Even the Electoral Commission can't get it right

The Electoral Commission has just published its report on Cheryl Gillan's proposed question for the referendum on primary lawmaking powers, and ended up by making a suggestion of its own.

     Summary of Report
     Full Report

However the question they have come up with is, quite bluntly, wrong.

The National Assembly for Wales:
what happens at the moment

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

•  agriculture
•  education
•  the environment
•  health
•  housing
•  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?


It is misleading because, even after a Yes vote, the Assembly will not be able to make laws on "all matters" in the 20 subject areas it has powers for.

There are, in fact, many things within those 20 subject areas that the Assembly will still not be able to pass laws on. There is a long list of exceptions and exclusions, as set out in Schedule 7 of the GoWA 2006.

As one example of this, look at Highways and Transport (Subject 10). The basic area of competence seems clear enough:

Highways, including bridges and tunnels. Streetworks. Traffic management and regulation. Transport facilities and services.

But then we get the exceptions:


Registration of local bus services, and the application and enforcement of traffic regulation conditions in relation to those services.

Road freight transport services, including goods vehicles operating licensing.

Regulation of use of motor vehicles and trailers on roads, their construction and equipment and conditions under which they may be so used, apart from regulation of use of vehicles carrying animals for purpose of protecting human, animal, fish or plant heath, animal welfare or the environment.

Road traffic offences.

Driver licensing.

Driving instruction.

Insurance of motor vehicles.

Drivers' hours.

Traffic regulation on special roads, pedestrian crossings, traffic signs and speed limits.

International road transport services for passengers.

Public service vehicle operator licensing.

Documents relating to vehicles and drivers for purposes of travel abroad and vehicles brought temporarily into Wales by persons resident outside the United Kingdom.

Vehicle excise duty and vehicle registration.

Provision and regulation of railway services, apart from financial assistance
(a) does not relate to the carriage of goods,
(b) is not made in connection with a railway administration order, and
(c) is not made in connection with Council Regulation (EEC) No. 1191/69 as amended by Council Regulation (EEC) No. 1893/91 on public service obligations in transport.

Transport security.

Railway heritage.

Aviation, air transport, airports and aerodromes, apart from—
(a) financial assistance to providers or proposed providers of air transport services or airport facilities or services,
(b) strategies by the Welsh Ministers or local or other public authorities about provision of air services, and
(c) regulation of use of aircraft carrying animals for purpose of protecting human, animal, fish or plant heath, animal welfare or the environment.

Shipping, apart from—
(a) financial assistance for shipping services to, from or within Wales, and
(b) regulation of use of vessels carrying animals for purpose of protecting human, animal, fish or plant heath, animal welfare or the environment.

Navigational rights and freedoms, apart from regulation of works which may obstruct or endanger navigation.

Technical and safety standards of vessels.

Harbours, docks, piers and boatslips, apart from—
(a) those used or required wholly or mainly for the fishing industry, for recreation, or for communication between places in Wales (or for two or more of those purposes), and
(b) regulation for the purposes of protecting human, animal, fish or plant health, animal welfare or the environment.

Carriage of dangerous goods (including transport of radioactive material).

With such an extensive list of exceptions it is ludicrous to make out that the Assembly will be able to make laws on all things that fall under the subject heading of Highways and Transport. Yet the EC's question clearly states that the Assembly will "be able to make laws on all matters in the 20 subject areas it has powers for".

It even puts the "all" in bold letters. It's their emphasis, not mine.


So I despair. To put the question in this form is misleading. As I've said before, there is no way in which any form of question can encapsulate the complexity of the primary lawmaking powers the Assembly will get after a Yes vote unless it makes reference to Schedule 7 of the GoWA 2006.

Yes, I do recognize that they are attempting to make the question understandable—and that, of course, is a good thing—but they are in fact doing exactly the opposite. They are fuelling confusion.

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Anonymous said...

Quick off the mark Syniadau! It would be somewhat clearer if the word order was sorted out, e.g:

"All matters it has power for in the 20 subject areas" instead of "All matters in the 20 subject areas it has power for.

Pedantic point: but I would say power "over" not power "for"....


Hendre said...

"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."

Of course the Assembly can pass measures without needing the agreement of the UK Parliament as things stand. It's powers to pass measures that needs agreement. I'm not sure that distinction is sufficiently clear, especially with True Wales members (and Peter Hain) implying that Westminster somehow scrutinises Assembly legislation.

James Dowden said...

And their grasp of the Welsh language is, errmmm, interesting:

5.7) Not really a good start if they don't understand the Welsh tense system...

5.10) What have they got against using the phrase "Senedd San Steffan"?

5.12) Personally, I don't like the word "datganoli" in any of its forms: think about where it implies the "canol" is.

6.14) Surely "na ddylai"? But I actually prefer this wording to the others, as it seems to better encapsulate the absurdity of the GoWA2006. They should just change the English answers to "it should" and "it shouldn't", rather than "yes" and "no": then there would be no problem.

6.19) No, no, no, no, no, no, no! Not that canard again! That is about as silly in Welsh as complaining about split infinitives is in English. Yes, "eisiau" is a noun, but it is *not* being used as a verb in "ydych chi eisiau": it replaces the "yn" (or "wedi" or "heb" or "newydd" or "am" or several other things); it is essentially being used as a preposition. Yes, there is a construction "oes arnoch eisiau", but it doesn't mean quite the same thing: it certainly doesn't mean that the alternative is wrong. (And what really demonstrates the stupidity of this bugbear is how much more common "sydd eisiau [...]" is than the monstrous "sydd ag eisiau [...] arno/arni/arnynt".)

6.20) And suddenly they go the other way, introducing the interrogative particle "a" and failing to contract "chi yn". It's a miracle that didn't end up as "chwi yn". But we see from the final version of the question that that "chi" disappears. Or some tortured wording to end up with "ïe" and "nage" as answers.

Suggested Redraft) It seems slightly odd asking "a ydych yn dymuno" and then having the answer "ydw". I may be wrong, but it feels as if there's a bit of register shift going on there: it should either be "ydych chi'n dymuno" or "ydwyf". At worst it looks a little patronizing, as it seems to be saying "we can write posher Welsh than you can reply in". And then there's the "ynddynt" on the end: rather parallel to Efrogwr's criticism of their English, wouldn't "drostynt" make more sense?

Anonymous said...

MH - I can understand your caveats, but for people who think or care about such things, the explanitory leaflet that the EC proposes to publish will be a better place to explain the details than the ballot paper, I think.

The new question is definitely a step in the right direction, and is not a fait acomplis,

I agree with Hendre that the True Wales lie that the UK parliament in some way scrutinises assembly legislation needs to be nailed, but that is a job for the YES campaign, not for the electoral commission.

I have to say - I may have said it before on here - that I'd rather see Elfyn Llwyd lead the Plaid Yes campaign rather than Ieuan, as he, Ellfyn, as an MP, cannot be accused of having a vested interest in a YES result.

Anonymous said...

Very interesting post MH, but I'm afraid that - on balance - I don't agree.

Given that this is a referendum on an essentially technical issue - a choice between two different systems for making primary legislation - on the face of it it would make sense to pose a technical question. But the evidence collected by the EC - which itself confirms copious evidence from elsewhere - underlines that anything too technical is likely to prove hugely off-putting to the electorate. So, regrettably, I just can't see how it would be sensible to include reference to Sch.7 or even to Part 4.

With regards the English medium version at least, the EC's draft version seems to me to be a reasonable stab at trying to balance accuracy with accessibility, even if it (inevitably) cleaves a little more towards the latter.

James Dowden said...

Anon@16.45: We seem to be very close to saying that this isn't a very sensible thing to be having a referendum about.

James Dowden said...

Oh, and sorry to double-post, but Vaughan Roderick doesn't like "y DU" or "maes pwnc" either!

MH said...

Thanks for the responses. If I don't comment on them all individually it doesn't mean that I think any less of them. And I won't specifically comment on the Welsh version yet.

What Hendre and Siônnyn said is important. I agree, and I'd hope what I've suggested in my new post reflects that with just a very minor change of words from "these laws" to "laws on these matters".

To Anon 16:45 I would simply say that adding the reference to "Schedule 7 of the GoWA 2006" does not in any way detract from the purpose of making the question understandable. I'm content to go along with the EC's approach, but to just change it slightly in order to make it more precise.

Anonymous said...

James D @ 17.38. Yes, absolutely.

Anonymous said...

whatever the alleged 'shortcomings' on the electoral commission's redrafted question it's certainly a big improvment on the first draft!

We will never be able to get a form of wording that everyone can agree on...if we tried too we would would be here for an eternity...so on the form of the wording there's going to have to be compromise on all sides if the question is to be put to the people of wales before the current one wales agreement runs out!

As a lifelong campaigner for devolution for wales im happy with the EC's draft and would accept it as the question that should be put next march!

Leigh Richards

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