What’s in a question?

The IWA says today that the Wales Office’s proposed formula for the Question that will be put in the referendum on extending the National Assembly’s legislative powers is tendentious. It says the wording proposed by the Secretary of State for Wales, Cheryl Gillan, suggests that the status quo that would be delivered by a No vote would be “a moderate, middle ground and common sense way to proceed”.

In its response to the Electoral Commission’s consultation on the wording, the IWA also says that the Secretary of State’s formula for the Preamble that proceeds the question is ambiguous. This is because it implies that if there was a yes vote the Assembly would gain “powers to pass laws on all subjects in the devolved areas”. As the IWA’s response puts it:

“It is the use of the word ‘all’ in this description that creates the problem since it gives the impression that the Assembly will have ‘full’ powers in the areas devolved to Wales in the event of a Yes vote. However, this will not be the case. In all the 20 subject areas in Schedule 7 of the 2006 Wales Act there are complex exceptions to what the Assembly can legislate about and, furthermore, many powers remain reserved to Westminster.”

The IWA’s submission argues that the Secretary of State’s proposed wording, especially for the Question itself, is too long and complex and for these reasons would be “unintelligible” to the voter. It proposes a shorter and simpler alternative, 95 words, compared with the 139 words of the Secretary of State’s proposal which is as follows:

“At present, the National Assembly for Wales (the Assembly) has powers to make laws for Wales on some subjects within devolved areas. Devolved areas include health, education, social services, local government and environment. The Assembly can gain further powers to make laws in devolved areas with the agreement of the Parliament of the United Kingdom (Parliament) on a subject by subject basis.

If most people vote Yes in this referendum the Assembly will gain powers to pass laws on all subjects in the devolved areas. If most people vote No, then the present arrangements, which transfer law-making power bit by bit, with the agreement of Parliament each time, will continue.

Do you agree that the Assembly should now have powers to pass laws on all subjects in the devolved areas without needing the agreement of Parliament first?”

The full text of the IWA’s Constitutional Working Group response to this wording is as follows:

“Our response takes into account the draft wording that has been proposed by the Wales Office together with the guidelines drawn up by the Commission. We believe the Wales Office wording needs to be amended in three respects, taking into account three of  the Commission’s guidelines:

1.    That the Preceding Statement and Question should be intelligible to the voter, and written in plain language with concise sentences.

2.    The Preceding Statement and Question should be written in neutral language.

3.    The information contained in the Preceding Statement is factual, describing the options accurately.

On the first, we believe the proposed preamble is too long and written in an over-complex language that needs to be simplified. For example, we believe use of the expression ‘within devolved areas’ will halt many people in their tracks. There is a widespread lack of understanding and knowledge about devolution amongst many Welsh people, as the Commission will be aware from its own research. As it stands there is a danger that many voters will simply ignore the Preceding Statement and go straight to the Question. Moreover, as it stands the Question itself is too long and too complex to be intelligible to the voter.

On the second point we believe that the final sentence in the Preceding Statement is tendentious. The use of the phrase “bit by bit, with the agreement of Parliament each time” in the sentence invites people to make the judgement that this would be a moderate, middle ground and common sense way to proceed. As such it is introducing an argument into the explanation. Moreover, it doesn’t explain that some powers are denied and others often take many years to achieve. For example, the first Legislative Competence Order to be requested by the Assembly, on the Environment, took three years to be agreed.

On the third point we believe the sentence in the Preceding Statement explaining the implications of a Yes vote is misleading or, at the least ambiguous, in saying that the Assembly “will gain powers to pass laws on all subjects in the devolved areas”. It is the use of the word ‘all’ in this description that creates the problem since it gives the impression that the Assembly will have ‘full’ powers in the areas devolved to Wales in the event of a Yes vote. However, this will not be the case. In all the 20 subject areas in Schedule 7 of the 2006 Wales Act there are complex exceptions to what the Assembly can legislate about and, furthermore, many powers remain reserved to Westminster. Therefore, we believe that reference to ‘all’ powers in the Preceding statement and Question should be deleted.

Accordingly, we believe that the proposed Preceding Statement and Question should be amended to read as follows:

At present the National Assembly has powers granted by the UK Parliament on a case by case basis to make laws on some subjects devolved to Wales. These include health, education, social services, local government, and environment.

If most people vote yes in this referendum the Assembly will gain powers to pass laws on the subjects devolved to Wales without needing the agreement of Parliament first. If most people vote no, then the present arrangements will continue.

Do you agree that the Assembly should have powers to pass laws on the subjects devolved to Wales?

We believe that this wording follows the thrust and meaning of the Wales Office proposal, but has the following advantages:

• It is shorter, simpler, and therefore more intelligible – in total 95 words compared with 139 in the wording proposed by the Wales Office.
• The Question is shorter, clearer, and for these reasons more intelligible.
• Duplication, such as placing (the Assembly) after ‘National Assembly for Wales’ and (Parliament) after ‘the Parliament of the United Kingdom’, is avoided.
• Complex phraseology, such as ‘within devolved areas’ is replaced by the simpler and more comprehensible ‘devolved to Wales’.
• The tendentious explanation of the meaning or implications of a ‘No’ vote is removed and replaced by simply referring to the forgoing description of the present situation.
• Accuracy is restored to, or ambiguity removed from, the sentence on the implications of a Yes vote, by deleting reference to ‘all’ in the description of the legislative powers that will accrue to the Assembly.”