That was the core question posed in the recent case of R (Rhieni Dros Addysg Gymraeg) v Neath Port Talbot County Borough Council, the second case revolving around Welsh school reorganisations in the last couple of years, less than an hour’s drive away from the first. In that case, you may recall the Court was critical of a council for not considering the knock-on effects of closing primary tier Welsh-medium schools on the secondary tier of Welsh-medium schools. This new case also considered knock on effects, but this time the effect of reorganising English-medium schools on Welsh-medium schools.

School reorganisations in Wales are governed by the School Standards and Organisation (Wales) Act 2013, which prefaced the issuing of a school organisation code by the Welsh Government. The case turned on the Council’s interpretation of the word “affected” in this code. It appears within the context of the case twice, once in Section 1, where it states “Where proposals affect schools where Welsh is a medium of instruction (for subjects other than Welsh) for some or all of the time, local authorities should carry out a Welsh Language Impact Assessment”. It then appears subsequently in the section on consultation:

“Where any school involved or affected provides teaching through the medium of Welsh the following information must be included in the consultation document… an assessment of the impact of the proposal on the Welsh language (a Welsh language impact assessment must be included either in the main part of the consultation document or as an Annex”

The Council interpreted “affected” as referring to Welsh-medium schools being directly affected by proposals for change- and as these changes only directly impacted on English-medium schools, there was no obligation to include a WLIA in the consultation, instead (as they did), it could be published after the consultation. The Council had instead concluded that it was unlikely that local Welsh-medium schools would lose pupils to the new English-medium school, so they were not affected.

The claimants argued that this interpretation was incorrect- and that a less stringent version of the test should be applied. If, they argued, there was a real possibility that was, in the words of the Court “more than fanciful”, then that would be enough to bring them into the category of “affected”. In the event, the Court agreed with them. The Council had misdirected itself in law in concluding that local Welsh-medium schools would not be affected, and should have complied with the Code which stated clearly that it must be included in the consultation document.

Although this case is very specific to education in Wales, it does raise an interesting point about making sure you are correctly interpreting guidance and the law around public policy decisions. It also highlights the importance in Wales of considering how you are approaching Welsh language issues, and putting them at the core of decision-making. In linguistically sensitive areas such as Neath Port Talbot and Swansea, not doing so can be particularly risky.