The Local Elections (Miscellaneous and Consequential Amendments) (Wales) Regulations 2022

EXPLANATORY NOTE

(This note is not part of these Regulations)

Regulation 1 provides for the title and commencement of these Regulations.

Regulation 2 amends the Local Elections (Principal Areas) (Wales) Rules 2021 (S.I. 2021/1459 (W. 374)) and the Local Elections (Communities) (Wales) Rules 2021 (S.I. 2021/1460 (W. 375)) under the powers conferred by section 36A(1) to (4) of the Representation of the People Act 1983 (c. 2) (“the 1983 Act”). The amendments add, to the list of grounds on which the returning officer may hold a nomination paper to be invalid, that the nomination paper does not include the declarations that the candidate is required to include in their nomination paper, signed by the candidate.

Regulation 3 makes further amendments of the Local Elections (Principal Areas) (Wales) Rules 2021 and the Local Elections (Communities) (Wales) Rules 2021 under the powers conferred by section 36A(1) to (4) of the 1983 Act. The main amendments are to the rules governing the procedure on the close of the poll (rule 51 in each Schedule of the two sets of Rules). These amendments enable the marked copies of the registration records and list of proxies and the marked corresponding number list to be placed in packets and sealed at a place other than the polling station. In consequence of this, rule 30 of each Schedule is also amended so that the presiding officer may authorise the clerks appointed by the returning officer to act in any place where the presiding officer is carrying out functions.

Regulation 4 amends rule 31 of Schedule 2 to the Local Elections (Communities) (Wales) Rules 2021 under the powers conferred by section 36A(1), (3) and (4) of the 1983 Act. Schedule 2 sets out the rules that apply where the poll at a community election is combined with the poll at certain other elections. The amendments provide for the issue of official poll cards at the community election to be at the request of the council, except for poll cards issued to electors with anonymous entries which must be issued regardless of whether there is a request. The amendments correct an oversight in those Rules and mean that the position as respects the issue of poll cards at community elections is the same whether or not the poll is combined.

Regulation 5 makes amendments relating to the timetable for elections. Paragraphs (2) and (3) amend the Local Elections (Principal Areas) (Wales) Rules 2021 and the Local Elections (Communities) (Wales) Rules 2021 so as to add, to the list of days that are disregarded in calculating periods of time in the election timetable, days appointed for public thanksgiving or mourning. The amendments correct an omission in those Rules and are made under the powers conferred by section 36A(1) to (4) of the 1983 Act. Paragraph (1) makes a related amendment to section 40(1) of the 1983 Act and likewise corrects an omission there. The effect of the amendment is that, where the poll at an ordinary local government election in Wales would fall on a Saturday, a Sunday, Christmas Eve, Christmas Day, Good Friday, a bank holiday or a day appointed for public thanksgiving or mourning, the election is postponed until the first day afterwards that is not one of those days. This amendment is made under the powers conferred by section 36A(5) and (6) of the 1983 Act.

Regulation 6 amends sections 67, 69 and 70 of the 1983 Act under the powers conferred by section 36A(5) and (6) of that Act. Under rule 9(6) of each of Schedules 1 and 2 to the Local Elections (Principal Areas) (Wales) Rules 2021, it is possible for a candidate at an election of councillors to a county or county borough council in Wales to include a statement in their home address form that their home address must not be made public. Where the candidate does this, their home address is not included in the statement of persons nominated or on the ballot paper. However, some candidates also act as their own election agent, which means that their home address would fall to be published under section 67(6) of the 1983 Act. As this is inconsistent with the policy of allowing candidates to keep their home address private, regulation 6(2) amends section 67 to ensure that, where a candidate acting as their own election agent has stated in their home address form that the home address must not be made public, the home address is not published under section 67(6). Instead, only basic information, generally the name of the local government area in which the candidate lives, is published.

Regulation 6(3) and (4) makes related amendments to section 69 of the 1983 Act to deal with the situation where the candidate uses their home as their office, with the consequence that their home address would fall to be declared as their office address and included as such in the public notice under section 67(6). The amendments allow the candidate in this situation to provide an address in England or Wales other than their home address (“a correspondence address”), which may then be used by electoral administrators and others to serve notices etc. relating to the election. Where the candidate does this, the correspondence address is published in the notice under section 67(6) (rather than the office address) and notices etc. delivered to the correspondence address are deemed to be served in the same way that they would be if delivered to the office address.

Regulation 6(5) and (6) amends section 70 of the 1983 Act which deals with the position of a candidate who becomes their own election agent by default, generally because they have not appointed anyone as their election agent. The amendments provide for the candidate to be deemed to have an office at the home address given in their home address form if that address is in England or Wales and otherwise at the address by virtue of which they established their qualification to be a candidate (“the qualifying address”). The amendments also deal with the application of sections 67 and 69 in this situation. Section 67 applies in the usual way. However, the candidate will not have any opportunity to provide an alternative correspondence address under section 69. In consequence, the candidate’s deemed office address will always be included in the public notice given.

Regulation 7 is made under the powers conferred by section 36A(5) and (6) of the 1983 Act. Regulation 7(1) introduces Schedule 1 which amends the Local Elections (Principal Areas) (England and Wales) Rules 2006 (S.I. 2006/3304) so that they apply only in relation to England. Provision for the conduct of local elections for principal areas in Wales is now made by the Local Elections (Principal Areas) (Wales) Rules 2021. Regulation 7(2) introduces Schedule 2 which amends the Local Elections (Parishes and Communities) (England and Wales) Rules 2006 (S.I. 2006/3305) so that they apply only in relation to parishes in England. Provision for the conduct of local elections for communities in Wales is now made by the Local Elections (Communities) (Wales) Rules 2021.

Regulation 8 is made under the powers conferred by section 36A(5) and (6) of the 1983 Act. It revokes the Local Elections (Principal Areas) (Welsh Forms) Order 2007 (S.I. 2007/1015), the Local Elections (Communities) (Welsh Forms) Order 2007 (S.I. 2007/1013) and instruments amending those Orders. The Orders are now spent in consequence of the provision made by the Local Elections (Principal Areas) (Wales) Rules 2021 and the Local Elections (Communities) (Wales) Rules 2021.

Regulation 9 introduces Schedule 3 which amends Schedule 4 to the National Assembly for Wales (Representation of the People) Order 2007 (S.I. 2007/236) (“the 2007 Order”). Schedule 4 to the 2007 Order makes provision about what happens where the poll at a Senedd Cymru election is combined with the poll at a local government election in Wales.

Part 1 of Schedule 3 amends Part 1 of Schedule 4 to the 2007 Order in consequence of provisions of the Local Government and Elections (Wales) Act 2021 (asc 1) (“the 2021 Act”). For example, paragraph 2 of the Schedule changes a reference to section 36 of the 1983 Act to a reference to section 36A of that Act, a change that is necessary because amendments made by section 13 of the 2021 Act have the effect that the power to make rules governing the conduct of elections in Wales is now conferred by section 36A rather than section 36. The amendments in Part 1 are made under the powers conferred by section 173(1) and (2) of the 2021 Act.

Part 2 of Schedule 3 substitutes a new Part 3 of Schedule 4 to the 2007 Order, setting out the application with modifications of provisions of the Local Elections (Principal Areas) (Wales) Rules 2021 where the poll at a principal area election is combined with the poll at a Senedd Cymru election. This is necessary because the Local Elections (Principal Areas) (England and Wales) Rules 2006 no longer apply in relation to Wales. The amendments in Part 2 are made under the powers conferred by section 36A(5) and (6) of the 1983 Act.

Part 3 of Schedule 3 substitutes a new Part 4 of Schedule 4 to the 2007 Order, setting out the application with modifications of provisions of the Local Elections (Communities) (Wales) Rules 2021 where the poll at a community election is combined with the poll at a Senedd Cymru election. This is necessary because the Local Elections (Parishes and Communities) (England and Wales) Rules 2006 no longer apply in relation to Wales. The amendments in Part 3 are made under the powers conferred by section 36A(5) and (6) of the 1983 Act.

Regulation 10 amends regulation 56(3B) and (3C) of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) and is made under the powers conferred by paragraphs 4(2)(c) and 6(7) and (8) of Schedule 4 to the Representation of the People Act 2000 (c. 2). Regulation 56(3B) and (3C) was inserted by regulation 8 of the Local Government (Coronavirus) (Postponement of Elections) (Wales) (No. 2) Regulations 2020 (S.I. 2020/1399 (W. 310)) and, under regulation 8(4), the regulation would expire at the end of 3 December 2022. Regulation 56(3B) and (3C) enabled certain applications relating to proxy voting to be made up until 5 p.m. on the day of the poll at a local government by-election in Wales on grounds related to the Covid-19 pandemic. The regulation was subsequently amended by the Representation of the People (Amendment) (Wales) (Coronavirus) Regulations 2021 (S.I. 2021/193 (W. 44)) and the Representation of the People (Amendment) (Wales) (Coronavirus) (No. 2) Regulations 2021 (S.I. 2021/1247 (W. 319)), with the latter Regulations extending the application of the amendments to by-elections the poll for which falls before 28 March 2022. Regulation 10(2) and (3) makes further amendments to extend the application of the amendments to all local government elections in Wales the poll for which falls before 31 May 2023. Regulation 10(4) makes consequential amendments, including the omission of regulation 8(4) of the Local Government (Coronavirus) (Postponement of Elections) (Wales) (No. 2) Regulations 2020.

Regulation 11 introduces Schedule 4 which makes further consequential amendments.

• Paragraph 1 omits provisions of the 2021 Act which are now spent. These amendments are made under the powers conferred by section 36A(5) and (6) of the 1983 Act.

• Paragraph 2 of that Schedule amends regulation 6 of the Representation of the People (Combination of Polls) (England and Wales) Regulations 2004 (S.I. 2004/294). This is necessary as provision about the expenses of returning officers at local elections in Wales is now made by section 36C of the 1983 Act (as inserted by paragraph 2(5) of Schedule 2 to the 2021 Act). These amendments are made under the powers conferred by section 173(1) and (2) of the 2021 Act.

• Paragraph 3 of that Schedule amends regulation 4 of the Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012 (S.I. 2012/1918) to add references to rule 55 of each of the Local Elections (Principal Areas) (Wales) Rules 2021 and the Local Elections (Communities) (Wales) Rules 2021 (dealing with the separation of ballot papers at combined polls). This is necessary because the existing references to provisions of the Local Elections (Principal Areas) (England and Wales) Rules 2006 and the Local Elections (Parishes and Communities) (England and Wales) Rules 2006 will no longer apply in relation to Wales. These amendments are made under the powers conferred by section 36A(5) and (6) of the 1983 Act.

Regulation 12 makes transitional provision so that relevant revocations and other amendments made by the Regulations do not affect the conduct of an election of councillors to a county council, county borough council or community council in Wales where the poll at the election takes place before 5 May 2022. This regulation is made under the powers conferred by section 36A(5) of the 1983 Act.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. 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.