Language Legislation and Language Rights in the United Kingdom

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  • 1 Senior Lecturer in Law, School of Law, University of Glasgow.

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  • 1 See, for example, Michael Beloff, QC., 'Minority Languages and the Law', 40 Current Legal Problems (1987), 139-57,at 141-2.

  • 2 Interestingly, the British Nationality Act 1981 provides that in order to acquire British citizenship, a person must, inter alia, have sufficient knowledge of English, Welsh, or Scottish Gaelic (Section 6 and Schedule I). 3 Beloff, 'Minority Languages and the Law', at 142. 4 The process of enhancing the status of English in the English courts - and by extension, those of Wales and Ireland - is described in Ruth Morris, 'Great Mischiefs - An Historical Look at Language Legislation in Great Britain, in Douglas A. ICibbee (ed.), Language Legislation and Linguistic Rights, (Amsterdam, 1998), 32-54, at 32.

  • 5 Both the Courts of Justice Act 1731 and the Administration of Justice (Language) Act (Ireland) 1731 contain this phrase. 6 Morris, `Great Mischiefs...', 38. 7 Ibid., 49. 8 Kenneth O. Morgan (ed.), The Oxford History of Britain (Oxford, 1988),155. 9 Janet Davies, 'Welsh', in Glanville Price (ed.), Languages in Britain and Ireland (Oxford, 2000), 78-108, at 80. See, generally, Janet Davies, The Welsh Language, (Cardiff, 1993). 10 Ibid., ,13. The status of the Welsh language was assisted by one piece of legislation: an Act of Parliament in 1563 required the translation of the Bible and the Book of Common Prayer into Welsh, ensuring that Welsh tended to become the language of religious worship in Wales.

  • 11 See, generally, European Bureau for Lesser Used Languages (EBLUL) Scotland- a linguistic double helix, 2 European Languages (Dublin, 1995), at 29-31; Jeremy J. Smith, 'Scots', in Price (ed.), Languages in Britain and Ire/and, 159-70 and Mairi Robinson (ed.), The Concise Scots Dictionary, (Aberdeen, 1985), ix-xii. 12 EBLUL, Irish: Facing..., 2. 13 King of Scotland as James VI 1567-1625, of England as James I 1603-25. 14 See, for example, J. C. Beckett, li Sbort History oflreland (London, 1979).

  • 15 Vivian Edwards, 'Language Policy in Multicultural Britain', in John Edwards (ed.), Linguistic Minorities, Policies and Pluralism (Toronto, 1984), 49-80, at 49. 16 Davies, `WeLsh', at 89. 17 Colin Williams, 'Welsh in Great Britain', in Guus Extra and Durk Gorter (eds.), The other languages of Europe (Clevedon, 2001), 59-81, at 59-60. 18 Davies, The Welsh Language, 67-69. The vast majority of Welsh-speakers also speak English. While the Census does not record levels of linguistic competence, a Welsh Office survey, Arolwg Cymdeithasol Cymru 1992: Adroddiad ar y Gymraeg (March, 1995), estimated that about 326,600 spoke Welsh as a first language, on a slightly higher estimate of the numbers of Welsh-speakers, 590,800 than that recorded in the 1991 Census.

  • 19 Office of National Statistics, available at http://www.statistics.gov.uk/census2001/profiles/rank/ walskills.asp. 20 See, for example, Davies, The Welsh Language, 72. See also, Kenneth MacKinnon, `Celtic Language Groups: Identity and Demography in Cross-Cultural Comparison', in Black, Gillies and O Maolalaigh (eds.), Celtic connections: proceedings ofthe tenth international congress ofceltic studies (East Linton,1999), 324-46, at 325. 21 For a good review of the present demographic position of Welsh and of the key demographic issues facing the language, see Williams, 'Welsh in Great Britain'. 22 Scotland's Census 2001: The Registrar General's Report to the Scottish Parliament, 13 February, 2003; avail- able at http://www.gro-scotland.gov.uk/grosweb/grosweb.nsf/pages/file5/$file/rg_report_parliament.pdf. In 1991, 65,978 reported themselves to be Gaelic-speakers, or approximately 1.4% of the Scottish population aged 3 or over. For 1991, see The Scottish Parliament Information Centre, Gaelic (Gaidhlig), Devolution Series 2/00, 2 March, 2000. While the census did not solicit information on linguistic competence, the great majority of those reported as Gaelic-speakers were almost certainly native speakers, and fully bilingual. 23 In 1991, there were 69,510 people, or 1.4% of the population, in this category. 24 Kenneth MacKinnon, 'Neighbours in Persistence: Prospects for Gaelic Maintenance in a Globalising English World', in Gordon McCoy and Maolcholaim Scott (eds.),Aitbne na nGael/Gaelic Identities (Belfast, 2000),144-55, at 144.

  • 25 As noted above, Gaelic had been displaced from the court and public administration in the eleventh cen- tury. 26 See, generally, EBLUL, Scotland a linguistic double ..., 29-31, Smith, `Scots , and Robinson (ed.), 1he Concise ...,ix-aai. 27 Scotland a linguistic double..., 32-6 and Robinson (ed.), 1he Concise..., xii-xiii, respectively. See also, J. Der- rick McClure, Why Scots Matters, (Edinburgh, 1997). 28 Robinson, 1he Concise..., at xii. 29 There was no question on Scots in the 2001 census in Scotland or on Ulster Scots in the census in Northern Ireland. The Ulster Scots Language Society has estimated the number of speakers of Ulster Scots, some- times referred to as `Ullans', at 100,000: The Ulster Scots Language Society, 'What is Ullans?', Ullans, Vol. 2, 1994, at 56.

  • 30 EBLUL, Irish: Facing ..., 3. 31 The census results for Northern Ireland were released on 19 December 2001. 32 Aodan Mac Poilin, 'The Irish Language Movement in Northern Ireland', in Mairead NicCraith (ed.), Watching One's Tongue (Liverpool, 1996), 137-162, at 152. Surprisingly, given the starkly different state poli- cies towards Irish, the percentage of Irish-speakers in the Roman Catholic community in Northern Ireland is broadly similar to the percentage of the population of the Irish Republic who had identified themselves as Irish-speakers; see Irishs Facing ..., 8. 33 A 1987 survey of those claiming to speak Irish in Northern Ireland indicated that only 6% claimed full fluency; 84% claimed to never use Irish at home, 15% used it occasionally, and only 1% claimed to use it on a daily basis: The Eurolang service of the European Bureau for Lesser Used Languages: http:// www.eurolang.net/State/uk.htm. While 75,125 people claimed in the 2001 census to be fully fluent in Irish, this is likely an overestimation.

  • 34 MacPoilin,'The Irish Language Movement...', 151. 35 It is estimated that perhaps 22,000 people spoke Cornish in 1600, but the language suffered a steady decline, and it appears that the last person with a traditional knowledge of Cornish was believed to have died in about 1890. See Philip Payton,'The Ideology of Language Revival in Modem Cornwall', in R. Black, VI. Gillies and R. O Maolalaigh (eds.), Celtic connections: proceedings of the tentb international congress of celtic studies, (East Linton, 1999), 395-424, at 412, 419, and The Cornisb and the Council of Europe Framework Con- vrntion for the Protection ofNational Minorities, http://www.biscoe.org.uk/cnmr.htm, at para. 5.1. 36 See Philip Payton, 'Cornish', in Price (ed.), Languages in Britain and Ireland,109-19, at 118. 37 Vivian Edwards, 'Community languages in the United Kingdom', in Extra and Gorter (eds.), 1he Other Languages of Europe, 243-60, at 243-7.

  • 38 See, generally, Wilson McLeod,'Autochthonous language communities and the Race Relations Act' [1998], 1 Web Journal of Contemporary Legal Issues, at http://webjcli.ncl.ac.uk/1998/issuel/mcleodl.html and Robert Dunbar, 'Legislating for Diversity: Minorities in the New Scotland', in Lindsay Farmer and Scott Veitch (eds.), The State of Scots Law, (London, 2001), 37-57, at 45-53.

  • 39 V'ritten evidence of 21 January 2003, of the Commission for Racial Equality, Scotland, available at http://www.scottish.parliament. uk! official_report! cttee/ educ-OJ/ edr03-().t-vo102 -02. h trn#-lg. �t0 Ibid.

  • 41 The legislative framework for languages in Northern Ireland will be considered further, in Section II, below, in the context of the discussion of Irish in Northern Ireland.

  • 42 Space does not permit an analysis of the impact of the EChRML, hut for an analysis, see Robert Dunbar, 'The Ratification bv the United Kingdom of the European Charter for Regional or Minority Languages', Working Paper No. 10, January 2003, at http://www.ciemen.org/mercator/index-gb.htm.

  • 43 Although these Welsh versions were to have 'like effect as versions done in English (subsection 3(1), Welsh Language Act 1967), in cases of doubt, the English versions prevailed (paragraph 3(2)(a), Welsh Language Act 1967). 44 Education in which Welsh, not English, is the medium of instruction in the classroom; this is to be con- trasted with the teaching of Welsh as a subject in an English-medium curriculum. 45 1988, c. 40 (hereinafter the '1988 Act'). 46 These provisions were retained in the Education Act 1996, c. 56 (hereinafter the '1996 .\cut')- 47 Section 2,1988 Act, and section 353,1996 Act. 48 A 'Welsh-speaking school' is defined as one in which more than half of the subjects other than English, Welsh and religious education are taught wholly or partly through the medium of Welsh: s. 3(i1, the 1988 Act, and s. 354(8), the 1996 Act. 49 See sections 3(l)(b) and 3(2)(c), 1988 Act, and sections 354(l)(b) and 354(2)(d) of the 1996 Act. 50 Welsh Office, Welsh for Ages 5-I6: Proposals of the Secretary of State for Hales (Cardiff, 1989), at 4.

  • 51 This is approximately 27.2% of all primary schools and 18.2% of all students; there are no primary schools where no Welsh is taught, and virtually all of the remaining students take Welsh as a subject: Schools in Wales: General Statistics 2002 (Government Statistical Service, 2002), at 60-6, at http://www.wales.gov.uk/ keypubstatisticsforwales/content/publication/schools-teach/2002/siwgs2002/siwgs2002.htm. 52 This is approximately 22.5% of all secondary schools and 14.4% of all students; there are no such schools where no Welsh is taught and only about 1% of secondary pupils are not taught Welsh at all (ibid.). It should be noted that a somewhat smaller number of secondary pupils, 26,967, were taught Welsh as a first language (ibid.). 53 For example, Section 21 of the Education Act 1980 enabled the Secretary of State for Wales to grant aid to local education authorities and other bodies to overcome some of the additional costs associated with Welsh language education, and introduced the Education (School Information) Regulations 1981, which required local education authorities to publish policies regarding the use of Welsh. See Edwards,'Language Policy in Multicultural Britain...', 71-2. 54 See Davies, 1he Welsh Language, at 89, and The Welsh Language Board, Yr Iaith Gymraeg, http://www.Bwrdd yr-iaith.org.uk. Radio Cymru started broadcasting on 1 January 1977.

  • 55 The formula set out in S. 61 of the Broadcasting Act 1990was replaced by Ss. 80(1) of the Broadcasting Act 1996, which provided that the Secretary of State would set a base amount which would then be subject to an annual percentage increase determined by reference to the rate of price inflation. S4C received GBP 80.745 million in Government funding in 2001 under this formula (see the 2001 Annual Report, available at bttp: //www.s4c.co.uk/e_index.html; an additional GBP 19.895 m. was generated through commercial ventures). 56 Broadcasting Act 1990, sections 57(2)(b) and (c). 57 J�, section 58(1). 58 Yr Faith Gymraeg. Paragraph 29(l)(b) of the Broadcasting Act 1996 obliges S4C to ensure that all the pro- grammes in Welsh which are also broadcast on S4C are broadcast on S4C Digital at the same time. 59 1993, c. 38.

  • 60 Subsection 22(2) authorizes the inclusion in the rules of the courts of provisions relating to the use of docu- ments in the Welsh language, and Section 23 authorizes the Lord Chancellor to translate into Welsh any form of any oath or affirmation to be administered and taken or made by any person in any court. 61 See http://www.courtservice.gov.uk/about_us/our_performance/welsh lang/e_welshlang/foreward.htm. A separate scheme exists for the Magistrates Courts. 62 5 & 6 Geo. 6., c. 40 [Eng.]. Section 1 of this Act repealed Section 17 of the 1536 Act of Union, and went on to provide that the Welsh language may be used in any court in Wales 'by any party or witness who considers that he would otherwise be at any disadvantage by reason of his natural language of communication being Welsh'. Thus, unlike Section 22 of the 1993 Act, this provision did not create an absolute right to use Welsh in the courts; in practice, the determination of whether it was necessary to use Welsh was made by the presiding judge, and the provision was interpreted restrictively. See Ruth Morris, `Great Mischiefs...', 45. 63 Section 22 of the 1993 Act is almost identical to subsection 1(1) of the Welsh Language Act 1967, and in a series of trials held in the 1970s, the requirements imposed on the courts by this provision were interpreted rather narrowly. See, generally, Zenon Bankowski and Geoff Mungham, `Political Trials in Contemporary Wales: Cases, Causes and Methods', in Zenon Bankowski and Geoff Mungham (eds.), Essays in Law and Society, (London, 1980), 53-70, at 53. 64 See, generally, sections 25-33. 65 Parts I and II of the Act, respectively. 66 Subsection 3(1).

  • 6/ The 1993 Act generally anticipated that the Secretary of State would perform a range of functions and have a range of supervisory and other powers under the Act,. Pursuant to the Government of Wales Act 1998, the functions of the Secretary of State for Wales under the 1993 Act were generally transferred to the National Assembly,. 68 Subsection 3(2). 69 In 2001-02, the Bwrdd made grants of GBP 3,027,739 for promoting the use of Welsh (e.g. book publish- ing, cultural festivals, community language planning bodies (the mentrau iaitb) and other language initia- tives) and a further GBP 2,182,500 to support Welsh-medium and bilingual educational initiatives. See Welsh Language Board, Annual Report, 2001-02, available at the Burdds website http://m�wv.Bwrdd yT- iaith.org.uk/. 70 Subsection 5(1). 71 Subsections 5(1) and 5(2). 72 Subsection 5(2).

  • 73 Section 9.'Ihe Bwrdd has done so. 74 Paragraph 7(2)(b). 75 Section 13. 76 Subsection 12(2). 77 Section 14. 78 See Colin H. Williams, 'Law, Language and Politics', in W.John Morgan and Stephen Livingston (eds.), Law and Opinion in Twentieth-Century Britain and Ireland (Basingstoke, 2003),109-40, at 115.The provision in the 1993 Act is contrasted with the wider provision in the Government of Wales Act 1998, in this section. 79 Subsection 17(1); indeed, the Bwrdd may even carry out an investigation on its own initiative where it believes that the public body has failed to carry out a scheme. 80 Subsection 18(2).

  • 81 Subsections 19(1) and (3). 82 Section 20. 83 See, for example, A.W. Bradley and Iv.D. Ewing, Constitutional and Administrative Law (London, 1998), 768 et seq, and in particular, 773 et seq. 84 Government of Wales Act 1998, subs. 47(1). As noted, the Assembly is also subject to a Welsh language scheme which is similar in nature, although the obligation imposed under that scheme is limited to the conduct of its'public' business. 85 See Williams, 'Language, Law and Politics',115. 86 Subs. 122(1), the Government of WalesAct 1998. 87 Standing order 7.1 and 8.18. Indeed, subs. 47(3) of the Government of Wales Act 1998 requires that the stand- ing orders be in both in Welsh and English. 88 Williams,'Legislation and Empowerment', 146.

  • 89 The extent to which the Assembly has become a bilingual institution is impressive, although the full achievement of true bilingualism is still not without its obstacles. The Assembly government seems to have made less progress than the Assembly towards this objective. For an excellent account of the real linguistic situation within both institutions, see Williams, 'Language, Law and Politics',115-20. 90 Cardiff: The National Assembly for Wales, July 2002; at http://www.wales.gov.uk/keypubassemculture/ content/welshlanguagereview/final-report-e.pdf. 91 Cardiff: Welsh Assembly Government, July, 2002; also available at http://www.Bavrdd yr-iaith.org.uk/pdf/ adolygiadpolisi/datganiadpolisi-e.pdf. 92 Ibid., 3. 93 Ibid., 4. 94 'Everyone's language'. 95 Available at http://www.wales.gov.uk/subiculture/content/action-plan-e.pdf. 96 In particular, the government has set a number of targets to be met by 2011, including: increasing the numbers of people able to speak Welsh by 5% over the levels which appear in the 2001 census results; arresting the decline in numbers of communities in which Welsh is spoken by at least 70% of the population; increasing the

  • percentage of children receiving Welsh-medium preschool instruction; increasing the percentage of families in which Welsh is the medium of communication; and ensuring that more services are delivered through the medium of Welsh bv public, private and voluntary organizations (para. 2.16). The Assembly government also aims to increase the use and visibility of Welsh in all aspects of daily life (para. 2.17). The Assembly govern- ment has committed itself to setting up a Welsh Language Unit within the government to implement the action plan and monitor and review its impact (paras. 2.18-2.20). It has also allocated an extra GBP 16 million to the Welsh Language Board over the next three years - in 2003-04, the Board's budget will rise to GBP 11.6 million, an increase of over GBP 4.7 million from 2002-03 - to fund a range of initiatives (paras. 2.38-2.40). 97 For example, members of the Bwrdd are not appointed in any way that could be said to be directly reflective of the will of Welsb-speakers; rather, they are appointed by the National Assembly - in effect, the National Assembly government.

  • 98 This school, the first all-Gaelic primary school in Scotland, was opened in August 1999. 99 See Gaelic (Gaidhli�. 100 MacKinnon, 'Neighbours in Persistence...',146. Similar conclusions have been reached by the Ministe- rial Advisory Group on Gaelic, appointed by the minister in the Scottish Executive with responsibility for Gaelic: A Fresh Start for GaeliclCothrom l7r don Ghàidhlig (Edinburgh, May, 2002), at para. 1.11 of the 'National Plan for Gaelic'. The Ministerial Advisory Group estimated that, in order to arrest the decline of Gaelic, intake into Gaelic-medium education would have to be about 2% of all primary students; at present, such intake is only about 0.35%. 101 A very general statutory obligation with respect to Gaelic under Section 1 of the Education (Scotland) Act 1980 has been of limited practical value; a scheme of grants, worth GBP 2.8 million for 2001-02, under the Grants for Gaelic Language Education (Scotland) Regulations 1986 has been of some value in assist- ing local education authorities with start-up costs of Gaelic-medium education. Under the Standards in Scotland's Schools (etc.) Act 2000, local education authorities are required to provide an annual account of the ways in which or the circumstances in whicb they will provide GME and, where they do provide GME, of the ways in which they will seek to develop their provision. This, however, creates no real statutory obli- gations with respect to the expansion of GME nor, crucially, does it create any enforceable entitlement to

  • such education. For an analysis of the limitations of these arrangements in terms of the maintenance of the Gaelic language, see Robert Dunbar, 'Gaidhlig in Scotland - Devising an Appropriate Model for a Chang- ing Linguistic Environment', in Comhdhail Naisiunta na Gaeilge, Combdhdil Idirndisitinta ar Reachtaiocbt Teangallnternational Conference on Language Legislation, 1�+-17 October, 1990, Dublin, 160-183, at 168- 70, and Robert Dunbar, 'Minority Language Rights Regimes: An Analytical Framework, Scotland, and Emerging European Norms', in John M. Kirk and D6na.U P. 0 Baoill (eds.), Linguistic Politics: Language Policies for Northern Ireland the Republic of Ireland and Scotland (Belfast, 2001), 231-54, at 231 et seq. 102 The numbers of broadcast hours are taken from A Review of Aspects of Gaelic Broadcasting, prepared for the Scottish Office Education and Industry Department, Arts and Cultural Heritage Division, by Fraser Pro- duction & Consultancy, May 1998, at 3-9, and Appendix 1. 103 1990, c. 42. 104 For an analysis of the present system of support for Gaelic broadcasting, see Dunbar, 'Minority Language Rights Regimes...', 164-8.

  • 105 See Comunn na Gaidhlig, Inbhe Thearainte dhan GhkidhliglSecure Status for Gaelic (December, 1997), and id., Inbhe Thearainte dhan Ghaidhlig: Draft Brief for a Gaelic Language Act ( June, 1999); see Dunbar, 'Minority Language Rights Regimes...', 172-5, for a discussion of the 1997 proposals. 106 Paras. 1(3), 6 and 7, Gaelic Language (Scotland) Bill, at http://www.scottish.parliament.uk/parl_bus/ legis.html#69. 107 APartnership for a Better Scotland, at http://www.scotland.gov.uk/library5/government/pfbs-OO.asp, 43. 108 Taylor v. Haughney,1982 SCCR. 360; as there are no monolingual Gaelic-speakers, this means that Gaelic will not be heard in Scottish courts. As both the Scottish Land Court and the Crofters' Commission are statutorily required to have one member who speaks Gaelic, this may imply a right to use Gaelic before both of these tribunals: see AC Evans, 'The Use of Gaelic in Court Proceedings', 1982 Scots Law Times, 286-7, at 286.

  • 109 1998, c. 48. 110 Statutory Instrument 1999 No. 1095, The Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999. Art. 3. Schedule, Rules 7.1.1, 7.1.2, and 7.8.1.the likelihood that much Gaelic will be used is, however, small. Gaelic is not permitted in many important types of parliamentary business, sucb as motions, petitions and questions, and it will not be used in legislation. 111 See, for example, Alasdair MacCaluim and Wilson \�IcLeod,'Revitalising Gaelic? A Critical Analysis of the Report of the Tasl;force on Public Funding of Gaelic', October 2001, at http://www.arts.ed.ac.uk/celtic/ poileasaidh/index.html. 112 Edinburgh, May 2002; available at http://www.magog.org.uk/. 113 While the recommendation did not make explicit reference to CRAG proposals, it said that there should be an act which would provide 'secure status'to Gaelic. The term'secure status' has no particular meaning in law; it is simply the form of words used by CNAG to describe their proposals for a language act. References to 'secure status'should, therefore, be understood to mean the concept which was created and promulgated by CNAG.

  • 114 Scots: A linguistic double helix, 39-43. 115 Irishs Facing the future,15-6. See, generally, Liam Andrews, `The very dogs in Belfast will bark in Irish: The Unionist Government and the Irish Language 1921-43', in Aodan Mac Poilin (ed.), The Irish Language in Northern Ireland (Belfast, 1997), 49-94. 116 Submission by Pobal, an umbrella organization representing Irish language bodies in Belfast, to the Com- mittee of Experts on the Charter, The European Charter for Regional or Minority Languages: The Implementa- tion of the Charter with regard to the Irish language July 2001-july 2002 (Belfast, 2002), at 3.

  • 117 Ibid, at 39. 118 Irish. Facing the Future, 15-6, 23, 26, 33-4. 119 For a much more complete discussion of this subject, see Aodan Mac Poilin, Director of the ULTACH Trust, 'The Belfast Agreement and the Irish Language in Northem Ireland' (February, 1999) (unpublished), and 'Language, Identity and Politics in Northern Ireland' (January. 2000) (unpublished). See also 'The Charter and the Belfast Agreement: Implications for Irish in Northern Ireland', and "Ulster Scots -The European Charter/Belfast Agreement', 15(1) Contact Bulletin (\ov.1998) (The European Bureau for Lesser-Used Languages), at 2-3. 120 Mac Poilin,'The Charter and the Belfast Agreement...', at 3.

  • 121 1he North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999, S.I.1999, No. 859, paras. 17-9. 122 See the website of the North/South Language Body for additional information: http://www.northsouthmi nisterialcouncil.org/language.htm. 123 All Ireland Irish language body 'devastated' by 2 million euro cut in funding from Ireland', Eurolang, 20 February, 2003, http://217.136.252.147/webpub/eurolang/moulerez.asp?ID=4104. 124 Education (Northern Ireland) Order 1998, Articles 89(1) and (2), S.I.1998, No. 1759.

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