Explanatory note

On 6 May 2022, the provisions of the Local Government and Elections (Wales) Act 2021 (“the 2021 Act”) relating to the single transferable vote system at the election of councillors to a principal council in Wales came into force. These provisions allow principal councils to decide to conduct elections using the single transferable vote system instead of the simple majority system (see, in particular, sections 7 to 9 of that Act).

Section 13 of the 2021 Act inserted section 36A of the Representation of the People Act 1983, which enables the Welsh Ministers to make rules for the conduct of local government elections in Wales. That power has been exercised to make the Local Elections (Principal Areas) (Wales) Rules 2021 (S.I. 2021/1459 (W. 374)) (“the 2021 Rules”). Those Rules set out how elections to principal councils must be conducted where the simple majority system is in use. They do not make provision for the conduct of elections where the single transferable vote system is in use.

These Rules (the Local Elections (Principal Areas) (Single Transferable Vote) (Wales) Rules 2023) therefore amend the 2021 Rules so that they provide for the conduct of elections where the single transferable vote system is in use. The 2021 Rules will continue to make provision about the simple majority system for the conduct of elections in principle areas which have not decided to use the single transferable vote system.

Rule 2 amends rule 3 of the 2021 Rules so that the terms “simple majority system” and “single transferable vote system” are added to the list in paragraph (3) of that rule. The effect of the amendment is that those terms have the meaning set out in section 6 of the 2021 Act.

Rule 3 amends Part 3 of Schedule 1 to the 2021 Rules, dealing with the conduct of the poll, to include provision for the single transferable vote system. Currently, Part 3 refers to a number of prescribed forms, including the form of ballot paper, which are not suitable for elections using the single transferable vote system because they contain instructions to voters to mark a cross [X] against the name of the candidate they are voting for. The amendments provide for alternative forms to be used at elections using the single transferable vote system. They also make alternative provision for the content of notices inside each voting compartment (so that, instead of being instructed to mark a cross, voters are given information about how to mark their first, second and third preferences etc.).

Rule 4 inserts a new Part 4A in the 2021 Rules, dealing with the counting of votes at elections using the single transferable vote system. The existing Part 4 will continue to apply at elections using the simple majority system and is renamed to reflect its scope.

Chapter 1 of the new Part 4A contains introductory provisions. The provision made for attendance at the counting of votes (rule 60B), for the initial counting of ballot papers and verification etc. (rule 60C) and for the returning officers’ general duties in counting the votes (rule 60D) is similar to that made by the existing Part 4 for elections using the simple majority system. The provision made for the rejection of ballot papers is materially different (rule 60E). In particular, the grounds for rejection differ in certain respects to take account of the position at elections using the single transferable vote system where voters must indicate a first preference and may indicate second and subsequent preferences.

Chapter 2 of the new Part 4A sets out the rules used to determine the result at elections using the single transferable vote system. These rules are based on a system that is sometimes described in literature about electoral systems as “the classic Gregory method” or “the simple Gregory method”. The key aspects of the rules are the following.

• The first preference votes on valid ballot papers are counted (rule 60G).

• The “quota” is calculated. This is the number of votes needed to secure the return of a candidate as a councillor. Rule 60H sets out how the quota is calculated and is demonstrated using the following formula:

  $$\left(\frac{\mathrm{total number\; of valid votes}}{\mathrm{number of seats to be filled at election }\pm 1}\right)\pm 1$$

• Rule 60I sets out that a candidate is treated as elected if, at any stage of the count, the number of votes for the candidate equals or exceeds the quota.

• There is provision for votes to be transferred where the number of votes for a candidate exceeds the quota (that is, where the candidate is therefore treated as elected and has a surplus).

  • Where first preference votes for a candidate exceed the quota, rule 60J sets out what happens. In essence, the successful candidate’s ballot papers are examined to see whether the voter has expressed a “next available preference”. This is defined in rule 60F and is broadly a next preference (in consecutive order) for a candidate who is still in the race (that is, who has been neither treated as elected nor excluded). Ballot papers expressing a next available preference are referred to in the rules as “transferable papers” and each is transferred to the candidate for whom the preference is given. The vote on each transferred ballot paper has a value which is calculated in accordance with rule 60J(5) (by taking the candidate’s surplus and dividing it by the total number of ballot papers being transferred).

  • In other cases where a candidate has a surplus (for example, where a candidate has a surplus following the transfer of first preference votes under rule 60J), rule 60K sets out what happens. In this case, the returning officer examines only the ballot papers that were last transferred to the successful candidate (in the example, those transferred under rule 60J). These ballot papers are examined to see whether the voter has expressed a next available preference. Each ballot paper expressing a next available preference is transferred to the candidate for whom the preference is given. The vote on each transferred ballot paper has a value which is calculated in accordance with rule 60K(5). This again involves dividing the candidate’s surplus by the total number of ballot papers being transferred but there is an additional step which is intended to ensure that the value is not greater than the value of the vote on the ballot paper when it was received by the candidate from whom it is now being transferred (see step 3 in rule 60K(5)).

  • Rules 60L, 60M and 60N deal with ancillary matters relating to transfers. In particular, rule 60L deals with cases in which transfers need not take place, rule 60M deals with the order of transfers where two or more candidates have the same surplus and rule 64N deals with the records that the returning officer is required to make.

• If vacancies remain to be filled after all transfers of surpluses have taken place, the rules provide for the candidate with the lowest number of votes to be excluded (rule 60O). The excluded candidate’s votes are then redistributed. This takes place in stages.

  • The first stage involves the transfer of the excluded candidate’s first preference votes under rule 60O. The returning officer examines the ballot papers on which those votes were given to see whether the voter has expressed a next available preference. Each ballot paper expressing a next available preference is transferred to the candidate for whom the preference is given, at a transfer value of 1.

  • If vacancies remain following this, the returning officer then sorts the excluded candidate’s other ballot papers into groups according to the transfer value at which the votes were received by the excluded candidate (rule 60P). Beginning with the group of the highest value, the returning officer examines the ballot papers to see whether the voter has expressed a next available preference. Each ballot paper expressing a next available preference is transferred to the candidate for whom the preference is given, at the value that the vote on the paper had when it was received by the excluded candidate.

  • Rule 60R deals with ancillary matters relating to exclusions, such as the records that the returning officer is required to make.

• Rule 60S sets out special rules that apply to the filling of last vacancies. These rules are intended to ensure that the returning officer is not required to continue counting when it would be pointless to do so. For example, the rule provides that where the number of candidates still in the race is equal to the number of vacancies remaining unfilled, those candidates are treated as elected.

• Rules 60T to 60W deal with supplementary matters. Rule 60T enables a candidate or election agent to request, at the end of each stage of the count, a re-count of that stage. The returning officer must comply with the request unless it is unreasonable. Rule 60U sets out rules about the order in which candidates are treated as elected (with the general rule being that this is the order in which their respective surpluses were transferred). Rule 60V provides for the returning officer’s decisions to be final (subject to review on an election petition). Rule 60W deals with the declaration of the result and related matters.

Rule 6 inserts Schedules 1 to 4 which insert new Appendices 2A, 4A, 5A and 6A in the Appendices to Schedule 1 to the 2021 Rules. New forms relating to ballot papers, postal voting statements, poll cards and guidance for voters are inserted. These contain appropriate instructions for elections using the single transferable vote system.

Rules 7 to 10 make amendments to Schedule 2 to the 2021 Rules (dealing with the position where the poll at a principal council election is combined with the poll at a relevant election). As the provision made by these Rules is comparable to that made by rules 3 to 6 in respect of Schedule 1, no additional explanation is included.

Rule 11 makes a technical amendment to rule 54(3) of the 2021 Rules.

Regulatory Impact Assessment

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 Elections Division, Welsh Government, Cathays Park, Cardiff, CF10 3NQ and on the Welsh Government website at www.gov.wales.