Annual report of the Board (Hansard, 2 February 1993)

HL Deb 02 February 1993 vol 542 cc191-216 191

§ .—(1) As soon as practicable after the end of each calendar year the Board shall make to the Secretary of State a report on its activities during the year.

§ (2) Each annual report shall include a general survey of developments during the period to which it relates, in respect of matters falling within the scope of the Board's duties and the progress made towards achieving the objects of the Act.

§ (3) The Secretary of State shall lay a copy of each annual report before each House of Parliament, and shall cause the report to be published.").

§ The noble Lord said: The last paragraph of Schedule 1 requires the board to submit an annual report to the Secretary of State. This amendment transfers that requirement from the small print of Schedule 1 into the body of the Bill. It does so in order to emphasise its importance. I appreciate that in law the provisions of schedules are in no way inferior to those contained in the main body of the Bill but as this is a short Bill, I see no good reason why the duty to produce an annual report should be shunted into a schedule. It should be contained in a clause of the Bill.

§ The second but more important point is that what is immediately apparent and important as regards the amendment is that it would require the annual report to include not only a survey of the developments during the preceding calendar year but also a report on the progress made towards achieving the objectives of the Act.

§ If the report deals only with the events of the preceding year, the record may appear to be very successful: so many language schemes may have been implemented; so many may be in the course of preparation; so many public bodies may have introduced monitoring arrangements and so on. And yet, notwithstanding that encouraging news, the statutory board may be ignoring a long term problem if the objectives of the Act are to be achieved.

§ I believe that if the board is to gain the trust and confidence of Welsh speakers, it is vital that the annual report should be addressing the longer term dimensions. The amendment places a duty on the board to be alert to the long term objectives, what has been achieved and what remains to be achieved. For those reasons, I hope that the Minister will accept the amendment.

§ Lord Morris of Castle Morris
My point is simple and brief. The most positive aspect of this Bill in the view of many of us is the establishment of the statutory board. We may disagree over many of the details relating to it but surely we all want it to succeed. We like it and we wish it well. Therefore, it must give some public account of its stewardship annually and it must publish that account so that it can be read, marked, learnt and inwardly digested and —dare I say it?—summarised and analysed in the Western Mail.
In our view it is not sufficient to tuck that requirement away in the fewest possible number of words at the tail end of Schedule 1. It requires a higher place at the table if it is to be given its due importance 192 and priority. We should say to it, "Friend, go up higher". That should be laid down and spelt out on the face of the Bill.

§ Lord Thomas of Gwydir
It seems to me that this amendment simply adds a few words to what is already in the Bill. It is quite clear that everything which is required is contained in paragraphs 13(1) and (2) of the schedule. This merely adds words. It suggests how a board, which one hopes will be responsible, should give a report on the discharge of its functions. If such a report does not include a general survey of developments during the period to which it relates, matters falling within the scope of its duties and progress made towards achieving the objectives of the Act, then it is not a responsible board.
The only addition which the amendment makes is that a copy of the annual report shall be laid before each House of Parliament and: shall cause the report to be published". The Committee will know that once a copy of the board's annual report is laid before Parliament, it is published.

§ 10.15 p.m.

Earl Ferrers
I agree with the comments of my noble friend Lord Thomas. Despite what the noble Lord, Lord Morris of Castle Morris, said, when I first noted that the noble Lord considered that the provisions for the board's annual report should be moved from Schedule 1 to the body of the Bill, I thought that was odd. It seems to me that the schedule is very much the place for this sort of detailed provision. I was glad my noble friend Lord Thomas of Gwydir thought the same.
I note, however, that some changes have been made to the wording of paragraph 13 of the schedule. I note that the noble Lord suggests that the board should make a "general survey of developments". In essence, I suppose he means a sort of "state of the language" report. I do not think the Government would want to argue against the desirability of the board undertaking this sort of work. Keeping the state of the language under review would seem to be in keeping with the board's general function of "promoting and facilitating" the use of the language. I do not think, however, that we should tie the board down to doing this via its annual report. The board may wish to report on the state of the language in another way or at different intervals. It should be free to do so. The board should also be free to decide that a study of the language itself should be published separately from the day-to-day details of the board's operations and finances.
As the Bill stands, the board can undertake this type of study as and when it considers appropriate, and it can of course bring any study to the attention of the Secretary of State and of other interested parties whenever it wishes to do so.
The noble Lord, Lord Morris of Castle Morris, said that we need an account of the board's stewardship and that that account should be published and made public. The amendment seeks to have the report published. There will be an annual report and we are agreed that the report should be laid before 193 Parliament. However, I am bound to tell the Committee that in my view this amounts to publication by another name. There is nothing to stop the board arranging a much wider distribution should it decide to do so or should it receive requests to do so. I would, however, expect there to be far more interest in the other kinds of publications the board is likely to issue rather than the annual report. It makes far more sense therefore for the board to determine its own priorities in this respect. I hope the noble Lord will agree that the Bill is best left as it is at present.

§ Lord Prys-Davies
I am somewhat disappointed by the response of the noble Earl. To the noble Lord, Lord Thomas of Gwydir, I would only say that the additional words incorporated in the proposed new subsection (2), namely, progress made towards achieving the objects of the Act", are important. That is a new provision. The provision in the schedule does not require the board in its annual report to have regard to the, progress made towards achieving the objects of the Act". It is, after all, the principal role of the board to ensure that it is achieving the objectives of the Bill.
Before the Minister slams shut the door, I wish to mention that this amendment broadly follows the lines of an amendment that was suggested to me by a wise, distinguished and experienced Welshman who has occupied some of the most senior posts in Wales. I would be grateful if the Minister could consult again with his colleagues in the Welsh Office on the merits of this amendment. If it is not to be brought onto the face of the Bill, will the Minister inquire whether the final words of the proposed new subsection (2) could be incorporated in the schedule? That would be a step forward. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Clause 3 [Supplementary provisions about the Board]:

§ Lord Morris of Castle Morris moved Amendment No. 11: Page 2, line 16, leave out from ("Board") to ("shall") in line 17.

§ The noble Lord said: On behalf of my noble friend I move Amendment No. 11. I wish to speak also to Amendment No. 12. Without, I hope, laying ourselves open to any accusation of undue suspicion and scepticism may we, in putting forward this amendment, seek some reassurance from the Government about the words which this amendment offers to delete? In particular I wish to ask the Minister three questions. First, why is the first part of Clause 3 necessary at all?

§ In this Bill, as in a few others, all power already subsists in the Secretary of State. The board has functions—perhaps we can still call them duties—and activities but it has no particular powers of its own. It cannot compel anyone to do anything; nor, as far as I can see (I would be grateful if the Minister could enlighten me to the contrary), can it refuse to do what it is told to do by the Secretary of State. If any of the members of the board do so, they could find themselves unable or unfit to discharge their functions 194 under paragraph 2(3) (c) of Schedule 1. Is not the expression "shall comply" in Clause 3 taking a steam-hammer to crack a peanut?

§ Secondly, perhaps the noble Earl can give us some idea of the circumstances in which the Secretary of State may need to use those very potent powers. Will not the board have singularly failed in its duty or function if he is ever compelled to issue general directions to it? Is there not a vast range of action lying between the two words "general" and "special"? I suppose that a general direction may be to double the charges that the board is making for the provision of services. On the other hand, a special direction may be to sack Dai and fire Fred by Friday. Such a wide range of unspecified powers will surely make the board and public bodies at least uneasy. Thirdly, is it not more usual and helpful to permit such powers only after a process of consultation? For example, I have in mind Section 4(4) of the Iron and Steel Act 1949, as revived in the 1967 Act, where it is provided that the Minister shall after consultation with the Corporation issue directions. In a few other Acts to which my attention is drawn I find that the process of consultation before the Minister issues directions is not uncommon. Will that not be welcome in this Bill in helping to conciliate everyone? I beg to move.

Earl Ferrers
The Government obviously want the board to be independent. It is also important that the board is accountable. The Bill gives the board a very wide remit. We believe it is right to ensure that there is proper democratic regulation of how the board carries out its functions. If that is not the case many people in Wales may legitimately ask from whence the board has derived its authority.
The noble Lord, Lord Morris of Castle Morris, has said that we have used a steam-hammer to crack a peanut. That is a glorious phrase but I believe it is a slight exaggeration. The provision we have made concerning directions from the Secretary of State is not unique in legislation that sets up non-departmental public bodies. I believe it is also the right model for this board and for the operation of the Bill. The Committee will note that in dealing with the role of the board in agreeing Welsh language schemes and monitoring their operation, we have built in a very considerable element of flexibility. In a number of important places the board is able to proceed as it considers appropriate. It is absolutely right that we should not put the board in a straitjacket; it should be able to tailor its actions to the circumstances of each particular case. But ultimately the board must be accountable to the Secretary of State. That accountability has to be reflected in the Bill; otherwise, the board is just an organisation on its own with enormous powers and there is no facility for reining it back should it go wrong. The powers of direction of the Secretary of State are a very important reserve remedy in the unlikely event that the Secretary of State felt that the board was not conducting itself correctly or could profit from change.
When the board receives a complaint under Clause 17 about an alleged breach of the scheme, we have provided, as it is necessary to do, for the board to determine whether to investigate that complaint. That 195 would allow the board to dispense with vexatious or groundless complaints. If a complainant were ever to feel that the board had misjudged the importance of his complaint, to whom could he go for a second opinion? Here I believe that the Secretary of State's powers of direction are right because they ensure that he is in a position such that an individual could appeal to him to study his case. If it transpired that the Secretary of State was satisfied that the board had made a mistake he has the powers to act on behalf of the complainant.
I hope that your Lordships will see that those powers of direction for the Secretary of State are not an attempt to render the new Welsh Language Board a servile creature. If that were the case the board would be of no use to anyone. Its function is simply to be an independent champion of the Welsh language, but it must be accountable to the Secretary of State and, through the Secretary of State, to Parliament. Clause 3, which follows a pattern which has been used for other non-departmental public bodies, ensures that it is.

§ Lord Morris of Castle Morris
For what I have just received, may the Lord make me truly thankful. I am grateful to the noble Earl for a very clear answer to questions of which he had no previous notice. I shall need to think about what he said, discuss his words with my noble friends and perhaps return to the matter at a later stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved]
Clause 3 agreed to.

§ Clause 4 [Duty of notified public bodies to prepare schemes]:

§ Lord Hooson moved Amendment No. 13: Page 2, line 33, leave out ("both appropriate in the circumstances and").

§ The noble Lord said: In moving Amendment No. 13 I wish to speak also to Amendment No. 14. So far as I am concerned, and I am sure that I speak for many other noble Lords, at this early stage of a Bill our amendments have been couched deliberately to be probing amendments. They are intended to discover what is the Government's thinking in these matters and to have them pronounce the result of that thinking publicly so that the matters can be considered hereafter.

§ When I spoke on the Second Reading of the Bill I indicated that I thought that it was inappropriate to have the qualifying words, both appropriate in the circumstances and reasonably practicable", in Clause 4(2). Since that time I have reflected further on the clause. The more I reflect on the whole of Clause 4 the more troubled I become. In many ways it is the heart of the Bill because, quite apart from the general provision that the Welsh Language Board should promote and facilitate the use of Welsh, which is its general duty, Clause 4 contains the main thrust of the Bill: that public authorities should prepare schemes and that those schemes should pay regard to the guidelines issued by the board. What is more, 196 subsection (2) contains the only real reference to the guiding principle of the Bill, save for the Long Title. That is a very odd place to put it.

§ Clause 4(1) states that a public body: shall prepare a scheme … for the purpose mentioned in subsection (2) below". Then we look at subsection (2) and we find that: The purpose referred to in subsection (1) above 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 on a basis of equality". One would have expected that principle to have been spelt out in the first clause of the Bill. It has been said that the words, both appropriate in the circumstances and reasonably practicable", govern the schemes. As I understand the subsection, I believe that there is considerable danger that it could be argued that those words govern the principle rather than the schemes. If that were so, it would be a weakening of the Bill.

§ I am equivocal about whether those words should be removed. I can see advantages and disadvantages; it depends on the circumstances. But if one takes my first amendment and removes the words, both appropriate in the circumstances", the subsection would provide, so far as is reasonably practicable". My first question therefore is this. What do the words "appropriate in the circumstances" add to the words "reasonably practicable"?

§ The words "reasonably practicable" have been interpreted many times by the courts. For many years I undertook work for the Coal Board and one was constantly interpreting the words in Section 102(8) of the Coal Mines Act 1911 which provided that the Coal Board had to conform to all the statutory requirements so far as was reasonably practicable. The courts have interpreted those words many times both in that context and in the context of other Acts. What do the words "appropriate in the circumstances" add?

§ If one takes the second amendment and removes the words "reasonably practicable", the subsection provides that, The purpose referred to in subsection (1) above is that of giving effect, so far as is appropriate in the circumstances, to the principle". Why does one need the two provisions? There may be a purpose. I had not fully appreciated that. In discussions on the matter the noble Lord, Lord Elis-Thomas, indicated to me that there might be benefits in providing, both appropriate in the circumstances and reasonably practicable". I am anxious to know the situation that the Government have in mind. Why is the noble Earl confident that those words govern the scheme rather than the principle? That is fundamentally a more important question than the other two.

§ At a later stage we should consider carefully the provision of the whole clause. It seems to be the kernel of the Bill. The provision has been set out in an odd way. I am totally puzzled to know why the principle should be buried in a subsection and not put in a more prominent place. I beg to move.

197

§ 10.30 p.m.

§ Lord Elis-Thomas
It is again a pleasure to follow the noble Lord, Lord Hooson, who has moved a probing amendment which seeks to find out the precise meaning of the two phrases. They are important phrases in that they qualify the schemes which are the implementation of the principle, which is the Bill. They are either a piece of extremely clever parliamentary drafting by the responsible department and by the Government's lawyers or they represent a qualification which might not be effective in the implementation of the Bill. In the amendment we are trying to establish precisely which is the case.
I mentioned earlier that I thought it was extremely important to get the basis of legislation for language policy right. It is important that we reject the principle of individual linguistic rights as not being practical for legislation within our framework of law-making in the United Kingdom. We should not go down that road, which was originally pursued by the Welsh Language Board and Members of this House, the noble Lord, Lord Prys-Davies, and my colleague Dafydd Wigley in another place. The purpose of those Bills was to pursue the development of individual linguistic rights between individual citizens and government departments. That principle appears in other statutes and is generally recognised in linguistic law world-wide.
However, the principle here is of placing upon public bodies within the public sector a duty to produce schemes within a framework known, in the earlier clauses of the Bill, as treating the languages, on a basis of equality". It appears to me that these phrases could be generously interpreted as providing for a sophisticated form of language development. I shall not say "linguistic planning" in case the noble Lord, Lord Crickhowell, gets too excited. It should be possible to provide, within the framework of these schemes, a form of language development with the provision of varied language services throughout Wales. I wish to know from the Minister whether I am accurate in interpreting these two key phrases, "appropriate in the circumstances" and "reasonably practicable", as providing the board with the necessary powers and legal back-up to enable it to implement schemes in a sensitive way in the linguistic patchwork which is Wales, and in the delivery of linguistic services, linguistic provision, through the statutory undertakings, the public bodies that are referred to in the Bill.
Such a linguistic diversity includes public bodies which practise mainly through the medium of Welsh. Some local authorities in western Wales do that, but not exclusively in western Wales; there are other public bodies in other parts of Wales which have a policy of administering mainly or as a first language through the medium of Welsh. I would not wish to be party to a piece of legislation that put that into question. Where a public authority wishes democratically to reflect its linguistic community by using Welsh as its first language of administration, I believe it is important in the linguistic patchwork—to use that metaphor again—that it be facilitated.
On the other hand, one does not wish to have a situation where individual citizens or groups within 198 such a locality feel themselves to be debarred. That is where the provision of simultaneous translation, bilingual information and so on is so important.
Equally, in other parts of Wales, increasingly in the urban centres, particularly Cardiff, there is a developing Welsh medium community and substantial Welsh medium education provision. So the language is being returned to public life in a way which one would not have imagined possible 10 years ago, let alone 20 years ago. That also needs to be encouraged in a sensitive way.
So it seems to me that within these phrases there is either a "cop out" for the board and its schemes, or there is an opportunity to develop the principle of equality in a sophisticated and sensitive way. I hope that it is the latter and that the Minister can say so.

§ Lord Prys-Davies
I believe that the two limitations qualify the schemes rather than the principle. The paper from the Welsh Office makes it clear that without the qualifications, the schemes are not workable. That emerges from the paper. I believe that the limitation of being "appropriate in the circumstances" should be left out of the Bill. I appreciate that the noble Lord, Lord Elis-Thomas, sees that there may be merit in that particular qualifying condition, but it is my impression that the Welsh Language Board is uncomfortable about this limitation.
I fear that it has its immense dangers. The danger is that it can invite a heavy reliance on the status quo. The fact that the result might be to help in one or two areas in Wales where public bodies are already energetic in implementing the principle of equal validity is not sufficient to justify it. In Wales overall it would probably be more damaging to the restoration of the language. Others can equally rely on the limitation to argue that it would not be appropriate in the heavily Anglicised parts of Wales where the Welsh language is no longer habitually spoken to provide the machinery to implement the provisions of the Act. Indeed, an illustration is to be found on page 3 of the Welsh Office paper.
I have a fear that more often than not the status quo would not benefit the Welsh language, and the condition could become an excuse for some public authorities to do nothing to implement the provisions of the Act. It could be an escape route from the Act. The words "appropriate in the circumstances" should be rejected, but I am sure that this is an area to which we shall have to return at a later stage in the Bill.

§ 10.45 p.m.

Earl Ferrers
I can see that we are going to have to return to many matters at a later stage in the Bill. I was worried when the noble Lord, Lord Hooson, said that the more he reflected on this the more he is troubled by it. I realise that these are probing amendments and I shall do my best to explain the position, but if they were incorporated the result would be to state unequivocally that English and Welsh should be dealt with on a basis of equality. That would underline the status that we all intend the Welsh language should enjoy. The clear statement of that principle is certainly fully in accord with the aims of the Bill. The single, 199 unequivocal principle underlying this Bill therefore is that "in the conduct of public business and the administration of justice in Wales the English and Welsh languages should be treated on the basis of equality".
Having said that, what we need to bear in mind is that this Bill is not a statement of policy obectives but it is an attempt to change the law. While it may, therefore, be appropriate for the Government to have far-reaching policy objectives the important thing about the Bill is that any changes which the Bill may make to the law should be administratively practicable. The Bill does not focus upon the principle of equal validity because that principle does not correspond to the change which we are aiming to secure. The Government also do not believe that public bodies should be required to introduce measures which are unreasonable burdens, and it is therefore essential that the Bill should reflect that point.
I do not believe that any of your Lordships would have argued for unreasonable burdens to be placed upon public bodies. If we are agreed on this policy objective then it is essential that it should be reflected in the Bill, as it is in Clause 4(2) as drafted. Quite apart from the fact that the clause as drafted accurately reflects our intentions in this respect, perhaps I can explain why, in the Government's view, it would be a mistake to see the qualifying phrases, which are the subject of these amendments, as any sort of threat to the Bill's wider objectives.
First, the phrases apply to individual schemes and not to the underlying principle, which is established by the Bill. The principle is not therefore constricted in any way; only the extent to which individual public bodies are required to give effect to it. It is also important that both phrases are present.
The noble Lord, Lord Hooson, was worried about the words "reasonably practicable" and "appropriate". Many measures may be reasonably practicable, but they may not be appropriate given the circumstances of a specific organisation. The phrases have different meanings and both must be present if the duty which is established in the Bill is to correspond to the objectives which we are hoping to achieve. It may help to consider why both phrases are necessary in the light of a concrete example.
It could be argued, for example, that it is "reasonably practicable" for a local authority to recruit a Welsh speaking member of staff to perform a particular Welsh language function, wherever in Wales that body is located. But it may not be appropriate to do so if a local authority in, say, South-East Wales, is only called upon to provide that service once a year. In those circumstances the local authority and the board must have the flexibility to consider providing that service in some other way, possibly by recourse to a translation service. It is essential that the Bill can address such practical issues.
Then, as I have already made clear, public bodies will not be able to take a subjective view of what they believe to be, appropriate in the circumstances and reasonably practicable". 200 The interpretation will need to be objective in every case. It will need to have been agreed by the Welsh Language Board, and public bodies must be able to demonstrate that they have had regard to the board's guidelines. Ultimately that could be tested in the courts.
I have sought at various times to explain the difference between the Bill which was originally proposed by the Welsh Language Board and that which is before your Lordships. Although there are significant differences in the patterns of the two Bills, it is indicative that on this point at least there is some degree of agreement between them. The board's Bill talks about complying with the requirements of consumers in Wales unless those requirements are unreasonable or compliance with them would be impracticable. I understand that amendments which have been suggested by Gwynedd County Council, and of which a number of your Lordships will be aware, also make reference to the phrase "reasonably practicable". The Government, therefore, are not alone in considering the practicabilities of the issue.
The noble Lord, Lord Hooson, was concerned whether the qualifying phrase governed the schemes or the principle. My reading of Clause 4 is that it is clearly to do with the preparation of the schemes; it is the schemes which have to be reasonable and practicable. The principle is referred to elsewhere in the Bill. It is referred to in the Long Title; it is referred to in Clause 2(2) (b), and that is without any qualifying phrases. I can therefore confirm that the principle stands alone.
I am happy to accept the interpretation of the phrase by the noble Lord, Lord Elis-Thomas. He asked whether it was a flexible and sensitive scheme. It is. There is a flexible provision and it is a foundation which bears detailed scrutiny. In my view the phrases are correct and proper ones to include in the Bill. I hope therefore that I have enlightened the noble Lord, Lord Hooson, and at least eliminated some of his worries.

§ Lord Hooson
The noble Earl, Lord Ferrers, has enlightened me to a degree. But I am extremely uncertain about the provision. In Wales there is considerable fear that those words will enable the principle to be detracted from. As we are thinking aloud, and the Government have been extremely good on this particular Bill in having an exchange of views, perhaps I may put forward a suggestion which occurred to me as I listened to the noble Earl. Clause 4(2) includes the principle. Why cannot the Government consider a clause along the following lines as the first clause in the Bill: Welsh and English are the official languages of Wales and in the conduct of public business and in the administration of justice in Wales the English and Welsh languages shall be treated on the basis of equality as is hereinafter provided"? That is taking the first words of the amendment of the noble Lord, Lord Cledwyn. Most of the attack was on the words that followed, so let us leave aside for the moment the doctrine of equal validity and so on. Let us add to those words the principle that is spelt out in Clause 4(2). Clause 4(2) would then read: 201 The purpose referred to in subsection (1) above is that of giving effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle set out in Clause 1 of the Bill". That would absolutely ensure that the words "appropriate in the circumstances and reasonably practicable" could only apply to the scheme.
I put that forward as a suggestion. I have been thinking aloud in the light of what we have discussed through the whole evening, going back to the first amendment which created a great deal of interest. This clause is the heart of the Bill. Such an amendment or couple of amendments might make the Bill more acceptable. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Clause 4 agreed to.

§ Clause 5 [Meaning of "public body"]:

§ Lord Hooson moved Amendment No. 16: Page 2, line 41, at end insert: (" () a government department;").

§ The noble Lord said: I do not see why government departments should not be included among public bodies. I know that it is the Government's intention to ensure that government departments conform to the broad policy that the Welsh Language Board will adumbrate but I see no reason why they should be excluded from the list set out in Clause 5.

§ It is said that it would be very difficult for the Welsh Office to insist that other government departments conform to certain requirements set out by the Welsh Language Board but I do not see that that can be a real objection. For example, every government department of whatever nature has to conform to certain requirements with regard to safety provisions. This requirement has to be enforced by a particular government department. Now this is a government policy. It is intended to govern all government departments. Why should it not be provided for in the Bill?

§ I am intrigued to know what is the constitutional doctrine which has been hinted at that prevents the inclusion of government departments here. If it is intended that government departments should be included within the spirit of the Bill, why not spell it out? The intention of a particular Secretary of State or of a particular government is not enough. Governments pass away, as do Secretaries of State. They come to the House of Lords. One is not certain what the attitude of a future government or a future Secretary of State might be. So why not spell it out in the Bill? I beg to move.

§ Lord Morris of Castle Morris
Clearly, there is a case to be made for this amendment and there is a case to be made against it as we have heard it adumbrated in our earlier discussions both inside this Chamber and outside. At the centre of the objection to the amendment lies the difficulty of the Secretary of State's power to require other government departments to do something. But it is not enough to say, "Well, they will all prepare schemes anyway" because 202 we are dealing with law, and law cannot depend on goodwill or whim or being a good fellow or trying to lend a hand.
The central question is: can government departments be required to prepare schemes or not? If they can, should they? And if they cannot, can we afford to ignore them? I shall be grateful if the noble Earl can tell the Committee what efforts have been made to solve the legal problem; what possibilities have been proposed; what options have been investigated and why every suggestion has been shown to be impossible? I do not doubt for one moment the Government's complete goodwill on this matter. But I believe that it would help us all to learn what efforts the Government have made to include themselves in.

Earl Ferrers
The Government have explained on a number of occasions and have given the assurance on a number of occasions that government departments and indeed other Crown bodies, should prepare Welsh language schemes just like other public bodies. We intend that that should come about. We have made provisions at Clause 20 governing the special circumstances of Crown bodies.
The noble Lord, Lord Morris of Castle Morris, said in a moment of great pontification that there is a case for this amendment and there is a case against it. He would not get many enemies that way. It is not desirable that government departments should be included in the list of public bodies in Clause 5. If they were to be included, it would follow that the Bill's enforcement provisions were also to apply in the case of government departments.
This is quite an important point and the noble Lord, Lord Hooson, found difficulty in understanding it. There has been a government indication and assurance that government departments will produce schemes. I repeat that assurance. The enforcement provisions rely in the end on the Secretary of State having the power to give directions. That mechanism provides for breaches of this legislation to be speedily resolved without the need for lengthy and expensive litigation. It is not a mechanism which can be applied in respect of the Crown because one would get the absurd situation of the Secretary of State having to direct himself. That is a legal peculiarity which we must avoid.
Therefore, I can tell the noble Lord, Lord Hooson, that for practical purposes it simply is not sensible to put into the Bill a provision which enables the Secretary of State to direct himself. I can give the noble Lord the assurance that even when I pass away, as he so graphically decided, nevertheless the Government will continue to ensure that government departments do make schemes.

§ Lord Williams of Mostyn
Before the noble Earl sits down, is not the answer to give the board power to apply to the court rather than simply the Secretary of State, which we find in Clause 19(3)?

Earl Ferrers
The idea is that if a person has an objection to what the board has done, he has recourse 203 to the Secretary of State who can direct the board. That is the way it should be, unless I have misunderstood.

§ Lord Williams of Mostyn
I understand that. But if one looks at Clause 19, one sees there that the Secretary of State has power to make directions. If the directions are not complied with, as set out in subsection (3), he may apply to the Divisional Court for an order of mandamus. If there is a constitutional knot which needs to be either undone or cut, the way to do it is to give the board power to go to the Divisional Court: end of problem!

Earl Ferrers
It is not exactly the end of the problem. If the board goes to the Divisional Court when the board is, in fact, a creature of the Secretary of State because it is responsible to the Secretary of State, one would get the same position in the end. The Secretary of State would end up having to give directions or to be taken to the court by his own creature.

§ 11 p.m.

§ Lord Williams of Mostyn
There is no problem at all with a creature taking a government department to the Divisional Court, as recent history amply shows. The Commission for Racial Equality, for instance, institutes legal proceedings, and so do many other similar bodies. If one does not leave the sole power and opportunity of going to the Divisional Court to the Secretary of State, and gives co-terminus or parallel powers to the board, there is no further problem. The question asked by the noble Lord, Lord Hooson, would then be appropriately and civilly answered.

§ Lord Hooson
I do not find the answer very satisfying; but of course it all depends. At the moment, totally accept the reassurance of the noble Earl, Lord Ferrers, that the Government intend that all government departments should comply, as it were, or provide schemes that would satisfy the Welsh Language Board. Such a reply might be important in the interpretation of this Bill whenever it becomes law in the future.
I think that the noble Lord, Lord Williams of Mostyn, is correct. I know of cases in which I have been involved where bodies have taken government departments on a mandamus or "judicial review" as we should call it these days, and I see no reason why the Welsh Language Board should not be allowed to do that. However, this is a matter on which we must reflect further. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Elis-Thomas moved Amendment No. 17: Page 2, line 41, at end insert: ("() a public utility;").

§ The noble Lord said: This is the briefest amendment standing in my name this evening, and since I hope to catch the last available public utility to Cardiff, I shall be as brief as I can on the subject.

§ It is important that we look at this issue because we are now coming to the question of privatising public 204 utilities and this opens up a whole new prospect for the Welsh Language Board and its activities. I want to know how the Government perceive the privatised utilities as relating to the work of the board and the principle of the Bill. Clearly, all of these are already undertaking policies of a similar nature to those that might be agreed in schemes by the board once it is established. When Clause 5(o) refers to any person (whether or not a body corporate or unincorporate) who appears to the Secretary of State to be exercising functions of a public nature would that include the public utilities? If the Minister can confirm that, then I shall again exhibit some satisfaction and I might catch my last train. I beg to move.

§ Lord Morris of Castle Morris
I said what I had to say about this on Second Reading and I was not totally convinced then or subsequently that I have had a really satisfactory answer. Perhaps I may remind the noble Earl that I said on that occasion: surely public utilities, whether privatised or not, must be required to provide a bilingual service and to prepare schemes to that end. Clause 5 leaves so many questions unanswered. British Telecom is partly privatised but where does it fit? British Rail as it stands would have to prepare a scheme but when it is privatised it will not. A public service is a public service whether it is provided by the local authority, a government department or a private utility. Surely all of them should be required to prepare schemes to provide their service to the general public bilingually."—[Official Report, 19/1/93; col. 874.] I think my views there are broadly in line with those of the Welsh Language Board, and there is a wide range of support for the inclusion by some means of these public utilities. It is an important and, in Wales, an emotional matter. I need not remind your Lordships that water in particular is a very sensitive matter in Wales. Many of my countrymen have served terms of imprisonment because their views and actions on the right use of that element did not accord with the laws of the land.
On the matter of Amendment No. 18, I would only wish to add one illustration to what has been so clearly stated by my noble friends. Among the many letters I have received since Christmas on the subject of this Bill comes one from a gentleman in Pembroke. Now, the Committee may care to be reminded that Pembroke is not in the heartland of Welsh-speaking Wales. South Pembrokeshire, "little England beyond Wales", has been largely English-speaking since quite soon after the Norman Conquest, and since Pembroke is well south of the so-called "Landsker", the line which divides English-speaking Pembrokeshire from Welsh, my correspondent has certainly not been swept along on a great tide of Welsh nationalist feeling against his more sober judgment. He writes as follows: From the enclosed leaflet which I have received with my telephone bill you will see that British Telecom proposes to end bilingual bills and divide its customers into sheep and goats. Only those who actively pursue Welsh language bills will receive them in future". He sent me a copy of that little pamphlet which reads splendidly in English, although I do not quite know what the tone in Welsh is. It states: Dear Customer, We are pleased to send you your new style phone bill. This bill is in English only because there is insufficient room on the new bill to produce it in both Welsh and English. 205 However, to meet the known demand from customers for an entirely Welsh bill, we are pleased to be able to offer a choice of bills printed in either English or Welsh. Your future bills will continue to be sent to you in English, but if you wish to receive your bill in the Welsh language please let us know by calling 0800 800288, free of charge". He goes on: Perhaps you could bring pressure to bear to stop this retrograde step. Many Welsh people whose knowledge of Welsh is not fluent would still like to see the language in use. There are also families where only some members speak Welsh. We shall never see full acceptance of the language until industries feel that its use is important for all our futures". He makes his points reasonably, gently, more in sorrow than in anger, but he is manifestly concerned that this supplier of a telecommunications service is prepared, unilaterally, without consultation, and for no better reason than, there is insufficient room on the new bill to produce it in both Welsh and English", to reduce what he feels to be his right to receive his bill in both Welsh and English.
British Telecom's reason for the change, as stated here, is stupid, and I hope that the Government will ask why it insults the intelligence of its customers by sending them such a patronising and puerile pamphlet. It is precisely because such cases as these exist that many of us believe this amendment to be so necessary.

§ Lord Williams of Mostyn
Essentially, Amendment No. 17 goes hand in hand with Amendments Nos. 18 and 21. Amendment No. 18 has rather more specifics than Amendment No. 17. The reasons we have sought to have them included are entirely those of practicality. First, those utilities, whether public or private, are extremely important economically; secondly, they are extremely important socially; thirdly, they are monopoly institutions; and, fourthly, they are of such general significance in the life of any community that they should be the subject of a requirement for schemes.

Earl Ferrers
Amendments Nos. 17 and 18 centre around the privatised rather than the public utilities. I can understand why the Committee takes a special interest in the privatised utilities. They are providers of essential services with which we all have to deal regularly. Public utilities are among the bodies it is intended that the Secretary of State should specify, using his power under paragraph (o). That means that, for example, the Post Office will be required to prepare a Welsh language scheme. The nationalised industries—for example, British Rail - to which one of the amendments that we are considering refers, fall within the definition of "public body" and will be required to prepare schemes.
Obviously in the beginning—and it is only a beginning -in listing public bodies in Clause 5 we have sought to strike a balance between making clear indications of our intentions and avoiding making the clause over-burdensome. That is why we do not see the various public utilities and nationalised industries separately referred to.
As regards the privatised utilities, all Members of the Committee will be aware that the major utility companies operating in Wales have already adopted 206 praiseworthy policies for the use of the Welsh language. They are shining examples of what can be achieved on a voluntary basis. Some people like the successful status quo and I believe that, on balance, they are probably right.
I am aware also that both amendments before us would impose duties not only on the major suppliers, of which we have all been thinking, but also on a number of other smaller companies which conduct only limited business in Wales.
The Committee will be aware of the line which has been drawn between the private and public sectors for the purposes of the Bill. We consider that the objectives of attracting inward investment into Wales, the business of creating jobs and thereby regenerating Welsh communities are so important that nothing should be allowed to interfere with them. We must avoid the danger of legislative requirements in respect of the use of Welsh being perceived by some as a significant additional cost of operating in Wales, in which case it may be seen to provide a deterrent. The experience of many businesses which are already established in the Principality is that a sensitive use of Welsh does not entail those costs. However, it would be all too easy to give rise to such fears.
It is the distinction between the private and public sectors which is of the greatest importance to us. We hold the view that to bring the privatised utilities within the remit of the Bill would be to blur that distinction. Therefore, we do not consider that the list in Clause 5 should be amended to include a reference to privatised utilities. I can tell the noble Lord, Lord Elis-Thomas—I hope that he will catch his public utility—that the power given to the Secretary of State in paragraph (o) cannot be used to extend the Bill to the utilities.

§ Lord Elis-Thomas
I am dissatisfied and disappointed because I believe that it is important for the Government to look again at the position of the privatised utilities. As the noble Lord, Lord Williams of Mostyn, indicated, there is a distinction between public service privatised utilities and the private sector per, se. Indeed, there is a very important difference between those services already existing in Wales and the whole question of inward investment by outside capital.
Clearly, one does not wish to interfere in any way or provide a deterrent in that respect and there is nothing in the Bill which does that. However, we are talking about established services and companies that were in the public sector. As the noble Earl, Lord Ferrers, said, those have now adopted sensitive policies but that was not always the case. Indeed, one does not need to remind the Committee that those policies have come about as a result of pressure and campaigning.
The anxiety which many of us have is that unless there is a framework within which those major monopolies can co-operate with the board, however that is structured, then a large part of the commercial and service experience of people as consumers in Wales will be missing from the remit of the Bill. I am not satisfied but I am conscious of the time and I willingly give way to the noble Earl.

207

Earl Ferrers
I do not wish to send the noble Lord away disappointed or dissatisfied. I realise that this is a complicated matter. I gave the Committee the views of the Government which we strongly believe are correct. However, we do not believe them so strongly that we are not prepared to consider matters. Of course I shall consider what the noble Lord said.

§ 11.15 p.m.

§ Lord Williams of Mostyn
This is a very important matter. An elephant remains an elephant whether it is privately owned or publicly owned. It is not the nature of the ownership that matters; it is the nature of the beast. Simply to say, without any reasoned explanation, that the line the Government draw is between public bodies and privatised bodies is nonsense. It is wholly a matter of indifference and irrelevance to a consumer who wants to be dealt with in an appropriate way in Wales as to whether British Rail by then has become privatised in full or in part or whether gas has been partly sold off, wholly sold off or is public or private. That is a complete and utter irrelevance. It is the nature of the service, its significance in the community and its importance to the consumer that matter, not who owns it, in what circumstance and in what percentage.

§ Lord Prys-Davies
I very much want to reinforce the point made by my noble friend Lord Williams of Mostyn. It seems to me that the question of the ownership of the enterprise should not be the determining factor in whether the enterprise should produce a language scheme. The determining factor must be the nature of the service and whether it meets the fundamental needs of the individual.
Possibly one should mention the significance of the case from the European Court of Justice relating to Foster and others v. British Gas plc which established that an employer cannot evade the obligations of a directive applying one of the fundamental principles of the EC by pleading that his is a privatised enterprise. The right to use one's language is a fundamental right and a privatised company ought not to be able to escape that commitment merely because it is privatised. The question does not turn on the ownership of the enterprise. I would be grateful if the Government could reconsider their attitude towards the public utilities.

§ Lord Elis-Thomas
The Minister of State at the Welsh Office indicated publicly, or gave a public undertaking, when this Bill was first published that the Government would seriously consider areas for amendment. It seems to me that this question of public utilities—the noble Earl will have heard the arguments —is one that the Government might well reconsider either in this Chamber or during the passage of the Bill in another place. Taking what the Minister said as an undertaking to reconsider in that way, and mentioning in his absence the Minister of State from another place, I hope that the department concerned is able to listen. In that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]

208

§ Lord Prys-Davies moved Amendment No. 19: Page 3, line 28, at end insert: ("() any private company successfully obtaining a tender under arrangements for compulsory competitive tendering for the provision of services within Wales").

§ The noble Lord said: The theme of the final amendments is taken up in this amendment. The arguments in favour of public utilities, to the extent that they provide public services within the meaning of this Bill, apply with the same force to enterprises in the private sector which have contracted with a public body, a local authority or a health authority to provide services to meet the fundamental needs of the individual.

§ Once a language scheme attaches to the service, a client or a public body must be able to rely on that shield even when the service is contracted out to the private sector; in other words, the language scheme will follow the client. I do not see that there is a specific clause in the Bill which deals with the position.

§ I wish to put three questions to the Minister. First, will a public body be under a duty to include in a tender and in a contract a provision relating to the need for a provider of services to implement a language scheme in line with that of a public body? Secondly, will the public body have a statutory right to monitor how the language scheme is being carried out? Thirdly, will it be lawful for the public body to take these matters into account in awarding the contract? I beg to move.

§ Lord Crickhowell
I intervene briefly on this clause partly because I spoke at some length on the general subject on Second Reading. I did not intervene on the previous set of amendments because I did not want to prevent the noble Lord, Lord Elis-Thomas, from catching the last train to Wales.
First, I believe that this amendment goes too far. I do not think that the noble Lords who moved it can imagine the variety of situations covered by competitive tendering. There is a very large variety of such situations, often involving small groups of individuals and perhaps former employees doing related services. To extend the Bill on the terms proposed by the amendment is to go too far. I share some of the doubts expressed on the last set of amendments about the public utilities.
I believe that my noble friend Lord Ferrers knows that there is perhaps no one who has been more concerned with attracting inward investment to Wales. I spent a very great part of my time as Secretary of State concentrating on that single task. I understand perfectly what he says about the private sector as a whole and completely endorse it. However, generally speaking we are not seeking inward investment in Wales to provide public utility services. We already have quite close control over those services. For example, in the case of the water industry, Ofwat has extensive powers over the way in which the industry relates to and charges its customers and the introduction of such things as metering. I cannot see that it is an enormous extension of principle to say that this is a topic that perhaps exceptionally may be covered.
209 I voiced some of the problems in the Second Reading debate and will not repeat them. There are organisations, such as Severn-Trent, that deal with a very small part of the Principality. But I hope that the further consideration promised by my noble friend will look at the whole issue again and return to it later. There will be grave worries and anxieties in Wales if we do not get it right. We may spoil the effects of an otherwise excellent Bill if we do not get it right. I hope that my noble friend will reject the amendment because it will interfere quite unreasonably with a very large number of diverse organisations. However, I hope that he will give most careful thought to the points raised in the earlier debate.

Earl Ferrers
Again, I find myself in some sympathy with the view that has prompted the amendment. Public bodies now provide services in increasingly diverse ways. They include the award of contracts to private sector organisations for the delivery of services such as refuse collecting, catering and so forth. We are anxious that that type of arrangement does not result in less provision being made for the use of the Welsh language in the delivery of such services. The Bill already ensures that Welsh language schemes cover those types of services. The delivery of a service may be contracted out, but the responsibility for providing it still rests ultimately with the public body. It is the local authority that has the statutory duty to provide a refuse collection scheme. That remains the case even where it has contracted a private company to carry out the collections. The public body with the responsibility for the service will be required to prepare a scheme and agree it with the board. It may be that excluding part or all of the scheme will fall to the private contractor, but that need not be a problem. The public body will simply need to specify the requirements as to the use of Welsh as one of the elements of the contract.
Therefore, I think that the amendment proposed by the noble Lord is unnecessary. It will also have the undesirable consequence of requiring the private contractor, once it has won a contract, to approach the board and agree a scheme. That will make such a private company unique in having itself to go through the procedure of preparing a scheme. It would also cut across the statutory responsibility for the delivery of the service, which remains with the public body. The Bill as drafted, therefore, provides for the Welsh language scheme for the service to be determined by the public body before any contract is awarded.
The noble Lord, Lord Prys-Davies, asked three questions. He asked whether the public body will have a duty to put in a tender. If the public body has a duty to carry out such a task and is subcontracting that task to a tenderer, that would have to be included in the tender. He asked whether there was an obligation to monitor the service. As the public body is the body which is responsible for complying with the scheme then, of course, it has the right to monitor what is happening. The noble Lord also asked whether the public body would be able to take these matters into account when awarding contracts. The answer to that question is the same as to the first question. If the public body contracts one of its services and has an 210 obligation to fulfil certain elements of the scheme it will be up to that public body to ensure that the contractor is able to carry out those obligations, will carry them out and has carried them out.

§ Lord Prys-Davies
I am very pleased with the noble Earl's reply. He has answered the three questions in the affirmative and I am content. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Prys-Davies moved Amendment No. 20: Page 3, line 28, at end insert: ("() any body mentioned in Schedule (Public Bodies) to this Act").

§ The noble Lord said: At the outset perhaps I may say that this is a probing amendment, although it is now rather late at night. The amendment provides us with an opportunity to obtain some information on the shopping list contained in Clause 5 and some omissions from the list. It is a restricted list, embracing 14 categories of local authorities, health authorities and educational institutions. One can think of a longer list, longer even than the one mentioned in the schedule which is attached to the amendment. The Welsh Consumer Council suggested the addition of 20 or so organisations to our own list. Our own list has no special significance, except to indicate that there is a wide variety of organisations which, in our view, should have been included in the shopping list.

§ The amendment is intended to elicit guidance on a number of important practical points. We want to know why the Bill has singled out the 14 categories for mention in Clause 5. I had assumed that those were the bodies which would be called upon in the first instance to produce language schemes. If that is so, is there not a likelihood that other bodies not mentioned in the clause will not be required to produce language schemes for some years? In any event, we should like to know how many bodies, leaving aside the 2,000 schools in Wales, does the Secretary of State contemplate will be brought in by Orders in Council in the foreseeable future. Will it be about 50, 100, 150, or more? And how many years will it take before the target number is achieved?

§ As to the best of my knowledge Wales has not received any information about this rolling programme, I hope that the Minister will be able to answer my questions. It would also be appreciated if he were to place in the Library a list of the bodies to which it is contemplated the Bill will be extended under Clause (5) (1) (o). I beg to move.

§ 11.30 p.m.

Earl Ferrers
The form of the amendment illustrates only too well the difficulties which the Government faced when they sought to compile the list within Clause 5. Of necessity, the list of bodies on the face of the Bill has had to strike a balance between completeness and what is practicable. I discovered that the Cabinet Office's guide to Public Bodies contains over 800 different organisations in England and Wales. They may not all provide a service in Wales but the point serves to illustrate how unwieldy the Bill would become if it sought to list them all. 211 Therefore we had to have some form of compromise. Some organisations would be left off the list, as indeed is the case too with the list which is included in Amendment No. 61. The Wales Youth Agency is one of the prominent organisations which is not included on that list.
The Government's list strikes a reasonable compromise. It lists all the major public sector organisations in Wales, and those whose services have influence on the largest number of people. We must remember that in addition the Secretary of State can use his general powers to specify every other public sector organisation as a public body for the purposes of the Bill.
I hope that the noble Lord will agree that the Bill contains a reasonable compromise with regard to brevity and completeness, there being full knowledge that the Secretary of State can add to that list, which will have to be approved by Parliament, by statutory instrument if necessary.
The noble Lord, Lord Prys-Davies, asked how many public bodies the Secretary of State would have in mind. I cannot tell him the exact amount but there would be more than 100 in a fairly short period of time. The period of time is partly dependent on the advice of the board and it is difficult therefore to answer that point immediately.

§ Lord Williams of Mostyn
Before the noble Earl sits down, can he assist on Clause 5(1)(o)? It refers to, Any person (whether or not a body corporate or unincorporate) who appears to the Secretary of State to be exercising functions of a public nature". Would a privatised utility ever be capable of falling within that category of exercising functions of a public nature?

Earl Ferrers
A private utility does or can exercise jurisdiction in the public field. But the Welsh Language Board, and the whole principle underlying the Bill, relates to public bodies and not to private bodies. In that respect therefore it would not cover the private body.

§ Lord Prys-Davies
I am a little bothered by the Minister's reply. I wonder whether the Welsh Office could do better. Does the Welsh Office have a timetable for the implementation of the Bill? We have the names of the 14 categories in Clause 5. When does the Welsh Office contemplate that the schemes will have been implemented with regard to those bodies? As I understand it, there will be more bodies, taking the number to about 100. When will that target be achieved? The Minister used words to the effect, "not before very long". Can he give us a date? My worry is that there will be huge areas of public life in Wales that will not have the benefit of a language scheme. Nor will they have the benefit or the principle of equal validity.

Earl Ferrers
The noble Lord asks a difficult question. It is hoped that the board will be set up within about two months of the Bill becoming law. After that it depends on the speed at which the board can deal with matters in front of it. It would be quite difficult to set a timetable and to give a reasonable 212 indication because it depends on the number of bodies involved and the speed at which matters could he dealt with.

§ Lord Williams of Mostyn
Before the noble Earl sits down, can he say whether the proposed chairman of the new board has been identified and approached?

Earl Ferrers
He has not been announced.

§ Lord Williams of Mostyn
That was not my question. I asked whether he had been identified and approached.

Earl Ferrers
I think that is one step towards giving the second answer. I prefer not to comment on it.

§ Lord Prys-Davies
Perhaps I may come back now, before we withdraw the amendment. We have been given an indication of when the board will be established. We have not been told the date by which the schemes will be ready for implementation. It has just occurred to me that perhaps it may be better to restructure the Bill so that it applies to all the bodies named in the schedule immediately it is enacted. Every public body would be required within, say, 12 months to draw up and implement a language scheme based on the voluntary guidelines issued in 1989 by the present board. In that event, a Clause 6 notice would become a default mechanism when a public body failed to produce a scheme within a prescribed period or produced a scheme which, in the opinion of the board, did not reflect the voluntary guidelines.
It seems to me that that would be cheaper and less demanding on the resources of the board and the time of the staff. There is a great deal of concern that years may elapse before the language schemes will be operating across the board.

Earl Ferrers
The noble Lord produces an idea but I think it would be unreasonable to impose too many constraints of time. We are asking for quite a lot to be undertaken. There is good will and the board will want to get on with the job and produce the answers as quickly as possible. But to say that within a specified time—the noble Lord said 12 months—everyone affected must be in a position where the schemes will be operative might put undue pressure on the board and possibly the organisation. It would be better left to good will, on the perfectly good understanding that it will be done as quickly as possible.

§ Lord Prys-Davies
We shall have to study the noble Earl's words carefully and reflect on whether we ought to come back at Report stage. There may be a great deal to be said for requiring the authorities to produce a language plan within 12 months or such period from the passing of the Act so that the Clause 6 mechanism becomes a default mechanism. However, the idea occurred to me as the Minister was responding to the amendment and I am not pressing the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Morris of Castle Morris moved Amendment No. 21: Page 3, line 31, at end insert: 213 ("() The duties imposed on a body by this Act shall continue even when such a body ceases to be called a public body for the purposes of this Act, provided that the body remains in existence providing equivalent services or conducting equivalent business as that provided or conducted as a public body.").

§ The noble Lord said: This amendment is introduced in the interests of continuity and consistency. Support for the Welsh language provision, regardless of the swings and roundabouts of political policies in other areas, might be damaged if it were to be observed that a public body, on ceasing to be a public body, joyfully jettisoned its language scheme and imposed a monolingual regime against the wishes of a significant minority of its customers.

§ Is it not always dangerous to contemplate taking away from any body a right or privilege to which it has grown accustomed? Try taking away from the dog Fido the bone that he has earlier been given and which he is currently gnawing with relish and delight and Fido may well feel that the situation requires him to take a hefty chunk out of the purloiner's hand by way of comment. Even so, and not otherwise, might it be in Wales if citizens found that a privilege that they had previously enjoyed was suddenly no longer available to them. What possible advantage could there be to permitting a public body which became a private body to abandon its scheme for the promotion of the Welsh language? It would hardly save significant sums of money. It would certainly win bad publicity and forfeit good will. If I dare adapt the words of Holy Writ: When from him that bath not is taken away even that which he hath, there is sure to be wailing and gnashing of teeth". I beg to move.

Viscount St. Davids
The Government do not believe that moving a public sector organisation into the private sector should necessarily lead to any reduction in the level of Welsh language service provided. Indeed, the experience of the utility companies which have been privatised to date has been highly encouraging in this respect. Welsh Water is of course seen as a model towards which others can aspire; and I am aware that British Telecom in Wales has also received considerable praise of late for its Welsh language policies. Having said that, I have considerable reservations as to whether this is something which can be readily legislated for.
If a single large organisation which belongs to the state transfers to become a similarly large organisation within the private sector, then of course the transfer of Welsh language responsibilities becomes a relatively simple affair. The same would not be the case where a public sector organisation is distributed among a large number of private sector suppliers. I have some sympathy with this proposal, and it is one that I would wish to consider in much greater detail.
I would just repeat the Government's view that the fact that a body moves from the public to the private sector should not in itself lead to any reduction in the Welsh language service it provides.

§ Lord Williams of Mostyn
If that is so it blows an enormous hole in that rather insecure vessel that was 214 being floated earlier that there is a difference between public and private. The two are wholly mutually inconsistent.

Viscount St. Davids
I have just said that I would wish to consider this proposal in much greater detail.

§ Lord Morris of Castle Morris
I am deeply diverted by the highly unconvincing examples that the noble Viscount managed to summon up in support of his case. I am glad that the Government have sympathy about taking it away and thinking about it further. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Prys-Davies moved Amendment No. 22: Page 3, line 31, at end insert: ("() Where the Board considers it appropriate to include within the meaning of "public body" any body not included, it may so recommend to the Secretary of State, giving its reasons for so recommending.").

§ The noble Lord said: We now come to the last amendment of this evening. This amendment gives to the board the right to recommend to the Secretary of State that a body be included within the meaning of "public body". I accept that in practice the chairman and the officers of the board will have made representations to Ministers and to Welsh Office officials that the body should be included. But suppose that the Secretary of State repeatedly refused to include such a body, notwithstanding strong evidence that it should be within the definition of a public body within the meaning of the Act? Where then does the board go? How does it get out of this impasse?

§ As the Bill stands the board has no statutory right to request that a body be included. Accordingly, the rejection of its recommendation is not a matter that would be reported in the annual report. But if it is a function of the board, or if the board is authorised to nominate a body for inclusion in the list, then the board would have to report in the annual report on the exercise of that function.

§ The advantage of putting that function into the provisions of the Bill is that the board would be obliged to report to the Welsh public on the exercise of that power. That at least should help to concentrate the mind of Ministers or officials when they are asked by the board to extend the list. I beg to move.

Earl Ferrers
The noble Lord, Lord Prys-Davies, has raised a matter which I had not anticipated. As I understand it, it concerns what happens when the board wants to include a body in the list but the Secretary of State does not. I would prefer to reflect upon the matter rather than giving an off-the-cuff answer.
The noble Lord would like to see that provision included in the board's annual report. As I see it, there is no reason why it should not be included. I do not believe that it would necessarily be right to make it an obligation to include it, but there is nothing to stop the board putting it in. I should have thought that if they felt so strongly they would wish to put it in. Perhaps I can consider the matter further and advise the noble Lord later.

215

§ Lord Prys-Davies
I am grateful for that response and for the time being I am content. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 5 agreed to.

216

§ Clauses 6 and 7 agreed to.

§ House resumed.

§ House adjourned at thirteen minutes before midnight.