Summer must be over. Not only do we have Tony Blair’s memoirs (see here for a report of his comments on Scotland, here for those on Wales, and here for a discussion of Blair’s idiosyncratic prose style from the FT), but the Electoral Commission has now done its part in preparing for a referendum on legislative powers in Wales. Its report on the question proposed by the Secretary of State (discussed HERE) is published today. Their press release is here, and the report itself is available here. The Wales Office press release ‘welcoming’ the report is here.
Unsurprisingly, the Electoral Commission found various problems with the wording suggested by the Secretary of State (it didn’t consider the question proposed by Carwyn Jones, discussed earlier HERE). It found much greater problems with public understanding of the constitutional position generally, and a huge gulf between elite-level discussions of the issues and the way the general public understood the issues. None of that is a huge surprise, though it’s regrettable.
You have to wade through the whole report to find the alternative question proposed by the Commission (it’s on page 28), which is this:
THE NATIONAL ASSEMBLY FOR WALES: WHAT HAPPENS AT THE MOMENT
The Assembly has powers to make laws on 20 subject areas, such as:
• the environment
• local government
In each subject area, the Assembly can make laws on some matters, but not others. To make laws on any of these other matters, the Assembly must ask the UK Parliament for its agreement. The UK Parliament then decides each time whether or not the Assembly can make these laws.
The Assembly cannot make laws on subject areas such as defence, tax or welfare benefits, whatever the result of this vote.
If most voters vote ‘yes’
The Assembly will be able to make laws on all matters in the 20 subject areas it has powers for, without needing the UK Parliament’s agreement.
If most voters vote ‘no’
What happens at the moment will continue.
Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?
Without doubt, the new question is a huge improvement on those previously proposed by the Secretary of State and the First Minister. Although rather wordy, it’s generally pretty clear in explaining the issue involved. But as an immediate reaction it is fundamentally misguided on one point, and wrong on another. The point on which it is simply and utterly wrong is in its description of what happens at the moment. This implies that Westminster must consent to each and every piece of Assembly legislation. Readers of this blog will, I’m sure, know how wrong that is. The Assembly has to ensure that it has adequate powers before it can legislate, and it must obtain them from Westminster (by LCO or framework power) if it doesn’t. But once conferred the Assembly retains those powers. It doesn’t need to go back to Westminster to seek those powers again, nor seek ‘prior approval’ for its legislation from Westminster. Indeed, attempts by Westminster to seek information about the Assembly’s planned use of its powers have been one of the key areas of disagreement between London and Cardiff, with the Assembly and Assembly Government trying to resist such attempts at Westminster.
The point on which the question is wrong is its own terminological imprecision. This is less serious than the first mistake, but it’s still important. The proposed question talks of the powers the Assembly as ‘subject areas’. This may be better than ‘areas’ , as used in the Secretary of State’s question, but it’s still inaccurate given the terminology of the 2006 Act and indeed the 2005 white paper Better Governance for Wales. But it’s not even consistent about this, as it also refers to ‘matters’. Does this mean there are ‘matters’ in ‘subject areas’, in ‘fields’, or what? Verbal consistency may be tedious, but it minimises the scope for confusion about what’s at issue. And as the report recognises, there is a need for clarity in the wording of the question that the Secretary of State’s proposed question failed to deliver.
In fact, though, these very errors make a strong case for moving to Part 4. If even an authoritative and expert body like the Electoral Commission can get these issues wrong, what hope does anyone else have?