SCECLB6 - P Professor Emyr Lewis
Senedd Cymru (Electoral Candidate Lists) Bill
Note for the Reform Bill Committee
Emyr Lewis
I would like to thank the Committee for its kind invitation to
comment on this Bill.
This note sets out in brief my views about whether the Bill is
within the Senedd’s legislative competence, and raises the
more practical issue of the potential consequences if that question
is not resolved before the Bill receives Royal Assent.
A more detailed supplementary note about legislative competence
accompanies this note.
-
The Bill will be outside the Senedd’s legislative competence
if
-
In respect of
1.a:
-
Applying the test in Section 108A(6) of GOWA 2006, the Bill’s
system of regulating candidature for the Senedd clearly has an
effect on the prevention, elimination or regulation of
discrimination between persons on grounds of sex.
-
Whether that link on its own is sufficient to mean that the Bill
‘relates to’ equal opportunities, rather than having
merely a ‘loose or consequential connection’ to equal
opportunities is a matter of judgment for the courts (ultimately the Supreme Court).
-
In respect of
1.b:
-
Section 104 exempts political parties from liability for unlawful
discrimination in certain circumstances. That exemption will remain
if the Bill becomes law. The Bill
has the effect, however, of removing the objective assessment of
those circumstances in individual cases, and can be said therefore
to modify section 104.
-
It may be that the Bill could be amended to overcome this
difficulty, but that is likely to be at the expense of certain
features of the Bill.
-
If
1.a
is resolved in favour of the Bill, then the modification might be
saved as an ancillary modification.
-
In respect of
1.c
-
Whether the Bill contravenes A1P3 depends on whether the
‘asymmetric’ provisions in the Bill are considered to
have objective and reasonable justification.
-
That is a matter of judgement for the Courts (ultimately the
ECtHR).
-
The lack of consensus between the Llywydd and the Minister can be
seen as being based on different assessments of the likely
judgments of the courts as to where to draw the line on questions
of connection (1.a) and justification (1.c).
-
That impasse cannot be resolved simply by agreement between the
Llywydd and the Minister. The only ways of doing so before the Bill
becomes law are through either (a) the Senedd acquiring the power
to pass the Bill through an Order in Council made under s 109(1)
GOWA 2006 or through an Act of the UK Parliament or (b) the Supreme
Court deciding the matter either way following a reference under s
111B GOWA 2006.
-
If it were clearly the case that the Minister was correct in her
view, then there would be no need to extend the Senedd’s
law-making powers nor to refer the Bill to the Supreme Court before
it became law.
-
That is not clearly the case, however, and passing the Bill as it
stands without resolving the impasse would create a substantial
risk. The danger is that someone might challenge the provisions in
the courts after the Bill has become an Act of the Senedd (for
example by a political party wishing to put forward an all-male
shortlist applying for judicial review of a decision by the
national nominations compliance officer to reject that list). Such
a challenge would most likely cause serious disruption to the next
Senedd election, regardless of whether it succeeded. If the
challenge succeeded, that would mean that the Bill (or challenged
provision) is ‘not law’. The knock-on effect of such a
finding would risk jeopardising the integrity of the election
itself and could be very damaging to the Senedd and to democracy in
Wales.
Department of Law and Criminology Aberystwyth University. April 8th
2024
Senedd Cymru (Electoral Candidate Lists) Bill
Supplementary Note on Legislative Competence
-
The Bill
-
The Bill seeks to insert four new sections into the Government of
Wales Act 2006 (‘GOWA 2006’), namely section 7A to
7D.
-
These new sections would mean that in respect of electoral lists
for Senedd elections:
(a)
at least 50% of candidates on all lists of two or more candidates
must be women (7A(2))
(b)
where there is an odd number of candidates on a list the majority
must be women (7A(3))
(c)
any candidate on a list (apart from the last candidate on the list)
who is not a woman must be followed immediately by a woman
(7A(4))
(d)
registered political parties who submit two or more lists must
ensure that the first or only candidate on at least half of those
lists must be a woman (7B(2))
(e)
where a party submits an odd number of lists, the first or only
candidate on the majority of those lists must be a woman
(7B(3))
-
The arrangements are asymmetric, that is to say that they allow,
and in some cases (7A(3) and 7B(3)) require, parties to put forward
lists made up of more than 50% women, but not men. It is convenient
to refer to these features as permitted asymmetry and required
asymmetry.
-
Legislative Competence - The views of the Llywydd and the
Minister
-
The Llywydd considers the Bill to be outside the legislative
competence of the Senedd because it
(a)
relates to the reserved matters of equal opportunities,
and
(b)
modifies the law on reserved matters, namely the Equality Act 2010
(specifically s104)
whereas the Minister considers it to be within
competence.
-
The Llywydd has explained her reasons in the annex to her letter of
11th March to the then chairs of the Reform Bill and
Legislation, Justice and Constitution Committees.[1]
-
Is the Bill outside the legislative competence of the
Senedd?
This boils down to whether the Bill (or any provision in
it)
-
relates to a reserved matter, ie Equal Opportunities as defined in
para 187 of Schedule 7A of GOWA 2006 which reserves Equal
Opportunities? (s.108A(c) and Schedule 7A GOWA 2006)
(‘schedule 7A competence’)
-
would, if it became law make modifications of, or confer power by
subordinate legislation to make modifications of, the law on
reserved matters, ie s 104 of the Equality Act 2010? (s.108A(d) and
Schedule 1 Paragraph 1 GOWA 2006) (‘schedule 7B
competence’)
-
is incompatible with the Convention rights (s.108A(e) GOWA 2006)),
in particular Article 3 of Protocol 1 (A1P3) (the right to free
elections) of the Convention Rights, when taken together with
Article 14 (prohibition of discrimination) (‘ECHR
Competence’).
-
Schedule 7A Competence - The law on ‘relates
to’
-
GOWA 2006 s 108A (6) states:
The question whether a provision of an Act of the Senedd relates to
a reserved matter is determined by reference to the purpose of the
provision, having regard (among other
things) to its effect in all the circumstances.
This is called the purpose and effect test.
-
In respect of the equivalent provisions in the Scotland Act 1998
and in s 108 of GOWA 2006 (which dealt with the pre-2011 referendum
Act-making powers of the National Assembly (as was)) the Supreme
Court has held that the phrase ‘relates to’ indicates
‘more than a loose or consequential
connection’.[2]
-
The most recent discussion of the purpose and effect test by the
Supreme Court was in the so-called Indyref 2 case.[3]
In that case, in relation to purpose, at para 73 of the judgment
the court quoted with approval what the Supreme Court had said in
para 50 of its judgment in the Agricultural Sector (Wales) Bill
[4]
case
As the section requires the purpose of the provision to be examined
it is necessary to look not merely at what can be discerned from an
objective consideration of the effect of its terms. The clearest
indication of its purpose may be found in a report that gave rise
to the legislation, or in the report of an Assembly committee; or
its purpose may be clear from its context
and
‘the purpose and effect of legislation may, in this context,
be ‘derived from a consideration of both the purpose of those
introducing it and the objective effect of its
terms’.
-
In relation to effect, the Supreme Court in Indyref 2
said:
regard is to be had to the provision’s “effect in all
the circumstances”: a phrase whose scope extends beyond
purely legal effects. That is reflected in the court’s
attention to the practical consequences of the provisions in
question…Furthermore, the court has previously made it clear
that a provision does not have to modify the law applicable to a
reserved matter in order to relate to that
matter[5]
-
So, drawing the threads together,
(a)
Purpose can be clear from the context of the Bill (nobody would
dispute for instance that this Bill relates to Senedd elections) or
can be found in certain extraneous material which indicates its
purpose. This clearly extends for example to an explanatory
memorandum by the Government.
(b)
Effect in all the circumstances involves an “objective
consideration of the effect” of the terms of the Bill. It
includes both legal and practical effects. The phrase ‘(among
other things)’ means that the regard can be had to things
other than the effect of the provision in question.
-
A provision can relate to more than one matter, The fact that it
relates to matter A does not mean that it cannot also relate to
matter B.[6]
-
The ‘Structured Analysis’
The Supreme Court has adopted[7]a
‘structured analysis’ for determining whether a
provision relates to a reserved matter. This analysis, adapted to
the Government of Wales Act, 2006, proceeds as follows:
-
What is the scope of the subject-matter of the relevant matter
reserved by Schedule 7A?
-
By reference to the purpose of the provision under challenge,
having regard (among other things) to its effect in all the
circumstances, does that provision relate to the reserved
matter?
-
What is the scope of the subject-matter of the relevant matter
reserved by Schedule 7A?
-
Schedule 7A para 187 GOWA 2006 reserves “equal
opportunities”.
-
It defines that phrase as follows (subject to certain
exceptions):
Equal opportunities” means the prevention, elimination or
regulation of discrimination between persons on grounds of sex or
marital status, on racial grounds, or on grounds of disability,
age, sexual orientation or social origin, or of other personal
attributes, including beliefs or opinions, such as religious
beliefs or political opinions, but not including
language.
-
For the purpose of this exercise, the scope of the reservation is
‘the prevention, elimination or regulation of discrimination
between persons on grounds of sex’, subject to any exception
which cuts down that scope.
-
Note on the one hand that this reservation is confined to the
prevention, elimination or regulation of discrimination. It
does not extend to the securing or promotion of equality by other
means. On the other hand, the definition is broader than the ambit
of discrimination under Equality Act 2010 because (a) it is not
confined to unlawful (direct or indirect) discrimination and (b) it
is not confined to discrimination on the grounds of the protected
characteristics set out in that Act (indeed, apart from
‘language’, it seems open-ended, given the breadth of
‘personal attributes’).
-
Note also that discrimination is not defined. It is clearly
intended however to include treating women and men
differently.
-
There are four categories of exceptions. If any of those exceptions
apply, then the provision will be outside the scope of the
reservation. Three clearly do not apply (since they involve
‘devolved Welsh authorities”, and the Senedd is not
such an authority). The remaining exception is:
The encouragement (other than by prohibition or regulation) of
equal opportunities, and in particular of the observance of the
equal opportunity requirements.
It does not seem that this this exception applies here. The Bill
creates rules for electoral lists for Senedd elections and it
creates obligations with which those putting lists together must
comply. Furthermore, it creates the post of national nominations
compliance officer for the purpose of ensuring compliance with the
obligations. Regardless of whether the Bill relates to the
encouragement of equal opportunities (i.e. ‘the
prevention, elimination or regulation of discrimination between
persons on grounds of sex’) it proceeds by way of regulation,
so the exception will not apply.
-
The Purpose of the Bill
-
The express purpose of the Bill and its various provisions can be
gleaned from the explanatory memorandum.
-
The reasoning in the explanatory memorandum can be condensed as
follows:
(a)
The Senedd does not currently mirror the make-up of the Welsh
population in terms of gender. (Para 10). Women are
under-represented (Para 76).
(b)
To achieve the policy aim of a more effective Senedd, the Senedd
must be more representative of the gender make-up of the population
(Para 3, para 67)
(c)
“To achieve this, the Bill will introduce requirements in
relation to candidate lists designed to maximise the chances of
securing a Senedd which is broadly reflective of the gender make-up
of Wales” (Para 75)
(d)
Para 104 refers to “the aim of improving the representation
of women in the Senedd”
(e)
Para 216 refers to the EIA’s finding that the Bill has
“a legitimate aim, which is to achieve a broadly
representative Senedd in terms of the gender make-up of the Welsh
population”
(f)
Para 100 justifies the use of the asymmetric model by reference to
“the aim of electing more women to the
Senedd”.
-
If this is a fair precis, the purpose of the Bill can, on the basis
of the explanatory memorandum, be said to be ‘To improve the
efficiency of the Senedd by making the Senedd more representative
of the gender make-up of the population of Wales through provisions
designed to increase the number of women elected to the
Senedd.’
-
The Llywydd in the annex to her letter to the then chairs of the
Reform Bill and Legislation, Justice and Constitution Committees
notes that the Bill ‘seeks to address disadvantages and
barriers that women face during the candidate selection
process’. This is her basis for considering the Bill to
relate to equal opportunities.
-
The Explanatory Memorandum contains detailed reference to evidence
of such disadvantages and barriers as part of the justification for
the provisions in the Bill (see paras 68-72), Addressing these is
not, however, given as an express purpose of the Bill and other
factors causing women to be under-represented are
mentioned.[8]
-
The purpose as articulated by the Government emphasises the
positive benefits of electing more women to the Senedd, rather than
preventing or eliminating discrimination against women. From the
Government’s perspective, while the latter may be a welcome
by-product of the Bill, it is not its purpose. The difference
between the Llywydd and the Minister can perhaps be framed in those
terms.
-
A by-product, however, is part of the effect of the
Bill.
-
What is the Effect of the Bill?
-
Regardless of the declared intent of the Government about the
purpose of the Bill, that purpose is to be considered not only by
reference to what the Government says, but having regard to the
effect in ‘all the circumstances’[9].
-
The Bill will have many effects if it becomes law, not least that a
greater percentage of women will stand for election to the
Senedd.
(a)
makes it far more difficult (if not impossible) for political
parties to treat men candidates preferentially to women candidates
(ie the “by-product” effect) and
(b)
makes it possible for political parties to treat women candidates
preferentially to men candidates.
-
It is difficult to see how it could be argued that the Bill has no
effect on the prevention, elimination or regulation of
discrimination between persons on grounds of sex.
-
Whether the Bill (or any provision in it) is within schedule 7A
Competence will therefore depend on the extent to which this effect
is sufficient to mean that it “relates to” equal
opportunities, rather than having merely a ‘loose or
consequential connection’ to equal opportunities. That is a
matter of judgment, ultimately for the Supreme Court.
-
Schedule 7B Competence - The law on modification of reserved
matters
-
Para 1 of Schedule 7B to GOWA 2006 states:
A provision of an Act of the Senedd cannot make modifications of,
or confer power by subordinate legislation to make modifications
of, the law on reserved matters.
and defines reserved matters to include:
any enactment the subject-matter of which is a reserved matter and
which is comprised in an Act of Parliament or subordinate
legislation under an Act of Parliament,
-
The Supreme Court considered the meaning of ‘modify’ in
the Scottish Continuity Bill case[10].
It stated:
Without attempting an exhaustive definition, a protected enactment
will be modified by a later enactment, even in the absence of
express amendment or repeal, if it is implicitly amended,
disapplied or repealed in whole or in part. That will be the
position if the later enactment alters a rule laid down in the
protected enactment, or is otherwise in conflict with its
unqualified continuation in force as before, so that the protected
enactment has to be understood as having been in substance amended,
superseded, disapplied or repealed by the later one.
-
This means that modification need not be express. It can happen
where a rule in the protected enactment is altered or the later
enactment conflicts with the protected enactment to such an extent
that the protected enactment has been in substance amended,
superseded, disapplied or repealed.
-
Paragraph 2 of Schedule B saves a modification which
(a)is ancillary to a provision made (whether by the
Act in question or another enactment) which does not relate to
reserved matters, and
(b)has no greater effect on reserved matters than is
necessary to give effect to the purpose of that
provision.
-
Does the Bill modify the law on reserved matters, i.e. section 104
of the Equality Act 2010?
-
Section 104 is in Part 7 of the Equality Act 2010. That part deals
with associations. It prohibits unlawful discrimination by
associations against members, applicants for membership and
associates on the grounds of protected characteristics including
sex.
-
Section 104 creates special rules in favour of associations which
are registered political parties. It exempts them from being in
breach of the anti-discrimination provisions if they act in
accordance with ‘selection arrangements’, defined in
s104(3) as:
arrangements—
(a)
which the party makes for regulating the selection of its
candidates in a relevant election,
(b)
the purpose of which is to reduce inequality in the party's
representation in the body concerned, and
(c)
which, subject to subsection (7), are a proportionate means of
achieving that purpose.
The reference in subsection (3)(b) to inequality in a party's
representation in a body is a reference to inequality
between—
(a)the number of the party's candidates elected to be members of
the body who share a protected characteristic, and
(b)the number of the party's candidates so elected who do not share
that characteristic.
-
Section 104(6) excludes shortlisting only candidates who have a
particular protected characteristic, but Section 104(7) provides
that this does not apply to sex. So all-women or all-male
shortlists (for example) will not involve a breach of the Part 7
anti-discrimination provisions, at least until the end of
2030.[11]
-
The annex to the Llywydd’s letter of 11th March
considers that the Bill modifies section 104 because it
‘turns the voluntary power to address under-representation in
section 104 into a duty to address
under-representation.’
-
It can be argued contra that the Bill does not modify
section 104 for that reason. Rather than being seen as granting a
power to political parties, section 104 can be characterised as one
that grants them an exemption from liability. The effect of section
104 in the context of Wales is that political parties will not be
held to have committed unlawful discrimination (‘a person
does not contravene this Part’) only by making different
provision for women than for men, provided that it is done for the
purpose of reducing inequality in the
party's representation in the Senedd, and that it is a
proportionate means of achieving that purpose. The Bill is not
necessarily incompatible with that. Acting in accordance with the
Bill would only result in a conflict with section 104 if (a) it
were done for another purpose or (b) it were not a proportionate
means of reducing inequality.
-
The Bill however has the effect of removing
the objective assessment of purpose and proportionality in
individual cases. This would not be a problem if it could be
guaranteed that compliance with the Bill’s provisions would
in all cases necessarily satisfy the purpose and proportionality
criteria in section 104(3). That would be difficult, however, in
particular bearing in mind the asymmetric nature of the provisions.
It does therefore in my view modify section 104 since it qualifies
that section’s continuation in force in relation to Senedd
elections by (effectively) deeming the Bill’s provisions to
satisfy the section 104(3) test for ‘electoral
arrangements’.
-
It may be that this problem could be resolved wholly or partly by
amending the Bill. (For instance, parties could be placed under a
duty, when complying with the Bill, to do so for the purpose of
reducing inequality in the party's representation in the Senedd,
and act proportionately. This could deal with situations of
permitted asymmetry, but not required asymmetry).[12]
-
If, however, the question of Schedule 7A Compatibility is resolved
in favour of the Bill, then it may be that the modification will be
saved by paragraph 2 of Schedule 7B on the basis that
it is ancillary to a provision in the Bill (or more than one) and
has no greater effect on reserved matters than is necessary to give
effect to the purpose of that provision. The modification seems to
be ancillary in the sense that it resolves what would otherwise be
a conflict between section 104 and the Bill and since it is limited
to resolving that conflict, it can be said to have no
greater effect on reserved matters than is necessary
to give effect to the purpose of the Bill.
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ECHR Competence – A3P1 and A14
-
A3P1 sets out the right to free elections. It reads:
The High Contracting Parties undertake to hold free elections at
reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the
choice of the legislature.
-
It is presumed for the purpose of this note that the Senedd would
count as a legislature for the purpose of A3P1.[13]
-
The ECtHR has established that the Article covers both a right to
vote and the right to stand for election. The rights are not
absolute, and states are given a wide margin of appreciation as to
the conditions they apply to the right, especially so in respect of
the right to stand for election.[14]
As the ECtHR put it in Zevnik v Slovenia (application no
54893/18)
Contracting States must be given a wide margin of appreciation in
this sphere, seeing that there are numerous ways of organising and
running electoral systems and a wealth of differences, inter alia,
in historical development, cultural diversity and political thought
within Europe, which it is for each Contracting State to mould into
its own democratic vision.
In that case the Court found that a minimum 35% quota of women
candidates was compatible with A3P1.
-
A14 prohibits discrimination on any grounds, including sex, in the
enjoyment of the rights protected by the Convention. It
reads:
The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.
-
So discrimination on the grounds of sex is prohibited. It may
however be permitted if there is objective and reasonable
justification for it.
-
In the case of Sejdić and Finci v. Bosnia-Herzegovina
(Application numbers 27996/06 and 34836/06) ECtHR held that a law
which prohibited people from standing for election unless they were
affiliated to a ‘constituent people’ of Slovenia
discriminated on the ground race lacked an objective and reasonable
justification and therefore found in favour of the applicants who
were members of the Roma and Jewish communities, which were not
‘constituent peoples’.
-
The Bill discriminates on the ground of sex in respect of A3P1,
because of the permitted asymmetry and required asymmetry of its
provisions. Art 14 was not considered in Zevnik But it
appears to be consistent with the judgment in that case to assume
that, had it done so, the Court would have found the asymmetry in
that case (a 35% quota) to have an objective and reasonable
justification. The asymmetry in the Bill is more extensive, so
would require its own objective and reasonable
justification.