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The Administrative Court, sitting in Cardiff, has quashed Neath Port Talbot Council’s plan to open a new English-medium “super-school” in the Swansea Valley due to a failure to assess the impact of the plan on the Welsh-medium schools in the area. The judgment follows a claim for judicial review brought by Rhieni Dros Addysg Gymraeg (Parents for Welsh-Medium Education) (“RhAG”), a charitable body that has worked to protect and promote Welsh-medium education across Wales for the last 70 years. In October 2020, the Council decided to consult on a proposal to replace three English-medium primary schools at Alltwen, Godre’r Graig and Llangiwg with a single, larger English-medium primary school in Pontardawe. The new school would be partly funded by the Welsh Government and would include extensive new sports facilities, including a six-lane swimming pool. Under the Welsh Government’s statutory School Organisation Code, a proposal for a new school must be accompanied by a Welsh language impact assessment if “any school involved or affected” by the proposal “provides teaching through the medium of Welsh” (para. 3.4). In this case, the Council argued that no existing Welsh-medium school would be “affected” by its proposal as it concerned only the closure and replacement of English-medium schools. In any event, the Council argued, any indirect effect on Welsh-medium schools could be adequately mitigated. RhAG challenged the Council’s reading of the Code, arguing that Welsh-medium schools in an area can be “affected” by a proposal to open a new English-medium school, even if no changes are proposed directly to those Welsh-medium schools. RhAG was concerned that the scale of investment in the new English-medium school could influence decisions made by parents and carers who would otherwise choose a Welsh-medium school for their children. Kerr J agreed with RhAG that the Council had misinterpreted the Code when it failed to prepare a Welsh language impact assessment to accompany its consultation on the proposal. Kerr J further agreed with RhAG that any possibility of mitigation was irrelevant to the threshold question of whether a Welsh language impact assessment was required in the first place. Giving guidance on the correct approach to para. 3.4 of the Code, Kerr J observed: “110. A real possibility that the school may undergo material change is enough for the school to be “affected” because if the possibility exists, the school management must deal with it. The need to address the possible impact of a proposal is an effect on the school. The likelihood of change (such as losing pupils to a new school or changes to the demographic profile of the pupils) does not have to be a certainty. It does not have to be a very strong likelihood. A real possibility is enough because the school must address the possibility. The school cannot ignore the possibility even if, as it turns out, the change does not materialise.” The judgment provides welcome clarity on the correct approach to Welsh language impact assessment when Welsh-medium schools are not directly the subject of school reorganisation proposals. The court had previously granted RhAG a costs capping order for the judicial review, observing that these were public interest proceedings raising an issue of general public importance for Wales, as confirmed by the media interest in the case. These proceedings are the latest example of the Administrative Court in Wales facilitating the making of submissions in the Welsh language. The court made arrangements for simultaneous Welsh-English translation at the hearing with RhAG presenting its case entirely in Welsh. Gwion Lewis KC acted for RhAG throughout the proceedings. The judgement is available here. Media coverage is available here.
