It was all fun and games in Wales last Tuesday, as the Draft Wales Bill was published by the UK Government. This putative piece of legislation has had quite a long gestation – a process that includes both the second Silk Commission report (published in spring 2014) and the cross-party talks that generated this spring’s St David’s Day declaration.
There has already been, and will doubtless continue to be, much debate about the draft bill, at least among the Welsh political class. I think it is fair to say, given the reception accorded the draft bill, that it is far from certain to become legislation at all, and certainly not in quite this form. The bill will need to go through both Houses of Parliament. It will also need to be supported by the National Assembly. At present, we are only at the stage of draft legislation, which will face pre-legislative scrutiny in parliament from the Welsh Affairs Committee over the next few months.
I’m not, in this post, going to explore the wider issues raised by the bill or the potential political machinations by which this draft bill might or might not actually become law. Instead, I want simply to focus on the provisions in the draft bill that are closest to the remit of this blog. The draft bill touches on elections in Wales in several places.
There are several detailed provisions regarding the dates of elections – essentially these seem to be there to prevent NAW elections ever coinciding with the other major elections held in Wales: general elections, EP elections and local elections.
There are also some other, more substantial, provisions regarding elections. These come in several forms. First, and most restrictively, the very lengthy list of putative Reserved Matters contained in the draft bill includes: elections to the House of Commons; European Parliament elections; and even elections for Police and Crime Commissioners. The Assembly would be explicitly prohibited from acting in these areas. Thus, it could not abolish Police and Crime Commissioners, and the associated elections, even if there were a large majority in the Assembly in favour of doing that.
Second, there is an important silence in the bill. Local elections in Wales are not listed as a Reserved Matter. On the Reserved Powers model of devolution, the National Assembly therefore could act to change numerous provisions for local elections, and even introduce an entirely new electoral system. The latter, of course, is what the Scottish Parliament did for local elections there; they moved to use of the Single Transferable Vote in 2007. (This is all in line with the agreement between the parties that produced the St David’s Day declaration; as point 42 in Annex A of the Powers for a Purpose document published by the UK Government in tandem with that declaration reveals, devolution of local government elections was a matter on which consensus was reached.)
Third, the Bill quite explicitly proposes devolving some powers over National Assembly for Wales elections. Several things are specifically mentioned as things that there will be control over:
- “Persons entitled to vote”: So it would be possible to introduce a provision for votes at 16, say, in National Assembly elections;
- “The system by which members of the Assembly are returned”: This mean that it would be possible to replace the AMS system by another one, such as First Past the Post or STV;
- “The number of constituencies, regions or any equivalent electoral area”: This means that, while the Assembly will have no control over the forthcoming redrawing boundaries for Westminster, it could choose either to follow these new boundaries or develop some other way of dividing Wales up geographically for electoral purposes;
- “The number of members to be returned for each constituency, region or equivalent electoral area”: This means, in practice, that not only can the electoral system change, but so also can the overall size of the Assembly. This provision is important in itself, but also gives greater flexibility when considering possible changes to the overall electoral system.
While planning the devolution of powers over NAW elections, the draft bill also incorporates an important safeguard to prevent one party manipulating the system to its own advantage. A two-thirds majority is needed to approve changes in any of the areas outlined immediately above.
There is an important detail to note here: a two-third majority is defined in the draft bill as “at least two-thirds of the total number of Assembly seats” (Section 20.4 of the Draft Bill, p.18). Therefore, we are not just talking about two-thirds of those voting in any division on the matter. Rather, in the present Assembly, forty AMs would have to positively vote for any proposed changes. Any AMs absent from the Assembly or abstaining from a vote would effectively count as votes against change. This makes the two-thirds threshold particularly stringent.
In an Assembly that had a political balance similar to the present, the Conservatives and Plaid Cymru, with their 25 seats between them, would constitute a clear blocking minority against any proposed change. The Labour party could not, say, cut a deal with the Liberal Democrats to change the system. Labour would need to combine with one of the other two parties to reach a sufficient majority for change. But even the 41 seats of Labour and Plaid would only provide a bare majority (given that one Labour member is the Presiding Officer.)
Overall I am inclined to regard the draft bill as somewhat underwhelming in terms of advancing devolution. Some serious people have even suggested that it offers the potential for reversing devolution in some respects. (Which many would not regard as a bad thing, of course!) As currently drafted, it seems to fall quite a long way short of what was proposed in the Silk Commission’s second report. But there is lots of potential devil in the detailed provisions. This one, I suspect, will run and run.
But the electoral provisions of the draft bill are significant. They provide for the possibility that the parties in Cardiff Bay could change both the size of the Assembly and the entire basis of the electoral system. However, such a thing would have to be done on a consensus basis – unless get a really shock result next May, electoral reform for devolved elections in Wales will need a minimum of two parties to agree on change, and quite possibly more than two. That is all very much to the good. Electoral systems should not, under any circumstances, be the plaything of any one political party. We should never see repeated the shoddy provisions on dual candidacy in the 2006 Government of Wales Act – imposed by the majority party against opposition not just from all other parties, but also from most neutral and expert observers.
Nonetheless, as I will discuss in a series of future blog-posts, with the likely change to 30 or even 29 Welsh constituencies for Westminster on the horizon, there will need to be some changes to the electoral system for the National Assembly. The draft Wales bill offers to give next Assembly the ability to respond to this situation – although it by no means guarantees how the Assembly might respond.