Welsh Language Tribunal endorses test of “conscientious consideration” for policy-making standards

The Welsh Language Tribunal (“the Tribunal”) hears appeals against decisions by the Welsh Language Commissioner (“the Commissioner”) that relate to the Welsh language standards imposed by law on some organisations. The standards seek to promote and facilitate the use of the Welsh language and ensure that it is not treated less favourably than the English language in Wales.

The types of Welsh language standards that can be imposed include, amongst others, “policy-making standards”. Policy-making standards require organisations to consider the potential effects of their “policy decisions” on the Welsh language.

Some of the policy-making standards relate to consultation. For example, Standard 91 of the Welsh Language Standards (No. 1) Regulations 2015, to which all local authorities in Wales are subject, states that when an organisation publishes a consultation document that “relates to a policy decision”, the document “must consider” the effects that the policy decision would have on opportunities for persons to use the Welsh language.

The regulations do not elaborate on what amounts to sufficient ‘consideration’ of effects for this purpose.

In its latest decision, concerning a school reorganisation proposal in Pontardawe (Neath Port Talbot County Borough Council v Welsh Language Commissioner (Case No: WLT/22/01)), the Tribunal agreed with the Commissioner that the duty to “consider” effects in the consultation document is not met by “merely directing one’s mind to the wording of the Standards or stating that one has considered their content”: [117]. Rather, a “conscientious effort” is required on the part of the organisation to consider the effects: [118]. The Tribunal continued:

“119. Such an interpretation is consistent with the fourth of the Gunning principles in relation to consultation set out in section 3.1 of the School Organisation Code (2018), albeit in respect of a slightly later stage of the consultation process, namely that the consultation process should “ensure that the product of consultation is taken conscientiously into account when the ultimate decision is taken”.

1. In respect of the Consultation Document itself, “consideration” will entail that the documentation issued sets out the issues and the matters considered by the Council to be relevant to them. Again, this is consistent with the second of the Gunning principles, namely that the consultation process should “include sufficient reasons and information for particular proposals to enable intelligent consideration and response”.
2. Whether one characterises this as “proper”, “adequate” or “due” consideration may be academic, but it must be reasonable consideration conscientiously undertaken. […]”

The Tribunal’s confirmation of a test of “conscientious consideration” for the policy-making standards is of wide significance to all organisations which are subject to them. In short, a tick-box approach to Welsh language considerations, of the kind often found in “integrated” impact assessments, is not sufficient to comply with the standards.

Gwion Lewis KC advised and acted for the Welsh Language Commissioner throughout the Tribunal proceedings. The full decision of the Tribunal (in both Welsh and English) may be accessed here.

Gwion also acted, separately, for the charity Rhieni Dros Addysg Gymraeg (Parents for Welsh Education) in its successful challenge by judicial review to the school reorganisation proposal in question that led to the Council abandoning the proposal: R (RhAG) v Neath Port Talbot CBC [2022] EWHC 2674.

The Commissioner, Gwion Lewis KC and his instructing solicitors in the Tribunal proceedings, Blake Morgan, will be co-hosting a webinar on the implications of the Tribunal’s decision later this autumn. To register your interest in the webinar, please click here.