The proposed Welsh Language Legislative Competence Order Standard Note: SN/HA/4973 Last updated: 11 December 2009 Author: Philip Ward. Home Affairs Section Section Home Affairs Section A proposed legislative competence order was laid before the Welsh Assembly on 2 February and the Westminster Parliament on 9 February 2009. The order seeks to transfer legislative competence in Welsh language matters from Westminster to the Assembly in Cardiff. After scrutiny by Cardiff and Westminster, a draft Order, somewhat revised from the proposal seen in February, was brought forward in October. This Note was originally prepared in February 2009. An “update” section at the end lists developments to December. The Note will be fully revised when time permits. Contents 1 Background 2 2 “Primary” legislative powers 3 3 The legislative competence order process 4 4 Westminster parliamentary activity 6 5 Characteristics of the proposed order 6 6 Particular concerns 8 6.1 Can the Assembly actually make Welsh an “official language”? 8 6.2 The proposed order binds everyone receiving over a certain sum of tax-payers' money. Does the Assembly have the power to do this? How would it determine which bodies are in receipt of such money? 9 6.3 Is the proposed order intended to bind the UK Parliament, MPs, Ministers and the EU, and if so how can it? 10 6.4 Does the Assembly have the right to enforce sanctions for non-compliance? 11 This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. 6.5 Are linguistic rights not already granted by the 1993 Act? 11 7 Reaction 12 8 Update: December 2009 12 1 Background A principle of equal validity for the Welsh and English languages in Wales was first enshrined in the Welsh Language Act 1967. Its preamble stated that “it is proper that the Welsh language should be freely used by those who so desire in the hearing of legal proceedings in Wales and Monmouthshire.” It also said that “further provision should be made” for the use of Welsh “with like effect as English, in the conduct of other official or public business.” Ministers were empowered to prescribe Welsh versions of statutory documents or form of words. However, almost immediately the 1967 Act came under attack from those who felt that the principle of equality validity was weak in effect – a common complaint was that it “lacked teeth”. Application of the principle was ultimately discretionary and while some bodies, such as local authorities in Gwynedd adopted a “maximalist” approach, others adopted a “minimalist” approach.1 The Welsh Language Act 19932 aimed to remedy the shortcomings of the 1967 Act by placing Welsh and English on an equal basis in public life in Wales. The Act specifies three things: • it places a duty on the public sector to treat Welsh and English on an equal basis, when providing services to the public in Wales • it gives Welsh speakers an absolute right to speak Welsh in court • it establishes the Welsh Language Board to oversee the delivery of these promises and to promote and facilitate the use of the Welsh language The 1993 Act created a statutory Welsh Language Board with powers to require public bodies to prepare Language Schemes, detailing how they will treat the Welsh and English languages on a basis of equality in providing services to the public.3 Public bodies named in section 6 of the Act have a duty to prepare Welsh Language Schemes. The Act details steps to be taken by the Welsh Language Board and by public sector bodies such as local authorities, health trusts and government agencies in the preparation and implementation of Welsh Language Schemes. These schemes set out which services will be available in Welsh and how and when they will be provided. The Act does not apply to Crown bodies although UK Government departments and public bodies have schemes on a voluntary basis. The following orders have already been made under section 6(1) of the 1993 Act: 1 Gwilym Prys Davies, “The legal status of the Welsh language in the twentieth century”, in Let’s do our best for the ancient tongue: the Welsh language in the twentieth century, ed. Geraint H Jenkins and Mari A Williams, 2000, p243 [copy available for reference in HA section of HC Library] 2 The Act can be seen in full at: http://www.opsi.gov.uk/acts/acts1993/Ukpga_19930038_en_1.htm 3 http://www.bwrdd-yr-iaith.org.uk 2 Welsh Language Schemes (Public Bodies) Order 1996, SI 1996/1898 Welsh Language Schemes (Public Bodies) Order 1999, SI 1999/1100 Welsh Language Schemes (Public Bodies) Order 2001, SI 2001/2550 Welsh Language Schemes (Public Bodies) Order 2002, SI 2002/1441 Welsh Language Schemes (Public Bodies) Order 2004, SI 2004/714 Welsh Language Schemes (Public Bodies) Order 2008. SI 2008/18905 The 1993 Act originally vested these order-making powers in the Secretary of State for Wales. Following devolution these powers were transferred to the Welsh Ministers.6 2 “Primary” legislative powers Thus the only power currently devolved to the Welsh Ministers is that to make secondary legislation under the Welsh Language Act 1993. New legislative powers were conferred on the National Assembly for Wales at the start of the Third Assembly in May 2007. These new powers were provided for in the Government of Wales Act 2006, which allows for the Assembly to pass legislation in areas where it has legislative competence. The Welsh language is Field 20 in Schedule 5 of the 2006 Act. There are currently no “Matters” listed within the Field; therefore the Assembly currently has no “primary” legislative competence with regard to the Welsh language. However, the 2006 Act allows the National Assembly to seek Measure-making powers over Welsh-language matters through Legislative Competence Orders. When the White Paper, Better Governance for Wales was published in 2005, Elin Jones AM argued in a submission to the White Paper Committee that the Assembly should have such Measure powers for the Welsh language at the outset.7 I am of the opinion that the National Assembly is the appropriate place to legislate on the Welsh language. The White Paper, by means of Orders in Council, affords an opportunity for this to happen. An Order in Council, giving the Assembly the power to legislate on the Welsh Language, could be passed in Westminster. The Assembly would then be free to discuss and approve Measures on the Welsh language at any time. Given that the Welsh Language is relevant only to Wales, this would not be contrary to the spirit of the White Paper. Prior to elections to the Welsh Assembly in 2007, the outgoing Assembly Government announced its intention to merge the Welsh Language Board with itself and create a Dyfarnydd8 to undertake the Board’s regulatory role in respect of Welsh language schemes. This would require the passing of a Legislative Competence Order (LCO) and an Assembly Measure. Other political parties also indicated that they would wish to pass Measures relating to the Welsh language.9 4 http://www.opsi.gov.uk/legislation/wales/wsi2004/20040071e.htm 5 http://www.opsi.gov.uk/legislation/wales/wsi2008/wsi_20081890_en_1 6 The National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) 7 Elin Jones AM, Letter to the Presiding Officer, 29 July 2005, BGW EV-4 http://www.wales.gov.uk/keypubassembettergov/content/bgw2-ev4.htm 8 An office to undertake the adjudication functions of the Welsh Language Board and to provide comments on the development by the Welsh Ministers and by servants or agents of crown of their Welsh Language Schemes 9 National Assembly for Wales, Members’ Research Service, Topic Brief: Welsh Language, April 2007, http://www.assemblywales.org/welshlanguage.pdf 3 After the 2007 election, a Coalition Government was formed between the Wales Labour Party and Plaid Cymru, and the basis of the agreement and programme for Government is set out in a document entitled One Wales. 10 This states: We will be seeking enhanced legislative competence on the Welsh Language. Jointly we will work to extend the scope of the Welsh Language Legislative Competence Order included in the Assembly government’s first year legislative programme, with a view to a new Assembly Measure to confirm official status for both Welsh and English, linguistic rights in the provision of services and the establishment of the post of Language Commissioner (p34). The document further states that the Assembly Government will drive forward efforts to obtain agreement on the use of the Welsh language in specified areas of EU business and use this experience to explore with the Westminster government the making of an official application to the Council of Ministers for the Welsh language to receive official EU language and working language status.11 It also undertakes to expand the funding and support for Welsh-medium magazines and newspapers, including the establishment of a Welsh- language daily newspaper and continue research work into population shifts in order to promote balanced populations in all parts of Wales.