LANGUAGE LAW IN SCOTLAND: THE (ALMOST) INVISIBLE MAN Prof. Robert Dunbar The University of Edinburgh

SCOTLAND’S LANGUAGES Historically, a multilingual country Pictish, Brythonic (Old Welsh); Old Irish (Gaelic), c. 5th century; Anglic dialects (Scots), c. 6th century; Old Norse, c. 9th century; Norman French; Latin By 11th century, Gaelic is dominant, but is slowly displaced from ‘Lowlands’, where Scots becomes dominant From 17th century, English is ascendent; 2011, 98.5% of Scotland’s 5.1 million people speak English ‘very well’ or ‘well’ No history of language legislation (except to suppress indigenous forms), except relatively recent initiatives for Gaelic

LINGUISTIC CONTEXT: GAELIC Overall long-term decrease in numbers of speakers: 1891:,255,000 speakers, 6.3%; 2001:,59,000, 1.2%; 2011:,57,400, 1.1%, with another 23,400 who understand it Weakening in the ‘Heartlands’ (Outer Hebrides): 1991, 19,700, 69.1%; 2001, 15,800, 60%; 2011, 14,000, 52.2% Ageing population (though stabilising in younger age groups according to 2011 census) Low rates of literacy: 66.9% of speakers read, 56.1% write it Very low concentrations of speakers outside ‘Heartlands’, but make up the bulk of speech community (2011: 75.5% outside Outer Hebrides, 48.5% outside historic ‘Highlands’); however, 25,000 (43%) claim to speak it at home

Gaelic: retreat of the language

Gaelic in Scotland, 2001

LINGUISTIC CONTEXT: SCOTS In 2011, a census question on Scots for the first time 1.54 million (20%) claimed to speak Scots, a further 267,000 claim to understand it; fully 1.9 m (38%) claim some ability in Scots Highest concentations in Shetland (48.9% speak it), Aberdeenshire (48.7%), Moray (45.2) [both in north-east]; City of Aberdeen, 76,000 (35.6%) Only 53,000 claimed to speak Scots at home (3.4%)

POSITION IN LAW TO 1998 (1) Crofters’ Holdings (Scotland) Act 1886; Crofters’ Commission, Scottish Land Court (Scottish Land Court Act 1993) Education (Scotland) Act 1872; however, ‘Gaelic Clause’ in 1918 Act, 1980 Act, Grants for Gaelic Language Education (Scotland) Regulations 1986 Local Government reorganisation: Western Isles Council, 1975 (‘Comhairle nan Eilean’); now Comhairle nan Eilean Siar (Local Government (Gaelic Names) (Scotland) Act 1997

POSITION IN LAW TO 1998 (2) Gaelic (Miscellaneous Provisions) Bill 1980 British Nationality Act 1981 Taylor v. Haughney [1982], confirms that Gaels have effectively no right to use Gaelic in court Road Traffic Regulations Act 1984 Broadcasting Act 1990: Gaelic Television Fund, Gaelic Television Committee (Comataidh Telebhisean Gàidhlig, CTG) Broadcasting Act 1996: Gaelic Broadcasting Committee (Comataidh Craolaidh Gàidhlig, CCG)

POSITION IN LAW TO 1998 (3) Comunn na Gàidhlig (CNAG) proposals for language legislation: ‘Inbhe Thèarainte’ (Secure Status), 1997, 1999 Gaelic as an ‘official’ language; also, a national language: no explicit recognition of a ‘Gàidhealtachd’ Right to GME at primary, secondary level where there is ‘reasonable demand’ (Canada) Public bodies to prepare Gaelic policies, with ‘sliding scale’ of commitments (Wales; but also ECRML, Canada?) Right to use Gaelic in all courts, tribunals (Wales, Canada) Gaelic Language Advisory Board (Wales) Office of the Gaelic Language Commissioner (Canada)

POSITION POST-1998 AT WESTMINSTER Under Devolution (1999, based on Scotland Act 1998), Westminster retains sole authority for Broadcasting, Human Rights, Equality, Constitutional Matters Ratification of European Charter for Regional or Minority Languages (Council of Europe), 2001: Gaelic and Scots recognised; Gaelic receives protection under Part III By Act of Court in 2001, Gaelic can be used in civil proceedings in 3 Sherriff Courts (Hebrides) Communications Act 2003: Gaelic Media Service (now MG ALBA); results in creation of a TV service, BBC ALBA Parliamentary Constituencies (Scotland) Order 2005: ‘Na h-Eileanan Siar’

IMPACT OF DEVOLUTION (1) Scotland Act 1998: a Scottish Parliament with significant law-making powers; no reference to Gaelic, Scots, though Standing Orders permit use of Gaelic in parliament, committees Standards in Scotland’s Schools etc. Act 2000: annual reporting requirement re: provision of Gaelic education, Gaelic as a ‘national priority’, requiring annual statement of ‘improvement objectives’, but amendment to create a right to GME rejected

IMPACT OF DEVOLUTION (2) Gaelic Language (Scotland) Bill 2002 (the ‘Russell Bill’) Passed Stage 1; died when Scottish Parliament rose in March 2003 All public bodies to prepare a Gaelic language plan within 2 years ‘on basis of equality’ (Wales); however, only public bodies operating in the ‘Highlands’ No education rights (and no other rights to be created); nothing re: courts, no reference to status; no board nor commissioner

GAELIC LANGUAGE (SCOTLAND) ACT 2005 Heavily influenced by Welsh Language Act 1993; 2003 Irish legislation also considered Ambiguous reference to Gaelic as ‘an official language of Scotland commanding equal respect’ to English Creates a language board: Bòrd na Gàidhlig (BnaG) Gaelic language plans to be required, approved by BnaG; BnaG to produce statutory guidance as to content A National Gaelic Language Plan (renewed every 5 years) BnaG has very limited enforcement powers No rights, and no explicit (and perhaps no implicit) role for the courts

EFFECTS OF LEGISLATION: ‘TOO EARLY TO TELL’ What sorts of effects? (1) Changes in public authority practices (actual implementation of plans): research needed; but discouraging signs (2) Changes in language practices in other institutions: research needed; little hard evidence, but some positive notes? (3) Changes in language practices of Gaelic users viz public bodies with plans (e.g. take up of services): research needed; no hard evidence (4) Changes in language practices of Gaelic users more generally: research needed; no hard evidence (5) Changes in language practices of non-Gaelic users (e.g. Attitudes, acquisition; ‘Catherine Wheel’ effects (6) Dynamic policy changes of Government, public sector

IMPACT OF SNP RULE (2007- ) Implementation of existing legislation and policy initiatives, and some additional funding, but no new legislative developments or significant changes in policy MG ALBA—BBC agreement re: a Gaelic digital channel (2007); BBC Trust approval and launch of service (2008); Freeview access (2011) SNP manifesto commitment in 2011: explore an ‘entitlement’ to Gaelic-medium education 2009 SG ‘Audit of Current Scots Language Provision in Scotland’, 2010 SG-commissioned study on public attitudes to Scots, but no commitments to legislate

ISSUES No application of legislation to private, voluntary sector: how, then, to effect changes in these sectors? Little legislation on education (one of the main policy tools); would ‘rights’ make much difference? Dynamic and holistic language planning: synergies between public bodies being achieved? Sufficient attention to local conditions? Does general absence of ‘rights’ matter? Employment of scarce resources: how to make tough choices? AND, what to do about Scots?