They thought it was all over...
From tomorrow's plenary agenda - "Item 5: Debate and Approval of the draft National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2009 under Standing Order 22.34 (60 mins)"
Look innocuous? The end of a long hard road? Only the relative formality of Parliamentary approval to come?
No. As I'm packing up to come home from half term holidays, it seems lawyers for the Assembly Commission have been doing some unpacking - and the LCO (or HELLCO) That Wouldn't Die has one more sting in the tail. It's understood that legal advice will be circulated to Assembly Members tomorrow - crucially before they vote - raising some very serious concerns about the Order as it's presently drafted.
The concerns would appear to relate to the "test of reasonableness and proportionality" clause.
"This matter does not include imposing duties on a person (other than on a Welsh language authority) unless there is a means for that person to challenge those duties, as they apply to that person, on grounds of reasonableness and proportionality."
So what are the concerns? Well it seems that principally that this clause, inserted at the very end of the process following negotiations between WAG and the Wales Office introduces a novel and unprecedented (words we'll hear a fair bit tomorrow) new element to LCOs - that is, of having a test on the face of the Order that every future Measure will have to, well, measure up to. We'll hear the words "far reaching implications" a fair bit too tomorrow I suspect. This isn't just conferring powers, according to the Commission's lawyers, it's potentially confining the way the Assembly can use them.
Another part of the legal advice that will raise eyebrows is a suggestion that the effect of the Order could be to weaken some provisions of the Welsh Language Act 1993. Expect this one to be fiercely challenged from the Government as soon as it sees the light of day. They'll argue that the LCO does not require a challenge mechanism to be set out in a Measure, simply that one should exist. They'll also argue that the '93 Act already allows duties imposed to be challenged on the grounds that they are not reasonable or proportionate - in fact those words are in the Act. As Tom Jones sang (so they say) it's not unusual.
So what happens now? Well it's hard to overstate quite how much the Assembly Government want to see the back of this LCO, and get cracking with a language measure that will have an effect out there in the real world. The whip being what it is, even having read and digested the Commission's legal advice, it's still likely that the AMs on the Government side will hold their noses and vote it through. But words may be heard, I suspect, from the AM who chaired the scrutiny committee in Cardiff Bay, Mark Isherwood, and possibly even the Presiding Officer, Lord Elis Thomas, whose lawyers have delivered both a sting in the tail and a warning shot for the future.