A Welsh Constitution V (b): The Legislature – How the Legislature Works

(Title Image: Getty Images via BBC Wales)

Most constitutions set out how the legislature works, its role and electoral arrangements. That’s what’s coming up next.

Role of the Senedd

As the PR bumpf states: The Senedd/Welsh Parliament “is the democratically elected body that represents the interests of Wales and its people.”

At present, the key roles are:

  • Representing the interests of the people of Wales (in devolved policy areas).
  • Holding the Welsh Government to account.
  • Approving national budgets as well as (devolved) tax rates.
  • Making, amending and agreeing to new laws.

Apart from the devolved bit, this is unlikely to change much post-independence – though the role could be constitutionally defined and expanded to be more specific, including:

  • A sole/exclusive authority to make new laws for Wales as a whole.
  • A power to create sub-national territories (i.e. local authorities and federal states) – more in Part VII.
  • A sole/exclusive authority to table and approve budgets/table Money Bills (lower chamber in a bicameral system),  authorise military deployments (as mentioned in Part Va) and trigger the use of emergency powers (Part VII).
  • In a bicameral system, the role of the upper chamber (whatever it’s called) would need to be constitutionally defined too (Part Va).

There would be a certain number of rights and responsibilities including a bar on tabling or passing any law which would be contrary to the Constitution, as well as a clause granting members of the Senedd parliamentary privilege/protection from claims of defamation for anything said or done during parliamentary meetings (Part II).

The Senedd itself could be deemed inviolable when carrying out its constitutional role. This would be a step down from outright parliamentary sovereignty (in the UK sense), but provides the Senedd with enough protection as to do their job unimpeded – they can’t be dismissed on a whim, subject to a violent protest within the estate itself or permanently suspended.

Role of the Llywydd & Senedd Commission

 

(Pic: via Senedd TV)

The Llywydd (Presiding Officer) holds the same role in the Senedd as the Speaker in the UK House of Commons. As probably the most important office in the legislature itself, it’s a role that would require a constitutional definition and special provisions. Their role is, broadly-speaking, to:

  • Chair plenary sessions of the Senedd (lower chamber in a bicameral system).
  • Maintain, interpret and apply Standing Orders and other rules of procedure during plenary meetings.
  • Propose and table amendments to Standing Orders (requiring a majority vote to pass).
  • Act as the most senior representative of the Senedd in relations with other legislatures and external organisations.
  • Use a casting vote in tied votes in favour of the status quo (Speaker Denison’s Rule – Part II) except in votes which require a (two-thirds) supermajority.

A similar role would need to be outlined for the Chair/Convenor or equivalent in an upper chamber in a bicameral system (Part Va).

The Senedd Commission is the body responsible for running the Senedd itself and several MSs from all parties are appointed to act part-time (paid) as Commissioners in certain areas.

If this system wasn’t retained for whatever reason, it could be replaced with a Committee chaired by the Llywydd and including the appointed Trefnydd/Leader of the House as well as representatives from the other recognised party groups (presumably Party Whips). As this would be the same makeup as the current Business Committee, the roles could be combined – possibly saving time and money.

Rules of Order & Procedure

At the moment, the Standing Orders (Rules of Procedure) are maintained by the Senedd itself, with any amendments to Standing Orders being approved by a majority vote.

It makes sense for the Senedd itself to have control over how its own meetings are arranged and rules applied, but it may also make sense for some elements of the Standing Orders to become constitutional clauses which would be put on a permanent footing and can’t be changed so easily (Part VIII). This could include:

  • The procedure for the appointment of the Llywydd and their deputies.
  • Procedures for appointing a Prime Minister (except in a presidential republic) and Attorney General.
  • A requirement to maintain a publicly-available Register of Interests (including procedures around declaring interests) as well as a publicly-available Register of Expenses.
  • The minimum number of members required to be recognised as a party group (for argument’s sake 5%, which in a 94-member unicameral legislature means a minimum of 5 members and in an 80-member legislature 4 members). This could include the creation of a Non-Affiliated/Non-Inscrits group for Independent members and members of smaller parties so they can fully take part in some things that would otherwise require party group recognition.
  • Maintaining a ban on lobbying for reward or payment as well as rules relating to the acceptance of gifts. It could include a constitutionally-mandated register of lobbyists and a publicly-available register of meetings with lobbyists or special interest groups.
  • Putting the public petitions system on a permanent footing, including thresholds for admissibility and the threshold to trigger a plenary debate.
  • A ban on employing family members and partners as staff.
  • A requirement for all meetings of the Senedd to be held in public, transcribed (in English and Welsh) and broadcast unless AMs vote to hold a meeting in a private session.
  • Rules regarding disqualification, resignation and extraordinary vacancies (which I come back to later).
  • Rules for no confidence motions in the government, Prime Minister (where applicable), the Llywydd or a single government minister.
  • How the Senedd would work regarding the use of Emergency Powers/during a State of Emergency (Part VII) – as demonstrated during the current Coronavirus pandemic.

Everything else could probably be left to the Standing Orders as they currently are, with the Llywydd – as mentioned – being the named office-holder responsible for their management and interpretation.

Making Good Laws

 

(Pic: The Wave)

The actual process for making laws – as in the step-by-step details and staging – doesn’t necessarily have to be included in the Constitution and can instead be managed through the Senedd’s Standing Orders – as it is now.

The relevant parts of the Government of Wales Act 2006 (Part 4, Sections 110-116) which may need to be included in a Constitution include:

The process for introducing a Bill (including types of Bill)

Bills can be introduced by any member of the legislature – though the requirement for Llywydd to state whether a Bill lies within the powers of the Senedd would no longer be needed post-independence; similarly a statement on the impact of a Bill on the EnglandandWales justice system. The Bill itself has to be bilingual.

In a bicameral system, Money Bills (laws relating to taxation, public finances and national budgets) could only be introduced in the lower chamber.

In a presidential or semi-presidential republic, the President wouldn’t be able to introduce laws themselves and would need someone in the legislature to sponsor it.

What procedures the Senedd has to follow to allow a Bill to proceed

The Government of Wales Act 2006 requires the Standing Orders to include provisions for a debate on the general principles of a Bill (Stage 1 debate), an opportunity for members to vote on the details of the Bill (Stage 2 in Committee, Stage 3 by the Senedd as a whole) and a final vote on the Bill (Stage 4). A Report Stage between stages 3 and 4 for additional amendments is optional.

Standing Orders also include procedures for those Bills which restate or repeal laws, as well as private Bills (Bills introduced by outside organisations, though this has never happened as far as I know). Additionally, Standing Orders can also include procedures for Bills introduced by backbench Members, as well as Emergency Bills; in the case of the latter Stage 2 and 3 take place in the Senedd as a whole.

In a unicameral system, the above needn’t change all that much.

In a bicameral system (Part Va),  Bills other than Money Bills and emergency laws will need to go through a committee process and plenary debate in the upper chamber (after Stage 2 and 3 in the lower chamber) where further amendments can be made and evidence taken. Like the House of Lords, the upper chamber could have the power to delay a Bill by up to a year – triggering additional stages of scrutiny in the lower chamber (perhaps as a mandatory Report Stage) – but wouldn’t have the power to veto a new law.

If a Bill is introduced in the upper chamber, then the whole process will happen in reverse (as with the House of Lords), though the upper chamber will be able to veto/reject Bills which originated there.

There would also need to be a procedure in place to allow Bills which haven’t completed the legislative process in a parliamentary session/year to be carried over to the following year – though any Bills which haven’t completed the process before the end of a four-year term would be automatically rejected.

Judging the constitutionality of a Bill (Part VI)

Someone in the right position of authority – whether the Llywydd, the Head of State or the Attorney General – would have the power to refer a Bill (after the final vote) to the relevant Constitutional Court for consideration as to whether it’s compatible with the Constitution and/or Bill of Rights (Part XII).

The Constitutional Court/Supreme Court would have the power to strike down any unconstitutional laws to add an additional layer of checks and balances.

Promulgation/Signing a Bill into law

The head of state would be obliged to sign any Act properly passed by the Senedd into law via Letters patent (or refer it for the constitutional test, as mentioned above) within a certain period – in the Republic of Ireland, it’s a week.

Once an Act has been signed into law, it becomes official after the Seal is attached. At the moment, that’s done by the First Minister in Wales, though in practical terms it’s probably best done be done by the head of state to authenticate their signature.

Electoral Systems

 

(Pic: thejournal.ie)

This was one of the key points of discussion within the McAllister Review (pdf – summary) and is currently under discussion by a Senedd committee for electoral reform. The problem here has been politics rather than principle – while there’s a broad agreement things need to change, turkeys don’t vote for Christmas.

Drafting a new Constitution would (depending on the method – Part IIIa) quite rightly take the decision out of politicians’ hands and impose a system on them.

At present, the Senedd uses the Additional Member system – 40 AMs are elected by first-past-the-post in constituencies, with the other 20 AMs elected via the D’Hondt method of proportional representation in five regions made up of 4 members. If this system was kept after independence, then the number of regions (or members from each region) could be increased, or the balance of members from constituencies and regions can be changed (i.e. 30 constituency members, 50-60+ regional members, or some other arrangement).

The McAllister Review only considered three options in detail, but the full list of potential systems could include:

Single-member constituencies:

  • First-past-the-post (FPTP) – The simplest way to do it; whoever obtains the most votes wins, but we’re gradually moving away from seeing this as the best way to do things when there are more than two candidates.
  • Supplementary vote – Similar to that used in Police & Crime Commissioner and London mayoral elections. People vote for their first and second preference, the two candidates who receive the most first-preferences go through to an instant second round where the candidate who receives the most votes after second preferences are counted wins.
  • Alternative vote – Like supplementary vote except voters have as many preferences as they like, with candidates eliminated one-by-one until one candidate receives more than 50% of the vote.
  • Two round system – As in France, the top two candidates from the first round take part in a second round held between a fortnight and a month later (both under FPTP).

Multi-member constituencies:

  • Multiple non-transferable vote – FPTP in duplicate, as used in multi-member council ward elections in Wales as of 2020. Depending on how many seats there are to fill, the individual candidates with the most votes win. While it’s easy to understand it often produces massively disproportionate results (in some council wards, a party may win all the seats with less than 30% of the vote). It’s crap and fact we’re still using it is a national embarrassment.
  • Closed list proportional representation – You cast a single vote for a party group and depending on the formula used to calculate the number of seats (D’Hondt Method, Sainte-Laguë Method), the seats are assigned based on votes cast for each party – though parties would decide who gets the first slot on their list etc. This is used to elect regional members to the Senedd. Vacancies are filled by the next person down a party’s list.
  • Open list proportional representation – Seats are assigned as in a closed list, but instead of voting for a party-assigned bloc of candidates, you get to rank the candidates yourselves.
  • Single transferable vote (STV)  – You rank candidates by order of preference and seats are filled based on exceeding a quota after eliminated candidate preferences are re-counted.

Because of our experiences with using different electoral systems at different levels of government, there wouldn’t necessarily be anything untoward in continuing with that after independence – though to make things simpler, it would be best to have identical or near-identical systems in place at all tiers. My personal preferences are either STV or Open-list PR because they produce a proportional result and give the electorate (rather than parties) control over precisely who they want to represent them; there would be no more safe seats, in principle.

Next, it’s the question of electoral boundaries.

Things would look very different if the Senedd was made up of single-member constituencies, but with moves towards greater proportional representation, the electoral map would likely look similar to the Senedd election map as it is now. Other options include the McAllister Review recommendations – one map based on combining the existing 40 constituencies into 20 constituencies and another based on creating 17 constituencies around local authority boundaries (I prefer the latter).

You would expect each constituency to elect anything between 3-7 members depending on the total number of members overall (Part Va) and proportional to the population living in each new constituency.

In an elected upper chamber (as opposed to an appointed one), members could be elected either via their own set of constituencies, an all-Wales national list, or regionally – either based on existing Senedd regions or new federal or devolved regions (to ensure equal geographical representation).

Electoral Law in the Constitution

Some provisions – such as the conduct of elections, electoral finances, boundary reviews, the Electoral Commission etc. – would probably be best dealt with through laws. That said, there are several electoral laws which could be worked into the Constitution as permanent features.

Term of office & terms limits

Wales should switch back to a four-year electoral cycle at the earliest opportunity, in my opinion. Five-year terms are far too long and the cursed Fifth Senedd has felt like it’s dragged on beyond the patience of people observing it and the people in there – though that would’ve meant having a Senedd election this year, which would’ve been postponed anyway. Three-year terms (as in Australia and New Zealand) are perhaps too short to properly develop policy and new laws, but you could argue it would keep politicians on their toes.

There’s a debate to be had on whether all elected representatives should be subject to term limits.

If we have an elected head of state (Part IVb, Part IVc), then it should almost certainly come with a term limit – shorter for an executive president (perhaps two 4-year terms), longer for a ceremonial president or an elective monarch (two 6-to-7-year terms, or one 8-12-year term). The only exception to this would be an elected monarch for life.

Some may argue differently, but heads of government (executive presidents, prime ministers, first ministers, elected mayors) have a natural shelf life in a democracy of no more than 6-8 years anyway (6-8 months in Italy). It’s very rare that a president, prime minister or first minister can serve a longer length of time than that and retain their popularity or grip on power.

Parliamentary systems usually don’t have term limits for members of the legislature because ministers and future ministers will need more than 4-8 years prior political experience to do their jobs. This can, however, lead to “time-serving” whereby people remain in elected office for extraordinary lengths of time doing as little as possible (usually not going much further than backbencher) until they retire or lose their seat – we see this all the time in local government and the UK Parliament. It’s probably too soon to say whether it’s happened in the Senedd since 1999, though there’ve certainly been members who’ve wasted their own time and the electorate’s time in there.

On the one side, you can argue that not having term limits respects the people’s choice and allows politicians to build up the necessary experience to provide better governance and scrutiny. On the other, you could argue that it leads to staleness and blocks capable people (who may or may not come from under-represented walks of life) from standing for election due to the seniority of sitting members within a party.

Instead of term limits, a mandatory retirement age could be introduced for all elected public officials who’ve served more than four terms (consecutive or non-consecutive), meaning they have to stand down at the next election (scheduled or extraordinary) following a birthday cut-off point – 70-years-old for argument’s sake.

Measures could also be put in place to ensure diversity and/or gender balance, such as “zipping” candidates on closed proportional lists (woman-man-woman-man), pairing first-past-the-post constituencies (man in one constituency, woman in the paired constituency) or – as mentioned in previous parts – where elected offices come with a term limit, that all candidates standing in the election once the term limit is up are from the opposite gender of the incumbent.

Disqualification from office

This is likely to remain largely the same as the provisions of the Senedd & Elections Act 2020.

  • There are some public offices (i.e. Auditor General, civil servants, public commissioners, sitting judges, serving police officers, serving armed forces) where you can’t stand for election. If you’ve committed certain offences, like breaches of electoral law, or have been declared bankrupt you can’t stand either – though this could be expanded to include people who’ve failed to pass a “fit and proper person” test or been impeached anywhere in the world.
  • People who’ve been imprisoned for more than a year or are registered sex offenders are banned from standing. This could be expanded to include anyone who’s been a member or supporter (covert, financial or political) of a proscribed or extremist organisation (i.e. Combat 18, National Action, Northern Irish paramilitaries, Islamist terrorist groups).
  • An “SS clause” outlawing political uniforms and paramilitary activity in opposition to the state; political uniforms were banned in the UK in 1936.
  • Double-jobbing has been banned and extended to include councillors, with a period of grace for them to stand down from one role or the other (though MPs and Lords won’t be relevant after independence).
  • There would be a citizenship requirement (Part Vc) and people standing for election in Wales could need to be permanently resident in Wales at the very least.

Expulsion from office & recall

At the moment, Members of the Senedd can be expelled from office if they do something which would otherwise disqualify them from standing as an MS in the first place (i.e. declared bankrupt, being sent to prison for a certain amount of time). This could probably continue.

While council seats can be deemed vacant if a member hasn’t attended a session for 6 months, or hasn’t been granted a leave of absence by a vote among councillors, there’s doesn’t seem to be any similar provision for the Senedd at present – though if such a provision was introduced it could include exemptions such as maternity and paternity leave or intensive medical treatment.

There currently isn’t a recall system for MSs (though there is one for MPs). The bar would need to be set at such a level that a recall election (via a public petition) is a relatively rare event, but low enough that elected members will need to maintain a certain standard of behaviour to avoid being subject to a recall. The justifications for recall could include being convicted of a criminal offence that would fall short of seeing them expelled, misrepresenting electoral or office expenses or being suspended from the chamber for a minimum period (weeks rather than days) for a standards breach. Because of the complexities of the Additional Member system, this would only work in a single-member or multi-member constituency system (because there are no by-elections for regional list seats).

  • 40
    Shares