The Welsh Language Commissioner, R (On the Application Of) v National Savings And Investments

A Crown body may voluntarily adopt a Welsh language scheme and retains an implied power to withdraw it. The statutory investigation and recommendation regime continues to apply to failures occurring under the scheme, despite its subsequent withdrawal.

However, a clear promise to consult the Welsh Language Commissioner before changing the scheme creates a procedural legitimate expectation. The body must consult while proposals remain formative, provide sufficient reasons and time for response, and conscientiously consider the outcome. A decision taken before consultation is unlawful, irrespective of proof of prejudice. Judicial review time may be extended where delay resulted from a reasonable statutory investigation and attempts to resolve the dispute.

The Welsh Language Commissioner challenged National Savings and Investments’ decision to withdraw its Welsh language scheme from 22 April 2013 and its refusal to resume compliance after the Commissioner’s investigation and recommendations.

NS&I was a Crown body. It had adopted schemes voluntarily under the Welsh Language Act 1993, and the operative scheme stated that no changes would be made without the Welsh Language Board’s approval, now the Commissioner’s approval. NS&I withdrew the scheme following a review of usage and cost, without consulting the Commissioner in advance.

The issues were whether NS&I had power to revoke the scheme, whether the statutory regime prevented revocation, whether the scheme created a legitimate expectation of consultation or approval, and whether the claim was brought promptly.

1. Permission and delay. The court extended time and granted permission. The Commissioner acted reasonably in conducting a statutory investigation, awaiting recommendations being considered, escalating the matter and taking legal advice. The claim was issued with reasonable promptness, and NS&I suffered no material prejudice.
2. Power to revoke. The statutory regime imposed no duty on a Crown body to adopt or maintain a scheme. The implied power to adopt a scheme necessarily included an implied power to withdraw it. Section 21(5) of the Welsh Language Act 1993 did not prevent revocation. The Commissioner retained powers to investigate and make recommendations concerning failures under the scheme, and those powers were not defeated by revocation.
3. Legitimate expectation. The scheme contained a clear and unequivocal undertaking which created an expectation that the Commissioner would be consulted before any change. It did not create an enforceable expectation that NS&I could never change the scheme without the Commissioner’s approval. Government policy could not be entrenched in that way, since public bodies must remain able to adapt policy to changing circumstances.
4. Consultation. The requirements identified in R v London Borough of Brent ex parte Gunning were not met. NS&I had decided to withdraw the scheme before any consultation, gave no genuine opportunity for intelligent consideration and response, and did not approach the matter with an open mind. The correspondence and statutory investigation did not amount to consultation. The failure was unlawful and the decision was quashed, whether or not prejudice was established.
5. The substantive application was allowed, judgment was entered for the Commissioner, and the revocation decision was quashed. The scheme remained in operation unless and until NS&I changed it through a lawful process.