Paper from the Welsh Language Board to the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales - March 2003

1 The Welsh Language Board welcomes the invitation to present evidence to the Commission on the Powers and Electoral Arrangements of The National Assembly for Wales. In this paper, we attempt to summarise the statutory and practical arrangements between the Assembly and the Board, and how the Assembly’s powers affect our ability to fulfill our functions successfully. We have tried to do so with a view to the questions which form the remit of the Commission.

2 We have concentrated on the review of the Assembly’s powers, not the electoral arrangements, because it is this aspect which affects the Welsh Language Act and the Board’s work.

3 In giving examples of situations and experiences which we believe are relevant, we have tried to conclude how the devolution arrangements have contributed or impacted upon them. We apologise, however, if our knowledge of the devolution arrangements is sometimes insufficient to enable us to decide whether it is the nature of the Assembly’s power which is responsible for what we describe, or the practical working arrangements between the Assembly and other Bodies in the name of the relevant Concordat. No doubt the Commission will seek confirmation from those who are party to the circumstances, if it judges that to be necessary.

4 It was the Welsh Language Act 1993 which established the Welsh Language Board as a non-departmental statutory body, and it is that Act which defines the Board’s functions and powers. In summary, the Board has the following functions:

• Promoting and facilitating the use of the Welsh language – a general all embracing and far reaching function;
• Distributing grants for promoting and facilitating the use of the Welsh language;
• Advising the Assembly on matters relating to the Welsh language, including keeping a strategic overview of Welsh language education;
• Advising public organisations and others on how to treat Welsh on a basis of equality with English when providing services to the public in Wales;
• Overseeing the process of preparing Welsh Language Schemes, ensuring that the policies and service arrangements contained in them have appropriate regard to the requirements of the Act
• Overseeing the implementation of these Schemes, investigating non-compliance, and making recommendations for correcting weaknesses and failures.

5 Public bodies which provide services to the public in Wales from locations outside Wales are also answerable to the Act. The Board’s functions extend beyond the boundaries of Wales, and beyond the Assembly’s policy and practical boundaries.

6 The Act also gives the Assembly specific powers and functions relating to the Welsh language. These were inherited from the Secretary of State by Order when the Assembly was established in 1999. As well as appointing the Chairman and Members of the Board, and keeping an overview of its remit and administration as a public body, the functions include:

• The power to name additional ‘public bodies’ by Order under Section 6(1)(o) of the Act;
• The power under Section 8, on the Board’s request, to intervene in a dispute between the Board and a public body regarding the date for preparation of a Welsh Language Scheme, with power to direct the body concerned regarding the timetable;
• The power under Section 14, to intervene where there is delay in the preparation of a Welsh Language Scheme, or a dispute regarding its content, with power to determine the timetable, and to determine the content of the Scheme if there is no agreement;
• Similar power under Sections 15 and 16 to intervene in a dispute when a Scheme is being reviewed and updated;
• Power under Section 20, where there is non-compliance, to direct the public body to implement its Scheme, a power which may be enforceable by court order [‘mandamus’] if necessary;
• Power under Sections 25 and 26 by Order to confer a Welsh name on a body or place, and to specify a Welsh form for documents [such as forms] which have been introduced through primary or secondary legislation.

7 It can be seen, therefore, that the Act creates a practical partnership between the Board and the Assembly in respect of public bodies preparing and implementing Welsh Language Schemes. In short, the Board’s responsibility is to oversee the work of preparing and implementing Language Schemes. The Assembly’s responsibility is to ensure that new public bodies are being ‘named’ in addition to those named in the Act itself, so that the Board can ask them to prepare a Scheme, and to support the Board where there is reluctance to respect the Act’s requirements.

8 When we turn to Crown bodies however, it is not possible to have the same statutory relationship between the Board and the Assembly. Section 21 sets out different arrangements for Crown bodies. There is no requirement on Crown bodies [which include government departments and agencies] to prepare a Welsh Language Scheme, although many have already done so voluntarily. The Board is unable to give them a statutory notice to prepare a Scheme, and the Assembly does not have power to direct a Crown body to prepare a Scheme if it rejects the Board’s request. In fact, we have to rely on a promise made to Parliament when the Act was introduced, that Crown bodies would prepare Schemes exactly as if the Act made it a requirement. That promise has been supported as a policy by the political parties which have been in power.

9 Having chosen to prepare a Language Scheme, Section 21 sets out the process for Crown bodies to follow, but note that there is no requirement on them to accept suggestions for improvement made by the Board [Section 21(4)], and the Assembly has no remit to take a view and give directions in a dispute. In addition, while the Board may investigate non-compliance of a Crown body’s voluntary Scheme under Sections 17-19, the Assembly has no power to direct the body concerned Under Section 20, if the body refuses to pay heed to the Board’s report and recommendations. It can be seen, therefore, that the Welsh Language Act does not give the Assembly any statutory remit in relation to the Welsh Language Schemes of Crown bodies, and we have to depend on different channels of influence when a problem arises. The effect of this with examples is discussed further on in the paper.

10 The Act [Sections 22-24] also gives power to the Lord Chancellor to make rules regarding the translation of evidence and oaths, in support of the right of any person to speak Welsh in legal proceedings in Wales. This ties in to the arrangements in the Welsh Language Schemes of bodies in the administration of justice sector. The powers under Sections 22-24 have not been transferred to the Assembly.

11 By now, over 200 bodies have prepared Welsh Language Schemes which are acceptable to the Board. They include most of the main organisations who are responsible for or provide services to the public in Wales. A number of these are Crown bodies. One of the most recent Schemes to be approved, and the most significant and influential Scheme by far, is that of the National Assembly Government itself. It contains substantial policy commitments in support of the language. If these are implemented, they will influence the policies, practices and services of a great number of bodies of all kinds, in Wales and beyond. We describe this more fully below.

12 The Government of Wales Act 1998 refers more than once to the Welsh language. It gives Welsh a central position in the business of the Assembly with English [see Section 47]. Sections 48 and 120, which charge the Assembly with conducting its business and exercising its functions in a way which gives equality of opportunity for all people, also includes Welsh speakers, although they are not named specifically. Section 122 gives equal status to the Welsh wording of bilingual secondary legislation. The most significant and far reaching clause, if realised, is the one in Section 32, which dates ‘The Assembly may do anything it considers appropriate . . . to support the Welsh language’. This is restricted in practice, of course, to anything which it is possible for the Assembly to do, with the powers it has, at any given point in time - but in the Board’s view this is very substantial.

13 The Assembly has already made substantial use of its powers in support of the Welsh language since it was established. As well as presenting a ground breaking Language Scheme [see above], three things stand out. First, a comprehensive review of the language was undertaken by the Culture and Education Committees. Its purpose was to set out what should be included in a strategy to achieve the Assembly’s declared aim of creating a bilingual Wales. The review lasted over a year, and its final report Our Language: Its Future was published in June 2002. The Board contributed to the review, and the majority of our recommendations were accepted. One of those was the need for the Assembly to take every advantage of the potential afforded by its powers and influence under the Welsh Language Act and the Government of Wales Act.

14 Secondly, the Welsh Assembly Government reacted very quickly and purposefully to the Committee’s report by issuing a policy statement Dyfodol Dwyieithog: Bilingual Future [ISBN 0750429712] within a month. This reiterated that the Assembly Government was ‘wholly committed to revitalising the Welsh language and creating a bilingual Wales’. Moreover, it committed the Assembly Government to supporting the language in a number of positive ways, including the following:

• Providing strategic leadership to sustain and encourage the growth of the Welsh language, ‘within a tolerant, welcoming and open Wales’;
• Mainstreaming the Welsh language into the work of the Assembly Government and its agencies;
• Providing support for communities, including primarily Welsh speaking communities by pursuing policies that seek to create economically and socially sustainable communities;
• Ensuring that effective structures are in place to enable people to acquire or learn Welsh.

15 Thirdly, in December 2002, the Assembly Government produced a comprehensive document, Iaith Pawb: [‘everyone’s language’] [ISBN 0750430346], which provides a National Action Plan for a Bilingual Wales. Following on from its earlier policy document, Iaith Pawb sets out in detail the specific actions and initiatives by which the Government will seek to increase bilingualism and strengthen the Welsh language. The measures that are set out in the action plan will be assessed against a number of key targets. The principle target is, by the 2011 Census, to increase the overall percentage of people in Wales able to speak Welsh by 5% from the figure which emerges from the 2001 Census. We urge the Commission’s members to read Iaith Pawb, in order to see the full extent of the steps being taken by the Assembly within its current powers to implement its functions in relation to the Welsh Language.

16 Iaith Pawb also confirms the Board’s central role as the national language planning body for Wales, and promises the Board a central role in delivering the plan. To this end, the Assembly Government has announced that the Board’s grant will be increased by a total of £16 million over the next three years. In 2003/04, the Board’s total budget will rise to £11.6 million, an increase of £4.7 million on 2002/03. In this way, the Assembly is enabling the Board to do far more to promote and facilitate the use of Welsh in practice, including strengthening the Board’s ability to fulfil its statutory functions in relation to the Welsh Language Schemes of all kinds of bodies. All this in turn will contribute much towards realising the targets in Iaith Pawb.

17 As can be seen, therefore, a full and effective partnership has by now been established between the Assembly and the Board, based on their respective statutory responsibilities. When the policy statements in Iaith Pawb and the Government’s Welsh Language Scheme are read together, and when the extent of the practical influence of both bodies is considered, it can immediately be seen how much potential there is to secure the biggest increase ever in the fortunes of the Welsh language. The Board believes that the Assembly is to be congratulated on the responsible and comprehensive way in which it is now going about implementing its responsibility for the Welsh language. Even so, in the Board’s view there are gaps in what can be achieved through the partnership because of the present boundary of devolution. We elaborate on this below.

18 The Board’s experience in dealing with Crown bodies under the Welsh Language Act can be summarised as follows. Several of the agencies, such as the former Employment Service and the Child Support Agency, have from the start been among those leading the way with Scheme preparation and implementation. Others have not been as prepared to co-operate fully. Even though most Crown bodies have accepted the need to prepare a Scheme, as a general rule their initial draft Schemes have had less regard to the Board’s Guidelines than those presented by public bodies, especially public bodies in Wales. There is a tendency to be more selective and subjective, pursuing what is convenient rather than being true to the spirit of the Act. There is a tendency too to take the timetable of the process less seriously. As a result, the Schemes of Crown bodies on average have taken significantly more time to reach the necessary standard for approval than those of public bodies. One of the bodies which stand out is the Charity Commission; it has taken from 1996 until now for it to submit an acceptable Scheme, even though it deals regularly with a large number of voluntary bodies in Wales. Others too, such as the Driving Standards Agency, Passport Office, and the Home Office have also been the subject of unnecessary dispute or long delays.

19 Recently, there have been difficulties with the Criminal Records Bureau, another Home Office Agency, which refused to provide bilingual registration forms, even though it had been notified of the need to do so by the Board over two years ago. Letters from both the Board and then the Assembly Minister were disregarded, and this was supported by senior officials at the Home Office. It was only after a substancial public campaign, and an official complaint by the Assembly’s First Minister to the Minister at the Home Office, that it was required to comply. This raises serious questions about the adequacy of the ‘spirit of the Act’ in the case of Crown bodies, and the practical status of the Concordat between the Assembly and Whitehall Departments.

20 Turning to Scheme implementation, the experience is similar. Some bodies take their responsibility seriously, while others drag their heels, or ignore the Scheme when introducing or re-organising services. For instance, publications or forms or posters in Welsh are issued much later than the English versions, or a help-line is established without having a service in Welsh. While this is sometimes fully intentional, often lack of awareness and understanding is the reason. This is understandable up to a point, because there is often very little if any contact between these central policy officials and Wales, or experience of bilingualism. Their world naturally turns around what is happening in England. Be that as it may, slip-ups of this kind are wastefull and often cause unnecessary additional cost to put right. They also bring unfair criticism on the Assembly and the Board. Such situations are not acceptable. In the Board’s view, therefore, generally speaking public bodies which are answerable to the Assembly do take their duties under the Welsh Language more seriously than Crown bodies, and this leads to a better and more efficient service in Welsh.

21 As previously noted, the Welsh Language Act does not give the Assembly powers in relation to Crown bodies. The Board’s powers are also more restricted than in the case of ‘public bodies’. Our understanding is, that this position was established when drafting the Act, on the basis that the Crown was one ‘person’ that could not be separated, and therefore the Secretary of State for Wales could not be given powers over other Ministers of the Crown. By now, however, it appears that devolution via elected bodies such as the Assembly has created a rather different relationship to the traditional one between Ministers. It is questionable where the maxim ‘collective responsibility’ applies as before because devolution has enabled the Assembly to take a different policy and practice position, as is appropriate to the circumstances of Wales.

22 By using its powers under Section 6(1)(o) of the Welsh Language Act, the Assembly [in relation to its responsibility for the Welsh language] can already place public bodies under its influence which are otherwise accountable to a Minister in London. This principle is further supported by Section 74 and Schedule 5 of the Government of Wales Act, in giving the Assembly a right to insist that public bodies from outside Wales also account to it for their activities in relation to Wales. In addition, Schedule 6 establishes that a Crown body – namely Estyn [formally the Office of the Chief Inspectors of Schools in Wales] – is accountable to it.

23 It now appears inconsistent and insufficient, therefore, that a Crown body ‘from outside Wales’ cannot be accountable to the Assembly’s statutory responsibility for the Welsh language, either under the Welsh Language Act or the Government of Wales Act. We respectfully ask the Commission to consider as part of its review what steps could be taken to correct this anomaly. Is it possible, for instance, to use powers under Section 22 of the Government of Wales Act to resolve this?

24 Beyond this, there are further questions regarding the location and structuring of the services of Crown bodies. How effective and efficient can a Welsh language service from London or Newcastle or Workington be in truth? Are not the present arrangements bound to offer an incomplete and artificial service, giving responsibility to people who have no experience of planning or providing a Welsh language service, nor an empathy with doing so more often than not?

25 Some of the original domains of influence of the Welsh Language Act are being occasionally lost when the UK Government and Crown bodies present new policies or arrangements. Undermining the Act is not the intention, but sometimes it is the outcome. When it happens the Assembly probably has no effective means of regaining the ground. An example of this is the UK Government’s policy to ‘privatise’ public services by introducing competition for operating them. Let us take the Post Office, which is a public body for the purposes of the Welsh Language Act by Order under Section 6(1)(o). Private companies are now obtaining licences to provide some of the services which have traditionally been the responsibility of the Post Office, and others are planned. These companies are not public bodies for the purpose of the Act. The outcome is that services which have previously been bilingual are likely to be available in English only. In addition, the Post Office is under increasing pressure to curtail its service in Welsh in order to compete on the same terms.

26 In the Board’s view, this goes totally against what should be happening, which is, that there should be a need for those who compete against public bodies for the right to run a public service to face the same requirements regarding bilingual services as the public body itself. It is the nature of the body’s service, and not its status, which should count. If the Assembly is unable to use its power under Section 6(1)(o) of the Welsh Language Act to name competitors and create a ‘level playing field’, then should it not have powers to do so under the Government of Wales Act?

27 The Board has asked Postcom, the regulator for the Postal sector and a Crown body, to ensure that operating licences for these companies include a requirement that they provide a bilingual service, to the extent that it is relevant to the service in question. It has so far refused, explaining that it is not within its remit. Postwatch – the user council for postal services and a public body – does this see this as a legitimate matter for its intervention, as the representative of user interest in Wales. Postwatch, however, does not have the power to impose linguistic requirements on the providers. It appears, therefore, that the position of Welsh cannot be protected through the existing structures and powers.

28 One way perhaps, would be to give the Assembly further power [applicable only to its function in relation to supporting the Welsh language] to make an Order under Section 1 of the Regulatory Reform Act 2001. If our understanding is correct, under this Act a Minister may through Order change or add to primary or secondary legislation in some circumstances. These include placing a ‘burden’ [i.e. statutory obligations] on a party if the wider public interest justifies it. The justification here, it could be argued, would be:

• In order to be consistent with expectations of the UK Government, the Assembly and the public with regard to bilingual service provision in Wales;
• In order not to undermine the Welsh Language Act in a particular field, through taking services to the public in Wales outside the Act; and
• In order to satisfy ‘level playing field’ requirements when opening the market to competition.

This would not be about reversing the competition policy, simply ‘correcting’ the way in which it is being implemented in order to pay due regard to relevant legislation.

29 The postal services example has been chosen to illustrate a dimension which is a concern to the Board, namely the inability of the Assembly given its present powers to protect the interest of the Welsh language as wider public policy evolves. Similar trends could no doubt be found in other policy fields. It is the Regulatory Reform Act which is being used currently by the Registrar General to modernise the Registration Service, which in turn will allow rule changes that enable the Registrar to provide a bilingual birth or death certificate in England, without having to present primary legislation to Parliament. We assume that additional power under Section 22 of the Government of Wales Act would provide the key for the Assembly to use the Regulatory Reform Act to protect the position of Welsh.

30 An undertaking was given during the passage of the Welsh Language Act through Parliament that privatisation and contracting out of public services would not lead to ‘opting out’ of the Act. In the spirit of that undertaking, we ask the Commission to consider the appropriateness of giving the Assembly power to intervene in the interest of the Welsh language in situations such as the one we describe above.

31 As previously noted, Sections 48 and 120 of the Government of Wales Act charge the Assembly with conducting its business and exercising its functions in a way that gives equality of opportunity for all people. This includes linguistic equality. The Board has always placed the Welsh Language Act in the family of equal opportunities and anti-discrimination legislation. The Assembly is of the same view. In paragraph 3.3.7 of the Assembly Government’s Welsh Language Scheme, it states:

"Linguistic equality is part of the Assembly Government’s equal opportunities agenda, and will be integrated into its equal opportunities work. The Government will expect other organisations to adopt the same approach. This will also be linked to measuring the implementation of aspects of the European Charter for Regional and Minority Languages. Where reference is made to equality of opportunity in documents and statements, language will be inserted with race, gender, disability and other equality interests.

32 This is evidenced in practice by for instance the Equality Standard for local government which requires councils to give consideration across the board to the use of Welsh as an equality issue. The other equality bodies in Wales have included the Board in their ‘family’, and we meet to promote the equality agenda in Wales as well as to provide joint advice, as necessary.

33 The equality agenda followed by the UK Government, however, does not include the linguistic dimension to equality, even though that agenda gives direction to equalities in Wales, and directly affects the work of a great number of organisations. The equality policies pursued by the Home Office make no mention of language, even though the UK Government has signed the European Charter referred to above, and is accountable for its implementation. The inter-action between linguistic rights and equality of opportunity provides the foundation upon which the various Articles are constructed and bonded together to make up this Charter. For instance, the Charter is signed by member States –

"considering that the right to use a regional or minority language in private and public life, is an inalienable right conforming to the principles embodied in the United Nations International Covenant on civil and political rights, and according to the spirit of the Council of Europe Convention for the protection of human rights and fundamental freedoms",

and has as one of its Objectives and Principles

"the parties undertake to eliminate, if they have not yet done so, any unjustified distinction, exclusion, restriction, or preference relating to the use of a regional or minority language and intended to discourage or endanger the maintenance or development of a regional or minority language. The adoption of special measures in favour of regional or minority languages aimed at promoting equality between the users of these languages and the rest of the population or which take due account of their specific conditions is not considered to be an act of discrimination against the users of more widely used languages."

34 Language is not mentioned with the other equality fields in documents and statements about equality made by the Home Office, even though the Human Rights Act 1998 includes it, when incorporating Article 14 of the European Convention of Human Rights into UK law. By contrast, the agenda is based on six of the equality dimensions only: race, gender, and disability [the other statutory dimensions] and age, sexual orientation and religion. The Welsh language dimension has not been recognised in the current proposals for creating one equality body for England , Wales and Scotland. Where, too, is the discussion about the merits of creating a separate equality body or Rights Commission for Wales?

35 This is of considerable concern to the Board, because it confusingly conveys a message that inability to access a service because of linguistic inequality is not of the same importance as inaccessibility because of say disability or colour. Is such a position not in itself discriminatory? Too often, because of this confusion, we hear managers and equality officers in bodies in Wales still saying that linguistic equality is not a ’real’ equality matter. It is also a concern because it confuses the inclusive message which the Assembly, the Board and other equality bodies in Wales are attempting to present here. We see the linguistic dimension as a resource which belongs to everyone and is for the good of everyone in Wales, and not something which separates people.

36 It appears, therefore, that there is a quite a fundamental inconsistency between the Assembly Government’s interpretation of equality and that of the UK Government. We believe that the Welsh language, and the unique historical and cultural background of Wales, together with the Assembly’s specific responsibility under Sections 48 and 120, call for different interpretation and arrangements in Wales. We also believe that a matter so fundamental to Welsh identity and equality of opportunity for its citizens, should be in the hands of the elected body created to represent and protect the interests of those citizens. We ask the Commission, therefore, to consider the appropriateness of giving the Assembly fuller responsibility for equal opportunities in Wales, and how that may be done.

37 If the Assembly and its partners are to plan their policies and activities successfully, and keep an overview on progress, then a strong information base tailored to the needs of Wales is essential. This is central to responsible governance. The task of collecting information is in part dependant on the co-operation of Crown bodies and others who are commissioning research or undertaking surveys on a UK [or England and Wales] basis. There are regular opportunities to ensure that they ask questions which will provide specific information about Wales, or about matters relating to Wales. In the Board’s view, insufficient attention has been given to this in the past.

38 This is clearly true in respect of information on the Welsh language and its speakers, both specifically and in conjunction with social or economic trends. It goes without saying that this is a governance responsibility, because considerable public resources are being spent on the Welsh language. It includes not only the money the Assembly gives directly to the Board and other bodies annually, but also expenditure on Welsh language services and activities by all kinds of bodies. In order to measure the position of Welsh correctly, so that resources can be targetted, and best use made of them, a detailed and up-to-date information base is essential. By way of example, given the importance of the Census survey, the way in which the needs of Wales and the Welsh language dimension were treated by the Office for National Statistics in the planning and conduct of the Census was unacceptable.

39 We hope the Commission’s review will touch on the relationship between the Assembly and other bodies undertaking research and surveys, in order to make sure that the objectives and arrangements are suitable for addressing the specific needs of Wales.

40 The devolution of responsibility for Education to the Assembly is quite comprehensive. In practice, some of the education functions are being operated through arrangements with bodies from outside Wales. The Student Loans Company and UCAS are familiar examples. One of these bodies is the Teacher Training Agency, which is responsible among other things for marketing campaigns to attract people to the teaching profession. The Assembly buys a marketing service from it.

41 There is a serious shortage of bilingual teachers in some curriculum fields, but somehow this is being lost in marketing campaigns which are insufficiently tuned to the specific needs of Wales. The Wales-specific and Welsh language dimension, so successful when the work was undertaken separately in Wales prior to devolution, has been largely lost.

42 It is likely that this loss stems not from the powers of the Assembly, but from implementation arrangements, but we draw the Commission’s attention to it because the future of the Welsh language depends so heavily now on the contribution of bilingual education.

43 The Board’s view is that it would not be appropriate at present to put forward a new Welsh Language Act. That was our position during the Assembly’s review of Welsh, and we are still of that view. We believe there is work still to be done to implement the existing Act, and to use it to its full potential. This is not saying that future legislation should be ruled out.

44 Neither is it saying that the territorial influence and reach of the current Act could not be maintained and extended, through the inclusion of appropriate measures in relevant primary and secondary legislation. The Government of Wales Act is a good example, and we have previously referred to the potential offered by the partnership between the Assembly and the Board – Iaith Pawb – which this enables. Another example would be enabling the Assembly to make Orders, which bring the Welsh Language Act to bear on other legislation which affect the interests of the language - our suggestion above regarding the Regulatory Reform Act and Postal services for instance. In other words, the interests of the Welsh language can be given statutory protection via legislation other than a ‘Language Act’. For that to be achieved, however, the Assembly needs to be given the necessary statutory powers.

45 The fundamental question, it seems to the Board, is this. Given that responsibility for the Welsh language has been devolved to the Assembly, should it not have the power to legislate, if it concludes it needs to do so in order to exercise its responsibility appropriately and fully? This of course goes to the heart of devolution, and illustrates the current difference between the powers of the Scottish Parliament and those of the Assembly. If we take the fact that the future of the Welsh language is first and foremost a matter for Wales – that is, unlike other devolved matters such as the economy or the arts, it springs only from Wales – then, does that not underline the principle that it should be the Assembly which brings forward any specific legislation relating to the language, when it deems it necessary? We respectfully ask the Commission to consider this.

46 Taking the points made above together, and the Commission’s remit, several themes emerge which can be summarised as follows: