Commentary on Sections Part 3: Advice of Electoral Commission
90.This Part broadly follows similar provisions to be found in Part 2 of the Greater London Authority (Referendum) Act 1998.
91.In relation to a region where an assembly referendum has been held and where the Secretary of State proposes to establish an elected assembly, section 21 requires the Secretary of State to direct the Electoral Commission to provide advice on one or more of the matters set out in subsection (3). These matters relate principally to the electoral areas for a regional assembly. A direction (under subsection (2)) must be made within two years of the date on which the assembly referendum was held. The effect of section 26 of this Act is that the Secretary of State may propose the establishment of an elected regional assembly (in this case for the purposes of section 21) regardless of whether an enactment is in force conferring power on him to establish such assemblies.
92.Subsection (4) enables a direction under this Part to require the Electoral Commission to give advice in respect of a specified number of options. For example, this power might be used in a situation where there is a legal challenge to the result of a local government referendum but the assembly referendum itself is not subject to challenge and the Secretary of State proposes to establish an assembly. In that situation, it might be appropriate for the Electoral Commission to start preparing its advice on electoral matters relating to the assembly. But it would need to do so on the basis of different potential local government options, since the Secretary of State would not be able to indicate what would be likely to be implemented in the area in which the local government referendum is subject to challenge.
93.Section 22 sets out the procedure for the preparation and submission of advice by the Electoral Commission.
94.Section 23 sets out matters to which the Electoral Commission is to have particular regard when preparing its advice. In considering the need to secure that the numbers of electors in each electoral area are broadly similar, the Electoral Commission is expressly required to take account, where appropriate, of special geographical considerations. A similar provision is to be found, for example, in rule 2 in paragraph 8(1) of Schedule 1 to the Government of Wales Act 1998. This is designed to address problems that could arise if there were no regard, for example, to the fact that an area is sparsely populated. For a rural electoral area to have a similar number of electors to an urban electoral area in the same region, the rural area would need to be much larger. This could make it more difficult for its assembly member to represent the needs of the whole area. So in such a case, the need for effective representation of the rural area could outweigh the need for similarity in numbers of electors between areas.