COMMONS AMENDMENT (Hansard, 12 October 1993)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.
During the Bill's earlier consideration in your Lordships' House I gave your Lordships an undertaking that the Government were looking very closely at the law relating to the submission of written evidence to the courts in Welsh. My right honourable friend the Minister of State at the Welsh Office, with the agreement of my noble and learned friend the Lord Chancellor, was subsequently able to table a Government amendment on this during the Bill's Committee stage in another place.
Your Lordships will see that, rather than make a general declaration concerning the status of written evidence, the amendment provides for this to be a matter to be dealt with by rules of court which will be produced in due course. This is because the circumstances in which written evidence is submitted in court are quite different from those which relate to spoken evidence.
The nature of written evidence can vary. Written documents cannot be simultaneously translated in the way in which spoken evidence can be, and in order to avoid possible interference with the efficient administration of justice it is important that the court should be able to require that a period of notice should be given when documents are to be submitted in Welsh.
The Government therefore take the view that by far the most sensible means of dealing with this difficulty would be by a provision which enabled my noble and learned friend the Lord Chancellor to prescribe rules of court governing the submission of documents in Welsh.
Where all parties to a civil hearing are prepared to accept documents in Welsh, I am sure that the court authorities will wish to facilitate the holding of such proceedings in Welsh. However, the rules of court will also need to cover the situations when people who do not understand Welsh are not disadvantaged at a hearing. The Government do not think—and I am sure your Lordships would agree—that it would be fair for one party in a civil hearing to be able to submit documents to another party which they could not understand unless translation requirements were imposed.
The rules of court will not extend to provisions which govern the administrative procedures of the court. Those will be matters to be included in the Welsh language scheme which the court authorities will have to produce in due course.
The Government envisage that the Welsh Language Board will be able to offer valuable advice in the process of preparing the rules of court for which this amendment provides.

§ Lord Prys-Davies
My Lords, I welcome Amendment No. 7 as it enables the Lord Chancellor to fill an important gap in the existing legislation. Indeed, it addresses an issue which to my knowledge has been troublesome in the courts of Wales for at least 20 to 25 years. However, I wish to ask the noble Earl four questions. I have given notice of them. The first question is this: what principle will be expressed in the detailed rules of court? I should be grateful if the Minister would confirm that it will be the general principle that both languages be treated on the basis of equality and not the general principle as qualified by what is both appropriate in the circumstances and reasonably practicable in accordance with Clause 5(2). I have assumed from my analysis of the Bill and what Ministers said in another place that the rules of court will reflect the general principle.
My second question is possibly more complicated. Rules of court deal with procedural matters. How will the rules of court relate to a document which is obliged to be written in English in accordance with the requirements of a statutory instrument which is itself the creation of Parliament and which it is for Parliament and no one else to amend?
Perhaps I may best proceed by giving an example which occurs to me. An elderly person may grant an enduring power of attorney to a friend or relative to manage and control his or her affairs. Under the power of attorney the document has to be in English. That is prescribed in the regulations. When I contemplate the need for an enduring power of attorney to be written in Welsh—and I can think of many cases where it would be appropriate—how can that be achieved, if it can be achieved, under the Bill?
It is my understanding that the rules of court to be made under this power cannot override a requirement laid down by Parliament. But if that is so, applying the illustration which I have just given, how would the rules of court deal with a party who files an enduring power of attorney written in the Welsh language? On that I should be grateful for clarification.
If my understanding is correct and the rules of court cannot override the requirements of the legislation, is the Welsh Office prepared to give an undertaking that it will review the prescribed documents which have to be written in English and which are in common use in Wales and that it will produce a Welsh language version?
Apart from the enduring power of attorney, I should have thought that there were a number of such documents to be found in housing, education, health, local authority, electoral and possibly transport legislation. I should be grateful if the noble Earl could clarify the position.
My third question is easy to answer. When do the Government intend that the rules of court will be drawn up? Finally, will the Minister confirm that the costs of translation of documents will be borne by the court? I ask that because it seems to me on my reading of the speeches in another place that this point was not 181 clarified by the Minister of State when he spoke to the amendments there. I should be extremely grateful if the Minister could enlighten me further.

Earl Ferrers
My Lords, the noble Lord, Lord Prys-Davies, asks some important questions. I am grateful to him for having been kind enough to give me notice of them in advance. He said that one of them was easy, but I am bound to say that I did not find any of them particularly easy. They are important, however, and I shall do my best to give him the answers that I can.
The noble Lord's first question was what principle will be expressed in the rules. He was concerned that the language should be considered on a basis of equality. The rules of court will, of course, express the principle of English and Welsh being treated on a basis of equality. But of necessity they will have to be appropriate and practicable. If I may give an example, they will have to take account of a situation where one party does not understand the language in which a document that is presented as evidence is written. Rules of court may need to be made to ensure that a reasonable and appropriate amount of time is allowed by the court for a translation to be obtained. The process of formulating rules of court will involve lengthy consultation and careful consideration in order to ensure that the reasonable requirements of Welsh speakers can be met.
I am sure that my noble and learned friend the Lord Chancellor will take account of the many views which have been expressed in deciding what is appropriate in the circumstances and what is reasonably practicable.
The noble Lord also wanted to know how the rules would deal with the position if a party produced an enduring power of attorney which had been written in Welsh and not in English, as is required by the power of attorney regulations. That is not an issue which will be covered by rules of court. Under the present regulations, as the noble Lord quite rightly says, the enduring power of attorney needs to be in English. But my noble and learned friend the Lord Chancellor will no doubt consider whether to prescribe a Welsh version of that and other forms when preparing a Welsh language scheme.
The noble Lord will be aware that the Bill provides a power in Clause 26 to prescribe Welsh versions of forms of documents or forms of words which are used for an official purpose. There should be no bar to the prescription of such forms in Welsh.
Thirdly, the noble Lord wished to know when the rules of court are to be drawn up. They are likely to be prepared together with the Welsh language scheme of my noble and learned friend the Lord Chancellor, but I am afraid that I cannot give a definite timescale as to when that is likely to come about.
The noble Lord's final question was about the costs of the translation of documents and whether they would be borne by the court. The costs of translation will be addressed by the rules of court. It will be necessary to take account of the variety of circumstances in which a translation may be required. While it is not the court's 182 function to provide a translation service, it is likely that the rules of court will set out certain circumstances where it will be necessary for the court to obtain translations and bear their costs. I hope that those answers will satisfy the noble Lord's quite correct curiosity.

§ Lord Prys-Davies
My Lords, I am grateful to the Minister for his comprehensive answer to the series of questions. I am, of course, disappointed to learn that the principle that will be expressed in the regulations will be the general principle as qualified. On the other hand, I am gratified that the noble and learned Lord the Lord Chancellor may consider the possibility of prescribing a Welsh language form of the enduring power of attorney.
As to the other remarks made by the Minister, I should have thought that those are issues which the Welsh Language Board may wish to explore at a later stage.

§ Lord Thomas of Gwydir
My Lords, before we leave this admirable amendment, perhaps I may introduce a somewhat minor matter which may be totally unimportant. The excellent Amendment No. 7 appears to involve the addition of a subsection to Clause 22. The amendment starts with the figure (2), but should there not be the addition of the figure (1) on page nine, line 12, after the figure 22?

Earl Ferrers
My Lords, my noble friend Lord Thomas of Gwydir has discovered a printing error. The difficulty which he finds can be ameliorated in the printing of the Bill.

§ Lord Thomas of Gwydir
My Lords, I am obliged. I would have notified my noble friend had I thought about the matter before I stood up.