Pulling the trigger for the Referendum

Peter Black was definitely confused this morning about what is going on behind the scenes over the referendum. But one thing is perfectly clear, he wants to know whether the vote that Carwyn Jones said would be held on 9 February will be the vote that triggers the request for a referendum or one that is only an intermediate step towards it. Well, we all want to know that.

Just after midday I read a post on Betsan Powys' blog in which she gave us a snapshot of what was going on. But it didn't make any sense for the Tories to be saying that they needed "back pocket" assurances that the referendum wouldn't be on 5 May 2011 before they would vote for it, because the draft Referendum Order must contain both the date and the wording of the question. She then expanded the post to try and make more sense of it, but the explanation made even less sense because if the vote was merely a preliminary vote rather than the actual trigger vote, it would not need a two-thirds majority, and could be carried without needing Tory or LibDem support. I'm not in any way criticizing Betsan ... she was simply trying to present a picture of what was happening behind the scenes.


So far as Plaid, the Tories and the LibDems are concerned, October 2010 is a perfect time to hold the referendum. The Tories are adamant that the referendum should not be on the same day as the Assembly elections and the LibDems would prefer it not to be. I and others in Plaid would have no objection to it being on the same day if all else failed, but it is much better for it to be held at a time that everybody in the Assembly can agree on. If we can achieve unanimity across all the parties, it will send a very positive signal to both Westminster and Wales as a whole.

But there must obviously be a problem that prevents Labour committing to that date, otherwise we could simply go ahead without this confusion. We can all speculate about what this problem might be, but I am sure that certain elements of the Labour party are putting pressure on AMs not to commit to a date in order to "leave the options open". As I have said repeatedly, many Labour MPs only want the Assembly to get primary lawmaking powers if the Tories win the Westminster election. If Labour were, by some miracle, to stay in power they would want the LCO system to continue just as it is, because it gives a Labour Secretary of State and a Labour-dominated Welsh Affairs Select Committee power to veto any new area of legislation they do not agree with.

What they forget is that the Tories feel exactly the same way. If they win the election they are not going to want to give up their control over the Assembly through a Tory SoSW and Tory-dominated WASC either. David Cameron has only said that he will allow MPs a free vote; he knows full well that the natural anti-devolution instincts of Tory MPs—no doubt orchestrated by the likes of David TC Davies—could either prevent the referendum happening, insert additional options, or put additional conditions on it to require more than a simple majority of votes. Therefore the only safe way of getting the referendum through is to set it up before the General Election, because the Tories will be less inclined to re-visit something that has already been agreed.


The anti-devolution MPs in the Labour Party—of which there are still many—know that the best way of preventing the referendum is delay. And that is why such frantic efforts are being make behind the scenes to prevent a clear trigger vote on 9 February. Confusion is the name of the game.

Betsan reported that people were thinking that there needed to be two votes, both of which would require a two-thirds majority. This simply isn't true. There is only one vote that requires a two-thirds majority, namely the formal, final vote to approve the draft Referendum Order (technically the draft of the statutory instrument containing the Order in Council for the referendum) for the First Minister to send to the Secretary of State, for him in turn to lay before Parliament.

There is, of course, nothing to stop the Welsh Government holding a vote to decide on whether to have a vote ... but it will be a completely pointless and unnecessary exercise. When Carwyn Jones announced that there'd be a debate in the Assembly on 9 February, we were left in the dark about whether it would in fact be this trigger vote or not. The answer was a tantalizing "wait and see", but the motion that will be debated and voted on must be published by 2 February in order to give AMs time to consider it properly.


So everything now depends on what happens over the weekend. I think it is clear that Carwyn Jones wanted to pull the trigger on 9 February. In some ways he went out in a limb, hoping to bring things to a head while there was still (though only just) time to get the Referendum Order through Parliament before the election. I reckon most Labour AMs are behind him, but that Peter Hain and other MPs are waging a frantic battle trying to persuade them to delay things just a little longer ... no doubt citing party unity and the need to focus on beating the Tories in Westminster as reasons. Bogus reasons, because we will not start fighting the referendum campaign until after the general election is done and dusted.

But there is a public perception battle to be won. We all wanted to know whether the vote on 9 February would be the trigger vote or not. Everybody knew what "trigger" meant. But now, going by what Betsan has reported, it seems that some clever bastards are trying to introduce a distinction between what I will call "cocking the trigger" and "pulling the trigger". It is clear to me that the intention behind this is for Labour to be able to say that Carwyn was able to deliver a trigger vote, despite the fact that it is not looking at all likely that it will be the trigger vote he wanted.


Failure will have serious consequences for the future of the One Wales Government. If Peter Hain manages to succeed in putting the referendum off, Carwyn will be a lame duck First Minister within a few weeks of getting the job. Lame ducks do swim in circles ... they go round and round and end up getting nowhere.

This weekend will either make or break him. In fact, if he fails to deliver a "pull the trigger" vote on 9 February, there's a good chance that he may not be First Minister at all.

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MH said...

Just for people who might read this without being aware of it, much of what I said in the post I also said on Betsan's blog yesterday. Betsan posted a comment there today, which was really helpful in clarifying things ... and I in turn responded.

I've copied both comments here just for reference.

Betsan (copied from her blog) said...

Copied from Betsan's blog [12:46 - 28 Jan]

I'm going to tread carefully here because you're usually pretty spot on in terms of the ins and outs of this sort of thing ...

But this is what I understand:

Under the GOWA what we have as far as the Assembly is concerned is a two stage process. The first is a simple trigger resolution (or not quite so simple if you're the WAG at the moment but let's leave that to one side for now.) The trigger vote must be passed by 40 AMs. All this does is empower the First Minister to write to the Secretary of State to ask him, or her, to draw up the Order in Council that will enable the referendum to take place. It's the starting gun on the 120 day deadline for this to happen. It can't contain any sort of date or detail relating to the referendum.

There will then be a second vote in the Assembly once the SoS publishes the order. This also needs to be passed by 40 AMs. This will contain all the details relating to the referendum, including the question, funding details and - critically - the date of the vote. This is why the opposition parties do have another back-stop as regards the date. The question is whether either could bring themselves to effectively scupper a referendum this far down the track.

MH said...

Copied from Betsan's blog [15:35 - 28 Jan]

Thanks Betsan [#13]. I agree with what you say in the first of your two paragraphs, apart from the last line. As I read the Act, there is nothing to say that the resolution passed by the Assembly can't contain either the date or any detail.

It is true that it is up to the SoSW to draft the Referendum Order, and that the draft must contain the date and wording of the question (and things such as funding arrangements and the referendum period). But in all practical terms the request is not, to paraphrase: "We want a referendum, but we'll leave it entirely up to you to decide when it will be and what the wording of the question is."

Technically it is, but in practice it can't be. In much the same way as with an LCO, the Assembly doesn't simply say: "We want an LCO on housing, but we'll leave it entirely up to you to decide what it will contain." A request for an LCO has to specify what competence the Assembly wants transferred. Now, in technical terms, it is entirely up to the SoSW to decide the wording of any draft LCO he lays before Parliament, and it might not be exactly what was asked, but in practical terms it will be broadly similar (subject to the usual negotiations) otherwise the process is arbitrary and meaningless.


So with regard to the Referendum order, if the Welsh Government are saying that the resolution cannot contain either the date or the wording of the question, that view must be challenged. I believe such an interpretation cannot be justified from what it says in the Act itself.


For both the Tories and the LibDems, the date of the referendum is important. Therefore the simple way of getting them to vote for the resolution is to include the date as part of the resolution. I would include the wording of the question and other details too ( ... though it is pointless making anything more complicated than it needs to be at this stage). Including the date and details would not invalidate the resolution, nor do any harm to its progress, since the SoSW remains free to word the draft RO he lays before Parliament in whatever way he chooses ... or indeed refuse to do it at all.

It is very possible that the draft RO will be revised after having been laid before Parliament anyway, not least because of the Electoral Commission's opinion on the wording of the question; and all parties will (it is not in the Act, but it has become the established way of doing things) have their say on that and the other details through the WASC and/or the LCC (Lords Constitution Committee). In the end, hopefully, a final draft RO will be passed by both Houses at Westminster, and by the Assembly ... which will again require the votes 40 AMs.

In that regard, I'm sorry if what I said before was misleading. There will be two votes that will require approval by 40 AMs, not one. What I should have made clearer was that only one vote was needed to trigger the process. The second vote will be right at the end of the process, probably only a day or two before it goes to the Queen.

MH said...

Copied from Betsan's blog [15:35 - 28 Jan - part 2 of same comment]

A bit long, but to come to your closing sentences: Yes, the final vote does give the Tories and the LibDems in the Assembly a "back stop". For that reason I can see no reason why they should not vote for the resolution on 9 February ... if indeed that is on agenda for that day, which is still in question.

However I don't think the point about the second vote being so late in the process that the Tories and LibDems would be reluctant to use it is particularly valid. There'll always be an element of brinkmanship involved, but all parties will be able make their views clear at any stage of the progress of the draft RO in Parliament. All they have to say is: "Be careful. If we disagree with the date (or anything else) we won't vote to approve the final draft."


But to step back and put things into a bigger perspective, all other parties in the Assembly (and Trish Law, of course) are going to be able to agree to a referendum in October. If Labour can bring themselves to agree to that date as well, the resolution can be passed unanimously. Surely that is a prize that Labour should go out of its way to achieve.

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