R Anne-Marie Driver v Rhondda Cynon Taf County Borough Council

Court:Court of Appeal
Docket Number:Appeal Nos: C1/2020/1780 and C1/2020/1783
Judge:Sir Geoffrey Vos
Judgment Date:21 Dec 2020
Jurisdiction:England & Wales
Neutral Citation:[2020] EWCA Civ 1759

[2020] EWCA Civ 1759

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT IN WALES

The Honourable Mr Justice Fraser

Cardiff Civil Justice Centre

2 Park Street, Cardiff, CF10 1ET

Before:

Sir Geoffrey Vos, CHANCELLOR OF THE HIGH COURT

Lady Justice Nicola Davies

and

Lord Justice Lewis

Appeal Nos: C1/2020/1780 and C1/2020/1783

Case No: TC/2016/00963

Between:
The Queen on the application of Anne-Marie Driver
Claimant/Respondent
and
Rhondda Cynon Taf County Borough Council
Defendant/Appellant

and

(1) The Welsh Language Commissioner
(2) The Welsh Ministers
Interveners

Mr Julian Milford QC and Ms Katherine Eddy (instructed by the Director of Legal Services of Rhondda Cynon Taf) appeared for the Appellant

Mr Rhodri Williams QC and Ms Nia Gowman (instructed by Watkins & Gunn) appeared for the Respondent

Mr Owain Rhys James (instructed by Capital Law) appeared for the Welsh Language Commissioner

Mr Gwion Lewis (instructed by Director of Legal Services, Welsh Government) made written submissions for the Welsh Ministers

Hearing dates: 8–9 December 2020

Sir Geoffrey Vos, Chancellor of the High Court, giving the judgment of the court:

Introduction

1

This is an appeal from a decision of Mr Justice Fraser (“the judge”) sitting in the Administrative Court in Wales, quashing a decision of the Appellant, Rhondda Cynon Taf County Borough Council (“Rhondda Cynon Taf”), taken on 18 July 2019, to implement three proposals proposing the closure of certain schools and the establishment of new schools.

2

The central issue in this case is as to the proper construction of a statute passed by the Senedd Cymru in both Welsh and English texts in 2013. The judge determined the meaning of the statute by reference to both the Welsh and English texts. Rhondda Cynon Taf challenges the construction he adopted. The claimant, Ms Marie-Anne Driver (“Ms Driver” or the “claimant”), supports the judge's construction. The Welsh Language Commissioner and the Welsh Ministers made submissions to this court (but not to the judge) as to the proper approach to the construction of a statute in both English and Welsh.

3

In the English language, the School Standards and Organisation (Wales) Act 2013 provided that certain proposals for school reorganisations require the approval of the Welsh Ministers. Section 50(1) provided that those proposals which “affect sixth form education” require such approval. Section 50(2) provided that “[p]roposals affect sixth form education if — (a) they are proposals to establish or discontinue a school providing education suitable only to the requirements of persons above compulsory school age”.

4

In the Welsh language, section 50(1) of Deddf Safonau a Threfniadaeth Ysgolion (Cymru) 2013 provided that “cynigion yn effeithio ar addysg chweched dosbarth” require approval from the Welsh Ministers. Section 50(2) provided that “[m]ae cynigion yn effeithio ar addysg chweched dosbarth — (a) os ydynt yn gynigion i sefydlu neu derfynu ysgol sy'n darparu addysg sy'n addas at anghenion personau sydd dros oedran ysgol gorfodol yn unig”.

5

The judge decided that the words “proposals to establish or discontinue a school providing education suitable only to the requirements of persons above compulsory school age” and “yn gynigion i sefydlu neu derfynu ysgol sy'n darparu addysg sy'n addas at anghenion personau sydd dros oedran ysgol gorfodol yn unig” encompassed proposals to close a school that provided sixth form education, whether or not that school also provided education to other age groups.

6

Rhondda Cynon Taf and the Welsh Ministers contend that these words refer to proposals to close schools that provide solely sixth form education.

7

Ms Driver accepts that the meaning the judge adopted would have been the same even if the word “only” and the phrase “yn unig” respectively were removed from the English and Welsh texts respectively. She submits, however, that “only” and “yn unig” emphasise that meaning. They qualify “education” and “addysg” respectively, rather than “school” and “ysgol” respectively. Moreover, syntactically, the phrase “yn unig” generally qualifies what is immediately before it. In this case, that is the clause “sy'n addas at anghenion personau sydd dros oedran ysgol gorfodol”: i.e. only suitable for over 16s.

8

Before dealing with this construction question and the other issues in the appeal, we should say something about the proper approach that a court should take to construing a statute that is passed in both English and Welsh.

The legislative background as to language

9

When the 2013 Act/Deddf was passed, section 156 of the Government of Wales Act 2006 provided by section 156(1) that “[t]he English and Welsh texts of – (a) any [Senedd] Measure or Act of the [Senedd] which is in both English and Welsh when it is enacted … are to be treated for all purposes as being of equal standing”.

10

In addition, section 1 of the Welsh Language (Wales) Measure 2011 provided that “[t]he Welsh language has official status in Wales”, and that that status was given legal effect by the enactments about “the treatment of the Welsh language no less favourably than the English language”, and that “[t]hose enactments include (but are not limited to) the enactments which … (c) give equal standing to the Welsh and English texts of … (i) Measures and Acts of the [Senedd]”.

The process of interpreting legislation enacted by the Senedd

11

We have had regard to the Law Commission's Final Report on the Form and accessibility of the law applicable in Wales 2016. It concluded, and we agree, that the best approach to the interpretation of bilingual legislation, where different language texts bear different meanings, and where it is not possible to reach an interpretation consistent with the literal meaning of both language versions, is to discern the legislative intention by reference to the purposes or objects of the legislation as they appear from the texts, rather than by searching for a shared meaning. 1 The court should, we think, apply normal principles of statutory interpretation to its analysis of the meaning of both texts equally. There should be no special rule about the admissibility of pre-legislative material and legislative history, but the court should always be astute to the possibility that such materials may favour one language version.

12

The aim of interpreting legislation is to determine the intention of the legislature. Where legislation is enacted in two languages of equal standing, and the parties submit that there is, or may be, a conflict, difference or distinction between the two language versions, detailed analysis of each version may be necessary. Where it is not suggested that the different language versions differ in meaning, the court can be sure that either version reflects the intention of the legislature. Counsel for the Welsh Language Commissioner accepted that this was the position. The approach is also consistent with the principle of ensuring equal standing for both languages, and accords with the position adopted by the Law Commission. 2

13

Finally, in this connection, each of Ms Driver, the Welsh Language Commissioner, and the Welsh Ministers submitted that at least one judge competent in the Welsh language should sit on cases where the proper construction of the Welsh text is in issue. All sides, however, accepted that there may be practical limitations on such a course if no such judges are available.

14

We accept that there may be cases where it would be highly desirable for the court to have Welsh language expertise. In this case, however, we did not feel we were handicapped in deciding the question of construction that arose. The court was able to engage in oral debate with counsel about the proper meaning of the Welsh text. The questions of interpretation of the Welsh text of section 50 that arose were accessible to non-Welsh speakers, as the judge's judgment at first instance amply demonstrated. We agree that the use of expert evidence or translations of the Welsh language is inadequate. The court must engage with the Welsh text and Welsh rules of syntax. But we believe, as this judgment will demonstrate, that we have been able to do so fully and competently in this case.

15

As we have said, we do not rule out the possibility that there may be other cases where greater levels of Welsh language expertise within the court would be desirable. But there will also be many cases where it is not imperative. There will be a spectrum from the simple construction of one word or a short sub-section or phrase on the one hand, to the need to delve into an entire Welsh language statutory regime on the other hand. This case is at one end of that spectrum and we have felt confident that the comprehensive submissions we received as to the proper construction of the Welsh text have enabled us to apply the rules we have set out, and reach an appropriate conclusion, according equal status to both texts as the legislation requires.

Factual background

16

Ms Driver is a member of a campaign group called “Our Children First – Ein Plant yn Gyntaf”. She is the mother of four children aged, at the time of the judgment below, 14, 6, 3 and 2, three of whom are educated at different schools affected by the proposals at issue in this case.

17

Rhondda Cynon Taf undertook a programme, and consulted upon, proposals to reorganise primary schools, secondary schools, and sixth form provision in the Pontypridd area of its borough. On 21 March 2019, Rhondda Cynon Taf decided to publish four statutory notices making four proposals for the discontinuance of certain schools and the establishment of new schools. The four proposals were:

(1) The alteration of the age range of pupils at the Cardinal Newman Roman Catholic Comprehensive School, from the ages 11 – 19 years currently educated...

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