HL Deb 02 February 1993 vol 542 cc182-91

. Any member of the public in Wales shall have the right to communicate with, and to receive available services from, any government department or other public body which operates in Wales, or in any part of Wales, in Welsh or English unless such communication or provision of services is not reasonably practicable.").

The noble Lord said: The purpose of this amendment, which stands in the name of the noble Lord, Lord Prys-Davies, and my own, is to fortify and strengthen the principle that is found in Clause 2(2) (b)

and Clause 4(2) of this Bill in its present form. I hope that the noble Earl can find himself able to regard this as a helpful amendment. It is fairly limited in scope. It is limited on the basis of communication and the receipt of services from a government department or other public body, and it has the further overall limitation of reasonable practicability.

I ought to stress that this imposes nothing on any member of the public. The present amendment is infelicitous because it omits the word "either" before the word "Welsh", but I think its meaning is relatively plain. It imposes nothing. It simply underlines that any member of the public within these limited parameters, subject to the overall limitation of reasonable practicability, has the option of choice. I hope that the noble Earl will find this helpful and be able to accept it. I beg to move.

9.45 p.m.

Lord Hooson

Together with this clause are grouped Amendments Nos. 40 and 41, which are the provision of new clauses. I lifted Amendment No. 40 bodily from the Bill drafted by the Welsh Language Board, with modifications only to its subsection (3) and leaving out subsections (4) and (5). Although the scheme of the Welsh Language Board's Bill was different from the scheme of the present Bill, this was the one clause it had which put certain requirements on government departments as opposed to giving individual rights.

Whether one subscribes to the doctrine of equal validity or to the principle of equality (whatever interpretation is put on those two terms) this clause, which is the original Clause 2 of the Welsh Language Bill, requires government departments and public bodies when providing written material to, or otherwise communicating with, any person resident in Wales in the course of discharging executive responsibilities to do so in the language, whether Welsh or English, required by that person unless his or her requirements were unreasonable or compliance with them would be impracticable. Under my amendment it is for the government department or public body to justify any refusal to comply with any such requirement.

Whatever doctrine is used, whether it is the doctrine of equal validity or the principle of equality, surely that is the minimum right and the minimum duty which should be on any government department. It is acknowledged that Welsh is to be an official language together with English. Therefore the provision, which is another way of providing the same kind of service, is necessary, as indicated in the amendment of my noble friend Lord Williams.

Amendment No. 41 was lifted bodily from Clause 3 of the original Bill as drafted by the Welsh Language Board. It simply allows the use of Welsh or English in Wales for the purpose of complying with statutory requirements to provide information in writing or to submit documents to government departments or public bodies.

It seems to me that the aim of those three new clauses is to provide the service that one can reasonably expect of an official language. Each of the amendments carries the proviso that it should neither be impracticable nor should it be unreasonable. That is why I tabled the two new clauses. I have never read anywhere or understood why the Government did not accept those specific provisions in the Welsh Language Bill as drafted by the Welsh Language Board. I believe that the Welsh Language Board was an effective and efficient body. It worked hard and possibly had much more direct information available than anybody who has taken part in the debates.

It seems to me also that the Government simply turned down or rejected the two general provisions within that Bill and I have not seen any adequate explanation for their doing so. That is the reason I tabled the amendments. The amendment of the noble Lord, Lord Williams of Mostyn, seeks generally to achieve the same result and I am interested to know the Government's reaction to the proposals.

Lord Elis-Thomas

I am pleased to support my noble friends Lord Hooson and Lord Williams of Mostyn on these amendments because they revert to an area which I tried to cover earlier when I was talking of the provision of public services. In that case I was trying to specify that the content of services was clearly laid out so that the board's function in relation to the public sector would be clearly illustrated. That is why I am pleased to support the amendments. They set out how public bodies may respond through their duty to carry out the objectives as set out in the Bill.

The Government will perhaps respond by saying, "That is covered by the schemes". Again I do not want to sound as though I am trying to usurp the role of the Minister by speaking from here, butt suspect that that is what the Government will say. The whole point of the amendment is that it sets out the requirement on government departments and public bodies as it will be implemented in practice.

What concerns many of us is that we should be able to make clear to the public in Wales what provision will be made available as a result of the Bill. The amendment sets out precisely what the obligations will be. Therefore I do not believe it is contradictory that we set out in the amendments the use of Welsh dealing with government departments or public bodies. It is not contradictory to the provision of public schemes or to the principle as set out in the first clause of the Bill. It complements rather than detracts from those principles and shows quite clearly what the content of schemes in the administration of those government departments and public bodies and their services would appear to be. I fail to see why the Government cannot respond more positively, setting out what are the implications of the Bill in terms of the scheme as it will be provided. This will strengthen rather than weaken the work of the board. The Government are relying a good deal on the staff and members of the board to carry out the principles and practice through the schemes as set out in the Bill. The amendments will strengthen the activities of the board and make its work even more acceptable. I am therefore pleased to support them.

Lord Crickhowell

As I read the new clause thoroughly for the first time during the discussion I became more and more concerned about it. There is a problem which is addressed quite sensibly in the schemes. An individual may say, "I want a certain publication to be in Welsh". The organisation has to establish that such a demand would be unreasonable or compliance with it would be impracticable. Subsection (2) goes on to say that, a requirement made in any case by any person shall be presumed to be reasonable and compliance with it shall be presumed to be practicable unless the contrary in either case is proved". What one will get is a whole series of arguments.

I am the chairman of an organisation that has a strong Welsh language policy. Our Welsh region publishes in Welsh most of the things that we do. But we have a large number of highly technical publications for which we get a very limited demand in Welsh. We print a good many of them even though there is a limited demand. There are publications that we produce which I confess we do not automatically translate into Welsh. We would find ourselves in each case perhaps having to explain, to prove and to establish that it was not a productive use of resources to publish an enormous scientific document on some obscure subject for which one might get only one request. On the other hand, if one has a scheme the organisation can sit down with the Welsh Language Board and discuss practicalities. The scheme is published and the organisation can turn to the scheme and say, "We have discussed this. The Welsh Language Board agrees that this would be unreasonable and impracticable". There is therefore a quick and speedy answer.

I can see a great jungle of horror for any organisation if every time someone picks up the telephone and says that he wants this or wants that the organisation has to prove that that is an unreasonable request. The truth is that we know that there are individuals who may choose to do just that. I know that the noble Lord, Lord Elis-Thomas, will have met some of them. I have met some of them. They are those who would seek to bring the whole thing almost to breakdown. It is a much better system to have a Welsh Language Board able to sit down and work out these things for the general good of the language and thereby not get ourselves into disputes of that kind.

Lord Hooson

Perhaps I may respond immediately to the point made by the noble Lord, Lord Crickhowell. The noble Lord mistakes the purpose of the amendments. The amendments are a general provision. They in no way displace the requirement of the Welsh Language Board to prepare schemes. Schemes will be prepared. The schemes will undoubtedly be evidence from which any organisation such as his own could say, "The Welsh Language Board did not consider that it was unreasonable not to do this". That would be the strongest possible evidence against any individual who was trying to argue to the contrary. The provision sets out the general principle showing what a citizen is normally entitled to unless it is impracticable or unreasonable.

Lord Prys-Davies

Amendment No. 9 is particularly important. I shall come to Amendment No. 40 later on. It is particularly important as the principle of equality will probably not work outside a language scheme. If there is a relevant language scheme the individual will look to it for his rights and the duties of the public body. It may well be that there are no language schemes because it will take time for them to be prepared. In that event there is no guidance in the Bill as to how the principle is to apply. It is rather surprising that there should be this gap in the Bill. Possibly, that is the biggest single omission from the 1967 Act; namely, that there was no criterion for the application of the principle of equal validity. Amendment No. 9 provides a definition of rights and that is invaluable.

I am not quite certain how it came about that my name is connected with Amendment No. 40. I am sure that the fault is mine. I have been able to support part of that amendment as it takes us back to the two qualifying conditions which were suggested by the Welsh Language Board and which were heavily criticised by many people in Wales, including myself.

Applying the two-fold test which we find in Amendment No. 40 we approach the claim from two sides. First, it has to be reasonable and, secondly, it has to be practicable for the public body to comply with it. The test of reasonableness in that context leads to many difficulties. Who will have the authority to decide what is reasonable? Again, would that be on a case-by-case basis?

There was considerable strength of feeling about that test. Many people found it offensive that they should have to establish that their claim was reasonable. For my part I would be very reluctant indeed to discard a right merely because it was considered that the claimant was unreasonable in making the request in the first place. It would be conceding that the claimant never had a right because the Act had established that he cannot have a right to make an unreasonable request.

In practice it may well be that the position turns on the test of practicability, which is a different issue. I am glad that the Government have rejected the two-fold test. No one has written to me favouring the reintroduction of that test. Many people would be deeply concerned if the Government were tempted to reintroduce it.

10 p.m.

Earl Ferrers

I believe that we are all trying to get to the same end; it is merely a question of which route is the better one. I go along with the caution of my noble friend Lord Crickhowell over this matter. The Government have for many years sought to facilitate the desires of people in Wales to be able to choose which language they want to use in any particular situation.

The Welsh Language Act 1967, for which some Members of the Committee now present were responsible, took a very important step which was guaranteeing the choice of using Welsh in the courts whether or not the individual concerned also spoke English. Since then the promotion of choice has guided developments in the use of Welsh across the public sector. The Bill seeks to make that choice the norm across the whole range of communications and services to which it applies.

The principle that Welsh and English should he treated on a basis of equality quite obviously brings with it the choice as to which language people will use when they have dealings with the public sector. Obviously that must be the case, whether we are talking about communications generally, which are referred to in Amendment No. 9 tabled by the noble Lord, Lord Williams of Mostyn, or Amendment No. 40, tabled by the noble Lord, Lord Hooson. It may be the submission of written material to a body which is referred to in Amendment No. 41. Communications of every nature are therefore subsumed within the principle of equality as established by this Bill. The important point is that the issue is dealt with in this Bill but in a manner very different from that proposed by the Welsh Language Board.

The cumulative effect of Amendments Nos. 9, 40 and 41 would achieve some of the same ends as the Bill before us but by rather different means. In particular, they seek to grant rights to individuals. I am bound to ask myself what the practical result of establishing rights for individuals in this context would be. It is, of necessity, the case that the right must be limited by considerations of what is reasonably practicable. In every case therefore where an individual tried to exercise his right, a public body could explain that it was not reasonably practicable for it to respond. Only by going to court could the individual establish whether he in fact had a right or not. The Government do not believe that that is the best way of ensuring an adequate level of service. It is not a burden that we would therefore propose to impose.

The Bill, by contrast, requires that the ways in which a public body will provide for individuals to be able to exercise their choice of language should be agreed in advance between the public body and the Welsh Language Board. Reasonable practicability will still be a consideration, but we shall not be requiring the individual to prove what that criterion means in each instance. We shall place the powerful Welsh Language Board in the position of the advocate on behalf of individual Welsh speakers.

I do not think that there is any argument with the concept of choice which is embodied in these amendments and about which your Lordships have rightly expressed anxiety. However, I do believe that the Bill as drafted provides a better way of ensuring that the individual knows what that choice is and how it can best be exercised.

One of the most important distinctions between the board's Bill and that of the Government is the role which is played by the guidelines—not the schemes, but the guidelines. We are not rejecting these basic policy objectives. These matters will be covered in the guidelines which the board will be required to prepare. My noble friend Lord Crickhowell was quite right in his anxiety about the practicalities. The board will be able to consider detailed issues such as he mentioned in relation to every single body which prepares a scheme, and the guidelines will make the board's intentions perfectly clear.

I hope that the Committee will consider that the system that we have provided in the Bill is the best route by which we can attain the desires which your Lordships have expressed in other amendments.

Lord Williams of Mostyn

I must say, with some regret, that I find the rejoinder of the noble Earl deeply unconvincing. I am speaking to Amendment No. 9. I take the criticisms which the noble Lord, Lord Crickhowell, made of the much lengthier amendment, Amendment No. 40; but I was glad even at this late stage in the evening to notice that he did not seek to impugn Amendment No. 9 which stands in my name and that of the noble Lord, Lord Prys-Davies.

The noble Earl constantly speaks of "facilitating desires" or his desire that choice should be "the norm" or that it should be "a route" along which we must all proceed. But what needs to be attended to is what route, to what terminus and for what purpose. All that Amendment No. 9 suggests is that the purpose is to enunciate rights. A right is a perfectly simple thing. It is something which is yours in law which is capable of being enforced. To "facilitate desires" or to make choice "the norm" does not attend to what people want, which is a clear categorical expression of the rights of the Welsh speaker or the English speaker in Wales.

Amendment No. 9 is modest and moderate. To use the benchmark that the noble Lord, Lord Crickhowell, rightly used, it is capable of practical operation. I have heard nothing from the Minister to indicate that the right claimed to be specified in Amendment No. 9 is something that the Government think should not be the right of a Welsh or English speaker in Wales.

Lord Crickhowell

Before the noble Lord sits down, as he has tried to call me in support of his amendment on the grounds that I did not mention it, perhaps I might be allowed to say that my objections to Amendment No. 40 apply in almost exactly the same way to Amendment No. 9.

Lord Williams of Mostyn

I do not see that they can apply in the same form, because Amendment No. 40 is different and raises different hurdles to be overcome by various public bodies. However, my proposition remains that Amendment No. 9, as we have put it down, with the possible typing error of the omission of the word "either" before the words "Welsh or English" is a moderate expression of what I have understood the Government to be agreeing to; namely, those are rights which should be capable of enforcement. The mechanism of enforcement, 99 times out of 100, will be through the Welsh Language Board's schemes, but it is important, not as a matter of cosmetics, but of clearly expressed and understood principle, that they are legal rights that residents in Wales shall have.

I ask the Minister at least to reflect further. We are all putting a great deal of reflective homework on his desk. I ask him to reflect further, because we shall wish to return to this issue at a later stage. For the moment, I beg leave to withdraw the amendment.

Earl Ferrers

Perhaps I may say something before the noble Lord withdraws the amendment. As I see it, he is trying to put into the Bill a clause which says, first: Any member of the public in Wales shall have the right to communicate with someone else in Welsh. I do not see that such a right needs to be enshrined in the Bill. One can write and communicate in whatever language one likes. So there is no point in putting that right into the Bill. The important point comes in the second part of Amendment No. 9 which states that a person has the right: to receive available services from, any government department or other public body which operates in Wales". There we have a complete contradistinction to what we are trying to suggest in the Bill: that the Welsh Language Board should set the guidelines, and then the individual organisations should operate their own systems. The noble Lord is seeking to cross over that arrangement by including in the Bill a provision which is bound to override the principle upon which the Welsh Language Board should operate.

Lord Williams of Mostyn

I am grateful to the Minister for his remarks. They merely illustrate the fallacy behind his thinking. He says that the Welsh Language Board can set guidelines. I can understand that. As I said, 99 times out of a 100 those matters will be resolved through the operation of the schemes which the board will set up. If one wants to set guidelines, one needs to ask oneself, "Guidelines for what?" Our answer is, "Guidelines for the obtaining and enforcing of what should be a simple human right for someone who lives in Wales". That is the point, with great respect—I do not mean this tendentiously —which the Minister has presently missed. Reflection may assist. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 10: After Clause 2, insert the following new clause: