Senedd Cymru (Member Accountability and Elections) Bill: Justice impact assessment

The Welsh Government’s assessment of the impacts of the legislation on the justice system is that it has no or negligible potential impact.

The Senedd Cymru (Member Accountability and Elections) Bill introduces a system of recall of Members of the Senedd from office during their term. It will allow electors the final say on whether a Member of the Senedd should be removed or retained following one of two possible trigger events having occurred:

• a Member of the Senedd is convicted of an offence in the United Kingdom and receiving a custodial sentence or ordered to be imprisoned or detained (and it is a sentence that does not result in automatic disqualification from office)
• the Senedd agreeing to submit a Member to a recall poll following a recommendation from the Standards of Conduct Committee (‘SoCC’) to impose the sanction of recall.

It also includes measures which aim to strengthen the Senedd’s standards process including:

• providing for additional flexibility for the Senedd Commissioner for Standards (‘the Commissioner’) to carry out an investigation into a Member’s conduct of their own initiative
• allowing the Senedd (should they choose to do so) the ability to appoint lay Members to the SoCC
• requiring the Senedd to establish a SoCC in every future Seneddau, and
• providing for the ability for the Senedd to establish an appeals mechanism as part of the standards process.

The Bill also places a duty on Welsh Ministers to make provision prohibiting the making of false statements of fact by candidates during an election period.

The Bill will place a duty on the courts in England and Wales to inform the Presiding Officer - Senedd Cymru where a Member is convicted and ordered to be imprisoned or detained (including suspended sentences), or if they have successfully appealed against any conviction or sentence. The duty is necessary for the efficient operation of the recall system, in relation to one of the two possible trigger events leading to a recall vote.

Whilst this is a direct duty on the courts it will not increase the number of cases or the burdens on the court, it will add a small additional administrative requirement in a small number of cases, of which the impact is considered to be negligible.

The Bill does not create or expand any existing criminal (electoral) offences. The legislation delegates a power to the Welsh Ministers to make regulations for the conduct of a recall poll. The detail of those regulations is still to be determined, but it is envisaged that the electoral offences that exist with regards to Senedd general elections (set out in The Senedd Cymru (Representation of the People) Order 2025) (known as the ‘Conduct Order’) will be extended to a recall poll. The Bill also delegates a power to the Welsh Ministers to make provision by regulations for mechanisms for challenging a recall poll.

Whilst the regulation making power in the Bill is likely to be exercised in a way that increases the number of “electoral events” that electoral offences may apply to, the Bill itself has no impact and in actuality the likely practical impact when the secondary legislation is made is considered to be negligible:

• Whilst the frequency of any recall poll will be demand led, by way of proxy there have been 6 recall petitions for MPs in the UK Parliament in the 10 years since the Recall of MPs Act 2015 commenced. Adjusting for a 96 Member Senedd, and 4-year terms, this would suggest fewer than one recall poll held every two parliamentary terms.
• The number of participants in a recall poll are far fewer than a general election. There will not be candidates – rather a “member subject to recall” and (provisionally) “accredited campaigners”.
• There have been comparatively few prosecuted breaches of electoral offences in Wales, this includes no prosecutions or convictions.
  For 2021 Senedd election, of the 8 cases of electoral offences reported to Police forces across Wales, none of them resulted in court proceedings, caution or conviction, The Electoral Commission, 2021 electoral fraud data. Similarly, for the 2022 local elections in Wales, of the 19 cases of electoral offences reported to South Wales Police, none of them resulted in court proceedings, caution or conviction, The Electoral Commission, 2022 electoral fraud data.

The Bill also places a duty on the Welsh Ministers to make provision in a future Conduct Order prohibiting of making or publishing false statements of fact relating to Senedd elections. The impacts of this on the justice system cannot be assessed until such time as the detail of the offence is known, and a detailed Justice Impact Assessment will be undertaken in respect of the creation of any future provision.

There is currently no intention to undertake a post-implementation review of this Bill. The Welsh Government has prepared this legislation in response to recommendations made by the Senedd’s Standard of Conduct Committee as part of its inquiry into Individual Member accountability. However, in bringing forward both the new offence and in preparing the regulations relating to a recall poll as set out above, the Welsh Government will carry out full justice impact assessments.