Chapter 1: Support for the Gaelic language
Section 1: Status of the Gaelic language
11.Section 1 of the Act inserts a new section before section 1 of the 2005 Act, providing for the status of the Gaelic language. The statement in subsection (1) that the Gaelic language has official status within Scotland is given legal effect by the provisions of the 2005 Act conferring functions on Bòrd na Gàidhlig, the Scottish Ministers and other persons (relevant public authorities, as defined in section 10 of the 2005 Act) and enactments relating to Gaelic education.
12.The terms “
13.Subsection (3) provides that subsection (1) does not affect the operation of any other enactment (as defined in the Interpretation and Legislative Reform (Scotland) Act 2010) or the status of any other language. For example, this provision does not affect the operation of the Equality Act 2010, modification of which is a reserved matter under the Scotland Act 1998.
Section 2: Functions of Bòrd na Gàidhlig
14.Section 2 of the Act adjusts the functions of Bòrd na Gàidhlig, the public body established by the 2005 Act.
15.Subsection (2)(a) inserts new paragraphs into section 1(2) of the 2005 Act to confer additional functions on Bòrd na Gàidhlig, and repeals the function of monitoring, and reporting to the Scottish Ministers on, the implementation of the European Charter for Regional or Minority Languages dated 5 November 1992 in relation to the Gaelic language. “Gaelic language”, “Gaelic education” and “Gaelic culture” referred to at inserted paragraph (ab) are all defined in section 10 of the 2005 Act.
16.Subsection (2)(b) removes reference to securing the status of Gaelic as an official language from the description of how Bòrd na Gàidhlig’s functions are to be exercised, as the status of the Gaelic language is now dealt with by inserted section A1. It also adjusts the list in section 1(3) of the 2005 Act, which describes how Bòrd na Gàidhlig’s functions are to be exercised, to make reference to areas of linguistic significance, introduced by section 4 of the Act .
17.New subsections (3A) and (3B) are relocated from sections 8(9) and (10) of the 2005 Act, since the remaining provisions of section 8 are being repealed and so it is clearer for these provisions to be understood as part of the functions of Bòrd na Gàidhlig. The reference to section 8(9) in schedule 1 paragraph 11(2) is amended as a result.
18.New subsection (3C) requires Bòrd na Gàidhlig to provide, or procure the provision of, advice, assistance and support to any person in the preparation of a plan for the development or promotion of the Gaelic language, Gaelic education and Gaelic culture in relation to a community in a particular area. A “person” could include an individual or a legal person such as an organisation (whether incorporated or not), by virtue of the definition in schedule 2 of The Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999. The plan could cover any size of area, and any sort of community.
Section 3: Bòrd na Gàidhlig corporate plan
19.Section 3 of the Act amends schedule 1 of the 2005 Act to require Bòrd na Gàidhlig to prepare a corporate plan and submit this to the Scottish Ministers for approval. The inserted paragraph 7A sets out the matters which must be included in the corporate plan and the process by which it will be approved by the Scottish Ministers.
Section 4: Areas of linguistic significance
20.Section 4 of the Act modifies the 2005 Act to insert four new sections.
21.Inserted section 1A sets out the criteria by which an area may be designated as an area of linguistic significance under section 1B.
22.Under subsection (1)(a), an area may be designated if it contains a significant number of people with Gaelic language skills. Gaelic language skills would include being able to speak, read or write Gaelic, or being able to understand spoken Gaelic, at any level of fluency. Under subsection (2), a “significant number” is taken to be 20% of the area’s population. This could be established for example by looking at census figures.
23.Under subsection (1)(b), an area which does not contain a significant number of people with Gaelic language skills may still be designated if it is historically connected with the use of Gaelic (for example because there have been a significant number of people with Gaelic language skills in the past), it is one in which teaching and learning by means of the Gaelic language is provided (for example, through the provision of Gaelic medium education by the education authority for that area) or it is one in which significant activity relating to the Gaelic language or Gaelic culture takes place (for example, the area regularly hosts a significant music festival including music by Gaelic speaking artists).
24.An “area” does not have to be a local authority area: it could be a smaller area forming part of a local authority area.
25.Inserted section 1B sets out the process for a local authority to designate all or part of its area as an area of linguistic significance, if it considers that the area falls within the description set out in section 1A(1).
26.A local authority must actively consider whether all or part of its area meets the criterion of at least 20% of the population having Gaelic language skills: this consideration must happen within 1 year of the section coming into force, and subsequently every 5 years. If the local authority considers that the criteria is met, it must consider submitting a designation in respect of that area. If it decides not to do so, the local authority must publicise that decision and its reasons for making it.
27.The local authority must consult interested persons and publicise the proposed designation before submitting it to the Scottish Ministers for approval. A designation may be varied or revoked by the local authority, with such variation or revocation being subject to the same process of consultation, publication and submission for approval.
28.The Scottish Ministers may give guidance to local authorities relating to their functions under this section and a local authority must have regard to such guidance. Guidance under this section may in particular relate to how to determine which areas may be designated and factors to be taken into account in determining whether an area contains more than 20% of the population with Gaelic language skills. This could, for example, provide examples of when census output areas or electoral wards might be appropriately considered for designation, or set out more detail on what having Gaelic language skills means, with the potential for this guidance to change over time as circumstances develop. Guidance could also, for example, set out more detail about the kinds of activity which would result in an area being capable of designation under section 1A(1)(b).
29.Inserted section 1C allows Bòrd na Gàidhlig to request a local authority to consider making a designation as an area of linguistic significance. The Bòrd must make such a request if the Bòrd considers that there is evidence of demand for designation by persons residing in the local authority’s area. The local authority must publicise its decision (and the reasons for making the decision) if it decides not to submit a proposed designation as a result of the request. The Scottish Ministers may give guidance to the Bòrd and local authorities about their functions relating to such requests.
30.Inserted section 1D allows the Scottish Ministers to intervene if a local authority decides not to submit a designation when it considers that 20% of an area’s population has Gaelic language skills, or when Bòrd na Gàidhlig has made a request for it to consider making a designation. The Scottish Ministers may require the local authority to reconsider its decision. The local authority must reconsider the decision within 3 months and then either submit a proposed designation or confirm its decision not to do so. If it confirms its decision not to do so, it must notify the Scottish Ministers of the reasons for that.
31.Section 4 also amends section 3(4) of the 2005 Act so that a relevant public authority (as defined in section 10 of the 2005 Act) must set out the measures to be taken in relation to the exercise of its functions in an area of linguistic significance in its Gaelic language plan. Section 4 also expands section 3(8) of the 2005 Act (which sets out more detail on the regulation-making power in section 3(7)) to allow the Scottish Ministers to make further provision about the required content of Gaelic language plans in respect of areas of linguistic significance.
Section 5: National Gaelic language strategy
32.Section 5 of the Act replaces the National Gaelic language plan prepared by Bòrd na Gàidhlig under section 2 of the 2005 Act with a national Gaelic language strategy to be prepared by the Scottish Ministers.
33.Inserted section 2A sets out the required content of the national Gaelic language strategy, publication requirements and timescales for its preparation and review and revision. In particular, in preparing the strategy the Scottish Ministers must have regard to the principle that the Gaelic and English languages should be accorded equal respect.
34.The strategy must impose targets on the Scottish Ministers in relation to promoting, facilitating and supporting the use of the Gaelic language. Subsection (3) sets out some illustrative examples of matters which may be included in targets. Whilst the strategy cannot impose targets on other persons, relevant public authorities will need to have regard to the targets as part of the strategy when exercising its functions (see inserted section 2B(2)) and preparing a Gaelic language plan (see section 3(5)(aa) inserted by section 9(2)(b)(ii) of the Act).
35.Inserted section 2B requires that the Scottish Ministers must have regard to the strategy when making policies and exercising their functions, and that a relevant public authority must have regard to it in exercising the authority’s functions.
36.Section 2 of the 2005 Act is repealed. Section 2 contains the requirements for the preparation of a national Gaelic language plan. Because it does not contain any provision as to the effect of that plan, any plan prepared will continue in effect for the period it was prepared for, notwithstanding the repeal of section 2.
Section 6: Gaelic language standards
37.Section 6 of the Act inserts a new section 2C into the 2005 Act, giving the Scottish Ministers a power to make regulations to specify standards and requirements relating to promoting, facilitating and supporting the use of the Gaelic language which are to apply to relevant public authorities in exercising their functions.
38.Regulations under section 2C may in particular make provision about the preparation of publications and provision of information, make provision about how functions are to be exercised in areas of linguistic significance and otherwise make different provision for different areas (including different parts of the area in which the authority exercises its functions, for example different parts of a local authority area). Regulations which make provision about how functions are to be exercised in areas of linguistic significance may in particular include provision about the exercise of functions relating to the matters listed in section 2C(3).
39.Regulations under section 2C are subject to the affirmative procedure and the Scottish Ministers must publish a draft of the standards and requirements to be specified by the regulations and consult interested parties on those draft standards and requirements before laying a draft of the regulations before the Scottish Parliament. The Scottish Ministers must publish the results of that consultation.
40.A draft instrument containing the first set of regulations must be laid before the Scottish Parliament within 1 year of the section coming into force. If this is approved by the Scottish Parliament, the Scottish Ministers must make the regulations.
Section 7: Functions of relevant public authorities
41.Section 7 of the Act inserts three new sections into the 2005 Act.
42.Inserted section 2D requires a relevant public authority to have regard to promoting, facilitating and supporting the use of the Gaelic language, and developing and encouraging Gaelic culture, in exercising its functions. “
43.Inserted section 2E gives the Scottish Ministers a power to give guidance to relevant public authorities relating to their duties under inserted section 2D. In preparing the guidance, the Scottish Ministers must have regard to the principle that the Gaelic and English languages should be accorded equal respect. The Scottish Ministers must consult interested parties and publish the results of that consultation.
44.Inserted section 2F gives the Scottish Ministers a power to give directions to relevant public authorities. The power in section 2F could be used, for example, to direct a relevant public authority to include Gaelic language in its branding or signage. The Scottish Ministers must consult with a relevant public authority before giving a direction to that authority.
Section 8: Reporting on national Gaelic language strategy, standards and duties
45.Section 8 of the Act inserts a new section 2G into the 2005 Act, providing that Bòrd na Gàidhlig must prepare and publish a report every 2 years about the progress made towards meeting the objectives and targets set out in the national Gaelic language strategy published under section 2A (inserted by section 5 of the Act).
46.Section 8 also inserts section 2H into the 2005 Act, requiring Bòrd na Gàidhlig to prepare and publish reports about the compliance by relevant public authorities (either generally or specifically) with their duty to have regard to the Gaelic language strategy, their duty to comply with standards and requirements specified in regulations under section 2C(1) and the duties imposed by section 2D, and lay these reports before the Scottish Parliament.
Section 9: Gaelic language plans
47.Section 9 of the Act makes various changes to section 3 of the 2005 Act on Gaelic language plans, to take account of the new national Gaelic language strategy and to adjust the process for preparation of Gaelic language plans. A relevant public authority will be required to have regard to the principle that the Gaelic and English languages are to be accorded equal respect when preparing its Gaelic language plan.
48.Section 4 of the 2005 Act is modified to adjust various timescales and to express these consistently in terms of periods of time.
49.Section 5 of the 2005 Act is modified to require a relevant public authority to provide Bòrd na Gàidhlig with any additional information required following submission of its Gaelic language plan for approval: for example, this could include any background figures or evidence the authority has used in formulating its Gaelic language plan. Section 5(5)(c) is replaced: the new paragraph (c) sets out that the duty to refer the matter to the Scottish Ministers arises on the later of the expiry of two months of the authority advising that modifications are not agreed, or the date that Bòrd na Gàidhlig considers that it will not be able to approve the plan. Bòrd na Gàidhlig can continue to discuss the plan with the authority and need only refer it to the Scottish Ministers once it considers that it will not be able to approve the plan either as originally submitted or with agreed modifications. If an authority fails to respond at all to a request for modifications to its plan, new subsection (5A) provides that Bòrd na Gàidhlig may either approve the plan as originally submitted or refer the matter to the Scottish Ministers. Otherwise, the Gaelic language plan could simply be left unfinished if an authority did not respond to a request for modifications.
50.Section 6 of the 2005 Act is also modified so that a relevant public authority must proactively report to Bòrd na Gàidhlig on the implementation of its Gaelic language plan within 15 months of the plan being approved, and every 12 months thereafter. Those reports may be published by Bòrd na Gàidhlig. The Bòrd must also report to the Scottish Ministers where it considers that a relevant public authority is failing to implement adequately measures in its Gaelic language plan and must publish those reports. The Scottish Ministers must lay those reports before the Scottish Parliament. The Scottish Ministers must direct the authority to implement any or all of the measures in its Gaelic language plan if they accept the Bòrd’s conclusion that the authority is failing to implement these adequately and they consider it necessary or expedient to make such a direction.
51.Section 9 also inserts a new section 7A to the 2005 Act allowing the Scottish Ministers to give guidance to relevant public authorities on Gaelic language plans. This replaces the guidance powers of Bòrd na Gàidhlig in section 8 of the 2005 Act, which is repealed. Section 7A is itself modified by section 16(5) of the Act, which adds provision for the regulations relating to education inserted by that section.
Section 10: Financial assistance for the promotion etc. of the Gaelic language
52.Section 10 inserts a new section 7B into the 2005 Act, creating a power for the Scottish Ministers to give financial assistance, including grants and loans, to any person for the purposes of promoting, facilitating and supporting the use of the Gaelic language, on such conditions as the Scottish Ministers think fit.
Section 11: Scottish Ministers’ powers relating to research etc.
53.Section 11 inserts a new section 7C into the 2005 Act, creating a power for the Scottish Ministers to conduct research and inquiries, collect data and publish statistics, provide training, or encourage or assist other persons to do those things.
Section 12: Power to enforce duties of relevant public authorities
54.Section 12 inserts a new section 9A into the 2005 Act. This gives the Scottish Ministers a power to make an order (whether in response to a complaint by any person, or otherwise) declaring a public authority to be default in respect of any duty under the 2005 Act and requiring it to discharge that duty, with further powers for the Scottish Ministers to make arrangements for discharging the duty, and for the Court of Session to order specific performance of the duty by application of the Lord Advocate.
Section 13: Interpretation: meaning of relevant public authority
55.Section 13 modifies section 10 of the 2005 Act to add the bodies listed in section 13(2)(b) to the definition of relevant public authority.
Section 14: Land rights and responsibilities statement: regard to be had to supporting Gaelic
56.Under section 1 of the Land Reform (Scotland) Act 2016, the Scottish Ministers must prepare and publish a land rights and responsibilities statement: a statement of principles for land rights and responsibilities in Scotland. Section 14 of the Act adds the desirability of promoting, facilitating and supporting the Gaelic language to the list of matters to which the Scottish Ministers must have regard in preparing the statement.
