House of Lords - Explanatory Note
Government Of Wales Bill - continued          House of Lords

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Detailed Comments on Part 1

The Assembly

Clause 1: The Assembly

36.     This clause provides for establishment of the legislative body called the National Assembly for Wales ("the Assembly") and the Assembly Members who comprise its membership. The corporate body which was set up under the Government of Wales Act 1998 with legislative and executive powers, and which was also called the "National Assembly for Wales", will cease to exist.

37.      Membership of the Assembly is to consist of Assembly Members of two descriptions: Assembly constituency members and Assembly regional members. Each Assembly constituency elects one Assembly constituency member. Each Assembly region, of which there are five, elects four regional members.

38.      Assembly Members will be elected in general elections (in which all Assembly seats are up for election), in by-elections (for Assembly constituency members only), or by application of the rules for filling vacant regional seats. The rules for all these processes are to be found in this Bill, in subordinate legislation made under it and in other legislation relating to elections

39.      When a seat in the Assembly becomes vacant (for example, because of the death or resignation of an Assembly constituency or regional member), the fact that there is a vacancy does not invalidate anything done by the Assembly, or by its committees or sub-committees.

Clause 2: Assembly constituencies and electoral regions

40.      This clause and Schedule 1 to the Bill provide for the Assembly constituencies (for which Assembly constituency members are returned), and the Assembly electoral regions (for which Assembly regional members are returned).

41.      Assembly constituencies have the same boundaries as the parliamentary constituencies for which Members of the UK Parliament are returned. Therefore, at the passing of this Bill, there are 40 Assembly constituencies. If the parliamentary constituencies change (by Her Majesty making an Order in Council under the Parliamentary Constituencies Act 1986, following a report of the Electoral Commission), the Assembly constituencies will also change accordingly. 13

13 The draft of the Parliamentary Constituencies and Assembly Electoral Region (Wales) Order 2006 has been approved by the House of Commons and comes before the House of Lords on 9 March 2006.

42.      At the outset there are to be 5 electoral regions in Wales, which follow the boundaries of constituencies that were formerly used for elections to the European Parliament. These were laid down by the European Parliamentary Constituencies (Wales) Order 1994 (SI 1994/428). The 5 electoral regions are North Wales, Mid and West Wales, South Wales West, South Wales Central and South Wales East.

43.      The boundaries of the electoral regions and the numbers of Assembly regional seats allocated to each region will be able to be altered by an Order in Council made by Her Majesty under the Parliamentary Constituencies Act 1986, following a report of the Electoral Commission into parliamentary constituencies. Schedule 1 to the Bill makes detailed provision in relation to the procedures for proposals for such alterations.

General Elections

Clause 3: Ordinary general elections

44.      This clause provides that Assembly ordinary general elections are to take place every four years, on the first Thursday in May, subject to a power under which the Secretary of State may change the date of an ordinary general election by order under clause 4.

45.      In advance of an ordinary general election the Assembly is to be dissolved a specified number of days before that Thursday. This number of days ("the minimum period") will either be specified in an Order made by the Secretary of State under clause 13, or calculated in accordance with rules set out in the Order. This is the minimum period to which subsection 3(3) refers.

46.     The clause also provides that the Assembly must meet within seven days after the day of the poll (excluding certain days such as Saturdays, Sundays and Bank Holidays).

Clause 4: Power to vary date of ordinary general election

47.      This clause allows the Secretary of State, by Order, to vary the date of an ordinary general election (i.e. one that is scheduled to occur on the first Thursday in May, every four years) by up to one month either way, if, for example, holding the general election on the first Thursday in May would mean it would coincide with some other important event. Such an Order must also make provision as to when the Assembly is to be dissolved in advance of the varied date of the election and for it to meet within seven days after the day of the poll, again excluding certain days from the calculation. The Order may also apply the Representation of the People Acts, or other legislation that applies to the election of Assembly Members, with any modifications that are necessary because of the change of the date of the general election.

48.      Before making an Order under this clause, the Secretary of State must first consult the Welsh Ministers and an Order must be laid before Parliament and is subject to being annulled by resolution of either House of Parliament.

Clause 5: Extraordinary general elections

49.      Clause 5 provides a mechanism for an extraordinary general election to take place before the next scheduled ordinary general election in certain circumstances.

50.      If the Assembly resolves that it should be dissolved (provided Assembly Members representing at least two-thirds of Assembly seats, i.e. 40 Assembly Members voted for the resolution), or if the Assembly fails to nominate an Assembly Member to be the First Minister within the period laid down by clause 47 (usually 28 days), then the Secretary of State must propose a date for the holding of an extraordinary general election. Arrangements for the holding of the extraordinary general election are then to be made by Order in Council.

51.      If an extraordinary general election is held less than six months before the date on which an ordinary general election would normally be held, that ordinary general election is not to be held. The date of subsequent ordinary general elections would not however be affected, i.e. they would still normally take place on the first Thursday in May at intervals of four years after that in which the ordinary general election which did not take place was due to have been held

Clause 6: Voting at general elections

52.      This clause provides that persons voting in Assembly general elections can cast two votes. One vote ("the constituency vote") may be cast for a named candidate to be the Assembly constituency member. The other ("the electoral region vote") is for a registered political party which has put forward a list of candidates or for an individual candidate and, in either case, is for the purpose of electing the Assembly regional members for the region.

Clause 7: Candidates at general elections

53.      This clause lays down rules in relation to entitlement to be a candidate for Assembly constituencies and electoral regions at a general election.

54.      For example, a person may not be a candidate for more than one constituency. A person may not be included by a registered political party in its list of candidates for more than one electoral region. Nor may a person who is a candidate for any constituency be included in any of a party's regional lists. Similarly, a person may not be an individual candidate for an electoral region if that person is also a candidate for any constituency or on any list of candidates submitted by any registered political party for any electoral region

Clauses 8 and 9: Calculation of Electoral Region Figures and Allocation of seats to electoral region members

55.      These clauses set out the method for determining the allocation of the four electoral region seats for each electoral region, using a "d'Hondt" calculation.

56.      The starting point is the calculation, for each electoral region, of the initial "electoral region figure" for each registered political party and individual candidate. Clause 8 explains how this is to be calculated.

57.      In each Assembly region, the successful Assembly constituency members are to be identified before the electoral region figures are calculated. The electoral region figure is then calculated in each electoral region, for each registered political party that has submitted a list of candidates to be elected as the Assembly regional members in that region, by the following formula:

     X = A/(B + 1)

     where:

     A = the total number of electoral region votes cast for that party across all the constituencies in that electoral region;

         B = the total number of constituency seats won by that party in that electoral region; and

     X = the electoral region figure.

58.      For an individual electoral region candidate the electoral region figure is the total number of votes cast for that candidate.

59.      The electoral region figures of all parties and of any individual regional candidates are compared. The first electoral region seat is allocated to the political party or individual regional candidate with the highest electoral region figure. The candidate elected is the one at the top of that party's list.

60.      If a seat is allocated to a party, its electoral region figure must be re-calculated by adding the seat allocated to figure B and dividing figure A by (new figure B + 1). This re-calculated electoral region figure then replaces that party's initial electoral region figure.

61.      The electoral region figures of all parties and of any individual regional candidates (other than one to whom a seat has already been allocated) are then compared again and the next electoral region seat is allocated to the party or individual candidate with the highest electoral figure. In the case of a party the candidate elected is the one at the top of that party's list, disregarding any candidate already elected. If a seat is allocated to a party, the electoral figure of that party is again re-calculated by adding a further seat to figure B, and re-applying the formula X = A/(B + 1).

62.      The process is repeated until all four regional seats have been allocated.

63.      If all the candidates on a political party's regional list have been elected before all four regional seats have been filled, that party is disregarded in subsequently assessing which party or individual has the highest electoral region figure.

64.      Provision is made for situations in which, at any comparison of electoral figures, the highest electoral figure is shared by two or more parties or individual candidates. If the number of unallocated seats is equal to or greater than the number of parties or individual candidates sharing the highest electoral figure then a seat is allocated to each. If not, the tie is to be broken, if possible, by increasing figure A by 1 and comparing the electoral figures again. If there are still two parties or individual candidates with equal electoral figures and not enough unallocated seats for all of them, the regional returning officer is to decide the matter by the drawing of lots.

Vacancies

Clause 10: Constituency Vacancies

65.      Clause 10 provides for the filling of a constituency seat which becomes vacant (for example, because of the resignation or death of the Assembly constituency member). A by-election must be held, on a date fixed by the Assembly's Presiding Officer, which must within 3 months of the vacancy arising, unless it appears to the Presiding Officer that the latest day on which the poll could be held would be within 3 months of the date when the next ordinary general election is due to take place (in which case the seat will remain vacant until the general election.)

66.      At a by-election, electors cast only one vote, for a named constituency candidate, (as opposed to the two votes at a general election, when electors are electing both a constituency member and regional members).

Clause 11: Electoral Region Vacancies

67.      Clause 11 provides the machinery for filling a regional seat which becomes vacant (for example, because of the resignation or death of the Assembly regional member). If the seat which has fallen vacant was held by a candidate drawn from the list which a party had submitted at the previous general election, the vacancy is filled by the next candidate on that list, provided that person still wishes to be elected, and, in the case of a person who has ceased to be a member of the party, the party has not given notice that it does not wish that person to fill the vacancy.

68.      A person who has, since that general election, been a candidate in a constituency by-election, is barred from taking up a regional vacancy as is a person who has previously been allocated a regional seat (and has, for example, ceased to hold that seat by reason of having resigned).

69.      If, for any reason, the vacant seat cannot be filled from a party's list (for example because all the candidates on the list have been exhausted or the only candidates who are left are barred from filling the vacancy) then the seat remains vacant until the next ordinary or extraordinary general election.

70.      If the Assembly regional member whose seat has become vacant was elected as an individual candidate, as opposed to being drawn from a party list, there is no procedure for filling the seat and it remains vacant until the next ordinary or extraordinary general election.

The Franchise and conduct of elections

Clause 12: Entitlement to Vote

71.     This clause provides that the persons entitled to vote in any Assembly general or by-election in a constituency are those entitled to vote in a local government election in an electoral area included in the constituency. Electors may not cast more than one constituency vote or more than one regional vote at a general election or more than one vote at a by-election.

Clause 13: Power to make provision about elections etc

72.     This clause empowers the Secretary of State to make provision by secondary legislation in relation to Assembly elections. This includes provision:

    a)     about the registration of electors;

    b)     for disregarding alterations in registers of electors;

    c)     about limitations on election expenses;

    d)     to allow Assembly elections and other elections, such as local government elections, to be held on the same day; and

    e)     to allow clauses 6 and 8(2) of the Act to operate differently if an election for an Assembly constituency member at a general election is abandoned.

73.      The need to be able to modify the effect of the Act where an election in a particular constituency is abandoned (for example because of the death of a candidate) arises because normally no regional members can be elected until all constituency seats in the region have been filled.

74.      Subsection (6) provides that the only method by which the return of an Assembly Member may be challenged (for example, on the ground that the election was not conducted lawfully) is by election petition under Part 3 of the Representation of the People Act 1983 as applied or incorporated by an Order under this clause.

75.      The Secretary of State must lay a draft of an Order under this clause before each House of Parliament and may not make the Order unless approved by resolution of each House.

Duration of membership

Clause 14: Term of office of Assembly members

76.     This clause provides that the term of office of an Assembly member begins when the member is declared to be returned and ends with the dissolution of the Assembly.

Clause 15: Resignation of members

77.      An Assembly member may resign by giving notice in writing to the Presiding Officer.

Disqualification

Clause 16: Disqualification from being Assembly member

78.     This clause specifies the persons who are disqualified from becoming or continuing to be a member of the Assembly, including:

    a)     those disqualified from being a member of the House of Commons under section 1(1)(a) to (e) of the House of Commons Disqualification Act 1975 (judges, civil servants, members of the armed forces, members of police forces, members of foreign legislatures);

    b)     holders of offices designated by Order in Council (which must be laid before and approved by the Assembly);

    c)     the Auditor General for Wales and the Public Services Ombudsman for Wales;

    d)     members of the staff of the Assembly.

79.      In addition, those disqualified from membership of the House of Commons, other than under the House of Commons Disqualification Act 1975, are also disqualified from membership of the Assembly. This covers common law and other statutory disqualifications and has the effect of excluding from membership:

    a)     persons under the age of 21 who are disqualified by the Parliamentary Elections Act 1695, section 7;

    b)     aliens who are disqualified at common law and by virtue of the Act of Settlement 1700, section 3, as amended by the British Nationality Act 1981,Schedule 7. Irish or Commonwealth citizens are not regarded as aliens for this purpose. Clause 17(2) also excepts EU citizens who are resident in the UK;

    c)     local authority employees in politically restricted posts, who are disqualified from candidature for election to the House of Commons by the Local Government Officers (Political Restrictions) Amendment Regulations 1998 (SI 1998/3116), Schedule 1 para 1(a);

    d)     persons who are mentally ill and who are disqualified at common law. The procedure for the vacation of their seats is specified in section 141 of the Mental Health Act 1983;

    e)     persons in respect of whom a bankruptcy restrictions order has effect are disqualified under section 426A of the Insolvency Act 1986;

    f)     persons guilty of corrupt or illegal practices at Parliamentary elections are disqualified under the Representation of the People Act 1983;

    g)     convicted prisoners serving a sentence of more than one year's detention (or an indefinite sentence) in the UK or Ireland, who are disqualified by the Representation of the People Act 1981; Clause 16(3) extends this disqualification to prisoners serving a sentence of more than one year's detention in any EU member State.

80.      Members of the House of Lords are disqualified from being members of the House of Commons, but clause 17(1) lifts these disqualifications in relation to membership of the Assembly.

81.     Anyone who holds office as a Lord Lieutenant, Lieutenant or High Sheriff for any area in Wales is disqualified from membership but only for any constituency or electoral region wholly or partly included in that area.

Clause 17: Exceptions and relief from disqualification

82.      Clause 17 provides for certain persons to be exempt from certain of the provisions in clause 16 disqualifying certain persons from membership of the Assembly.

83.      A citizen of the European Union resident in the UK is not disqualified from membership of the Assembly under section 3 of the Act of Settlement 1700. Such persons would otherwise be disqualified under clause 16(2).

84.      Subsection (3) permits the Assembly, by resolution, to disregard the disqualification (or alleged disqualification) of a person on any ground falling within clause 16(1) or clause 16(4). To do so it must consider that the grounds for disqualification have been removed and that it is proper to disregard the disqualification.

85.      Any Assembly resolution to disregard a disqualification under subsection (3) is not to affect any proceedings under Part 3 of the Representation of the People Act 1983, as applied by an Order under clause 13. Nor can such a resolution enable the Assembly to disregard any disqualification established in proceedings under clause 19 (which permits an action to be raised in the High Court seeking a declaration that a person who has been returned as an Assembly member is disqualified).

Clause 18: Effect of disqualification

86.      This clause sets out the consequences of disqualification in relation both to persons who are disqualified before they are returned as Assembly members, and to members who become disqualified during their term of office

87.     If a person is returned as an Assembly member and that person is disqualified from being an Assembly member, either generally or in relation to the particular constituency or region, that return is void and the seat is vacant. A seat also becomes vacant where a person has been validly returned, but then becomes disqualified. These provisions are subject to the power of the Assembly to give relief from disqualification under clause 17.

88.      Subsections (5), (6) and (7) make special provision as to Assembly members who are detained in mental institutions or are declared bankrupt.

89.      Subsections (6) and (7) provide that where the provisions in subsection (5) apply, the disqualified member's seat will not be vacated immediately and therefore, they do not cease to be a member of the Assembly until the seat is vacant. However, in the meantime, the member cannot participate in any proceedings of the Assembly, and the Assembly may resolve to withdraw other rights and privileges.

90.      Subsection (8) protects the validity of any Assembly proceedings where a member is or becomes disqualified.

Clause 19: Judicial proceedings as to disqualification

91.      This clause provides for a procedure before the High Court for establishing whether an Assembly member is disqualified or has been disqualified from membership. It is similar to the procedure before the Judicial Committee of the Privy Council provided in relation to disqualification from membership of the House of Commons by section 7 of the House of Commons Disqualification Act 1975, and to the procedure before the Court of Session in relation to disqualification from the Scottish Parliament under section 18 of the Scotland Act 1998.

92.      Subsection (1) provides that a person who claims that a member of the Assembly is, or has (since being elected) been, disqualified may apply to the High Court for a declaration to that effect (i.e. a court order which establishes and declares that to be the case). No declaration may be made, however, on grounds which subsisted at the time of the election if an election petition is pending or has been tried in which the disqualification on those grounds is or was an issue or if a resolution has already been passed by the Assembly under clause 17(3) to the effect that the disqualification is to be disregarded.

93.      An applicant to the court under this clause must such give security for the costs of the proceedings as the court directs, up to a maximum sum of £5000 (the same maximum sum that an election court may order in relation to a Parliamentary election petition under Part 3 of the Representation of the People Act 1983). The maximum sum may be varied by order made by the Welsh Ministers (and which would be subject to annulment in pursuance of a resolution of the Assembly).

Remuneration, oaths etc.

Clause 20: Remuneration of Assembly members

94.      This clause provides for the payment of salaries and allowances to current Assembly members, and for the payment of pensions, gratuities and allowances to former members and office-holders.

95.      Subsection (1) imposes a duty on the Assembly to provide for the payment of salaries to Assembly members. The Assembly is free to determine the amount of any salary.

96.      Subsection (2) permits the Assembly to provide for the payment of allowances to Assembly members. It is for the Assembly to decide what allowances are payable.

97.     Subsection (3) allows the Assembly to make provision for the payment of pensions, gratuities or allowances to former Assembly members, and to the former holders of certain offices (such as the Presiding Officer and Deputy Presiding Officer) even though they may still remain Assembly members.

98.     Subsection (4) permits the Assembly to include in any provision under subsection (3) provision for contributions or payments towards pensions, gratuities and allowances. The Assembly can also make arrangements for the establishment and administration of one or more pension schemes. It can do this through the Assembly Commission or by such other means as the Assembly decides.

99.     Payments of salaries, allowances and pensions, etc. to current and past Presiding and Deputy Presiding Officers are to be charged on the Welsh Consolidated Fund (so that payment will not need to be authorised annually by the Assembly).

100.     Provision for payments under this clause may be made either by the Assembly's standing orders or by Assembly resolution and may also be the subject of an Assembly Measure under Part 3 of the Act. Functions may be conferred on the Assembly Commission.

101.     Paragraph 11(1) of Schedule 11 provides for pay determinations made under section 16 and 18 of the Government of Wales Act 1998 to continue in force post-repeal of that section as if they had been made under this clause.

 
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Prepared: 2 March 2006