Publications on the internet
General Committee Debates
Delegated Legislation Committee Debates
|©Parliamentary copyright||Prepared 25th November 2010|
Publications on the internet
General Committee Debates
Delegated Legislation Committee Debates
Draft National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum etc.) Order 2010
The Committee consisted of the following Members:
Adrian Jenner, Committee Clerk
† attended the Committee
Draft National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum etc.) Order 2010
Mr Jones: Thank you, Mr Williams. It is a pleasure to serve under your chairmanship. For ease of reference, I shall refer to the two orders as the referendum order and the expenses order. The Committee is asked to consider two draft orders that would make arrangements for a referendum to be held in Wales on further law-making powers for the National Assembly for Wales. The circumstances in which a referendum can be called and the parameters of the referendum question are prescribed under the Government of Wales Act 2006. That Act provides for primary law-making powers for the Assembly in devolved areas of policy, if and when the people of Wales decide in a referendum that that is what they want.
On 9 February this year, the Assembly unanimously passed a resolution calling for a referendum in Wales. When the First Minister wrote to the previous Secretary of State on 17 February giving formal notice of the Assembly’s resolution, he triggered the process under the 2006 Act, which meant that the Secretary of State had 120 days from the day after receipt of the notification either to lay the draft referendum order before Parliament or to set out reasons for not doing so. Following the general election, it fell to my right hon. Friend the current Secretary of State to respond to the Assembly’s call within the statutory deadline. She did so on 15 June, confirming that she would lay a draft referendum order before Parliament as soon as practicable and, as agreed with the First Minister, would work towards a referendum in the first quarter of 2011.
The coalition Government have taken seriously their commitment to hold a referendum. Since we entered office, we have worked with the Welsh Assembly Government and other interested parties to ensure that we could deliver on that commitment. There has been good co-operation, showing that the mutual respect agenda is working well.
The draft referendum order is the larger of the two draft orders before us today. It consists of 28 articles and six schedules, and comprises the bulk of the provisions relating to the arrangements for a referendum on further powers for the Assembly. Provisions in the Government of Wales Act 2006 and in the Political Parties, Elections and Referendums Act 2000—PPERA—also apply to the referendum, but the draft referendum order is necessary to complete the details of the arrangements, including the key provisions on the date of the referendum and on the referendum question.
The purpose of the draft expenses order is to specify the limits on spending by those campaigning for a particular outcome in the referendum. Both draft orders are subject to approval by both Houses of Parliament. The referendum order is an Order in Council, and must also be approved by a majority of at least 40 Assembly Members before it can be recommended to Her Majesty in Council. The requisite Assembly approval was given on 9 November.
I propose outlining briefly some of the key provisions in the two draft orders that may be of particular interest to members of the Committee. Turning first to the draft referendum order, the provision that has possibly attracted the most attention to date is that on the referendum question and its preceding statement, which is set out in article 4. There was relative silence before the general election on the issue of the referendum question. Work had commenced on drafting the detailed provisions of the legal instruments, but at the request of the First Minister, no work had taken place on the key provision in the draft order that relates to the question.
In the five weeks following the general election, my right hon. Friend the Secretary of State met her statutory obligations as set out in the Government of Wales Act 2006, reached agreement with the First Minister, and referred the question to the Electoral Commission on 23 June. The commission required 10 weeks to assess the question and to report to the Secretary of State. During that time, the commission conducted a thorough assessment of the preamble in question. That included carrying out public opinion research, inviting and gathering views from interested parties, including political parties, and seeking advice on both the English and Welsh versions of the question.
The commission produced its report on 2 September. My right hon. Friend the Secretary of State discussed the findings with the First Minister and the Deputy First Minister, agreed to the commission’s recommended revision of the question and its preamble, and confirmed the legality of the question, as is set out in the Government of Wales Act 2006. It should be noted that the Presiding Officer of the Assembly also indicated his agreement to the decision to use the revised question.
Apart from the referendum question, the other aspect of the proposed referendum order that has attracted attention is the date on which the referendum is to be held. Article 3 provides for the referendum to be held on 3 March 2011. My right hon. Friend the Secretary of State gave careful consideration to the date of the referendum. The First Minister had made representations, saying that he was not in favour of holding the referendum on the same date as the Assembly election and favoured a referendum in early spring. The coalition Government are committed to working with the Assembly Government in a spirit of mutual respect, and consequently the
Although the other provisions of the draft referendum order have not attracted as much attention, they are none the less important; they deal with how people are to vote in the referendum, and set out the rules for how the referendum is to be run by the chief counting officer and the local counting officers. All those who are registered to vote in Assembly elections will be able to vote in the referendum. Schedules 1 and 2 make provision for absent voters—those who vote by post or proxy—and for the issue and receipt of ballot papers. Those provisions are similar to those that apply for elections.
With regard to the running of the referendum, the provisions relating to the chief counting officer, the deputy chief counting officer and counting officers are relevant. The chief counting officer will be the chair of the Electoral Commission. Under article 9, she
for in the draft order. There will be a counting officer appointed for each voting area, and those areas will be the same as local authority areas in Wales. The chief counting officer, under article 11, can direct counting officers on how they should discharge their functions relating to the referendum, or to take specified steps to prepare for the referendum. Counting officers must also conduct the referendum in accordance with the detailed referendum rules, which are set out in schedule 3 to the draft order.
The timing of the count has not yet been decided. The default position is that it should take place as soon as reasonably practicable after the close of the poll. However, the chief counting officer may direct the count to take place the following day. The Electoral Commission has invited views from interested parties, including broadcasters, on when the count should take place. It has not yet announced its decision on the timing of the count, but will no doubt do so as soon as possible, taking into account all the submitted views.
There are two further points relating to the draft referendum. First, in relation to the costs of the referendum, the costs of the Electoral Commission will be met by the coalition Government, but all other costs will be met by the Welsh Assembly Government through the Welsh Consolidated Fund. The bulk of those costs have to do with the local administration of the referendum by the counting officers. It will therefore be for Welsh Ministers to make an order to deal with the counting
Secondly, the commission’s report on the intelligibility of the question highlighted the low levels of awareness about the proposed referendum in Wales, and indeed about its subject matter. It is for the “yes” and “no” campaigns to make the case for either vote, but there is of course value in having available an independent and impartial source of information on the subject matter of the referendum. To that end, article 16 of the draft order provides for the Electoral Commission to take such steps as it thinks appropriate to promote public awareness in Wales about the referendum, its subject matter and how to vote in it. I am sure that Committee members are aware already that the Government of Wales Act 2006 gives the Assembly Commission powers to promote awareness of the system of devolved Government, and the Assembly Commission has launched its “Vote 2011” awareness campaign.
Alun Michael (Cardiff South and Penarth) (Lab/Co-op): Will the Minister clarify the difference between the orders that are before us today and the equivalent orders for Northern Ireland and Scotland? There may be a simple answer that the Minister can give to my question. In this year’s election, MPs who represent two parties—I am nominated by both the Labour and the Co-operative party; there are other arrangements in Northern Ireland—were told that we could not be badged as Labour/Co-operative because of an unintended mistake in the subsidiary legislation under which the election was being held. That was corrected in the equivalent orders for Scotland and Northern Ireland, but the issue is not mentioned in today’s legislation. We are told that this is because a National Assembly order in 2007 dealt with the issue. Is that the case, and is that why the matter is not mentioned in today’s statutory instruments? It gives rise to the question why, if the problem was solved in 2007, there was a problem this year. Can the Minister explain?
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): While the Minister awaits inspiration, may I inspire him further? May I ask the Minister to look at what he calls article—I would call it section, but never mind—19(2)(d)? Page 11 says:
Mr Jones: Again, I await inspiration. I will return to the hon. Gentleman when I wind up. I now turn to the expenses order, which, as I said, is considerably shorter. It sets the spending limits for campaigners who have registered as permitted participants, who are spending more than £10,000, and whose expenditure is therefore subject to regulation.
My right hon. Friend the Secretary of State consulted the Electoral Commission on what the limits should be, as she was required to do under the Political Parties, Elections and Referendum Act 2000. She accepted the recommendations of the Electoral Commission, so the spending limits specified in the draft order are as recommended by the commission. They are, of course, set at a significantly lower level than the statutory limits set for a UK-wide referendum campaign. PPERA provides a framework for the referendum and enables the Electoral Commission to ensure that it is run fairly.
Article 3 of the draft order varies the time period in which individuals and organisations can register with the Electoral Commission and apply to be the lead campaign organisation for either the “yes” or “no” vote, increasing it to five weeks, instead of the usual four, to allow for the Christmas and new year holiday period. That period will be followed by a two-week period during which the Electoral Commission decides whether to appoint a lead organisation for each side. The remaining period of just over four weeks to the poll will be for the campaign proper. I emphasise that what we are talking about here are the limits imposed on spending by campaigners from their own funds, and not the spending of public money.
Finally, the draft order makes explicit that media coverage is not to be regarded as a referendum expense, so broadcasters and newspapers need not register as permitted participants in the referendum in Wales. I hope and trust that the Committee will agree that the draft orders are important. It is absolutely necessary to approve them to enable the people of Wales to express their views in the referendum next March. I commend the draft orders to the Committee.
Owen Smith (Pontypridd) (Lab): It is a pleasure to serve under your chairmanship, Mr Williams. It is also a pleasure to say—as I did yesterday, when we considered an order amending schedule 7 of the Government of Wales Act 2006—that the orders are a further important step in the settlement of devolution, which has evolved significantly over the past 10 years, and we imagine that it will evolve still further.
I am pleased that the Minister has truncated the substantive order to “the referendum order”, and the supplementary order to “the expenses order”. The substantive order has, as the Minister says, been debated fully and approved in the National Assembly for Wales. Before that, it was subject to specific and welcome amendments as a result of consultation with the Electoral Commission and other bodies. I am pleased to say that we agree with the Minister that the result of that consultation is a question that we can agree is the best and most simple that we might hope for, given that it deals with a relatively complex issue.
I cannot help but say that, on that particular question, the Minister is absolutely right to say that the so-called respect agenda has been observed, and there has been
The other substantive issue in the referendum order is the date. There was less agreement about where that should sit on next year’s calendar, but it is now settled for 3 March. With that date, we at least do not run the risk of the referendum being overshadowed by the great event on 29 April; some of us might fear that that is a problem that we have to face, in relation to the Assembly election.
The supplementary, expenses order did not need to be approved by the National Assembly and is, therefore, being debated in this House for the first time. It, too, has been subject to significant scrutiny by the Electoral Commission and others. The commission is pleased that its recommendations, such as the extension from four to five weeks to deal with the Christmas period, received a positive response. We, too, are pleased with that and therefore we support both orders. Labour will campaign for a “yes” vote in March as the most effective means of protecting Wales from the ravages of the coalition Government and of maintaining our agenda of fairness and opportunity for all.
I have a few questions to ask the Minister. On article 5 of the expenses order, will the Minister clarify exactly what is intended by the exclusion of broadcast or other media, whichever position they support in the referendum, as legitimate expenses? Does that relate to any political broadcast—any pro or anti-referendum broadcasts by any of the designated eligible parties—or does that apply only to the BBC?
I beg the Chair’s indulgence in allowing me to expand slightly on a related point: BBC Wales will not be given significant additional resources in respect of this referendum, whereas it was when it covered the referendum in 1997. Will the Minister consider whether broadcast expenses should be allowed? As he has said, the coalition Government have been as good their word in working hard to deliver the referendum, so he will want to ensure that there is adequate coverage of it. Might he think about that?
Owen Smith: Okay. Finally, may I ask the Minister to reflect on the fact that we have before us today two orders that are of considerable weight? The vast majority of the provisions deal with the technical and increasingly complex issues around the delivery of the referendum, such as the manner in which it is to be conducted, where the polls will be undertaken and so on. May I ask him to reflect on how much more difficult that will be in an era when we have multiple constituencies—both parliamentary and Assembly—and, potentially, ever more referendums in the future?
Roger Williams (Brecon and Radnorshire) (LD): It is a great pleasure to serve under your chairmanship, Mr Williams. I thoroughly welcome the orders on what is an historic day for Wales. I have spoken on many occasions, along with my hon. Friends, about the
The Welsh Assembly has been in existence for 10 years, and it is high time that it was allowed to make its own laws within the areas for which it has competence and powers. Many people will not understand why it was necessary to impose the 2006 Act restrictions on the Assembly, which have led to numerous delays, most notably in taking action on affordable housing. We are where we are, however, and we must take this opportunity to move forward. The Electoral Commission expressed some concerns about the original wording of the question, but that has now changed in line with its recommendations, so I am pleased that we have a fair and understandable question that we can put to the Welsh voters in March. I very much look forward to taking part in the “yes” campaign, and I hope that we can persuade all hon. Members to back the much-needed move to full law-making powers. I observe in passing that when these matters were considered by the Welsh Assembly, there was unanimous support for these orders. Indeed, all the parties that spoke on that occasion indicated that they wanted to support the “yes” campaign. I fully support the orders, and I hope that they will be the start of a new era for the Welsh Assembly.
It is a historic day. I do not mean any insult to anyone who has spoken, but it has not exactly been a historic debate. The One Wales agreement—one of the main planks of the agreement of the coalition Government in Cardiff—is being delivered in large part. I know that the Conservatives and the Liberal Democrats in Cardiff have been fully supportive of this move forward towards further, simpler and more transparent democracy and delivery of legislation in Cardiff bay. I am sure we all applaud that as democrats.
However, I have one or two concerns. One of them doubtless concerns the Minister, too, and he may come back to it. Another—I think that the point is within the terms of the order—is that I understand that the Electoral Commission, once the “yes” campaign has gone through certain categories, will register it as being able to draw down public funding. It will not be able to do so unless the “no” campaign has similarly met those criteria. I am hopeful that somebody somewhere, who might even read what we are discussing today, will look at that. If for some reason the “no” campaign did not get itself in order in time, that would deprive the “yes” campaign of broadcasting rights, free broadcasting and public funding. I make that point in passing, because, in the interests of democracy, we need a full and open debate. I am not trying to issue a back-handed insult to the “no” campaign; evidently I shall not be in that camp. Having said that, the process could be clogged—I hope that somebody referring to the debate will look at that, because it is an important point.
Apart from that, I am pleased to be here. It is a historic day, as the hon. Member for Brecon and Radnorshire said. I am pleased that we are moving
Alun Michael: As others have said, it is a particular pleasure to sit under your chairmanship, Mr Williams, and to know that you will be restrained from entering the debate with your usual vigour and enthusiasm. It is a matter of great pride to have reached this point today. We have a simple and straightforward proposition for the referendum. It brings together the appropriate geography of legislation with that of the powers and responsibilities already held by the Assembly. For those of us who have been involved, it is a matter of some pride to have been moving towards this point over the past few years.
The extent to which the system of legislative competence orders has added to the powers of the Assembly to legislate in those fields for which it has responsibility has been underestimated. The housing LCO took some time to get through because of its bad drafting, but by the time it was introduced and unanimously supported in the Welsh Affairs Committee, the policy had been developed and the right to that legislative power had been earned by the Assembly. We can also take real pride in the Welsh language LCO, which was considerably improved as a result of discussions in this place, and those improvements produced an order that was supported by all sides and by acclaim. On a subject like the Welsh language, which can be divisive, that is something in which Members of this House can take great pride, as can Assembly Members, who also sought to improve that order.
Carwyn Jones has summarised the importance of this subject, both for relations with the current Government and for getting that tidiness of legislative competence. The referendum is, therefore, extremely important and the rules before us today are important, too. I have only one caveat, for which I shall set out the background. I had to deal with the primary and delegated legislation that was effected by the first Government of Wales Act 1998 during my period as Secretary of State. The interface between the different bits of legislation is far more complex than anybody really wants to know, and I am sure that those with legal expertise will understand that. There may still be issues on which the Assembly will need powers in the future for us to keep a tidy situation across the range of its responsibilities.
I want to return to the question that I asked the Minister, and to explain it more broadly. My question was not the shortest, but it is a complex area. During the general election this year, there was some chaos for those of us who represent more than one party. Right at the last minute, we were told that we could not do that. In my case, and many others were in the same situation, I had to start completely afresh on getting my nomination papers signed and submitted to comply with what the Electoral Commission said were the rules at that time. Paragraph 4(5)(b) of the Scottish order refers to a partnership arrangement whereby a candidate can represent two parties. The order also specifies that
We were concerned to find that that problem is not dealt with in this order, until the Electoral Commission told us that it is covered by schedule 5 of the National Assembly for Wales Representation of the People Order 2007 on
“A nomination paper may not include a description of a candidate which is likely to lead electors to associate the candidate with two or more registered political parties unless the parties are each qualifying parties in relation to the constituency and the description is a registered description authorised by a certificate”.
In other words, a candidate can use a description on the ballot paper from two or more registered parties, but only one emblem, which is the simple situation that has existed for many years—indeed, since the concept of an emblem on the ballot paper was introduced. The Electoral Commission tells us that that deals with the issue, which is otherwise dealt with in the Scottish order. If that is the case, that is fine, but given the chaos that the Electoral Commission got us into, I will be grateful for the Minister’s, rather than just the commission’s, assurance that that is the case, and that we will not have the problem that we had in May.
As I say, this would be an interesting question to ask the commission: if it had dealt with a problem, about which it did not know, in 2007, why did we have the problem in 2010? Wales should perhaps have been excluded from the problem that affected many including local government as well as parliamentary elections in 2010. I would be grateful if the Minister could provide us with that assurance in his reply. That is my prime concern, and if he is able to give that assurance, it would be welcome.
My only problem with the orders is the nature of the ballot paper, which looks unacceptably complicated. It does not seem difficult to provide the information contained on the ballot paper on a separate sheet, in the same form as the information provided to the whole electorate, so that the ballot paper itself could be simple and uncluttered. It is disappointing that we still make the electoral process too complicated for our electors, who will end up having to read a lot of small print just to be sure that something new is not being said or that there is nothing that they have not taken into account. By that stage, most people would have read the information issued in a closely regulated way, as it should be, and the clutter is therefore not necessary.
My recollections of the campaign go back to 1953, when, as a sixth former, I marched in the streets of Cardiff with a Labour party banner that said, “Senedd i Gymru”, or, “A Parliament for Wales”. It did not say, “Half a Parliament for Wales” or “LCOs for the people”, but “Senedd i Gymru”. While some victories come rapidly, 57 years is a fair time to wait for success.
We know that every level of devolution has been a grudged gift. People part with any power reluctantly. It was interesting, when we looked at reviving the Welsh parliamentary party, to go back to its history. In 1918, Mr David Davies, an MP from Wales, had a campaign to set up all the institutions that we now have, such as the Secretary of State and a Welsh Parliament on the soil of our own country.The progress towards devolution has been painful, where every inch of the way has had to be fought. To those who are in some doubt about why we are in this position, I can recommend a splendid book called “Dragons Led by Poodles”, which gives the painful story of why we ended up with a situation where we have half a Parliament. That will be the main reason why people will vote “yes” in great numbers in the referendum. They see Scotland having a real, grown-up Parliament, and Wales being deprived. That will excite the enthusiasm of voters to go and vote in great numbers for the improvement. There will be a little more power. We are moving slowly towards the goal that most of us want—to have major decisions in Wales taken within Wales by those elected by the people of our own country. It is a pleasure to be here today, and I shall not detain the Committee for long. I just look forward to moving on to the referendum.
A tiny caveat is the fact that the amount of money that has been suggested should be spent seems a little high for what is happening and might be used as an excuse for unfairness by those parties that would find it difficult to raise. The maximum amount is rather higher than it should be. Elections are not won by money, but it is often a corrupting influence. When the figures are revealed for the election in Wales, I am sure that some of the most glorious results the last time were not won by those who spent the largest sums. The differences between the parties that are involved could give rise to some unhappiness for people who might be opponents of the “yes” vote.
Mr David Jones: It is a huge, unaccustomed and probably never to be repeated pleasure to be a recipient of so much general approbation throughout the Committee. Several questions have been asked. The right hon. Member for Cardiff South and Penarth referred to party descriptions and designations. He might have been thinking of the election order that will be debated on the Floor of the House next week. However, he raised an important issue, and I undertake to write to him in advance of that debate so that he does not have to repeat his remarks next week—although if he felt minded to do so, I am sure that he will anyway.
The hon. Member for Dwyfor Meirionnydd asked about article 19(2)(d). It confers wide discretion on counting officers and the Electoral Commission for the way they print information, to ensure that those with disabilities or who do not have access to English or
The hon. Gentleman also asked what the position would be if there were no “no” campaign. If the Electoral Commission cannot designate an official campaign on both sides, it will not designate an official campaign. However, it would be for the Electoral Commission to decide whether it should provide further information in that event. The commission has wide power under article 16 to promote public awareness of the referendum, its subject matter and how to vote in it.
Owen Smith: The issue raised by the hon. Member for Dwyfor Meirionnydd is extremely important and one that we were unaware of. Is the Minister saying that, if there were no “no” campaign and one were not designated as such, there could not be a “yes” campaign with funding? That would obviously be a significant obstacle and might well be taken advantage of by a “no” campaign.
The hon. Member for Pontypridd asked about the effect of article 5 of the expenses limits order and whether it applied to others or only to the BBC. It applies to all media—both broadcast and print—in coverage of the referendum excluding, of course, the campaign broadcasts, which I think was what he was concerned about. Campaign broadcasts are not caught by that provision.
The BBC will not be given additional resources to cover the referendum, although I can understand why the hon. Gentleman, given his background, should be
Roger Williams: On a point of order, Mr Williams. I note that in the proceedings of the Welsh Assembly Government, even though there was no opposition to the matter being considered, a vote was held so that people could demonstrate their support for the referendum. Is there anything under Standing Orders that would allow Members that opportunity, even though a vote was not called?
DRAFT NATIONAL ASSEMBLY FOR WALES REFERENDUM (Assembly Act Provisions) (LIMIT ON REFERENDUM EXPENSES ETC.) ORDER 2010
|©Parliamentary copyright||Prepared 25th November 2010|