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.
53.Section 6 sets out the requirements placed on Welsh Ministers when making pilot regulations. Subsection (1) requires pilot regulations to describe the objective of the pilot and specify the date by which the Electoral Commission must prepare its report on the operation of the pilot regulations (see section 17(1)).
54.Subsection (2) prohibits the Welsh Ministers from making pilot regulations which apply to the area of a principal council unless that principal council has consented to the pilot, or the Welsh Ministers have had regard to any recommendations made by the Democracy and Boundary Commission Cymru. However, this prohibition does not apply to any pilot regulations made in the 12 months following the Act receiving Royal Assent where the regulations are for the purpose of testing the arrangements relating to electoral registration without application.
55.Subsection (5) provides that Welsh Ministers must consult with stakeholders they consider appropriate before making pilot regulations relating to the registration of electors without application. It specifically requires Welsh Ministers to consult with stakeholders they deem to represent vulnerable groups.
56.Generally, when pilot regulations are made, they are subject to the negative resolution procedure in the Senedd. However, pilot regulations that either test how sections 3 and 4 work in practice; or apply to the area of a principal council without the consent of the principal council that will implement the pilot; or which include provision which creates or widens of the scope of a criminal offence, are subject to the Senedd’s affirmative resolution procedure. If Welsh Ministers are proposing to pilot such activity without the consent of the necessary principal council they are also required to lay a statement before the Senedd explaining why they consider the provision should be made without their consent.
57.Section 8 sets out the procedure that must be followed by the Welsh Ministers when they propose a pilot scheme. Subsection (1) requires the Welsh Ministers to consult on their proposal for a pilot scheme with the returning officers for the areas in which the proposal would apply. They must then submit the proposal to the Democracy and Boundary Commission Cymru for consideration. The Commission’s function of considering electoral pilot proposals, and all other functions in relation to electoral pilots, will be delegated to and exercised by its EMB in accordance with section 20E of the 2013 Act (as inserted by section 1 of this Act). Before making any pilot regulations the Welsh Ministers must have regard to the report on the proposal prepared by the EMB.
58.Section 9 enables principal councils to propose a pilot scheme in connection with activities to be trialled at ordinary local government elections and local government by-elections. Subsection (2) requires the council to first consult the Welsh Ministers on its proposal before submitting it to the Electoral Management Board for consideration. Before requesting that the Welsh Ministers make pilot regulations on the basis of their proposal, the council must have regard to the report prepared by the Board, and the report must be submitted to the Welsh Ministers along with the request that pilot regulations be made.
59.Section 10 enables the Electoral Commission to make joint proposals with principal councils in respect of activities to be trialled at ordinary local government elections and local government by-elections. These proposals will be subject to the same procedural requirements as proposals made by principal councils under section 9.
60.In accordance with section 11, electoral registration officers are enabled to make proposals for pilots. This power is however, limited in subsection (1) to the piloting of certain activities relating to the registration of electors. The consultation and submission process that the registration officers are required to follow is the same as that to be followed by principal councils under section 9.
61.Section 12 enables a principal council, the Electoral Commission and an electoral registration officer to jointly propose a pilot to the Welsh Ministers. If the Electoral Commission is making the proposal it must do so jointly with one or more principal councils but may also make the proposal jointly with an electoral registration officer.
62.Section 13 enables the Electoral Commission to recommend proposals for a pilot to a principal council or an electoral registration officer.
63.Section 14 sets out what the Democracy and Boundary Commission Cymru is required to do when evaluating pilot proposals and in preparing their report. The Commission must look at the objectives of the pilot and its desirability, that is to say, whether the pilot could be of benefit to the voter or electoral administrators. It is also required to consider the likely costs and feasibility of the proposed pilot. The Welsh Ministers are able to make regulations under subsection (3) setting out factors they consider relevant to the Commission’s evaluation of the pilot proposals, and the Commission must have regard to such factors when assessing the proposal and preparing its report. A public authority that submits a pilot proposal to the Commission under Chapter 3 must provide any additional information requested by the Commission that will allow the proposal to be fully considered and the report to be prepared accurately. The Commission is required to send a copy of the report they produce to whomever submitted the proposal no later than 6 weeks after the proposal was received.
64.Under section 15 the Democracy and Boundary Commission Cymru is required to set up a forum where issues relating to the practical delivery of the pilot can be discussed. This forum must include, but is not limited to, the returning officers for the participating principal councils as well as electoral administrators from those authorities and members of the Commission.
65.Section 16 requires the Democracy and Boundary Commission Cymru to publish guidance on the running of a pilot which must include advice on the arrangements needed for the pilot, the staff training required, as well as how to run the pilot in accordance with the pilot regulations.
66.Section 17 sets out the arrangements for evaluating pilots after they have taken place. This evaluation must be undertaken by the Electoral Commission, who must evaluate the success (or otherwise) of the pilot in meeting its objectives, and whether or not the changes made by pilot regulations should be adopted on a permanent basis. The principal council for the area of the pilot must provide assistance to the Electoral Commission in preparing their report, and the relevant returning officer must publish the report within one month of receiving it, unless the pilot was one falling solely within the remit of section 11, in which case the duty to publish the Democracy and Boundary Commission Cymru’s report lies with the electoral registration officer.
67.Section 18 enables the Welsh Ministers to introduce permanent changes, similar to those trialled in a pilot scheme, by way of electoral reform regulations. Subsection (1)(b) provides that such regulations can only be made on the recommendation of the Electoral Commission. Electoral reform regulations can apply the piloted change to any, or all, Welsh elections.
68.Electoral reform regulations may create, remove or modify criminal offences. But the regulations 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 provided for by the Sentencing Act 2020) 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 limits may be amended by the Secretary of State through regulations made under paragraph 14A of Schedule 23 to the Sentencing Code.
69.Section 19 sets out the Senedd procedure that must be followed when making electoral reform regulations. It provides for additional and enhanced scrutiny steps to be undertaken which includes, the requirement of a Senedd Committee to consider the regulations and their implications. The Senedd will also have a longer period in which to consider the regulations and their implications. When the regulations or draft regulations are laid the Welsh Ministers are required to also a lay before the Senedd a copy of the Electoral Commission’s report on the pilot regulations prepared under section 17.
70.Where Welsh Ministers have decided not to accept a committee’s recommendation to make material changes to draft regulations, either wholly or in part, or make material changes to the draft regulations which are materially different to those recommended by a committee, they must lay a statement before the Senedd setting out the reasons for this decision.
71.Chapter 3 of Part 1 contains a number of provisions which require the publication of documents (see, for example, section 15(7)). Section 20 requires those documents to be published electronically, in addition to any other manner that the person under the duty to publish considers appropriate.
72.Section 21 provides that pilot regulations and electoral reform regulations made under Chapter 3 of Part 1 of the Act may include ancillary provision, including consequential, supplementary, incidental, transitional, or saving provision. The regulations may modify enactments (whenever made) and may make different provision for different purposes or different areas.
73.Section 22 defines certain words and terms used in Chapter 3 of Part 1 of the Act.
74.This section introduces Part 2 of Schedule 1, which makes minor and consequential amendments that are consequential to the provision in Chapter 3 of Part 1 of the Act.