MAB07 The Electoral Reform Society Cymru

Pwyllgor y Bil Atebolrwydd Aelodau | Member Accountability Bill Committee

Bil Senedd Cymru (Atebolrwydd Aelodau ac Etholiadau) | Senedd Cymru (Member Accountability and Elections) Bill

We welcome the Welsh Government’s ambition to enhance the accountability of Members of the Senedd and strengthen regulations and sanction around behaviour and conduct. Trust in politics across the UK is at a record low, with 45% of people saying they would ‘almost never’ trust British governments of any party to place the needs of the nation above the interests of their own political party in 2023, the highest proportion ever. Improving member accountability could go a small way to addressing this.

With just six months to the Senedd election we are concerned about this bill, as drafted, and the likelihood of its provisions being implemented within the next Senedd. The legislation, as currently drafted, makes several provisions enabling further guidance or changes to the Standing Orders of the Senedd, and confers broad powers to Welsh ministers, rather than directly making changes under primary legislation.

Given this bill is only recently introduced and would pass only shortly before dissolution for the Senedd election, our expectations are that any guidance or amends to the Standing Orders of the Senedd would only take place in the next Senedd. Particularly, with regards to recall of Senedd Members, this would only be possible if the Standards of Conduct Committee in a future Senedd decided to draft recall guidance, and then if that guidance passed the comparatively high bar of a two thirds threshold, which would be no guarantee. Furthermore, the bill confers broad powers to future Welsh Minister to create criminal offences, which could have unintended consequences.

We believe that the Member Accountability Bill Committee might want to review and consider ways to strengthen this legislation.

We have taken a pragmatic view on recall in previous submissions to Senedd committees, where we made clear that addressing serious wrongdoing should not be left to potentially unsuccessful recall petitions but dealt with by the Senedd in the most egregious situations. It should not be the voters’ job to police their representatives.

However, whilst we do not think that recall procedures are an infallible solution to member accountability, it is important that there is a mechanism to remove Members who have committed serious breaches of conduct and recall measures give voters the opportunity to make that decision.

We have some concerns regarding how the recall measures will work in the Senedd as outlined in the draft legislation.

Part 1, Section 2(4) - Initiating a recall poll

Section 5 - Trigger event B: recall guidance

Taking into account our warnings around the general approach of this legislation, it is important that the power to initiate the recall poll has the appropriate safeguards against partisan manipulation whilst at the same time does not set the bar too high to be effective. 

The draft legislation requires a two-thirds majority in the Senedd to pass a resolution on recall guidance (7(b)), and the Committee may wish to consider what options are available/what status a trigger event B would have if it is not possible to attain a two-thirds majority to establish or change recall guidance. While there are examples of other procedures in the Senedd that require a two thirds threshold, current rules around sanctions for members’ conduct are based on a simple majority.

It is also imperative, given that the Standards of Conduct Committee would, in the event they developed guidance on this, be given power to recommend submission of a Member of the Senedd to a recall poll that the Committee itself is constituted so as to remove the possibility of single party majority. We welcome measures under section 18 to appoint lay members to the committee. Given the important role of the Standards of Conduct Committee, the bill committee may want to consider other ways of ensuring that it remains rigorously independent and expert – potentially in primary legislation.

Part 1, Section 13 - Effect of declaration that a Member of the Senedd is removed

We have previously raised concerns that using recall in conjunction with a closed list electoral system means that if a vacancy occurs and the next person on the list automatically fills the seat, voters will not have been given a say over who they would wish to fill the vacancy and moreover, could contribute to the perception that parties are rewarded for poor conduct.

As we have previously stated, in the last Westminster term (2019-2024) there were four by-elections as a result of recall petitions. In three of these instances a different party won that seat at the by-election than had held the seat previously. This can also be seen to be a rejection of the party as well as the Member who had been the subject of the recall petition as in two of the three cases where a different party won, a different candidate had stood for the incumbent party.

Voters should be at the centre of decisions about who represents them. As such, we would suggest the committee explores whether the legislation could be strengthened to ensure voters can have a say on who is elected in the event of a vacancy.

One option for this, under the current electoral system, would be to explore using the D’Hondt method. We have previously written to the Standards of Conduct Committee with a briefing on how this might work and will share this briefing with the bill committee. In short, this would retain the proportionality of the original Senedd election while giving voters more choice in who represents them than simply going to the next person on a party list. It could also offer an alternative for if a casual vacancy is created and a party list is exhausted.

Part 2, Section 20 - Senedd Commissioner for Standards: eligibility

We welcome the extension of the Commissioner on Standards role in being able to proactively address concerns rather than waiting for a complaint to be made.   We have previously been part of a coalition of organisations (including WEN Wales, Chwarae Teg and Oxfam), which called for a number of other measures to strengthen the role of the Standards Commissioner. This included replacing the single role of commissioner with a small panel of commissioners to reflect a wider set of experiences and expertise.

Part 3, Section 22 – Power of the Welsh Ministers to make provision about Senedd elections

We are concerned about the broad nature of this section, particularly with regards to subsection 4, and its potential to give Welsh Ministers powers to create future criminal offences with no real clarity on what these could be and how they would operate. This could have unintended consequences in a future Senedd.

 

Annex 1: D’Hondt system for recall by-elections in the Senedd

The D’Hondt method will be used to allocate seats for Senedd elections in 2026 under a closed list proportional representation system. It is also currently used to allocate the regional list element of the Additional Member System (AMS) using the closed list proportional representation system.

How D’Hondt works

After the votes are tallied, the D’Hondt method formula is used to calculate the quotient for each party. This takes the number of votes received by a party and divides it by the number of seats they have won plus one. In the initial round of allocation, each party has zero seats to start with and therefore the quotient for each party is simply the number of votes they won. The party with the highest quotient in any given round wins the seat, and their quotient is then recalculated using the updated number of seats won.

D’Hondt method quotient formula: _{𝑆𝑒𝑎𝑡𝑠}^{𝑉𝑜𝑡𝑒𝑠}₊₁

 

For example, in an election where six parties stand and there are six seats to allocate, 92,500 votes are cast with each party winning:

-          Party A = 9,000 votes

-          Party B = 40,000 votes

-          Party C = 3,000 votes

-          Party D = 14,000 votes

-          Party E = 1,500 votes

-          Party F = 25,000 votes

The seats are allocated using the D’Hondt method as follows, with the quotient recalculated each time a party wins a seat:

Party / Quotient	Round 1	Round 2	Round 3	Round 4	Round 5	Round 6	Total Seats
Party A	9,000	9,000	9,000	9,000	9,000	9,000	0
Party B	40,000	20,000	20,000	13,333.3	13,333.3	10,000	3
Party C	3,000	3,000	3,000	3,000	3,000	3,000	0
Party D	14,000	14,000	14,000	14,000	7,000	7,000	1
Party E	1,500	1,500	1,500	1,500	1,500	1,500	0
Party F	25,000	25,000	12,500	12,500	12,500	12,500	2

Numbers in bold show where a party wins a seat through having the highest value quotient in that round.

 

Senedd Recall

In terms of any future recall mechanism for the Senedd, if by-elections were to be part of that process as they are under the Westminster recall process, then an electoral system would need to be defined for the recall by-election.

This could include First Past The Post (FPTP), Alternative Vote (AV), Supplementary Vote (SV), or as Peredur Owen Griffiths MS raised in the oral evidence session on 19^th November 2024, the D’Hondt method could be applied to a recall by-election.

D’Hondt Recall By-election Mechanism  

Given that Senedd constituencies will be multi-member with 6 elected representatives who are elected via the closed list proportional representation system using the D’Hondt method in 2026, the D’Hondt method could also be used to allocate a new 6^th seat in the event of a member being recalled using the votes cast at a by-election.  

If a Member of the Senedd (MS) is recalled, there will be 5 remaining MSs representing the constituency. This remaining representation could be used in the D’Hondt formula to calculate a quotient for each party, with the highest quotient awarded the seat, this mechanism is similar to the current AMS system where the constituency seats are used in the D’Hondt formula to allocate the regional list seats.

In the example election above, where:

-          Party A won 0 seats- Party B won 3 seats

-          Party C won 0 seats

-          Party D won 1 seat

-          Party E won 0 seats

-          Party F won 2 seats

If one of the members for Party F was recalled, triggering a by-election then:

A)     Party support levels might stay the same (i.e. the electorate casts their vote in the same way as at the original Senedd election).

	Votes	Seats held at time of recall vote	Quotient formula	Quotient	Final seats
Party A	9,000	0	9,000/(0+1)	9,000	0
Party B	40,000	3	40,000/(3+1)	10,000	3
Party C	3,000	0	3,000/(0+1)	3,000	0
Party D	14,000	1	14,000/(1+1)	7,000	1
Party E	1,500	0	1,500/(0+1)	1,500	0
Party F	25,000	1	25,000/(1+1)	12,500	2

Numbers in bold show which party wins the 6th seat by having the highest value quotient.

Here Party F wins the seat back as their support from the electorate is the same as at the original election, maintaining their representation of 2 MSs in the constituency.

B)     Party support levels might change (i.e. the electorate casts their votes in a different way to the original Senedd election) with 10,000 voters for Party F staying at home and not voting.

	Votes	Seats held at time of recall vote	Quotient formula	Quotient	Final seats
Party A	9,000	0	9,000/(0+1)	9,000	0
Party B	40,000	3	40,000/(3+1)	10,000	4
Party C	3,000	0	3,000/(0+1)	3,000	0
Party D	14,000	1	14,000/(1+1)	7,000	1
Party E	1,500	0	1,500/(0+1)	1,500	0
Party F	15,000	1	15,000/(1+1)	7,500	1

Numbers in bold show which party wins the 6th seat by having the highest value quotient.

Here Party B gain an extra seat bringing their total to 4 MSs in the constituency.

C)      Party support levels might change (i.e. the electorate casts their votes in a

different way to the original Senedd election) with 10,000 voters for Party F casting their vote for a variety of different parties.

	Votes	Seats held at time of recall vote	Quotient formula	Quotient	Final seats
Party A	14,000	0	14,000/(0+1)	14,000	1
Party B	40,000	3	40,000/(3+1)	10,000	3
Party C	5,000	0	5,000/(0+1)	5,000	0
Party D	16,000	1	16,000/(1+1)	8,000	1
Party E	2,500	0	2,500/(0+1)	2,500	0
Party F	15,000	1	15,000/(1+1)	7,500	1

Numbers in bold show which party wins the 6th seat by having the highest value quotient.

Here Party A win a seat giving them representation in the constituency with 1 MS up from 0.

Pros

-          Using the D’Hondt method for recall by-elections would maintain the same seat allocation method as at a normal Senedd general election and maintain the proportionality of the election.

-          Smaller parties and independents could still win under a by-election, if they had sufficient support, as they could at the Senedd election. This would be much harder if FPTP, AV or SV were used for a recall by-election.

-          The same mechanism could be used as a backstop for casual vacancies where either the party list has been depleted or the member in question was an independent.

Cons 

-          The communication with voters around how the by-election result is calculated would need to be very clear showing both the votes cast and how the quotient is calculated using the remaining 5 sitting MSs for that constituency to determine who the seat is allocated to as this would not necessarily be the party who gets the most votes at the recall election.