I'm going to move on to item 5, a motion to annul the National Health Service (Welsh Language in Primary Care Services) (Miscellaneous Amendments) (Wales) Regulations 2019. And I call on Dai Lloyd to move the motion.

Motion NDM7057 Dai Lloyd

To propose that the National Assembly for Wales in accordance with Standing Order 27.2:

Agrees that The National Health Service (Welsh Language in Primary Care Services) (Miscellaneous Amendments) (Wales) Regulations 2019, laid before the Assembly on 9 May 2019, be annulled.

Motion moved.

Thank you very much, Deputy Presiding Officer. And I move the motion on the annulment of the regulations on primary care and the Welsh language. The primary care sector—dentists, opticians, pharmacists, and GPs—are responsible for 90 per cent of patient experiences in the health service, and, indeed, it’s the starting point for most on their journey on the care pathway. These are the most vulnerable people, with the greatest need, where receiving treatment through the medium of Welsh can be crucial, such as in the case of those with dementia, or young children who speak no other language other than the Welsh language.

The Government pledged in the spring of last year, in exempting primary care providers from the standards for the rest of the health service, that specific regulations would be introduced in order to secure rights for the Welsh language in primary care through the service contracts. But, we are here today looking at regulations that don't provide any statutory rights, or even half a statutory expectation, of receiving face-to-face services through the medium of Welsh for patients. At best, over time, we will see a few new Welsh signs as a result of these new regulations. There is nothing here: no rights, no expectations, and no change.

A quarter of a century since the passing of the Welsh Language Act 1993, and eight years since the passing of the Welsh Language (Wales) Measure 2011 that established official status for the language, and seven years since the Government adopted 'More than Just Words', which committed them to providing health services through the medium of Welsh proactively, these limp regulations don't even provide the most basic things such as noting the language of choice of the patient—something that is crucial to plan Welsh language services. What’s the purpose of encouragement? Even if the will, the time and the resources were available to the health boards to ensure that encouragement was there, these regulations don't even require a record. They don't ensure any actionable legal right of any value. And neither do they provide assurances of having a Welsh language service, even when that is a matter of clinical need. That, in and of itself, just shows how deficient these regulations are, and why they need to be annulled and redrafted.

But on top of that, the Minister has shown the same disregard for this Senedd, and democracy, in introducing these regulations, as he shows to the linguistic needs of the most vulnerable people in our society in terms of the content of the regulations. He didn't attend committee to respond to questions. He’s even refused the request of my colleague Delyth Jewell, who is a member of the committee, to discuss the way forward before today's debate. Such is his disregard for the Welsh language, he hadn't even bothered to translate the explanatory memorandum for these regulations into Welsh at the time of their introduction, although it was only five pages long. So, in introducing language duties, the department has gone against its own language responsibilities. You couldn't make it up.

But what is clear is that the Government is concerned about the views of the profession. Indeed, the only bodies listed in the explanatory memorandum as bodies that were consulted by Government are the five professional bodies. It’s clear that their views are more important than those of the elected representatives of this place. They had far longer than 21 days to have their say; indeed, they had over a year. The Culture, Welsh Language and Communications Committee had to insist on holding a very brief inquiry within the 21 days they had, and seven of those days were during recess. If a committee Chair doesn't deserve the respect of this Government, then who does? To whom are they accountable? This is no way to treat our national Parliament.

So, rather than having an open, transparent debate on these issues, in order to ensure the best for our patients and users of the Welsh language, we have a Government that has done everything within its power to avoid accountability to this Senedd on the content of these regulations. I, as Chair of the Health, Social Care and Sport Committee, the Chair of the Culture, Welsh Language and Communications Committee, and the Chair of the Constitutional and Legislative Affairs Committee have complained, but you haven't listened. It is damning. The strategies and the warm words have failed. Now is not the time for first steps and encouragement; it is time to have far firmer regulations in order to safeguard and expand the rights of Welsh speakers. Members of the Assembly have the opportunity to ensure that today by supporting the annulment of these regulations.

We will be supporting this motion to annul these regulations, not on the basis of their content, but because of the fact that the scrutiny role of the Assembly has been ignored. Personally, I feel that it’s easy for practitioners to adhere to the regulations—someone else is paying for them and they're not challenging. I don't want to impose standards on small businesses, even directly, but these are simple steps to take, which cost next to nothing, and it’s embarrassing, in a way, that we need legislation at all for these steps. But, other people may think that they should be more challenging or less challenging or completely different. We don't know, because there has been insufficient time to scrutinise these regulations. If the Chairs of two committees say to the Welsh Government that they need more time, well, we should have more time for scrutiny. We're the ones who are legislating; we're the ones who decide on the legislation.

And also, we've already been holding our noses from having received assurances from the Government about the acceptability of some secondary legislation from the United Kingdom in devolved areas, without looking at them ourselves. We shouldn't have to do that with secondary legislation put forward by our own Government. We've opposed time after time attempts by the Welsh Government to justify the use of the negative procedure for secondary legislation on the basis that this Senedd doesn't have the time to scrutinise or because any changes are technical in nature, and we've had enough of that. The way that these regulations were put forward proves our point. Will you respect the Senedd and support today’s motion? Thank you.

I call on Bethan Sayed, Chair of the Culture, Welsh Language and Communications Committee.

I thank Dai Lloyd for tabling this motion. I want to start by emphasising the importance of these regulations. They are supposed to take us closer to delivering primary healthcare services in Welsh—something that was acknowledged by everyone who came and spoke to the committee as a necessity, not merely a preference, for some people. For vulnerable patients, it can be vital to talk to their doctor in their first language. Although I personally believe that the regulations should be annulled, committee members were divided on this, and I should make it clear that I am speaking on behalf of the committee.

But before talking about the content of the regulations, I want to discuss the way in which they were laid before the Assembly. In March of last year, the committee scrutinised the standards regulations relating to the Welsh language and the health sector, and was told by the Minister for the Welsh language at the time that we would be given more than the minimum 21 days to consider these regulations.

The committee clerk wrote to the Welsh Government three times to ask about the timing of the regulations and to confirm that we would have more than 21 days to scrutinise them. After having no reply, the committee clerk was told on the phone that they would be coming forward 'before Easter' and then 'before the end of May'. Without any prior warning, they were then laid on 9 May and came into force on 30 May.

The Government has failed badly in its handling of these regulations. When I wrote to the Minister for Health and Social Services to point out that the timing meant that the committee had only 10 working days to consult stakeholders, to discuss and report on the regulations before they came into force, I received a most unsatisfactory reply. The Minister replied that 

'under Standing Orders 21 and 27, there is no provision for a Committee other than the responsible Committee...to report on an instrument subject to the negative procedure.'

This completely disregards the fact that we, as a committee, have been signalling our intention to scrutinise these regulations for over 12 months.

The health Minister gave a more gracious response to the Chair of the Constitutional and Legislative Affairs Committee on the same issue.  Mick Antoniw was told:

‘Previous amendments to these Regulations have not gathered the same level of interest and I have asked my officials to ensure in future, if they involve the Welsh language, we alert and engage with CWLC earlier in the process.’

Dai Lloyd has already raised the issue of an explanatory memorandum to regulations on Welsh language service provision being laid in English only. It would be amusing if it was not so disrespectful. I note that the health Minister also writes that his officials have, and I quote,

'reached agreement in principle that we will progressively increase the number of explanatory memoranda for statutory instruments that are laid in Welsh before the Assembly.'

Is such a weak commitment the most we can expect from a Government with ambitions to reach a million Welsh speakers by 2050?

As a committee we want the Welsh Government to commit to giving us the opportunity to scrutinise all legislation relating to Welsh language duties on primary care providers before it is made or laid in the Assembly. I would assume it goes without saying that all supporting documents should be presented bilingually, but in this case I’ll say it for the record.

With regard to consultation, before moving onto the content of the regulations, I want to record our concerns about the consultation process. The Welsh Government formally consulted the representative bodies of doctors, dentists, opticians and pharmacists, and so on. We were told that discussions were held with the Welsh Language Commissioner, none of which are in the public domain. I'm shocked that the Government has failed to consult the most important group, namely the patients. The fact that patients were not consulted about services in Welsh speaks volumes about which stakeholders the Government value. The committee calls for the regulations to be amended following further consultation that must include patient bodies and the Welsh Language Commissioner.

In terms of the requirements, I'd like to talk about what duties will be imposed on primary care providers and the opinions of those providers on the relevant duties. The regulations only go so far as ensuring that providers make forms available in Welsh and that new signs are available through the medium of Welsh, and that they encourage Welsh speakers and learners to wear a badge, encourage staff to attend awareness training courses and record the language preference of a patient.

In our previous report, we wrote of our concerns that there is still no right to receive face-to-face services in Welsh, and that the right to receive a service in the language of the individual’s choice should be an established principle in the public sector in Wales. I still feel this way, and I'm pleased to say that the committee members agreed that the Welsh Government should work towards developing this capacity. 

I have a great deal of things to add, but I'm aware that time is against me. We are disappointed at the weakness of these regulations, and the lack of oversight, the concerns raised by the professional bodies, and the lack of consultation with patients and the commissioner. All these elements add up to regulations that manage to be both late and rushed.

This has been described as a ‘first step’ on a journey towards greater provision of primary care services in Welsh, but this is worrying. If the direction of travel is not agreed, if the costs are not transparent and if the providers are not on board, then the journey can’t even begin. I urge the Welsh Government to consult again and to revise these regulations.

I call on Mick Antoniw, Chair of the Constitutional and Legislative Affairs Committee. 

Thank you. We considered these regulations at our meeting on 20 May 2019 and we reported on both the technical and merits points to the Assembly. We welcome that the Welsh Government has accepted the technical reporting point relating to the drafting of the regulations, and that it proposes to rectify the issue by means of a correction slip.

With regard to the merits points, we noted that these regulations impose six contractual duties relating to the Welsh language on contractors who provide primary care services to the NHS. This  contrasted with the 121 Welsh language standards applicable to other health service providers. The Welsh Government’s response to our report stated that the duties imposed by these regulations are the first duties relating to the Welsh language to apply to independent primary care providers, and that they are distinct from the Welsh language standards applicable to local health boards and NHS trusts.

We further noted that the regulations into which these additional duties are inserted make it clear that they are part of the contractual duties of contractors from 30 May 2019. However, there is nothing in the explanatory memorandum or accompanying the explanatory memorandum to explain that the amendments apply to all contracts from that date and are not limited to new contracts entered into after that date. The Welsh Government responded to this point by saying it had consulted and corresponded with the applicable representative bodies of the independent primary care providers, and that it was satisfied that the relevant bodies are aware that the duties are not limited to new arrangements entered into after the date on which the regulations came into force. 

In addition to our usual report, we also wrote to the Minister to support the concerns raised by the Culture, Welsh Language and Communications Committee, of which I am also a member. And I note that the Minister has said, in his reply to us last week, that he had asked his officials to ensure engagement with committees much earlier in the process for future regulations. And I take this opportunity to emphasise again, to all of Welsh Government, the importance of engaging with the relevant subject committees on significant regulations, particularly where a committee has sought that engagement.

And I have further points. I have great sympathy with the points that have been made by Dai Lloyd and to the procedural inadequacies that have occurred, particularly when it comes to the ability to properly scrutinise regulations that come before this Assembly. That is a fundamental part of the parliamentary process, and the concern that has been raised is one that I think was shared across the board, both in the Constitutional and Legislative Affairs Committee and also on the Welsh language and culture committee on which I sit. There are those of us who I think fell short of supporting the idea of annulment, but primarily because of the damage that we felt it might do, or the implications of not proceeding with regulations that seek to advance the interest of the Welsh language. But that should not mean that there isn't a warning shot across the bows of Government, that if procedures are not properly followed, if there is not proper opportunity for scrutiny, then the issue of annulment is one that is taken seriously, I think, by our committee structure. And I think on future occasions it may be something that we consider. So, I would certainly seek an assurance from today that those lessons have been learnt, that that constitutional importance is recognised, and this is something that will not happen again during the course of parliamentary processes in this Assembly.

The provision of health services through the medium of Welsh is essential. For some patients it is not a matter of language choice—it is their only option. This is why my group and I support the intention behind these regulations. As the Welsh Language Commissioner rightly points out, these regulations are an important first step towards greater provision of health and social care services in Welsh.

It is important, however, that we get the right balance of meeting the needs of patients without reinforcing perceptions that in order to work in NHS Wales you have to speak fluent Welsh. This was one of the concerns raised by health professionals in the Culture, Welsh Language and Communications Committee last week. And while I am of the opinion that these regulations do strike the right balance, I accept that it is not just me who needs to be convinced—it’s those working in primary care, those on the front line delivering services, who need to buy into the regulations.

It was therefore disappointing that the Welsh Government chose to use the negative procedure, and allow just the bare minimum of 21 days for scrutiny. This didn’t allow time to consult with patient groups, the professional bodies representing the health and care workforce or the service providers. And it is for this reason that my group will be abstaining on the motion to annul. I don’t think the Government should revoke these regulations, however, I would urge the Minister to work with providers to ensure that we have them on board.

If we are to improve Welsh language service provision, we must ensure that the regulations have support across the board, and I look forward to the Minister’s response. Diolch yn fawr.

I call on the Minister for Health and Social Services to speak—Vaughan Gething.

Thank you, chair. I'd like to start by thanking Dai Lloyd, the Chair of the Health, Social Care and Sport Committee, for tabling this motion and providing the opportunity to set out the rationale and importance of putting in place these Welsh language duties for independent primary care contractors as well as, of course, for those primary care services provided directly by the health service.

There's been a high-level of interest by Assembly Members in this piece of legislation, as we've heard this afternoon. Having recognised the specific interest of the Culture, Welsh Language and Communications Committee, I did offer the committee a technical briefing, with my officials, which took place on 6 June. I welcome the report that I have now received from the Culture, Welsh Language and Communications Committee, from the meeting on 6 June, into the regulations, and I will of course consider fully and respond to their report from the meeting.

The Llywydd took the Chair.

I recognise the comments made today. I have asked by officials to ensure that, in future, when we make regulations about the use of the Welsh language through health and social care, we alert and engage with the specific subject committee but also with the Culture, Welsh Language and Communications Committee earlier in the process. I do recognise the points that have been made, not just about health and social care policy and further policy and regulations, but the comments made about the broader Government approach, because I actually welcome scrutiny from Members in this Chamber. I still remember myself being a backbencher and wanting to take a proper role in the scrutiny process, to challenge and also to improve legislation too. 

But I do wish to place on record my genuine and sincere regret that the Welsh language version of the explanatory memorandum was not laid at the same time as the English version, as it should have been. But I would not want that genuine oversight—and I recognise that I'm not trying to soft-soap or say it didn't happen—I wouldn't want that to detract from the benefits that I believe these duties will have to patients to take part in healthcare in a primary care setting. And here, I think, there is a departure from the argument made by Dai Lloyd in moving the motion.

On a general point, though, regarding the translation of the explanatory memorandum, officials are discussing this with the Assembly Commission officials and reached an agreement in principle that we will progressively increase the number of explanatory memoranda for statutory instruments that are laid in Welsh before the Assembly. Further work is under way to look at the significance of that in terms of the time required in the delivery of legislation and supporting documents to be laid before the Assembly in both official languages.

As has been noted, the duties actually came into force on 30 May, so with the regulations having already been made, passing the motion would mean revoking and having to remake the regulations, which would delay the introduction of the duties. Some Members may not support the scheme or the regulations, but we have worked with not just providers, not just stakeholders in delivering services, including their representative bodies, but the scheme that we have has the support of the previous Welsh Language Commissioner and the current one. 

So, moving on to the duties themselves, the approach to Welsh language duties in the contracts, in terms of service for independent contractors, results from consideration and consultation on the draft Welsh language standards regulations for the health sector in 2016. The consultation responses reported that there was a widespread belief that it was not reasonable to place standards on local health boards that would make them responsible for any failure to comply by one of the independent primary care contractors. That is of course due to how services are delivered under nationally agreed contracts and terms of services. But primary care services delivered directly by local health boards will be subject to the Welsh language standards set out in the compliance notices for individual health boards.

There are practical reasons that need to be explored further—[Interruption.] Yes.

Strangely enough, this is the precise point I made to your officials. If we can set standards that are higher for those primary care services that we directly provide via the various local health boards, why shouldn't those higher standards have been comprehensively looked at in a full consultation with patients and groups like the Welsh Language Society, and before the relevant committee or committees—because, in this case, we're talking about Welsh language rights as well as effective healthcare provision? You ducked that. It's interesting that you're saying—and you're quite right, it was dilatory at the very least not to have published the explanatory memorandum in Welsh at the same time when you laid these regulations. But the real problem is that you're setting a level of standard without scrutiny here. We should have that full debate here. Primary healthcare services are the most direct ones that we receive, and where we would really want to see effective Welsh language rights being championed. 

There's an honest choice to be made about how to introduce these first-step duties, as they have been described. There were practical questions that needed to be explored further about how to set and regulate Welsh language obligations on the thousands of GPs, opticians, pharmacists and dentists who work and deliver care here in Wales—[Interruption.] I remember when the Member was in the Chair, he regularly spoke about noises off from the side and a sedentary position. 

Well, answer the central question. 

I'm trying to explain the approach that we've taken, and I am being genuine and honest in that. Members may not agree with the approach that we have taken, but this is the approach we've taken to introduce for the first time these duties across primary care. And there was consensus in the consultation that the most appropriate way of placing Welsh language duties on primary care providers was to agree these nationally and to include them in the contractual terms of service between contractors and health boards. And that approach used existing contract reporting systems that are familiar to the sector. It was noted that—[Interruption.] I can't; I'm over time already. 

It was noted that, unlike the majority of health sector bodies that are required to comply with the Welsh language standards, independent primary care providers have not previously been subject to Welsh language schemes. So, we've taken this into account with Welsh language skills capacity, capability, recruitment and retention issues in primary care. It's important to introduce the first-step duties in a way that is proportionate and with a supportive environment. The duties being placed on independent primary care providers, like standards for the healthcare sector, are a part of a jigsaw of interventions that support and build upon the firm foundations laid by 'More than just words'.

There was more that I wanted to say, but I recognise that we're now significantly over time, Llywydd. But I would say that I do believe that these duties are a significant step forward in promoting and supporting Welsh language awareness and services in primary care. And I am pleased that representative bodies of independent primary care providers, despite raising some challenges, have agreed on the approach that we're taking. I'd ask Members to vote against the motion today, and not set back the important practical progress that these regulations introduce.  

Dai Lloyd to reply to the debate. 

Thank you, Llywydd. I don't have much time. I will thank everyone who has contributed: Suzy Davies, Bethan Sayed, Mick Antoniw, Caroline Jones, David Melding—I enjoyed that—and, of course, the Minister, although I didn't agree with him.

To conclude, I was going to use this time just to explain in broader terms why this is so important and why the regulations are so insufficient. There is a broader issue here, and that is the clinical value of providing a service in the patient's mother tongue—the people who were absent from your contribution—and that's improving the quality of care. That's the point here, at the end of the day.

The diagnosis that we come to comes on the basis of the history that the patient provides to the doctor or the nurse in 90 per cent of cases. So, the crucial point here is that we find solutions by listening to the words of the patient, and that depends on the fluency of that patient, usually in English, because that's the situation with first-language Welsh speakers. Everyone thinks,

'Oh, you can all speak English'. Yes, but not everyone is confident and fluent, and even confidently fluent, or even have a Melding-esque grasp of nuance and syntax in their second language. 

Because, particularly in the case of children, older people, people with dementia or who've had a stroke, they can lose their second language. Provision in the Welsh language is crucial to improve the quality of healthcare, so that they can tell you exactly what's wrong with them. And, of course, in providing that care, you reduce the use of expensive tests such as blood tests, x-rays, ultrasound, because you've already come to the diagnosis on the basis of the patient's history in their mother tongue. 

Now, the health service is late in the day in recognising the importance of the Welsh language. People have always told me that it's difficult to get a doctor at all, never mind them having to speak Welsh, and we've heard that this afternoon. That's the usual cry that we hear. But even in the city of Swansea there are four doctors in my small practice who are Welsh speakers, never mind the nurses and others, and that's in Swansea. 'It's hard to believe'—that's what most people would say, but it's no surprise, remembering that 31,000 of the patients in Swansea are also Welsh speakers, and they deserve quality provision from the primary care team, without expressing doubts about the dangers of such provision. So, vote in favour of the motion.  

The proposal is to agree the motion. Does any Member object? [Objection.] I will defer voting under this item until voting time.  

Voting deferred until voting time.