The Local Elections (Principal Areas) (Wales) Rules 2021

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules, the Local Elections (Principal Areas) (Wales) Rules 2021, set out the rules of conduct (referred to in the notes as “the Conduct Rules”) by which the election of councillors to county councils and county borough councils (“principal councils”) in Wales are to take place.

These Rules replace, in relation to Wales, the Local Elections (Principal Areas) (England and Wales) Rules 2006 (“the 2006 Rules”) which applied to principal council elections in England and Wales.

These Rules will apply to elections to principal councils in Wales held on and after 5 May 2022.

These Rules are the first to be made by the Welsh Ministers for the conduct of principal council elections in Wales. Accordingly, they are the first such rules to apply solely to Wales and are the first be made bilingually, in Welsh and English, for principal council elections.

In making these Rules, the Welsh Ministers have updated the language throughout and re-ordered certain rules to improve clarity and accessibility.

Rules 1 to 5 E+W

Rules 1 and 2 set out the title and commencement date of the Rules and make transitional provision so that any principal council elections in Wales held after the coming into force of these Rules, but before 5 May 2022, will be held in accordance with the 2006 Rules.

Rule 3 provides definitions of certain terms used in these Rules, including “excluded day” and “relevant election”.

Section 22(1) and (3) of the Political Parties, Elections and Referendums Act 2000 has the effect that a candidate at an election to a county or county borough council in Wales who is not standing for election in the name of a registered party has a choice between including no description in their nomination paper or including the word “Independent”. Rule 4, which is made under the powers conferred by section 26(2) of the Welsh Language Act 1993, extends the candidate’s choice by allowing the use of the word “Annibynnol” instead of, or in addition to, the word “Independent”. This extended choice is also reflected in rule 6 of Schedules 1 and 2.

Rule 5 introduces Schedule 1 (which sets out the rules for the conduct of a principal council election where the poll is not taken with a poll at another election) and Schedule 2 (which sets out the rules for the conduct of a principal council election where the poll is combined with the poll at one or more relevant elections).

Rule 5 also provides that where a rule in those Schedules requires the returning officer to publish a document, then (unless the rule provides otherwise) the document should be published online and in such other ways as the returning officer considers appropriate for bringing the contents of the document to the attention of the public.

The Conduct Rules (Schedules 1 and 2) E+W

Unless stated otherwise, the explanatory notes are common to the provisions in Schedules 1 and 2.

Parts 1 and 2

Part 1 sets out the deadlines for specified key actions to be completed or undertaken in an election. Excluded days, as defined in rule 3(1)) of these Rules, are to be disregarded in calculating the periods set out in the timetable.

Part 2 sets out the arrangements the returning officer must make to give notice of the election and for obtaining and submitting nomination forms. In particular it sets out the requirements for the notice of election, the content of nomination forms and determining whether the number of persons validly nominated is sufficient to proceed to the holding of a poll.

The notice of election must include certain particulars about the election as set out in rule 3. For example, rule 3(5) and (6) requires that returning officers must include within it an electronic delivery statement providing that nomination papers may be delivered by being sent electronically to an email address, by submission online or by either of these means (in accordance with arrangements set out in the statement).

Rule 5 provides for self-nomination; candidates must nominate themselves by way of completing and signing the nomination paper in the presence of a witness. The candidate need not use a nomination paper supplied by the returning officer or obtained online, but they must provide all the information as set out in the form of the nomination paper.

Rule 5(3)(a) requires that the candidate’s full names be stated in the nomination paper. The candidate may also give their commonly used names (including where these differ from their full names only because they are in a different order, include only some of those names or include additional names).

Rule 5(3)(b) permits a candidate to include in their nomination paper a description, which, subject to certain restrictions, will be included in the ballot paper against their name. The following rules are relevant to descriptions:

• Rule 6 – which sets out the general requirements about using a description;

• Rule 7 - permits a candidate to add the words “Wales”, “Welsh”, “Cymru” or “Cymreig” to a registered party name or registered description, where the name or description in question does not already include a territorial descriptor. A candidate is permitted to use the word “Wales” or “Welsh” before the permitted registered name or registered description or may use the word “Cymru” or “Cymreig” after the permitted registered name or registered description. A candidate must not use the territorial descriptors permitted under rule 7 if one of the words is already part of the registered name or registered description or if the candidate is using the word “Independent” or “Annibynnol” or both those words as their description.

Rule 5(3)(c) requires a candidate to include, in their nomination paper, a statement of party membership.

• Rule 8 sets out the requirements for the statement of party membership. The candidate must declare on their nomination paper if they are, or have been, members of any registered political parties in the last 12 months (“the relevant period”), but that is not a party for which they are seeking to stand in the election in question. The “relevant period” is the period of 12 months ending with the day on which the notice of election was published. If a candidate knowingly fails to provide this information they will be guilty of a corrupt practice.

Rule 5(3)(d) requires a candidate to include the relevant declarations set out in the form in Appendix 1, signed by the candidate.

Rule 5(6) requires a candidate to include with their nomination paper a separate home address form as set out in rule 9. The requirements in terms of providing an address which establishes the candidate’s qualification to stand for election in the principal area in question are set out in the table in rule 9(3).

• Rule 9(6) allows a candidate to state that they do not want their home address to be made public. If a candidate makes such a statement, the home address form must state: if the candidate’s home address is in the United Kingdom, they must state the “relevant area”, which is defined in rule 9(8); or if the home address is outside the United Kingdom, they must state the country in which it is located.

The returning officer is responsible for ensuring, where a candidate has indicated the home address is not to be published, that the wishes of the candidate are actioned.

Rule 13 requires the returning officer to publish the statement of persons nominated. In doing so, the returning officer must include:

• the names and descriptions of the persons who stand nominated;

• the home address information for each candidate (in the manner requested by the candidate – see rule 9); and

• the information contained in the statements of membership of political parties, as appropriate (see rule 8).

The statement must also include any other persons who have been nominated but who no longer stand nominated along with the reason for that.

Rule 19 allows the nomination proceedings to be abandoned if they are interrupted on any day by riot or open violence. If the day on which the proceedings are abandoned is the last day for the delivery of nomination papers, the proceedings must continue the following day.

Part 3

Part 3 of each Schedule sets out the rules that govern the conduct of the poll where an election is contested. The rules in Part 3 deal with the form and content of ballot papers and other documents to be used at the poll (rules 21 to 24) and they enable returning officers to make use of school rooms and other public rooms for polling (rule 26). They set out the action the returning officer must take before the poll (rules 27 to 36), which includes giving notice of the poll, issuing postal ballot papers and poll cards, providing polling stations and equipment and appointing presiding officers and clerks. They also set out the procedure at the polling station on the day of the poll (rules 37 to 51), including the questions that may be put to voters and the assistance that may be given to voters who have a disability or are unable to read.

The content of the rules in Part 3 of Schedule 1 and the rules in Part 3 of Schedule 2 is broadly similar. There are some minor differences because the rules in Part 3 of Schedule 2 regulate the conduct of the poll where it is combined with the poll at a relevant election (as defined in rule 3 of these Rules). For example, in Schedule 2, rule 22(4)(d) requires the ballot paper at the principal area election to be a different colour to the ballot paper in use at a relevant election. There is no similar requirement in Schedule 1 because it is unnecessary.

Certain rules in Part 3 of each Schedule refer to other legislation. Where some explanation of that other legislation would be helpful, it is given below.

• Rule 28(1) of each Schedule (which relates to the issue of postal ballot papers etc.) and rule 36(1) and (2) of each Schedule (which relates to the marking of postal voting lists) refer to regulations under the 1983 Act. At the time when these Rules are made, it is the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) that make provision for the issue of postal ballot papers, postal voting statements and envelopes for their return and the marking of postal voting lists.

• Rule 32(3) of Schedule 1 and rule 32(5) of Schedule 2 provide for the returning officer to provide each polling station with (among other things) copies of relevant notices issued under section 13B(3B) or (3D) of the 1983 Act. These are notices that supplement the copies of the relevant parts of the register that are also supplied to the polling station. Notices under section 13B(3B) deal with situations where there has been an appeal against a decision by a registration officer (for example, a decision refusing registration) and the appeal is successful. Notices under section 13B(3D) deal with situations where representations have been made about a clerical error in the register (for example, as to a person’s name or address) and the registration officer agrees that there is an error.

• Rule 35(1) of each Schedule requires the returning officer to give every person attending the polling station, other than voters and their companions, persons under the age of 16 and constables on duty, a notice setting out the provisions of section 66(1), (3) and (6) of the 1983 Act. Section 66(1) requires returning officers, clerks, candidates, election agents, polling agents, representatives of the Electoral Commission and accredited observers who attend a polling station to maintain the secrecy of voting and it prohibits them from communicating certain information to anyone, for example, the names of voters or the official mark. Section 66(3) prohibits anyone from certain conduct, for example, interfering with a voter when voting. Under section 66(6), it is an offence not to comply with the requirements and prohibitions set out in the section.

• Rule 37 of each Schedule includes among those who are entitled to attend a polling station “persons who are entitled to attend by virtue of any of sections 6A to 6D of the Political Parties, Elections and Referendums Act 2000” (see rule 37(1)(g)). The persons who are entitled to attend by virtue of those sections are representatives of the Electoral Commission and accredited observers (who are either individuals whose applications to observe have been granted by the Electoral Commission or representatives of organisations whose applications to observe have been granted by the Electoral Commission).

Where the poll at a principal area election is combined with the poll at a relevant election, the legal position is governed partly by these Rules and partly by the Representation of the People (Combination of Polls) (England and Wales) Regulations 2004 (S.I. 2004/294) (“Combination of Polls Regulations”). The role of the returning officer at the principal area election varies according to whether that returning officer is also “the co-ordinating returning officer”. This is defined in rule 5(4) of these Rules as the person who, under regulation 4 of the Combination of Polls Regulations, exercises functions specified in regulation 5 of those Regulations.

The effect of this depends on the combination. For example, where the poll at a parliamentary general election is combined with the poll at a principal area election, the returning officer at the parliamentary general election is the co-ordinating returning officer and exercises the functions specified in regulation 5 at the principal area election (as well as the returning officer’s usual functions at the parliamentary general election). By contrast, where the poll at a community election is combined with the poll at an ordinary principal area election, the returning officer at the principal area election is the co-ordinating returning officer and exercises the functions specified in regulation 5 at the community election (as well as the returning officer’s usual functions at the principal area election).

One consequence of this is that, in order to understand responsibilities for the exercise of functions under particular rules in Part 3 of Schedule 2, it is necessary to read both those rules and the Combination of Polls Regulations. To assist the reader, the rules in question include some signposts to the Combination of Polls Regulations. For example, rule 29 of Schedule 2 sets out the function of the returning officer to ensure a sufficient number of polling stations at the principal area election. If the returning officer at the principal area election is the co-ordinating returning officer, the returning officer at that election exercises this function in the usual way (and also exercises the comparable function at the other election in accordance with the Combination of Polls Regulations).

However, as has been explained, there are cases where the returning officer will not be the co-ordinating returning officer, for example, where the other election is a parliamentary general election. In that example, the returning officer at the parliamentary general election will be the co-ordinating returning officer and under the Combination of Polls Regulations will exercise the function of ensuring a sufficient number of polling stations at the principal area election (as well as at the parliamentary general election). Rule 29(4) therefore includes a signpost to those Regulations with the aim of assisting the reader.

The other functions in Part 3 of Schedule 2 that are sometimes exercisable under the Combination of Polls Regulations by the returning officer at a relevant election instead of the principal area returning officer are the following (and the relevant rules accordingly include signposts to assist the reader):

• the preparation of the corresponding number list under rule 23 or, if proceedings on the issue and receipt of postal ballot papers at the principal area election and the relevant election are not taken together, the preparation of Part 2 of the list;

• the publication of notice of the situation of polling stations etc. under rule 27(3) to (5);

• the issue of postal ballot papers under rule 28 where proceedings on the issue and receipt of postal ballot papers at the principal area election and the relevant election are taken together;

• the provision of polling stations under rule 29;

• the appointment of presiding officers and clerks under rule 30;

• the provision of equipment at polling stations under rule 32;

• the notification under rule 35 of the requirements of section 66(1), (3) and (6) of the 1983 Act;

• the marking of the postal voters and proxy postal voters lists under rule 36, where proceedings on the issue and receipt of postal ballot papers at the principal area election and the relevant election are taken together;

• the signing of certificates under rule 37(5) relating to the duties of staff of the returning officer;

• the authorisation under rule 38(3)(b) of individuals who may remove those engaging in misconduct from polling stations.

Part 4

Part 4 of each Schedule (rules 52 to 60 in Schedule 1 and rules 52 to 64 in Schedule 2) sets out the rules that govern the counting of votes and declaration of result at contested elections, including rules about who may attend, the practical arrangements at the count, the preliminary steps that must be taken, the method of counting, the rejection of ballot papers, re-counts and the steps that must be taken when the result is declared.

The content of the rules in Part 4 of Schedule 1 and the rules in Part 4 of Schedule 2 is broadly similar. Votes at the principal area election are counted in the same way regardless of whether the poll at the election has been combined with the poll at a relevant election. However, there are some differences in the content of the rules. This is because the rules in Part 4 of Schedule 2, which apply where the poll at the principal area election has been combined with the poll at a relevant election, need to distinguish between the position where the returning officer at the principal area election is the co-ordinating returning officer and the position where another returning officer is the co-ordinating returning officer. In particular, where the returning officer at the principal area election is the co-ordinating returning officer, the returning officer separates the ballot papers used at the combined poll according to each election (rule 55).

Where the returning officer at the principal area election is not the co-ordinating returning officer, the returning officer simply receives the ballot papers for the principal area election from the co-ordinating returning officer after their separation from the other ballot papers (rule 57). To assist with understanding, rule 52 provides an overview, setting out which rules apply where the principal area returning officer is the co-ordinating officer and which rules applies where the principal area returning officer is not.

Certain rules in Part 4 refer to other legislation. Where some explanation of that other legislation would be helpful, it is given below.

• Rule 53 of each Schedule includes among those who are entitled to attend a polling station “persons who are entitled to attend by virtue of any of sections 6A to 6D of the Political Parties, Elections and Referendums Act 2000” (see rule 53(1)(e)). As explained above, the persons who are entitled to attend by virtue of those sections are representatives of the Electoral Commission and accredited observers.

• Rule 53(6) of Schedule 1 and rule 53(8) of Schedule 2 requires the returning officer to make arrangements for everyone attending the counting of votes other than constables on duty to be given a notice setting out the provisions of section 66(2) and (6) of the 1983 Act. Section 66(2) requires every person attending the counting of votes to maintain the secrecy of voting and it prohibits them from ascertaining or attempting to ascertain the number or other unique identifying mark on the back of the ballot paper or communicating to anyone about the candidate for whom a particular vote has been given. Under section 66(6), it is an offence not to comply with the requirements and prohibitions set out in the section.

• Rule 54(8)(c) of Schedule 1 and rule 58(3)(c) of Schedule 2 refer to cases where steps for verifying the date of birth and signature of an elector or proxy voting by post have been prescribed by regulations under the 1983 Act. At the time when these Rules are made, it is the Representation of the People (England and Wales) Regulations 2001 that make provision for verification.

Part 5

Part 5 of each Schedule (rules 61 to 66 of Schedule 1 and rules 65 to 70 of Schedule 2) sets out the rules that govern what happens to ballot papers and other documents in use at elections, including rules about the delivery of documents to registration officers, the powers of courts to make orders relating to the documents and when they must be destroyed.

The content of the rules in Part 5 of Schedule 1 and the rules in Part 5 of Schedule 2 is broadly similar. There are minor differences because the rules in Schedule 2 (which apply where the poll at the principal area election has been combined with the poll at a relevant election) need to distinguish between the position where the returning officer at the principal area election is the co-ordinating returning officer and the position where another returning officer is the co-ordinating returning officer. In particular, where the returning officer is the co-ordinating returning officer, the returning officer has responsibility for delivering a wider range of documents to the registration officer (rule 66 of Schedule 2).

Part 6

Part 6 sets out the rules that govern what happens when a candidate dies. The rules ensure that proceedings at the election come to an end and also deal with consequential matters of administration (for example, to ensure that documents in use at the election are sent to the registration officer). As indicated by the sign-posting provision in rule 67(6) of Schedule 1 and rule 71(9) of Schedule 2, section 39 of the 1983 Act deals more generally with what happens where a candidate dies and, in consequence, a poll is countermanded or abandoned. It requires the returning officer to order a fresh election but also provides that fresh nominations are not required for candidates who remain validly nominated at that election.

Regulatory Impact Assessment E+W

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Rules. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefit of complying with these Rules. A copy can be obtained from the Local Government Democracy Division, Welsh Government, Cathays Park, Cardiff, CF10 3NQ and on the Welsh Government website at www.gov.wales.