Wales Says Yes

Devolution and the 2011 Welsh Referendum

Richard Wyn Jones, Roger Scully

• Publisher: University of Wales Press
• Year: 2012
• ISBN:
  9780708326428
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de la Grande-Bretagne

The definitive account of the 2011 Referendum by Wales' two leading political analysts, that will prove as provocative as it is authoritative.

1

The road to the referendum

In April 2009, the House of Lords Select Committee on the Constitution published a report entitled Referendums in the United Kingdom.1 A key issue for the committee – a group of genuine distinction – was the question of when it is appropriate for referen­dums to be held.2 This is a question of relevance to many political systems, and one worthy of serious consideration.

Referendums have traditionally been regarded as foreign to the ‘Westminster model’ of parliamentary democracy. This model is one based on indirect democracy. It is characterized by the election of representatives who campaign on the basis of party manifestos. Once returned to parliament it is the task of members of the majority party to form a government to implement the platform on which it was elected. While the role played by the electors is funda­mental to the democratic legitimacy of the system, it is nonetheless limited. Beyond their infrequent visits to the polling booth, the people delegate the task of government to others. They are not invited to pick and choose between different elements of any party’s platform. Rather, the governing party is regarded as enjoying a mandate to implement its programme as a whole.

It is obvious that referendums sit uneasily within such a model. Referendums confer on the electorate direct power of decision on a specific issue: one that is deliberately, some might say artificially, isolated from other concerns. When implemented within a Westminster-style parliamentary democracy, referendums also operate outside the broader context and culture of civic engage­ment and direct democracy that characterizes a system such as Switzerland, where referendums are a regular occurrence.3 It is little wonder, then, that in the UK and its fellow Westminster-type democracies, referendums have traditionally been viewed with suspicion, and they have remained rarely used. The 1975 vote on continuing membership of the ‘Common Market’ (as it was then dubbed) was the first ever UK-wide referendum. Only one further such referendum has since occurred: that on the adoption of the Alternative Vote (AV) electoral system for UK general elections, some thirty-six years later. Moreover, the latter came about through highly exceptional circumstances: the formation of the first UK peacetime coalition government since the days of Ramsay MacDonald, and concerning a policy that had not featured in the manifestos of either coalition partner in the preceding general election. Thus, one might reasonably regard the AV ballot as an exception proving the general rule: that referendums do not fit comfortably within, and are not normally a prominent part of, a Westminster democracy.

Wales has greater experience of referendums than the rest of the UK. Local referendums on Sunday drinking were an intermittent feature of Welsh life from the time of the 1961 Licensing Act (which repealed the uniform provisions of the 1881 Sunday Closing (Wales) Act) until the requirement for such votes was finally abandoned in 2003.4 More relevant to our concerns are the two nation-wide refer­endums on devolution held in 1979 and 1997. These votes, which we discuss in much greater detail below, were part of the evidence considered by the Lords’ Committee as they examined previous experience with referendums in the UK, and the prospect that referendums might become more frequent. Their Lordships’ overall conclusion was clear:

The balance of the evidence that we have heard leads us to the conclu­sion that there are significant drawbacks to the use of referendums. In particular, we regret the ad hoc manner in which referendums have been used, often as a tactical device, by the government of the day. Referendums may become a part of the UK’s political and constitu­tional practice. Where possible, cross-party agreement should be sought as to the circumstances in which it is appropriate for referen­dums to be used.

Notwithstanding our view that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to funda­mental constitutional issues.

The committee did not believe it possible to give a precise defin­ition of a ‘fundamental constitutional issue’. But they did provide illustrative examples, including abolition of the monarchy, secession from the Union and the abolition of either House of Parliament.5

One of the central arguments of this book is that the referendum held in Wales on 3 March 2011 illustrates almost perfectly many of the problems that the House of Lords Select Committee identified. The referendums of 1979 and 1997 concerned the fundamental question of whether or not Wales should have devolution. By stark contrast, the subject of the 2011 vote – a choice between two systems of granting primary law-making powers to the National Assembly for Wales – cannot remotely be considered as constituting a funda­mental constitutional issue. Moreover, the referendum itself resulted from tactical manoeuvring, made to overcome internal divisions within one party, rather than following any all-party agree­ment or consensus. Perhaps predictably, far from being a shining example of participative democracy in action, the resulting campaign was generally uninspiring and at times dispiriting. And the referendum result left important questions unanswered; some even unasked.

In this opening chapter, we set the context for the 2011 Welsh referendum. We begin in very general terms, by reviewing briefly how referendums are understood as a form of democratic decision making. In particular, we discuss how the apparent simplicity of a straight Yes/No vote on a single issue is often complicated by appar­ently extraneous factors, thus leading many people to vote for reasons other than their views on what is ostensibly at stake.

Our focus then moves more specifically to Wales. We begin by examining the 1979 referendum. We consider the circumstances that led to the holding of a vote on devolution. We also draw atten­tion to the broader political and social context in which the vote was eventually held, the nature of the opposing campaigns and the overwhelming final result.

In the next section of the chapter, we move on to consider the 1997 referendum. We again spend some time considering the pecu­liar circumstances that led to the decision to hold a referendum. We also review the nature of the respective campaigns, and the context in which the vote was held, before explaining the very different result that transpired from eighteen years previously.

The final section of the chapter addresses the 2006 Government of Wales Act and its aftermath. In particular, we explore the gesta­tion of the 2006 Government of Wales Act and the decision to include within its provisions a referendum on a move to extended legislative powers as provided by Part IV of the Act. We conclude by discussing how the referendum provision of the 2006 Act became central to coalition negotiations between Labour and Plaid Cymru after the 2007 National Assembly election, and thus helped pave the way for a referendum to be held in 2011.

Referendums across the world

While the political systems of the contemporary world can be classi­fied according to many criteria, probably the most common distinction is that drawn between democracies andnon-democracies. Democratic political systems supposedly embody the principle of government by the demos, the people. In practice, the defining characteristic of these systems is usually understood to be that those who hold major political offices are chosen via free and fair elec­tions in which the great majority of the people are able to participate. The system is democratic not because the people directly make the major decisions themselves, but because they get to choose the decision-makers. Non-democratic systems differ because the rulers are not elected at all, or because the elections supposedly used to select them are significantly lacking in freedom and/or fairness. Of course, in practice, all democracies fall short of the ideal. The conduct of elections will usually be imperfect to some degree. And much power in a society is typically wielded by people who are not elected: those who lead powerful private-sector economic organiza­tions and those occupying significant public roles that are not filled via election (such as senior judicial roles, or the headship of central banks). But the regular conduct of reasonably free and fair elec­tions to fill at least some key political offices usually suffices for a political system to be regarded by analysts, and by its own people, as being broadly democratic.

Making free and fair elections the defining characteristic of a democratic political system implies an understanding of democracy as an indirect process. The people are not expected to decide for themselves; they choose those they wish to make the major decisions on their behalf. At subsequent elections, they may then pass judge­ment on the decisions and behaviour of those previously chosen as their representatives. The use of referendums does not obviously fit easily within this understanding. A referendum takes the power of decision over a specific question back from the elected representa­tives and returns it to the people, who decide a matter directly.

The use of direct democracy within political systems founded upon indirect democracy raises numerous questions. To give the people direct power of decision over one particular issue, out of the multitude that a political system may be grappling with at the time, suggests that the issue is in some way special or distinct. Analysts and citizens are likely to ask why this specific matter should be isolated from the normal procedures of indirect democracy and given to the people to decide. What is different about this issue from others?

A second set of questions may be raised about the specific nature of the choice that a referendum offers the people. While some issues may present two very obvious alternatives between which the people can be asked to choose, in many cases there will be consider­ably more room for discretion about the number of alternatives to be placed on the ballot, which particular options these will be, and how they will be phrased. As scholars of politics have long under­stood, considerable influence can be wielded by those with agenda-setting power: the ability to shape the nature of the options between which people must choose.

Many other questions can be asked about referendums as a form of democratic decision making. Should the referendum outcome constitute a legally binding decision for the political community, or merely be something for holders of political power to take into account? If a referendum result is binding, for how long should it remain so? Under what circumstances might the people legitimately be asked to reconsider their original verdict in a second vote? And if it is accepted that some issues should be given to the people to decide directly, then what remains the proper realm of representa­tive democracy? And what, if any, role should representatives have in direct democracy?

Although their use can be seen to raise these and other funda­mental questions, referendums have become increasingly prevalent within the democratic world.6 Very few of the established major democracies have never held a nation-wide referendum;7 among those that have not, the United States has made frequent use of referendums in many of its states. Nonetheless, the frequency with which referendums are held continues to vary substantially across political systems. In most democracies they remain much less common than representative elections.

There are a very small number of instances – of which Switzerland is by far the most well-known example – of plebiscitary democracies, where the frequent use of referendums to make many major polit­ical decisions, both at the national and sub-national level, has been built into the design of the political system. Elsewhere, referendums are used less frequently, and most commonly in particular types of situations. Referendums will often be used to approve or reject a new constitution for a political system, or for proposed constitu­tional amendments. Constitutions may also require them to be held to approve certain types of decision: for instance, provisions in the Irish constitution have necessitated a series of public votes over European Union treaty revisions in recent decades. Some political systems provide for citizen-led referendums to be held: usually requiring a certain number of validated signatures supporting a particular ‘initiative’ for it to be placed on the ballot paper. California is perhaps the most well-known example where such initiatives are frequently used, and have had major political consequences.8 In many other political systems there are few requirements to hold popular votes to decide major political issues. But referendums have often been used by political leaders as a means of resolving otherwise intractable political disputes: a governing political party that is deeply divided over an issue may find it highly convenient to ‘let the people decide’ rather than having to come to an agreement internally.9

How people vote in referendums remains rather less well under­stood than voting in elections. In some contexts, voting choices appear to be little more than a reflection of group identities. In the March 2011 South Sudanese referendum that overwhelmingly endorsed independence from the rest of Sudan, voting patterns appeared primarily driven by the fundamental rejection of Sudanese identity by nearly all the southern people. But such factors can be important not only in supposedly ‘tribal’ societies: national identi­ties and broader national sentiments were highly influential on voting in the 1992 Canadian and the 1980 and 1995 Quebec refer­endums.10 Similarly, those with a more Welsh identity were substantially more likely to have voted in favour of devolution for Wales in 1997 than those with a British identity.11

Although parties are not ‘on the ballot’ in referendums, the obvi­ously political nature of many referendum questions means that parties often take stances on many referendum issues. And voters often appear to heed such stances. The cues offered by parties to voters are central to many explanations of referendum voting deci­sions.12 The willingness of many voters to be guided by the positions taken by major parties and political leaders often appears to func­tion as a cognitive short cut, compensating for voters’ lack of knowledge on the issue ostensibly at stake.13 However, the type of cue followed may vary. Popular parties and leaders can attract support to causes that they endorse: such a process seemingly shaped the outcome of the UK’s 1975 referendum on European Community membership.14 But the electorate may also use a refer­endum to register discontent with an unpopular party or leader, as with President Mitterrand and the French Socialists in the 1992 French referendum on the Maastricht Treaty.15 Voters can even use referendums to indicate unhappiness with an entire political class, as occurred in the 1992/1993 New Zealand referendums on elec­toral reform.16

Finally, how people vote in a referendum may, of course, be driven by their views on the question on the ballot paper. The extent to which many people will have settled or deeply rooted views on the matter at hand will likely depend heavily on the nature and history of the issue. Does the referendum concern a matter that has been the subject of public debate for many years? If this is so, or to an even greater extent if the referendum relates to one of the defining cleavages in a society, then large proportions of people can be expected to have deeply rooted and well-developed opinions about the matter. If the referendum concerns a rather more esoteric issue, or one about which there is little tradition of widespread public debate, then few beyond some of the most highly educated and politically engaged can be expected to have thought much about the question. We certainly cannot assume that the votes cast in referendums will always reflect the settled will of the people on the question placed before them.

The 1979 devolution referendum

The Labour Party emerged from the February 1974 UK general election as a minority government, but with a clear commitment in its Welsh manifesto to establish an elected Welsh Assembly.17 In stark and obviously unsustainable contrast, at this point Labour was still formally opposed to Scottish devolution, pledging rather that meetings of the Scottish Grand Committee would take place in Edinburgh. The Scottish and Welsh Grand Committees are the proverbial knacker’s-yard ponies of the devolution debate: their fate has been to ...