Back to the Beginning

Cheryl Gillan has fallen into the trap that was set for her. She has today refused the First Minister's request to lay a draft Referendum Order before Parliament. This means that a fresh request will have to be made.

This is an extract from her statement:

Decision on draft referendum Order

On 17 February 2010 the First Minister wrote to the previous Secretary of State for Wales to notify him of the National Assembly for Wales’s resolution made on 9 February, calling for a referendum on further law-making powers for the Assembly. This triggered a statutory requirement for the Secretary of State to either lay a draft Order in Council under section 103(1) of the Government of Wales Act (draft referendum Order) before Parliament, or refuse to do so and give reasons for the refusal, within the period of 120 days ending on 17 June 2010.

The principal reason I am unable to lay the draft Order within the period ending on 17 June 2010 is that due to circumstances I inherited from the previous administration, I have not been able to fulfil my duty set out in section 104(4) of the Political Parties, Elections and Referendums Act 2000 to consult the Electoral Commission on the wording of the referendum question, and as a result the Electoral Commission has not yet tested and reported on the intelligibility of the question. Your decision that the date and question should not be considered until after the General Election has meant that we have not yet submitted a question to the Electoral Commission, which has confirmed that it will need at least 10 weeks to carry out its assessment and then report. This inevitably leads to a position where we cannot lay the referendum Order by the 17 June 2010.

Wales Office Statement, 15 June 2010

It's worth commenting on her rather strange reference to "your decision". This is a letter to the First Minister, and the decision not to do anything was made not by Carwyn Jones, but by Peter Hain. So Ms Gillan is wrong ... but not so very wrong, for it was Labour's decision.

In my opinion, she could have laid the draft Referendum Order now, with dates for the poll and referendum period and with her best attempt at a question. Doing it that way would have been bending the rules a little (because she would have had to withdraw it and lay a new order later ... which is what happens with LCOs) but would have prevented others from saying that she refused the request. I'd be willing to bet that Labour will now shout this accusation very loudly, and I would urge Plaid Cymru's politicians not to get caught up in it. I'll repeat that:

Please don't do it. Don't get caught up in Labour's silly little games.

There's one simple reason for this: in practical terms it doesn't make any real difference. As we're not going to have the referendum until March, there is enough time to start the whole process over again.

     

So what happens next? The First Minister will have to write to the Secretary of State with a fresh request for a referendum. It's questionable whether the previous unanimous vote on 9 February will have to be repeated or not. I would say it probably doesn't need to be repeated ... but if the lawyers say it does, it's only an inconvenience.

Much more interesting will be what the First Minister says in his new request. First time round he believed that he should only request a referendum without specifying the date or the wording of the question ... leaving it entirely up to the Secretary of State to decide these things. But since then he has changed his mind and suggested both a date and a form of words. I'm quite sure he will say that this has absolutely nothing to do with the fact that Peter Hain is no longer Secretary of State. As if.

But what will he do this time round? My guess is that he will write two letters. The first will be a "formal" request in the same form as the previous request, but he will include his suggestions for the date and wording in a covering letter. But whatever he suggests, he is either going to have to leave it up to Ms Gillan to decide both ... or admit that he got it wrong first time round. Pride will get the better of him.

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So the big question is what Cheryl Gillan will decide. She rightly said that Peter Hain did nothing with respect to the previous request, but does she really expect to get away with not telling us how far she has now got with it? Simply deciding to refuse to lay the Referendum Order is not very far to have come if this was indeed her "main priority" since she took up the job.

Sooner or later she is going to have to make a decision ... though she'll probably say she won't do anything until she gets the new request. However she must then act fairly quickly to put a draft question to the Electoral Commission and allow them their ten weeks to test it, for that will take 70 out of the 120 days she will have before she lays the draft RO. I trust that she will make this a transparent process, but it is probably within her power to insist that it is all done in private.

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As for the date, this is the crucial part of the letter:

Both you and I and the Deputy First Minister have discussed a possible timetable for the referendum, taking account of all the stages that need to be gone through to prepare for it. In the light of our discussion, we have agreed that we should aim for a referendum to be held before the end of the first quarter of 2011.

This answers one crucial question. It means that the referendum will not be held on the same day as the Assembly election. As I have said here, I strongly advocate holding the referendum on 31 March 2011 because it will be the first light Thursday after the clocks go forward, and this will increase turnout. We can also put the Assembly election back by four weeks to 2 June 2011 to allow a decent interval between the two polls.