National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc.) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 25th November 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 21 October be approved.

Relevant documents: 5th Report from the Joint Committee on Statutory Instruments.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, for convenience I shall refer to the National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2010 as the Schedule 7 order; the draft National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc.) Order 2010 as the referendum order; and the draft National Assembly for Wales Referendum (Assembly Act Provisions) (Limit on Referendum Expenses Etc.) Order 2010 as the expenses order.

The draft referendum and expenses orders make arrangements for a referendum to be held in Wales on further law-making powers for the National Assembly for Wales, and the draft Schedule 7 amendment order makes changes to Schedule 7 to the Government of Wales Act 2006, which sets out the subjects on which the Assembly could legislate following a yes vote in a referendum.

The circumstances in which a referendum can be called, and the parameters of the referendum question, have been prescribed in legislation already passed by Parliament—the Government of Wales Act 2006. That Act provides for primary law-making powers for the National Assembly for Wales 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 National 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 Government of Wales Act 2006 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 or set out the reasons for not doing so.

Following the general election, it fell to my right honourable friend the Secretary of State for Wales to respond to the Assembly’s call within the statutory deadline. This she did on 15 June, confirming that she would lay a draft referendum order as soon as practicable and, as agreed with the First Minister, work towards a referendum in the first quarter of 2011.

The coalition Government have taken seriously our commitment to hold a referendum. Since we have been in office, we have driven forward working with the Welsh Assembly Government and other key stakeholders to ensure that we would deliver on that commitment. There has been good co-operation, showing that the respect agenda continues to work well.

First, I should like to explain the rationale for bringing forward the draft Schedule 7 amendment order, which, I think it is fair to say, is the most technical of the three draft orders before the House this afternoon. Schedule 7 to the Government of Wales Act 2006 sets out the subjects on which the Assembly could legislate following an affirmative vote in a referendum on full law-making powers and the Assembly voting to commence the provisions in Part 4 of the Government of Wales Act 2006. The subjects cover a broad range of areas over which the Welsh Ministers currently exercise executive functions, including housing, planning, local government and the environment.

Schedule 7 also lists exceptions and general restrictions to the Assembly’s legislative competence. Subjects such as economic policy and social security would remain non-devolved in the event of the schedule coming into force. The Assembly’s current powers to legislate are set out in Schedule 5 to the Government of Wales Act 2006. The schedule lists these powers as “matters” under 20 fields, which correspond to the subject areas in Schedule 7. Matters have been added to Schedule 5 incrementally in recent years by legislative competence orders—LCOs—and framework powers in Acts of Parliament. The effect of this devolution of powers is that the Assembly can now legislate in relatively specific areas in many of the fields listed in the schedule, but its current powers to legislate are narrow when compared with the range of subjects which would be devolved in the event of a yes vote in the referendum. However, some of the amendments which have been made to Schedule 5 enable the Assembly to legislate on specific issues which go beyond the competence in Schedule 7.

The last order updating Schedule 7 was made in 2007, and there is now a need to update the schedule in advance of the referendum to take account of the powers the Assembly has accrued in recent years. There are three main reasons for making the changes set out in the draft order: first, to make clear the full range of powers which would be devolved to the Assembly in the event of a yes vote; secondly, to ensure that the Assembly would not lose any of its current powers if Schedule 7 comes into force; and, thirdly, to ensure that exceptions to the Assembly’s legislative competence accurately reflect the boundaries of the Welsh devolution settlement.

Many of the changes to Schedule 7 made by the draft order insert powers the Assembly currently exercises under Schedule 5. For example, it inserts a new subject on the provision of automatic fire-suppression systems in residential premises, to reflect a matter which is currently included in Schedule 5 and on which the Assembly is currently considering draft legislation. The draft order also amends subjects and exceptions in Schedule 7 to take account of the Assembly’s current powers in areas such as waste, educational transport, the protection and well-being of young adults, and trunk road charging schemes.

The draft order inserts a limited number of exceptions to the Assembly’s competence, where they relate very clearly to areas which would remain non-devolved following an affirmative vote in the referendum. It also makes some minor and drafting changes to simplify the schedule, update references to other legislation and rectify errors in the original drafting.

The Welsh Affairs Committee in the other place undertook scrutiny of the draft order. The committee concluded that the Government are right to ensure Schedule 7 is amended in advance of the referendum on full law-making powers for the Assembly.

The Government worked closely with the Welsh Assembly Government to agree to these changes. The draft order was approved by the National Assembly for Wales on 9 November and by the other place yesterday. The order makes sensible changes to Schedule 7 in advance of the referendum to ensure that the schedule accurately reflects the current Welsh devolution settlement.

I move on to the two other draft orders, which would make arrangements for a referendum to be held in Wales on further law-making powers for the National Assembly for Wales. The draft referendum order consists of 28 articles and six schedules and makes the bulk of the provision relating to the arrangements to hold a referendum on further powers for the National Assembly for Wales. Provisions contained in the 2006 Act and in the Political Parties, Elections and Referendums Act 2000 also apply to the referendum, but the draft referendum order is necessary to fill out the detail of the arrangements, including the key provisions on the date of the referendum and 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 draft referendum order is an Order in Council which 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 approval was obtained in an Assembly debate on 9 November.

I turn first to the draft referendum order. The provision that has possibly attracted most attention to date, perhaps not surprisingly, is the referendum question and its preceding statement, as set out in Article 4. There was relative silence before the general election relating to the referendum question. Work had commenced on the drafting of the detailed provisions in the legal instruments. However, at the request of the First Minister, no work had taken place on the key provision within the draft order relating to the question. It is fair to record that in just five weeks following the general election, my right honourable friend the Secretary of State for Wales 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 report to the Secretary of State. During that time, the commission conducted a thorough assessment of the preamble and question, including 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. The commission produced its report on 2 September and my right honourable 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 set out in the Government of Wales Act 2006. It is my understanding that the noble Lord, Lord Elis-Thomas, the Presiding Officer of the National Assembly for Wales, had also indicated his agreement to the decision to use the revised question.

Apart from the referendum question, the other aspect of the proposed referendum which has attracted attention is the date on which it is to be held. Article 3 provides for the referendum to be held on 3 March 2011. My right honourable friend the Secretary of State gave careful consideration as to the date of the referendum. The First Minister had made clear representations that he would not be in favour of holding the referendum on the same date as the Assembly elections and that he favoured a referendum in early spring. The coalition Government are committed to working with the Assembly Government in a spirit of mutual respect, and the Secretary of State was prepared to consider carefully any reasonable request from the First Minister in relation to the referendum date.

The Assembly Government had made a commitment to hold the referendum on or before the Assembly elections in May 2011. In October this year, the First Minister announced that his preferred date was 3 March and asked the Secretary of State to agree to this date. The Secretary of State considered the request and agreed that it was feasible to hold the referendum then. A yes or no vote on 3 March would provide certainty on the extent of the law-making powers available to the Assembly in advance of the Assembly elections on 5 May. It was also believed that a 3 March referendum would put enough distance between the campaigns for the referendum and for the Assembly elections to allow arrangements for both to be administered efficiently. My right honourable friend the Secretary of State for Wales considered that the request to hold the referendum separately was reasonable, and agreed to the date.

While the other provisions in the draft referendum order have not attracted much attention, they are none the less important, as they deal with how people can vote in the referendum, and set out the rules for how the referendum will be run by the chief counting officer and local counting officers.

I turn now to voting. All those registered to vote in the 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 by proxy—and for the issue and receipt of such ballot papers. These 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, 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 must do all such acts and things as may be necessary for effectively conducting the referendum in the manner provided for in the draft order.

A counting officer will be appointed for each voting area in Wales, which will be the same as the local authority area. Under Article 11, the chief counting officer can direct counting officers on how they should discharge their functions relating to the referendum, or direct them to take specified steps to prepare for it. Counting officers must also conduct the referendum in accordance with the detailed rules set out in Schedule 3 to the draft order.

The timing of the count itself is not yet decided. The default position is that the count should take place as soon as reasonably practicable after the close of the poll. However, the chief counting officer may direct that the count should take place on the following day. The Electoral Commission has invited views from interested parties, including broadcasters, on when the count should take place. The commission has not yet announced its decision on the timing of the count, but will do so as soon as possible after taking account of all views submitted to them.

There are two further points relating to the draft referendum order that I will make briefly. The first relates to the costs of the referendum. While the costs of the Electoral Commission will be met by the coalition Government, all other costs will be met by the Welsh Assembly Government through the Welsh Consolidated Fund. The bulk of these costs are those of the local administration of the referendum by the counting officers. It will therefore be for Welsh Ministers to make an order dealing with the counting officers’ fees and charges, subject to the draft referendum order being approved and made by Her Majesty in Council.

Secondly, the commission’s report on the intelligibility of the question highlighted the low level of awareness in Wales of the proposed referendum and its subject matter. While of course it will be a matter for the yes and no campaigns to make the case for either vote, there is value in having available an independent and impartial source of information on the subject matter of the referendum. To this 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 of the referendum, its subject matter and how to vote in it. The Government of Wales Act 2006 already gives powers to the Assembly Commission to promote awareness of the system of devolved government, and the commission has launched its Vote 2011 awareness campaign.

The expenses order is a short draft order that sets the spending limits for campaigners who have registered as permitted participants spending more than £10,000, and whose expenditure is therefore subject to regulation. My right honourable friend the Secretary of State for Wales consulted the Electoral Commission on what those limits should be, as she was required to do under the Political Parties, Elections and Referendums Act 2000. She accepted the recommendations, so the spending limits specified in the draft order are as recommended by the commission. Of course, they are set at a significantly lower level than the statutory limits set for a UK-wide referendum campaign. The 2000 Act provides a framework for the referendum and enables the Electoral Commission to ensure that it is run fairly. This draft order varies the time period for individuals and organisations to register with the Electoral Commission and apply to be the lead campaign organisation to campaign for either the yes or no vote by increasing the period to five weeks, taking account of the Christmas and new year holiday period.

This period will be followed by a further two weeks, during which the Electoral Commission will decide whether to appoint a lead organisation for each side. The remaining period of four weeks up 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, not the spending of public money.

Finally, the draft order makes it explicit that media coverage is not to be regarded as a referendum expense, and therefore broadcasters and newspapers need not register as permitted participants in the referendum in Wales.

I hope the House will agree that it is important that these draft orders are approved and that the people of Wales are given the opportunity to vote and have their say in the referendum next March. I commend them to the House.

[Baroness Gale]

My Lords, first, I thank the Minister for bringing these orders before us today and for his clear explanation of the quite technical but very important details.

These orders represent an important milestone on the long devolution road which I and many others have been travelling for a number of years. Therefore, I can say today that I am a very happy traveller, seeing us go one step further along that road.

However, even with a successful yes vote, it will probably not be the end of the journey. As the Welsh Affairs Committee in another place said in its report, published on 22 November, on Schedule 7:

“We note that the nature of the Welsh devolution settlement is quite different from those relating to Scotland and Northern Ireland. Schedule 7, in the form it would have after this draft Order was approved, is unlikely to be the last word on the shape and nature of the constitutional arrangements for Wales. We have sought and received assurances that Parliament and the Welsh Affairs Committee will be properly involved in the examination of any future changes to the constitutional arrangements for Wales”.

Following a successful yes vote on 3 March, we are sure to be asked to look at other constitutional matters regarding Wales in the future.

The question to be asked in the referendum, and its timing, have been debated and agreed by the Welsh Assembly, and prior to its drafting the question was subject to significant assessment and revision by the Electoral Commission, as the Minister said. This has now resulted in widespread agreement that the question on the ballot paper is clear and simple to understand.

The date of the referendum has now been agreed. After significant discussion in Wales, it will be held on 3 March 2011—a date that will take us clear of the campaigning period for the Welsh Assembly elections in May. There was concern over holding them on the same day, so it is very good that the referendum will be held on 3 March. However, there may of course be another referendum on the day of the Welsh elections after all.

The order relating to expenses did not need to be approved by the Welsh Assembly. However, it has been subject to scrutiny by the Electoral Commission, whose recommendations were accepted by the Secretary of State for Wales.

The formula for calculating the level of expenses based on the percentage of the vote for each political party is, again, simple and clear, as it is for other permitted participants. That is important as it will enable political parties and other organisations to know what the funding is, as well as ensure that the electorate is fully informed of both the yes and the no campaigns. I think that that information is really needed.

I also welcome the clarification on expenses relating to media coverage, which the Minister mentioned, as there has been some ambiguity about that in the past. It is now clear that such coverage is excluded from declared expenses. In the past, that has been a worry for political parties and those responsible for election returns.

On the order that deals with Schedule 7, if there is a successful yes vote, that part of the Act spells out the full range of subjects over which the Assembly has full legislative competence. The order under debate today is designed to secure that the amended Schedule 7 takes full account of all the changes to the powers of the Welsh Assembly that have been conferred on it by various means since the passing of the Government of Wales Act 2006. This will be a much more effective and less expensive way of legislating across the full extent of the devolved subject areas than the present system of legislative competence orders.

The All Wales Convention has concluded that the changes will save around £2 million per year, which is money that is currently being spent by the rather lengthy process of LCOs. More importantly, they will allow the Welsh Assembly Government to respond to changing circumstances that may require legislative action. I believe that the Welsh Assembly Government and the Assembly Members will be able to deal much more effectively and respond much better to the needs and requirements in the devolved areas, for the benefit of the Welsh people, than they can under the present system. As the Minister said, these three orders were agreed to in another place earlier this week, so agreeing to them today will enable the people of Wales to have their say on whether they want the National Assembly for Wales to have legislative powers in the 20 subject areas.

I am very pleased to support these orders on behalf of my party, as I have campaigned for devolution for many years; I played an active role in the 1997 successful referendum that brought devolution to Wales, and I saw the establishment of the National Assembly of Wales in 1999. Today is an historic day for Wales, and I am pleased to have played my part on behalf of my party, which first gave devolution to Wales. I thank the Minister once again for bringing these orders before us today.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, first, I thank the noble Baroness, Lady Gale, and my noble friend Lord German, for their contributions to this important debate. As the noble Baroness said, this is a milestone debate. I also thank them both for the positive support that they have given to these orders. That reflects the fact that whatever side people take in the referendum campaign—it is my recollection that there was unanimity in the National Assembly for Wales that the referendum should take place—it is important that the orders give substance to that aspiration.

My noble friend Lord German asked me some specific questions, which I will attempt to answer. With regard to whether the powers over signs and pedestrian crossings relate only to special roads, the answer is no. They relate to all roads because that is the current position in Schedule 7, and that will not be changed by the order.

With regard to energy generation, as has rightly been pointed out, electricity generation is specifically excepted from Schedule 5 and Schedule 7. The amendment order before us today does not change that. The Welsh Assembly Government have made regular representations to the United Kingdom Government in respect of the boundary to the Welsh settlement on energy generation. This Government have considered those representations carefully, but we do not propose to change the boundary in respect of energy generation at this time.

The noble Baroness and my noble friend talked about their experience as regards LCOs and framework powers. In my short period as spokesperson with responsibility for the Wales Office in this House, I recall debating in Grand Committee in the Moses Room the LCO on housing. I certainly became aware of the path that an LCO takes to reach the House for approval. It will remain to be seen, with the outcome of the referendum, whether that process will continue or whether it will require the co-determination to which my noble friend Lord German referred.

It is important to mark that, while we are amending Schedule 7 today, there is also a legislative proposal before the House for framework powers in relation to the National Audit Office for Wales and the Auditor-General for Wales. There are also two current LCOs on organ donation consent and on highways and transport for cycleways and walkways. It would be wrong today to anticipate what the progress of those LCOs will be, but it may be that Schedule 7 has not yet finished being amended. Nevertheless, I can reassure my noble friend Lord German that the provisions in the draft order amending Schedule 7 ensure that there will be no restriction on the current powers of the Assembly. There will be no loss of powers for the Assembly as a result of the order.

The noble Baroness and my noble friend both referred to this important milestone and the journey. They are in the slightly advantageous position of being able not only to vote—which, obviously, I will not be able to do—but to express their view on the outcome of the referendum. The position of the coalition Government is neutral on the outcome. Through these orders, we are facilitating the referendum. However, perhaps I may conclude by saying that, as a Scot who had the privilege of serving in the Scottish Parliament when it was first established again in 1999, it is a great privilege for me to be able to move these milestone orders. I ask the House to support them.

Motion agreed.