"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.

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5 comments:

Emlyn Uwch Cych said...

Excuse the French, but yffach Alun Ffred is twisting himself into all sorts of positions over this.

One Wales says that the Measure will "confirm official status for both Welsh and English". It does not.

Your new §1(1) does do this, although I feel Emyr Lewis's suggestion might go beyond the British constitutional tradition (except, of course, the British North America Acts 1867-1980).

I can not stomache the prospect of another Welsh Language Measure and feel that this one must do. Nid proses yw statws. Statws yw statws! Status isn't a process; it's a status!

Emyr Lewis said...

Emlyn says it all when he says "statws yw statws".

I think Alun Ffred misses the point. What is needed for the atatus of the Welsh language is an event, not a process. A historic sweeping away of the underlying causes of inferirority complex, stigma, exclusion and marginalisation, and a historic affirmation for both of Wales' languages.

I'm in favour of a statement of declaring official and equal status for both languages. I don't see that it is wise nor desirable to do this for Welsh only. That would be an easy win for those who believe (or like to put it about) that the whole devolution project is a conspiracy of Welsh speakers determined to take over the reins of power to the exclusion of those who do not speak Welsh.

There are so many issues to unpack, that there is a danger that arguments about this issue are becoming the Welsh equivalent of angels on a pinhead.

But (in the hope that I can send a few angels tumbling)...

I would like to look at one of the arguments against my proposed formulation that has reared its head again - i.e. that it is beyond the Assembly's legislative competence. This is why I think that argument is wrong:

The Assembly has powers to make Measures relating to "Promoting or facilitating the use of the Welsh language; and the treatment of the Welsh and English languages on the basis of equality" (with some restrictions, which don't matter here.)

As far as conferring EQUAL status on both languages is concerned, that clearly relates to "the treatment of the Welsh and English languages on the basis of equality". In my view it also relates to "Promoting or facilitating the use of the Welsh language" because of the sweeping away of stigma etc.

As far as OFFICIAL status is concerned, declaring that Welsh is an official language clearly relates to "Promoting or facilitating the use of the Welsh language". Declaring that English has official status relates to "the treatment of the Welsh and English languages on the basis of equality". (I also like your / Mike german's argument that if all we are doing is confirming what is already law, then that is within the legislative competence of the Assembly in any event.

Anonymous said...

Alun Ffred is wrong.

The state giving official status to Welsh would be an event - that's the whole point of it (and I guess is the true reason he's looking for ways out of conferring it).

The process is what happens after the status is confered and trickles out into society like the ripple of a pebble thrown into a pool.

You can't have the process without the event.

Funny how Plaid and Labour can come over all laissez-faire when it comes to status for Welsh.


Macsen

MH said...

I've held off commenting for a while to see what range of reactions there was, but now I've got time to say something.

Emlyn, I agree that this was not one of Alun Ffred's best moments. But if "status is status" I would guess that you don't think Welsh has any official status at the moment. Anon clearly thinks so. Emyr's position might be slightly more nuanced in that I think he might accept that Welsh has some status at the moment, but that a big step forward is needed.

I would ask each of you whether a simple statement that Welsh is an official language in Wales (leaving aside English and equality) would be sufficient. In other words, is it a simple statement that you want, or do you it to be more than a statement? If you want it to be more, what solid legal provisions do you want to see incorporated in the WLM?

But, if a simple statement is all that is required, then what is wrong with Alun Ffred or anyone else in the government saying, in effect, "Yes, we don't mind saying that Welsh is an official language ... but it has been an official language since at least 1967, if not before." If all you want is the statement, why not allow him that fig leaf?

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As for equality of status, let me attempt this parallel. Marriage is one thing that undoubtedly has "official status". A few years ago the UK introduced civil partnerships, which were an enormous step forward in that they allowed same sex couples the opportunity to give their relationships a similar "official status" and legal recognition to marriage. So both different-sex and same-sex relationships now have "official status" ... but is that status equal? I would say it is very clearly not equal, because it does not give those in a civil partnerships exactly the same legal rights and obligations as is the case with marriage.

I would say this situation is remarkably similar to that of English and Welsh. One has had de facto official status for many hundreds of years, the other only achieved an official status in 2004. Of course getting that status was a major breakthrough, with the same sort of symbolic value that we would want for Welsh. Many people thought it was such a huge breakthrough that it didn't matter so much that the practical legal benefits and obligations of being in a civil partnership were not quite the same as those of marriage. Others think that civil partnerships are just not good enough, and that full equality is needed, as is the case in nine countries in the world so far, the Netherlands and Belgium being the first.

As I've said, I fully agree with the symbolic value of an unequivocal statement that Welsh has official status. But is it really such a big deal whether Welsh does or does not have it now? There is a very clear difference of opinion about whether it does or not. But the point of my post was to cut through that and say that it doesn't matter. There are three possibilities.

1. If Welsh already has official status ... then it can do no harm for the WLM to say so explicitly.
2. If Welsh does not have official status ... then passing legislation to say that it does will be a significant breakthrough.
3. If it isn't clear whether Welsh does or does not have official status ... then the WLM should clarify that beyond any doubt.

There are no other possibilities. Therefore a simple statement that Welsh has official status in Wales is sufficient to cover all three bases.

Comment to be continued.

MH said...

Second part

But the second factor in the debate is what "official status" actually means in practice, above and beyond any symbolic value. My belief is that we cannot argue that it means anything other than is laid down in specific provisions in the law. On that basis, what the proposed WLM aims to do is to introduce specific new legal provisions, but ones that are limited. Limited not only by the LCO, but by the ability for the proposed measure to be voted through by a majority in the Assembly.

My concern is that we make law that is precise and unambiguous. If we were, say, to pass a law that marriage and civil partnerships had "equal" status then some smart lawyer somewhere would soon be in court arguing that this statement entitled their client to certain specific things that were available to different sex partners in marriage but not same sex partners in civil partnerships. Yes, I will accept that the law is sometimes advanced by winning "landmark rulings" of this sort ... but I think the only people who would relish doing it that way are lawyers themselves. It is usually much better for everybody else concerned that this is done by passing legislation by due democratic process.

I therefore have to wonder whether those who want "equal status" are not going to try exactly the same thing with Welsh. Let me try another parallel: Any employee is entitled to a written contract of employment. Someone is taken on by a Japanese company that has just set up a small branch office in Wales, the other staff at the office are all Japanese. The employee is given a the company's standard form of contract, with the blanks filled in accordingly. But the standard contract is in Japanese, and the company is unwilling to give him a translated version and so insists s/he signs the Japanese version because it is the only one the company has, and it would be unreasonable for them to produce just one different one. I think it is obvious that the law would rule in favour of the employee getting a translated version ... or at least I'm sure that would be the case if the employee wanted an English version to sign.

On the basis of that ruling, another employee in the same situation wants to be given a contract of Employment in Welsh. His lawyer could make a very good case that if English and Welsh have equal official status, then the previous ruling that the first employee was entitled to a Contract of Employment in English must mean that the second employee is entitled to one in Welsh.

Now from a moral point of view the second request is irrefusable. But from a legal point of view it would draw a private company into a situation not contemplated by the law. In short, it could only provide a "back-door" method of extending the rights of those who want to use Welsh. The focus of advancement would inevitably switch to one of lawyers hammering that back-door to try and get a breakthrough.

Personally, I do not want Welsh to be advanced in that way. I want it to be done in an up-front way, in which every step forward is debated and discussed, and then only passed into law by a majority in the Assembly. We need to accept that the currently proposed WLM will only give us some of what we want, and that if we want to go further we need to pass a new Act (as I'm sure it will then be).

In that respect, I have to say to Emlyn that we simply can't expect this one Measure to be sufficient. It is simply a long overdue update that will take things a few steps further. We will certainly want to update it to include more of the public sector in a few years' time. I think we will also want to update the Measure to give individuals the right to directly sue organizations whose standards of Welsh provision fall short of the standards laid down, as well as to change those standards over time.

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