until you've examined the complexity of it, you don't really know how much time it's going to take. But I think that we're talking about, first of all, something fundamental to democracy—confidence in elections and so on—and it's something that needs to be developed, I think, in detail, in a way that everybody's comfortable with, not least of all the Electoral Commission. You want to keep them on side; you want to work with them, not against them. So, the aim, as I say, is totally laudable, it seems to me, but I'm just a little bit concerned that this is a bit of a shortcut, really, to what needs to be done.

Okay, thank you very much. I don't know if—. If there aren't any final points anyone wants to raise, thank you very much for your evidence and for the succinct and concise nature of that evidence. You've been very, very helpful—one or two very important points I think we've identified there. There will be a transcript, of course, that will come to you, and, if there are any matters you think would add on to—you know, we're more than happy to receive any further comments from you. Thank you very much for your time and for attending.

Thank you very much. Diolch yn fawr.

Shall we move into private session for five minutes, just for a comfort break?

14:55

Gohiriwyd y cyfarfod rhwng 14:54 a 14:59.

The meeting adjourned between 14:54 and 14:59.

10. Bil Senedd ac Etholiadau (Cymru): Sesiwn dystiolaeth 4
10. Senedd and Elections (Wales) Bill: Evidence session 4

I'd like to welcome Professor Roger Awan-Scully to the Constitutional and Legislative Affairs Committee, scrutinising this legislation—the Senedd and Elections (Wales) Bill. We've had several sessions on this legislation, so welcome to committee and thank you for your time. I'll go straight into the questions, if that's okay, and go straight to Dawn Bowden.

15:00

Thank you, Chair. Can you tell us what your views are on the name change, the proposed name change, of 'Assembly' to 'Senedd'?

So, in principle, I feel this is something that shouldn't really be an issue in the sense that there are places around the world—France, for instance, its lower house of Parliament is called 'the national assembly'. This shouldn't really be an issue, but we do seem to have this somewhat bizarre hang-up in British political discourse, at least, that there's something called an assembly that is, in some respects, somehow not quite a parliament. Given that it is now, very clearly, a primary law-making legislative Chamber—a proper Parliament with also, at least, some taxation powers—then, I guess, given that peculiarity of British political discourse, I think it is desirable and, indeed, probably inevitable, that we change the name to something that reflects that. And, where you had a lengthy discussion with the previous witness about precisely what that revised name should be, in principle, I think the name change is probably something that we have to do.

And, on that basis, that very point there about the name change, when the consultation was carried out, the public consultation, the favoured name was 'Senedd Cymru', but the Bill is suggesting 'Senedd'. What would your thought be on that—'Senedd Cymru' or 'Senedd'?

I think I'm very mildly leaning towards 'Senedd Cymru', as Keith Bush suggested. I don't see any great issues of principle here. I think this is something—. What would be the most easily understandable, least confusing name? What would reflect properly the status of this Chamber, yet also be something that would not lead to confusion and ambiguity? On that basis, I think I would marginally favour 'Senedd Cymru' for some of the reasons, for instance, I think your previous witness outlined.

Yes. Maybe it'd help to differentiate between Westminster and so on. What's your thought on, or views on, whether it would be likely to improve people's understanding of what actually happens here and what the responsibility of this body is?

I don't think a name change by itself will be any sort of transformational event; I don't think anyone realistically expects that it would be. But I think there are a number of things you can do to gradually try and make more clear what I think we should want people in general to be reasonably clear about. I think one of the—. Certainly, a very troubling aspect about both the last Assembly election and, indeed, the last general election—certainly, at least, the campaign in Wales—was the very substantial public confusion that seemed to exist in terms of, basically, who does what: who is broadly responsible for education, for schooling, for policing and various other matters. As a basic matter of democratic accountability, I think we should want people to have a reasonably clear idea of, broadly speaking, who does what, who is responsible for what, and who should be given either credit or blame when things go well or badly, and, therefore, people being able to make reasonably informed choices at the ballot box. I think if we have—. If a name change to this institution would be one of the things that helps people understand that this is an important law-making parliament that is responsible for some major areas of public policy, then that is generally a good thing. Now, I don't think, by itself, that would clear up all confusions, and there are various other things we might look to see improvements in, but it's a small, modest step, I think, in the right direction.

By implication, then, by people better understanding what the institution does, you would think that that might lead towards better turnout. Would you see that as there being a correlation between those issues as well?

It's conceivable, I think, that better understanding of the scope and scale of the responsibilities of this institution might lead more people to realise, actually, the elections for this place do matter. If people are aware of, particularly, that there is a Welsh Government that is distinct from a Welsh Parliament, that the Welsh Government is responsible, on a more day-to-day basis, for some major areas of public policy, that the legislation for that passes through a Welsh Parliament, that things like the national health service, schooling and other major areas of policy are, by and large, dealt with in this place, then people might be somewhat more engaged with devolved local politics and realise that, say, the election that's due in May 2021 would actually have substantial consequences, potentially, for your lives and the lives of your families and your communities.

15:05

Yes, okay. My final question in this section, Roger, is what your thoughts are on lowering the age of voting to 16.

Okay. I'm one of those academics who is not particularly in one camp or the other on that, and I know you've received evidence—written evidence, for instance—from academics who take a strongly anti view. You've spoken earlier today to my colleague, Laura McAllister, the chair of the panel that, in the end, came out in favour of this. I haven't typically been in either camp on this matter. I think the expert panel made a strong and eloquent case for moving in this direction.

I think I have—. I have two remaining concerns about this. One is that we're likely, for at least a period, to introduce what they also have now in Scotland, which is an inconsistency between different ages of voting eligibility for different types of elections, which I think is, at the very least, suboptimal. The other thing I think is that, given, particularly, for instance, recent evidence on the strong—indeed, increased—divergences in voting preferences by age group, I suspect that this change is likely to become deeply partisan. And, on the whole, I think partisan politics should be fought within the rules not about the rules. And any change, obviously, would have to have a substantial majority in this Chamber, but, nonetheless, if there are some parties strongly against it and some parties strongly for it, maybe for their perceived partisan advantage, I think that is also unfortunate.

Yes, so you would be convinced—. Well, you think that the case that the expert panel made was a case that stands up, but you're not necessarily convinced yourself, or do you think that there's anything else that needed to be added to that case that would tip you over the—towards saying, 'Yes, this is what we should do'?

Look, the expert panel was a group of genuine distinction. The academic members are people who are very much at the top of their fields; the non-academic members, the other members, also extremely distinguished people, and, unsurprisingly, given a group of that calibre, they produced an extremely eloquent report. If there's a case for votes at 16, I think the expert panel makes it extremely well. It hasn't wholly shifted me from my position of neutrality on this issue, I think, just as some of the contrary evidence you've received hasn't shifted me to an anti position either. I remain one of the agnostics on this issue. As I say, the residual concerns I have I think are principally about the inconsistency and about the likelihood of this producing partisan discord in an area where, ideally, it's better if we can try and achieve a broad partisan consensus.

You made some references, of course, to the expert panel, and what the expert panel did say, and, of course, we had evidence slightly earlier about this, was the importance of what we call political—I think with a small 'p'—education, citizenship education, however you want to describe it, as being quite important. Leaving aside the sort of technical merits and arguments as to reducing the voting age, what is your view about—? Do you have a view in respect of the adequacy or the need to ensure the adequacy of a clear process of citizenship education to, I suppose, educate and prepare people for voting?

My own very strong view is that this is something that we should be doing anyway, whether or not we're looking to reduce the voting age or even increase the voting age, or whatever we might be doing to the voting franchise. Part of being a citizen in a democracy, part of becoming an educated citizen, the basic element of being that sort of citizen, should be education in the basic principles of what a democratic system is, based, in the case of Wales within the UK, on devolved institutions within the UK, representative democracy and also, periodically, direct democracy through referendums. People should understand the basics of how that works and what their own role as a citizen might be within that. So, frankly, we should be doing that anyway, whether or not we're looking to lower the voting age. Bluntly, I don't know enough about the details of how schooling, A-levels and such things are delivered to give a definitive judgment on that. My general sense, I have to say, is that we don't do that adequately yet. We should be looking to do more, although I'm also aware that teachers, for instance, often complain with some justification that they have already a very overcrowded curriculum and that it's very easy to say they should do more of this, more of that, without people often saying what they should do less of. But I think this should be a basic part of education for life.

15:10

I suppose making a change like this accentuates the focus on what you're doing, or should be doing, how you do it, from what age you're doing it, but I suppose the consensus still would probably be that this should be a core part of the educational process, and we can explore that, obviously, with other witnesses in terms of what is happening, or what needs to be done. But do you think, perhaps, that the legislation should actually create a specific duty on that to emphasise the focus, or are you saying it's not necessary?

I think that's a really interesting idea. I suppose in general I would not be in favour of adding to the duties that already hard-pressed schools or whatever have. But at the same time, my very clear view is that citizenship education, preparing young people for life, should include this in any case. But of course, if we were going to be having legislation to introduce votes for 16 and 17-year-olds, that might give an added impetus, and I think sometimes in life we need a bit of an impetus to do things that we should do anyway, and this might be a push to help us educate teenagers a little bit more about how the political system they live in actually works.

Those were very helpful comments on impetus, and on to Mandy Jones.

What do you think are the implications of allowing 16 and 17-year-olds to vote in Assembly elections but not in local government and UK parliamentary elections?

Thank you. As I've already indicated, I think one of my concerns if we just push ahead with change for Assembly elections would be that you're introducing some degree of inconsistency. We've seen this in Scotland already. So, for instance, there were some young people who were able to vote in the 2014 independence referendum. So, they were in the electorate for that. Then, about eight months or nine months later, a general election, they were out the electorate for that, and then a year later for the Scottish Parliament elections, some of them were back in and a few of them were out again. That is not a particularly sensible approach. If we're going to reduce the voting age then ideally we should reduce it across the board and have consistency. However, I think if you have, as we're very likely to have, I think, differing views in differing institutions about the desirable voting age, then it's probably inevitable you're going to get some inconsistency. We're not due local government elections again until 2022, I think, so we have, I suppose, a little bit more time to think about the franchise for those. The Assembly elections are just over two years away, so if we were going to reduce the voting age, there's not that much time to spare before you actually would want to put in place those changes.

I've changed my question, actually. You say you're agnostic on votes for 16-year-olds. Considering there hasn't been any previous education as yet for the 2021 elections, do you think education could be delivered within those two years in a non-partisan way, like religious education?

Obviously, I said a few minutes ago that I think we should be looking to do more to educate our young people about politics anyway. I think if we have a little bit more than two years before an Assembly election and we have a specific cohort of people who will then come into the electorate, who otherwise would not have done, then it might be a little bit more easy to target specific education and training at them.

I know some people in general are concerned about the idea of politicising schools and whatever. While I recognise the concern, I have to say, frankly, I think being a citizen in a democracy is such a fundamental aspect of life that, as I said, we ought to be doing this thing and finding out ways in which we can deliver this. That, frankly, to my mind, trumps any potential concerns about partisan bias.

If there's a specific cohort of people who are currently, perhaps, 14 or 15-years-olds who are going to be coming into the electorate who otherwise would not have done for May 2021, it ought to be possible in time, you would think, to target some specific resources and education at them. As it is, of course, there will be people who will be 18 by May 2021 and they won't have much in terms of specific education and training targeted at them. At some point, we have to set a cut-off date where people are in the electorate or out of the electorate. It would be great if all of them could be fantastically informed and educated citizens. In fact, we're always going to fall short of that ideal. I don't myself see it as a strong argument against introducing votes at 16—that, somehow, there'll be a cohort of people who are going to be fantastically less well informed than everybody else. 

15:15

Yes, I just wondered what your view is on this consistency issue, of using this Bill to lower the age of voting for Assembly elections to 16 but not at the same time to lower the voting age for local government elections to 16, which is within our competence. We therefore create some jeopardy as the second reform will not happen before 2022. Now, the Welsh Government says it does intend to lower the age, but their preferred vehicle would be a local government and elections Bill. Well, we know that local government has been a highly contentious area of public policy. There's not much time to introduce legislation in this Assembly, especially as we clear up from issues relating to Brexit. So, it strikes me as odd that we create this jeopardy and not just do it in the first place here if we can. 

Yes, I broadly agree with that, David. I think it would be ideal if, say, the Assembly has competence over Assembly elections and local government elections, I think it would be better, probably, if you're going to introduce the changes, to introduce both of them in the one Bill. But then I guess I won't be telling any of the elected Members here anything when I say that legislation is often a somewhat messy and less-than-ideal process, and I suppose to some extent some of that is reflected in the Bill we have here, where we have some of the expert panel's recommendations being taken forward, others then being left to another piece of legislation and then tacked on to some of what is going forward now—some other issues that have been lying around for a bit in one way or another. Such, I guess, has always been the case with legislation. 

Part of your work is obviously the correlation of data with regard to elections, and so on. Just one short point, and that is: is there any evidence, is there anything that will assist us in respect of what the impact would be of reducing the voting age to 16 in terms of turnout?

Well, obviously, if you extend to 16 and 17-year-olds, you increase the size of the electorate. Other things being equal, if we were to think that 16 and 17-year-olds might be fairly similar to those just a little bit older than them in their proclivity to vote, then it would probably bring turnout rates of the registered electorate down a little bit.

One of the arguments for introducing this change, though, is potentially some longer term changes. It's mentioned in the explanatory notes to the Bill, and discussed, I believe, in the expert panel report, if I'm remembering correctly. If we look at some of the international evidence on when people vote, when they turn out and when they don't, a lot of that suggests that voting or, indeed, not voting, is a habit and that, for instance, if people don't vote in the first election for which they're eligible to vote, then they actually become progressively less likely to participate in future elections, and these effects carry on for people into their 30s and even their 40s.

I think the argument has been made by a number of scholars that, actually, 18 is a particularly bad time to make people first eligible to vote, because that's when people often—. If their first major election happens when they're 18 or 19 years old, that's probably when they may be leaving home and going off to college, many of them, or for other reasons leaving home. Their lives have just been uprooted in various ways. They're possibly less settled in a community. There might be a somewhat greater relative likelihood of people to get into the habit of voting if they're still living—as most of them would be, probably—at home in a reasonably settled domestic environment at the age of 16 or 17. So, there's a hope that 16 and 17-year-olds voting might, in the long term, have some sort of positive impact on voter turnout. In the short term, it will probably lead to a very modest decline.    

15:20

Dim ond yn adeiladu, a dweud y gwir, ar yr atebion roeddech chi wedi eu rhoi i David jest nawr, achos, wrth gwrs, rydyn ni lle rydyn ni efo'r ddeddfwriaeth yma. Does yna neb yn dweud mai hwn ydy'r byd cyfan gwbl goleuedig, ideal y dylai fo fod. Mae'n rhaid i ni gael deddfwriaeth yn dilyn yr adroddiad arbenigol yma. Mae'n rhaid iddo fo fod yn weithredol erbyn 2021, felly fe wnaf i ofyn dau gwestiwn bach ynglŷn â'r broses. Fe allai'r broses fod wedi bod yn well, ond hefyd mi fuaswn i'n awgrymu ateb i chi: hynny yw, y realiti, fel rydych chi wedi crybwyll eisoes, yw dydyn ni ddim yn byw mewn byd o iwtopia gwleidyddol. Felly, y cwestiwn cyntaf ydy: a fuasai wedi bod yn well petai Comisiwn y Cynulliad wedi achub ar y cyfle i gydgrynhoi'r ddeddfwriaeth ar etholiadau yn eu cyfanrwydd, ta beth—hynny yw, job y Comisiwn yw dod â deddfwriaeth gynhwysol ar bob etholiad?

Ac yn dilyn o hynna hefyd, a fuasai wedi bod yn well ta beth i beidio â'i adael e i'r Comisiwn a bod Llywodraeth Cymru yn cyflwyno un Bil ar bob agwedd ar ddiwygio etholiadol ar draws pob etholiad? Fel dŷch chi wedi crybwyll eisoes, ac fel mae eraill wedi crybwyll eisoes, mae'r Bil yma—dyma lle rydyn ni. Mae'r Bil llywodraeth leol yn rhywle. Dyna lle rydyn ni yn fanna hefyd. Ac, wrth gwrs, mae'n beryg y bydd yna gryn dipyn o lanast, heb sôn am y byd iwtopaidd yma dwi'n trio'i amlinellu yn fan hyn.     

Just to build on the responses that you've given to David just now because, of course, we are where we are with this legislation. Nobody's saying this is the enlightened, ideal world that it should be. We do have to have legislation following on from this expert panel's report. It has to be implemented by 2021, so I'll ask two questions about the process. Of course, the process could have been better, but I would suggest an answer to you: that is, the reality is, as you've already mentioned, that we don't live in an utopian political world. So, the first question is: would it have been better if the Assembly Commission had taken the opportunity to consolidate the legislation in relation to elections in its entirety—that is, it's the Commission's job to bring forward comprehensive legislation on all elections? 

And following on from that, would it not have been better regardless not to leave it to the Commission and that it should be the Welsh Government introducing a single Bill on all aspects of electoral reform across all elections? As you've already mentioned, and as others have already mentioned, we have this Bill—this is where we are. The local government Bill is somewhere in the pipeline. That's where we are on that as well. And there is likely to be a great deal of mess to tidy up, without mentioning this utopian world that I'm trying to outline here.  

Diolch, Dai. Yn gyntaf, wrth gwrs, dwi'n cytuno—dwi ddim cweit yn byw ar hyn o bryd mewn byd delfrydol. Ar y cwestiwn cyntaf, efallai mewn egwyddor y buasai wedi bod yn well i gael dim ond un Bil, ond o ystyried y ffaith bod newid y system etholiadol mewn ffordd eithaf sylfaenol yn rhywbeth anodd, yn arbennig pan rŷm ni'n cofio bod rhaid i ni gael mwyafrif mawr y Cynulliad, dwi'n meddwl ei fod yn gwneud llawer o synnwyr—i mi, o leiaf—i ddatblygu Bil cyntaf i wneud popeth sy'n bosibl ei wneud ar hyn o bryd, a wedyn, ar ôl ychydig mwy o amser, ystyried, efallai ar ôl datblygu consensws, trio cael ail Fil yn dod i fewn yn delio gyda'r pethau anoddach. Dwi'n dal i feddwl y bydd yn anodd iawn i gyrraedd consensws ar system etholiadol hollol newydd.

Ar yr ail gwestiwn, sef a fuasai wedi bod yn well i gael y Llywodraeth i roi mewn y Bil, dwi ddim yn siwr fy mod i'n cytuno efo hynna. Fel roeddwn i'n dweud o'r blaen wrth Dawn, dwi'n meddwl, ar y cyfan, mae'n well os yw hi'n bosibl i gael dadleuon rhwng y pleidiau yn ystod y rheolau, nid am y rheolau. Ac os yw'n bosibl i gael y sefydliad yma, y Cynulliad, i ddatblygu mewn ffordd, gyda chonsensws eithaf mawr, o leiaf, sut byddem ni'n newid a sut byddem ni'n datblygu'r system a'r rheolau am etholiadau'r Cynulliad yn y dyfodol, dwi'n meddwl ei bod yn ffordd hollol dda a hollol gall i drio datblygu Biliau fel hwn. Fel roeddwn i'n dweud o'r blaen, dydyn ni ddim yn cael Biliau neu broses wleidyddol ddelfrydol ar hyn o bryd mewn sawl ffordd.

Felly, yn bennaf, dwi ddim yn meddwl ei bod yn broblem sylfaenol wrth wneud pethau fel hyn—dau Fil, a'r cyntaf, o leiaf, yn dod drwy'r Comisiwn a'r Cynulliad, nid yn mynd yn syth drwy'r Llywodraeth. 

Thank you, Dai. First of all, I agree with you that we're not quite in that ideal world as of yet. On your first question, yes, perhaps in principle it would have been better to have a single Bill, but given the fact that changing the electoral system in quite a fundamental way is quite a difficult thing to do, particularly when you bear in mind that we need a supermajority in the Assembly to achieve this, I do think it makes a great deal of sense—to me, at least—to develop a first Bill to do everything that can be delivered at the moment, and then after a little more time and having developed a consensus, to then try to push through a second Bill dealing with the more difficult and thorny issues. I still think it will be very difficult to achieve that consensus on an entirely new electoral system. 

And on your second question on whether it would have been better for the Government to introduce a Bill, I'm not sure I would agree with that. As I said earlier in response to Dawn, I think generally speaking it's better to have debates between the parties within the rules, rather than about the rules. And if it's possible to bring this institution, this Assembly, together and to develop this agenda with quite a large consensus in terms of how we would change the system and the electoral arrangements for Assembly elections in the future, then I think it's an entirely sensible approach. As I said earlier, we don't have an ideal political system or an ideal Bill at the moment in many different ways.  

Overall, I don't think it's a fundamental problem in terms of dealing with these issues, via two Bills, with the first, at least, being brought forward through the Commission and the Assembly, rather than going through the Government.

15:25

Diolch.

Thank you.

Can I just ask first about section 27? It creates a duty to undertake some oversight work of the Electoral Commission, and then they've got to have due regard to it. It's very tepid, and we've already heard form a legal expert that it's a bit of a shortcut. Is it just too weak to be in the Bill, and is it confusing and, really, doesn't point to a robust system?

I must admit that some of the technicalities of this are not things that I would claim any great expertise in. I think, clearly, if the Assembly is taking more control of its own elections then it ought to have a more developed relationship with the Electoral Commission, which oversees these elections. Whether this Bill does that in the right way, goes quite far enough, I'm not at all sure. I'm a little sceptical.

You're not necessarily convinced.

What about the issues around disqualification? Obviously, it sets up a sort of dual system where certain offices of very important constitutional or public significance are precluded from standing for candidature, and then a wider range, presumably, will be excluded from serving in the Assembly should they win an election, but they wouldn't be excluded actually from seeking election. Do you think that's about the right balance?

Well, obviously, I think everyone here will remember the somewhat unfortunate situation we had after the 2011 election—we wouldn't want to repeat that. In general, I think, the overall balance of these proposed changes is at least a modest change in terms of making it a little bit easier at least for some individuals to stand. Now, in general, I think that is a good thing. I was involved in some work that we did at Cardiff University for the National Assembly for Wales Remuneration Board a little while ago, looking at potential barriers to standing, and I think, if at all possible, we ought to be doing things to encourage people to stand and removing as many possible barriers in the way of people standing for election to elected bodies like this where we can.

What's proposed, I think, is a very modest move in that direction, and I think, except for some of the extremely important offices they mentioned, in general, I think, where there's a potential conflict of interest, that mostly comes at the point of election rather than necessarily just of standing. We should not, in general, be making it harder for people to become candidates for political office, including an institution like this. Doing so is a public service and, frankly, it's something we need more of and not less.

I agree with that. I don't know if you've seen the list of offices that are excluded from being candidates. I think most probably on that list would strike us as being of such a nature that it would compromise the office holder even becoming a candidate, but that's a high bar, I think we have to say. We wouldn't want to be adding to that list in anything like a casual, just-in-case way. There would have to be very good reasons.

A further protection on the wider list—that's those that would have a conflict of interest should they serve and, therefore, have to resign from a disqualifying office. One way around this, and it was discussed in the fourth Assembly, would be that if you take the oath to be an Assembly Member, you are just automatically deemed, by doing that, to have resigned from any disqualifying office. We do it the other way round, which strikes me as not very democratic.

In principle, that sounds fine, David. In practice, I think I'd want to discuss with people who work with the details of this whether there might be any practical problems with that. It does seem to me that maybe that is the Assembly saying a duty to it over-rides any other commitments and responsibilities that people may have. So, I think I'd want to think precisely about the exact modalities of how such an assumption like that would be built into legislation and how that would work in practice. In principle, it sounds fine, but, as we all know, the fine detail of these things can get a bit more complicated.

15:30

Okay. And then, finally from me is section 36, which relates to the ability of Welsh Ministers to implement Law Commission recommendations relating to electoral reform, basically by secondary legislation. I wonder if you think that’s an appropriate way to deal with electoral arrangements. In fact, the Government have said that they don't even like it and feel that it should be in primary legislation, which is not a response that’s frequently given to us in terms of the Executive's view. But what do you think?

Well, the Law Commission for England and Wales, along with its Scottish and Northern Irish equivalents, did a very detailed, thorough report, around three years ago now, which was met with, it seems, a wall of indifference frankly from Whitehall, which understandably has had other things on its mind. I think there is a lot in that report, which I went back and looked at recently, that should be acted upon, probably on a common UK-wide basis. There is quite a lot of, I think, necessary tidying up of legislation, clarifying of legislation, making legislation more consistent across the different jurisdictions and territories and different types of elections. I think that the ideal thing, clearly, would be to have probably UK-wide legislation moved forward on a common basis to implement a great deal of that. Sadly, there seems to be no willingness to move on this at the UK level at the moment—a significant dereliction of duty, in my view.

Given that a lot of the issues that they talked about there were about inconsistencies between different parts of the UK, it is not immediately obvious how, therefore, giving powers to Ministers in one territory in the UK to implement some of that takes you a very great way along the sort of roads that the law commissions were talking about. You may be able to clear up a few anomalies, but, for the most part, what they're talking about is the need for a significant sort of common, UK-wide tidying up and clarification exercise, and the need for that is, if anything, even greater than it was when they wrote the report.

Yes, well, we have been dealing with rather a lot of anomalies fairly recently, particularly with the Brexit legislation.

Really, just a final point for me on whether there are any final comments you want to make, whether you think there’s anything not in this Bill that you would have liked to have seen or should be in it, or any other comments.

Just two, if I may, Chair. First is that I am on record publicly as having favoured a greater number of Assembly Members. I believe that is necessary for the Assembly to be able to more adequately fulfil its responsibilities. And, at least in private, I have found members of all parties represented in the Assembly to accept that case. Obviously, if we were in a more ideal political world, I would have liked to have seen therefore those aspects included in this Bill, but I recognise the political realities of why it isn't there.

One thing I am pleased to see in the Bill that we haven't covered is the move for greater time between the election and when the first sitting of the Chamber must happen. I think allowing just a little bit more breathing space after the election, particularly in the likelihood—you know, we've never yet had an Assembly election that has resulted in an absolute one-party majority. Who knows where we'll be by 2021, but it’s quite likely that we may be in similar territories, and it’s reasonable to allow the parties a little bit of time. It’s long seemed to me one of the greater constitutional insanities of the United Kingdom, albeit being rather overshadowed by other insanities at the moment, that, at the UK level, we expect the transfer of power, where election results in such a thing, to happen more or less immediately, when politicians have long-term exhaustion from campaigns, compounded by short-term sleep deprivation and all the emotional highs of election victory. That is almost a recipe for people making bad decisions, and that’s the context in which we expect a new party to come into government. I think that, at the UK level, we should have, probably, a transition period of 10 to 12 days. Anything that makes that more possible at the Welsh level is very much to be welcomed.

It certainly seems to be a product of learning from experience, doesn't it? Were there any final points on it? In which case, firstly, thank you very much for your very, very helpful contribution today. There will be a transcript sent to you. If you feel there are any points that you do wish to make to add to it, then we're more than willing to receive those. But thank you, mainly for the time you've given to this committee, and to the functioning of this committee. Thank you. 

15:35

Thank you, Chair. 

11. Cynnig o dan Reol Sefydlog 17.42 i benderfynu gwahardd y cyhoedd o'r cyfarfod
11. Motion under Standing Order 17.42 to resolve to exclude the public from 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.

I think we've completed all the evidence sessions, so I now ask the committee to resolve to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42. So, in accordance with Standing Order 17.42, I invite you to resolve to exclude the public. Do the Members agree?  

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 15:36.

Motion agreed.

The public part of the meeting ended at 15:36.

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