Welsh Commissioners: key issues ahead

John Williams sets out the role of the Commissioners in Wales.

Wales has a reputation for the development of the office of Commissioner.  Wales was first in the United Kingdom to establish a Children’s Commissioner and the first in the world to have an Older People’s Commissioner – a lead followed by other countries.  The Welsh Language Commissioner was appointed in 2012 to promote, and facilitate the use of the Welsh Language. The Well-being of Future Generations (Wales) Bill 2014 implements the White Paper, A Sustainable Wales, proposal that there should be a Sustainable Development Commission headed by a single Commissioner who would provide ‘a clarity and focus to the work of the body’.  At a seminar in Cardiff co-hosted by the Institute of Welsh Politics and the Centre for Welsh Legal Affairs at Aberystwyth University the role of Commissioners and Ombudsmen was debated.

This week on Click on Wales

One of the institutional innovations in post-devolution Wales’ governance arrangements since 1999 has been the establishment of Ombudsman and Commissioner offices.  Academics at Aberystwyth University arranged an inter-disciplinary seminar to critically examine, within a comparative UK and Ireland context, their role in devolved Welsh governance. This series of Click on Wales blogs feature some of the seminars’ key speakers. A policy briefing report on the seminar’s findings and recommendations is available here:  http://www.aber.ac.uk/en/interpol/research/research-centres-and-institutes/iwp/news-events/

The various legislation creating this suite of Commissioners attracted considerable political support.  There is an apparent willingness by political parties to work with Commissioners and to seek their views on current and future legislation.  However, it is unclear whether these initiatives were part of a new approach to accountability, or a series of discreet initiatives.

Commissioners in Wales are similar in many ways.  A key feature is that they are required within their remit to be proactive; they are not restricted to responding to complaints or grievances, but are actively involved in promoting rights and identifying shortcomings in existing arrangements.  In some respects this distinguishes them from ombudsmen. The Welsh Language Commissioner differs in one significant respect in that she has specific enforcement powers through compliance notices.

Commissioners are also similar in that they incorporate international and human rights provisions.  For example, the Children’s Commissioner must have regard to the United Nations Convention on the Rights of the Child and the Older People’s Commissioner must have regard to the United Nations Principles for Older Persons.

The procedures for appointing Commissioners are open and Nolan compliant.  For the Children’s Commissioner the views of ‘relevant children’ must be considered.  Similarly the views of older people must be considered when appointing the Older People’s Commissioner.  For the Welsh Language Commissioner the views of the selection panel, the National Assembly, Assembly Committees, AMs and any others considered appropriate for consultation must be considered.  Sustainable Wales refers to the Sustainable Futures Commissioner being appointed by the ‘tried and tested’ procedure.

However, appointments are made by the First Minister, thus raising questions about Commissioners independence to challenge government.  The Paris Principles for ‘national human rights institutions’ stresses that  such bodies are independent of government.   Is it more appropriate for the National Assembly to appoint, or at least scrutinise appointments?

Commissioners’ terms of office differ in relation to the length of appointment and possibility of renewal.  There is a non-renewable seven year term for the Children’s Commissioner, whereas the Older People’s Commissioner is appointed for four years with the possibility of a further four years.  There is no explicit statement whether the seven year term for the Welsh Language Commissioner is renewable.  The Future Generations Commissioner may be appointed for between 3 – 5 years, with the possibility of renewal for not more that 3 – 5 years.  The rationale for these differences is not easily discernible.  Arguably a single seven year terms is most likely to reassure people that the holder of the office is independent of government.

Commissioners are a twenty first century creation for a new form of governance.  Although similar in many ways, they are also different particularly in relation to the terms of office.  Many questions must be addressed including their relationship with counterparts in the United Kingdom.  Nevertheless, an exciting Welsh initiative.

John Williams is Professor of Law and Head of the Department of Law and Criminology at Aberystwyth University.

19 thoughts on “Welsh Commissioners: key issues ahead

  1. I feel that Commissioners need to be appointed by the Welsh Assembly, rather than by the First Minister alone. I also don’t see a problem with making the appointments shorter term ones. It isn’t the case that longer terms equal political independence. In any case, all elected and appointed officials must work in a politicized society, and can’t easily claim to be apolitical beings. How would Commissioners operate in as unbiased a way as possible, if that were always desirable?

    Perhaps it would be better to save the money on these appointments, and to debate and agree on the desirable responsibilities and goals for each of the segments (children, older people, and so on) between the Assembly members and those politicians already holding office. The savings could be used elsewhere – perhaps at local level to support local initiatives agreed by local people.

  2. I have read some of the policy briefing report given in this post. While there is plenty of discussion about the roles, responsibilities, remits and limitations of Commissioners and Ombudsmen, there is almost nothing here about any role of ‘the public’, aside from being onlookers, mere perceivers of apparent commissioner independence, receivers of public relations material, and of ombudsman justice, and passive before the legislature – which at least in the report, gets a 2/3 ‘knockout vote’ against unsatisfactory commissioners or ombudsmen. The public is really not included in this assessment of governance.

  3. This article started with a an interesting bite of information: that a Sustainable Development Commission headed by a single Commissioner might be appointed in Wales. The article concluded that Commissioners are a twenty first century creation for a new form of governance. Hardly 21st century as regards the implementation of environmental laws and policy if the experience of other Westmister-style governments is anything to go by.

    New Zealand’s Parliamentary Commissoin for the Environment was established in 1986. The Commissioner reports to Parliament through the Speaker of the House and officers of Parliamentary Committee: http://www.pce.parliament.nz/about-us/history/

    Canada’s first Commissioner for the Environment and Sustainable Development was appointed in 1996. Ontario’s first commissioner for the environment was appointed following the adoption of the province’s Environmental Bill of Rights in 1993. The Commissioners at the federal and provincial level report to their respective parliaments.

    Another commission model, The Commission for Environmental Cooperation was established in 1994 as part of a side accord of the North American Free Trade Agreement (NAFTA).

    Good experience from which to draw when drafting legislation and establishing lines of accountability.

  4. Alice is spot-on. Once again, the legislative branch of our government is abdicating its powers to the executive.

  5. Interesting ‘academic’ take on the Welsh Commissioner situation and in my view perhaps with a hidden agenda of legitimising an ill thought and a largely a ‘foreign’ concept that was imported into the UK (including Wales) by the political establishment.

    Case in point elections of Crime and Police Commissioners that proved to be an unmitigated disaster as only some 15% of the electorate were sufficiently inspired to turn up and vote!

    This to me, suggests not only disinterest and apathy but equally a form disenchantment with the political process that is strange to our (British) perceptions of democracy and accountability.

    I’m struggling to come to terms with the Welsh Language Commissioner’s remit and powers in a ‘nation’ that has two languages and two cultures without addressing the wider legal, perhaps moral and the racial implications too and all of this in the absence of an equivalent Commissioner for the English Language rights in Wales.

    In the UK context, Wales is not unique in this matter as we also have Northern Ireland situation through its Irish language which as Welsh is recognised as a ‘Minority Language’ but Irish people seem to have found a formula to operate their society without discrimination by applying the EU equality legislation which states that the rights and concessions granted to minority languages can’t be used to discriminate against majority (N. Irish religious differences excluded from my analogy).

    In Wales we seem to have created an absurd situation where Welsh Language is now more equal of the two and especially evident in education and public employment and in my view detrimental to Wales in many ways and especially visible through Welsh education failings.

    We should not forget that Welsh language equality with the English language was imposed on Wales by the two Westminster Acts and that Welsh people were never consulted or had a voice in the matter and this should be addressed via a Welsh referendum if we are ever going to have a proper democracy in Wales.

    I believe the issues above should be addressed with an open mind and within a high profile public forum, ignoring it and manipulating a ‘confused legal system’ for the benefit of the minority is not an answer if we value democracy under its formal and legal definitions!?

    Finally, I fully endorse the two earlier comments posted by Alice and especially her notion that the Welsh Public is not included in this assessment of governance’.

  6. I agree with Alice that, if one of the essential characteristics of the job is that it is apolitical, the appointments should be made by the entire Assembly and not just by the First Minister or even the Cabinet. It is important not just that independence is done but that it is seen to be done. It was known at the time that Meleri Huws was regarded as an acceptable candidate for WLC to the Executive. This is not to say that she has not acted independently or carried out her brief in good faith but it helps the public to feel that it is an independent appointment if it has the support of the whole Chamber.

    I’m not sure however that I agree with Alice’s point that longer term does not equate with political independence. In order for a commissioner to acquire authority, they need time to understand the nature of the brief and how to execute that brief within the contemporary political context. All this takes time.

    As for the question of how to be unbiased, the answer to this surely lies in the brief given. It is the responsibility of the legislature to draft the terms of reference for the appointment which should outline the clarity required to ensure that the post-holder and those observing understand the nature of the job.

    The question of the involvement of the public is a curious one. It is a little like saying what is the public involvement in the making of law, or the appointment of judges. So I’d be interested to hear a little more on how you see this particular idea being enacted in practice.

    @ Glasnost

    I’m not sure what country you live in when you say there are two cultures. Perhaps you could elaborate.

    I’m also intrigued by the idea that the Welsh language is more equal than English. Equality is not something we impose but rather recognise in each other. “We hold these truths to be self-evident, that all people were created equal”. It is therefore unacceptable that a Welsh speaker should have to receive a lesser service than an English speaker. In practice, this is the case. But this situation no longer derives from a position at law.

  7. I have a mundane concern that our government consists of people who do not know how to get things done. There are impressive, glossy documents about everything. Wales is first class in setting out “policies” in the form of aspirations. When it comes to execution we get a lot of displacement activities: pass a law, create a committee or a Commissioner. All these things consist of giving people other than Ministers responsibilities, usually without either a strategy to guide them or resources (money!) to discharge those responsibilities. The First Minister even set up a “delivery unit”. It was in the papers but I don’t know what it does and I haven’t met anyone who knows either. The government and the civil service should themselves be a delivery unit but they don’t seem to know how. No doubt some Commissioners are a good thing and some may be doing a good job but given the situation and our political culture it is impossible not to regard them with a jaundiced eye.

  8. When are we going to get an English Language Commissioner and an English Language Measure with a clear statement that English shall be treated no less favourably than Welsh?

    All we’ve got now is a Welsh Language Commissioner and a Welsh Language Measure stating that Welsh shall be treated no less favourably than English but we all know what that REALLY means is that Welsh can be treated more favourably than English within the letter of the law and that is exactly how the Welsh Language Commissioner approaches her job because she will not entertain complaints about English being treated less favourably then Welsh.

    There is no language equality – Jacques Protic is right because Welsh has been more equal than English under successive Welsh language laws for decades and in practice in many public funded aspects of public administration in Wales. In Gwynedd Welsh is so much more equal than English that many of us have been systematically discriminated against for decades. We demand equality – either scrap the Welsh Language Commissioner and the under-pinning discriminatory law or provide the English speaking majority with the same standard of service.

  9. ” It is therefore unacceptable that a Welsh speaker should have to receive a lesser service than an English speaker.”

    What the 2011 Welsh language act says is this:- ” …. the Welsh language should not be treated less favourably than the English language in Wales.”

    So if I deconstruct that statement there is a law that prevents Welsh being treated less favourably then English but there is no law that prevents English from being treated less favourably than Welsh. This is not equality.

    The problem with Welsh language legislation dates back to the original 1993 Welsh language act that allowed discrimination in favour of Welsh speakers in employment. Last year I looked at Free school meals entitlement for pupils in Welsh medium schools at key stage 3. Overall in 2012 9.01% of pupils in WM schools at KS3 were eligible for Free school meals and, of course we all know that this is considerably lower than the percentage eligible for FSMs in English medium schools. The more interesting fact is that amongst pupils whose home language is Welsh FSM entitlement was only 7% whilst for those pupils whose home language was English the percentage eligible for FSMs was 12% within the same schools.

    The All Wales Survey 2013 showed the same division with Fluent Welsh speakers less likely to be unemployed.

    This is the unremarkable effect of creating an artificial jobs market where a notional requirement for Welsh speakers makes even able non-Welsh speakers less employable and more likely to migrate while Welsh speakers both demand more language rights and themselves supply those services.

  10. The welsh language commissioner and her organization is a ‘single issue’ one and has a major defect in that it lacks ‘balance’ as it seeks to force the welsh language on people and bodies,both public and private. Clearly it has the legal right to carry out is polcicies and procedures,however in our current linguistic condition it is unrealistic to expect that welsh speakers be able to carry out their lives through the medium of the welsh language. iI you google PENARTH TOWN COUNCIL you will see that they are in trouble with the Commissioner because of a)publications,b)employment of welsh speakers and in an area of very limited welsh speakers. We are facing a seemingly long period of reductions in public expenditure,and possible major increases in local taxation so our public services should be concentrating on making cost effective policies,rather than employment of welsh speakers. The main aspect that concerns me is the seemingly lack of control of this QUANGO to the people of wales as a whole,rather than a politically driven nationalist/socialist government.There is huge disquiet amongst people I know in the english only speaking community,however their views are totally ignored and treated with derision and contempt by welsh media and political classes. I have sent FoI to the Commission about a)budgetsb,)staffing and when to hand will forward to ‘usual suspects’. In my humble opinion we need a separate party to represent the views of the vast majority who have no instinctive objection to the welsh language,however view its imposition and intrusion on their lives with disquiet.

  11. See above.The Council is in trouble with the Welsh language Society with regard to its policies/procedures,however the WLC is to be involved and we can be sure where its views are on this issue.

  12. @ J Jones

    Imposing equality on an unequal situation perpetuates the inequality. Where is your evidence that the English language is being treated unfavourably?

    You also cite the Welsh Language Act as allowing discrimination in favour of Welsh speakers in employment. Which section of the Act are you referring to?

  13. I’m genuinely grateful to IWA for the opportunity of raising my concerns regarding the Welsh language and the way it is being promoted in the post devolution Wales.

    Welsh media talks a great deal about the ‘Democracy Deficit’ in Wales, often blames Labour Party’s political dominance, public apathy or the proverbial Tom, Dick and Harry for this situation, but so far has not been honest enough to look at itself and its role in concealing Welsh Government’s motives including the implications of effective Social Engineering of Welsh society through imposition of a minority language as the dominant language of Wales.

    Over the last 15 years we have seen a rafter of legal measures created by the Welsh Government to underpin superiority of the Welsh language but as yet no Welsh media outlet has dared challenge the Welsh Labour Government’s policies on this very issue or even to explain in plain English what these measures mean in practical sense of the meaning and who is the ultimate beneficiary of such provisions.

    It’s not only Welsh media to blame for this situation as all Welsh political parties appear to be complicit and in support of this aim too, therefore no debate, no dialogue and Welsh public is left in dark through often sinister and calculated political moves to impose the will of the Government and its supporters.

    Just curious how many people in Wales are aware or know that the Welsh Equalities and Human Rights Commission has been stripped of any remit for the Welsh language by no other than the Welsh Government?

    Then the responsibility for the said language in terms of disputes or discrimination issues in employment and elsewhere was given to the Welsh Language Board and after its closure transferred to the Welsh Language Commissioner – Hardly a ‘democratic approach’ or an open and honest Governance?

    There is a lot more to this especially the new measures which are coming soon under the guise of Welsh Language Standards and all Welsh speaking Tribunal who will have the utmost legal authority to rule on disputes involving the Welsh language.

    Welsh people from non-Welsh speaking areas of Wales should be afraid for their future and the future of their children but thanks to the media and Welsh politics they are oblivious what is coming their way!

  14. It’s this bit Rhobat:

    ‘in the course of public business and the administration of justice, so far as is reasonably practicable, the Welsh and English languages are to be treated on the basis of equality.’

    The result was that public bodies could discriminate in favour of Welsh speakers in order to carry out a statutory function. In fact earlier case law had established the right to discriminate against non-Welsh speakers in employment: Gwynedd County Council v Jones [1986] ICR 833 EAT.

    A simple case of anti-English language discrimination by government is in school’s finance. Education authorities are allowed to allocate extra funding to Welsh medium schools. Cardiff allocated £630,000 under this rule in 2013; the extra money has historically been earmarked to pay extra teacher’s salaries so that WM schools could have a superior pupil/teacher ratio.

    There is of course no chance of real equality between the languages in Wales. Only 10% of adults speak Welsh fluently so less than 10% can claim Welsh as their first language. It’s probably about 8% who could say that they want to live their lives through their first language…Welsh. In reality many of that 8% couldn’t care less what language they get service in. What is ridiculous is when Meri Huws tells Merthyr Council that it has to employ Welsh speakers when demand for Welsh language services in Merthyr cannot be high. At some point logic would dictate (anywhere else) that a council could say “sorry, no one speaks Welsh here and we aren’t going to employ anyone for the 5 requests a year we get from members of Cymdeithas Yr Iaith.”

  15. @ J Jones

    I think your reading of the judgment is somewhat skewed. The case brought by the plaintiffs was that, because Gwynedd Council had reserved certain jobs for Welsh speakers, they – non-Welsh speaking Welsh – were being discriminated against under the Race Relations Act. The court refused to distinguish between Welsh speaking Welsh and English speaking Welsh as a matter of racial discrimination. In my view, that judgment was correct. Welsh speaker is a linguistic ability in the context of the workplace and everyone has the opportunity to learn the language if they so choose. Were there to be discrimination between 1st language Welsh speakers and 2nd language Welsh speakers, then that would be a different matter. Ability to do the job as outlined in the terms and conditions is the criteria for selection, not how you learnt the language. To say, for example, that a 1st language WS is innately better able to communicate in Welsh is not only prejudicial but is also objectively wrong. Educational achievement is the proper measure of ability which is why I find the distinction between 1st and 2nd language in exams somewhat disturbing.

    I cannot comment on your point regarding educational funding since I know nothing about it.

    Your last paragraph however strikes me as somewhat contorted in its logic or contains too many hidden presumptions. Putting the credibility of your statistics to one side, the availability of services through the Welsh language is a right under law providing it is reasonably practicable. Welsh speakers cannot of course request services that do not exist. According to the 2011 national census, about just under 15% of the population of Merthyr can communicate in Welsh. This strikes me as a significant figure that warrants the provision of Welsh language services. Whether people choose to use the service is a matter for them. What is clear is that they cannot make that choice if the service is not available. Whether a service is sustainable is based, I would argue, on two points:

    1 whether there is sufficient demand;

    2 whether the provision of the service is practicably reasonable.

    Your last sentence, whilst representing a good attempt at wit, is not factual.

  16. Two simple illustrations to underpin my notion that the Welsh media is out of control and that it operates an one sided coverage of Welsh news with an incredible bias extending to of screaming ‘Blue Murder’ if anyone offends the privileged Welsh speakers or are seen to be denied their ‘God Given Rights gifted to them by Rhodri Morgan and Carwyn Jones (Welsh speaking Labour Party leaders) :

    1. http://www.bbc.co.uk/news/uk-wales-north-east-wales-29610299

    2. http://www.dailypost.co.uk/news/north-wales-news/welsh-language-prescription-turned-away-6480112

    Don’t know much about item 1 and do agree if true that the doctor concerned was insensitive but is it a ‘national headline’ as it appears to be the case as far as the BBC Wales is concerned?

    On item 2 do know a lot about but important issues were never reported: Royal Pharmaceutical Society (RPS) operates under strict code of practice regarding laws and ethics. The current rules clearly state that the UK prescriptions shall be either in English or Latin plus any other language (Welsh included under this definition)

    The GP concerned has chosen to flout RPS requirements but that simple fact has never been mentioned and again a hysterical lynch mob went into overdrive to crucify Morrison’s’ Pharmacist.

    At he same time especially in North Wales we are seeing an immense discrimination against non-Welsh speakers in public employment and education – Welsh media SILENT!!

  17. @ Glasnost

    This incident you cite is fascinating – http://www.bbc.co.uk/news/uk-wales-north-east-wales-29610299

    Here the patient and her mother have rights but the doctor has none! This is because the doctor works in the public sector and his employer, the NHS, has agreed a discriminatory Welsh Language Scheme because it has to under the discriminatory Welsh language legislation. The discriminatory Welsh language legislation is then actioned by the discriminatory Welsh Language Commissioner. Somehow, all this is still legal when we are supposed to have an Equality Act. But the Equality Act had language removed towards the end of the consultation and drafting process…

    So the Children’s Commissioner, the Older People’s Commissioner and the Equality and Human Rights Commission are all subservient to the Welsh Language Commissioner which, technically, means a few thousand Welsh speakers can abuse almost any principle of equality the law is supposed to protect and as long as they do it in Welsh they can still retain a measure of superiority and protection under the law. Insanity doesn’t even begin to describe this situation!

    My own view is that nobody in their right mind should be required to work under these conditions and the silent majority of English speakers should get themselves organised and refuse to do so. That would bring the public sector and the idiots who introduced this discrimination to their knees.

    Otherwise we will retain a situation where we have one ‘first class’ Commissioner, a bunch of ‘second class’ Commissioners, and 3 million people in Wales with no Commissioner representation if part of the dispute involves the Welsh language. This cannot be allowed to continue and I don’t understand why the UK government has not asked for this insanity to be placed under judicial review? Failing that I think it is time the silent majority – like that doctor – took their language rights back by refusing to play these discriminatory games.

  18. Glasnost, I don’t believe you but I wouldn’t care anyway. If women and racial minorities need positive discrimination to achieve fairness, Welsh certainly does. Get with the programme – learn Welsh.

  19. What ever is said about the rights and responsibilities of the WLC they are going to impunge to a much greater extent on the 90% of population who cannot,and do not wish to use the welsh language.I always thought one of our great ‘rights’ was to live freely,providing you obeyed the laws of the country. The power now given to welsh speakers to expect that they carry out their lives through the welsh language,particularly in totally angliziced/English speaking areas is a licence for a)mischief, b) greater costs/worry for providers of hard pressed public services. The creation of WLC is part and parcel of the ‘welshification’ process,and seemingly supported by ALL political parties and welsh media and in particular BBC Wales which seems obsessed by our supposed ‘identity’ crisis.I didn’t know there was a programme-to learn Welsh but if we don’t want to then in the end it will end up with compulsion!!.In conclusion there should be legal challenge to powers of WLC and open it all up to open debate and accountability.

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