The Senedd Cymru’s Member Accountability and Elections Bill, passed on 17 March 2026, introduces reforms to Senedd Member accountability and electoral integrity. However, by leaving much of the detail to future secondary legislation, it raises constitutional, institutional, and human rights questions.
The Bill aims to enhance the accountability of Senedd Members “by strengthening the systems that currently exist that regulate and sanction their behaviour and conduct.” It also seeks to address misinformation during elections. The Bill has three main parts. Part 1 introduces a recall system, allowing voters to remove Members between elections; Part 2 reforms the Senedd’s standards procedures; and Part 3 requires Welsh government ministers to introduce, in future, a criminal offence of making or publishing false or misleading factual statements during elections.
Part 1: Recall
Part 1 introduces a recall system like that used for MPs in the UK Parliament, based on recommendationsfrom the Senedd Standards of Conduct (SCC) Committee. A recall poll can be triggered in two situations:
A: where a Member is convicted of a criminal offence and receives a prison sentence of 12 months or less (longer sentences already lead to disqualification).
B: where the Senedd votes to have a recall poll following a report from the SCC Committee recommending recall.
In a recall poll, voters decide whether the Member should remain in office. Under the Senedd’s new closed-list proportional representation system (from May 2026), if a Member is removed, their seat is filled by the next person on their party’s list (except for independent Members). Evidence to the Member Accountability Bill Committee, which scrutinised the Bill, noted this approach may limit voters’ ability to choose replacement candidates, especially where they see political parties as sharing responsibility for Members’ conduct. Several respondents to consultation, including Keith Bush KC (former Chief Legal Adviser to the Senedd), Transparency International and the Electoral Reform Society Cymru, warned that this risks confusion and reduced voter control, and in turn may weaken trust in politics.
Part 2: Standards of conduct
Part 2 reforms the Senedd’s standards procedures: adding lay members to the SCC Committee to increase independent representation and giving the Standards Commissioner the power to start investigations on their “own initiative”. Both changes were recommended by an SCC Committee report on Deliberate Deception. The Bill will also see the standards committee placed on a statutory footing. This poses constitutional questions. On one hand, there is a principle that parliaments should be free regulate their own affairs. On the other, a statutory basis for the committee may help ensure effective implementation of the proposed recall system, which currently lacks detail.
Part 3: A new criminal offence
Part 3 is the most controversial element. It places a duty on Welsh ministers to create, in future, an offence of making or publishing false or misleading statements of fact during elections. Crucially, the Bill itself does not define the offence. Instead, it leaves key details, such as what counts as a statement of fact, whether “misleading” statements are included, who the offence applies to, and whether intent or recklessness is required, to future secondary legislation.
Constitutional issues
Separation of powers and delegated legislation
The Bill raises questions about the balance of power between the Senedd and Welsh government ministers, and between matters that should be covered in primary legislation, delegated legislation, or committee guidance. The Bill says that the Senedd SCC Committee cannot recommend a recall vote for a Member unless it has first created guidance and consulted the public on it. This guidance must explain the factors the Committee will consider when making decisions. Concerns have been raised that at least some of these factors should have been written into the Bill itself rather than left to be written into guidance later.
The Accountability Committee and the Senedd’s Legislation, Justice and Constitution (LJC) Committee have both highlighted the need to balance flexibility with the certainty and transparency required for a robust recall system. Evidence to the former also argued that key principles around what would trigger a recall should have been included directly in the Bill, rather than left to SCC Committee guidance. There has also been some debate around whether it matters that the Committee is not legally required to issue its guidance within any set period, and whether requiring this (a recommendation that was rejected) would constitute inappropriate interference with how an independent political body conducts its work.
The Bill also gives wide powers to Welsh ministers. Under section 11, they may make regulations on the detailed rules for how recall votes work, including voting procedures, campaign limits, and how these votes can be organised alongside other elections. The next Senedd will only be able to approve or reject those regulations – it will not be able to amend them.
The Senedd LJC Committee also observed that the drafting of section 18 of the Bill, relating to the role and make-up of the Senedd SCC Committee, is “significantly more prescriptive” than sections 11 and 24 delegating powers to Welsh ministers. The LJC Committee recommended that ministers should be required to make recall regulations, rather than simply being permitted to make them. In this, the Committee noted the Counsel General’s own observation that matters of convention are not always complied with.
Use of secondary legislation to a create criminal offence
The use of secondary legislation is most concerning in relation to Part 3 of the Bill. Here, section 24 amends section 13 of the Government of Wales Act 2006, placing a duty on Welsh ministers to create a future offence of the making or publishing of false or misleading statements of fact before or during an election. A futureConduct Order (secondary legislation) issued under section 13 would need to include this offence, which would also apply in relation to recall polls. As the Senedd LJC Committee has noted, the Bill contains “no definition on the scope of any offence or to who and how it would apply”, and therefore “breaches fundamental and long-standing constitutional principles in that new criminal offences should not be set out in secondary legislation”. In evidence to the Senedd, Lord Thomas (the former Lord Chief Justice of England and Wales) similarly suggested that Westminster would strongly favour primary legislation. In practice, however, criminal offences are often created in secondary legislation.
Understandably, much debate in the Senedd focused on the urgent felt need to tackle lying by politicians. The crucial value of freedom of expression was also raised in debate, with a focus on proportionality, and protecting legitimate political speech. However, how this is to be achieved in law has been left for future Welsh ministers to determine, at some unspecified date in advance of the 2030 Senedd elections.
Competence, justice and human rights
In scrutiny, the Counsel General was pressed on whether the decision not to provide for the new offence within the Bill, as recommended in evidence including by members of the Criminal Bar, related to concerns over legislative competence. In her response, and with reference to an earlier Statement of Policy Intent, the decision to use secondary legislation appears to reflect a pragmatic approach rather than a definitive conclusion about competence. Notably, criminal law in general is a reserved matter. The Counsel General expressed a preference for including the new criminal offence in a Conduct Order (secondary legislation) so that the suite of Senedd electoral offences sit together, rather than as a stand-alone offence being created through the Bill. This can be understood as an attempt to ensure coherence and accessibility within the framework of electoral law. At the same time, it raises questions about the distinction between the legal basis on which offences are created and the practical advantages of consolidating them within a single instrument (a Conduct Order), particularly given that other electoral offences have been established through primary legislation.
Throughout scrutiny the Counsel General emphasised the legal complexity of the Bill, describing it as operating “right on the edge” of competence and as testing the boundaries of the Senedd’s legislative powers. This reflects the undoubted challenge of legislating in an area where devolved competence, electoral law and criminal law intersect. Part of this complexity may relate to timing: for the offence to fall within competence, it must be sufficiently connected to the electoral context, rather than constituting a more general prohibition.
However, competence issues appeared largely focused on the need to act compatibly with the European Convention on Human Rights (ECHR), an issue that is now left for ministers to address in detail in the future. Drafting the offence so as not to constitute a disproportionate interference with article 10 (freedom of expression) and/or article 3 of protocol 1 (free and fair elections) was not attempted in the Bill itself, not least as there was insufficient time to properly consult on detail before the end of the Senedd term. Members of the Criminal Bar did, however, provide an indicative draft in evidence.
The Welsh government has not produced a justice impact assessment for Part 3 of the Bill, nor provided an analysis of its human rights compatibility, admitting that the Bill itself does not create an offence. The Accountability Committee expressed concern that the Welsh government was therefore asking the Senedd to endorse the later “creation of a new serious criminal offence which is undefined and could have ‘life-defining’ repercussions, limiting speech during an election without careful consideration.” The Committee concluded: “The approach taken is not appropriate from a practical or a constitutional point of view.”
What happens next?
The approach has, nevertheless, been taken, and the Senedd has endorsed the Bill largely unamended. Only one Member, representing Reform UK, voted against. The Bill’s pioneers Plaid Cymru are, according to the most recent YouGov poll, likely to win the most seats in the Senedd but would be just shy of a majority. Reform UK are in second. This could lead to significant divisions in the Senedd, which may impact the implementation of the Bill post-election.
The Counsel General and Secretary of State for Wales have both advised that they will not be referring the Bill to the Supreme Court. However, in implementing the Bill, the future Welsh government will need to conduct a full justice impact assessment and give detailed consideration to the human rights implications of a new offence. Narrow drafting could neuter the policy goals, but drawing the offence too widely could hinder proper democratic discourse during an election campaign.
Either approach, especially the latter, might well lead to a legal challenge based on the ECHR, which could prove a key first battleground in the newly configured Senedd. Regardless, the new Welsh government should consult widely on proposed regulations about recall polls under section 11, which would at least assist with transparency and boost trust in the process.
A broader concern is whether the Welsh government and the Senedd have had time to fully think through the policy implications before legislating. That whether in the rush to be the first to implement laudable ground-breaking law, core constitutional principles may have been given insufficient weight. The next Welsh government will have to live with the consequences, and balance not only free speech and trust in politics, but also innovation and respect for established constitutional principles.
Sarah Nason.
Sarah Nason is Reader in Law at Bangor University. Her research focuses on constitutional and administrative law, judicial review, and administrative justice, with particular expertise in the constitutional development of Wales and questions of access to justice.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.