Updating the Referendum Timetable

On this page of the BBC website the new Secretary of State for Wales, Cheryl Gillan, has been reported as saying:

I was shocked when I opened the first items on my desk to find that the question on the referendum had not been progressed at all.

She really has no reason to be shocked. If she had been following events she would have already known that Peter Hain had done nothing and did not intend to do anything about the Referendum Order. In March, the Western Mail mistakenly reported that he had consulted the Electoral Commission about the wording of the question; but I checked that with them and found that it wasn't true, as I reported in this post.

Of course his department could and should have put a question (or perhaps even a set of alternatives) to the Electoral Commission for comment, not least because they need two weeks notice followed by eight weeks to properly test and evaluate the wording. So if the BBC has reported him accurately, this statement is a very obvious lie:

[Hain] said all necessary work to prepare for a referendum "was carried out immediately under my express instructions".

But let's forget the silly game playing and concentrate on what now needs to be done.

     

The issue isn't at all complicated, and Cheryl Gillan can easily deal with the referendum request in the month or so she has left before she has to make a decision on whether to lay a draft RO before Parliament or not. She only needs to do three things:

•  Propose the wording of the question – which may subsequently be modified following comment from the Electoral Commission before the final Referendum Order is passed

•  Set the official referendum period – which cannot be less than ten weeks

•  Set the date for the poll
 

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 Cheryl Gillan proposes a form of words to be put into the draft Referendum Order. The wording can be always be modified as the RO progresses, in just the same way as happens with LCOs.

As I noted above, the Electoral Commission has not yet been put on notice that a question is due to be put to them, and the evaluation process will take eight weeks in addition to that two week notice period. So even if Cheryl Gillam puts things in motion next week, they will not be able to respond before the end of July.
 

The Referendum Period

The PPERA 2000 sets out that there must be a minimum period of ten weeks prior to a referendum. It has three elements:

•  In the first 28 day period all groups that intend to spend money on campaigning one way or the other can apply to the Electoral Commission to become "permitted participants" and will become subject to the rules, in particular the spending rules, set out in the PPERA. There will be many of these, including political parties and other groups. Any of these groups may also apply to be the "designated organization" for the Yes or No campaigns in this period.

•  The EC will then have 14 days to consider their applications and may, if appropriate, appoint a "designated organization" for each side. They may also—but are not required to—give these two organizations an equal amount of money. It is important to note that the decision about money will only be made at that time, so the subject does not need to be addressed in the Referendum Order.

•  After this 14 day period there must be a minimum of 28 days before the actual referendum is held. However this period could be longer and in my opinion it should be.
 

The Date of the Referendum

I had wanted the date of the poll to be 28 October, i.e. just before the clocks go back on 31 October, because dark evenings will have a negative effect on turnout. But counting back ten weeks from that date, the Referendum Period would have to begin on 19 August at the latest. The Electoral Commission will not have given its opinion on the wording of the question until the end of July. That would leave a three week window for the RO to be finalized and passed. In itself that would be very tight, but because both Parliament and the Assembly will be in recess in late July and August it is for all practical purposes impossible to get that date now.

With October ruled out, the next alternative would be to hold the referendum in early March—either 3 March or 10 March—because nobody would want a referendum held in winter. I would not object to this, however the clocks go forward on the last Sunday of March, and lighter evenings will help to increase the turnout. So because 31 March 2011 is the first "light" Thursday, this is the date I would now prefer to see chosen. Campaigning and canvassing in March will be a lot better than doing it in February.

However if this is done, the Assembly elections due for 5 May should be (this is allowed for in the GoWA 2006) delayed by four weeks and held on 2 June 2011. This would leave an interval of nine weeks, which seems to be an ideal interval since there is a lot to be said for letting the referendum campaign lead on into the Assembly election campaign, in order to focus public attention on both, and increase participation.

So I would recommend that the Referendum Period starts in the first week of January 2011, in order that the "designated organization" for each side and amount of money allocated to them can be finalized in mid-February. This would allow about ten weeks of campaigning before the poll itself, which I think is ample.

     

In conclusion, Cheryl Gillan might have reason to be concerned at whether the Wales Office could process the request for a referendum in the month or so that is left of the 120 day statutory period if it were a complicated matter. But it really isn't that complicated, so she has no excuse not to do it. These three things are the only things that need to be decided at this stage.

It might be worth noting that because of the recent election the first session of Parliament—due to begin with the Queen's Speech on 25 May—will be longer than a year and run through to Autumn 2011. This means that the RO will not "fall" by being laid just before the summer recess, as might usually be the case. But the chances are that after it is laid in mid-June, nothing much will happen to it before the summer recess, because the Electoral Commission will not have given its opinion on the wording of the question until then. I would expect it to be taken up in earnest in October 2010, and complete what is surely going to be an uncontentious passage before being approved in Council in November or early December.

Having now lost the opportunity of holding the referendum in October 2010, there will be no particular need to rush things in Parliament in order to hold the referendum in March 2011 ... provided that Cheryl Gillan lays the draft RO before Parliament next month. But if it is not laid then, everything will have to go back to square one with a new vote in the Senedd and a new request by the First Minister.