Official Status for Welsh

One of the three main points of contention over the new Welsh Language Measure is that it does not give Welsh official status. The wording that is proposed edges towards that, but is not as clear cut as anyone would like it to be.

While I think it's important that Welsh should have official status, the prime difficulty faced by those drafting the Measure is that English is not in fact an official language. The National Assembly cannot pass a law to make English and Welsh official languages in Wales because it does not have any power to legislate on English, and it could be argued that to give Welsh a status that English did not have would not in fact be treating both languages "on the basis of equality".


The news today is that the ConDem coalition is proposing that knowledge of English should be required for non EU immigrants. But that poses the question why a requirement should only apply to English and not any of the other languages of the UK: Welsh, Cornish, Scottish Gaelic and Irish, as well as Scots and Ulster Scots. It is not a question of how many people speak these languages—whatever merits that argument may or may not have—but on what legal basis one language can be treated differently from others.

If such legislation were to be passed, the de facto result of passing it would be to give English an official status that it does not have at present. So why not take this opportunity to pass a specific piece of legislation to that effect? It would only confirm the status that English already has in all but name, as well as providing a proper legal basis on which competence in English could be used as a criterion for entry. And if, in so doing, that legislation also recognized Welsh and the other languages of these islands as official, so much the better. It would be bizarre and inconsistent not to give someone from Patagonia who could speak fluent Welsh and Spanish, but not English, the same spousal rights of entry as someone who could speak English.

But even if that legislation did not include the other languages, passing it would allow the Senedd, the Scottish Parliament and the Northern Ireland Assembly to pass legislation to give our respective languages the same official status as English would have in the UK as a whole. This would be a neat way of solving the problem of official status for Welsh within the constraints of the Government of Wales Act.

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Emyr Lewis said...

Thanks for raising this issue.

In the One Wales Agreement, it was promised that official status for the Welsh and English languages would be confirmed in The Welsh Language Measure.

The draft measure doesn't do this.

The English language is the official language of the UK. That is so because it is the default (and in most cases only) language in which the UK legislature, government and courts conduct their business. There is no statute that says this, true, but this is so as a matter of common law. Furthermore, international treaties ratified by the UK recognise English only as the UK's official language.

Now s.94(4) GOWA 2006 says: A provision of an Assembly Measure falls within this subsection if...(a) it relates to one or more of the matters specified in Part 1 of Schedule 5

It seems to me that a declaration in a measure of the official and equal status in Wales of both Welsh and English very clearly "relates to" matter 20.1 in Schedule 5, i.e.

"Promoting or facilitating the use of the Welsh language; and the treatment of the Welsh and English languages on the basis of equality"

So I don't see the problem. We have the legislative tools to do it in Wales. Let's do it, and bring closure once and for all on questions about the status of the language.

MH said...

If you are the Emyr Lewis of Morgan-Cole I would hesitate to disagree with you. However I think that in saying, "the English language is the official language of the UK" you are making an assertion rather than stating a fact.

The frustrating thing about Common Law is that it is very difficult for it to make concise statements of principle of that nature; instead such principles have to be gleaned out of the whole body of previous judgements. In an adversarial system of justice you can argue a case for anything without it necessarily being true ... and even if you did win that argument, its application is likely to be limited to the specific circumstances of the case.

We'd agree that there's nothing in Statute that makes English the official language of the UK. But if we say that there doesn't need to be any specific statement of that in law because it's "obvious" that English is the de facto official language, do we not open ourselves up to the counter argument that there is no need to make Welsh an official language either, because the status of Welsh is precisely defined by the Acts which have actually been passed (the proposed Measure lists the relevant sections of the WLA 1993 and GoWA 2006) plus any specific provisions in future Acts or Measures? As I see it, giving Welsh official status in Wales is largely symbolic (though nonetheless important for that) and that if we want to spell out what that actually means in practice, then specific provisions in specific Acts and Measures are the only way to do it.

To me, that seems to be the only plausible explanation for the proposed Measure being worded in a way that skirts around the issue rather than hitting it on the head. It's not that the Welsh Government could do it but don't want to (which appears to me to be what you are saying) but that they can't give a status to Welsh which doesn't exist for English. If we want the status of Welsh to be enshrined in Statute, then the status of English would have to be similarly enshrined.

That's why I'm suggesting that a simple Act stating that English is an (or even the) official language of the UK might be the key to getting the same status for Welsh. The intended legislation on immigration appears to be an opportunity to kill two birds with one stone.

Emyr Lewis said...

Thanks for the response. Please do disagree, it's through discussion that we make progress (if you will forgive my soft liberal take on dialectics).

Your points are well made. The common law evolves, as you say, and part of this is custom and practice. It can make assumptions about "the way things naturally are", and so that makes them law. A good example is given by the Merthyr Tydfil Justices case: Section 17 of a 1536 Statute of Henry VIII established the primacy of the English language in courts in Wales. This was repealed by the Courts in Wales Act 1942, which gave a right to use Welsh in courts in certain circumstances. In a 1967 case, one of the UK’s most eminent judges (when considering the 1942 Act) said: “I think that it is quite clear that the proper language for court proceedings in Wales is the English language.” He did not base this on any legal principle or precedent. So, despite the fact that the enactment which banned Welsh from Courts had been repealed, English was (as a matter of law) nevertheless the language of the Courts.

Anyhow, my main point is about whether the Assembly has the legislative competence to confirm the official and equal status of Welsh and English in Wales.

I don't presume to know why the Government has not included a clear statement in the draft measure. I certainly don't believe (as I think you suggest) that it is a lack of political will in this government of all governments. On the contrary, I am sure that the political will is there in spades. Unfortunately, it seems to be trumped by something else, which may be the sort of concerns that you are expressing about competence. If so I disagree with the government on that point, but would welcome a contrary argument on the wording of Schedule 5, Matter 20.1.

The government's concerns may be different, however. For instance, are we opening a Pandora's box by having such an "open" expression as "official language" appear in a legislative measure without close definition? My answer to this is that the purpose of the provision is, as you say, largely symbolic. While one should avoid symbolic or "gesture" legislation, there are exceptions, and in my view the need to redress the historic exclusion of the Welsh language from so many domains in Wales gives rise to one of those. It would, in a sense, be a constitutional measure. Just like the UK Parliament did in the Canada Act. On this point, I suspect that we do agree.

MH said...

Sorry it's taken me a while to respond, Emyr.

As you say, the difficulty is that I am trying to "second guess" (and you're not making any presumptions about) why those who drafted the Measure have not made an unequivocal statement about the status of Welsh. It would help if we had some statement on that, and perhaps the best way to ask the question would be as part of the scrutiny process. You would be in a better position to ask it than I.

But it seems we both suspect that a simple declaration that Welsh is an official language in Wales is probably being resisted because it is seen as too open ended. It begs the question what such a statement "implies" in practical terms and that, as you say, might open a Pandora's Box.

Giving it some thought, I can see a way for the structure of the GoWA to help. The NAfW can only legislate on matters that are specifically allowed in Schedule 5, as opposed to the Scottish model, where Holyrood can legislate on anything which isn't specifically reserved. So if a simple statement such as "Welsh is an official language in Wales" is made in the Measure, then its application must by definition be limited by the precise wording of Schedule 5, Matter 20.1

"This matter does not include imposing duties on persons other than the following ... "

Therefore a statement about the status of Welsh in a Measure enacted within this competence would itself be limited in a way that has already been agreed by Parliament in Westminster and the Senedd, rather than being something that is completely open ended.

Of course if the same statement were to be reiterated in an Act of the Assembly following the referendum it would not be constrained in any way, save for its use in court because that is the one restriction in Schedule 7.

Unknown said...

Esgisodwch fi, while my mind boggles!

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