The creation of the Assembly in 1999 resurrected Welsh as a legal language. Since then, the Senedd has been a bilingual legislature making laws of equal status in both English and Welsh.
The body of Welsh law that has developed is Welsh in two senses - in its distinctive content and in its language. Drafters, lawyers, translators, Members and officials have played a role in making sure the law of Wales is available to citizens in both official languages.
The development of Welsh as a modern legal language has been fundamental to the Senedd’s 25 year law-making story.
Equal status
The Government of Wales Act 2006 enshrines in law the principle that, where legislation is made bilingually, the English and Welsh texts “are to be treated for all purposes as being of equal standing”. This important principle was restated in the Legislation (Wales) Act 2019.
This equal status is reflected in the rules, procedures and guidance that have developed in the Senedd and Welsh Government on how laws should be made. For example:
- the Senedd’s Standing Orders, that govern how the Senedd is run, say a Bill ”must be introduced in both English and Welsh” (except in very specific cases) and that a committee established to look at subordinate legislation must report on whether the Senedd should pay special attention to ”inconsistencies between the meaning of the English and Welsh texts” when scrutinising laws;
- handbooks developed by the Welsh Government on how Bills and subordinate legislation should be drafted state drafters must ensure both texts ”achieve the same legal effect” and ”steps should be taken to ensure the Welsh language is treated no less favourably than the English language”; and
- scrutiny, amendment and voting on legislation takes place bilingually in the Senedd and innovations, such as bilingual Bill glossaries, have helped support scrutiny in both languages.
However, as the Law Commission noted::
A system in which laws are made in two languages which are treated for all purposes as of equal standing has created novel challenges for those required to interpret and apply them.
The challenge of interpreting bilingual legislation
The challenge of how legislation written in two different languages should be interpreted by both citizens and courts is a common issue in systems with bilingual laws. What happens if the words used in different languages appear to have different meanings or emphases?
The Law Commission considered this issue in its review of the accessibility of Welsh law in 2016. It concluded that those looking to understand the meaning of bilingual law in Wales must consider both language texts to arrive at an answer. It said reliance on only one language would undermine the equal status of English and Welsh.
It considered in detail what should happen if it’s not possible to find common meaning between the two languages and concluded that, while it’s ultimately a matter for the courts, the best approach would be to consider the intent of the Senedd when making the law. The Welsh Government deliberately references these principles in its Explanatory Notes for the Legislation (Wales) Act 2019.
In 2020, the first case was brought to the Administrative Court asking it to consider differences in the English and Welsh versions of the law. This decision was overturned in the Court of Appeal, but, in reaching its judgment, the Court considered that the normal principles of statutory interpretation should be applied to analysis of both English and Welsh texts equally. It held that, where a common meaning can’t be found, courts should look at what the purpose and intent of the Senedd was in making the law.
The debate about this case and the practice the courts should adopt when considering cases involving interpretation of legislation in English and Welsh remains a live issue. The Law Commission said ensuring there’s sufficient numbers of judges able to work in Welsh on cases where there are differences in the language versions should be a “long term aspiration”.
This case, and the debates arising from it, underline the importance and responsibility of the Senedd to scrutinise equally the English and Welsh versions of legislation.
Accessibility of the law in Welsh
In developing Welsh as a modern legal language, the Welsh Government and Senedd have also had to grapple with how to make Welsh language law accessible to citizens.
Developing terminology
Drafters and translators have had to develop new and consistent Welsh terminology. The BydTerm Cymru website and legislative drafting glossaries have been developed by the Welsh Government to help with this task. Schedule 1 to the Legislation (Wales) Act 2019 sets out for the first time a bilingual list of defined key legal terms and expressions.
Law that is up-to-date
Access to publicly available up-to-date versions of amended legislation in Welsh has also been a challenge and forms part of the Welsh Government’s first programme to improve the accessibility of the law in Wales.
Writing laws in Welsh
How the law should be written or drafted in Welsh, to ensure it’s clear and easy to understand, has been an ongoing focus for those drafting and scrutinising law in the Senedd.
The need for the law not to be ”rigidly translated” but clear and equally ”usable” has been emphasised by the Law Commission, civil society and by Senedd Committees.
Some bilingual legislation is co-drafted in English and Welsh but often Welsh language versions are translated from English by jurilinguists, experts in translating the law.
A key demand has been the need for sufficient time in the legislation writing process for translated drafts of legislation:
- to be considered as part of an iterative process of developing a Bill; and
- checked to ensure they have equal meaning.
The Law Commission called for the time available for translation and the consideration of both language texts to be “vigorously protected”. A previous Senedd Committee also called for the Welsh Government to put long-term plans in place to increase the proportion of Bills co-drafted.
The Senedd as a guardian
As well as passing bilingual laws, the Senedd and its committees act as guardians for the equal status of law, ensuring the law presented in both languages meets the rules and standards expected of it.
The current Legislation, Justice and Constitution Committee scrutinises whether subordinate legislation made in English and Welsh is consistent. It publishes reports which point out inconsistencies and asks the Welsh Government to clarify its meaning.
Laws made in Westminster in devolved areas are made in English only. The Committee has raised concerns about the impacts of this on citizens’ access to laws in the Welsh language. It also continues to scrutinise the Welsh Government’s programme for improving the accessibility of the law in Wales.
A truly bilingual jurisdiction?
There’s no doubt the creation of the Senedd 25 years ago led to a revival of Welsh as a legal language. Its equal status is enshrined in law and embedded in the rules that govern how laws are made in Wales.
The wider impact of this equal status is also clear in the development of Welsh language drafters and jurilinguists, in the development of Welsh legal terminology and in calls for more Welsh speaking law students, lawyers and judges.
Yet the need remains for a continued focus on ensuring bilingual law is truly equal and accessible. The Welsh Government’s programme on the accessibility of Welsh law sets out several objectives for better provision of the law in Welsh. Senedd committees and Members continue to call for the equal status to be properly honoured in the laws being made.
In its first 25 years, the Senedd has set the foundations for Welsh to endure as a legal language. The achievement of truly equal status will be a key issue for the Senedd’s next 25 years.
Article by Nia Moss, Senedd Research, Welsh Parliament
