Is There a Duty to Legislate for Linguistic Minorities?
| Published date | 01 March 2006 |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00354.x |
| Date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 181±98
Is There a Duty to Legislate for Linguistic Minorities?
Robert Dunbar*
In April 2005, the Scottish Parliament passed the Gaelic Language
(Scotland) Act 2005, requiring certain public bodies in Scotland to
provide some services through the medium of Gaelic. This Act was
modelled to a certain degree on similar legislation for Welsh, the
Welsh Language Act 1993. Both Welsh and Gaelic, and to a lesser
extent Irish in Northern Ireland, benefit from a range of other
measures of legislative support. Many other languages are, however,
spoken in the United Kingdom, and their speakers have needs and
expectations. In this article, the extent to which a state is obliged to
legislate for these is assessed. Fundamental principles such as the right
to freedom from discrimination, equal protection of the law, sub-
stantive equality, and the protection and promotion of cultural and
linguistic diversity may argue for legislative intervention and support,
and the provision of such support to linguistic minorities must itself be
non-discriminatory.
INTRODUCTION
The question whether there is a duty to legislate for linguistic minorities
seemed to be answered in the affirmative ± at least in respect of one of
Scotland's linguistic minorities ± by the Scottish Parliament in April 2005,
when it passed the Gaelic Language (Scotland) Act 2005 (the `Gaelic Act')
without a single dissenting vote. The Gaelic Act created a statutory body,
Bo
Árd na Ga
Áidhlig, to develop a national plan for the language, and will
require selected public bodies to prepare and implement Gaelic language
plans in which they specify the services that they will provide to the public
181
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Aberdeen, Taylor Building, Old Aberdeen
AB24 3UB, Scotland
cel052@abdn.ac.uk
The author is a member of the board of Bo
Árd na Ga
Áidhlig and of Seirbhis nam
Meadhanan Ga
Áidhlig (the Gaelic Media Service), but this article expresses his views
alone.
through the medium of Gaelic. The Gaelic Act is not, however, the first piece
of legislation to make provision for Gaelic,
1
and a significant range of
legislative measures have also been taken with respect to the Welsh
language.
2
Indeed, the Gaelic Act is largely modelled on the Welsh Lan-
guage Act 1993 (the `Welsh Act'), which also creates a language develop-
ment body and requires certain public bodies to prepare and implement
language schemes under which they will treat Welsh and English equally.
Notwithstanding the overwhelming dominance of English, Britain is a
country of considerable linguistic diversity, and one in which speakers of
minority languages have a complex array of linguistic needs and desires.
From this perspective, existing legislative provision, largely for the benefit
of Welsh and Gaelic only, raises a number of questions, some of which I
shall explore in this article.
I shall not discuss the detailed content of the Gaelic Act
3
or the wider
legislative framework in support of Gaelic or Welsh. Rather, I shall consider
the bases on which legislative provision for minority languages could be
justified and the principles upon which such provision should be based. In
doing so, I shall consider both the United Kingdom's international legal
obligations and relevant normative principles. I shall give particular con-
sideration to the broader equality issues that are implicated in any discussion
of language, and in particular, of minority languages. I shall argue that
legislative measures can be justified on a number of grounds, such as pro-
tection against discrimination, promotion of equality of access, promotion of
substantive equality, and promotion of cultural diversity. However, the
application of these principles has different implications for the sort of
legislative measures which should be taken, depending on the circumstances
of the speakers of the minority language in question. Moreover, the
differential treatment of various minority languages used in Britain itself
raises equality considerations. To illuminate the discussion of these various
issues, I begin with a brief consideration of the complex linguistic picture
which actually exists in Britain.
4
MINORITY LANGUAGES IN BRITAIN
Several languages other than English have been spoken in Britain for many
centuries and could be said to be `indigenous' or `autochthonous' languages.
These are Celtic languages such as Welsh and Gaelic, as well as Irish,
182
1 See R. Dunbar, `Language Legislation and Language Rights in the United Kingdom'
(2004) 2 European Yearbook of Minority Issues 95.
2 id.
3 See R. Dunbar, `The Gaelic Language (Scotland) Act' (2005) 9 Edinburgh Law Rev.
466.
4 See, further, G. Price (ed.), Languages in Britain and Ireland (2000).
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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