Leading members of pro-devolution group Cymru Yfory – Tomorrow’s Wales have written to the Chair of the All-Wales Convention to express their concern over how the Convention is defining the choice that will face the people of Wales in a referendum on primary law-making powers.

Over recent months, both in its public events and literature, the Convention has defined the choice between staying with Part 3 of the Government of Wales Act 2006 and moving onto Part 4 as being between (1) receiving the power to legislate step by step over a period of time and (2) taking all of the powers in one go.

Cymru Yfory’s concern about the Convention explaining the difference in this way is two-fold.

Firstly, by choosing to define the options thus there is a real danger that Part 3 will be seen as moderate, sensible and easier for the Assembly to cope with and for moving to Part 4 to be seen as a daring leap into territory that an inexperienced Assembly would find difficult to cope with. Further, the Convention’s over simplistic explanation gives the impression that Part 3 is a systematic and smooth process of transferring powers gradually: something that is most certainly not the case, and fails to refer to the complex, time-consuming and inefficient nature of the process of conferring powers on the Assembly via LCOs.

Secondly, this definition suggests that the same outcome will be reached in the end, whether we stay with the Part 3 process or move onto Part 4, and fails to explain that no matter how long we remain with Part 3 it can never give the range of powers, the stability or the clarity of Part 4. By downplaying the difference in this way, the Convention is giving the impression to the Welsh public that the choice before them in a referendum will be a relatively insignificant one and a question only of when not if the Assembly should have primary law-making powers. The Convention is therefore in danger of spreading apathy where it should be getting people interested and encouraging debate.

From listening to the Convention, supporters of giving the Assembly primary law-making powers could logically come to the conclusion that they need not bother voting in the referendum as the powers will come eventually anyway.

A spokesperson for Cymru Yfory said:

“We have written to Sir Emyr and made our concerns public in the hope that the All Wales Convention will look again at how it goes about explaining the difference between Part 3 and Part 4 to the people of Wales. As the Convention’s own research shows, the public’s level of understanding of this issue is very low, and there is therefore a massive responsibility on the Convention to be giving people all the facts and not over-simplifying the issue as it has been doing.”

“We hope Sir Emyr will take note of our concerns and take steps to ensure that people are aware that the referendum is about a real choice that will have far-reaching, long-term consequences for the Assembly’s ability to legislate for the good of the Welsh people.”

28th April 2009

Sir Emyr Jones Parry

All Wales Convention

Pierhead Building

Cardiff Bay

CF99 1NA

Dear Sir Emyr,

The difference between Part 3 and Part 4 of the Government of Wales Act 2006

We write to you to you to express concern about one aspect of the message that the Convention is conveying about the choice that the people of Wales will face in due course in a referendum.

We refer to the definition used by the Convention of the difference between Part 3 and Part 4 of the Government of Wales Act 2006 (GOWA 2006). Consistently during the last few months, you have defined the choice as being between (1) receiving the power to legislate step by step over a period of time and (2) taking all of the powers in one go, and we have noticed that it is in these terms that the issue is presented in a leaflet which is currently being distributed.

This is also how the media tend to report on your activities. Here is part of a BBC website report on the Convention event at Rhyl: ‘Sir Emyr told the audience that if a referendum was held, the people of Wales had two choices. The first, he said, was to do nothing and wait for extra law-making powers to gradually devolve from Westminster. Alternatively, voters could decide to transfer extra powers in one go’.

Put thus, there is a real danger that option (1) will be seen as moderate, sensible and easier for the Assembly to cope with and for option (2) to be seen as a daring leap into territory that an inexperienced Assembly would find difficult to cope with.

As you know, and as our evidence to the Convention shows, by no means does Part 3 actually work in the way suggested in the above accounts. It is certainly not a systematic and smooth process of transferring powers gradually. On the contrary, the Legislative Competence Order (LCO) route is complex, time-consuming, very hard to understand, and very uncertain in terms of outcome. To give just one example, the Environmental Protection and Waste Management LCO has still not been considered by the Select Committee on Welsh Affairs almost two years after being published by the Assembly Government.

Also, the other methods of conferring powers such as Acts of Parliament and Conversion orders do so with virtually no scrutiny by the Assembly itself, ad confer powers upon the Assembly and the Assembly Government in a piecemeal and inconsistent manner that will be impossible to rectify for as long was Part 3 of GOWA 2006 remains in force. This issue is discussed in full by two of the foremost experts in the field, Marie Navarro and David Lambert in ‘Bypassing the Assembly’, Agenda, Spring 2009.

Furthermore, this definition of the difference between Part 3 and Part 4 suggests that we would reach the same outcome in the end, whichever option is chosen. Not only is this incorrect – Part 3 can never give the range of powers, the stability or the clarity of Part 4 – but it misleads the public about the significance of the decision which faces them in a referendum. An example of this misleading impression is seen in the Convention’s social research report, when a contributor to the focus group is quoted as saying: ‘I thought it would be a ‘yes or no’ referendum, this is ‘yes or yes’. I’ll be happy with option 1 and delighted with option 2.’

May we urge you therefore, not in order to promote any bias in the debate, but in the name of accuracy and better understanding, to reconsider your definition of the difference between Part 3 and Part 4. It is essential that people understand the difficulties and problems implicit in the current method of granting law-making powers to the National Assembly and comprehend that a true decision with far-reaching implications faces them when a referendum comes.

In order to get this message over to the public, we have decided to release this letter to the media.

Yours sincerely,

Cynog Dafis

Geraint Talfan Davies

Philippa Ford

Katie-jo Luxton

On behalf of the Tomorrow’s Wales Executive

A very interesting post by Geraint Talfan Davies has appeared on the Insititue of Welsh Affairs’ blog, questioning the way the Convention is going about explaining the difference between Part 3 and Part 4 of the Government of Wales Act 2006 and therefore the choice to be made in a referendum.

This is a concern that Cymru Yfory has long shared. More on this topic to follow…

Following on from presenting evidence to the Lords Committee on the Barnett Formula last month, an essay on the topic by Cymru Yfory’s Cynog Dafis and Peter Price appears in today’s Western Mail.