Three months too late

I've said before on this blog that Carwyn Jones isn't exactly quick on his feet. So it brought a smile to my face to see the sudden spurt of commitment a referendum in October this year, and even a suggestion for how to word the question. If only he had done it three months ago.

As for the date, it goes without saying that he has left things until it was too late for his interjection to have any effect. But the wording of the question is relevant, and so it's worth looking at in a little more detail.

As it happens I read the version in Welsh first on Vaughan Roderick's blog.

Ar hyn o bryd mae'r Cynulliad yn cael deddfu ar rai pethau, ond nid ar bethau eraill, sy'n effeithio ar bobl Cymru yn unig.

Mae Senedd y Deyrnas Unedig wedi penderfynu y dylai'r Cynulliad gael deddfu ar bopeth sy'n ymwneud â meysydd sydd wedi'u datganoli i Gymru. Ond dim ond os bydd pleidleiswyr yng Nghymru yn cefnogi hynny mewn refferendwm y gall hynny ddigwydd.

Mae'r meysydd sydd wedi'u datganoli yn cynnwys iechyd a gwasanaethau cymdeithasol, tai, addysg a llywodraeth leol. Ni fyddai modd i'r deddfau ymwneud â nawdd cymdeithasol, amddiffyn a materion tramor.

Ydych chi am i'r Cynulliad gael y pwer yn awr i ddeddfu ar yr holl feysydd sydd wedi'u datganoli i Gymru?

YDW
NAC YDW

I shook my head in disbelief. But as I was halfway through writing about it, Betsan Powys posted the English version ... which was rather different.

What is wrong with the Welsh version is in this sentence: "Mae Senedd y Deyrnas Unedig wedi penderfynu y dylai'r Cynulliad gael deddfu ar bopeth sy'n ymwneud â meysydd sydd wedi'u datganoli i Gymru." The highlighted part translates as, "be able to legislate on everything in the areas which have been devolved to Wales".

This is wrong. There are twenty subject areas devolved to Wales, but even after a Yes vote the Assembly will not get the power to legislate "on everything in the areas devolved to Wales" ... it will only get powers to legislate on some matters in areas that are devolved to Wales. There is a whole tranche of exceptions, and exceptions to those exceptions, as set out in Schedule 7 of the GoWA 2006.

With that in mind, let's now look at the English version:

At the moment the Assembly can make laws about some, but not all, things which only affect people in Wales.

Parliament has decided that the Assembly should be able to pass its own laws for Wales on all devolved subjects. But this can only happen if voters in Wales support this in a referendum.

The devolved subjects include health and social services, housing, education and local government. The laws could not be about social security, defence or foreign affairs.

Do you want the Assembly to have the power now to pass laws on all the subjects which are devolved to Wales?

YES
NO

Although it conveys the same impression, it is much cleverer because it does not use the word "everything". It is true that the Assembly will will be able to pass its own laws on all devolved subjects ... but not on everything to do with those devolved subjects.

I could make a point about the standard of Welsh translation, even though I think it would be more pertinent to ask why the question wasn't thought of in Welsh and English at the same time. Whoever was responsible for the Welsh version clearly didn't understand the political issue well enough ... but then no-one in Carwyn Jones' office picked it up before it was released, either.

Now of course it could be re-translated, but even that would be to miss the main point: namely that we shouldn't need to rely on "clever" wording. The question should be straightforward and neutral enough not to need clever wording.

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In any situation of this sort, one of the best indicators of how fair the wording actually is will be to look at the reactions of those on the other side of the argument. True Wales have hardly shown any great understanding of the issues involved so far, but they still need to be listened to because they are the closest thing there is to a No campaign. In this story in the Western Mail on Friday, Rachel Banner made these points:

Rachel Banner, a spokeswoman for the True Wales group that opposes further powers for the Assembly, said: "I think there are a number of problems with this proposed question. I would certainly phrase the first sentence slightly differently – it needs to be more specific. The reference to 'things which only affect people in Wales' raises further questions in itself.

"The second sentence is, I believe, factually wrong. Parliament has not decided that the Assembly 'should' be able to pass its own laws for Wales – there is no moral imperative.

Parliament’s position [in the Government of Wales Act 2006] is that the people of Wales should decide whether they want more powers or not in a referendum.

Ms Banner also thought the list of areas for which the Assembly has responsibility should be more complete, and that if there is to be any question of transferring further powers to the Assembly, over the criminal justice system, for example, that should be reflected in the question.

I'll deal with her second point first because there's not much in it. The "should" is modified by the "but only if" in the following sentence. There is no doubt that Parliament wants the Assembly to have primary lawmaking powers if we vote for it in a referendum ... otherwise they wouldn't have passed the Act.

But I have to say that I do agree with her main point that the question is not specific enough. She says that she wants the list of areas for which the Assembly will have legislative responsibility to be "more complete".

Well, we can help her out with that one. As I said, in Schedule 7 we have a complete, definitive list of the areas for which the Assembly will have legislative responsibility if we vote Yes in the referendum. That's why I have argued for some time, see here, that it must be part of the question.

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I can see the point of what Carwyn Jones is trying to do all too well. It is an attempt to simplify the issue so that it can be more easily understood by more people. That's a good intention, but one which I think is likely to have unintended consequences. If we phrase the question in a wide, open-ended way using generalities such as "laws about things which only affect people in Wales" we make it all the more likely that the issue will get confused.

As just one example of this, Ms Banner has brought the criminal justice system into the equation. True Wales has brought up similar red herrings in the past about the number of AMs or this being a vote about independence. Of course they are free to go off on any tangent they like, but why make it easy for them to keep doing this by coming up with a wording based on the general description of "laws about things which only affect people in Wales"? That description does apply to the criminal justice system in Wales, and the same description could equally well describe the welfare and benefits system in Wales too ... but neither of them will be changed by this referendum.

So it isn't enough to say, "the laws could not be about social security, defence or foreign affairs" because these are only some examples of what is outside the scope of Schedule 7. Why pick these to put in the official question but not others? The list has to be referred to in its entirety.

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The mistake is to think that the form of the question will in some way determine what we get if we vote Yes. But what we will get if we vote Yes is already defined by the GoWA 2006, irrespective of the precise wording of the question.

Now of course not many people will read Schedule 7, but that's not the point. The point is that it is there for people to read if they want to, in whatever degree of detail they want to go into. Sometimes there is no alternative but to refer to the precise details of what is in question. In that respect "Schedule 7" should be no more difficult for people in Wales to understand than "Proposition 16" to the people of California or the "28th Amendment" to the people of Ireland. It is unreasonable to expect a few short sentences in the preamble to describe or explain the detail of what it contains.

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In today's Western Mail the story about the timing of the referendum still rumbles on, but I'd like to highlight one part of it which might be misleading:

Last week First Minister Carwyn Jones sent a draft referendum question to Ms Gillan, whose legal responsibility it is to approve it after consulting the commission.

If the Assembly had been more proactive earlier this year, they could have passed a motion on both the wording of the question and the date of the referendum. But they chose only to make an open-ended request for a referendum, leaving it entirely up to the Secretary of State for Wales to draft the question and set dates for the poll and the official referendum period leading up to it.

Peter Hain didn't do either while he had the chance to, so that task now falls to Cheryl Gillan. It is now entirely up to her to set the question and the timetable. Carwyn Jones' suggestion is only a suggestion. I would advise her to cut out the unnecessary verbage and make it much more precise. It needs to be simple and unambiguous.

She is in a very tricky legal situation because Section 104.4(a) of the PPERA requires the SoS to consult with the Electoral Commission before the draft Referendum Order is laid. And (b) requires the SoS to also lay "a report stating any views as to the intelligibility of that question" "at the time when any such draft is laid".

This can be done before the 120 day deadline expires on 17 June, for the EC has said:

There is no mandatory obligation for there to be a 10-week consultation period, although we have expressed our view that such a period is desirable. But if we were asked to produce a report within a week, we would do so.

But there are no prizes for guessing what that report will say. In essence it will say that the EC has no views on the intelligibility of the question as yet, because it has not had the time to carry out its usual procedure for testing it. However it would still, technically, be a report, and as such it would enable Ms Gillan to lay the Referendum Order.

It is important that she does lay it because the only other alternative is to refuse to do so ... and the political consequences of that refusal would be enormous. This is the trap that Peter Hain has set for her.

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My advice to her would be to take her best shot at a question that seems fair to her (and if she needs a suggestion from me, it's here) and set the date for March. This gives everybody a bit of breathing space.

Whatever question she sets, we can guarantee that she will get criticism from all sides for it. So if she's wise, she will ask the EC to carry out its usual procedures and follow the advice they give her in ten weeks' time. If they have no adverse comments, all well and good. But if they are not happy and suggest a better question, the draft Referendum Order can be withdrawn and replaced with an amended version. It's not the ideal way to do it, but I trust she will see that it is much better for her to do it this way than to refuse to lay the Referendum Order.