The Scottish Languages Bill: prospects for strengthening and challenges for implementation
The Scottish Languages Bill now going through the Scottish Parliament will be the most important language legislation for Gaelic in almost twenty years and the first ever for Scots. The bill as introduced is a cautious and incrementalist measure that should bring modest improvements over time as the various strategies, standards, regulations and guidance documents that it authorises come into effect. But the obligations it imposes are framed in very general terms, it creates no concrete language rights, and there will be no independent language commissioner to ensure effective implementation and compliance.
The bill consists mainly of a series of amendments to the Gaelic Language (Scotland) Act 2005, the Education (Scotland) Act 2016 and other acts relating to education. It has attracted little attention up to now, whether in conventional or social media, in Gaelic circles or the English-language mainstream. This will probably change somewhat now that the Scottish Parliament has begun its scrutiny of the bill, and the parliamentary process may well bring about some tightening and strengthening to the legislation.
Parliamentary consideration of the bill will also provide an opportunity for wider reflection on Gaelic policy and Scottish language policy more generally, but there is some risk of confusion and distraction here. Language legislation plays a distinct role in language policy. By its nature, language legislation involves establishing high-level, overarching principles and creating structures, mechanisms or procedures that set the overall framework for policy over the medium and long term. It cannot deal with micro-level matters and crucial operational issues such as funding and budgets. Much public discussion of Gaelic in recent years has connected the precarious position of the language to pressing socio-economic challenges facing rural and island communities in terms of housing, infrastructure, connectivity and employment. While these issues are obviously extremely important, it is difficult for language legislation to address them directly.
There has been widespread concern for several years in Gaelic circles that Gaelic policy has not achieved the right balance between formal structures and ‘top-down’ initiatives as opposed to grass-roots, community-level development work. The new ‘areas of linguistic significance’ system (discussed below) may help address these concerns to some extent, even if the overall effect of the bill is to add additional layers of formal regulation and to increase administrative complexity.
Bòrd na Gàidhlig and the Scottish Government
The main outcomes of the bill are to move certain powers from the language quango Bòrd na Gàidhlig to the Scottish Government, to broaden the Government’s and public authorities’ responsibilities in relation to Gaelic (especially in terms of education) and to allow for the designation of new ‘areas of linguistic significance’. Both Gaelic and Scots will now have official status, but this declaration has no concrete practical effect and is essentially symbolic.
Where the Gaelic Language Act of 2005 required Bòrd na Gàidhlig to prepare a National Gaelic Language Plan every five years, the new bill passes this responsibility to the Scottish Government and gives it the new name of ‘national Gaelic language strategy’. This is a welcome move, as the strategy will have more weight when issued by the Government than a small public body with very limited powers. It is disappointing, though, that this change will probably not take effect until 2029, as a new National Gaelic Language Plan was launched at the end of 2023 and will run for a full five years. If the change is worth making, it should be done sooner.
The key test will be whether these new national Gaelic language strategies prove to be bolder or more imaginative than the current and previous National Gaelic Language Plans, which have become progressively less ambitious, with fewer specific targets. The Welsh Government’s national plan for Welsh published in 2017 announced a headline goal of recording one million Welsh speakers by 2050, roughly a 90% increase. A comparable ambition for Scotland might be to reach 100,000 Gaelic speakers, up from the current 57,000. To achieve this would require resolute and coordinated action over time, with a strength and breadth of commitment significantly greater than anything seen up to now.
The bill also authorises – but does not require – the Scottish Government to issue several different kinds of standards, regulations and guidance relating to Gaelic, some of them applicable to all public bodies and some only to education authorities. But it is unclear whether and when these documents will appear and more importantly, what they will actually require of the bodies in question.
It seems unlikely that the Gaelic standards will look much like those adopted for Welsh under the Welsh Language (Wales) Measure 2011, which are highly specific and regulate the activities of public bodies in considerable detail. In relation to service delivery, for example, the Welsh regulations set out 41 different standards that require public bodies to operate bilingually in connection with correspondence, telephone calls, meetings, public events, publicity and advertising, websites, online services and social media and corporate identity. No public body in Scotland, even in the Western Isles, currently provides this level of bilingual service, and for many it would be almost impossible to do so. The Gaelic language plans approved under the 2005 Act often involve almost no service provision at all, and thus do not provide a solid foundation that might be built upon.
The bill also imposes broad duties on the Scottish Government and public bodies in relation to Gaelic, but these are phrased in very general terms which would make it difficult to demonstrate that they had not been followed. For example, the Government must ‘have regard’ to the national Gaelic language strategy in making policies and in exercising its functions more generally, as must public bodies in exercising their functions. Even weaker is the duty of public bodies to ‘have regard to the desirability of’ promoting and supporting Gaelic language and culture. It would be more useful to require the Government and local authorities to give effect to the principle of ‘equal respect’ for Gaelic and English; in the bill as introduced, only Bòrd na Gàidhlig must do so, when it provides assistance to public bodies.
Enforcement and the lack of a language commissioner
Another key requirement of the 2005 Act is that public bodies must prepare Gaelic language plans if notified to do so by Bòrd na Gàidhlig. Approximately 60 bodies now have such plans, including almost all local authorities. The new bill proposes to continue with the current system by which Bòrd na Gàidhlig is given an uncomfortable mixture of roles, expected both to work with public authorities in shaping their Gaelic language plans and then to monitor and enforce them. The main difference is that the guidance on these language plans is now to be issued by the Government rather than the Bòrd. This will increase the status of the guidance, but there can be no guarantee that its terms will be any more stringent. Many of the plans that have been approved so far are minimal and have had relatively little impact.
Under the 2005 Act, the Bòrd’s only power involving enforcement is the ability to report failures to implement language plans to the Government to take enforcement action. The Government may then ‘direct the authority in question to implement any or all of the measures in its Gaelic language plan’. In practice, however, this direction power has never been used. The Bill adjusts this system slightly by giving the Bòrd the power to report compliance failures to the Scottish Parliament – still an underwhelming sanction – and giving the Government the power to issue four different kinds of binding directions to public bodies (some of them specifically to education authorities). However, the Policy Memorandum prepared in connection with the Bill notes that although ‘the direction making power is an important lever in the overall structure’, ‘it would […] be intended to be used infrequently and as a last resort’.
In recent years, minority languages in many different jurisdictions, including Wales, Ireland and now Northern Ireland, have benefited from a language commissioner – an independent executive officer charged with oversight and enforcement of language legislation and other obligations on the authorities. But proposals for a Gaelic language commissioner have been refused by the Scottish Government. It may be that the idea was rejected not because of any actual policy concerns relating to Gaelic but because there is a perception in some quarters that Scotland already has enough commissioners (eight at present, with a further six proposed). The Scottish Parliament is currently conducting an investigation into this issue.
An independent commissioner could serve as a voice for the Gaelic community confronted with an increasingly complex and bureaucratic policy structure. On the other hand, effective enforcement will not be possible unless obligations and rights are set out clearly and concretely in the legislation, regulations and guidance.
‘Areas of linguistic significance’
The most innovative section of the bill is a new system by which particular parts of the country can be designated as ‘areas of linguistic significance’. This has been adopted in place of a problematic earlier proposal to establish a ‘Gàidhealtachd’, some kind of geographically demarcated Gaelic area, and seeks to address the weakening position of Gaelic in traditional rural communities alongside the perceived need to support Gaelic development across Scotland, especially in urban areas with substantial numbers of Gaelic speakers. There are a number of difficulties with the system set out in the bill, however.
First, the definition of areas that may be eligible for this designation is very expansive. It is primarily aimed at areas with a relatively high density of people with Gaelic skills, but the threshold is set at only 20% (and this figure includes those who can only read, write or understand Gaelic but not actually speak it). Barely a quarter of those with Gaelic skills live in such areas, the overwhelming majority of them in the Western Isles and Skye. But the term ‘areas of linguistic significance’ also includes other places with lower density which are ‘historically connected with the use of Gaelic’, ‘in which teaching and learning by means of the Gaelic language is provided’, or ‘in which significant activity relating to the Gaelic language or Gaelic culture takes place’. This could potentially cover pretty much all of Scotland, although it would probably be best suited to cities such as Inverness, Glasgow and Edinburgh or towns like Oban or Fort William. This element of the bill is important; as the Policy Memorandum expresses it, ‘the preferred policy priority was that Gaelic was a language for all of Scotland and an approach should be taken that supported Gaelic both in urban environments and in island communities’.
Second, the identification of potential ‘areas of linguistic significance’ is left to local authorities, whose application must then be approved by the Scottish Government. It is not at all clear why this approach has been recommended. Local authorities have not had a role in strategic planning for Gaelic up to now, and few of them can be said to have demonstrated much understanding or energy in relation to Gaelic.
Third and most important, it is not clear what the consequences of designating a locality as an ‘area of linguistic significance’ would be – what obligations and/or benefits might follow. Those who have pushed for greater support for rural Gaelic communities have mainly been concerned with securing additional funding, but matters of resourcing will inevitably depend on the vagaries of policy decisions over time. Indeed, funding could be increased immediately without any need for additional legislation, although this is most unlikely to happen in the current fiscal climate. A particular risk is that making a designation could in effect create unfunded obligations on the part of local authorities; this would be a powerful disincentive to engage with the process. It is a matter for concern that the Government’s Financial Memorandum accompanying the bill states that ‘no additional spend is anticipated’ in connection with the ‘areas of linguistic significance’ system. Proper resourcing would also be essential to ensure that local groups are not overly dependent on unsupported volunteers, which can lead to instability, burnout and other problems.
The ‘areas of linguistic significance’ system appears to draw inspiration from recent policy proposals in Wales and from the Gaeltacht Act 2012 in Ireland, which establishes a system of Gaeltacht Language Planning Areas, ‘Gaeltacht Service Towns’ and designated ‘Irish Language Networks’ outside the Gaeltacht. A designated local organisation in each of these areas, towns or network communities must prepare and implement a language plan. Language plans have now been approved in 26 local language planning areas in the Gaeltacht, two Gaeltacht Service Towns and five Irish Language Networks. Each has a development budget and a dedicated language planning officer, but these arrangements are not commanded by the legislation itself.
The new National Gaelic Language Plan 2023-28 states that ‘Community Gaelic Plans will be developed for 3 key Gaelic Communities with support and Guidance prepared and available for other communities by 2028’, but no more details are given, and it is not clear how this undertaking will articulate with the new statutory ‘areas of linguistic significance’ system.
The bill imposes broad new duties on the Scottish Government and education authorities to ‘promote, facilitate and support’ Gaelic-medium education (GME) and Gaelic learners’ education. In addition, education authorities will be required to make provision for Gaelic as part of their general duty to secure ‘adequate and efficient provision of school education’. These obligations will be clarified in more detailed regulations and guidance.
These changes are by no means insignificant, but it would probably be optimistic to expect that the bill will bring about dramatic change in the position of Gaelic in the Scottish education system. It is worth remembering how minimal the current provision is. Only 0.8% of Scottish school pupils receive GME and only 0.9% receive Gaelic learners’ education. 96% of Scottish primary schools and 90% of secondary schools do not offer Gaelic, and a third of local authorities make no provision for Gaelic in any of their schools. With the new bill, how different would things look in, say, ten years’ time?
Crucially, the bill does not create a enforceable right to GME, a long-standing demand of Gaelic campaigners. In Canada, by comparison, there is a constitutional right to publicly funded English or French-medium education ‘when numbers warrant’, which may extend to having a dedicated English- or French-medium school.
The standard argument against establishing such a right to GME is that it would be impossible to implement given the shortage of Gaelic teachers. But there has never been a coordinated, high-level effort at workforce planning and development that was calculated to transform this situation. Gaelic education has never really been prioritised by the Government, by local authorities or by teacher education providers, but the ‘stick’ of an enforceable right could serve to focus minds.
Instead of a clear right, the Education (Scotland) Act 2016 created a fairly cumbersome two-stage process that local authorities must follow when deciding if there is sufficient demand to establish Gaelic-medium primary education. The new bill will now extend this to nursery education. Crucially, though, this will not mean that all children will be legally entitled to a place in a Gaelic-medium nursery, simply that some provision must be established in the area if appropriate demand is evidenced.
The most pressing issues concerning GME relate to areas where some provision is already in place, not where parents are seeking to have it established in the first place. In Glasgow, the council has imposed a cap on places in primary GME, causing dozens of children to be turned away each year. In Oban, the council has refused to establish a dedicated Gaelic school despite clear demand from parents, and in Edinburgh the council has failed to find a suitable site for a Gaelic secondary school and, in consequence, declined to establish a badly needed second Gaelic primary. The bill as submitted would not do anything to resolve difficulties of this kind.
The Policy Memorandum suggests that the Government prepared several significant amendments but chose not to include them in the bill as submitted. These relate to important matters such as ‘provision for establishing stand-alone Gaelic schools or simplifying the process whereby parents can request GME for their children’. The Government proposes instead that ‘these issues will be dealt with through the Gaelic language strategy and standards’, but it would be preferable to present these issues for public debate now and have them set out clearly in the Act itself.
Provision for Scots
The part of the bill dealing with Scots is significant, if only because there has been no legislative provision for the language at all up to now, and relatively little policy support of any kind. The Scottish Government will be required to prepare a Scots language strategy and the Government and other public authorities must have regard to the Scots language strategy in exercising their functions. The Government is also authorised to give guidance to relevant public authorities relating to promoting, facilitating and supporting the use of the Scots language and developing and encouraging Scots culture. Both the Government and education authorities are required to promote, facilitate and support Scots language education in schools. Finally, the Government is authorised to issue regulations and give guidance to education authorities in relation to Scots language education.
These provisions in the bill track those for Gaelic to a considerable extent, but the overall policy framework is much less robust. Most obviously, no agency comparable to Bòrd na Gàidhlig is to be established, no system of ‘areas of linguistic significance’ is proposed, there is no requirement for public bodies to prepare Scots language plans or for education authorities to provide Scots-medium education (which has never been offered anywhere in Scotland), and no enforcement powers are specified. It took decades for the Gaelic policy infrastructure to be built, however, and the current bill can thus be understood as an important foundational measure.
The status of British Sign Language
It is is surprising that Scotland’s other autochthonous minority language, British Sign Language has not been mentioned in the bill, particularly given that it already has a measure of official status by virtue of the British Sign Language (Scotland) Act 2015, which requires the Scottish Government to prepare a National BSL Plan and various public bodies to prepare their own BSL plans. It would presumably not be difficult to add BSL to the official languages mentioned in the Act on a similar basis to Gaelic and Scots.
Provision for other community languages in Scotland
The SNP manifesto for the 2021 Scottish Parliament election indicated that the Scottish Languages Bill would not only deal with Gaelic and Scots but also ‘recognise […] that Scotland is a multilingual society’. But the Bill gives no attention to other languages spoken in Scotland, most notably Polish, Urdu, Punjabi and Chinese languages. It is not obvious that legislation is an important priority in relation to these languages; current provision, most importantly in relation to education, is minimal but legislation may not be the answer at this stage. Nevertheless, it would be appropriate for the Government to move forward with this manifesto undertaking with a major policy review and a clear commitment to improve provision and support.
The Scottish Languages Bill provides an important opportunity for focused assessment of language policy in Scotland, especially in relation to Gaelic. As the forthcoming act will serve as a foundation for policy for many years to come, it is important that the bill receives close and careful scrutiny to ensure it is as strong and effective as possible. But language legislation is only part of the overall policy framework, and action is needed on multiple levels and on multiple fronts.