A new law, which aims to ensure the Senedd is more representative of the gender make-up of Wales, has been introduced to the Senedd.
The Senedd Cymru (Electoral Candidate Lists) Bill is the second part of the Welsh Government’s proposals to reform the Senedd. It follows the wider-ranging Senedd Cymru (Members and Elections) Bill that was introduced in September 2023.
This article will look at the Bill’s main proposals, how they will be enforced, and why there may be questions about whether the Senedd has the legal power to pass it.
What does the Bill propose?
The Bill responds to a recommendation of the Special Purpose Committee on Senedd Reform that the Senedd should be elected with “integrated statutory gender quotas”. You can read more about the Committee’s recommendations in this Senedd Research article.
The Welsh Government highlights research and international examples that show gender quotas are “an effective means of increasing the proportion of female elected members”.
The Bill introduces two types of gender quotas. One that relates to the candidates political parties choose for a list in individual constituencies, and the other about how many women are in first position in each of the party’s lists across Wales.
It’s intended to work alongside the closed list proportional representation electoral system (where voters can choose a political party or an independent candidate) proposed by the Senedd Cymru (Members and Elections) Bill. You can read more about the electoral system in this Senedd Research article.
Constituency-level quotas
If a political party puts forward a list of two or more candidates in a Senedd constituency, they would need to ensure that:
- At least 50% of their candidates are women (known as the ‘minimum threshold’); and
- All candidates on the list that are not women, must be immediately followed by a woman, unless they are last on the list (known as the ‘vertical placement criteria’).
If a party stands only one candidate in a constituency, these rules would not apply.
This approach differs from the ‘zipping’ (listing candidates alternately according to their gender) that was supported by the Special Purpose Committee. The Bill’s explanatory memorandum says that the proposals would be less complex, and would provide political parties with greater flexibility to place more than one woman in succession on a list. It says that zipping would place a ‘ceiling’ on the number of women candidates who may stand.
National quotas
As well as rules at a constituency-level, the Bill also proposes to introduce a rule across all constituencies a political party is standing in.
If a political party puts forward candidates in two or more constituencies, they would be required by the Bill to ensure that the first or only candidate on at least half the lists submitted by a party must be a woman (known as the ‘horizontal placement criteria’).
If a party stands candidates in only one constituency, this rule would not apply.
How would the quotas be enforced?
As part of the nominations process, candidates would be required to make a statement about whether they are a woman or not a woman. This statement will be used as the basis for enforcing the quotas. Constituency Returning Officers (CROs) will take these statements at ‘face value’, meaning that they would not undertake any investigation into whether the information provided by a candidate is correct.
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A gender statement The Bill’s Equality Impact Assessment (EIA) explains that while the Welsh Government’s wider policy ambition is to support trans inclusion (including making it easier to obtain a Gender Recognition Certificate), gender recognition is a reserved matter under the Government of Wales Act 2006. The Welsh Government says that some individuals may be negatively impacted in having to make a gender statement, although it states that the legislation does not preclude anyone from standing. The Integrated Impact Assessment states that the number of people who may be affected “is likely to be very small and the nature of the impact will vary depending on each individual’s particular personal circumstances”. The Bill’s Justice Impact Assessment says that providing a false gender statement will not be part of existing corrupt practice offence for providing false statements in nomination papers. |
Enforcement of the constituency-level quotas would be the responsibility of the relevant Constituency Returning Officer (CRO). They would be responsible for verifying that a minimum of 50% of candidates on each list have made a statement that they are women, and that the vertical placement criteria are met. If a list does not comply, the CRO will be able to invalidate the nomination papers.
For the national quotas, the Bill gives the Welsh Government the power to appoint a National Nominations Compliance Officer (NNCO). This role would oversee compliance with the horizonal placement criteria. If a political party’s lists do not comply with the criteria, they will be given the opportunity to re-order one or more list to make them compliant. If they do not, then one or more lists would be chosen by the NNCO and re-ordered by the relevant CRO.
Much of the detail about how enforcement would work in practice will be made through a piece of secondary legislation, known as the Conduct Order, ahead of the next Senedd election.
How will the Senedd scrutinise the Bill?
The Reform Bill Committee will lead on the Stage 1 scrutiny of the Bill.
As per the standard legislative process, the Finance Committee will consider the financial implications of the Bill, and the Legislation, Justice and Constitution Committee will look at the quality and legality of the legislation.
If the Bill’s general principles are agreed at Stage 1, it will proceed through the rest of the legislative process before reaching a final vote at Stage 4.
If the Llywydd considers that any of the Bill’s provisions relate to a ‘protected subject matter’, the Bill will be subject to a ‘supermajority’ requirement of two-thirds of Members supporting it at its Stage 4 proceedings.
Can the Senedd pass this legislation?
As is the case with every Bill, the Llywydd is required to assess whether the Senedd has the power to make that law (known as legislative competence).
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Legislative Competence The term used to describe the scope of the Senedd's power to legislate. The ‘Reserved Powers Model’ established by the Wales Act 2017 allows the Senedd to legislate on matters that are not reserved to the UK Parliament. A provision in a Senedd Bill is unable to modify the law on reserved matters. |
If the Bill (or part of it) is outside the Senedd’s legislative competence, it could still be passed but may be challenged in the Supreme Court by the UK Government’s Attorney General or the Welsh Government’s Counsel General.
The Llywydd has stated that, in her view, the provisions of the Bill would not be within the Senedd’s legislative competence because it:
- Relates to the reserved matters of ‘equal opportunities’; and
- Modifies the law on reserved matters, namely the Equality Act 2010.
The Llywydd’s view on legislative competence does not affect whether or not a Bill can be introduced.
This is the first time the Llywydd has stated that she considers that a Bill being introduced into the Senedd would be wholly outside of its legislative competence.
This is despite the Member in charge of the Bill, the Minister for Social Justice and Chief Whip, Jane Hutt MS, stating in the Bill’s explanatory memorandum that:
In my view the provisions of the Senedd Cymru (Electoral Candidate Lists) Bill, introduced by me on the 11 March 2024, would be within the legislative competence of Senedd Cymru.
What next?
The Reform Bill Committee will be taking evidence from the Minister for Social Justice and Chief Whip on Wednesday 13 March.
You can follow proceedings on the Committee’s website and on Senedd TV.
Section 1 of the Bill makes provision about the “proportion and placement of women on lists of candidates to be Members of the Senedd” and specifies how these candidate lists will be designed.
This includes the ‘minimum threshold’ and ‘vertical placement criteria’ at a constituency level, and the ‘horizontal placement criteria’ at a national level.
It also requires the Welsh Ministers to appoint a National Nominations Compliance Officer, and to use secondary legislation to outline further detail on issues such as:
- Candidate statements about whether they are a woman or not a woman;
- Inspection of those statements; and
- Compliance with the requirements if a candidate is removed from a list.
Section 2 requires the Llywydd to table a motion to propose the establishment of a Senedd committee to carry out a review of the operation and effect of new sections 7A to 7D of GoWA (as inserted by the Bill) after the first Senedd general election held following section 1 of this Bill coming into force. The motion must be tabled as soon as practicable, and no later than six months, after the first meeting of the Senedd following that election.
If a committee is established following this motion, and it publishes a report, the Welsh Ministers are required to lay before the Senedd a statement setting out the Welsh Ministers’ response to the report.
Section 3 provides for Welsh Ministers to make consequential, transitional etc. provision to give full effect to any provision of the Bill.
Section 4 relates to the coming into force of different provisions within the Bill.
Section 5 provides for the short title of the legislation.
This article highlights the main features of the Bill only and isn’t intended to be exhaustive. We’ll publish a comprehensive Bill summary in due course. Refer to the Bill and its explanatory notes for full detail.
Article by Senedd Research, Welsh Parliament
