Referendum for Wales: extending the scope of Assembly powers
Standard Note: SN/PC/05685 Last updated: 27 October 2010
Author: Paul Bowers Section Parliament and Constitution Centre
The National Assembly for Wales can pass laws, known as “measures”, on a restricted list of topics. These are set out in Schedule 5 of the Government of Wales Act 2006, where they are grouped under general headings (“fields”), and then broken down into more specific items (“matters”).
This list can be expanded in two ways. On the one hand, Parliament can include a provision in an Act stating that some aspects of what the Act covers can be dealt with by the National Assembly for Wales. It does this by adding them to the list of matters in Schedule 5. On the other hand, the Assembly can request an Order in Council that specifies new topics on which it may legislate. These would usually be matters, in other words, items of some detail, although it is possible that they might include whole new fields.
The Government of Wales Act 2006 also includes an arrangement whereby the Assembly could exercise primary law making powers in respect of a much greater number of issues, albeit still restricted within the same broad headings. This would be subject to approval in a referendum. It is contained in Part 4 of the Act.
On 9 February 2010 the Assembly passed a Resolution calling for such a referendum. The First Minister gave notice of this to the Secretary of State on 17 February 2010. The Secretary of State had 120 days either to lay a draft statutory instrument containing the Order in Council for the referendum, or to refuse with reasons. On 15 June 2010 the new Secretary of State, Cheryl Gillan, announced that she was unable to lay the draft instrument within the 120 day period, but that she would do so in due course, with the aim of holding the referendum in the first quarter of 2011.
Mrs Gillan consulted the Electoral Commission on her proposed question and preamble. The Commission suggested a revised version with the aim of increasing the chance that voters would understand the choices before them, and the implications of a yes or no vote. Mrs Gillan stated on 9 September 2010 that, with the agreement of the First Minister and Deputy First Minister in Wales, she had decided to accept the Electoral Commission’s suggested text. The Welsh Assembly Government suggested that the referendum be held on 3 March
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This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. 2011.
On 21 October 2010 Mrs Gillan laid the necessary draft Orders, embodying the Electoral Commission’s question and setting a date of 3 March 2011.
This Note explains the current arrangements under which the Assembly legislates, the new approach if the referendum approves a change, and how the move to a referendum has come about. A separate Note will be prepared on the draft Orders.
Contents
1 Introduction 3
2 The present arrangements 3 2.1 Procedure 3 2.2 Legislative competence 4
3 The alternative in Part 4 of the 2006 Act 5 3.1 Legislative competence 6 3.2 Procedure 8 3.3 Questions where legislative competence is in doubt 8
4 How to move to Part 4 11 4.1 Referendum 11
5 Pressure for change: how the request for a referendum came about 13 5.1 The Welsh Assembly Government 13 5.2 All Wales Convention 13 5.3 The formal process 16 5.4 The draft referendum question 17 5.5 Secretary of State’s statement 20 5.6 Orders laid 21
2 1 Introduction The legislative powers of the National Assembly for Wales are confined in two ways. First, by the general scope of the subject areas that have been devolved, and secondly by the need for specific legislation to confer powers on the Assembly to make new laws in those areas.
The arrangements under the Government of Wales Act 1998 were different: there was no formal distinction between the executive and the legislature, the powers of the Secretary of State for Wales were transferred to the National Assembly for Wales, and it could pass secondary legislation within the devolved fields. These fields were set out in Schedule 2 to the Act. In practice, the Assembly delegated most of its powers to the First Minister, who delegated them to other Ministers.
Under the Government of Wales Act 2006 the legislature, the National Assembly for Wales (the Assembly), was separated from the executive, the Welsh Assembly Government (WAG). The latter inherited all powers previously exercised by the old Assembly other than those explicitly transferred to the new Assembly. Thus it exercises functions across the range of devolved subjects. However, at the point of separation (after the 2007 elections) the Assembly itself gained legislative power in only a sub-set of these, with mechanisms to expand the sub-set over time.
2 The present arrangements 2.1 Procedure The provisions under which the Assembly legislates at present are set out in Part 3 of the 2006 Act, with detailed arrangements covered by the Standing Orders. The laws it makes are known as “measures”, and they are enacted when they are passed by the Assembly and approved by Her Majesty in Council.1
A draft measure may be introduced by any Assembly Member; that person, and the Presiding Officer, must each state that they believe the measure would fall within the Assembly’s legislative competence. 2 The draft must then pass through four “stages” before it is passed. In Stage 1 the general principles are considered by a legislation committee, and then by the Assembly, which must agree the principles before the draft can proceed. Stage 2 is an amending committee stage, with line by line scrutiny. At Stage 3 the revised draft measure is considered by the Assembly, and it may be further amended. Stage 4 is the final consideration and vote.3
After the passage of a Measure the Welsh Counsel General, or the Attorney General, may, within a four week period, refer it to the Supreme Court on a question as to whether it falls within the Assembly’s competence.4
The Secretary of State retains rights to block a Measure in certain circumstances. Within four weeks of a Measure being passed, the Secretary of State may make an order under the negative procedure prohibiting the Clerk from submitting it for Royal approval if: 5
1 Government of Wales Act 2006, Section 93. 2 Section 97. 3 Summarised on the National Assembly for Wales website, deriving from Standing Orders. 4 Government of Wales Act 2006, Section 99. 5 Section 101.
3 • it would have an adverse effect on a non-devolved matter,
• it might have a serious adverse impact on water resources, supply or quality in England,
• it would have an adverse effect on the operation of the law in England, or
• it would be incompatible with international obligations, defence or national security.
In addition to these provisions, the UK Parliament retains the right to legislate for Wales.6 This reflects its sovereign position, as well being designed for convenience when, for instance, legislation is passed at Westminster to allow the UK to fulfil its international obligations, where that legislation also touches on devolved matters.
2.2 Legislative competence This system seems relatively straightforward. However, there is complexity in the scope of subjects on which the Assembly may legislate, known as its “legislative competence”. This is set out in Schedule 5 of the 2006 Act, Part 1 of which includes a list of everything on which the Assembly may pass measures. It does so by grouping these items under headings. The broad headings, of which there are 20, are known as “fields”, while the detailed items within them are known as “matters”.
The fields are:
Field 1: Agriculture, fisheries, forestry and rural development Field 2: Ancient monuments and historic buildings Field 3: Culture Field 4: Economic development Field 5: Education and training Field 6: Environment Field 7: Fire and rescue services and promotion of fire safety Field 8: Food Field 9: Health and health services Field 10: Highways and transport Field 11: Housing Field 12: Local government Field 13: National Assembly for Wales Field 14: Public administration Field 15: Social welfare Field 16: Sport and recreation Field 17: Tourism Field 18: Town and country planning Field 19: Water and flood defence Field 20: Welsh language
While the Assembly potentially may gain competence in any field, it may legislate only on matters that have been added to the list in Schedule 5, Part 1. When the Act was passed the list included matters only within Field 13, relating to the Assembly itself. All the other fields were blank.
6 Section 93(5).
4 How may new matters be added?
Acts of the UK Parliament can provide power for the Assembly to legislate on particular issues by adding new matters to the list in Schedule 5, Part 1. So, for instance, the Education and Skills Act 2008, which creates various arrangements in England and Wales, as well as having some impact across the UK, also amends the Government of Wales Act 2006 so as to allow the Assembly to regulate schools that are not maintained by local education authorities and other relevant independent educational institutions.7 This technique is known as “framework legislation” or “framework powers”. There is no provision for it in the 2006 Act, as it is simply a policy move by the UK Parliament in any given case.
Alternatively, the Act provides the Assembly with a means to request greater competence. Under Section 95 of the Act, an Order in Council may add a matter, or indeed a field, to the list in Schedule 5, Part 1.8 It may also vary or remove a matter or field. These Orders in Council, known as legislative competence orders (LCOs), are made when approved, in a draft statutory instrument, by the Assembly and then by each House of Parliament.9 After the draft has been approved by the Assembly, the First Minister notifies the Secretary of State, who has the right to refuse to lay it before Parliament.10
There is a series of notes prepared by the Assembly’s research service, which tracks the expansion of legislative competence by the amendment of Schedule 5, and which provides links to the amending instruments. According to these notes, matters have been added to 14 of the 20 fields; there have been nine Acts conferring framework powers, and 22 legislative competence orders.11 There is also a version of Schedule 5 as amended on the Assembly’s website, which gives the list of fields and matters as it currently stands.
These approaches to the expansion of legislative competence can be defended in terms of the careful consideration put into each new conferral of a matter, and in terms of the deliberate pace at which the scope of the Assembly’s powers is built up. They may be criticised on the basis that the expansion created by framework legislation is opportunistic rather than strategic, while the expansion by LCOs is subject to a lengthy process barely understood by the public.
3 The alternative in Part 4 of the 2006 Act The 2006 Act included an alternative to the use of measures, and to the use of framework powers or LCOs to extend the list of fields and matters. This was contained in Part 4 of the Act, headed “Acts of the Assembly”. It amounts to the Assembly gaining primary powers across all devolved fields, subject to certain exceptions.
7 Education and Skills Act 2008, Section 149. This Act also conferred some powers on the WAG. 8 It may not do so in a way that gives competence over a non-devolved field (technically, one in which no functions are exercisable by the Welsh Assembly Government). See Section 95(2). 9 Section 95(5). 10 Section 95(6) and (7). 11 In two cases the legislative competence order transferred to the Assembly powers which had been conferred by framework legislation prior to the separation of powers at the 2007 election. These would otherwise have fallen to the Welsh Assembly Government created after separation. Therefore the competence order and the framework legislation covered the same subject matter in these cases.
5 3.1 Legislative competence Under Part 4 the Assembly would gain the power to make laws, which may make any provision that could be made by an Act of Parliament.12 These laws, known as Acts of the Assembly, could be made in respect of subjects listed in Schedule 7, Part 1.13 The list of headings there, now described as “subjects”, is identical to the list of fields in Schedule 5. However, rather than specify the matters within them in great detail, the list gives rather general descriptions of what each subject contains, and then specifies various exemptions. As an example, here is the content of Field 3, Culture, under the present arrangements:14
Matter 3.1
The functions of local authorities in the support, improvement and promotion of arts and crafts, museums and galleries, libraries, archives and historical records, and cultural activities and projects.
This matter does not include licensing of sale and supply of alcohol, provision of entertainment and late night refreshment.
In this matter “local authorities” means the councils of counties and county boroughs in Wales.
This is Subject 3, Culture, under the arrangements that would apply were the Assembly to gain powers under Part 4 of the Act:15
Arts and crafts. Museums and galleries. Libraries. Archives and historical records. Cultural activities and projects.
Exceptions—
Public lending right.
Broadcasting.
Classification of films, and video recordings.
Government indemnities for objects on loan.
Payments to Her Majesty’s Revenue and Customs in respect of property accepted in satisfaction of tax, apart from property in which there is a Welsh national interest.
In addition to the more permissive generality of Schedule 7, it is also notable that it includes content under each of the headings, even if some are simply repetitions of the heading itself (hence Subject 17, Tourism, contains simply “tourism”). This contrasts with Schedule 5, which, as mentioned, contained very little upon enactment, and the content of which has built up gradually since.
Acts of the Assembly may not apply other than in relation to Wales, and they must not confer, impose, modify or remove functions other than those exercised in relation to Wales.16 They may not extend at all outside England or Wales.17
12 Sections 107(1) and 108(1). 13 Section 108(4)(a). 14 Government of Wales Act 2006, Schedule 5, Part 1, as amended by The National Assembly for Wales (Legislative Competence) (Culture and Other Fields) Order 2010, SI 2010/1212. 15 Government of Wales Act 2006, Schedule 7, Part 1.
6 Aside from the exceptions to the subjects as listed in Schedule 7, Part 1, there are some other constraints on competence. Most of these are listed in Schedule 7, Part 2, with exceptions listed in Part 3. They are very similar to the constraints already in place in respect of measures. Under Schedule 7, Part 2, an Act may not modify the preceding functions of a Minister of the Crown, nor confer any function on such Ministers. Schedule 7, Part 3 allows that preceding functions may be modified with consent from the Secretary of State, or if incidental to some other provision, and it also allows that functions may be conferred on Ministers if the Secretary of State consents. Also under Schedule 7, Part 2, an Act of the Assembly may not modify the following:
Enactment Provisions protected from modification
European Communities Act 1972 (c. 68) The whole Act
Data Protection Act 1998 (c. 29) The whole Act
Government of Wales Act 1998 (c. 38) Sections 144(7), 145, 145A and 146A(1)
Human Rights Act 1998 (c. 42) The whole Act
Civil Contingencies Act 2004 (c. 36) The whole Act
Re-Use of Public Sector Information Regulations 2005 The whole set of Regulations (S.I. 2005/1505)
Acts of the Assembly may not change provisions in other Acts of Parliament, other than those in the Government of Wales Act 2006, which use the Welsh Consolidated Fund to repay borrowing made by the Welsh Ministers, including interest.18 Acts may not modify the functions of the Comptroller and Auditor General, except by consent of the Secretary of State, and in general they may not modify the 2006 Act itself, except for its provisions on remuneration, the register of Members’ interests, Welsh public records, and certain questions of interpretation of the Welsh texts of legislation.19 Finally, a provision may not breach the European Convention on Human Rights nor European Community law.20
It will be possible for Schedule 7 to be amended, thus changing the scope of legislative competence. This would be achieved under Section 109 of the 2006 Act, by means of an Order in Council. The Order would be subject to the affirmative procedure in both Houses of Parliament. Except for the first such Order, it would also be subject to approval by the Assembly. The Order could modify other enactments or prerogative instruments, and it could have retrospective effect. However, it would not affect the validity of Acts of the Assembly passed before it came into force, nor the continuing operation of such Acts.
One suggestion for change is to devolve responsibility for parts of the criminal justice system if Part 4 comes into force, which would be effected by an amendment to Schedule 7 to add a
16 Section 108(4)(b). 17 Section 108(6). 18 Schedule 7, Part 2(3). 19 Schedule 7, Part 2(4) and (5). 20 Section 108(6)(c).
7 new subject. Former Counsel General Winston Roddick has called for this to be done, while the present First Minister, Carwyn Jones, when Counsel General himself in 2007, called for debate on the issue of the single jurisdiction for England and Wales.21
3.2 Procedure The legislative procedure is set out in Sections 110 to 116 of the 2006 Act. Consideration would be broadly similar to the consideration of bills at Westminster, with three stages to look at the bill in principle and in detail, and then to pass or reject it.
As to the detail, bills may be introduced by any member of the WAG, or by any other Assembly Member.22 That person and the Presiding Officer must each make a statement that the bill would fall within the Assembly’s competence.23
The Standing Orders must provide for a general debate and vote on the principle of the bill, consideration and voting on the details, and a final stage at which the bill is passed or rejected, although there may also be expedited proceedings on individual bills.24 There may be alternative procedures for bills which restate the law, repeal or revoke spent enactments or for private bills.25
Once a bill has been passed the Clerk sends it for Royal Assent, and there would be a special Welsh Seal and Letters Patent to signify assent.26
As with the arrangements for Assembly Measures, the UK Parliament would retain the right to legislate for Wales.27 Currently, if it wishes to exercise this right, a process is used to gain consent from the Assembly, which is similar to the Sewel Convention in Scotland. It is likely that this would be retained if the Assembly Act provisions came into effect. The Sewel Convention holds that the UK Parliament will not normally legislate on devolved matters without the consent of the Scottish Parliament, expressed through a “legislative consent motion”. In Wales, the Standing Orders of the Assembly provide that a Welsh Minister must lay before the Assembly a memorandum on any legislation at Westminster on devolved matters, which explains the purpose of the legislation and expresses a view as to its appropriateness.28 This must be accompanied by a legislative consent motion, which seeks the Assembly’s approval of the inclusion of devolved matters in the bill.
For further information on the background to this see Standard Note 2084, The Sewel Convention, 25 November 2005.
3.3 Questions where legislative competence is in doubt On a commonsense view, an expansion of legislative competence for the Assembly might raise the prospect of more frequent doubt as to the boundaries of that competence in given cases. A more tightly constrained devolved power is easier to identify; the wider the
21 “Call for responsibility for criminal justice to be devolved to Wales,” WalesOnline.co.uk, 10 September 2010, accessed 1 October 2010. The WAG commissioned a report on devolution of youth justice, which was carried out by Professor Rod Morgan. See Report to the Welsh Assembly Government on the question of Devolution of Youth Justice Responsibilities, R Morgan, 14 December 2009. 22 Section 110(1). 23 Section 110(2) and (3). 24 Section 111(1) and (2). 25 Section 111(3). 26 Sections 115 and 116. 27 Section 107(5). 28 SO 26.
8 competence, the more complex the boundary, and the greater the chance that enactments under it, or the exercise of functions conferred by those enactments, might reach unforeseen, perhaps sensitive, political space. To some extent the drafting of the 2006 Act sought to get round this problem. It did not follow the model used in the Scotland Act 1998. There, the primary powers of the Scottish Parliament were not delineated; instead a list was provided of “reserved matters” on which the Scottish Parliament could not make law. Under Part 4 of the Government of Wales Act 2006, by reference to Schedule 7, the legislative competence of the National Assembly for Wales is listed under the 20 subject headings. Reserved matters are partly defined, in the sense that some exceptions are also listed, but this is not an exhaustive account of what is reserved.
The Secretary of State at the time, Peter Hain, and the First Minister, Rhodri Morgan, drew attention to practical difficulties in making a sweeping devolution to Wales. In their joint memorandum to the Welsh Affairs Committee, they gave two practical reasons for not adopting the model used for Scotland: that the list of reserved matters in respect of Wales would be very long, and that the list of devolved fields was easier to create with accuracy since it derived from the existing executive functions carried out in Wales. However, the main reason was a constitutional one:29
If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions.
In order to avoid this result the simplest solution is to follow the Scotland Act 1978 model, limiting the legislative competence of the Assembly to specified subjects.
The other approach having, in principle, the same effect would be to transfer general law-making powers to the Assembly but then to reserve fundamental legal principles and basic legal rules to the UK Parliament. The view of Parliamentary Counsel is that such a reservation would be so complex and its effect so uncertain that the alternative of limiting devolved legislative competence to specific subjects would be by far the better approach.
While the arrangements for Wales under Part 4 of the 2006 Act remain less permissive than those for Scotland, Schedule 7 does not go into detailed definitions of its “subjects”, and it does specify some reserved matters. What would happen if dispute arose as to whether a particular enactment were within the devolved powers?
There is a substantial machinery within the 2006 Act for determining whether a bill, or functions conferred under it, is within the Assembly’s legislative competence, and for dealing with the event that it is not. In addition to the statements mentioned above by the introducing Member and the Presiding Officer, the Counsel General and the Attorney General have the power to refer a bill to the Supreme Court to decide whether it falls within the competence of the Assembly. This would happen within a four week period following passage of the bill.30 If the Supreme Court finds that the bill is not within competence, then the Assembly may
29 Written evidence to Welsh Affairs Committee, Government White Paper: Better Governance for Wales, HC551 2005-06, 13 December 2005, Ev 62. 30 Section 112.
9 reconsider it, amend it, and then approve or reject it in amended form.31 It may also ask for a referral to be withdrawn, subject to its reconsideration of the bill, in the event that the Supreme Court makes a reference for a preliminary ruling to the European Court of Justice.32
Under Section 108(7) the question of whether legislation does relate to the subjects contained in Schedule 7, Part 1, or whether it falls within any of the exceptions listed there, “is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.”
The Secretary of State has powers to intervene, similar to those in respect of measures, if s/he believes that a bill contains provisions which would have adverse effects on non- devolved matters, water in England, the operation of the law in England or international obligations, defence and national security.33 In this case the Secretary of State has four weeks after the passage of the Bill, its approval following amendment after a referral, or the end of the Supreme Court’s consideration of a referral, in which to make an order prohibiting the Clerk from submitting the bill for Royal Assent.34 The order would be subject to the negative procedure in Parliament.
There is also provision for ultra vires acts by the Assembly, which includes acts that go beyond its legislative competence. This is contained in Section 151, which allows for an Order in Council to make “such provision as Her Majesty considers appropriate in consequence of” an Act of the Assembly, or one of its provisions, which is not, or may not be, within the Assembly’s legislative competence.35
Finally, Schedule 9 is devoted to the determination of “devolution issues” in court proceedings. Devolution issues cover questions of legislative competence, of whether a particular function is exercisable by the WAG, of failure by the WAG to comply with its duties, and questions of whether a failure to act by the WAG contravenes the European Convention on Human Rights.36 The Attorney General or the Counsel General may institute proceedings to determine a devolution issue, and they must be informed of such issues if they arise in other proceedings.37 They may also refer a devolution issue to the Supreme Court regardless of whether it is the subject of proceedings.38 The Schedule also defines the arrangements for consideration of devolution issues by the courts. In general, lower courts may refer the issue to the High Court or the Court of Appeal, depending on the type of proceedings and the type of court in which they are taking place. Unless the issue has been referred to it in this way, the Court of Appeal may refer a devolution issue arising before it to the Supreme Court.39
To date there have not been any significant disputes over competence in Wales. In Scotland there have been a number of technical cases over applicability of the European Convention on Human Rights, and in March 2010 the first example concerning whether a provision of an Act of the Scottish Parliament was within its legislative competence. This arose after the Scottish Parliament passed legislation dealing with criminal justice, a devolved matter, which
31 Section 111(6) and (7). 32 Sections 113 and 111(6). 33 Section 114(1). 34 Section 114(2) and (4). 35 Section 151(1). This Section also applies to Assembly measures under the present arrangements. 36 Schedule 9. Section 149 refers. 37 Schedule 9, Part 2(4) and (5). 38 Schedule 9, Part 5(29) and (30). 39 Schedule 9, Part 2 for England and Wales. Broadly similar arrangements apply under Parts 3 and 4 for Scotland and Northern Ireland.
10 had an impact on certain road traffic offences, a reserved matter. The Supreme Court held that the Act in question, the Criminal Proceedings etc (Reform) (Scotland) Act 2007, was within competence, but it did so on a three to two majority.40
This case was discussed at length by Alan Trench,41 who argued that the judges who found that the provision was within competence had, in broad terms, applied a purpose test, considering the aim of the provision to be within competence and any trespass on reserved matters to fall within the various exceptions in the Scotland Act 1998. The judges who dissented relied on “the very fine-grained approach of verbal analysis that is customary in the UK’s higher courts.”42 Aidan O’Neill cast the same judgement in terms of a split between a Platonic and an Aristotelian approach.43 On this view, a judgement in terms of the purpose of the legislation represented a deferral to some intuited higher sense of right, whereas the dissenting judges had relied on a supposedly impersonal reflex of the system set up by the various enactments.
As the authors acknowledge, these analyses are a little simplified, since the purpose test is set out in Section 29 of the Scotland Act 1998, and the judges differed primarily in their view as to whether specific effects of the legislation could be saved by its general purpose, and whether one of the particular exceptions to the general rules on reserved matters had been satisfied. However, it is noteworthy that there was lack of unanimity, given that the purpose test in the Scotland Act 1998 is very similar to the one in Section 108(7) of the Government of Wales Act 2006, cited above. To the extent that there is intertwining, or interaction, of competence between the devolved and UK levels, and assuming that this throws up disputes from time to time, the approaches taken by Supreme Court judges will be of great interest.
4 How to move to Part 4 4.1 Referendum Under Section 103 of the 2006 Act a referendum can be held throughout Wales, by means of an Order in Council, “about whether the Assembly Act provisions should come into effect.” Prior to this, a statutory instrument containing the Order in Council must be approved by both Houses of Parliament and by the Assembly, the latter on a two-thirds majority of all its members.44 A simple majority of those voting “yes” in the referendum would be sufficient to cause Part 4 to come into effect, with the mechanism for commencement set out in Section 105. This provides that the Welsh Assembly Government may determine the commencement date of the Assembly Act arrangements by means of an order, which must be approved by the National Assembly for Wales. Once the Assembly Act arrangements come into force, the measure-making powers cease. Existing measures remain in force.45
In the present case, the National Assembly has used its power under Section 104 of the Act to request a referendum. The arrangements under that section are that the First Minister or other Minister moves a resolution, and if two-thirds of Assembly Members vote in favour, a recommendation is sent to the Secretary of State. The Secretary of State has 120 days to lay
40 Martin and Miller v. Lord Advocate, [2010] UKSC 10. 41 Devolution Matters blog, “The UK Supreme Court and the legal line between devolved and non-devolved matters,” 11 August 2010, accessed 10 September 2010. See also The Scotsman, 8 March 2010. 42 Devolution Matters blog, “The UK Supreme Court and the legal line between devolved and non-devolved matters,” 11 August 2010, accessed 10 September 2010. 43 Supreme Court blog, 7 March 2010, accessed 10 September 2010. 44 Section 103(4) and (5). 45 Section 106.
11 a draft statutory instrument containing the Order for the referendum, or to give reasons for refusing to do so. An account of the chain of events over the current proposed referendum is given in section 5 of this Note, below.
If it were to go ahead, this referendum would be unusual, as it would be held under the provisions of an Order in Council. In the past, the franchise and question to be asked in a referendum have generally been set out in primary legislation at Westminster, allowing MPs an opportunity to amend the legislation. However, the concept of a referendum under subordinate powers is not unprecedented. Section 1 and Schedule 1 of the Northern Ireland Act 1998 give the Northern Ireland Secretary power to hold a referendum at any time, under an Order, where it appears likely to him that a majority of voters in Northern Ireland believe that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland. Such a referendum has not yet been held. The 1998 Act's wording replicated that of the Northern Ireland Constitution Act 1973, Schedule 1. In addition, the Regional Assemblies (Preparations) Act 2003 provided for regional referendums to be held under orders made by the Secretary of State. A referendum was held under these provisions in the north east of England in 2004. The Order in Council for a referendum in Wales would be required under the Government of Wales Act 2006 to include most of the detail on the referendum arrangements, although some is given in the Act itself, and some is fixed by reference to the Political Parties, Elections and Referendums Act 2000 (PPERA).
Schedule 6 to the 2006 Act gives more detail about the mechanics of the referendum. It sets the franchise as the Assembly electorate were an Assembly election to be held on the same date.46 Under Section 12 of the same Act this is the local authority electorate. Schedule 6 requires the Order in Council calling the referendum to set out the text of the question, and it provides that it may include a statement to precede the question.47 It also requires that the Order in Council give the date of the referendum, and that this may be combined with an election or another referendum, or both.48
The Electoral Commission may be authorised or required, by the Order in Council, “to do things for the purpose of encouraging voting in the referendum.”49 It may also either designate campaign groups on each side of the argument, under Section 108 of PPERA, or else take action itself to spell out the arguments on each side to the voters.50
There is no provision in the 2006 Act to prevent a number of referendums being held on the question of extra powers. Under Section 103(3), if there is not a majority of voters in favour of the Assembly Act provisions coming into force, “that does not prevent the making of a subsequent Order in Council under subsection (1),” in other words another Order in Council to call a referendum. This would be subject to the same approval by Parliament and the Assembly. During evidence to the Welsh Affairs Committee, Mr Hain said that a specific provision in the Bill to prohibit repeated referendums was unnecessary, since this would be a “matter for politics.”51
A referendum would be governed by the provisions in PPERA on spending by political parties and by “third” parties, such as pressure groups. In relation to this, the Order in
46 Schedule 6(1). 47 Schedule 6(3)(1). 48 Schedule 6(4) and (6). 49 Schedule 6(7). 50 Schedule 6(8). 51 HC 551 2005-6, para 135.
12 Council must specify the “referendum period” which applies to spending under Part 7 of PPERA. For further details on the regulation of referendums, see Standard Note SN/PC/5142, Referendum on electoral reform.
5 Pressure for change: how the request for a referendum came about There were several reasons for the changes to the Assembly that were brought about by the 2006 Act. The previous version of the Assembly considered relatively little legislation, and had little influence over the statutory framework for Wales, so that it was incapable of pursuing strategic objectives that went beyond the capacity of secondary legislation. In addition, its powers derived from a wide range of sources, and there was a lack of clarity over where powers lay or whence they came.
These difficulties have been remedied only partially under the new arrangements. In particular, critics feel that the process for adding new matters under the headings of the various devolved fields is cumbersome. It makes it virtually impossible for the Assembly to react swiftly to events where they relate to matters not yet included in Schedule 5, and it places obstacles in the way of strategic planning. Some also feel that the need to return to the UK Parliament with a request for legislative competence is inherently patronising, and does not sit well with the idea that Welsh voters have their own Assembly to govern their own affairs.
Supporters of the current arrangements feel that the role of the UK Parliament provides a useful check and balance, that it is constitutionally appropriate for it to debate and vote on individual delegations of its power, and that the slower expansion of legislative competence allows the Assembly to develop its responsibilities in line with its capacity and effectiveness.
5.1 The Welsh Assembly Government The Labour-Plaid Cymru coalition, set up in 2007, was formed on the basis of a document entitled One Wales: a progressive agenda for the government of Wales, which included a number of policy priorities as well as the modalities of the coalition itself.52 This included a joint commitment “to proceed to a successful outcome of a referendum for full law-making powers under Part IV as soon as practicable, at or before the end of the Assembly term.” This would mean before the next Assembly elections, due in May 2011.
5.2 All Wales Convention In October 2007, embodying a further commitment in One Wales, the Welsh Assembly Government set up an All Wales Convention to look into public opinion on the law-making powers of the Assembly. Its terms of reference were as follows:53
Raise awareness and improve understanding of the current arrangements for devolved government in Wales and of the provisions of Part 4 of the Government of Wales Act 2006, and their future implications for the governance of Wales.
Facilitate and stimulate a widespread, thorough and participative consultation on all levels of Welsh society on the issue of primary law making powers.
Prepare an analysis of the views expressed and the evidence presented through this process.
52 One Wales: a progressive agenda for the government of Wales, An agreement between the Labour and Plaid Cymru Groups in the National Assembly, 27 June 2007. 53 Website of All Wales Convention, accessed 6 September 2010.
13 Assess the level of public support for giving the National Assembly for Wales primary law making powers.
Report to the One Wales Government on its findings, with recommendations relevant to the holding of a referendum.
The All Wales Convention was chaired by Sir Emyr Jones Parry, formerly the UK Permanent Representative to the United Nations. It submitted its report on 18 November 2009, with the conclusions available in its full report, in an executive summary or as an information leaflet.
The All Wales Convention concluded that a move to the Assembly Act provisions “offers substantial advantage over the present arrangements in Part 3.”54 It argued that this would:
offer greater efficiency, permit a strategic approach to the drafting of the legislation, provide greater clarity, be more consistent with the rule of law and democratic tradition, and reflect the emerging maturity of the National Assembly for Wales.
The arguments in favour of the current arrangements could be summarised as follows:55
• Westminster should be involved case by case, because its sovereignty is being transferred. • The role of the UK Parliament provides a useful check and balance, and deepens scrutiny. • The gradual nature of the process allows the National Assembly for Wales and the Welsh Assembly Government to develop capability and experience in an evolutionary way. • The gradual build up of competence may help to build support from the public.
The arguments against continuing to use Part 3 powers could be summarised as follows:56
• The process for obtaining Legislative Competence Orders was too complex and slow, preventing incisive action. • The gradual transfer of powers under many instruments has not overcome the problem of a lack of clarity as to where powers lie, or “who is responsible for what”. • The manner in which the matters in Schedule 5 have grown is incoherent. • The Assembly has to spend much time arguing for legislative competence, when it should be focused on actually legislating. • The Assembly’s powers are in constant flux.
There were also two positive arguments in favour of moving to Part 4:57
Firstly good law should be above all clear and accessible, and adopted by a comprehensible process, with the division of powers […] understood and known.
The Law Society made this point to the Convention, arguing that Schedule 7 provides a “clearer and more comprehensive list of the subjects (with clear restrictions)” on which the Assembly could legislate.58 Not only might Schedule 7 give a more certain base for the law, but a clearer set of powers might also improve accountability, or at least comprehensibility, for the public.
54 All Wales Convention, Report, November 2009, section 6.2.2. 55 Ibid, section 3.11.1-6. Text above is a paraphrase of the Report, not a quotation. 56 Ibid, section 3.11.8-16.Text is a paraphrase, not a quotation. 57 Ibid, section 3.11.18. 58 Ibid, section 3.11.19.
14 The second argument in favour of moving to Part 4 was that59
today’s policy-making needs to be holistic and strategic. Legislation needs to cover complex and diverse issues to be effective.
The Convention Report gives the example of climate change: the executive might wish to draft legislation covering several different subject areas, which under Part 4 could be done quite easily. However, under Part 3,60
a rational policy would require drawing down powers from at least six Fields through six different LCOs in order to be able to table a draft Measure capable of addressing all the relevant issues. And as that draft Measure was then debated, what if a particular power in one of the Fields had not been sufficiently widely drawn to cover the requirements of the proposed legislation?
Finally, there were concerns among some of those who spoke to the Convention that the relatively constrained scope of Welsh devolution, compared to that in Scotland and Northern Ireland, represented a slight or lack of trust, or was simply inequitable. The idea that the Assembly had to go “cap in hand” to Westminster for greater competence was seen by some as degrading.61
The Convention undertook social research to show the levels of understanding of and support for devolution. This research took place in two “waves”, the first consisting of a survey and exploratory focus groups, the second consisting of in-depth discussion groups and another survey. On the question of support for devolution, and in particular for greater powers, the Convention reported:62
In wave 2 of the quantitative survey, 37% thought Wales should remain part of the United Kingdom, with its own elected National Assembly for Wales with limited law- making power, and 35% thought Wales should remain part of the United Kingdom, with its own elected Parliament with law-making and tax raising powers. So 72% favour present or somewhat increased devolution. This is consistent with the other research. Similarly, our research shows that support for independence and the pre-1997 arrangements has continued to fall since 1997. In the second wave of research we found 8% favoured an independent Wales and 14% wanted Wales to be part of the United Kingdom without an elected National Assembly for Wales, down from 13% and 37% respectively in 1997 polling.
Among the underlying emotional attitudes found by the Convention, those most in favour of greater powers seemed to have a strong attachment to Welsh nationhood and a negative view of the UK Parliament, while those most against greater powers complained about the cost of the Assembly, and about alleged Welsh-speaking and South Wales bias. Those with less polarised views tended to favour devolution and were open to the idea of further powers, but showed some concern about the implications in practice. The majority favoured the existing arrangements:63
the key anxieties [for those not emotionally committed] about increased powers are British identity; lack of trust in the Assembly, and Wales’ incapacity to be financially independent.
59 Ibid, section 3.11.21. 60 Ibid, section 3.11.21. 61 Ibid, section 3.11.25-27. 62 Ibid, section 5.4.11. 63 Ibid, section 5.4.12.
15 The research also asked how people would vote in a referendum. At the time of the two waves of research, in November – December 2008, and in April – July 2009, 48% and 47% respectively said they would vote in favour of increased powers, while 35% and 37% said they would vote against.64 Very few of those asked said they would not vote, 2% and 3% in each wave. Those in favour of increased powers exceeded those against by 7% among those least likely to vote, by 28% among those moderately likely to vote, and by 3% among those who were confident they would vote.65
The decisive issues influencing voting intentions tended to relate to Wales rather than to Westminster, with factors such as the performance of the Assembly or of individual Assembly Members, and how wisely the Assembly spends public money outweighing the importance of similar factors in respect of the UK Parliament and its Members.66
5.3 The formal process The National Assembly for Wales passed a Resolution on 9 February 2010 calling for a referendum.67 This was done under Section 104 of the Government of Wales Act 2006. 53 Assembly Members voted in favour, with none voting against and no abstentions. The First Minister, acting under the same section of the Act, gave formal notice of the Resolution to the Secretary of State on 17 February 2010. The Secretary of State had 120 days either to lay a draft statutory instrument containing the Order in Council, or to refuse with reasons.
The new Secretary of State, Cheryl Gillan, announced her response on 15 June 2010. In her letter to the First Minister, Mrs Gillan advised that she was unable to lay the draft statutory instrument within the 120 day period. She stated that,68
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.
However, the UK coalition Government remains committed to progressing the referendum, and to laying the draft referendum Order as soon as possible, following receipt of the Electoral Commission’s report on the question.
The implication of the delay was that the referendum could not be held, as the Welsh Assembly Government preferred, in October 2010.69 However, Mrs Gillan stated that she would aim for the referendum to be held before the end of the first quarter of 2011.70 Among
64 Ibid, section 5.4.14. 65 Ibid, section 5.4.16-17. 66 Ibid, section 5.4.18. 67 NDM 4395, introduced by Jane Hutt AM, 2 February 2010, and moved by the First Minister in plenary, 9 February 2010. For the debate, see Record of Proceedings, National Assembly for Wales, 9 February 2010. 68 Rt Hon Cheryl Gillan MP to Rt Hon Carwyn Jones AM, 15 June 2010. 69 A Statement from the First Minister on the Referendum, News Release, 20 May 2010. 70 Rt Hon Cheryl Gillan MP to Rt Hon Carwyn Jones AM, 15 June 2010.
16 other things, this would allow the commitment in One Wales to hold a referendum before the end of the current Assembly to be fulfilled.
Under Section 104(4) of PPERA the Secretary of State must consult the Electoral Commission on the wording of a referendum question before laying the draft statutory instrument, and she must lay before each House, at the same time as the draft instrument, a report of the Commission’s views as to the intelligibility of the question.
On 23 June 2010 Mrs Gillan sent a draft question, plus preceding statement, to the Electoral Commission, which had requested 10 weeks in which to consider it.71 A draft question was also prepared by the First Minister, Carwyn Jones, but this was not considered by the Electoral Commission. A short discussion of Mr Jones’s question, with apparent text, is given on the Devolution Matters blog.72
5.4 The draft referendum question The Electoral Commission published its report on 2 September 2010. It carried out research with voters, took advice from plain language specialists, and talked to politicians and other campaigners. It commented that:73
One of the main challenges the drafters of the question faced was complexity: the referendum is about a constitutional process that is unfamiliar to most people. Many people are unaware of the referendum, what it is about, or even what a referendum is.
In addition, it is arguable that the two options on offer, the measure-making powers currently available and the primary powers in Part 4 of the 2006 Act, are inherently complex and the choice between them equally if not more so.
The Electoral Commission research found that the draft question, with preceding statement, did not explain clearly the two options and the differences between them, that some of the language was inconsistent, confusing or too formal, and that some people felt that the question was leading in favour of a “yes” vote.74 One phrase, “bit by bit”, was unfamiliar in Welsh.
The English text of the Secretary of State’s draft was as follows:75
Referendum on law-making powers of the National Assembly for Wales
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.
71 HC Deb 23 June 2010, c277. 72 Devolution Matters, Alan Trench, 20 May 2010, accessed 8 September 2010. 73 The Electoral Commission, Report of our views on the proposed referendum question: Summary, 2 September 2010. 74 Ibid. 75 Ibid.
17 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?
PUT AN X IN ONE BOX ONLY
Yes, I agree
No, I do not agree
The English text of the Electoral Commission’s suggested alternative was:76
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
The All Wales Convention had also drawn attention to comprehensibility as an important issue in the referendum. The two “waves” of its research indicated a relatively high level of understanding (around 70 – 80%) that the National Assembly for Wales had some powers, that these were constrained, and that they could be expanded with the agreement of the UK Parliament. However, there was far less knowledge of the details, with 50% of respondents wrongly believing that the Assembly could change the basic rate of income tax.77 The
76 Ibid. 77 All Wales Convention, Report, section 5.4.9.
18 Convention commented that “overall the evidence pointed to considerable confusion about the National Assembly for Wales’s current powers.”78
Cheryl Gillan welcomed the Electoral Commission’s report: 79
Secretary of State for Wales Cheryl Gillan has today Thursday 2 September welcomed the publication of the Electoral Commission’s report into the question for the referendum on further powers for the National Assembly.
Responding to today’s publication, Mrs 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.”
Not all reaction to the Electoral Commission’s redraft was positive. Some commentators, and contributors to the Electoral Commission’s consultation, argued that for a referendum to be lawful it should ask a question more technically apposite to the Act, perhaps along the lines of, “do you agree that the Assembly Act provisions in Part 4 of the Government of Wales Act 2006 should now come into force?”80 This might be supported by publicity on what those provisions are.
Alan Trench drew attention to the sentence “the UK Parliament then decides each time whether or not the Assembly can make these laws,” which could imply that Parliament approves or rejects individual measures.81 He also noted drift in the use of terms such as “subject area” and “matter”. It is not clear whether these are being emptied of their technical meaning, or are retaining it, or each in different parts of the question. In a technical sense, the final 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?” is difficult, in that laws which the Assembly could pass under Part 4 are grouped not into subject areas and matters, but, in Schedule 7, into “subjects.” On the other hand, using the language in a colloquial sense, Part 4 does not allow the Assembly to legislate on all matters, since Schedule 7 reserves some for Westminster. Equally, the 20 subjects could be expanded or contracted in future, which might raise awkward issues about either the validity of the referendum or of later efforts to amend Schedule 7, since the public would, if they voted “yes”, be endorsing the 20 subject headings currently used.
Other concerns might include the fact that the use of “subject area” conflicts with the Electoral Commission’s finding during its own research that some voters interpreted geographical metaphors literally, such that “devolved area” was taken to mean deprived or developing parts of Wales, rather than housing or education.82 Finally, the draft alludes to
78 Ibid. 79 Welsh Secretary welcomes Electoral Commission’s Report on Referendum Question, Wales Office press release, 2 September 2010, Wiredgov, accessed 2 September 2010. 80 See, for instance, The Electoral Commission, Referendum on law-making powers of the National Assembly for Wales, 2 September 2010, sections 4.2 – 4.12. 81 Devolution Matters blog, 2 September 2010, accessed 8 September 2010. 82 The Electoral Commission, Referendum on law-making powers of the National Assembly for Wales, 2 September 2010, section 3.10.
19 Legislative Competence Orders, but does not mention framework legislation as an existing means to increase the competence of the Assembly.
The Electoral Commission anticipated many of these concerns in its report. In particular, it drew attention to the fact that its role is to comment on intelligibility of the question, not substance.83 Therefore it cannot suggest changes that might alter the nature of the debate. It was mindful of the Secretary of State’s responsibilities and that she clearly considered her draft question, the substance of which could not be altered, to be lawful.84 Also, it argued that the provision in the 2006 Act that the question should be “about” whether the Assembly Act provisions should come into force, and that the same Act, by reference to PPERA, required the Secretary of State to consult the Commission on intelligibility, meant that the Act “envisages that the question to be proposed by the Secretary of State will be in terms that can be understood by voters.”85 It went on to state that,86
In our view, a question that asks expressly whether the National Assembly for Wales should have the law-making powers set out in Part 4 and Schedule 7 to the Government of Wales Act 2006 would not be understood by voters.
Where some commentators argued that the nature of the constitutional change was misrepresented by the question, for instance in that greater or lesser emphasis should have been given to pace of change under Part 4, or to the principle of UK involvement in making law for Wales, the Commission again rested on the argument that it could not change the terms in which the choice facing the electorate had been cast by the Secretary of State’s draft.87
5.5 Secretary of State’s statement On 9 September 2010 Mrs Gillan announced that she would accept the Electoral Commission’s proposed question and preamble.88 This followed discussions with Carwyn Jones and Ieuan Wyn Jones, First Minister and Deputy First Minister respectively, and was done with their agreement. Mrs Gillan placed emphasis on the research and testing on which the Electoral Commission based its draft. She stated that,
I will lay the draft Order before Parliament shortly for consideration by both Houses, and my intention remains for the referendum in Wales to take place in the first quarter of next year.
On 21 September 2010 Mrs Gillan was notified by the Welsh Assembly Government that its preferred date for the referendum was 3 March 2011. She stated,89
I told [the First Minister] I will do everything possible to accommodate that date and intend to lay the Referendum Order before Parliament next month.
In the meantime, Wales Office officials continue to work with Welsh Assembly Government officials to fulfil the commitment to hold the referendum by the end of the first quarter of 2011.
83 Ibid, sections 1.17 – 1.18. 84 Ibid, section 4.10. 85 Ibid, section 4.8. 86 Ibid, section 4.9. 87 Ibid, section 4.23. 88 HC Deb 9 September 2010, c28WS. 89 Welsh Secretary receives Assembly Government’s Preferred Date for Referendum, 22 September 2010, accessed 6 October 2010.
20 5.6 Orders laid On 21 October 2010 Mrs Gillan laid three draft Orders designed to bring about and manage the referendum. These need to be approved by both Houses of Parliament and by the Assembly, the latter on a two thirds majority of all Assembly Members (not just those voting), before the referendum can be held. The draft Orders will be the subject of a separate Note. Their titles are the National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc) Order 2010, which brings about the main substance of the referendum, the National Assembly for Wales Referendum (Assembly Act Provisions) (Limit on Referendum Expenses Etc) Order 2010, which governs the expenditure of campaign groups, and the National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2010, which updates the substance of Schedule 7 to take account of those powers gained by the Assembly since the Schedule was last updated in 2007.
Further information about these is available in a Wales Office press release.90 The Electoral Commission also has information, mostly about its own role, and there was a Written Ministerial Statement to announce the laying.91
90 Welsh Secretary lays Order for Referendum on March 3, Wales Office, 22 October 2010. 91 HC Deb 21 October 2010, cc71-74WS.
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