Senedd Cymru | Welsh Parliament
Pwyllgor y Bil Atebolrwydd Aelodau | Member Accountability Bill Committee
Bil Senedd Cymru (Atebolrwydd Aelodau ac Etholiadau) | Senedd Cymru (Member Accountability and Elections) Bill
Ymateb gan Cymdeithas yr Iaith | Evidence from Cymdeithas yr Iaith
We are contacting you in relation to the Senedd Cymru (Member Accountability and Elections) Bill as you scrutinise its general principles.
Although we were unable to respond in time to the Committee's call for written evidence due to the limited timescale for doing so, we are very concerned about the lack of consideration given thus far to the Welsh language in the evidence received by the Committee. Since it is essential for the Welsh language to be considered in establishing a new recall system, and amending the National Assembly for Wales Commissioner for Standards Measure 2009 to extend the powers of the Commissioner for Standards and the eligibility to be Commissioner, we sincerely hope that you will be able to give due consideration to this correspondence before you come to your conclusions on the general principles of the Bill.
We have previously raised concerns with the Senedd Commission about the apparent lack of preparation to protect the interests of the Welsh language in the reformed Senedd. The same concerns extend to this Bill, and the right to use Welsh as part of the Commissioner for Standards regime in particular as it is extended and expanded. We believe this Bill, if amended, provides an opportunity to rectify one particular aspect of this lack of preparation for the good of the Welsh language in the new Senedd.
It is unacceptable – and contrary to standard practice in public bodies and the justice system across Wales – that the Senedd Commissioner for Standards is not currently subject to any statutory duties in relation to the Welsh language.
The practical consequences of this clear flaw in the legal framework is documented in a range of sources, as we set out below.
The Standards of Conduct Committee's Ninth Report to the Sixth Senedd in September 2024 noted concerns about this issue. The report refers to a request by a Member of the Senedd that the Senedd Commissioner for Standards “recuse himself from the investigation due to his inability to speak Welsh” and his inability therefore to conduct a hearing or correspond through the medium of Welsh. The report also states that counsel for the Member of the Senedd criticised the inability to conduct a hearing in Welsh.
Although translation was arranged, the Commissioner was under no obligation to do so, and it was dependent on the good will of the Commissioner. It is also assumed that translation was into English for the benefit of the Commissioner, rather than into Welsh for the benefit of those wishing to engage with the Commissioner's process in Welsh.
The Standards Committee concluded, since the role specification requires no more than experience of working in a bilingual organisation, that the status quo was acceptable, but recommended that the Senedd Commissioner for Standards “maintains a record of Members’ language preferences to ensure that as far as practicable communication can take place in the language of Members’ choice.”
The Senedd's Official Languages Scheme Annual Report 2023-24 states that the Senedd Commission “notes the concerns” in the Standards Committee report referred to above, and notes that Members’ language preferences are ascertained and recorded.
Whilst this is necessary, the Commissioner also engages with people beyond Members of the Senedd. The Commissioner, as a minimum, engages with Members' staff. There is a question therefore about the Senedd's duty to its own staff. But complainants and members of the public can also be called to give oral or written evidence. Limiting this provision to Members of the Senedd is inadequate and disregards the needs of other Welsh speakers, who are very likely to be in a vulnerable position.
The inclusion of the words “as far as practicable” is also inadequate; it is very easy to use practicability as an excuse not to operate through the medium of Welsh as should happen.
There is also a question as to the appropriateness of providing a translator in sensitive cases. This was raised in Plaid Cymru's response to the Senedd Standards of Conduct Committee's inquiry into Dignity and Respect between late 2023 and early 2024. In their evidence, they state:
“in some cases, individuals have decided to provide oral and written evidence in English, when they would feel more comfortable and at ease answering questions and/or providing evidence in their first language of Welsh. This was in part to avoid the need for a third party to be involved in the role of translator in sensitive conversations.”
The Senedd Commissioner for Standards necessarily deals with sensitive issues and it is essential that complainants, those responding to allegations, or relevant witnesses are able to discuss these issues in Welsh if they wish – or, indeed, need – to do so.
Furthermore, we note that the Senedd's Chief Legal Adviser stated, in written evidence to your Committee earlier this month, that the Senedd Commissioner for Standards cannot administer an oath in a language he is not conversant with. The recommendation is as follows: “The Committee therefore wishes to see the Commissioner’s powers to administer an oath extended to include the power to administer an oath or affirmation to a translator.”
We believe this suggestion highlights a lack of consideration of the Welsh language and a failure to appropriately seize the opportunities to strengthen the existing provision in preparing the Bill. However, the Chief Legal Adviser’s evidence fails to adequately acknowledge that this is in all probability a reference primarily to the native and official language of this country, and misses the central point. It should be considered a disgrace that the Senedd has allowed a situation where it is possible for one of the key parliamentary post holders to serve the people of Wales without having an adequate command of Welsh to be able to administer an oath when dealing with individuals in a vulnerable situation.
As demonstrated by the evidence we have highlighted above, the administering of an oath is not the only practical issue arising from a lack of legal requirements in relation to the Commissioner for Standards and the use of Welsh. We assume that only one aspect of the Commissioner's work takes place under oath and it is imperative that any citizen, in whatever capacity they come into contact with the Commissioner, should have a clear right to use Welsh, orally and in writing, without hindrance and without having to ask to do so. It is the duty of the public authority – in this context, the Commissioner – to make them a proactive offer.
Although the Explanatory Memorandum states that a full Welsh language impact assessment has been conducted in preparing the Bill, it is available in summary form only in the published Memorandum and a copy must be requested from the Government. In the absence of a copy in our possession, it would appear that the Government has given no consideration, in preparing the Bill, to the implications of failing to extend the Welsh language requirements on the Commissioner as it extends the Commissioner’s responsibilities and amends the eligibility for the role, despite the shortcomings highlighted in parliamentary reports.
We strongly recommend that the Bill should be amended in two principal and mutually strengthening ways:
1. Amending section 20 of the Bill - Eligibility, to require post holders to be able to communicate in Welsh.
2. Adding to the provisions in the section relating to the Commissioner for Standards, to add the Commissioner to the bodies that are required to comply with the Welsh Language Standards Regulations No. 1 or 2.
The first recommendation would address the shortcomings identified by us that have been experienced to date; it could potentially be introduced, if necessary, when a post holder is next appointed. It would remove the need to modify the legal framework in relation to oaths.
In relation to the second recommendation, there are numerous precedents for adding bodies to sets of Welsh Language Standards Regulations through primary legislation. When the Public Services Ombudsman (Wales) Bill (now Act) 2019 was introduced to update the previous legislation provision was added to ensure that the Public Services Ombudsman was subject to the Welsh Language Standards.
The same is required in the case of the Senedd Commissioner for Standards with the introduction of the Senedd Cymru (Member Accountability and Elections) Bill.
Although primary legislation would be the most appropriate and desirable means of adding the Commissioner to the Standards Regulations in this case, if this is not feasible, the Government could add the Commissioner to the Regulations by order (subordinate legislation), as in the case of newly established bodies following the introduction of the Welsh Language Measure. We ask you to recommend that the Commissioner should be included by amending this legislation; however, if the recommendation is that the Government should do this by order as an alternative means of achieving this aim, as a minimum, a commitment to deliver this would be required as well as a rapid timetable so that the Standards are put in place as close as possible to the beginning of the Seventh Senedd.
We are also aware that provision could be added to the National Assembly for Wales (Official Languages) Act 2012 so that the Senedd Commissioner for Standards would be required to adhere to the Senedd's Official Languages Scheme. However, this Scheme does not achieve the aim of giving Welsh speakers an enforceable right to use Welsh in the same way as the Standards, and the arrangements cannot be modified through subordinate legislation in the same way.
Imposing Welsh Language Standards on the Commissioner for Standards would guarantee people's ability to use Welsh, orally and in writing, with the Commissioner and would contribute to creating an organisation that works through the medium of Welsh. We note that this would align with practice in other comparable organisations exercising similar functions to the Commissioner - not only the Ombudsman, but the police, and the requirements on public bodies when disciplining staff for example.
Please note that the following standards are set out in the Welsh Language Standards (No. 1) Regulations 2015:
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Standard 28: |
If you invite more than one person to a meeting, and that meeting relates to the well-being of one or more of the individuals invited, you must— (a) ask that individual or each of those individuals whether he or she wishes for the meeting to be conducted in Welsh, and (b) if that individual, or if each of those individuals, informs you that he or she wishes for the meeting to be conducted in Welsh, conduct the meeting in Welsh (without the assistance of a simultaneous or consecutive translation service). |
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Standard 29: |
If you invite more than one person to a |
meeting, and that meeting relates to the well-being of one or more of the individuals invited, you must—
(a)
ask that individual or each of those individuals whether he or she wishes to use the Welsh language at the meeting, and
(b)
inform that individual (or those individuals) that, if necessary, you will provide a translation service from Welsh to English and from English to Welsh for that purpose.
|
Standard 29A: |
You must provide a simultaneous translation service from Welsh to English and from English to Welsh at a meeting— (a) if you have invited more than one person to the meeting, (b) if the meeting relates to the well-being of one or more of the individuals invited, and (c) if at least one of those individuals has informed you that he or she wishes to use the Welsh language at the meeting; unless you conduct the meeting in Welsh without the assistance of a translation service. |
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Standard 29B: |
You must provide a consecutive translation service from |
Welsh to English and from English to Welsh at a meeting—
(a)
if you have invited more than one person to the meeting,
(b)
if the meeting relates to the well-being of one or more of the individuals invited, and
(c)
if at least one of those individuals has informed you that he or she wishes to use the Welsh language at the meeting;
unless you conduct the meeting in Welsh without the assistance of a translation service.
Standard 116: You must allow all members of staff to respond in
Welsh to allegations made against them in
any internal disciplinary process.
Standard 116A: You must—
(a)
state in any document that you have which
sets out your arrangements for disciplining staff that
any member of staff may respond in Welsh to any
allegations made against him or against her, and
(b)
if you commence a disciplinary procedure
in relation to a member of staff, inform
that member of staff of that right.
Standard 117: If you organise a meeting with a member of staff
regarding a disciplinary matter that relates to his or to her
conduct you must—
(a)
offer to conduct the meeting in Welsh; and
(b)
if the member of staff wishes for the meeting to be
conducted in Welsh, conduct the meeting in Welsh
(without the assistance of a simultaneous or
consecutive translation service).
Standard 118: If you organise a meeting with a member of staff
regarding a disciplinary matter that relates to his or her conduct you must—
(a)
ask the member of staff whether he or she wishes to use the Welsh language at the meeting, and
(b)
explain that you will provide a translation
service for that purpose if it is required;
and, if the member of staff wishes to use the Welsh language, you must provide a simultaneous translation service from Welsh to English at the meeting (unless you conduct the meeting in Welsh without a translation service).
Standard 119: When you inform a member of staff of
a decision you have reached following a disciplinary process, you must do so in Welsh if that member of staff—
(a)
responded to allegations made against him or her in Welsh,
(b)
asked for a meeting regarding the disciplinary process to be conducted in Welsh, or
(c)
asked to use the Welsh language at a meeting regarding the disciplinary process.
The range of Standards contained in Regulations No. 1 would enable the Welsh Language Commissioner to impose suitable (“reasonable and proportionate” as required by the Welsh Language Measure) standards on the Commissioner for Standards, following consultation with the Commissioner for Standards and with due regard to any response as required by the Welsh Language Measure 2011. These Standards would, in our view, address the different contexts in which the citizens of Wales could come into contact with the Commissioner for Standards. The other Standards, in relation to the general administration of the Commissioner's office, would also be relevant, although we have not cited them here. This would enable individuals, especially potentially vulnerable complainants, raising a complaint against some of the most powerful people in Wales, to have the confidence to do so as a matter of right in Welsh, as they should, rather than according to the discretion and good will of the Commissioner for Standards from time to time as is currently the deeply flawed situation.
It is reasonable to expect these Standards, which have been agreed by the Senedd as a baseline and established practice for the rest of the public sector, to apply to the arrangements and administration of the Senedd itself. It would be illogical and indefensible for the Senedd to have different arrangements in place for its own authorities to that which it expects from others.
In your scrutiny of the Member Accountability and Elections Bill, we ask that you consider the issues set out above and recommend that new provision should be included to ensure clear rights for Welsh speakers.
Yours sincerely,
Welsh Language Rights Group, Cymdeithas yr Iaith