Wording the question

The GoWA 2006 puts us in the strange position of knowing in exact detail what we will get if we vote "Yes" in the referendum, but it doesn't actually set out the precise wording of the question. There was quite a bit of debate in the Senedd about it in yesterday's debate, but according to Nick Bourne the Electoral Commission have already started asking the parties, and I guess other interested bodies, for their views on what the question should be.

This is something I have though hard about for some time, and commented on in a few blogs and forums in the past year or so and in the last few days. But I thought it would be good to put my thoughts together in one place and invite comments and criticisms.

I think it should be possible to express everything in a single question, without having to rely on a preamble. That question would be:

Do you believe the National Assembly for Wales should have primary lawmaking powers in the areas devolved to it, as listed in Schedule 7 of the Government of Wales Act 2006?

Let me now explain exactly why I have chosen these words. The two critical parts are "primary lawmaking powers" and "Schedule 7 of the GoWA 2006".

Primary lawmaking powers

I have already commented several times about how terms such as "full" lawmaking powers and "increased" lawmaking powers are capable of being misunderstood.

My belief is that we cannot educate the public to accept that "full" lawmaking powers has a certain particular meaning, even in the context of this referendum. The All Wales Convention has tried hard to do that and failed. Attached to their report was a survey by GfK NOP which showed that "full" lawmaking powers not only can be interpreted in various ways but is still interpreted in various ways. So, for example, even at the second time of asking:

49% thought it meant "lawmaking powers in all areas of Welsh life"
28% thought it meant "will be able to change the basic rate of income tax”
26% thought it meant "Wales will be independent of the UK"

Executive Summary
Full Social Research Report

"Increased" lawmaking powers is a more correct way of putting it, but what that means is rather like asking, "How long is a piece of string?" It needs to be more precisely defined. It might benefit us in the Yes campaign to say "like Scotland", but that isn't actually true. That's a perfectly reasonable point for us to make when campaigning, but it is not precise or neutral enough to be the basis of a fair question.

What we have now is "secondary" lawmaking powers, which means that we can only make laws if another legislature (i.e. Parliament at Westminster) allows us to. If we win the referendum the Assembly will get "primary" lawmaking powers, which means that we can make laws without asking permission first. Therefore "primary" is the most precise term to use.

Schedule 7

However, a successful referendum will only give us primary law-making powers in certain areas. So it is important to be precise about exactly what these areas are.

In general terms, the Assembly will only gain lawmaking powers in the areas which are already devolved to it. What we now have is best described as either "executive devolution" or "administrative devolution". This means the Welsh ministers in the Assembly can make decisions about how we manage the areas devolved to Wales, such as health, education, the environment, tourism, planning etc, etc. Our ministers essentially make "executive" or "administrative" decisions about how we allocate the budget and organize these government departments, or the other bodies and organizations we give money to.

Even after a "Yes" vote in the referendum, we will not be able to legislate on everything in the areas that are devolved to the Welsh ministers in the Assembly. There are many exceptions to the general rule in the previous paragraph. However there is one document which lists out the twenty areas in which we will be able to legislate together with the things that are excluded for our MPs in Westminster to legislate on, if they choose to. This is Schedule 7 of the Government of Wales Act 2006, which we can read here.


Many, if not most, people tend to think of the change as moving from Part 3 of the Act to Part 4 of the Act. This is of course true. But Part 4 deals with the technical details of how legislation is enacted ... of the steps that need to be taken to pass "Acts of the Assembly" instead of "Assembly Measures". It describes procedures and is therefore going to be mind-numbingly boring to 99.9% of the population.

My contention is that it doesn't matter what the technical details of how we pass legislation are. All that really matters is what areas the Assembly can and cannot pass legislation in ... and Schedule 7 is that definitive list.

Now of course I wouldn't expect many people to know all the detail in that list. But it is actually only a few pages long, and it is broken down into 20 main headings. So, at it's simplest level, it can be "the twenty devolved areas" ... which everybody should be able to understand. But each of us can go into the detail to whatever level we choose.

For this reason I think it is much better to frame the question in terms of "Schedule 7" rather than "Part 4" of the GoWA 2006. I had thought it should be put as "as set out in" Schedule 7, but on second thoughts it is probably better to say "as listed in" ... if for no other reason than to make it clear that Schedule 7 is a list.

So these are my latest versions:

Do you agree with the following proposition?

The National Assembly for Wales should have primary law-making powers in the areas devolved to it, as listed in Schedule 7 of the Government of Wales Act 2006

YES, I agree
NO, I do not agree

I was criticised for making a phrase in my previous Welsh version too "Biblical". That happens to be almost literally true, since I'd lifted it from a Church in Wales bill (Barry Morgan will love that). So this time I've taken "as listed in" from this Statutory Instrument.

A ydych yn cytuno â'r cynnig canlynol?

Dylai fod gan Gynulliad Cenedlaethol Cymru pwerau deddfu cynradd yn y meysydd sy'n cael eu datganoli iddo, fel a restrir yn Atodlen 7 o Ddeddf Llywodraeth Cymru 2006

YDW, dw i yn cytuno
NAC YDW, dw i ddim yn cytuno

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Anonymous said...

A little off topic......Lets pretend that we, the Welsh people vote 'yes' in the up and coming referendum. Good. Then say in a little time....it's decided that another area such as policing or water (however it is termed) is devolved....will these additional areas automatically come under the umbarella of our Primary Law Making powers? I mean, will we be able to legistlate in these future devolved areas without the need for another referendum? Sorry for jumping the gun a little but just interested.

Anonymous said...

I believe that it if is a simple extension of competence area, eg policing, then this could be transferred by Order as at present.

Referenda tend to be used only for major constitutional changes, maybe say the move to a federal system??

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