Welsh referendum question: the Electoral Commission reports

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 Assembly has powers to make laws on 20 subject areas, such as:

• agriculture

• the environment

• housing

• education

• health

• 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?



Filed under Intergovernmental relations, Referendums, Wales, Westminster

8 responses to “Welsh referendum question: the Electoral Commission reports

  1. Jeff Jones

    Forget about the question the referendum will be decided on perceptions of what a movement from part 3 to part 4 of a poorly thought out Act means. The yes campaign will home in on the need to gave Wales the same powers as Scotland and why is Wales being treated differently. There will also be a great deal of talk that a yes vote will protect Wales from the UK Coalition and an implication that it will lead to more money! The no will talk about independence and in the age of austerity the cost of it all. Given the lack of media pentration most Welsh voters will be untouched by the campaign except for the information leaflet from the Electoral commission and any leaflets from the yes or no camps.Whethrt they read these in the junk mail world is another matter The research by the Electoral Commission merely confirms what many of us have argued for a long time. Most people either don’t understand devolution or are not that interested in devolution. They like the free services and in an age of plenty the Assembly hasn’t done anyhting to annoy them unlike the Westminster government before May6th. As for what happens in Cardiff Bay or who is taking the decisions and in what areas that still remains a mystery. Rhodri Morgan was the most popular politician in Wales precisley because he was the only one that most people had ever heard of. It will be interesting to see how voters perceive devolution in the new age of austerity where for the first time the Assembly will have to take some very difficult decisions. Many in the yes camp assume that thsi will help the Assembly with all of the blame being aimed at the Westminster government. BUt in the four major cities which are controlled at a local government level by parties not running the Assembly the political spin could easily lay the balme at trhe Assembly’s door. This argument will confuse accountability in the eyes of many voters. The problme with devolution goes back to the 1980s and 1990s when theer was very little debate about either the concept or the possibel ramifications. In 1997 the yes vote relied on the fact that the Tories were opposed and Labor was in favour. Even then the majority either didn’t take part in the referendum or voted no. The 2006 Act introduced fundamental changes with hardly any debate outside of the political class. the most unsatisfactory result next March could be a yes vote on a low turnout. The Assembly might get law making powers but without the popular mandate and without tax raising powers it will still effectively be at the mercy of whoever controls the purse strings in Westminster. Tax raising will require another referendum and if the result is close that will be postponed for naother generation. A no vote would be a complete disaster which would effectively make devolution a lame duck. We are in this mess because the political elite has failed to take the majority of ordinary voters with them on the devolution journey. At one level the idea that voers can confuse ‘devolved ‘ areas with ‘deprived ‘ areas or ‘developing ‘ areas is amusing. At another level it stands as areal indictment of the state of politics in Wales 13 years after the 1997 referendum.

  2. Emyr

    I’m probably in a minority of one, but in my view, the only safe question is one that makes reference to the sections of GOWA 2006 which must come into force.

    Something like:

    “Should the Assembly Act Provisions in the Government of Wales Act 2006 come into force?”

    Or, perhaps “Should the National Asembly for Wales have the power to make Acts as set out in the Government of Wales Act 2006?”

    The preamble can explain what this means.

    The reason is that, however you phrase the question otherwise, you are in danger of getting something wrong. For instance, the Elecetoral Commission’s proposals refer to 20 “subject areas”, presumably referring to “subjects” in Schedule 7. But these areas could be increased in number by Order in Council under section 109 GOWA.

    So, if the question as posed by the Electoral Commission is put, and a yes vote occurs, there are two risks:

    1) someone wishing to challenge an Act of the Assembly may argue that the question was not valid, since it did not accurately reflect the possibility that other subjects could be added to the competence of the Assembly, and that consequently the result of the referendum was not valid (I can’t find anything in GOWA 2006 which prevents a challenge to the referendum result on the basis that the question is flawed. The “no challenge” provisions in Schedule 6 para. 12 seem to extend only to challenging the number of ballot papers cast).

    2) Even if I’m wrong on the above point (I hope I am, and would welcome being corrected), the transfer of further “subjects” to the Assembly (e.g. administration of justice) could be politically problematic, since the question only refers to 20 subjects.

    Unfortunately, GOWA 2006 is the best Government of Wales Act we’ve got.

  3. It’s telling that here – as in much of the other debates – there’s a clear division of view between lawyers like Emyr, and politicians like Jeff Jones. I suspect part of the reason for this is that those responsible for framing the 2006 Act didn’t really believe a referendum would happen (or happen so soon), and thought these provisions related to a far-off future, not a practical reality. I know a number of other lawyers who share Emyr’s concerns about possible future challenges to Assembly legislation if the question doesn’t do the job, legally speaking. Such challenges have to be treated as a real prospect – in Scotland, for example, Imperial Tobacco are challenging the restrictions on sale of cigarettes etc in the Tobacco and Primary Medical Services (Scotland) Act 2010, on the ground that it concerns reserved matters and so is beyond the Parliament’s legislative powers. I know other potential litigants are sniffing around and thinking about how to challenge devolved decisions and laws in Wales. I fear this is a case where the primacy of political factors in making the 2006 Act create in their train a very serious set of legal problems.

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