Do you consider it necessary to continue to have a Gaelic speaker as one of the members of the Land Court?
Section 1(5) of the Scottish Land Court Act 1993 is contains a statutory requirement for the Land Court to have a Gaelic-speaking member. In drafting question 5, the Scottish Government sought views on whether this was still a necessary requirement. It should be noted that the Government was not suggesting that anyone should lose the right to conduct their case in Gaelic in the Land Court, though it is possible that some respondents misunderstood that point. This issue was particularly concerning for many of the respondents who are crofters or have associations with crofting. Twelve of the respondents' only interest in the consultation was this question. Some only answered in Gaelic.
A slight majority (52.2%) of those who answered this question considered it essential to have a Gaelic-speaking member of the Land Court.
Those who consider it necessary to continue to have a Gaelic speaker as one of the members of the Land Court
Many of those who thought it essential that one of the members of the Land Court must be a Gaelic speaker were from the crofting community. There were a number of arguments put forward. Firstly, it was noted that for many crofters, Gaelic was the first language. For example, Elma NicÌomhair wrote:
Tha Gàidhlig riatanach anns an t-saoghal chroitearachd. 'S e a' chiad chanan de iomadach chroiteraran agus dh'fheumadh an aithnicheadh seo a bhith aidicheadh. Gun an suidheachadh seo thathar na còraichean chatharra agus daonna againn crèimeadh.
The importance of this point was expanded by James McPherson:
Having and having had a strong connection with native Gaelic speakers I have the impression that their reasoning is in Gaelic and then translate when speaking English. There is no direct translation for many Gaelic phrases and this can give the wrong emphasis to what is being said if the listener has no knowledge of the Gaelic language.
In other words, sometimes an argument can only be properly made in Gaelic and it requires a Gaelic speaker to fully understand the point.
This argument was taken even further by the Crofting Commission and Sine Ghilleasbuig who argued that simply using a translator was an unsatisfactory solution. Their point was that it was important that a person hearing a case not only understood Gaelic, but also understood the law concerning crofting.
A second argument was that a change in statute would be contrary to the
Scottish Government Gaelic Language Plan 2016-2021. This was a point made by the Bòrd na Gàidhlig and others. The Bòrd na Gàidhlig considered that when the requirement for a Gaelic-speaking member of the Land Court was first made in statute in 1912, "Gaelic-speakers had almost no protection in law. The inclusion of this requirement created an opportunity for Gaelic-speakers to use their language of preference in at least one institutional setting of importance to them. The requirement also was an important recognition of the worth of the language and of its Speakers". The argument is that it is important that this respect for the language is not lost. Professor Colin Reid agreed with the point:
"Although sympathetic to the difficulties caused, this is one of the very few areas where there is legal recognition of Gaelic speakers in Scotland and removing this requirement might well be seen as a diminution of respect for the language at a time when official policy is to support it."
Finally, there was support for this point from Alasdair Allan MSP:
"I am afraid that the idea that we don't need to promote Gaelic in this context because there are now fewer Gaelic speakers misses the point of the Government's Gaelic language commitments, which is to increase the number of settings in which Gaelic can be and is used."
A third argument was that there is a close relationship between the Gaelic language, the land, and crofting. For example, one respondent wrote that "[t]his role honours the connection between land and language" and another that "[c]rofting and Gaelic have a symbiotic relationship in areas where both are strongest". Sine Ghilleasbuig agreed with these points:
"Whilst not every crofter in Scotland is a Gaelic speaker, crofting and the Gaelic language are inextricably linked in our nation."
A number of others made similar points which combined this and the previous argument suggesting that at a time when the Scottish Government is trying to revitalise both crofting and Gaelic, it would seem counter-intuitive to remove or weaken this requirement to have a Gaelic-speaking member in the Land Court.
Three respondents noted that there are many young Gaelic-speaking lawyers are currently coming through the universities and the requirement for a Gaelic-speaker in court is important for encouraging more young Gaelic speaking lawyers.
Others recognised the difficulty that will arise when the present Chair of the Land Court retires in the near future as he is the Gaelic-speaking member. For example, the Crofting Commission wrote:
"Whilst a Gaelic speaking member could be seen to limit the number of potential applicants, it is considered that an amalgamated and expanded Court would be able to accommodate one Gaelic speaker. The Gaelic speaking member need not be the chair or one of the legally qualified members."
Professor Colin Reid wondered if the "practical difficulty might be reduced if the bodies were merged and the requirement was for there to a Gaelic speaker among the wider membership of the merged body, opening up a broader range of possible candidates".
Many of these arguments are picked up in a statement made by a respondent who wished to remain anonymous:
"The arguments given in favour of this requirement are narrowly utilitarian (roughly 'Gaelic speakers, by and large, can get by in English'). This overlooks the wider social and political context of maintaining a Gaelic presence on the Land Court. Given the deep historical connections between Gaelic and land rights and the fact that these issues continue to be central to debates around the future of Gaelic-speaking communities, for the Land Court to abandon this requirement would be a highly political action signalling the abandonment of these communities."
Those who consider it not necessary to continue to have a Gaelic speaker as one of the members of the Land Court
Most of the respondents who thought it unnecessary to have a Gaelic-speaking member considered it to be a desirable requirement but not really practical. The responses from the judicial and legal professions mainly expressed this view. This includes the Senators of the College of Justice, the Sheriffs' Association, the Faculty and Inksters Solicitors. For example, the Faculty wrote:
"Whilst we consider it advantageous (even beneficial) for there to be a member of the Land Court who is a Gaelic speaker, we agree that it should not be a compulsory requirement. We agree that such a requirement would, in future, exclude from appointment individuals who are otherwise highly qualified and eminently suitable. Such a disadvantage would not, in our view, be outweighed by the advantage of there being a Gaelic speaking member. Should a party to proceedings before the Land Court express a preference that proceedings take place in Gaelic, an interpreter might be employed.
This was also the view of the Senators of the Court of Justice:
"No. In our view, it is desirable but not necessary. 'Desirable' because a significant number of cases relate to crofts in the Highlands & Islands. 'Not necessary' because an interpreter could be instructed to attend if appropriate. Making it a requirement to have one Gaelic speaker restricts the pool of applicants."
The point about the restriction of the pool of applicants which results from the requirement for a Gaelic-speaker was re-iterated by many of the respondents.
One or two respondents went further with their arguments. Lord McGhie, the previous Chair of the Land Court. He argued that there is no practical benefit in having a requirement for a Gaelic-speaker:
"I think it clear that, in modern practice, any attempt by a member of a court to use Gaelic in course of a case would only be possible if there was an independent Gaelic interpreter there as well. Court hearings are to be held in public and the parties, staff and the public must all be able to follow the proceedings. A judge could never use the skill to engage in what would be a private conversation with a witness or party. This would apply even if the witnesses only wanted to resort to Gaelic to make a short point where they felt more comfortable expressing it in that language. It might be thought that the Court could simply interpret for the benefit of everyone else. But if the Court had to try to convey the flavour in English there would be no good reason why the witnesses could not do so themselves. In any event it would, I think, be necessary to have a translator even in that situation to avoid any risk of the judge appearing to have a private conversation with the witness."
It will be noted that this view disagrees with the view that James McPherson expressed (see above) about sometimes it is not possible to translate some of the nuances of Gaelic in English. It does however raise the problem that there may be a disadvantage to one or other of the parties concerned in a case if they have different first languages.
No view expressed
Whilst not expressing a view on the question, the Scottish Courts and Tribunals Service (SCTS) pointed out that it has formal arrangements for language services which are used routinely in the High Court, sheriff courts and justice of the peace courts.
The Law Society also did not express a view but stated:
"We appreciate the predicament in this regard. We consider that there remains benefit in having a Gaelic-speaking member of the Land Court, particularly in terms of the historical and cultural background of the language which will be important to some parties. It is important to consider this matter in the context of having a modern and diverse Scotland, and existing policies which encourage a diversified country and consider how to support Gaelic culture. We recognise that the requirement may reduce the pool of possible appointees. We note that an amalgamation of the Land Court and Lands Tribunal would open the scope to some extent."