"Status is a process, not an event"

Alun Ffred Jones does not come across as an inspiring or indeed convincing speaker in committee. When he appeared before Legislation Committee No.2 last week he appeared to be on the defensive. But I'm not going to criticise him for that. What matters is how well he does his job, and the Welsh Language Measure is probably the biggest job on his desk. The law we get is more important than how well he can explain it.

A couple of weeks ago I wrote this post about the official status of the Welsh Language, and had a stimulating exchange of ideas with Emyr Lewis in the comments that followed. We were both left with unanswered questions. He wasn't able to figure out why the Government had not included a clear statement about the official status of Welsh in the draft Measure, and I was second-guessing what the reasons for that might be. But last week Alun Ffred was put on the spot about it, and what he said gave us some answers to those questions:

     

     Extract of transcript, with translation

Whether we agree with him or not, he believes that the Welsh language already has official status (as defined in a number of previous Acts which the Measure specifically names) and that this Measure is intended to confirm and extend that official status. Even though it was delivered almost as a throw away line, he said something that summed up that position perfectly:

Proses yw statws, nid digwyddiad ... Status is a process, not an event

I have to admit that I can see the logic of that position. If we baldly declare that the language has "official status" it begs the question what the implications of that statement might be. Legislation needs to be precise and unambiguous rather than open-ended. We also need to remind ourselves of the exact wording of the One Wales Agreement with regard to the WLM, because it is unrealistic to expect this Measure to go further than that commitment.

•  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.

The wording would seem to imply that official status is something that already exists, and therefore needs to be confirmed rather than established. But the problem is—as Mike German highlighted—that if you look at the Acts which define the "existing provision about the official status of the Welsh language in Wales" they make no explicit reference to Welsh having any "official status" at all.

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So the nub of the question is this: is it true that the Welsh language has official status in Wales, even though it doesn't say that explicitly in any Act of Parliament?

The Welsh Government clearly believes it is. Nerys Arch, a senior lawyer with the Welsh Government, was sitting next to him as he said it, so we are getting much more than one individual politician's interpretation. Yet many others, no doubt backed up by their own expertise or advice, believe that it doesn't ... or at least that it doesn't say it clearly enough. However I don't think that it is necessary to argue about whether it does or doesn't. I would simply say that if Welsh does already have official status, then it cannot damage the proposed WLM in any way to say so explicitly.

At present, the proposed WLM says this:

PART 1
OFFICIAL STATUS OF THE WELSH LANGUAGE

1.  Official status of the Welsh language

(1)  The existing provision about the official status of the Welsh language in Wales includes—
       (a)  in the Government of Wales Act 2006, sections 35(1), 78(1) and (2)
       and 156(1), and paragraph 8(3) of Schedule 2;
       (b)  in the Welsh Language Act 1993, Part 2, and sections 22, 24, 25, 26
       and 27(1) 30 and (2).

(2)  This Measure makes further provision about the official status of the Welsh language in Wales, including—
       (a)  provision establishing a Welsh Language Commissioner (see Part 2);
       (b)  provision giving the Commissioner functions relating to the Welsh
       language, including functions of—
              (i) promoting and facilitating the use of the Welsh language and
              promoting equality between the Welsh and English languages
              (see 20 Part 2), and
              (ii) investigating interference with the freedom to use the Welsh
              language (see Part 6); and
       (c) provision for setting, and requiring compliance with, standards of conduct
       in relation to the Welsh language (see Parts 4 and 5).

(3)  This Measure does not affect the status of the English language in Wales.

Proposed Welsh Language Measure

As we can see, the wording is clearly built on the understanding that Welsh already has official status. I do not what to challenge that. Instead I want the Measure to make explicit what is already implicit in the reasoning behind the form of words it uses. On that basis, I propose that it should be amended to read:

PART 1
OFFICIAL STATUS OF THE WELSH LANGUAGE

1.  Official status of the Welsh language

(1)  The Welsh language and the English language each have official status in Wales.

(2)  The existing provision about the official status of the Welsh language in Wales includes—
       (a)  in the Government of Wales Act 2006, sections 35(1), 78(1) and (2)
       and 156(1), and paragraph 8(3) of Schedule 2;
       (b)  in the Welsh Language Act 1993, Part 2, and sections 22, 24, 25, 26
       and 27(1) 30 and (2).

(3)  This Measure makes further provision about the official status of the Welsh language in Wales, including—
       (a)  provision establishing a Welsh Language Commissioner (see Part 2);
       (b)  provision giving the Commissioner functions relating to the Welsh
       language, including functions of—
              (i) promoting and facilitating the use of the Welsh language and
              promoting equality between the Welsh and English languages
              (see 20 Part 2), and
              (ii) investigating interference with the freedom to use the Welsh
              language (see Part 6); and
       (c) provision for setting, and requiring compliance with, standards of conduct
       in relation to the Welsh language (see Parts 4 and 5).

(4)  This Measure does not affect the status of the English language in Wales.

I would dearly like to go further and adopt the form of words suggested by Emyr Lewis, as quoted in the meeting, namely "Welsh and English are the official languages of Wales and have equality of status."

However, I don't think we can go that far for two reasons: first because the Assembly has only been given limited legislative competence in this area, and second because the One Wales Government has only committed itself to "confirm official status for both Welsh and English". Make no mistake, I think equality of status for both languages is what we should aim for, but until the Assembly has the power to legislate for more than the public sector and some essential services in the private sector we cannot do it. Desirable as it would be, this needs to be left until we do have the power to do it.

I had thought (and in a previous draft of this post was going to say) that the first clause should simply say, "The Welsh language has official status in Wales" without any reference to English, because the Assembly has no competence to legislate on the English language. But what Mike German said has made me rethink, although with a lateral shift that he probably hadn't intended. As others besides myself have said, there is no legislation that states that the English language has any "official status" anywhere in the UK. However, if it is true that Welsh already has official status even though those precise words are not in any legislation, then it must also be true that English has official status as well. So there can be no objection to saying that in the first clause. The final clause (3 in the original, 4 in my proposal) makes it clear that the Measure does not affect the status of the English language in Wales. The new first clause is merely a clarification of what is already the case.

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So I would like to ask people whether they think that the new first clause I've proposed would be sufficient to satisfy their concerns, and an adequate way of delivering the commitment in the One Wales Agreement. I'm only talking about the status of the language ... the issue of language rights and the Commissioner also deserve attention, but let's take them one at a time.