POWER TO CONDUCT REFERENDA (Hansard, 2 March 1998)

§ Mr. Dafis
I beg to move, That the clause be read a Second time.
Thank you for your patience, Mr. Martin. This new clause concerns the power of the assembly to hold referendums. I want to probe whether the assembly will have that power—I certainly believe that it should and I believe that the absence of primary legislative powers strengthens our case.
The power exists already at varying levels of government. Parliament has the power to hold a referendum after it has passed an Act specifically for that purpose. The Scottish Parliament will also be able to do that as it will have primary legislative powers. At the bottom level of government, schedule 12, part IV of the Local Government Act 1972 confers the power to hold community polls on any question to be decided at a community meeting if the chair of the meeting consents and if the poll is demanded by at least 10 local government electors present at the meeting, or by at least a third of local government electors present at the meeting. That power exists at the basis of government at the community level.
The power of unitary or county councils to hold referendums is more ambiguous. However, section 141 of the 1972 Act allows those bodies to conduct an investigation and collect information concerning the county or any part of it. I am told that that could involve holding a countywide poll in certain circumstances. A parallel power in Scotland enabled Strathclyde regional council to conduct a referendum in March 1994 on the Government's proposals for the water industry in Scotland. That referendum was influential in the debate about whether the Scottish water industry should be privatised.
I believe that the national assembly should be given this power unambiguously—although it might not use it and, if it did, it would be used sparingly. It could be particularly useful in the kind of circumstances that arose in Scotland—if a future Government tried to impose upon Wales a set of policies that were unacceptable to Wales, which is not unheard of in Welsh history. For example, a future Government might wish to impose selection in the school system. We are currently debating education legislation that does that to a limited degree: it allows schools to apply to select pupils for certain subjects on the basis of aptitude. A future Government might introduce far more sweeping selection proposals.
If the national assembly could not prevent the introduction of such policies through secondary legislation—it might not be able to do that because of the way in which the legislation is designed—it might express its objections. Although the Government should take the assembly's views into account, they might decide to override them. The Secretary of State of the day could claim to have public opinion on his or her side—it would not be the first time that politicians have claimed to speak 734 for the people; they have an unpleasant tendency to do that. Even my colleagues are sometimes guilty of claiming to speak for the community at large.
If a Secretary of State did that, a referendum would settle the argument by revealing the people's views. It would be a powerful tool for the assembly in establishing that it had a democratic mandate beyond that which it was given initially through the electoral process. I believe that the assembly should have that kind of power.

§ Mr. Evans
I can understand why the hon. Member for Ceredigion (Mr. Dafis) was rather reluctant to move new clause 11—particularly in light of what happened the last time there was a referendum in Wales. I am surprised and shocked that the hon. Gentleman is even considering using the referendum process as a device for testing public opinion. The last experience was not a tremendous or a ringing success, with only 50.1 per cent. of electors voting in that referendum.
The hon. Gentleman has said that new clause 11 is probing and is designed to determine whether the assembly will be able to instruct that a referendum be held in Wales. In light of all the evidence that the hon. Gentleman produced in the local sphere, I suspect that the assembly will have that power. It will be interesting to see whether the Welsh assembly will be able to instruct that a referendum be held in Wales on a constitutional question. Will the Secretary of State respond to that issue? Does he believe that the assembly will have the power to hold a referendum in any event?
The hon. Gentleman said that he thought that the power would be used sparingly—I suspect that that is because referendums are very expensive. We must also consider voter fatigue and the fact that electors do not like being asked to vote constantly. Under devolution, we are establishing an assembly with 60 politicians who will represent Welsh constituencies and regions. They will consider carefully events in Wales and will speak on behalf of Wales in that body. A referendum would devolve power away from the assembly to individuals. I suspect that the proposal is a product of new Plaid Cymru or Plaid Cymru Newydd—I know that the hon. Gentleman and his colleagues are having problems deciding what to call their party.
If the assembly has the power to instruct that referendums be held, could Parliament instruct that those referendums be conducted following certain guidelines? For instance, Newport council has been criticised for spending £8,000 of taxpayers' money during the Welsh devolution referendum campaign on a leaflet publicising the yes vote. The Government have claimed that no taxpayers' money will be used to promote a particular side in a referendum campaign. However, I have reservations about copies of the White Paper that were sent to every letterbox in Wales, and I suspect that taxpayers' money was used to promote that case. Local authorities should not have the power to issue propaganda that is paid for with taxpayers' money from a very limited budget and delivered to every house in the area. It should be established at the outset that that should not occur.
Perhaps referendums will be used to sort out problems between the Secretary of State for Wales and the First Secretary of the assembly, both of whom might say that they speak on behalf of Wales. If they are not one and the 735 same person—they might be because of Cabinet responsibility—a referendum might be used as a device, whereby the First Secretary will say, "I am speaking for Wales, and I shall hold a referendum to prove that that is the case," against the policy of the Government of the day.
Referendums might also be used to trample the wishes of minorities. We saw a fine example yesterday with the march through London, in which the Secretary of State for Wales did not take part; he said that he had better things to do on a Sunday than to march with rural people. Will minorities be protected to ensure that they are not trampled as a result of the wishes of the majority on country pursuits, including angling? Backed by a referendum, the majority might say that it should not take place in Wales.
Referendums on Sunday closing used to be held regularly in parts of Wales. I think that only one part of Wales is dry on a Sunday, but I might be wrong. One area held out rigidly. Perhaps referendums will be held in parts of Wales. If the previous referendum in Wales proved anything, it was that 11 areas of Wales were in favour of devolution and 11 areas were against.
The other important aspect is whether the assembly will have direct tax-raising powers. We know from earlier debates in Committee that the Liberal Democrats are not in favour of such a referendum. In fact, they tabled an amendment and said that they were not interested in another referendum in Wales. They thought that the assembly would be sensible enough to know when it was appropriate to use its tax-raising powers, without consulting the Welsh people. That is completely wrong.
Scotland held a referendum on a Parliament and on whether it should have tax-varying powers. The electorate chose to have a Parliament and, to a lesser extent, but with a majority, for it to have such powers. In Wales, the referendum was on the establishment of an assembly without any tax-raising powers whatever. It would be completely wrong not to have a referendum to establish whether it should. I give a commitment to the Secretary of State and to the people of Wales that under no circumstances would tax-raising powers ever be introduced for an assembly in Wales by a future Conservative Government without the Welsh people stating that that is exactly what they wish.

§ Mr. Richard Livsey (Brecon and Radnorshire)
I apologise for my absence at the start of the debate. My train should have arrived at 2.20 pm, but because of the railways policy of the previous Government—now the official Opposition—it arrived at 4.45 pm, so I deserve an official apology from them. This is an extraordinary state of affairs.
The hon. Member for Ribble Valley (Mr. Evans) did not make in his recycled speech what I would describe as substantial points.

§ Mr. Dominic Grieve (Beaconsfield)
I have to interrupt the hon. Gentleman. I seem to remember—he belongs to the same profession as me—being reminded during the early days of my career, "You shall take the train you need before the train you need to get to the court on time."

§ Mr. Livsey
I shall not be diverted. The fact that the train was one and a half hours late speaks for itself.
736 The new clause is an important aspect of the possibility of giving the assembly powers that could be useful. The hon. Member for Ribble Valley referred to the Sunday closing referendums that we used to have in Wales. We recognise that the clause on referendums applies only to secondary legislation; the assembly does not have the ability to make primary legislation. The assembly might seek a view on primary legislation to represent to Parliament. Parliament might wish to grant tax-varying powers to the assembly if that were the wish of the people of Wales. Westminster might enact primary legislation for that to occur. Is such a referendum possible?
What provision is there to implement legislation that follows a referendum? If the Welsh voted overwhelmingly in favour of tax-varying powers, would Westminster have any power to implement such legislation?
5.15 pm
There are other areas where referendums would be of great use in Wales. Perhaps county councils—particularly in the present climate with regard to the countryside—could be enabled to expand their smallholding schemes. It might involve enabling county councils to get hold of more capital to carry out such a policy. Would such a referendum be possible within a county in Wales, supported by the assembly? There are many issues where referendums could be useful. I, too, was on the countryside march yesterday, and proud of it.

§ Mr. Letwin
I shall, if I may, intrude a little further on the Secretary of State's good will and press slightly further the point raised by the hon. Member for Ceredigion (Mr. Dafis), who asked whether the Welsh assembly would have the power to conduct referendums in the absence of the new clause.
I draw the Secretary of State's attention to clause 39, in which we are told that the assembly may do anything that is calculated to facilitate or is conducive or incidental to the exercise of any of its functions. Does clause 39 give the assembly the power to hold referendums? If it does not, it would be extremely interesting to know whether that is because of the disconnection between a referendum and the functions of the assembly, or whether it is because the holding of a referendum could not be regarded as calculated to facilitate such functions. In other words, is the problem that a referendum might not be connected with the functions allocated in the Bill? Or could a referendum be construed as not facilitating those functions? If the answer is the second rather than the first, there could be forms of referendum that would be legitimate under the Bill as drafted, whereas other forms might not be. It would help the Committee to know, as we have not enlarged sufficiently in Committee on the general scope of the powers in clause 39.

§ Mr. Gareth Thomas (Clwyd, West)
I speak in opposition to the new clause. It is extraordinarily vague and has the potential for great confusion, disruption and mischief-making. It is not circumscribed in any way. [Interruption.]

§ Mr. Ron Davies
I am grateful for the robust defence of the Government's position, but I should tell 737 my hon. Friend that our position is flexible on this matter. He should not dig a deep hole for me, which I might find it difficult to get out of.

§ Mr. Thomas
If my right hon. Friend had contained himself, I would have gone on to enlighten him, by explaining why I regard the new clause, as drafted, to be extraordinarily vague. It refers simply to an ability for the assembly to conduct a referendum … on any matter affecting Wales. That ability is not circumscribed and is not confined to secondary legislation within the areas of government devolved to the assembly. This is an extraordinary omission.
As the new clause stands, it raises several crucial questions. The clause makes no reference to what rules should apply in relation to how the referendums should be conducted or to who will pay for them. It fails to take account of the important issue that the raison d'être for an assembly is to give Wales an elected voice through that assembly and through its elected representatives. Any attempt to use such a device as is proposed too speedily would, in my view, undermine the principle behind the assembly. That is why I object to the new clause.

§ Mr. Grieve
Will the hon. Gentleman give way?

§ Mr. Thomas
I have finished speaking.

§ Mr. Ron Davies
I am grateful to my hon. Friend the Member for Clwyd, West (Mr. Thomas) for making, as he normally does, a forthright and vigorous defence of the Government's position. It was a particularly well-considered speech.
I wish to express my disappointment. I had hoped that the hon. Member for Ribble Valley (Mr. Evans) had learned something over the past couple of weeks. For the first one and a half hours of the debate the hon. Gentleman was the model of circumspection—he was considered and well researched and it was a pleasure to listen to him—but then he degenerated into his old diatribe, which we have heard time after time. At the end of it, I was not sure whether he was speaking in favour of the new clause or against it.
It is worth reminding the Committee that new clause 11 is very brief. It reads: The Assembly may conduct a referendum in Wales on any matter affecting Wales. The contribution of the hon. Member for Ribble Valley was astonishing. He talked about fox hunting, local councils, Parliament instructing the assembly and taxing powers. I am rather surprised that he did not suggest that we should have a referendum on the right to roam. If anyone wants the right to roam enshrined in legislation, it would seem to be the hon. Gentleman, having roamed all over the place. He made no reference to the new clause.
I wish to put one point to the hon. Gentleman forcefully. He reverted to type and talked about the referendum of 18 September, which the people of Wales won and which embarked us on this course of legislation. It was, of course, a consultative referendum. If the hon. Gentleman wishes to pursue the matter, let me remind him that the House of Commons voted by a majority of 738 231 on Second Reading to endorse the proposed legislation. That is what has given the present process of legislation real authority. We had an advisory referendum and the Bill has the vigorous, whole-hearted and full endorsement of the House of Commons.
I hope that the hon. Gentleman will put aside, as he managed to do for the first one and a half hours this evening, all his worst prejudices against the people of Wales. I hope that he will accept—I know that the right hon. Member for Devizes (Mr. Ancram) would be the first to do so—and acknowledge how reasonable the Government are on these matters, and how flexible and emollient we are when the Opposition make any reasonable suggestion, whether it comes from the Liberal Democrats, Plaid Cymru or even the Conservatives. If there is a shred of substance or rationality in proposed amendments, I am prepared to consider them.
I hope that the right hon. Member for Devizes will persuade his hon. Friend to acknowledge that the Government are exercising discretion and operating in the most delicate way possible in embarking on this process of legislation.

§ Mr. Evans
That is, of course, entirely in character with the way in which the Secretary of State conducts himself in the House of Commons. I was trying to be as reasonable as I possibly could in speaking to the new clause. However, I believe that the assembly would have the power itself to conduct a referendum. That is why I asked several questions, especially on constitutional matters. I am merely stating—it is a clear fact, irrespective of how we wish to rewrite history—that the most recent referendum held in Wales was not a great success, with only 50 per cent. of the people turning out.

§ Mr. Davies
The hon. Gentleman may believe that the Bill empowers the assembly. He will forgive me if I choose to rely on advice other than that which comes from the Opposition Dispatch Box, from the hon. Gentleman.
The hon. Gentleman's point was taken up by the hon. Member for West Dorset (Mr. Letwin), whose contribution I shall refer to before I take up the remarks of the hon. Member for Ceredigion (Mr. Dafis), who introduced the new clause. I refer the hon. Member for West Dorset to my reply to a previous debate, during which a similar question was asked. The assembly is a creature of statute. Unless power is spelt out in the founding, primary legislation, there must be a question whether that power can be properly exercised. That is my answer to the hon. Gentleman.
The hon. Member for West Dorset asked about the general power that exists in clause 39. It may well be that that clause could be used if the referendum being proposed was in pursuance of other powers that the assembly was exercising. There is some doubt whether clause 39 would provide the authority for a referendum to be held, if it were being held on a matter not in pursuance of other powers that the assembly was implementing. I hope that the hon. Gentleman will accept that there is doubt whether at present the assembly has such power.
I return to the hon. Member for Ceredigion. I do not want to give a commitment at this stage to return with a Government amendment relating to the new clause. However, the hon. Gentleman has raised a serious issue and I would like to examine further the points raised by the new clause.
739 I have a number of concerns about the proposal that is at present before the Committee in the form of the clause. First, the clause does not make clear what electoral rules would apply for any referendum. The Government are determined to ensure that whenever a referendum is held, the rules are laid down clearly by the House of Commons and that they are followed scrupulously by the various electoral officers who are appointed to undertake the task. I want to ensure that any amendment that the Government were minded to bring forward would make clear what electoral rules would apply for any such referendums.
The referendums that have been held in the United Kingdom on several occasions over the past 25 years have been authorised by an Act of Parliament, as was the case last year, which led to the Referendums (Scotland and Wales) Act 1997. If the assembly were to have a power to conduct referendums in Wales, it would need to be constructed in such a way that it did riot involve a power to make primary legislation. Paragraph 34 of schedule 12 to the Local Government Act 1972—the point raised by the hon. Member for Ceredigion about community polls in Wales—may be a precedent. That is one of the matters to which I want to give further consideration.
Finally, any explicit power for the assembly to conduct referendums would have to be limited in some way to its range of responsibilities and make it clear that the assembly would meet the cost of holding them.
I repeat that I cannot give a commitment—

§ Mr. Evans
The Secretary of State has just made the important point that the assembly would not be able to instruct that a referendum be held on an issue involving primary legislation. What would be the position if it were to have an advisory referendum as opposed to one involving primary legislation directly—that is, if it did not have that power anyway—and decided that it wished to have one on the independence of Wales, for instance? Would it be able to do that?

§ Mr. Davies
With respect, the hon. Gentleman has missed my point. I was saying that referendums that have been held previously have been the result of primary legislation that has passed through this Parliament. If the assembly were to have a power to conduct a referendum, it would need to be constructed in such a way that it was not seen to be itself exercising a power which was similar to primary legislation. It is the process by which the referendum is authorised that is of concern, and not so much the question that would form the matter for public debate. I hope that that deals with the hon. Gentleman's point.

§ Mr. Ancram
Under the Bill as it stands, or under any amendment that the Secretary of State might table, would the Welsh assembly be able to instruct that a referendum be held on whether Wales should become independent or remain within the United Kingdom? Because of the reserved nature of constitutional matters in Scotland, there is genuine doubt about whether the Scottish Parliament would have such a power.

§ Mr. Davies
There is no doubt in my mind that the Bill as drafted does not give the assembly authority to hold 740 referendums, which is why I shall consider the point raised by the hon. Member for Ceredigion. I cannot give the right hon. Gentleman a precise answer, because this is not a Government amendment and I am not proposing such a power.

§ Mr. Ancram
Will the Secretary of State write to me on the matter?

§ Mr. Davies
If I do not table an amendment, I shall certainly write to the right hon. Gentleman. However, if we decided not to table an amendment, it would not be necessary to clarify the position because there would be no opportunity to hold referendums.
The principle must be that any referendum would have to be properly authorised and on a matter for which the assembly was responsible. If we were to go down that path and the Government were to propose such a power, there should be a debate about the matters on which the assembly should have the authority to hold referendums.

§ Mr. Letwin
Earlier, the Secretary of State mentioned the promotion of private Bills. Would any amendment that he tabled give the assembly the right to hold a referendum on its proposed promotion of such a Bill?

§ Mr. Davies
I gave way to the hon. Gentleman to enable me to reply to a point that he made in that previous debate. I wrote to him on 26 January and 19 February, giving detailed answers to questions that he had asked. I hope that he will put the record straight and acknowledge that my civil servants and I have been diligent and forthright in answering the questions that he has quite properly asked.

§ Mr. Letwin
I referred not to those illuminating letters, for which I am duly grateful and to which we might return on Report, but to Wednesday's debates on the Welsh Development Agency. The Secretary of State said that if he was mistaken in what he was telling me, he would write to me. Subsequent researches have shown that he was mistaken, and I hope that he will write to me.

§ Mr. Davies
If I undertook to write to the hon. Gentleman if I was mistaken, I shall do so, but I find such circumstances difficult to conceive. Nevertheless, I shall allow for the possibility and assure the hon. Gentleman that if I have made a promise, I shall keep it.
The hon. Gentleman should not interpret my remarks as a commitment to table an amendment allowing for referendums to be held. I shall consider such a provision, but I specifically said that I am not giving any commitment. However, he made a fair point: if the assembly were to promote a private Bill, I should have thought that it would want to ensure that there was wide support for the measure. The assembly might decide that there should be a referendum on a private Bill, but that is a matter for the assembly. It is not for me to speculate on how the assembly would use its powers to hold a referendum or to promote private legislation, should it be given them. Such matters will have to be considered some way down the road.
741 I repeat that I am not giving a commitment to table a Government amendment. However, I want further to consider those serious questions, and hope that the motion will be withdrawn.

§ Mr. Dafis
The debate has been useful and I am grateful to the Secretary of State for his responses.
I must place on record my undying and profound admiration for the hon. Member for Ribble Valley (Mr. Evans), who is exceptionally skilled in flogging a dead horse. I am not sure whether his skills are becoming more or less admirable, but he seems to have an unending capacity in this regard. He also has a remarkable ability for losing track of the substance discussion. My special skill is mixing metaphors, but we shall leave that matter to one side.
The hon. Member for Clwyd, West (Mr. Thomas) questioned the appropriateness of referendums for making decisions. That is not what the debate is about: the question is whether the National Assembly for Wales should have such powers. Local bodies and bodies with responsibility for national legislation have such powers, so it would be wrong for the assembly to be unable to resort to referendums, should it wish to do so.
I am glad that the Secretary of State will consider these matters further, and I urge him to do so. I had not envisaged the assembly holding referendums on major constitutional issues. The power should be used sparingly and only when necessary, to ensure that policies that it had advocated were acceptable in Wales and were strengthened by a democratic mandate.
We have some confidence that the Secretary of State will bring forward a proposal. I beg to ask leave to withdraw the motion.