Hate crime legislation 'should be altered to better protect Gaelic speakers'

He said the proposed Hate Crime Bill should explicitly include a reference to "language" as one of the characteristics protected under law, alongside such traits as race, religion and sexuality.

He said: "I am a speaker of Scottish Gaelic and it is not clear that speakers of Scottish Gaelic, or indeed of other Celtic languages or other languages more generally would necessarily be protected by the legislation as it currently stands."

The Scottish Government said the definition of race used in the Hate Crime Bill – which includes ethnicity – is "wide enough to cover Gaelic speakers".

Prof Dunbar was involved in the development of the Gaelic Language (Scotland) Act 2005 and the creation of BBC Alba, and was a member of Bòrd na Gàidhlig from 2006 to 2012.

In separate evidence submitted to Holyrood's Justice Committee, Bòrd na Gàidhlig recommended that "Gaelic speakers and their importance to Scotland’s diversity is referenced in the Bill, with Gaelic language included as a protected characteristic".

It said that if the "language or ethnicity" is not referenced, "then we would ask that a definition of race including Gaelic speakers be added to the definitions".

The public body, which has responsibility for Gaelic, added: "Whichever is the preferred route to make that recognition, the most important point is that Gaelic speakers are not excluded from the protection afforded by the Bill."

It said it was not aware that Gaelic speakers have been victims of hate crimes, but "prejudice towards the language and its speakers remains". 

The Scottish Government's Hate Crime Bill has been at the centre of a long-running row over freedom of speech, and ministers recently announced part of it will be watered down.

If passed, it will create new offences of "stirring up" hatred and update the characteristics protected in law from hate crimes.

In his independent review of hate crime legislation in Scotland, which preceded the new Bill, retired judge Lord Bracadale did not consider it necessary for Gaelic to be referenced as a separate group or characteristic.

He said there is a "fairly strong argument that Gaelic speaking Gaels belong to an ‘ethnic group’ within the meaning of the current race aggravation". 

Therefore in a case where hostility towards Gaelic speakers did amount to a criminal offence, the Crown could consider prosecuting this as a hate crime.

However Prof Dunbar, who has worked with international organisations such as the Council of Europe, said Lord Bracadale’s views "are by no means conclusive".

In written evidence to the Justice Committee, he said it is "important to note that the courts have not yet had to consider the issue of whether Gaelic speakers would be considered to be an ‘ethnic group’"

He argued that the "most appropriate way of resolving any ambiguity as to whether Gaelic speakers or indeed members of any other linguistic group are protected under the Bill would be to explicitly include reference to ‘language’ as one of the characteristics listed".

Prof Dunbar said: "I trust that in Scotland in 2020 nobody would object to the extension of the protections afforded by the Bill to people based on their language."

He continued: "The inclusion of ‘language’ as a characteristic, free of any necessity to establish the existence of a group and of membership in or association with that group, is much more likely to ensure that all users of a language who suffer as a result of their use of that language are covered."

Elsewhere, Gaelic campaign group Misneachd has also called for additional protection in the legislation for speakers of Gaelic and other minority languages.

In its submission to MSPs, it called for "minority language" to be included as a protected characteristic in the Hate Crime Bill.

A Scottish Government spokeswoman said: “Gaelic is a vital part of Scotland’s cultural identity and we are determined to improve access for people to learn and use the language, working with partners to increase the number of people speaking, learning and using Gaelic in Scotland. 

"Legislation has strengthened the opportunities to use Gaelic with varied public bodies having a duty to produce plans for its use and gave parents the right to ask for Gaelic medium education.

“The definition of race used in the Hate Crime Bill – which includes ethnicity – is wide enough to cover Gaelic speakers. 

"Consequently, both the statutory aggravation and the offence of stirring up hatred against a group of persons will protect those who speak Gaelic.

“As the Bill is scrutinised over the coming months, the Justice Secretary has said that we will listen to, engage, and find common ground with those who want people to be protected from the scourge of hate crime while respecting freedom of expression.”