Readers may recall that the Secretary of State for Wales published her proposed referendum question on 23 June (the Wales Office news release is here, and my previous posts about the referendum question and its timing are HERE and HERE). The question is presently open for consultation, with responses due to be submitted to the Electoral Commission at email@example.com by 23 July.
The English version of the question proposed by the Secretary of State is as follows:
At present, the National Assembly for Wales (the Assembly) has powers to make laws for Wales on some subjects within devolved areas. Devolved areas include health, education, social services, local government and environment. The Assembly can gain further powers to make laws in devolved areas with the agreement of the Parliament of the United Kingdom (Parliament) on a subject by subject basis.
If most people vote Yes in this referendum, the Assembly will gain powers to pass laws on all subjects in the devolved areas. If most people vote No, then the present arrangements, which transfer that law-making power bit by bit, with the agreement of Parliament each time, will continue.
Do you agree that the Assembly should now have powers to pass laws on all subjects in the devolved areas without needing the agreement of Parliament first?
I’ve just responded to the consultation. This is the text of my letter to the Electoral Commission about the question:
These two questions are substantially similar, and wrestle with the difficult task of explaining the extremely complicated issue to a wide, lay, public. This creates complex wording which is inevitably unsatisfactory, because so much information is being compressed into a small number of words. Both the proposed questions seek to explain the issues in terms which are mean to be accessible. However, they still appear unlikely to be clear to the general public (your own testing of questions will show whether this is right or not), while over-simplifying the issues involved and so risking being misleading. The proposed questions also fail to be adequately clear about the very simple point at issue in a referendum – whether the legislative powers that apply under Part 4 of the Government of Wales Act 2006 should come into force or not, while falling short of the sort of precision that lawyers would normally expect.
I have the following comments on the question proposed by the Secretary of State:
- It uses language that is inconsistent with that of the 2006 Act, referring to ‘areas’ and ‘subjects’ instead of ‘matters’ and ‘fields’. This means that the question is legally less precise, and therefore ambiguous. It is hard to see how there will be any gain in public understanding of the issues to compensate for the loss of precision involved. This is more likely to confuse those who have learned the terminology used in Act. (This problem also applies to the question suggested by the First Minister.)
- The wording of the second sentence of the first paragraph of the preamble may imply that the consent of the UK Parliament is needed for the Assembly to legislate. (It is ambiguous on the point.) The question itself is less ambiguous, as it clearly does imply that Parliamentary approval of legislation is needed on a case-by-case basis. In that respect, it is misleading. The correct position is, of course, that the conferral of legislative power requires the assent of Parliament, but that once conferred no further approval of devolved legislation by Parliament is needed provided the legislation is within the legislative powers of the Assembly. The question clearly needs altering to address this, which could be done by deleting the words ‘without needing the agreement of Parliament first’. In addition, the ambiguity needs to be removed from the preamble.
- In the second sentence of the second sentence of the preamble, the reference to conferral of powers ‘bit by bit’ may imply that this in some sense may ultimately approximate to the sort of legislative powers that are set out in Schedule 7. This would be misleading, as while it is a theoretical possibility, the way Schedule 5 to the Act has developed belies that. This could be addressed by simply deleting the phrases ‘which transfer that law-making power bit by bit, with the agreement of Parliament each time’.
Rather than seek to explain the whole background to the referendum in the preamble (as the questions prepared by the Secretary of State and First Minister do), it seems to me that a different approach would be preferable. The preamble and question should be as short as possible, but supported by a public information campaign including leaflet prepared by the Commission as an independent and impartial body. That leaflet would explain, as clearly and straightforwardly as possible, the present arrangements for conferring legislative powers on the National Assembly; the powers that the Assembly would have if a majority were to vote ‘yes’ (in other words, setting out the powers in Schedule 7 to the Act), and what would happen if a majority were to vote ‘no’. It should also set out when the new arrangements would come into effect, a matter that is presently unclear and not addressed in any of the proposed questions. That would permit a rather crisper and more precise question, along the lines of the following:
The National Assembly for Wales presently has limited law-making powers over a range of matters, and further powers can be conferred on it from time to time by the UK Parliament. It has asked for those powers to be extended, to cover all the matters currently set out in Part 4 and Schedule 7 to the Government of Wales Act 2006. These powers do not include such matters as social security, defence or foreign affairs, which will remain the responsibility of the UK Parliament.
Do you agree that the National Assembly should have the law-making powers set out in Part 4 and Schedule 7 to the Government of Wales Act 2006?
UPDATE: This piece in Thursday’s Western Mail quotes me, and also discusses Sir Emyr Jones-Parry’s misgivings about the Secretary of State’s proposed question.