Wales Bill

John Penrose Excerpts

Tuesday 5th July 2016 Commons Chamber

[The Temporary Chair (Sir Alan Meale)]

With this it will be convenient to discuss the following:

Amendment 28, in clause 6, page 7, line 2, leave out paragraph (b) and insert—

“(b) for ‘The Secretary of State may by order provide for the poll at an ordinary general election to be” substitute “The Presiding Officer may propose that the poll at an ordinary general election is.’”

The Bill as drafted transfers the power to vary the date of an ordinary general election from the Secretary of State to Welsh Ministers. The amendment transfers the power to the Presiding Officer of the National Assembly for Wales.

Amendment 29, page 7, line 2, at end insert—

“(7A) Leave out subsection (2) and insert—

(2) If the Presiding Officer makes a proposal under subsection (1), Her Majesty may by proclamation under the Welsh Seal—

(a) dissolve the Assembly,

(b) require the poll at the election to be held on the day proposed, and

(c) require the Assembly to meet within the period of fourteen days beginning immediately after the day of the poll.”

The amendment inserts provision for the arrangements for varying the date of an ordinary general election. The amendment also extends from seven to fourteen days the period within which the Assembly is required to meet following the day of a poll.

Amendment 30, page 7, line 2, at end insert—

“(7B) In subsection (4) for ‘An order under this section may’ substitute ‘If the Presiding Officer makes a proposal under subsection (1), the Welsh Ministers may by order’”.

The amendment replicates existing provisions in the Government of Wales Act 2006 with a modification resulting from the transfer of the power to vary the date of an ordinary general election to the Presiding Officer.

Amendment 31, page 7, line 6, at end insert—

“(10A) Section 5 of the Government of Wales Act 2006 (Extraordinary general elections) is amended as set out in paragraphs (a) to (d)—

(a) In subsection (1) for “Secretary of State” substitute ‘Presiding Officer’.

(b) In subsection (4) for “Secretary of State” substitute ‘Presiding Officer’.

(c) In subsection (4) for ‘Order in Council’ substitute ‘proclamation under the Welsh Seal’.

(d) In subsection (4) for ‘seven’ substitute ‘fourteen’”.

The amendment inserts a new provision transferring the power to propose the day of an extraordinary general election from the Secretary of State to the Presiding Officer. The amendment also extends from seven to fourteen days the period within which the Assembly is required to meet following the day of a poll.

Clauses 6 and 7 stand part.

[The Parliamentary Secretary, Cabinet Office (John Penrose)]

Clauses 5 to 7 deal with elections to the Assembly and local government elections in Wales. Clause 5 concerns the power to make provision about Welsh Assembly elections. It flows from the St David’s day agreement, which states that powers relating to elections to the National Assembly for Wales should be devolved. Essentially, the clause gives Welsh Ministers an order-making power to make provision about the conduct of Welsh Assembly elections. It also gives the Secretary of State, subject to the agreement of Welsh Ministers, the power to make regulations to combine the polls at Welsh Assembly elections with UK parliamentary elections and in theory—this will not matter much in future—with European parliamentary elections, too.

Clause 5 substitutes section 13 of the Government of Wales Act with a proposed new section 13. It broadly transfers to Welsh Ministers the power exercised by the Secretary of State to make provision by order about the conduct of Welsh Assembly elections. The new section provides that the powers of Welsh Ministers are aligned with the legislative competence of the Welsh Assembly. It also sets out the scope of the order-making power and makes it clear that it enables provision to be made on a number of matters, including the registration of electors and the limits of election expenses for individual candidates. It also allows Ministers to combine polls: when more than one poll is held on the same day, they will decide how the polls will be administered.

The clause also devolves matters relating to the allocation of regional members at an election, the process for challenging an election and what should happen if there is a vacancy in the Assembly. It also inserts a new section 13A into the 2006 Act that gives the Secretary of State the equivalent power to combine polls at Welsh Assembly elections with UK parliamentary elections and European parliamentary elections. For example, an extraordinary general election for the Assembly could be held on the same day as a general election for the UK Parliament. The exercise of this power by the Secretary of State will be subject to the agreement of Welsh Ministers and subject to the affirmative resolution procedure here in the UK Parliament.

Clause 6 concerns the timing of elections in Wales and implements the St David’s day agreement, which states that while conduct of Assembly elections and local government elections in Wales should be devolved, the Assembly should not be able to decide to hold its elections on the same day as general elections to the UK Parliament, the European Parliament or local government elections in Wales. This aspect of the administration and conduct of Assembly and local elections will therefore remain reserved to the UK Parliament.

By way of background, to date, each general election that has been held to the Assembly—there have been five in total—has been held in a different year from ordinary local elections in Wales. Further, the Wales Act 2014 amended section 3 of the Government of Wales Act 2006 so that ordinary general elections to the Assembly are now held every five years rather than every four. This, and the provision in the Fixed-terms Parliaments Act 2011, which it superseded, avoided the Assembly general election and the UK parliamentary general election clashing in 2015 and will avoid such a clash in 2020, as the next ordinary general election to the Assembly is now scheduled to be in 2021.

The next scheduled local elections in Wales are due to be held in 2017. The Local Authority Elections (Wales) Order 2014, made by Welsh Ministers, provided for the local government election date to be moved by one year in order to avoid a clash with this year’s Assembly election. The clause says that in the event of a clash, Welsh Ministers can make an order specifying the alternative day on which the poll of the ordinary Welsh Assembly general election shall be held. It also transfers the existing power of the Secretary of State to move the date of an Assembly ordinary general election by up to one month to Welsh Ministers, and that where this power is exercised, that new date cannot fall on the same date as a UK parliamentary general election or European parliamentary election.

The clause also includes provisions that prevent local government elections in Wales from being held on the same day as an Assembly general election. If there is a clash, Welsh Ministers can make an order specifying the alternative day for the local government election to held.

Clause 7 ensures co-operation between Welsh Ministers and UK Ministers over the online individual electoral registration digital service for Assembly elections and local government elections in Wales. The Assembly is free to decide on a franchise and a registration process for these elections, but as a practical matter, where the Welsh Government wants changes to the GB-wide Digital Service, they will need the approval of UK Government Ministers to do so.

[Stephen Doughty]

To clarify, if Assembly Ministers have the ability to change the provisions about the registration of electors and potentially to move to an automatic system of registration, which ensures that we have people registered, unlike the current system, how will that work with future UK parliamentary elections or other elections? Will they then be using the system that the Welsh Ministers have decided on or will there be a different register for those elections?

[John Penrose]

As the hon. Gentleman will be aware, we already run two very heavily overlapping but subtly different electoral registers for local council elections and parliamentary elections. There are different qualifications. For example, an EU national who currently lives in a British city might be eligible to vote in a local council election and not in a UK parliamentary election, so we have two heavily overlapping but not identical registers. The same applies to Scottish parliamentary elections to Holyrood. That will continue, and should the Cardiff Assembly decide that it wants to change things in some way it will have the competence to do so for the electoral roll for Cardiff Assembly elections, but it will not have the competence to change the registration process or scope for UK parliamentary elections as that is a reserved matter to be decided in this place. I hope that clarifies things for the hon. Gentleman.

--- Later in debate ---

[John Penrose]

There has been a difference for many years between local election registers and parliamentary election registers. That is a very long-standing principle. We are not changing that. It would be possible, should the Welsh Assembly so decide, to make further changes and enfranchise other groups of people whom we would not necessarily want to enfranchise for UK parliamentary elections. At the moment, however, there is already a difference between the two electoral registers. There has been for a very long time. Nothing about this will change any of that, but in future it will be up to the Welsh Assembly to decide whether it wants to make further changes that might narrow or widen the existing long-standing differences.

[Geraint Davies (Swansea West) (Lab/Co-op)]

The Minister seems to be saying that the Welsh Government should have the right to displace coincidental elections, but that they do not have to. He seems to be saying that under the rules a general election, an Assembly election and even a European election could occur on the same day. At the same time, he is saying that it would be delayed by only a month. In the last such episode, we saw political parties in Wales campaigning up to the Assembly elections and not really mentioning Europe, but then we had only six weeks to persuade Wales that it was better off in. That was not enough. Is a month long enough?

[John Penrose]

I fear that I was not clear enough. I am saying that there are explicit provisions in the Bill to prevent the elections the hon. Gentleman just mentioned from happening on the same day. It will not be possible to hold an Assembly general election, for example, on the same day as a UK parliamentary general election. That is explicitly prevented in the Bill and if some future accident of diary meant that the two things were to fall on the same day, we are talking about the powers for Welsh Ministers to move their date, should it be necessary, by up to a month, and about their having that power rather than the Secretary of State.

[Geraint Davies]

On the second point, one question would be whether a month is long enough. It would seem to me that it is not. Secondly, it seemed to me that the Minister said that there are powers to move the dates but that Welsh Ministers are not obliged or required to move them. Could not the Welsh Assembly Government choose to have the two elections on the same day under this provision?

[John Penrose]

I am not saying what the hon. Gentleman fears I am saying. I can reassure him on that. The power to move things by a month already exists. It just happens to be vested in the Secretary of State. All we are seeking to do here, as part of the St David’s day agreement and following the principles set out in it, is to devolve that power from the Secretary of State to Welsh Ministers. We are not seeking to change the power in one direction or another; we are just making sure that it is being exercised more locally in Cardiff rather in than Westminster. It continues to be legally the case that the Assembly elections and the UK parliamentary elections cannot happen on the same day, so it would only be a question of moving some of these elections around in that case—although there might be other reasons why one might want to—if at some point, many decades hence, an accident of the diary meant that the two happened to coincide. In order to comply with the constraint, they cannot happen on the same day and one would have to move, whereupon this power would apply.

I was talking about the online voter registration system and the way that that needs to be adjusted, if it is to be adjusted, by mutual consent. As I said, the Assembly is free to decide on the franchise and the registration process for Assembly elections, but as a practical matter, where the Welsh Government want changes to the Great Britain-wide Digital Service, they will need the approval of UK Ministers to do so. That is because the Digital Service is a series of interconnecting digital applications, including online voter registration, for people living in England, Wales and Scotland, as well as British citizens resident overseas. We all need to ensure that any changes to the franchise or registration process for Welsh Assembly and local government elections in Wales do not adversely impact on voters in other parts of the UK or abroad.

With these considerations in mind, the clause allows Welsh Ministers to make regulations concerning the Digital Service in relation to Assembly and local government elections in Wales with the agreement of a Minister of the Crown.

[Hywel Williams]

I apologise to the Committee for my voice today. My daughter Enlli came back from nursery the other day with a slight tickle, and that has led to world war three breaking out in my larynx, unfortunately.

My hon. Friends and I support the motion that clauses 5, 6 and 7 stand part of the Bill, preferably along with our amendments 28 to 31 to clause 6. These are probing amendments and I would be interested in hearing the Minister’s response.

As the Assembly has grown in competence, it is reasonable that the power over the timing of its own elections, as well as powers over the conduct of those elections and the registration of electors, should be devolved. Any ambitious democratic body would surely seek such powers. The amendments in this group, as Members on both sides of the Committee will be aware, were originally drafted and published by the office of the Presiding Officer of the National Assembly. In a letter dated 30 June, the Presiding Officer set out that the aim of this set of amendments is to

“deliver a constitutional settlement that is workable, clear and provides a firm foundation for the Assembly’s future.”

She noted in the same letter that these amendments were informed by evidence given during pre-legislative scrutiny of the previous draft Wales Bill to the then Assembly’s Constitutional and Legislative Affairs Committee, and were equally informed by the Assembly’s experience of working under the current settlement.

Amendments 28 to 31 would transfer the power to vary the date of an ordinary general election, as well as the power to fix the date of extraordinary Assembly elections, from the Secretary of State directly to the Presiding Officer of the National Assembly, rather than to Welsh Ministers. The amendments are underpinned by the principle that the Assembly should have powers over its own internal affairs.

It is worth pointing out, as the context, that the Fixed-term Parliaments Act 2011 set a precedent for moving decision making over the administration of elections away from the Government. Our amendments in this group, though probing, have this same underlying principle at their root—that is, that powers over determining the date of Assembly elections should be moved away from the Government. To our mind, this power should not be conferred on the Executive, so as to remove the possibility of any accusations of political interference. Were this change to be made by our amendments, it would add to the competence and responsibility of the legislature, which should surely be welcomed by all parties. It would also increase public confidence in the independent nature of election management in Wales.

As drafted, the Bill transfers the power to vary the date of an ordinary Assembly general election from the Secretary of State to Welsh Ministers. This is in contrast to the system operated in Scotland, whereby this power is bestowed on the Presiding Officer. Amendment 28 would put the Welsh Assembly’s arrangements on the same footing. Amendment 29 relates to conferring powers over varying the date of an ordinary general election. Although the Bill devolves powers over electoral arrangements, it does so in an unnecessarily impractical way.

[John Penrose]

Can the hon. Gentleman expand on his thinking about why those changes would be helpful? There are different approaches, as he will appreciate. Does he believe that there is anything unclear about the criteria that must be satisfied under the Fixed-term Parliaments Act as to whether a majority has been achieved in an Assembly or Parliament, or does he have other concerns about potential political game playing? Does he believe that the measure might put the Presiding Officer in a politically contentious position?

[Hywel Williams]

I have considered that, and it is my opinion and that of the Presiding Officer that it would not put her in that difficult position. These amendments are hers, after consideration. The point about parity and similarity with Scotland is persuasive, to our minds.

[Hywel Williams]

I take my hon. Friend’s point entirely. The four Assembly elections held so far have not produced a majority Government, so the consent of the Assembly collectively would be required in that situation. I am not casting any aspersions on the motives of Governments in Cardiff, London or anywhere else, but the amendment would remove any suspicion of political advantage being sought.

By adding a strict seven-day timeframe, during which period the Assembly must meet and elect a Presiding Officer, the Bill once again puts Wales on an unequal footing with Scotland. The Scottish Parliament is allowed 14 days to carry out this function. Given the history of the outcomes of elections to our Assembly, as I said a moment ago, and the obvious consequence that time has been required for the parties to discuss all manner of arrangements, seven days for this particular exercise seems unreasonable. That is why amendment 29 extends this period to 14 days for the Welsh Assembly.

Amendment 30 amends the Government of Wales Act 2006 so as to confer powers over varying the date of an ordinary general election to the Presiding Officer, as opposed to transferring this power directly to Welsh Ministers under the Bill as currently drafted. Finally, amendment 31 amends the 2006 Act so as to ensure that powers over proposing the date of an extraordinary general election are given to the Presiding Officer. The amendment once again extends the timeframe during which the Assembly is required to meet following an election to 14 days, thus establishing parity with Scotland.

These amendments are meant to probe and promote discussion. We do not intend to press them to a vote.

[John Penrose]

I thank the hon. Gentleman for laying out his case so clearly and so helpfully. He is right to point out that the provisions in the Bill seek to mimic the existing provisions to which his four amendments relate and to devolve the existing arrangements from the Secretary of State down to Welsh Ministers. However, he is also right to point out that this is not quite the same thing as has already happened in the parallel situation in Scotland, where the powers were devolved not to Scottish Ministers but to the Presiding Officer. We therefore already have in British constitutional arrangements two parallel but subtly different approaches.

The reason I asked my question of the hon. Gentleman is that there are competing views on this issue. I am not sure that either is necessarily automatically better or worse than the other, but there are different strengths and weaknesses, and different pros and cons, to both. Some people are concerned that devolving these powers to the Presiding Officer could put them in a politically contentious position. I do not think that that is the view of the Scottish Presiding Officer, the Welsh Presiding Officer or many politicians in the Welsh Assembly, but some people would certainly cleave to it—perhaps here, for example.

Equally, the question is whether the criteria that have to be satisfied for a fixed-term Parliament to be altered in length and for an early, extraordinary election to be called, are clear. For example, for this Parliament, the Fixed-term Parliaments Act says that we either have to have a Government who cannot command a majority and who, over two weeks, have failed to find one, or we have a two-thirds majority. Those are fairly clear criteria, so there is relatively little opportunity for political game-playing, either by Ministers or a Presiding Officer.

[Jonathan Edwards]

I am grateful to the Minister for the tone of his reply and for his clarification. Having read up on the potential implications of the Brexit situation, whereby the new Prime Minister may decide to call a snap election, I wonder whether it would be possible, under the terms of the Fixed-term Parliaments Act, for the new Prime Minister to call a vote of no confidence in him or herself, therefore triggering an election.

[John Penrose]

If the hon. Gentleman is not already in his party’s Whips Office, he probably should be, because that is a proper Whips Office wheeze. Were such a thing legally possible—I defer to others to decide whether it would be—I do not think it would pass the test of democratic credibility. Any Government who sought to precipitate their own downfall through that kind of mechanism—voting against themselves and saying they were not competent—would, as a practical matter, probably be judged quite harshly by voters in the polls. However, I appreciate that we are talking about theoretical circumstances, and we will have to leave that issue to the future to decide.

The point I was trying to make is that there are legitimate arguments on both sides, and both systems—one here, and one in Scotland—already persist quite happily side by side in British constitutional arrangements, and the question is now being raised in relation to the Welsh Assembly. I do not want to say that one system is inherently legitimate or illegitimate, or that one is necessarily better or worse than the other. It has to be a question of what is acceptable to local decision makers—in this case, Assembly Members and their officials in the Welsh Assembly.

We are therefore sympathetic to taking this issue away and thinking about it carefully. I thank the hon. Gentleman for raising it, and he makes a thought-provoking case. If he agrees, I would be happy to take his amendments away—I think he indicated they were probing amendments—to see whether we can take this issue forward or at least develop his ideas and thinking a little further.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.

Clause 8

Super-majority requirement for certain legislation

[Hywel Williams]

I beg to move amendment 32, page 10, line 3, leave out subsections (5) and (6).

The amendment removes the requirements on the face of the Bill for the National Assembly for Wales’ Standing Orders to include requirements for the publication of a statement in Welsh and English.