One rather sad aspect of the referendum campaign in Wales is that it appears the BBC, in the interest of making the issues ‘comprehensible’, is perpetuating a couple of myths put forward by ‘No’ campaigners about how Welsh devolution currently works. The Beeb has form, of course, both in ignoring Wales and in getting the issues there wrong. One is that the present arrangements provide for ‘better scrutiny’ of Welsh law-making, as Welsh legislation is subject to further consideration in Parliament as well as in Cardiff Bay. The other is that the present arrangements, under Part 3 of the Government of Wales Act 2006, lead to the same ultimate destination as the legislative powers that the Assembly would enjoy if there is a Yes vote, and the ‘Assembly Act’ provisions in Part 4 come into effect.
Both these are, quite simply, myths. Parliament confers legislative powers on the National Assembly before it legislates, but it does not scrutinise the Assembly’s legislation either before that legislation is made or afterward. It is concerned with what legislative powers the Assembly gets. It may look at the first proposed use of that legislative power, but that’s only the first use, and it’s only what the Assembly Government proposes when it seeks those powers. The Assembly Government’s proposals may change before legislation is introduced; they may be modified by the Assembly before they are passed. Westminster would have no say in any of that, nor in any subsequent legislation made using those powers.
Equally, the powers conferred on the Assembly through Part 3 may or may not correspond to those set out in Schedule 7, which will apply under Part. At present, they are mostly narrower, but need not be. There are only two requirements to add ‘matters’ to Part 3. One is that they must relate to one of the 20 fields – the headings used in Schedule 5. The other is that they must relate to executive functions that the Assembly Government already has. Within that scope, Part 3 actually offers more flexibility to confer powers which may not be available under Part 4.
It’s a pity that the BBC, in Wales and indeed when it gets time on the UK networks, has occasionally made, and has allowed others to make and repeat these mistakes. The worst part is that they’re not necessary in order to explain what the referendum is about: it is about giving the National Assembly full power to legislate for the 20 subjects set out in Schedule 7, in their entirety. That’s it; very simple, if rather dull, partly because (for reasons I set out HERE) it’s an unnecessary referendum in a constitutional if not a legal sense. If one wants to explain that this would avoid the need to seek the conferral of those powers from Westminster first, that’s a refinement, but it can be omitted it seems too tricky. It’s not often that one has cause to lament the departure of John Birt from the BBC, but his ‘mission to explain’ would have embraced this challenge, not run away from it.
UPDATE, 19 February: Since this post went up, I’ve been in contact with BBC Wales and others about this. (It is, I hope, clear that the problems I raised relate to the BBC as a whole, and not just BBC Wales.) I’m told that much stronger editorial control is now being exercised by the BBC. If, however, there are still problems, please let me know – either by a comment on this post, or by email.