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"Serious risks", serious reading

Betsan Powys | 10:43 UK time, Wednesday, 19 May 2010

cherylgillanpa282.JPGThere are some who read this blog who are of the firm view that writing anything about a referendum on the future powers of the Assembly, let alone when that referendum might be held and what the question might be, is an utter waste of time.

If you're one of them, give up now. Look away.

I'll write another blog entry later, I hope, on another issue that galvanises some and switches others right off. The answer, according to an independent review panel formed to answer just that question, is 'no'. That'll explain why the Presiding Officer was so jovial yesterday.

But back to the referendum and whether holding it in the Autumn is still an option or not. You might not give two hoots as to whether that option is still open or not. But bear in mind that a few months ago, Plaid Cymru were so adamant it should remain an option that they threatened to walk out of the coalition over it. Politically then, as far as trust between coalition partners is concerned, it certainly did matter rather a lot.

So: yesterday, I understand, a letter was sent by the Electoral Commission to Cheryl Gillan, saying that they will require a 10 week period of consultation before they can give a considered opinion on the question to be asked in the referendum. Without this, they said, there are "serious risks to the successful conduct of the referendum."

It's curtains, then for a vote in the Autumn.

I've drawn parallels with the climactic scene in Quentin Tarantino's Reservoir Dogs before, where virtually all the characters end up pointing guns at each others' heads simultaneously. This is going to be a sequel where they all pull the trigger. It's going to be messy and unpleasant.

So as a pre-emptive strike, here's some background, much of which is likely to be lost in the recriminations.

Following the trigger vote in the Assembly in February, the First Minister wrote his formal letter to the Wales Office. It took him 10 days. The law says he had to do it "as soon as reasonably practicable." It was a few paragraphs long. He'd argue he had to get those few paragraphs right. Nick Bourne would argue he wasted valuable time. I'll leave it to you to make up your own minds on that one.

Once the former Welsh Secretary Peter Hain received the letter, he got the ball rolling. It's clear substantive work was done on the Order. A project board was established, with representatives from the Assembly Government, the Wales Office and the Electoral Commission to work on the administration needed to put the Order together - with two key exceptions. Firstly, the board didn't consider the date. Fair enough. It's the job of the senior politicians to make that call. There was also no consideration whatsoever of the question to be asked and this is where the difficulties start.

The Electoral Commission have a role, enshrined in law, to give a detailed view on the intelligibility and fairness of questions asked of the people in a referendum. This makes perfect sense. It stops politicians cooking up a question that leans towards their favoured outcome, or blinds the voters with complicated technical propositions.

In November 2009 the Commission published guidelines on their process for "road testing" a referendum question, which includes extensive focus groups, asking for advice from experts and so on. The timescale for this was crystal clear: ten weeks, based on getting two weeks notice that the exact question was on its way.

This point, I understand, was made equally crystal clear to members of the project board. But it's this timescale that's going to be at the heart of the row about to ensue.

At the lobby briefing for journalists yesterday, the First Minister Carwyn Jones repeated the mantra that "all options" for a date for the referendum remain open. He said he saw no reason why the Order shouldn't be laid before Parliament "by the middle of next month".

Really, we asked? We can see why you're going to stick to that line First Minister, in the name of sticking it to the Tories now that they're in power in Westminster but ... really? The second mantra was trotted out - "the timescale is tight but doable".

Now technically, the new Secretary of State could lay the order in Parliament by June 17th, the 120 day deadline since the Wales Office received the First Minister's letter. If the Electoral Commission was asked for its assessment of the question in a three week timescale, rather than a ten week one, it would make a formal response. This would satisfy the legal need for consultation by the Secretary of State.

Bingo. There you have your "tight but doable". But everyone knows it cannot work like that.

If it did, it's clear the Commission's response would come with significant caveats, making it clear they felt they hadn't had sufficient time to come to a proper view and could therefore not vouch fully for the intelligibility of the question. Critically, a report of this response has to be laid before Parliament and the Assembly at the same time as the Order. No Secretary of State in her right mind could possibly ask for a vote in favour when that response contains words like "serious risks to the successful conduct of the referendum".

So how did we end up here?

The Commission's ten week timescale has been known since November 2009. Copies of their guidelines were sent to Peter Hain, to Cheryl Gillan as Shadow Welsh Secretary, to the then First Minister Rhodri Morgan, to the Welsh party leaders and to Carwyn Jones when he became First Minister. It's also been abundantly clear that for the Autumn referendum to happen, the Order would need to get through Parliament before the summer.

The Welsh political establishment have known for some considerable time, then, what we are dealing with here - or should have done. And yet, trust me, it feels very much as though we're about to see a particularly vicious bout of infighting between parties and between governments.

It's most certainly not for me to referee what's about to happen. But it is up to those of us paid to watch what's going on to point out that fundamentally and factually, it's the fact that the referendum question wasn't addressed in the months before the General Election that is at the root of where we are now. The then Secretary of State makes the point that he couldn't have got on with considering the question because it wouldn't have been at all appropriate for him to do so during the period of purdah before a General Election. The Electoral Commission wouldn't have thought it appropriate and no-one in the Assembly Government has suggested that analysis is wrong.

Still, the fact remains that with no wording in the offing, no Secretary of State could now deliver an Autumn referendum.

There are other questions about how far both parties in the Assembly government accepted a timescale that has been proven to be impossible and why they continued with the "all options open" mantra when it was well past its sell by date some time ago.

It might also be worth asking why the First Minister has written to the new Secretary of State formally requesting an Autumn referendum when he didn't, to my knowledge, make that request of her predecessor?

Pressed on who is responsible for the current situation an Assembly Government source came up with: "it's the responsibility of the current Secretary of State to get this through. We look forward to her excuses."

Was there the slightest hint of a smile there too?

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