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.
I'm Betsan Powys, BBC Wales' political editor. I'll be blogging the inside track on 
© MMIX~RS~q~RS~~RS~z~RS~03~RS~)
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Betsan said
"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."
From a real world Welshman
"I have many friends and relations who speak Welsh, they are fine people, and do not suffer the idealistic dogma wanting to force the ancient language on to the population (at tax payers’ expense). They tell me that they fill the bilingual forms in at the English section because they cannot understand the academic Welsh section."
http://www.assemblywales.org/bus-home/bus-legislation/bus-leg-legislative-competence-orders/bus-legislation-lco-2009-no10/nafw_lc5-wl_consutlation/nafw_lc5_wllco_individual-reponses/nafw_lc5_wllco-69i.htm
We did the cloud cuckoo land of Welsh academia while you were away!
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In places such as once English, English speaking Monmouthshire, all this non-stop chatter of the enforcement, and glorification of the language of Rhodri sodding Morgan!!!. Is in fact gonna kill it, when enforced, it sounds like the tongue of a triumphal, victorious elite!! Heil Llafur, isn't it?
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Betsan said
"..it seems lawyers for the Assembly Commission have been doing some unpacking..
It's understood that legal advice will be circulated to Assembly Members tomorrow..
..according to the Commission's lawyers,...
Another part of the legal advice...
..digested the Commission's legal advice..
...even the Presiding Officer, Lord Elis Thomas, whose lawyers have delivered both a sting in the tail and a warning shot for the future."
What warning shot would that be and without taking legal advice are you, an AM, or MP able to tell me?
It seems that in the real world the only people who are going to benefit from this are going to be the lawyers, for where there is harmony it is going to bring dischord!
If the WAG and assembly want to do make a real world difference to peoples quality of life and employment prospects, try looking at why 75% of students from disadvantaged backgrounds drop out or are forced out of higher education.
Banning the public from any sort of consultation or complaint on the issues that really matter at the same time as imposing this legislation suggests that our politicians have lost touch with reality.
King Rhodri has built a devolution castle in the sky, the assembly lives in it, and Westminster pays the rent.
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Once again Jack goes well over the top, offensive as ever, Wales is not a fascist dictatorship, please cut this childish nonsense out if you want anyone to take you seriously.
Once again we see why we need to move to the next stage of Devolution, this micro management is nothing but a lawyers dream. Regardless of what you think of the contents of the LCO it is surely not right that one parliamentary body has every move constantly controlled by another, this is not devolution, this is power retained and exercised at Westminster.
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#4 I totally agree that this set up is a mess and serves nobody but the lawyers and I would add the AMs. I also agree that power is retained and excercised at Westminster.
We need to open up that power to public scrutiny and accountability, however, the constitutional black hole caused by devolution prevents us from doing it.
Where I disagree is the need to move to the next stage of devolution as being the answer.
In my view the solution is to scrap not only the assembly but also the Welsh office.
Essential services would be provided by unitary authorities for both England and Wales with the Welsh Affairs Committee overseeing Welsh interests.
To bring about long term positive change we must invest in young people and the disadvantaged to help them through higher education, instead of making life difficult for them.
The only way we can do that is through a change in the law and that will always be done in Westminster.
Therefore this referendum on the future of devolution must contain an option to get rid of the assembly and the Welsh office to give our MPs real power where it matters.
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Thank you Westminster for .....
..... reasonableness and proportionality.
In Wales "reasonableness and proportionality" will be akin to tacking the tail on the donkey, where the separatist merchants try to pin coercion on the tail of democracy.
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Cardiff is being disingenuous here. 'Reasonableness and proportionality' are a common law test. Either they apply to the legislation by default, in which case they don't need mentioning, or the legislation is framed so that their application needs to be specified, otherwise they could not be assumed and would not apply. Cardiff is saying they apply anyway and don't need mentioning, London is saying they don't apply unless they're mentioned. So the two parties appear to agree they should apply, it's just a matter of whether that needs to be covered in the LCO or not; unless, that is, one of the parties (Cardiff) wants the phrase left out, because it doesn't want the test to apply and doesn't believe it's there otherwise. If the test applies anyway, how can it be an additional constraint?
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