LG26 Welsh Language Board
Written response to National Assembly Committee
Ruth Hatton
Deputy Clerk at the Assembly
Legislation Office
National Assembly for Wales
Cardiff Bay
Cardiff.
CF99 1NA
27/11/2008
Dear Janice Gregory AM
Local Government Committee Consultation: Proposed Local Government (Wales) Measure
Enclosed is a summary of the Welsh Language Board’s evidence, giving consideration to the general principles of the Proposed Local Government (Wales) Measure. The proposed measure was discussed at the Board’s meeting today and we present our general comments below:
We generally agree with the principle of collaboration between regulators, but, as can be seen from our response to the Measure, we have concerns regarding cases of unclear functions, particularly in respect of the combining of the statutory duties and functions of the Board and the functions of Welsh Ministers and the Auditor General. The Board is of the opinion that it is the Welsh Language Act that identifies the functions of the Board and we cannot foresee a situation where it would be appropriate for the Wales Audit Office to tell the Board 'how to exercise its functions’ .
Following our meeting we would like to express our displeasure that the Government has not discussed some elements of the draft Measure in advance with the Board - especially since there is potential for some elements to have far-reaching implications for our monitoring and statutory work.
Clarification is required on the powers and requirements of the Measure in relation to the powers of the Welsh Language Act - otherwise there could be a risk of confusion and duplication in some areas.
We are confident that the Measure could facilitate efforts to improve Welsh language services in light of the above points and that it could support the Government in implementing its duties under subsection (1), clause 78 of the Government of Wales Act 2006.
As members we would be very happy to present oral evidence to the Committee on the proposed Measure. In addition, we wish to note our intention to start discussions with other parties on the Measure in order to satisfy ourselves as a Board that our work will be supported by the Measure rather than undermined by it.
Yours sincerely
Meri HuwsChair
Local Government Committee Consultation: Proposed Local Government (Wales) Measure
Point 3 (a): Appropriateness of the Measure’s sections on improvement and community strategies: duties upon Welsh improvement authorities.
Section 2: general duty in relation to improvement
7 improvement areas are noted in the measure (and discussed in sections 2, 3 and 4). The intention to add to those areas, in time, is implied in Section 7 "aspects of improvement: amendment”.
The Welsh language is not included. Welsh language schemes are statutory documents, and each Welsh Improvement Authority must adopt a language scheme. The schemes inform the public as to how an organisation will strive to improve Welsh language services until the services can be provided on an equal footing to English language services. To the Board it appears that there is a discrepancy in that British legislation includes requirements to ensure that improvements occur in terms of the Welsh language by Welsh Improvement Authorities but that a Welsh Measure which has improvement as its principal function does not mention language. In principle, the Board believes that language should be included as an improvement area. This would be in accordance with Section 78 of the Government of Wales Act 2006. It would also then be a more logical measure in terms of the combining of improvement areas and regulators named in Section 16 since the Welsh Language Board has been included as a regulator.
Point 3 (c ): Appropriateness of the Measure’s sections on improvement and community strategies: collating, utilising and publishing information on performance.
Section 8: Performance indicators and standards
Powers that allow Ministers to set performance factors (by order).
In accordance with the Welsh Language Act 1993, it is the Board and not Welsh Ministers who approve language schemes including performance measures and standards of work. It is only in cases of dispute that Welsh Ministers intervene in terms of the content of a Welsh language scheme. There is a lack of clarification regarding functions in this respect and the issue should be considered in a way that will ensure that the statutory functions of the Board are supplemented when specifying performance factors rather than being undermined. As the Board has been included as a regulator in Section 16 of the Measure, we believe that it would be logical in terms of combining to include the Welsh language in the Section 8(5) list and considering the need to develop appropriate performance indicators in that respect.
Point 3 (d) specifying functions of relevant regulators
Section 16: meaning of 'relevant regulators’ and 'relevant functions’
In the draft measure which is being consulted upon, the Board is included within the scope of the Measure, but the functions of the Board are limited to Section 17 of the Welsh Language Act 1993. This means that the process of preparing and approving a language scheme (which is a process of service improvement and committing to publishing information,setting targets etc) is not considered as a relevant factor within the process of improving services.
Limiting the involvement of the Board to compliance functions alone would be difficult to implement. Even if the involvement of the Board was limited to statutory investigations only, it would be necessary to refer to all the compliance sections of the Language Scheme, i.e. Sections 17 to 20. We would welcome a discussion on the functions that it is proposed should be included in this section.
There is a need to define the difference between regulator and inspector and what, in light of this, are the differences that exist in the powers that they have. Additionally, an advocacy function should be considered as part of a measure improvement programme since Section 18 of the Welsh Language Act 1993 gives the Welsh Language Board a function similar to that of an Ombudsman.
Section 18: improvement assessments - taking into account the reports of other regulators and inspectors
The Board welcomes this move towards other Auditors looking at reports prepared by the Board. In some cases, the results of our investigation identified performance issues that were not within our terms of reference but were issues that contributed towards deficiencies in Welsh language service provision. In addition, it is crucial that perceptions about performance deficiencies with regard to providing services in Welsh are mainstreamed to the centre of the improvement agenda. Adopting this principle, and implementing on a daily basis, may encourage progress in terms of Welsh language provision by the Welsh improvement authorities.
Section 22: Special inspections
The Board welcomes the fact that the power has been conferred to the Minister for Heritage to direct the Wales Audit Office to undertake a special inspection. However the current practice would be to direct the Board as part of the sponsorship relationship. The joint relationship issue needs to be clarified and we would welcome a discussion with the Welsh Assembly Government in order to receive clarification on this point.
Point 3 (d): specifying functions of relevant regulators and
Point 5: financial implications
Section 19: supplementing Section 18 assessments, allowing the Auditor General to 'require a relevant regulator to provide...a report describing what the regulator has found during the exercise of the regulator’s relevant functions’
Although we welcome the principle of closer collaboration between regulators, there could be additional and significant cost and resource implications from implementing this section. We are therefore disappointed that this aspect has not been discussed in advance with the Board and prior to publishing the draft Measure. The Board has statutory duties and a work programme which is agreed with the Welsh Assembly Government and significant additional expectations may adversely effect the Board’s ability to fulfil its strategic aims and objectives. Would additional funds or resources be provided in order to assist the Board and others to meet the requirements of section 19?
We therefore believe that careful consideration needs to be given to these requirements and we would welcome a discussion with the Government on this issue. We also believe that a discussion with the Auditor General could be useful in order to come to an understanding and to ensure that the requirement to provide information is appropriate and does not place unreasonable expectations upon the Board’s resources. We recommend that the Welsh Assembly Government facilitates any initial discussions with regulators.
Section 20: audit and assessment reports
We have considered to what extent the Board could collaborate within the proposed timescale, at its own cost, and within its current resources. It is not possible for the Board to commit to a strict timescale without receiving additional resources. As noted under section 19, this requirement would have a negative effect on the Board’s current work programme.
Section 24: Co-ordination of audit. A duty to co-ordinate functions when exercising regulatory functions - specifying timescale of inspection visits for each authority
We welcome the principle of collaboration, but once again the implementation of this section could have far-reaching consequences for the Board’s resources (see our comments on section 19). There is concern also that the measure could limit the Board’s ability to implement its statutory duties independently of other regulators. For example the Board can carry out investigations on the failure to implement of a language scheme under Section 17 of the Welsh Language Act and it can investigate a complaint under section 18 of the Act. It will not be possible to time or to co-ordinate those duties jointly with the work plans of other regulators since they are totally dependent upon the timing of complaints. Once again we would welcome a discussion in order to gain clarification on this point.
Section 28: Fees
If the Wales Audit Office asks another organisation to carry out an audit or special assessment then it should transfer fees charged to the organisation it has asked to undertake a task, in accordance with the approved rate, or other regulators should be able to charge their own fees.
Point 3 (f): conferring powers to Welsh Ministers
Section 30: powers of direction
The Welsh Language Act enables Welsh Ministers to give directions to public organisations on various issues in connection with providing and implementing Welsh language schemes. We feel that a discussion is needed in order to ensure that there is clarity in terms of the intention of these powers under section 30 of the draft Measure to ensure that there would be no confusion or duplication.
Section 31: powers of collaboration
If powers of collaboration are exercised with authorities, then due to the potential effect on the provision of Welsh language services and the administration of relevant Welsh language schemes we believe that there is a need to agree on a means of informing or consulting with the Board.
If the arrangement to collaborate is formal and far-reaching it could also be beneficial to consider the need to ensure that the "partnership” develops a specific language scheme.
Point 3 (g): concerning strategies and community planning
Section 44 - community planning, community involvement
In the Board’s experience it is rare that sufficient numbers of Welsh speakers are consulted in order to come to any meaningful conclusions. It is not often that the views of Welsh speaking citizens are sought on the quality and extent of services in the Welsh language. How will this Measure therefore give Welsh speakers, who are under-represented in some communities, a sufficient voice given the conclusions of the 'Ar Draws Ffiniau’ review?
Section 45: power of Ministers to issue guidance
Section 3 of the Welsh Language Act 1993 places a duty on the Board to provide guidance in terms of the Welsh language. The Board currently works with the Government to prepare guidance on how to operate for the long-term benefit of the Welsh language in the community. This power raises the question of the status of supplementary advice on the Welsh language and who should be responsible for publishing the guidance. This lack of clarification should be dealt with as part of the initial process.
Section 46: role of Ministers, duty on Ministers to promote and encourage community planning
The purpose of the first part of Clause 78 of the Welsh Government Act 2006 is to place a responsibility on all Welsh Ministers to ensure that there is strategic planning on their part for the benefit of the Welsh language:
Clause 78 The Welsh Language
'’ The Welsh Ministers must adopt a strategy ("the Welsh language strategy”) setting out how they propose to promote and facilitate the use of the Welsh language.’’.
The Board is of the opinion that this clear duty in Clause 78 to promote and facilitate the use of the Welsh language, should as a matter of principle be reflected in the Welsh Measure, as occurred previously with sustainability (which is also a clause of the Government of Wales Act 2006).
Point 4: potential barriers in terms of the provisions of the Measure
Section 15: Welsh improvement authority: Publication of reports
The Board welcomes the principle that a summary should be published of any report on the implementation of any Welsh language schemes.
The intention to ensure, through the measure, that improvement authorities present their reports by 31 October each year could affect current reporting arrangements on performance in terms of Welsh language schemes. This is particularly true if there is an intention for regulators to collaborate. The Board would welcome a discussion on the proposed arrangements.
Point 6: further comments
Section 25: Annual improvement reports
Although we agree with the principle of closer collaboration between regulators, we must express our disappointment that no discussions were held in advance with the Board on this section. It gives the Auditor General the power to recommend to the Board how it should exercise its functions in connection with local authorities. The Board’s work is driven by statutory duties and by the requirements of the Minister for Heritage in the Welsh Assembly Government and we believe that a detailed discussion is required on the implications of this section.
