Betsan Powys reports on her blog that today’s statement on the Welsh Language Legislative Competence Order may not be the end of the long and tortuous process, which has so far failed to see the promised legislation get onto the statute book.
She says that Assembly Commission lawyers will circulate legal advice to AMs befiore we vote tomorrow raising some very serious concerns about the Order as it is presently drafted:
The concerns would appear to relate to the “test of reasonableness and proportionality” clause.
“This matter does not include imposing duties on a person (other than on a Welsh language authority) unless there is a means for that person to challenge those duties, as they apply to that person, on grounds of reasonableness and proportionality.”
So what are the concerns? Well it seems that principally that this clause, inserted at the very end of the process following negotiations between WAG and the Wales Office introduces a novel and unprecedented (words we’ll hear a fair bit tomorrow) new element to LCOs – that is, of having a test on the face of the Order that every future Measure will have to, well, measure up to. We’ll hear the words “far reaching implications” a fair bit too tomorrow I suspect. This isn’t just conferring powers, according to the Commission’s lawyers, it’s potentially confining the way the Assembly can use them.
Another part of the legal advice that will raise eyebrows is a suggestion that the effect of the Order could be to weaken some provisions of the Welsh Language Act 1993.
Although the Government is likely to use its majority to whip the LCO through the Plenary meeting the advice raises spectres of another political compromise that hit legal rocks, foundered and sank without trace, namely the Housing LCO. That too contained wording designed to ease its passage through Westminster only to be ruled as possibly ultra vires by the Joint Constitutional Committee of the Houses of Parliament.
Welsh Government Ministers need to ask themselves whether the compromises they have entered into on the Welsh Languuage LCO are sustainable and how they will look on the statute book. Have they once more sold out their principles for a law that is unworkable and is legally questionable? Has the LCO system once more led to the making of bad legislation?
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