Bilingual devolved legislation, the Welsh language and public law

A recent High Court judgment deals with the mechanics of school reorganisation in Wales. However, the Court’s approach to interpretation of bilingual devolved legislation, and the importance of the Welsh language more generally, is of broader importance and interest to public law practitioners in Wales, write Owain Rhys James and Isabelle Knight.

In R (Driver) v Rhondda Cynon Taff County Borough Council [2020] EWHC 2071 (Admin) the Claimant sought judicial review of a decision made by Rhondda Cynon Taff County Borough Council (“the Council”) on 18 July 2019 to implement proposals that concerned wide-ranging re-organisation of the primary, secondary and sixth form education in the greater Pontypridd area.

The Claimant was granted permission to advance her claim on four grounds:

• Ground 1 – The decision to re-organise sixth form education was taken in breach of section 50 of the School Standards and Organisation (Wales) Act 2013 (“the 2013 Act”); (i.e. that the Council was required by law to refer the proposal to the Welsh Ministers)
• Ground 2 (d) – The Council failed to take into consideration the response of Estyn to the consultation process, in breach of the Welsh Government’s School Organisation Code 2013 (“the 2013 Code”);
• Ground 2 (f) – The Council failed to consider suitable alternative proposals which were put forward as part of the consultation process, in breach of the 2013 Code;
• Ground 2 (g) – The Council failed to take into account how the proposals might affect the sustainability or enhancement of Welsh medium provision, in breach of the 2013 Code.

The Welsh Language Commissioner was granted permission to intervene in respect of Ground 2 (g), only. The Commissioner’s evidence was given bilingually.

The claim was heard remotely before Fraser J. The Claimant was represented by Rhodri Williams QC and Nia Gowman. The Defendant was represented by Julian Milford QC and Katherine Eddy. Owain Rhys James, whose written and oral submissions were made in both Welsh and English, appeared for the Welsh Language Commissioner.

Judgment

The Claimant succeeded on grounds 1 and 2 (g).

Ground 1 – Referral to Welsh Ministers

Section 50 (2) (a) of the 2013 Act states, in so far as is material that, proposals require referral to the Welsh Ministers where “they are proposals to establish or discontinue a school providing education suitable only to the requirements of persons above compulsory school age”. The issue between the parties was whether it was the school or the type of education that was qualified by the word “only”.

The Claimant argued that the closure of the two schools ought to have been referred to the Welsh Ministers. The Defendant’s case was that the section applied to schools that provide sixth form education only (i.e. sixth form colleges).

The Court agreed with the Claimant’s interpretation of the 2013 such that the Council’s failure to refer the decision in respect of two schools’ sixth form provision was unlawful having not been referred to the Welsh Ministers. The ruling means that all proposals affecting sixth form education including the establishment or closure of any school with a sixth form must be referred to the Welsh Ministers.

The Court accepted that the Claimant’s interpretation was correct on the basis of the English language text. However, and of significant broader impact, the Claimant relied upon the Welsh language text as being clear as to meaning in any event.

In his judgment, Fraser J held: “I consider that in order to give proper effect to the primary legislation as well as section 1(3)(c)(i) of the Welsh Language (Wales) Measure 2011, I have to consider the meaning of the Welsh language text of the 2013 Act as well as the English text, insofar as I am able to do so.”

It is believed to be the first time that the Court has been invited to interpret devolved legislation bilingually. The decision highlights the equal standing of the Welsh and English language text. Therefore, where legislation is bilingual, both texts must be considered and interpreted equally. Potentially an important point of practice for those practicing in Wales.

Ground 2 (g) – Consideration of Welsh medium provision

The 2013 Code states that how proposals might affect the sustainability or enhancement of Welsh medium provision in the local 14 – 19 network and wider area and promote access to availability of Welsh medium courses in post-16 education should be taken into account (paragraph 1.9).

Further, in all cases pupils must be able to continue receiving education with at least equivalent standards and opportunities in their chosen language. This is mandatory. If proposals affect schools which are Welsh medium schools, the directory guidance is that a Welsh Language Assessment should be carried out. This is directory, which means it should be done unless there is good reason for it not to be done (paragraph 1.4 of the 2013 Code).

The Claimant’s position was that changes to Welsh medium primary education, found in the Council’s Proposal 4, would inevitably have an impact upon the take-up of Welsh medium secondary education. Mr Justice Fraser accepted that proposition. By consequence, those proposed changes should consider how they might affect the sustainability or enhancement of Welsh medium secondary provision in the 14 – 19 network, and access to post-16 Welsh medium courses. Mr Justice Fraser also accepted this argument.

The Claimant’s submission was that the decisions were made without taking account of the impact of Proposal 4 (changes to Welsh medium primary education) upon Welsh medium secondary education.

Mr Justice Fraser stated at paragraph 116 of the judgment that, “the Council failed entirely to consider how the reorganisation would impact upon Welsh medium secondary education.”

He noted that the consultation document set out only cursorily the advantages and disadvantages of the alternative options. Nowhere in those advantages and disadvantages was the impact upon Welsh medium secondary education of the potential changes to Welsh medium primary education specifically identified or even addressed.

The Council relied on its completion of a Welsh Language Impact Assessment. However, it was stated by Mr Justice Fraser at paragraph 119 of the judgment, “I would estimate that in approximate terms, only about 10% (at the most) of this document even considers impact on the use of the Welsh language at all, let alone how the proposals would affect the sustainability or enhancement of Welsh medium education. The document recites a commitment to the Welsh Government Cymraeg 2050 target, but more is required under Paragraph 1.9 of the 2013 Code than a simple recitation of this.”

Reliance was also placed upon an investigation and report completed by the Welsh Language Commissioner. That dealt with alleged breaches of the Welsh Language Standards applicable to the Council. The Welsh Language Commissioner adopted a neutral stance in the judicial review proceedings. However, the Judge accepted that that investigation was of some relevance notwithstanding that the public law challenge stood on different grounds to any enforcement steps that the Commissioner may bring.

Commentary

The judgment is the first time that a Court has been asked to derive a proper interpretation from both language texts of devolved legislation. It provides a useful practical guidance on the proper approach in those circumstances.

Owain Rhys James is a barrister and Isabelle Knight is a pupil barrister at Civitas Law.

Owain Rhys James was instructed by Trish D’Souza and Lowri Roberts of Capital Law on behalf of the Welsh Language Commissioner. The Welsh Language Commissioner adopted a neutral stance within the proceedings and was granted permission to intervene in respect of Ground 2(g), only.