CONTROVERSY over Labour and Plaid Cymru’s plan to ram through Senedd reform continued this week.

The Senedd’s Presiding Officer, Elin Jones, announced plans to compel political parties to rig the closed candidates lists that underpin the parties’ wish to stitch up Welsh elections were outside the Welsh Parliament’s powers.

The Labour/Plaid proposals provide that if a political party puts forward a list of two or more candidates in a Senedd constituency, they must ensure that:

• At least 50% of their candidates are women (known as the ‘minimum threshold’), and
• A woman must immediately follow all candidates who are not women unless they are last on the list (known as the ‘vertical placement criteria’).

The Bill proposes introducing rules at the constituency level and across all constituencies represented by a political party.

Suppose a political party puts forward candidates in two or more constituencies. In that case, the Bill forces it 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’).

The proposed legislation sidesteps a row on transgender women by ignoring the issue altogether. Instead, it appears to allow self-declaration.

As part of the nomination process, candidates must state whether they are women. This statement will be used to enforce the quotas. Constituency Returning Officers (CROs) will take these statements at ‘face value’, meaning that they will not investigate whether the information provided by a candidate is correct. That would mean a candidate declaring themselves a woman IS a woman.

It is an effort to sidestep the provisions of the Government of Wales Act (2006), which reserves legislation about gender recognition to Westminster.

On such shallow semantic games is Welsh democracy advanced.

However, on Monday (March 11), Llywydd Elin Jones said the Labour/Plaid legislation crossed the line into powers reserved to Westminster on a separate basis.

As with every Bill, the Llywydd must assess whether the Senedd has the power to make that law (this is known as legislative competence).

The Wales Act 2017 allows the Senedd to legislate on matters not reserved to the UK Parliament. A provision in a Senedd Bill cannot modify the law on reserved matters.

Ms Jones said: “In my view, the provisions of the Senedd Cymru (Electoral Candidate Lists) Bill, introduced on March 11, 2024, would not be within the legislative competence of the Senedd because the Bill:

a. relates to the reserved matters of equal opportunities; and

b. modifies the law on reserved matters, namely the Equality Act 2010.

In other words, the Bill proposes a law in an area of legislation controlled by Westminster.

The Llywydd’s view on legislative competence does not affect whether or not a Bill can be introduced.

It is the first time the Llywydd has stated that she considers proposed Welsh Government legislation wholly outside the Senedd’s legislative competence.

That is despite the Member in charge of the Bill, the Minister for Social Justice and Chief Whip, Jane Hutt MS, stating in an explanatory memorandum: “In my view, the provisions of the Senedd Cymru (Electoral Candidate Lists) Bill, introduced by me on March 11, 2024, would be within the legislative competence of Senedd Cymru.”

The Bill could still be passed, but the UK government’s attorney general or the Welsh government’s counsel general may challenge it in the Supreme Court.

The latter is unlikely. The former would be certain.

It is not as though Mark Drakeford’s Cabinet are unaware of the risk. It chose to separate gender quotas from the rest of its plans to increase the size of the Senedd and rig Wales’s electoral system precisely because the gender quota scheme is legislatively dubious. If it had the courage of its convictions, it would have included them in the rest of the Bill.

Picking an argument with the Westminster Government would be on brand for Welsh Labour only as long as a Conservative Government remains in power. 

As an example of seeking a distraction from its failures, a row on a constitutional issue would be ideal for the Labour Party in Wales to stir up national feeling and hostility to the Conservatives (i.e. “the English”).

Nevertheless, a potential UK Labour Government is unlikely to hand a Cardiff Cabinet everything (or much of anything) on its shopping list. It is unlikely to regard reworking the UK’s complex equalities legislation as a high priority when bread-and-butter issues dominate political discourse.

Darren Millar MS, Welsh Conservative Shadow Minister for the Constitution, said: “There are huge question-marks over the legitimacy of this legislation and whether the Senedd has the competency to legislate in this area.

“Regardless of the answers to those questions, the Welsh Conservatives will oppose this Bill.

“We believe that candidates should be chosen and elected to our national parliament based on merit, not because of their self-identified gender, biological sex, sexuality, race, religion or disability.

“While we all want to see greater diversity in our politics, we will always reject any system which seeks to pit one aspect of diversity over another.”