How to damage public confidence in the Assembly

In our recent book Wales says Yes: Devolution and the 2011 Welsh Referendum (University of Wales Press, 2012), we demonstrated that the vote last March was a prime example of an unnecessary referendum. Devolutionists of a certain generation – those scarred by the 1979 experience – may have revelled in the result. But a more sober analysis surely leads to the conclusion that the exercise came very close to dragging the whole democratic process into disrepute.

As the issue ostensibly at stake in the referendum was so narrow and technical – a choice between two systems of primary law making – the efforts of campaigners and commentators to explain the choice failed to cut through to most people, who remained disengaged and apathetic. This alone does much to explain why the turnout was so low.

Silk Commission Special 2 Tomorrow, we report on the recommendations from the Silk Commission published today. A week today, on Monday 26 November, a major conference on the Silk Commission’s recommendations Taxation and Borrowing Powers for Wales is being organised by the Changing Union project, a partnership between the IWA, the Wales Governance Centre at Cardiff University and Cymru Yfory/Tomorrow’s Wales. Keynote speakers include: Paul Silk, Chair of the Commission on Devolution in Wales; Jane Hutt, Finance Minister, Welsh Government; Baroness Randerson, Under-Secretary of State at the Wales Office; and Gerald Holtham, Chair of the Holtham Commission. Full details of the conference and how to attend are here

But the weakness of the campaigns was another major factor. True, the Yes side were stymied by the inadequacies of the legal framework under which referendums in the UK are now conducted. But that does not explain why Yes for Wales was so slow to get off the ground. This was a national campaign that did not even have a bank account until four months before voting day.

Yet compared to their opponents, the Yes campaign was positively Obama-esque in competence and efficiency. Has there ever been a political campaign quite as shambolic and inadequate as that of True Wales? Despite enjoying sustained attention due to the requirement media balance – or, perhaps, because of that attention – True Wales failed to mobilise more than a handful of supporters for its so-called grassroots campaign. It failed to raise more than £4,500 across the whole of Wales; and failed to maintain unity even within its own tiny ranks.

As we demonstrate in our book, pretty much the only positive aspect of the entire 2011 referendum experience was that the final result did reflect the broad views of the Welsh electorate on how they wish to be governed. This is cause for cheer, given that referendums are often high-jacked by factors other than those ostensibly on the ballot paper. But the fact that Wales got, in this sense, the ‘right’ result in 2011 had very little to do with how the referendum was conducted. Instead, it had much more to do with the fact that devolution has been discussed for so long that most people in Wales have been able to develop, in very general terms at least, a settled view on the matter.

After such a patently unsatisfactory experience as March 2011, one might have thought that politicians, and the Welsh political class more generally, would have learned enough to avoid future unnecessary referendums on devolution. Indeed, one might have hoped that we might have developed some clear and well thought out ideas about the circumstances in which referendums are appropriate democratic devices to use, and when they are less appropriate. But it appears that this is not so.

Rather, as the Silk Commission approaches completion of the first part of its mandate – reporting on the financing of devolved government – it seems that a referendum on tax-varying powers is likely. This is, to put it mildly, unfortunate. We can already predict with a very high degree of confidence that any such referendum will witness very low levels of public interest; a lack of vibrant public debate; pitifully lacklustre campaigns; and low voter turnout. It will, in short, almost certainly be a deeply inadequate referendum that will be far more likely to damage public confidence in devolution and the political process than to enhance it. It would also be an unnecessary referendum – as shown by the weakness of the arguments advanced in support of the idea. Three main arguments have emerged: these may be summarised as precedent, principle, and popular expectation.

In September 1997, two questions were put before the Scottish electorate: one on the principle of establishing a Scottish Parliament, the second on whether or not any such Parliament should have powers to vary the basic rate of income tax by 3p in the pound. Some apparently believe that this precedent means that any move to devolve tax-varying powers to Wales could only legitimately take place following a referendum.

Those schooled in British constitutional history will tend to be immediately suspicious of any such argument from precedent. Precedents exist for doing almost anything. All manner of constitutional changes – major and minor – have occurred without recourse to referendums. But the flourishing of the 1997 Scottish precedent is particularly curious, as it wilfully ignores a more recent, and arguably more pertinent, precedent from the same country.

The two Yes votes in Scotland’s 1997 referendum created a Parliament with the option to vary the basic rate of income tax. This taxation power was never used. Indeed, many experts believe that the power was in practice more-or-less unusable. Contrast this with the 2012 Scotland Act, which compels the Scottish Parliament to exercise substantial powers over taxation. The latter provides for a far more fundamental shift in responsibility over tax, and it has taken place without a referendum. It is far from clear to us why the 1997 Scottish precedent should be privileged above the 2012 precedent.

In 2010, the House of Lords Select Committee on the Constitution recommended that referendums are most appropriately used for deciding ‘fundamental constitutional issues’. And it gave abolition of the monarchy, independence for part of the state, and the abolition of one of the houses of the UK parliament as pertinent examples of such issues. Would the granting of tax-varying powers to the National Assembly constitute another such fundamental issue? Would it, as some suggest, change the nature of the relationship between the citizen and the devolved level of government?

Part of the problem with this argument is the manner in which it has been advanced. Thus, transferring income tax powers would, it is suggested, require a referendum but transferring powers over ‘minor taxes’ would not. But if there is a principle at stake about the relationship between citizen and devolved institutions, why it should matter that a tax is ‘major’ or ‘minor’? Should not a referendum be required whatever the perceived status of a tax? In any case, the Welsh Government already has (indirect but substantial) influence over council tax levels. So what principle would really be invoked by any transfer of further tax powers to the Assembly?

A more relevant point of principle is surely the inconsistency now threatened between Scotland and Wales. The 2012 Scotland Act, supported by each of the three main unionist parties there, was grounded in a fundamental premise outlined by the preceding Calman Commission report, that the devolved Scottish Government and Scottish Parliament can only be truly accountable if made fiscally responsible (that is, forced to wield substantial powers over taxation). If this argument is accepted – as it has been by all three major UK parties – for the elected, law-making devolved institutions in Scotland, it is difficult to see why it should not be for the elected, law-making devolved institutions of Wales. Given this, why should powers over taxation in Wales – and thereby true accountability – be regarded as an ‘optional extra’, subject to the outcome of a referendum. Does anyone seriously wish to argue that the Welsh Government and National Assembly for Wales should be less accountable than their Scottish equivalents?

Would the Welsh electorate expect to be consulted in a referendum before tax powers were transferred to Cardiff? In general, when people are asked if they wish to have a say on something, they tend to reply ‘Yes’ – even if they often fail subsequently to take the opportunity to do so. But is there any specific evidence in this case.

The Silk Commission has conducted research into public attitudes, including – somewhat crudely – attitudes towards referendums. The most detailed research into this issue was undertaken in April 2012 by YouGov and the Wales Governance Centre at Cardiff University. We explored whether people differentiate between fundamental and relatively trivial issues in terms of whether decisions should be taken via referendums. Respondents were asked to consider a range of subjects, ranging from a 5 pence charge on carrier bags at one end of the spectrum, to independence and abolition of the monarchy at the other, and asked whether the decision should be left to elected politicians or put to a referendum.

Attitudes towards referendums in Wales

Preamble“Some people think that it is a good idea to give people the chance to decide important political issues themselves by a vote in a referendum.Other people think that it is the job of the politicians we elect to decide major political issues.Holding a referendum takes more time and costs more money. But those in favour of referendums believe that it is important for people to have a direct say.If decisions had to be made about each of the following issues, please indicate whether you think that those decisions should be made by elected politicians, or by the people in a referendum” Whether or not…   The Welsh Government should be given the power to borrow money to spend on capital projects such as building roads and hospitals. Shops should be required to charge 5p for carrier bags. The Welsh Government should be given the power to change levels of landfill tax and air passenger duty in Wales. The Welsh Government should be given the power to raise or lower the basic rate of income tax in Wales by up to 3p in the £. Whether or not the Welsh Government should be given complete control over all taxes paid in Wales. Whether or not Wales should become an independent country. Whether or not the Monarchy should be abolished.   Decide by referendum Politicans decide Net decide by referendum Borrowing powers 37 48 -11 5p carrier bag charge 31 56 -25 Landfill Tax/APD 27 56 -29 Vary basic rate of income tax by 3p 41 44 -3 Complete tax devolution 53 32 +21 Independence for Wales 80 8 +72 Abolish monarchy 70 12 +58 Number of respondents = 1,039

Three things stand out from the results in the table. First, a substantial proportion of the electorate – around a third – seem to favour referendums for pretty much everything. If they had their way, Welsh life would be an endless series of visits to the polling booth. But beyond this group – and this is the second key point – we find that most voters do indeed differentiate between fundamental and relatively trivial matters, believing that while the former should be the subject of referendums the latter can be left to the ordinary political process.

Finally, and most germane to our present discussion, when voters are probed about the policy that was the subject of Scotland’s second referendum question in 1997 – that is that the devolved level in Wales should have the power to vary the basic rate of income tax by 3 pence – a small plurality believe that the decision can be left to elected politicians. One must, of course, avoid over-interpreting the findings of one survey. But, at a minimum, our findings do undermine any claim that there is a clear public expectation of a referendum on tax powers.

The arguments from precedent, principle or popular expectation that a referendum must be held on the Silk taxation recommendations do not withstand critical scrutiny. Indeed, all three can quite easily be reframed into better arguments for not holding any such referendum. Having a taxation referendum would mean spending several million pounds to conduct an event whose most likely main accomplishment would be to make the 35.6 percent turnout achieved in March 2011 appear relatively high. And given the lack of years of preceding public debate, we cannot even expect the eccentric minority who would vote to do so on the basis of a considered view as to whether or not the National Assembly should have powers in the area of taxation.

Surely we’re not really going to do this, are we?