R the Welsh Language Commissioner v National Savings and Investments The Welsh Ministers (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 06 March 2014 |
| Neutral Citation | [2014] EWHC 488 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No CO/9841/2013 |
| Date | 06 March 2014 |
[2014] EWHC 488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Cardiff Civil Justice Centre
2 Park Street, Cardiff,
CF10 1ET
Mr Justice Hickinbottom
and
His Honour Judge Milwyn Jarman QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No CO/9841/2013
and
Gwion Lewis (instructed by Morgan Cole LLP) for the Claimant
Emyr Gweirydd Jones (instructed by the Treasury Solicitor) for the Defendant
The Interested Party did not appear and were not represented
Hearing date: 19 February 2014
Introduction
This is the judgment of the court to which we have both contributed.
In this claim, the Welsh Language Commissioner ("the Commissioner") seeks to challenge the decision of National Savings and Investments ("NS&I") to withdraw its Welsh language scheme ("the Scheme"); and its on-going failure to resume the Scheme despite the recommendation of the Commissioner that it should do so.
On 10 September 2013, I ordered the application for permission be set down for hearing with the substantive claim being heard immediately afterwards if permission be given; expressly on the basis that, whilst I considered the claim arguable, a rolled-up hearing would fully preserve the Defendant's position in relation to the Claimant's alleged delay in bringing the claim. We heard the application on that basis.
This is the first claim in the Administrative Court of which we are aware in which submissions have been made in the Welsh language, most documents and all of the written submissions being lodged in Welsh, and Counsel using Welsh or English as they chose during the course of the hearing, at which Gwion Lewis appeared for the Claimant and Emyr Jones for the Defendant. We are grateful for their clear and thorough, but focused, contributions.
The Law
NS&I is a state-owned savings bank established under the National Savings Bank Act 1971, as successor to the Post Office Savings Bank. It enables individual savers to lend money to the UK Government in return for interest, returns based on the stock market or prizes, and a capital guarantee. It has more than £100 billion invested by over 25m customers, 1.5m of whom live in Wales. It operates as a non-governmental Executive Agency of the Chancellor of the Exchequer, autonomous in day-to-day management and formally independent of (but ultimately accountable to) HM Treasury. It employs about 140 members of staff at its headquarters in London, but has no physical presence in Wales.
The office of the Commissioner was created by the Welsh Language (Wales) Measure 2011 ( 2011 nawm 1) ("the Measure"), legislation passed by the National Assembly for Wales ("the Assembly") on 7 December 2010 and approved by Her Majesty in Council on 9 February 2011. Whilst not affecting the status of the English language (section 1(4)), the Measure grants the Welsh language official status in Wales (section 1(1)); and, without prejudice to that general principle, gives effect to that status by requiring the setting up of a regulatory system setting standards of conduct relating to (amongst other things) the use of the Welsh language, and the treatment of the Welsh language no less favourably than the English language, in delivering services, making policy and exercising functions or conducting undertakings (section 1(3)(e)). The Measure also creates a regime which requires particular bodies and persons to comply with those standards of conduct, including appropriate sanctions for default. The bodies to which the obligation of standards of conduct applies include Ministers of the Crown (and, expressly, HM Treasury) and government departments (section 33 and Schedule 6). However, the establishment of relevant standards is currently at an early stage – the first set were published for consultation in January 2014 – and it is not suggested in these proceedings that NS&I were in breach of any these aspects of the Measure. Nevertheless, the instigation of that system of regulation is important background to the office of the Commissioner.
The Welsh Language Act 1993 ("the 1993 Act") established the Welsh Language Board ("the Board") (section 1), with the function of promoting and facilitating the use of the Welsh language (section 3(1)). Specifically, in carrying out that function, the Board was required to:
"advise persons exercising functions of a public nature on the ways in which effect may be given to the principle that, in the conduct of public business and the administration of justice in Wales, the English and Welsh languages should be treated on a basis of equality" (section 3(2)(b)).
Section 5 required every "public body" which provides public services in Wales, when given notice so to do by the Board:
"… to prepare a scheme specifying the measures which it proposes to take, for the purpose mentioned in subsection (2) below, as to the use of the Welsh language in connection with the provision of those services, or of such of them as are specified in the notice."
"The purpose" specified in subsection (2) is:
"… that of giving effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that in the conduct of public business and the administration of justice in Wales the English and Welsh languages should be treated equally".
Sections 9–16 within Part II of the 1993 Act provides for the preparation, approval and revision of a language scheme. Section 9 imposes a duty on the Board to issue guidelines as to the form and content of language schemes made under the Act (section 9(1)), those guidelines requiring the approval of the Secretary of State for Wales (section 9(2)). Section 16, under the cross-heading "Amendment of schemes", provides:
"(1) Where a scheme prepared by a public body has been approved by the Board, either the public body of the Board may at any time by notice in writing to the other propose amendments to the scheme.
(2) The Board shall not exercise the power conferred by subsection (1) above except where it is satisfied that amendments of the scheme are appropriate because of changes in the functions of the public body or in the circumstances in which those functions are carried out.
(3) If the amendments of the scheme are agreed by the public body and the Board, either as proposed or with modifications, the scheme shall have effect subject to the amendments
(4) If the amendments are not agreed, either the public body or the Board may refer the matter to the Secretary of State.
(5) …
(6) On a reference under subsection (4) above, the Secretary of State may—
(a) determine that no amendments should be made, or
(b) himself decide upon the amendments to be made to the scheme (which may be the amendments proposed, either with or without modifications, or other amendments."
Sections 17–20 make provision for compliance with language schemes, as follows:
"17 Investigations
(1) Where it appears to the Board, whether on a complaint made to it under section 18 below or otherwise, that a public body may have failed to carry out a scheme approved by the Board, the Board may conduct an investigation in order to ascertain whether there has been a failure.
(2) The procedure for conducting an investigation under this section shall be such as the Board considers appropriate in the circumstances of the case, and in particular an investigation may be conducted in private.
…
18 Complaints of non-compliance
(1) This section applies where –
(a) a written complaint is made to the Board by a person who claims to have been directly affected by a failure of a public body to carry out a scheme approved by the Board,
(b) the complaint is made within the period of twelve months beginning with the day on which the complainant first knew of the matters alleged in the complaint, and
(c) the Board is satisfied that the complainant had brought the matter complained of to the notice of the public body concerned and that that body has had a reasonable opportunity to consider it and to respond.
(2) Where this section applies, the Board shall either investigate that complaint under section 17 above or shall send to the complainant a statement of its reasons for not doing so.
19 Reports on investigations
(1) Where the Board undertakes an investigation under section 17 above, it shall send a report of the results of the investigation to the public body concerned, to the Secretary of State and, where the investigation is conducted on a complaint made under section 18 above, to the complainant (whether or not the complaint is withdrawn before the investigation is completed).
(2) Where the Board considers that it would be appropriate for a report of the results of an investigation to be published, either in the form of the report made under subsection (1) above or in some other form, the Board may arrange for publication in such manner as it thinks fit.
(3) Where on completing an investigation the Board is satisfied that the public body concerned has failed to carry out the scheme, the Board may include in its reports recommendations as to action to be taken by the public body in order to remedy the failure or to avoid future failures.
20 Directions by the Secretary of State
(1) If at any time it appears to the Board that a public body has failed to take any action recommended in a report under section 19 above, the Board may refer the matter to the Secretary of State.
(2) If on a reference under this section the Secretary...
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