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.

Question
Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?

Yes
No

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:

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
which—
(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.