New question posed for increasing Assembly powers

The Electoral Commission is recommending a completely different question in the forthcoming referendum on increased law-making powers for the National Assembly than the one proposed in June by the Secretary of State for Wales, Cheryl Gillan. Based on an extensive opinion survey and consultations with constitutional experts, the Commission found that many people either misunderstood the Secretary of State’s question or drew from it an inaccurate perception of what the referendum is about.

For example, some people thought the question implied the Assembly would be getting many more powers than would be the case, or even independence, and consequently would have voted No. As the Commission puts it:

“These respondents initially believed that the question was asking about a larger increase in the powers of the Assembly than it actually was (either independence for Wales or tax-raising powers). They did not want the Assembly’s powers to be increased to this extent and had answered ‘No’. However, they said that if they had understood the true meaning of the question and the limitations in the powers being voted on, they would have voted ‘Yes’.”

The Commission quotes from evidence it received from the IWA, referring to the way Secretary of State’s proposed preamble covered the role of the UK Parliament:

“… [the IWA] submitted that the use of the phrase in the preamble ‘bit by bit, with the agreement of Parliament each time’ invited people to make the judgement that this would be a moderate, middle ground and a common sense way to proceed. (Leading people to think it is a preferable option.) As well as introducing an argument into the explanation, in the IWA’s view this did not cover the point that some powers are denied and others often take many years to achieve – three years in one example given.”

A related issue was taken up by the Professor Richard Wyn Jones, Director of the Wales Governance Centre at Cardiff University. As the Commission puts it, he:

“…pointed out that the ‘bit by bit’ formulation repeated the formulation used by the All Wales Convention. He submitted that the formulation strongly implied that under the current dispensation one ends up moving towards the same destination as provided for in Part 4 of the Government of Wales Act albeit at a different pace. Professor Jones commented that this was the expectation of many at the time of the passing of the Government of Wales Act and even as the All Wales Convention began its work. However, in his view, those expectations have proven to be sorely mistaken. He submitted that the latest version of Schedule 5 of the Government of Wales Act could not be compared with Schedule 7 and the conclusion reached that the direction of travel, let alone the destination, were the same. In his view, the ‘bit by bit’ formulation was now materially misleading.”

The Electoral Commission is heavily critical of the over-complex and general over-technical language used in the Secretary of State’s question. It concludes:

• Our assessment means that some particular words, phrases and terminology must be redrafted if the question is to be understood by voters.
• The preamble should be less densely worded and the format must be easier to read and more accessible.

The overall result is a complete re-wording of the proposed preamble and question as submitted by the Secretary of State to the Commission on 23 June. The Commission’s recommendation for the preamble and question is set out below, followed by the Secretary of State’s original proposal:

Electoral Commission’s proposed preamble and question

The Assembly has powers to make laws on 20 subject areas, such as: • agriculture • the environment • housing • education • health • 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

Secretary of State for Wales’s proposed preamble and question

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 that 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? Yes, I agree No, I do not agree

The Commission comments trenchantly on the extremely low levels of public awareness about the devolution process in Wales and the forthcoming referendum. As it says:

“Participants in our public opinion research generally had a low level of public awareness that a referendum on law-making powers of the Assembly is to be held; what the referendum is about or, indeed, what a referendum is.

“Even those who did know that a referendum would be taking place nevertheless came to the research with many misconceptions about what the question would be asking them. Some people had expected that the vote would be about more substantial change. They expected the referendum to deliver more powers for the Assembly than it is currently possible for it to obtain. Some people thought the referendum will be about the Assembly gaining tax-raising powers or independence for Wales.

“While these misconceptions may to an extent be resolved by campaigning and information presented to the electorate before the referendum, our research has clearly shown that the question in its current form is not taking account of these misconceptions adequately.

“A few individuals in our research who had a good understanding of the subject of the referendum prior to attending the research came to doubt their understanding after reading the question. In these instances, the question was not supporting or reinforcing the existing knowledge which more well-informed people have.

“This calls into question the suitability of the question in its current form and shows that poor awareness of devolution and the powers of the Assembly was not the only reason for people misinterpreting the referendum question. The structure of the question and the particular words and phrases used also affected their understanding.”

The Commission says it intends to provide a public information leaflet about the referendum to all households in Wales:

“The leaflet will explain what the referendum is, a short description of what it is about, and how to vote in it. The leaflet will be timed to reach people who vote by post just before they receive their postal ballot packs. However, although such a leaflet will assist, as will website information, it will only be a partial solution, and the context in which the referendum question is being asked means that there will be more reliance by voters on the preamble as a source of information than ideally would be the case.”

In a statement responding to today’s report, the Secretary of State Cheryl Gillan said:

“I am grateful to the Electoral Commission for publishing today’s report and for their comments on the intelligibility of the referendum question and preceding statement. It is a thorough report and an important part of the process in ensuring people understand what they are being asked to vote on. I will discuss the report with the First Minister next Monday and will work with him to consider the Commission’s suggestions and how we best proceed to ensure the question set out in the referendum order is clear and concise. This will allow us to hold the referendum by the end of March 2011 as intended.”