The Referendum Timetable

Following recent statements by both Carwyn Jones and John Griffiths there is now every indication that Labour have decided to go for an Autumn 2010 referendum to give primary lawmaking powers to the Assembly.

Betsan Powys, in this post yesterday, set out just how tight the timetable would be in view of the issues that the Referendum Order (i.e. the process of bringing about a referendum, which is very similar to the LCO process) needs to address. These are:

• the wording of the question
• the approval of the wording by the Electoral Commission
• the amount to be awarded to each side for campaigning
• the date of the referendum
• the polling and counting arrangements

In my opinion none of these is an insuperable problem. It is possible ... just ... to get the Referendum Order through the Assembly and Westminster on the last working day before the long Easter recess, namely 26 March. It cannot be taken beyond that point because of the General Election which we now know, thanks to Andrew Marr's questioning, is almost certain to be held on 6 May ... and the minimum period for holding it is about three weeks.

The only other option is to delay the process, and ask the new Secretary of State to lay the Referendum Order before the Westminster Parliament after the general election. As I have said before, I don't think we have any guarantee from the Conservatives of any commitment to get the Referendum Order through Westminster. David Cameron's statement was merely that a future Tory government would "not stand in the way" of such a request. Crucially, he said that MPs would be given a free vote on the issue. With a majority of Tory MPs, none of them with much appetite for or interest in specifically Welsh affairs, there is every possibility that the Referendum Order would not get passed by a new House of Commons ... and Cameron will then be able to say, "We didn't say we'd support it, only that we wouldn't stand in the way."

There is also every possibility that the Tories will introduce additional conditions, as happened in the 1979 referendum when a 40% threshold was retrospectively introduced ... although, it should be noted, not by a Tory government on that occasion.

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So the stakes are high. If Labour want to ensure that we get this referendum done and dusted, without any opportunity of it being tampered with or delayed (because of course it will be in the interests of a future Tory Government to delay any new areas of legislation from a left-of-centre One Wales government for as long as possible) then the only answer is to get the Referendum Order finalized while Labour still have a majority in Westminster to enable them to do it.

     

Let's look at the issues that need to be dealt with one by one:
 

The wording of the question

The question itself is not difficult. The GoWA 2006 doesn't give us any options about which areas the Assembly will get primary lawmaking powers in, nor does it give us the opportunity for additional options such as abolition of the Assembly. The choice is simply between the status quo and primary lawmaking powers in the areas listed in Schedule 7 of the Act.

The question should be straightforward, precise and neutral ... and I would only repeat the suggestion I made earlier for the reasons I set out here:

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

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

I'm not "precious" about the wording, and I'm happy for others to improve on it. In essence all that matters right now is that we get a form of words agreed to be put into the Draft Referendum Order. The question can be always be modified as the Order progresses, in just the same way as happens with LCOs.
 

The approval of the wording by the Electoral Commission

The Electoral Commission has a statutory duty to give their opinion on the precise wording of any referendum question. To be technical, their opinion can be over-ruled by the government, but it is highly unlikely that any government would want to do that, since it would be perceived as being partisan.

The problem is that the EC need to "road test" the question in the form of focus groups, etc. which will take time to do properly and professionally. This is what they say about it:

We should be able to publish our views on the intelligibility of a proposed referendum question around 10 weeks after finding out what the question is. This includes eight weeks to carry out public opinion research, based on getting at least two weeks' notice of the date when we will be given the exact wording of the question.

We will do as much advance preparation as we can for the research—which is the part of our evidence-gathering that will take the longest—so that we can make sure it is completed as quickly as possible.

Source

As it so happens, the likely day on which the Assembly will pass the request for the Referendum Order will be 26 January. So it is just ... but only just ... possible for the EC to have approved the question before the Referendum Order is approved at the end of March. But crucially it means putting the EC "on notice" by next week at the latest. So what is required is a statement to the effect that the matter will be debated and voted on in the Senedd on 26 January. This statement needs to be made before the end of next week.

I'm sure there must be people who are well aware of the EC's timescale. But it would do no harm for people with more influence than I have to make sure that the EC are fully informed about what is going to hit them at the end of January. The timescale is so tight that every day will count.
 

The amount to be awarded to each side for campaigning

As I see it, there shouldn't be a problem with the level of funding. The North East Regional Assembly referendum in 2004 provides a good precedent of £100,000 per side for a roughly similar population (2.5m as opposed to our 3m). It could now be £120,000 or £150,000 each, given that a few years have passed since then.

In general terms, a higher amount is likely to favour the No campaign, since they have a smaller support base. The Yes campaign will be supported by Labour, the LibDems and Plaid. The Tories might or might not remain officially neutral. If it were up to me, I'd opt for the higher figure of £150,000 to avoid any argument.

There will of course be the usual free mailshot, a few election broadcasts and the use of public buildings for meetings. Nothing out of the ordinary.
 

The date of the referendum

I think the date of the poll should be 28 October, i.e. just before the clocks go back on 31 October. Perhaps a week or two earlier, but certainly not later, because dark evenings will have a negative effect on turnout. The summer holidays and party conferences will be over, but it won't be too cold for canvassing. By then, the Westminster election will have taken place and the dust will have settled, and there will still be plenty of time after the referendum to formulate policies and fight the campaign for the May 2011 Assembly election.

The AWC recommended a ten week campaign, which seems fine to me ... although I think that political discussion is bound to be rife long before that. But there does need to be an official "referendum period" during which specific rules about things such as publication of materials and finance apply.
 

The polling and counting arrangements

These don't need to be any different from any other election. The same polling stations and same counting arrangements as were used for the Euro elections last year.

The only possible alternative would be an all postal ballot. This was meant to increase turnout when used in the North East Regional Assembly referendum, but it only delivered a turnout of 47.8%. Postal ballots have also been dogged by problems and allegation of problems, and I don't think we should do anything to encourage controversy. Though obviously people who want to can still vote by post or proxy, as in other elections.

     

So it's really quite simple and straightforward. What we need now is the statement of intent from the Wyn Jones's (Car and Ieuan) next week, and for the debate to be put into the Assembly's timetable ... in all probability for 26 January.

It will need to be passed by a two-thirds majority in the Senedd, but there won't be a problem getting it through because Labour, the LibDems and Plaid will definitely vote Yes ... however the Tories might surprise us and make it unanimous. It would be a nice touch, and would certainly do their poll chances in Wales more good than harm.

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It will then pass to Peter Hain to lay the Draft Referendum Order before Parliament, which he would do within a day or two of receiving it. Technically he could sit on it for 120 days, but he simply won't do that because Labour will already have made the decision in internal meetings over this Christmas/New Year break to get it through Westminster while they still have the chance to do so.

It will have to go before the Welsh Affairs Select Committee and probably the Lords Constitutional Committee, but there is nothing contentious about any of what it will contain, not least because the Electoral Commission will doing its own work in a separate, parallel process and because the list of subjects for which the Assembly will get primary lawmaking powers was hammered out when the GoWA 2006 was passed.

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18 comments:

Efrogwr said...

I am still having difficulty with the wording of "the question". Neither the meaning of "primary law-making powers" nor the content of Schedule 7 will make sense to the average voter. Well, I for one didn't know what a "schedule" was in this context back in the days when I just had a doctorate in another subject, before I went to law school and qualified as a solicitor. Maybe I'm just a bit slow. Also there is nothing on timing - i.e. we want to move immediately to primary powers. As you know, they Assembly already is getting them bit by bit and will continue to do so. Moreover, with your wording the "No" camp could say, ok, there's a mandate, let's bring it on in 20 yrs time ;-) It's a difficult one and, if we're not careful with it, it will be easy for the "No" lobby to spread further fear and disinformation.

MH said...

Efrogwr, I gave some reasons for referring to Schedule 7 in this post. In essence it is "the list" of what the Assembly will or won't be able to legislate on.

It will be up to us in the Yes campaign to explain what it means ... and up to the No campaign to "do their damnedest" and adopt whatever tactics they wish to either explain their position or confuse the issue. Nothing in the wording of the question will stop them conducting their campaign in whatever way they choose.

As for timing, there is no ambiguity about when the post-referendum provisions would come into force. Section 105 of the GoWA 2006, which will allow the Assembly to instigate and pass Acts of the Assembly (as opposed to Assembly Measures, although the difference is only one of name, not substance) says the new provisions will commence "where the majority of the voters in a referendum held by virtue of section 103(1) are in favour of the Assembly Act provisions coming into force". So the Assembly would get the new powers as soon as the referendum was won.

James D said...

On a point of sheer pedantry, could you explain why you have gone for "fel a restrir" rather than "fel y rhestrir"? The latter would be equivalent to "fel (y) maent yn cael eu rhestru", and the former to "fel sydd yn cael eu rhestru".

Here's translating what Peter Wynn Thomas' huge "Gramadeg y Gymraeg" has to say on the subject of "fel ((ag) y) mae" vs "fel sydd":

'6.II.3
'Note
'[a] It's usual for "fel" to be followed by "mae".
'In some contexts, however, "fel" can also be followed by "sydd":
'i. when it introduces an Adjectival Phrase;
'ii. when the verb is in the composite third-person singular form with a dummy "hi" as an Object.'

The second case clearly doesn't apply here ("rhestru" is just the wrong type of verb to cause this). I'm less clear as to what is meant by an Adjectival Phrase ("Ymadrodd Ansoddeiriol"), but there aren't any words that I could scan as adjectives in that phrase, so it probably isn't one.

What I suspect's happened is that some clever-cloggs Syr Wmffre somewhere once used "fel a [rywbeth]-ir" with an adjectival phrase to show off, and this has got copied and recopied beyond all grammaticality in bureaucratic Welsh. But feel free to correct me -- I don't pretend for one second that my Welsh is anywhere near perfect.

Alun said...

Wouldn't it make more sense to wait seven months and hold the referendum on the same day as the Assembly elections? The turnout would be increased and the full horror of a Tory Westminster government would be unfolding.

D. Llewellyn said...

Very insightful!

I think that Welsh Labour will jump right on board and campaign positively for the Referendum, precisely because of the prospect of losing power in England.

Better to rule in Wales then out of power in England. (a simular line said in the 1958 film 'the Viking')

MH said...

James, you win the Rhodri Glyn Thomas memorial cigar for the most pedantic question on this blog so far ;-)

I'm reminded of these two (although the second is rather contrived) sentences from here:

Dyma'r dyn a drywanodd ei frawd y meddyg
This is the man who stabbed his brother the doctor

Dyma'r dyn y trywanodd ei frawd y meddyg
This is the man whose brother stabbed the doctor

I wasn't entirely sure which was best and went by what sounded better to me, but I must admit that I did look for a precedent, which I found in this Statutory Instrument, which had "Mae Rhan 1 o'r Atodlen i'r Gorchymyn hwn yn
rhestru pob un o'r cyrff hynny y mae'n ymddangos i Weinidogion Cymru eu bod yn darparu cyrsiau sy'n arwain at radd, p'un ai'n gyffredinol, fel a restrir yn adran 1, neu mewn cysylltiad â gradd sylfaen yn unig, fel a restrir yn adran 2."
That's what clinched it for me. But you're right ... it isn't correct just because Syr Wmffre does it.

When I'm having difficulties writing Welsh (which is most of the time) I often use Google as a way of seeing if I can find the particular form of words elsewhere. I've just done another Google search and found examples of "fel a restrir isod" and "fel a ganlyn" ... but I also found "fel y nodir" and "fel y datgenir". So both seem to be acceptable in everyday use.

I then dusted off my copy of Gramadeg y Gymraeg. I wish it was electronic and had a search function (that's a hint for GPC) but I think some other relevant sections are from 6.90 to 6.112. As far as I can make out, "fel y" seems to be more correct, and perhaps the explanation for why "a" sounded right might be because the more formal, though now hardly used, form is "fel ag y".

I then tried it out at Cysill Ar-lein (an excellent resource that I only discovered a few weeks ago) and it corrected the "a" to "y". So it seems that the academic balance swings towards "y".

I'd welcome comments from others.

MH said...

Alun, I myself could see advantages for holding it on the same day as the Assembly Elections, mostly for reasons of turnout, as you mention. I said that in my submission to the AWC, but from the way their final report was written it appeared I was in a minority of one. Both the LibDems and Peter Hain are vehemently opposed to it.

I remember Richard Wyn Jones (in Barn, I think) saying that he thought 2012 would be best for the Yes camp, because the effects of a Tory government would have bitten deeper and would tend to make people feel that Wales could make better decisions for itself.

There's a lot of truth in that, but I don't think we can rely on the same alienation, not least because the Tories were the most popular party in Wales in the 2009 Euro elections, but also because some Welsh Tory AMs are making some very positive noises about further devolution ... even though that definitely isn't reciprocated by their MPs.

However, I still (I've been saying it for two years now) feel that we cannot trust the Tories to get the Referendum Order through Westminster, because they will be unwilling to relinquish their hold on power once they have their hands on it. And Cheryl Gillan has a much more draconian view of the LCO process in that she has said she wanted to see actual draft legislation before any LCO is approved. So I think Labour must take this unique opportunity now rather than wait ... as DLl has said.

Penddu said...

MH - I share your distrust of Cheryl Gillan & co and am sure that they would prevaricate and pontificate for so long as to effectively kill the referendum without contradicting DCs claims not to stand in the way.

Unfortunately I have an even bigger distrust of Peter Hain & Paul Murphy, who I am quite sure will put their personal egos above the needs of the Labour Party and the people of Wales (yet again).

The Senedd vote must be taken immediately so that the UK General Election can be used as a threat to both Labour and the Conservatives that if they delay or obstruct the referendum they will be shown to be anti-Welsh and will be punished at the ballot box. We can not rely on the WA GE having the same effect.

D. Llewellyn said...

It works the same for the Welsh Conservatives in Wales, too. As we saw with the prospect of the "Rainbow Coalition", Welsh Conservatives -whose main party is out of power in Westminister-would be more open for more power in Wales with the prospect of a coalition government. But I suspect that they are far more sheepish to voice that too loudly until that power is fully delivered to Wales. Once Wales has more power and another few election cycles under its belt, you will see a more independent minded local politicians who rely more on the Wales political scene rather then on whatever is going on in Westminister.

Anonymous said...

It would be a danger and a disservice to see this referendum purely as an anti-Tory vote. I'm not so sure either that there will be a great wave of anti-Tory feeling. After all it was Labour which got us into this economic mess in the first place (partly by following Tory-type policies but not only!).

Lets make this a positive vote for Wales and our ability in Wales to make our own decisions.

Emyr said...

Should the question perhaps refer to Part IV rather than Schedule 7? The difficulty with referring to Sch. 7 is that it is a list of powers frozen in time, so that it could be argued that, if there is a Yes vote, this sets a limit on what is devolved without a further referendum, leading to calls for a new referendum each time Sch. 7 is amended? (consider for instance J Straw's recent pronouncements on devolving administration of justice).

It seems to me that the only question that will unequivocally work from a legal perspective is "Sholuld the Assembly Act Provisions as they defined in the section 103(8) of the Government of Wales Act 2006 come into force".

Indeed, it might be time to start talking about Assembly Act Provisions, rather than Primary Law Making Powers, so that people become familiar with the phrase. It is easy to explain as well, because it refers to the power of the Assembly to make Acts. The Scottish Parliament can make Acts, but the Assembly can't.

On the grammar, i prefer "y rhestrir nhw", but I agree that "a restrir" is probably acceptable usage now pace P Wynn Thomas. I do think, however that it should be bwerau, rather than pwerau.

Cibwr said...

I think we can depend on Labour doing what is best for Labour, which for once coincides with the needs of Wales. So I expect this to be fast tracked so that October 2010 is the date for the referendum.

Efrogwr said...

Thanks, MH, for your response to my fist post on this thread about timing. Of course I know what the schedule is, but my point is that a lot of energy will be lost, if, as you suggest, it will be up to the Yes campaing to EXPLAIN THE QUESTION rather than explaining the benefits of a YES VOTE.
This applies to Emyr's suggestion as well. Assembly Act Provisions does seem more readily understandable than Primary Law Making Powers, though.
Efrogwr

Anonymous said...

As precise as the wording for the questions may be, I fear that such a turn of phrase will immediately turn many people off either the 'yes' position or the ballot in its entirety.

The question needs to accessible and clear to anyone intending to vote, and note merely those of us who may be familiar with Schedule 7 of the Government of Wales Act. I suspect that the average person in Wales would have difficulty identifying all devolved aspects of government and/or the particulars of the GWA 2006.

A simple rule of thumb to follow when drafting a communication for a wide non-specialist audience: assume as little knowledge on the behalf of the audience as possible. This forces one to be as succinct and as clear as possible in their message, and tends, in my experience, to be more effective in drawing a response.

Emyr said...

@Anonymous 15:05

I'm sure that's right, at least in part, but what Efrogwr says is right as well. The case must be made out and won by persuasion. The current arrangements, and what is in prospect, will have to be explained.

So how about: Should the Welsh Assembly have the power to make Acts?

This will mean explaining what Acts are, and the fact that this does not deprive the UK Parliament of its power to make Acts about anything it blooming well likes.

Sionnyn said...

How about "Should decisions made by the Welsh Assembly on affairs affecting Wales only be subject to veto by the House of Lords in London?". Then we would be shifting the ground and actually be after a "NO" vote - and a lot of the antediluvian - sorry anti-devolution - idiots, would vote for us anyway. Anybody intelligent enough to understand the need for more powers would not be caught out by the change in tactics.

OK - only trying to inject some levity here.

Seriously - I also have anxieties about putting language like 'Schedule 7' in the question. If I were asked if I was in favour of implementing 'Schedule x', which I didn't know or understand, I would definitely make the effort to go out and vote "NO". What about asking if the WAG should be allowed to determine laws in areas already devolved without reference to the UK Parliament?

Or should the Welsh have the same status of devolution as the Scots, and the Northern Irish? ( I would like actually to have list including Mannaw, Guernsey, Jersey, Gibraltar . . . .your know the list, and allow them to tick one or more), but that is in my dreams.

My point is that the question has to have an immediacy, relating to people's experience, and their view of Wales - does it exist or not? If it does, should it? , or would it be better as a new shire of England? I have a friend who cogently argues the latter point, and even believes it. So let's get down to basics, and tell it like it is. People are more likely to understand that.

David Llewellyn said...

"Date set for assembly referendum vote"
http://news.bbc.co.uk/2/hi/uk_news/wales/wales_politics/8454135.stm

Aled G J said...

I agree with some of the above comments that any mention of "Schedule 7" should be avoided like the plague in the referendum question. It would just signal to most ordinary people that it was the political class( in Wales this time) talking to itself once again. Th question needs to be as clear and simple as possible e.g

Do you believe that the National Assembly of Wales be allowed to able to pass it's own laws

( Education, Health, economic dev etc)

YES/NO

Ydach chi'n credu y dylai Cynulliad Cenedlaethol Cymru gael yr hawl i greu ei ddeddfau ei hun?

( efallai cynnwys y meysydd penodol, e.e addysg, iechyd, datblygiad economaidd?

YDW/NAC YDW

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