Claiming the right: Notes on the Welsh Language Measure 2011 – Patrick Carlin

When is a right a right?

This question, of course, will not find a ready solution here. However, its mere asking may help with getting to grips with the implications of the Welsh Language Measure of 2011 (WLM) for language policy in Wales (see here). This blog entry is a brief sketch of the current situation following the passing of the WLM, with some further thoughts on the ramifications of this piece of legislation for wider relationships between language use, governance in the UK and the claims for linguistic justice we make as citizens.

As a result of the WLM, fruit of a Welsh Labour/Plaid Cymru coalition government between 2007-11 (see here), government language policy in Wales has morphed from straddling both a promotional and quasi-regulatory model, mediated through the language schemes mechanism of the Welsh Language Act 1993 (see here and here), to a fuller and more uniform regulatory model with enhanced democratic accountability residing in both the Welsh executive and legislature.

During the previous 20 years, in the period before political devolution in Wales, public bodies both inside and outside Wales negotiated language schemes with the Welsh Language Board, an arm’s length governmental agency, with each one stating how it would provide agreed services to citizens in Welsh. The institutional architecture and light regulatory modus operandi of this language policy model has been significantly remodelled following the WLM, given enhanced accountability and – theoretically – a more substantial regulatory governance model through language standards which are currently replacing the language schemes model. The regulation of standards will be carried out by the Welsh Language Commissioner (WLC, see here), with a Welsh Language Tribunal (see here) hearing appeals on decisions made by the WLC.

Forthcoming research by the ‘Office of Language Commissioners in Wales, Ireland and Canada’ project team at Cardiff University, and funded by the Economic and Social Research Council (see here), will report fully on the WLM policy cycle discussions, recommendations and instruction stage as well as analysing practitioner and academic expert evidence given at committee stage and the positioning and rationale of political actors at the policy cycle, drafting and legislation stages. In applying insights from public administration, social sciences, political philosophy, socio-legal studies and sociolinguistics to the empirical research, the project team hopes to help inform understandings of language policy as both object of governance and political contestation in a deepening regulatory state.

Sidestepping both the official status of the Welsh language provided for in the WLM and the wider issue of whether the practical interaction of democratic norms with governance structures has resulted in the Welsh Language Measure of 2011 being a complex piece of legislation (for example, see here), I would like to restrict myself here to one aspect only of the WLM which lies at is its operational core, that is the Welsh Language Standards, and what this might mean for how rights claims in respect of the Welsh language are constructed and interpreted in the devolving and constitutionally evolving UK.

The recent constitutional history of the UK is well attested to (for example, here), with asymmetric devolution for the four ‘constituent nations’ of the UK a major element in its continuing reconfiguration (see here). Yet the relationship between the use of Welsh and the seemingly ever-changing constitutional scenario since the onset of devolution has received scant attention, perhaps for the understandable reason that the UK constitution has been largely framed until recently as essentially a ‘political’ rather than a ‘legal’ construct (see here).

With the constitutional and territorial transformations currently underway in the UK, it is probable that language policy in Wales, among a host of other policy areas within an expanding regulatory state (see here), will become increasingly indexed to the high seas of constitutional change and increased regulatory oversight. Fuller citizen, lobbyist and expert-witness participation and contestation in language policy within a Welsh political and institutional system (see here) can now be contrasted to an earlier pre-devolution age of elite political accommodation (see here).

How, then, might this be so and how is this linked to Welsh language standards? To get a clearer picture, we need to step back from Wales and look at their provenance and how they might be related to rights claims.

Despite the UK’s historical antipathy to a consolidated bill of rights (see here), a move was made when the Labour project came to power in 1997 to lessen the gaps between the UK’s commitments to international rights-based agreements and the accommodating of these commitments in domestic law. This was realised when, in 1998, a significant constitutional building-block in the form of the Human Rights Act (HRA) was put in place at Westminster (see here). At one fell swoop, ministers, Parliament, public authorities and judges were required to interpret primary and subordinate legislation in the light of the rights stipulated in the European Convention on Human Rights, ratified by the UK in 1951 but not incorporated into its domestic law until the passing of the HRA. Seen thus, how are rights-based guarantees in the HRA applied and evaluated in a constitutional arrangement like that of the UK where Parliament, in principle, takes sovereign primacy over the demos?

Through the application of general standards. In other words, the claim to a right is given meaning through rules-based standards, as opposed to the mere declaration of a right or otherwise. Take the example of the Disability Discrimination Act 1995 before the passing of the HRA and the Disability Discrimination Act 2005 in the post-HRA scenario (see here and here). From a regulatory point of view, the 2005 Act included standards which would be applicable to, and actionable by, public bodies.

On this view, standards might be interpreted as a novel British mechanism for ‘reading’ rights off against a customary constitution which is itself adapting to an increasingly regulatory state. In one sense, this is a Hohfeldian legal realist interpretation of right as claim (see here) in that it limits, defines and quantifies what a claim actually means for the citizen, the institution providing services and any regulatory agencies involved in the regulation of such standards. A wider debate around how the concept of progress has been operationalised in the global north and south during the 20th century through either rights-leaning legislation or social provisioning (see here) could be argued to have been partially – for the time being – resolved in the UK through an innovative British application of standards to a wide range of social policy areas, including recently language policy in Wales.

Standards have of course been an increasing part of regulatory governance within the sovereign state (notably the United States, see here) and international social provisioning for the best part of 100 years, perhaps highlighted most notably in the International Labour Standards in operation since 1919. In their application in the evolving Welsh political system, however, standards qua regulatory mechanism were refocused, subsequently remoulded by the Welsh government and passed by the legislature. Seen thus, it is not inconceivable that incorporation of the HRA a decade previously at Westminster presented itself as a means by which the 2007-11 coalition government and civil service in Wales could circumvent the traditional aversion to the language of rights, endeavouring in this manner to diffuse the tension between the provision of services in Welsh as an inalienable right or as negotiated social policy. Although language schemes under the Welsh Language Act of 1993 can be understood as embryonic regulatory mechanisms after a fashion, it seems unlikely that language standards would have developed as minimum service guarantee levels in the manner in which they have without the eruption of the HRA as a constitutional game-changer.

In this way, the innovative institutional learning and application by both civil servants and politicians in Wales of the regulatory standards mechanism currently gaining ground in increasingly rules-based UK governance spaces is worthy of attention, not least because it would seem to continue to mark its distance from an absolutist meta-narrative of rights ‘talk’ which underscores particular visions of the good society (see here). Reading off current language policy in Wales, the process-driven political constitution in the UK remains alive and well. Language standards in Wales have thus been formulated through the prism of contingency and political compromise. Moreover, they would seem to speak to the combination of ‘thinking linguistically and politically’ (see here) as well as to the reaffirmation of a non-absolute, relational understanding of rights as claims firmly legitimated from within the state (see here).

In her blog in early 2015 when discussing the official nature of Spanish within a sovereign Catalan state, Silvia Senz makes this very linkage, stating: ‘entendemos la oficialidad no como un atributo derivado de la realidad sociológica sino como una decisión política’ (see here). By indexing language policy in such a clear manner to political contestation and negotiation, the meta-narrative of rights talk takes less prominence as an organizing concept whilst civil society claims and political representation through institutions assume enhanced centrality.

Patrick Carlin,

School of Welsh, Cardiff University

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