Section 5 – Pilot regulations: powers
49.Section 5 enables the Welsh Ministers to make regulations (“
registration of electors for Welsh elections, which in practice means the registration of electors on the local government register. These pilots will not however, be able to impact a person’s fundamental right to vote and cannot change the franchise;
when, where and how voting takes place which could include, but is not limited to, advanced voting arrangements, alternative polling stations, voting electronically etc.;
how votes are counted, which could include electronic counting;
communication with voters about Welsh elections; and
processes and procedures before, on or after polling in a Welsh election.
50.A “Welsh election” is defined by subsection (8) and means a Senedd election, an election to a principal council or a community council election. In addition, pilots will also be capable of being run at local government by-elections. These provisions do not apply to UK Parliamentary or Police and Crime Commissioner elections taking place in Wales.
51.Section 5(4) also allows pilots to be run in connection with the changes that sections 3 and 4 make to the 1983 Act in connection with registering as an elector without application. The Welsh Ministers do not need the consent of a principal council to run these pilots, nor do they have to submit a proposal to the Commission.
52.Pilot regulations may create, remove or modify criminal offences, but must not create or modify an offence that is, or becomes, punishable with a term of imprisonment which exceeds one year where the conviction is on indictment, or exceeds “the applicable limit” on summary conviction. The “applicable limit” on summary conviction means the maximum term of imprisonment that a magistrates’ court can impose in respect of a summary offence (i.e. an offence that can only be tried in a magistrates’ court) and in respect of an either way offence (i.e. an offence that can be tried in the magistrates’ court or the Crown Court). The applicable limit is defined by section 224(1A) of the Sentencing Code (the code contained in the Sentencing Act 2020 (c. 17)) and is currently 6 months imprisonment for a summary offence and 6 months for an either way offence. The reference to the Code “as it has effect from time to time” allows for the possibility that either of these limits may change in future. The applicable limit for an either way offence may be amended by the Secretary of State through regulations made under paragraph 14A of Schedule 23 to the Sentencing Code.
