In April 2013, NS&I purported to discontinue its Welsh language services in their entirety, claiming that the cost was disproportionately high. In a judgment handed down in Cardiff on 6 February 2014, Hickinbottom J and HHJ Milwyn Jarman QC agreed with the Commissioner that the decision unlawfully breached her legitimate expectation that NS&I would consult her before making any changes to its Welsh language scheme.
Referring to NS&I’s undertaking in the scheme to make “no changes” to it without the Commissioner’s approval, the judges said:
“65. … By its promise in the Scheme, and its subsequent actions and correspondence, NS&I had created circumstances in which the Commissioner was reasonably entitled otherwise to rely on the continuance of the Scheme. However, there was no attempt by NS&I to consult with the Commissioner over that important change of policy, about which, it is equally clear, the Commissioner would properly have had something to say. Certainly – and obviously – it required NS&I to consult the Commissioner if it wished to make any substantive change to the Scheme, in terms of level of Welsh language service provided, let alone revoking the Scheme all together.”
NS&I had argued that by announcing its decision to revoke the scheme but delaying its implementation for 2 months, the Commissioner had been given ample opportunity to express her views on the proposal. The judges rejected the suggestion that this was adequate consultation and was especially critical of NS&I’s attitude to the Commissioner in correspondence:
70. … On any view, NSI’s engagement with the Commissioner was wholly inadequate. At a time when the Commissioner was attempting to perform her statutory functions, and trying to engage with NS&I, the responses she received from senior executives within NS&I were brusque, inappropriate, discourteous and disrespectful of the Commissioner’s office and her functions. It is in our view disappointing – others might use stronger terms – that, in exercising its statutory functions, one statutory body would treat another statutory body, attempting to exercise its own statutory functions, thus. Good government requires mutual respect between arms of government and bodies tasked by the elected government to perform public functions that appears to have been totally lacking on the part of NS&I in this case.”
The case is historically significant as it is the first time since it was established in 1875 that the High Court has handed down judgment in the Welsh language. Official English and Welsh versions of the judgment were promulgated simultaneously.
The BBC has covered the case online and on television. The proceedings have also been followed closely in Ireland given the similarities between the functions of the Commissioner and those of the Irish Language Commissioner (An Comisiniéir Teanga).
Gwion Lewis, instructed by Morgan Cole LLP, appeared as sole Counsel for the Welsh Language Commissioner at the hearing and advised her throughout the case.