Senedd Cymru | Welsh Parliament
Pwyllgor y Bil Atebolrwydd Aelodau | Member Accountability Bill Committee
Bil Senedd Cymru (Atebolrwydd Aelodau ac Etholiadau) | Senedd Cymru (Member Accountability and Elections) Bill
Ymateb gan y Comisiwn Etholiadol | Evidence from the Electoral Commission
The Electoral Commission is the independent body which oversees elections and regulates political finance in the UK. We work to promote public confidence in the democratic process and ensure its integrity. A key part of our role is to provide advice to the UK’s parliaments on matters relating to elections.
1. The Senedd Cymru (Member Accountability and Elections) Bill would introduce a range of new provisions for elections to and membership of the Senedd. Several of these would have significant implications for voters, candidates and campaigners, and electoral administrators in Wales. These implications will need to be carefully considered and managed to ensure confidence in the integrity and effectiveness of these new processes.
2. There is some evidence from the experience of delivering similar processes in other parts of the UK and in other countries which can provide useful lessons for implementing these new provisions in Wales. It is important to recognise the specific context for elections to the Senedd, however, including the new electoral system that will be used for the first time in 2026.
3. Since 2015 it has been possible for Members of the UK Parliament to be subjected to a recall petition process. To date, six recall petitions have been initiated, and four MPs have vacated their seats as a result (one MP also resigned their seat before the petition period had closed). The Scottish Parliament is also currently considering a Member’s Bill that would introduce similar provisions for MSPs.
4. Our research and analysis on recall petitions for members of the UK Parliament has identified a number of lessons which may be helpful to consider for the delivery of future recall polls for members of the Senedd.
5. Electors will need sufficient opportunities to participate in any recall process. A recall poll for a member of the Senedd would take place on one day, with voting arrangements that would be broadly equivalent to a by election – with similar numbers of polling stations, as well as voting by post and proxy. The current recall petition period for members of the UK Parliament is significantly longer at six weeks, although only a limited number of signing locations are available during this period. We have recommended that the UK Government should identify the appropriate length for a reduced period of less than six weeks, given that the majority of those signing petitions have tended to do so in the first two weeks of the period.
6. Electors will need to be made aware of the date of the recall poll and the deadlines for any registration or absent vote applications to be able to participate. The Constituency Returning Officer would be required to send a notice of the recall poll to all eligible electors. We provide information for voters on our website about upcoming polls in their area, including recall petitions, and would expect to do the same for future recall polls in Wales.
7. Electors would also need to understand the options available to them in a recall poll, and the implications of their choice. The ballot paper for a recall poll would include a question and two options, which would be more like ballot papers for referendums rather than those used for elections.
8. We have shared with the Welsh Government details of our experience of assessing the intelligibility of referendum questions to make sure they are easy for voters to understand in both Welsh and English. Our guidelines for assessing such questions make clear that they should present the options clearly, simply and neutrally. They should be easy to understand, to the point and unambiguous; and should avoid encouraging voters to consider one response more favourably than another, or misleading voters.
9. As part of our assessment of referendum questions to date, we have carried out research with the public to ensure our assessment is informed by evidence about their response to different wording options. User testing of the proposed recall poll question and responses would provide assurance that voters will be able to understand the question and possible outcomes, and confidently make their choice using the ballot paper.
10. Constituency Returning Officers will need sufficient time and support to plan and deliver a recall poll. The Bill would require the poll to take place within three months after the Presiding Officer has given notice of the triggering event. It is not unusual for Returning Officers to deliver unscheduled polls within this timeframe – for example the recent Caerphilly by-election took place less than three months after the seat became vacant. We currently provide guidance for recall petition officersto help them deliver well-run petitions at a UKPGE, and would expect to do the same for future recall polls in Wales.
11. The Bill would give Welsh Ministers powers to make regulations about the limitation of recall poll campaign expenses and donations. It will be important to ensure there is appropriate and proportionate regulation and transparency of campaigner spending in relation to any recall poll, including clarifying the roles of Constituency Returning Officers, the Electoral Commission and the police and prosecuting authorities. The UK Government has recently indicated that it intends to legislate to extend the Commission’s existing enforcement role to also include political finance offences relating to recall petitions for Members of the UK Parliament.
12. Our research suggests that voters are concerned about the extent and impact of misleading or false information about candidates, political parties and policies. After the 2024 UK Parliament general electionwe found that:
· 52% of people said they saw or heard misleading or inaccurate information or stories about individual candidates.
· 61% of people said they saw or heard misleading or inaccurate information or stories about a political party's policies.
· A further 12-13% of people said they did not know whether they saw inaccurate or misleading information about policies, candidates or the elections.
13. Electoral law currently specifies that it is an illegal practice before or during an election – including Senedd elections – to make or publish any false statement of fact in relation to a candidate’s personal character or conduct for the purpose of affecting the return of any candidate at the election (unless the person making the statement can show that they had reasonable grounds for believing, and did believe, that the statement was true).
14. While electoral fraud data that we publishshows that police forces record limited numbers of allegations relating to this offence, a small number of elections have been voided as a result of proven cases. These include the Oldham East and Saddleworth UK Parliament constituency in 2010 and a ward election for Waltham Forest Borough Council in London in 2006.
15. New regulations as proposed in the Bill (to prohibit the making or publishing of false or misleading statements of fact before or during an election for the purpose of affecting the return of any candidate) would widen the scope of this existing illegal practice beyond just the personal character or conduct of a candidate.
16. Although there is limited detail in the Bill or the explanatory notes about how this prohibition would be defined or enforced, there are some general lessons that have been identified through research about the experience of similar prohibitions that exist in broadly comparable democracies, including New Zealand and South Australia:
· To ensure legitimate debate is protected and not unduly constrained, legislation should make clear the distinction between acceptable and unacceptable statements, so that enforcement action is focused on the most significant false statements.
· Complaints should be considered and resolved quickly, with effective remedies that can be applied and enforced in practice, so that voters and other campaigners know there will be a proportionate and meaningful response to breaches of the prohibition.
· The bodies responsible for enforcing any prohibition should be independent (and perceived as such) so that voters and other campaigners can be confident that they will exercise judgement based on both their expertise and their impartiality.
17. Legislation passed in 2022 would also, if commenced, give duties and powers for the Electoral Commission in the Republic of Ireland to monitor, investigate, identify, and combat the dissemination of misleading online electoral information, including information relating to candidates or political parties. The Commission would be able to prosecute any offence that may have been committed under the Act, as well as issuing take down or correction notices, or labelling or access blocking orders in relation to online mis- or dis-information.
18. We have highlighted above some practical considerations for the implementation of provisions relating to any recall polls and a new prohibition on the making or publishing of false statements of fact.
19. More generally, the Welsh Government will need to ensure that sufficient time is provided for Constituency Returning Officers, campaigners and others responsible for implementation to prepare for their new responsibilities and duties. All legislation should be clear (including the introduction of any regulations for approval) at least six months before it is required to be implemented or complied with by voters, electoral administrators or campaigners. This is a well-established principle of effective electoral administration that is widely supported by the electoral community in Wales.
20. It is not clear how the requirement to hold a recall poll within three months after the Presiding Officer has given notice of the triggering event would take account of any period allowed for a Member to appeal their conviction (where that conviction was the trigger event). This could mean that a Member might be removed as a result of a recall poll which has already taken place, even if their original conviction is subsequently overturned on appeal.
21. Members of the UK Parliament can be recalled if they are convicted in the UK of any offence and have been sentenced or ordered to be imprisoned or detained, only after all appeals have been exhausted or the period for an appeal has passed. One recall petition was triggered when the MP was sentenced to a prison term in December 2018, but the petition itself was not opened until March 2019 after the MP’s appeal had been dismissed.
22. As highlighted above, we would expect to provide information for voters about the process for any recall poll through our website and social media channels, and would provide guidance for Constituency Returning Officers to support delivery of the poll. Delivering these activities may require some additional resources, but this is not likely to be significant.
23. It is not currently clear what role the Electoral Commission would be required to play in securing compliance with regulations about recall poll campaign expenses and donations. Depending on the scope and scale of these requirements, there may be some further financial implications.
24. The Bill would delegate powers for Ministers to make secondary legislation regulations setting out detailed procedures in many areas, including exactly how recall polls will be delivered and recall poll campaign expenses and donations will be regulated. The Government would be required to consult the Commission before making regulations for the administration or regulation of recall polls, extending the current requirement to consult before making secondary legislation for Welsh elections.
25. It can be helpful to delegate powers to make more detailed regulations about the administration and regulation of elections, so that the law can continue to evolve to reflect changes in the wider environment and remain fit for the future. This is broadly consistent with the approach to secondary legislation for Senedd electionsas delegated by the Government of Wales Act 2006, which currently also allows for the creation of criminal offences in connection with campaign spending limits.
26. Creating a new prohibition and offences relating to the making or publishing of false statements of fact would be a significant new policy for Welsh elections (and for elections elsewhere in the UK). Given the sensitive and complex policy considerations that are raised by restrictions on political speech, some of which we have highlighted in our evidence above, it may be necessary to consider carefully the balance between what is specified in primary legislation and what can more appropriately be specified in regulations.
27. The Government will need to undertake further detailed discussions and considerations with relevant partners as it develops these regulations, particularly in developing the detailed definition of any new prohibitions and offences. This will include engaging with electoral administrators, political parties, the police and prosecuting authorities, and we will support the Government by providing our own experience and expertise of electoral administration and political finance regulation in Wales and across the UK.