Mind your language when you get to court
The preservation of minority languages is a good idea in principle, but it makes practical sense to use English – not Gaelic – says Andrew Stevenson
I always struggled to understand my great auntie Gertie. Born before the First World War in working-class Aberdeen, not merely did she speak with a strong accent, with curious intonation, she deployed so many non-English words, such as “fit like, loons and quines?” that in essence she used a different language, sometimes known as Doric. Further, she softened her speaking manner for my benefit. With other Doric speakers one would hear a language which could have been Pictish.
I was put in mind of Gertie on reading that the Scottish Parliament has passed the Scottish Languages Act 2025. This provides, inter alia, that the languages Gaelic and Scots have an official status in Scotland. Entering into the spirit of this declaration, the Parliament website tells us that the Bill (as it was until June) would, “alloo Scottish Ministers tae pit oot guidance and set staunards” regarding schools. The Act does not mention the courts as such but it is clearly the kind of enabling legislation which is designed to facilitate other measures, including the use of different languages in public arenas.
Preservation of minority languages is a good idea in principle. We would be culturally poorer if everyone, such as Gertie, could speak only standard English. However, it does make practical sense to retain that language for exclusive use in the Scottish courts.
Already, there is scope for misunderstanding, even with the use of vernacular English. The Scottish witness who heard a visitor’s knock reported the event as “There was a chap at the door” only to be met by learned counsel with the question “Who was this chap?” Equally, there is the story that the bottle of “ginger beer” which famously featured in the official report of Donoghue v Stevenson actually contained “ginger” (i.e. a generic term for many types of effervescent non-alcoholic beverages) as well as a snail.
There is the notion that litigants should be free to use such languages as they wish. Whilst that may be reasonable in an arbitration, as Lord Reed explained in UNISON v Lord Chancellor [2017] UKSC 51, bringing a court claim is not “a purely private activity” and the outcomes of cases form the basis on which legal advice is provided, all for the benefit of society. Proceedings need to be comprehensible to the public, not merely the participants in it.
True, one can use interpreters and translators, as happens in European cases, but this all costs money. The Sheriff Appeal Court rules specifically allow the use of Gaelic there where the sheriff has allowed that language to be used in the first instance proceedings – such as the trial that took place in Stornoway about ten years ago – but that “an interpreter is to be provided by the Court”. Yet the justice system is already under-resourced. The Government ought to be concentrating its attention on facilitating access to justice through providing a properly funded legal aid scheme rather than paying interpreters. Of course, in civil proceedings these translation costs are borne by the parties. It all seems like an extravagance.
Although the use of Gaelic in courts is potentially culturally divisive here the issue is nowhere close to possessing the sensitivity that prevails across the Irish Sea. The Identity and Language (Northern Ireland) Act 2022 mirrors in some respects our 2024 Act but also repeals the Administration of Justice (Language) Act 1737 which penalised the use in court of languages other than English.
Andrew Stevenson is Secretary, Scottish Law Agents Society
Comments
Want to join the conversation? Please or to comment on this article.