Scottish Finance Secretary, Kate Forbes, made a controversial proposal in January this year suggesting that housing developments where residents must speak Gaelic, or commit to learning it, could be introduced as part of a package of measures to help to save the language.
It is currently predicted that community usage of Gaelic will die out within a decade if no action is taken to increase the number of speakers, but is a designated housing allocation for Gaelic speakers a lawful means of boosting Gaelic use? The proposal certainly drew criticism due to perceived discrimination against non-Gaelic speakers.
Is the proposed policy discrimination?
Housing associations and local authorities are bound by the Equality Act 2010 and cannot discriminate against potential tenants on the grounds of protected characteristics. Language is not of itself a protected characteristic, but restricting social housing to Gaelic speakers only may give rise to an indirect discrimination claim as it favours native Scots.
Positive discrimination of this type can, however, be justified if it is shown to be a proportionate means of achieving a legitimate aim.
Preserving the Gaelic language as part of Scotland’s cultural identity is a stated aim of the Scottish Government. On the basis that Gaelic use is dwindling in Highlands and Islands communities, protecting its continued existence will require steps to expand the number of speakers and prevent the language from becoming obsolete. This may be a legitimate aim.
Is the proposed policy proportionate?
As explained, any action taken to achieve this aim through the allocation of social housing must be proportionate.
Allocating entire housing estates exclusively for Gaelic speakers is unlikely to be a proportionate means of promoting use of the language as prioritising Gaelic speakers to the detriment any of the reasonable preference groups would go too far. On the other hand, allocating a percentage of housing in new developments in the Highlands and Islands for occupation by Gaelic speakers or learners may be a proportionate means of achieving the cultural aim of language preservation.
The Irish model
Looking across the Irish Sea, Galway County Council has had restrictions regarding the Irish language in its Housing Allocation Scheme for years. This scheme is not without its difficulties, but its operation could provide a model for Scots to follow in a bid to preserve and promote Gaelic speaking without illegal discrimination or denying housing to those in need.
Will it happen?
The 2011 census recorded just 1.7% of the population as speaking the language. Figures from this year's census will reveal how levels of Gaelic usage are faring in 2021 and the trend should help to inform the urgency of any actions to be taken to save the Gaelic language.
It is clear is that housing allocation could only ever be one part of a wider package to expand the use of Scotland's native tongue, so we will have to wait and see what proposals are forthcoming in pursuit of this aim.
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