Why has gender balance been removed from the Senedd Reform Bill?

Martin Shipton

Culture wars can rear their heads in the most unlikely of places.

Here in Wales we could be heading for one in a context many people would see as dry as dust: the electoral system used to elect Senedd Members.

This Monday – September 18 – the Welsh Government will publish its Senedd Reform Bill, bringing forward a number of well-trailed proposals including an increase in the number of Senedd Members from 60 to 96 and a change in the electoral system so it is fully proportional.

One element of the proposals, agreed by Labour and Plaid Cymru, will not, however, be in the Bill: the commitment to have a gender-balanced Senedd incorporated into law.

It’s not that the parties have lost their enthusiasm for such a reform. But they’re not yet sure how to introduce it without opening up the potential for legal challenges. For that reason the provision for gender balance will not be in the Bill – although the Welsh Government insists that a second Bill, covering that very subject, will be published before the end of the year.

When the first Bill is passed – as it will be – we’ll know for sure that the number of Senedd Members will go up from 60 to 96 at the next election in 2026. There will inevitably be a lot of populist whingeing from the Conservative group about the decision to increase the size of the Senedd during a cost-of-living crisis. In reality they’d have whinged even if we were living in a land of plenty.

But the fact is that the extra cost entailed in increasing the size of the Senedd will be insignificant and the potential benefits from better scrutiny should more than compensate – in theory at any rate.

New electoral system

We’ll also have a new electoral system, ditching the current two-tier model which has 40 constituency MSs elected by first-past-the-post and 20 “top-up” regional MSs elected by a system of proportional representation. Under the new arrangements, we’ll have 16 “super constituencies”, each of which will elect six MSs.

Controversially the electoral system will give more power to political parties. Candidates will be listed in an order chosen by the parties, and voters will only be able to vote for the party list, without the ability to express a preference for particular candidates.

While I agree with expanding the size of the Senedd, I think it’s deeply unfortunate that voter choice is being restricted by the “closed list” system of PR.

It will give enormous power to the parties, to the disadvantage of ordinary voters. We have seen recently how the Labour Party centrally has thwarted the wishes of some local parties to select as candidates people who may be regarded as potentially troublesome by the leadership faction. “Potentially troublesome” can include individuals who, while essentially loyal to the party, may be prepared on occasion to voice criticism of the stance favoured by the leadership at any particular time.

As we have seen, Sir Keir Starmer has made numerous policy U-turns. He wants MPs who will back him come what may, regardless of policy gymnastics. Paradoxically he’s happy with MPs who are inconsistent – so long as their inconsistencies mirror his own.

Control freakery

Wales has got off relatively lightly in comparison with England in terms of control freakery in the selection of candidates, although it has happened both in Welsh Labour and Plaid Cymru, where a popular local candidate in Llanelli was vetoed by Leanne Wood when she was the party leader.

If the main purpose of increasing the size of the Senedd is to improve scrutiny of the government, we surely want MSs who are independent minded and happy to criticise ministers from their own party.

There’s no denying that the closed list system militates against such an outcome. It will, however, be introduced because Plaid Cymru was told by Mark Drakeford that it was the only option on the table.

What then of gender balance, and why exactly has it been excluded from the Senedd Reform Bill?

Officially the Welsh Government is quite taciturn about the matter. When I asked for a formal explanation, I got a terse statement which said: “The Gender Quota Bill is still in development, and the detail will be published at the end of the year.”

I’d previously heard there was concern about a possible legal challenge to the gender balance element of the reforms. It would therefore make perfect sense to separate it out from the other proposals, so that the whole agenda wasn’t jeopardised by a part that could be hived off to another piece of legislation.

Asked what difficulties the Gender Quota Bill was posing, a senior source who didn’t want to be named told me: “It’s work in progress. It’s a complex area because of the Equality Act 2010 so a lot is still to be worked out.”

Protected characteristics

The main theme of the Equality Act is eliminating discrimination on the basis of eight different kinds of protected characteristics. Two of the eight seem relevant in the context of the Gender Quota Bill.

Section 11 of the Equality Act states: “In relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to a woman.”

Section 7.1 of the Act states: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

The Welsh Government has made it clear that it supports transgender rights and that this includes the ability of individuals to self-identify as men or women.

Whether that is compatible with the definition of gender reassignment in the Equality Act 2010 is a matter for lawyers to argue over. I certainly don’t feel qualified to make a judgement.

What we can be sure of is that there will be huge disagreements along culture war lines over this issue, regardless of the legal arguments.

For supporters of trans rights, like the Welsh Government, the wish will be to allow people to self-identify as their gender of choice, regardless of their biological make-up.

For those radical feminists referred to by some trans activists as “terfs”, the battle will be to keep the seats allocated to women for biological females – those referred to by some trans activists as “cis women”.

Nervous

Behind the scenes, the Welsh Government is clearly nervous about the possibility of a legal challenge by the UK Government. There is, of course, the unfortunate precedent of what happened when the Scottish Parliament backed self-identification: it was overruled by Westminster.

Could the same happen in relation to the Gender Quota Bill?

I put the question to David TC Davies, the Tory Secretary of State for Wales. He responded: “Personally, what I’d say is this. The idea of having 50% female and male representation is a good one. It’s a perfectly laudable aim which I concur with.

“I don’t like the idea of doing it through lists and other things. We’ve all got to be thinking hard about this – how we reach that. And that includes the Conservative Party as much as Labour or anyone else.

“But the whole purpose of a Bill like this is to try and ensure better representation for women who traditionally have not been equally represented in elected organisations of one sort and another. So if you enable somebody who’s physically male to just announce that they’re female, you’re undermining the whole purpose of the laudable aim which you’re trying to achieve.

“I know there will be a lot of people who will say they find the whole thing quite amusing really if they tie themselves up in knots about it. But there is a serious issue here, which is that if you have self-identification, you enable people who are physically male, and basically are male, to enter into women-only spaces, whether that be prisons or hospital wards or toilets or changing rooms, or indeed elected parliamentary bodies that are seeking equal representation. And that’s undermining women’s rights. I would suggest the Welsh Labour government’s focus might be better spent elsewhere.”

Asked how people who identify as non-binary might enter the equation in terms of a gender-balanced Senedd, Mr Davies said: “I think my only quote is ‘God only knows’, because I’ve got no idea how that will play out. I’ll sit back and watch that one with interest.”

It’s no wonder the Welsh Government removed the gender balance proposal from the Bill to be announced on Monday. It will be fascinating to see how they seek to resolve it in the second Bill.

I certainly don’t envy them.