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A Submission to the Disability Rights Commission by the UK Council on Deafness
3rd October 2000
Contents
Preface
Summary of recommendations
Appendices:
UKCoD member organisations supporting this submission
UKCoD member organisations
The European Charter for Regional or Minority Languages
Rebuttal of government's legal advice on recognition under the European Charter
Preface
This paper represents the views of the UK Council on Deafness (UKCoD) on official recognition of British Sign Language (BSL).
The paper makes the case for official recognition of British Sign Language (BSL) and makes specific recommendations as to what form such recognition might take. It outlines the reasons why the Deaf community is campaigning for official recognition of BSL and assesses the current legal status of British Sign Language. The paper also includes a brief survey of measures taken by other European countries to recognise their national sign languages and considers possible routes to official recognition in the UK.
The paper is intended to assist the Disability Rights Commission (DRC) in formulating its advice to the government on the question of official recognition of BSL.
Some Deaf community organisations have expressed the view that the DRC is perhaps not the most appropriate body to consider what is primarily an issue of linguistic rights. However, since the government has chosen to charge the DRC with this task, UKCoD wishes to work constructively with the Commission to progress the issue of official recognition.
Summary of Recommendations
It is estimated that British Sign Language is the first or preferred language of between 50,000 and 70,000 people in the UK. Deaf people who use BSL are united by a shared culture, community and history; BSL is fundamental to their self-esteem and social well being. For those who find spoken language more difficult to access than sign language, provision of information and education in BSL is especially important.
UKCoD believes that official recognition of BSL would bring clear benefits to many thousands of Deaf people in terms of improved access to information and services. Recognition would also promote better knowledge and understanding of the language in society as a whole and formally acknowledge the status of BSL as one of the UK's four most widely used indigenous languages - along with English, Scottish Gaelic and Welsh.
UKCoD therefore recommends that the government:
1. Background to this submission
It was decided that UKCoD should make a submission to the DRC on this issue after a recent conference organised by UKCoD and addressed by DRC Chair Bert Massie. Mr Massie informed the conference that the Minister for Disabled People, Margaret Hodge, had written to the Commission asking it to advise her on official recognition by the autumn. Mr Massie indicated that the Commission was keen to receive the views of d/Deaf organisations, and would welcome a single submission from as wide a range of interested organisations as possible. The idea of a collective approach was well received by delegates and it was felt that such an approach would best be made under the auspices of UKCoD, with the British Deaf Association (BDA) being the lead organisation.
This proposal was discussed at a meeting of UKCoD members on 11 July 2000, to which all member organisations were invited. This submission is based on those discussions and on subsequent consultations with member organisations.
It should be stressed that Deaf people who use BSL are only one, relatively small section of the overall deaf population. However, there is a broad consensus among UKCoD members that this issue is an important one and that official recognition of British Sign Language would bring many benefits to those Deaf people who use BSL.
Not all UKCoD member organisations are supporting this submission. Some support the aim of official recognition but have chosen to make their own representations to the Disability Rights Commission and/or the government. Others have felt unable to sign up to all of the recommendations made here. A list of organisations supporting the submission is attached (Appendix A).
2. The UK Council on Deafness
The UK Council on Deafness comprises 37 member organisations (for a full list of member organisations, see Appendix B) representing a broad range of deaf experience and expertise. Working within their separate fields they support many d/Deaf communities, share professional expertise, and campaign for improved access for d/Deaf people in all areas of life.
Our aim: The UK Council on Deafness aims to improve and extend co-operation between member organisations in promoting and representing the interests of d/Deaf, deafened, deafblind and hard of hearing people.
Our objectives: The UK Council on Deafness provides a forum for debate and a focus for action: The Council promotes understanding and acceptance of the different perspectives on issues connected with deafness; Council members work together to achieve change on matters of shared concern.
3. The case for official recognition of BSL
There are no official figures for the number of BSL users in the UK, although it is estimated that there are between 50,000 and 70,000 people whose first or preferred language is BSL. There are as many Deaf BSL-users as there are speakers of Scottish Gaelic, and more people (Deaf and hearing) use BSL than either Welsh or Gaelic. Linguists have established that BSL is a language in its own right and is as complex and sophisticated as any spoken language (see section 6, below).
Like all linguistic minorities, members of the Deaf community have different degrees of access to the majority language of the wider community. Since BSL is more accessible to many Deaf people than spoken languages such as English, official recognition of BSL is especially important. BSL is the foundation for the self-esteem, educational achievement and social well being of the UK's Deaf community. However, that community exists within a wider society of hearing people. Consequently, Deaf people who use BSL experience high levels of social exclusion, particularly in the following areas:
Access to information and services
Deaf people face many barriers when using public and private services. This is frequently due to a lack of awareness of the needs of Deaf people on the part of service providers, and insufficient communication support. Deaf people with visual impairments (for example those with Usher syndrome) or other disabilities are especially disadvantaged.
Because English is often their second language, Deaf BSL users do not always have full access to written information. Service providers therefore need to use interpreters wherever necessary and to make information available in BSL formats, for instance on video or CD-ROM.
Interpreting
A BSL/spoken language interpreter provides a vital link between Deaf and hearing people. However, there is currently a serious shortage. As of 4 July 2000 there were only 98 qualified interpreters and 197 trainee interpreters registered by the Council for the Advancement of Communication with Deaf People (CACDP).
The Human Aids to Communication report Communication is Your Responsibility (1992) states that only registered qualified or registered trainee interpreters with appropriate skills should be used in all interpreting situations. However, the shortage of interpreters is an obstacle to this, and likely to get worse in the near future. A House of Lords judgement in 1997 extended Disability Living Allowance to cover the social communication needs of Deaf claimants. Part III of the Disability Discrimination Act 1995 requires businesses and service-providers to make their services accessible to Deaf people. These developments have increased demand for interpreters. The growth of demand for interpreters has not been matched by increased supply. This is a major obstacle to Deaf people's social inclusion.
Education
In education, the use and teaching of BSL within a bilingual (BSL/English) learning environment is essential for some deaf children and adults. The early acquisition of language is vital to the learning process and for some deaf children BSL will be more accessible than spoken languages.
The Framework of Action accompanying UNESCO's Salamanca Statement on Special Needs Education, to which Britain is a signatory, states that:
The importance of sign language as the medium of communication among the deaf...should
be recognised and provision made to ensure that all deaf persons have access
to education in their national sign language.
Framework for Action (1994), para 21
The United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, adopted in 1993, similarly state that:
Consideration should be given to the use of sign language in the education
of deaf children, in their families and communities. Sign language interpretation
services should also be provided to facilitate the communication between deaf
persons and others.
Rule 5, Accessibility
However, in the UK, educational provision for deaf children varies greatly between education authorities, with some not offering bilingual programmes and very few schools or resource bases for deaf children offering any formal teaching of BSL. A lack of access to BSL learning can adversely affect the language development of some deaf children and so impede their subsequent learning.
Parents of deaf children also receive greatly varying amounts of information and training in BSL, depending on the area they live in. In some local authorities, parents are offered courses in BSL, and bilingual pre-school programmes are available to give children the early start they need. However, this level of support remains the exception rather than the rule. Many parents are denied the choice of a bilingual method of education for their deaf children.
Teaching and learning BSL
Demand for BSL courses has increased dramatically in the last decade. More and more people are learning the language - more than 20,000 people took basic level examinations in BSL in 1998 - and some professionals in education and social services are required to hold BSL qualifications. There are various ways of learning BSL, including a new system of teaching and assessment, begun in 1998, within the framework of the National Vocational Qualification (NVQ).
However, there is a major shortage of trained and qualified BSL tutors and assessors. Consequently, many BSL courses are over-subscribed.
4. The legal status of BSL
Although there is little legislation that makes specific provision for users of BSL, the language is referred to in a number of Acts of Parliament and associated codes of practice.
For instance, the Police and Criminal Evidence Act 1984 Codes of Practice include guidelines on the use of BSL/spoken language interpreters by the police.
Reference to the needs of sign language users is also made in the Justice of the Peace Act 1979, and the NHS and Community Care Act 1990. The Broadcasting Act 1996 and an associated Statutory Order require digital terrestrial television services to provide sign language on 1% of their programmes each week (rising to 5% by the tenth anniversary of their launch). BSL is also mentioned in the criteria for UK nationalisation as an acceptable substitute for English.
Part III of the Disability Discrimination Act 1995 requires service providers to make "reasonable adjustments" to their practices, policies and procedures to enable disabled people to access their goods, facilities or services. The Code of Practice dealing with duties under Part III of the Act suggests that a "reasonable adjustment" might include the provision of a BSL/spoken language interpreter in certain circumstances. However, the precise impact of this Act has yet to be seen, and there are a number of exemptions. Moreover, the national shortage of interpreters will almost certainly compromise Deaf people's attempts to benefit from this legislation.
Such references to BSL in domestic legislation might be taken to imply "official recognition of BSL", as might the inclusion of BSL as a subject of study within the framework of National Vocational Qualifications. However, at best, this constitutes only an incremental approach to official recognition of BSL. Despite such progress, Deaf people continue to experience high levels of social exclusion. The Deaf community has consistently demanded a more comprehensive approach to recognition, and that argument is attracting increasing political support.
In 1999 members of the Welsh Assembly raised a Statement of Opinion expressing the hope that BSL receives official recognition. Thirty-one Assembly Members have so far subscribed to the Statement.
On 16 February 2000, members of the Scottish Parliament also debated official recognition of BSL. Winnie Ewing MSP introduced a members' business debate which attracted cross-party support. Her motion urged the Scottish Executive:
to implement the European Parliament's recognition of Sign Language as an official language in each of the member states
5. The status of sign languages around the world
The European Parliament has passed two resolutions calling on member states to recognise their respective national sign languages, one in 1988 and another in 1998.
Despite this, only four EU countries have done so: Denmark, Finland, Portugal and Sweden. According to the World Federation of the Deaf, thirteen other countries world-wide legally recognise their national sign languages. However, recognition can take various forms, and may mean many different things.
In 1996-1997, the European Union of the Deaf Sign Languages Project, funded by the European Commission, surveyed the status of sign languages in a number of countries. Its findings included the following:
Finland is one of only two EU countries that have made a constitutional commitment to the right to use sign language. A working group was set up in 1996 to consider how this constitutional right should be put into practice and recommend amendments to existing legislation.
Portugal has also included a reference to its national sign language in its constitution. Article 74 of the Portuguese Constitution makes provision to "protect and value the Portuguese Sign Language as a tool for cultural expression and as a tool of access to education and equal opportunities."
In Sweden a bill was passed in 1981 granting deaf people the right to a bilingual education. Swedish Sign Language is offered as a "foreign" language in mainstream schools.
Denmark offers a bilingual approach to deaf education, with Danish Sign Language as the primary language of instruction and Danish Sign Language formally part of the curriculum. Parents have the right to attend sign language courses funded by local authorities.
In the Netherlands a Dutch Sign Language Commission was established in March 1996 to investigate how official recognition of Dutch Sign Language could be implemented. It reported back to the government with detailed proposals, which are under consideration.
6. Routes to official recognition
An argument sometimes made against recognition of BSL is that, unlike the countries cited above, the UK has no written constitution and there is no formal mechanism for designating official or minority languages.
One precedent, however, is the Welsh Language Act 1993. This established the Welsh Language Board, with a remit to promote and facilitate the use of the Welsh language, and provided for the use of Welsh in legal proceedings.
Another, immediately available route to recognition of BSL is the Council of Europe's European Charter for Regional or Minority Languages (Appendix C). In 1997 the Annual General Assembly of the European Union of the Deaf passed a resolution calling on EU member states to recognise their national sign languages within the framework of this Charter.
In signing up to the Charter, a country undertakes to apply all of the provisions of Part II of the Charter to the regional or minority languages spoken in its territory. These provisions concern general measures to promote and protect the languages, to ensure that they can be studied and are properly taught, and to promote academic research into the languages. These are clearly areas where current UK disability discrimination legislation would not apply and where recognition under the Charter would bring tangible benefits in promoting and protecting British Sign Language.
Signatories are also required to specify each minority or regional language to which the more detailed provisions of the Charter, contained in Part III, shall apply. These concern areas such as education, justice, public services, culture, economic and social life, and the media. Signatories can choose a minimum number of paragraphs from Part III to implement. There is, therefore, some degree of flexibility in the way a country meets its obligations under the Charter - a State does not have to implement every measure. Again, recognition in this form would bring practical benefits, for example in promoting the "teaching of the history and the culture which is reflected by the regional or minority language" (Article 8), or by encouraging cultural activity specific to the specified minority languages (Article 12).
The UK signed the Charter on 2 March 2000 and ratification by Parliament is expected later this year. The government has announced that it will specify the Welsh and Scots Gaelic languages under Part III of the Charter straight away and the Irish language in Northern Ireland at an early date.
UKCoD strongly believes that the government should recognise British Sign Language under the Charter, specifying it as one of the minority languages to which the provisions in Part III of the Charter shall apply.
The government has previously taken the view that this is not possible since BSL does not qualify as a regional or minority language as defined by the Charter. UKCoD rejects that view.
In a letter to the Chair of the Federation of Deaf People dated 6 December 1999, Margaret Hodge, the Minister for Disabled People, included a summary of the government's legal advice on this issue. UKCoD believes that this advice is based on a misunderstanding of the history and nature of British Sign Language, and a misreading of the Charter. For example, the advice stated that BSL does not meet the Charter's definition of a non-territorial language on the grounds that it "is not a long established language...which can be described as having been traditionally used within the territory of the State". In fact, academics have identified references to the use of sign language as early as 1575. A detailed rebuttal of the government's legal advice, compiled by Professor Bencie Woll of City University, can be found in Appendix D.
The Minister has also pointed out that no European country has yet recognised its national sign language under the Charter. Although that is true, UKCoD sees no reason why that should prevent recognition of BSL. There is no reason why the UK should not lead the way and become the first signatory to the Charter to specify its national sign language as a minority language to which the Charter shall apply.
UKCoD takes the view that British Sign Language clearly constitutes a non-territorial language as specified by Article 1 of the Charter, which defines "non-territorial languages" as those "used by nationals of the State which differ from the language or languages used by the rest of the State's population but which, although traditionally used within the territory of the State, cannot be identified with a particular area thereof". BSL clearly meets these criteria. The Council of Europe's Explanatory Report on the Charter makes clear that, while it may be easier to apply Part II of the Charter to non-territorial languages, they are not precluded from recognition under Part III as well (Explanatory Report, paragraph 37). There is, therefore, no reason why British Sign Language should not be specified as one of the languages to which provisions in Part III of the Charter shall apply.
In a speech to the House of Commons on 5 April 2000, the Minister for Disabled People undertook to consider further what measures the government might take to achieve the following goals: "acceptance of the language's legitimacy, its systematic use by all authorities, and the willingness to allow submissions to be made in that language".
UKCoD welcomes this undertaking and recommends that the government establishes a BSL Task Force similar to those bodies established in the Netherlands and Finland, to review existing legislation and make recommendations on how to achieve these goals. That Task Force should include representatives of organisations controlled by Deaf people who use BSL, and experts in the linguistics of British Sign Language.
UK Council on Deafness
30 August 2000
Appendix A: UKCoD member organisations supporting this submission
Association of Lipspeakers
Association of Teachers of Lipreading to Adults (ATLA)
Breakthrough [Deaf-Hearing Integration]
British Association of Community Doctors in Audiology (BACDA)
British Association of Teachers of the Deaf (BATOD)
British Deaf Association (BDA)
Catholic Deaf Association
Council for the Advancement of Communication with Deaf People (CACDP)
Cued Speech Association UK
D/deaf Equality Forward (DdEF)
Deaf Broadcasting Council (DBC)
DeafMail
Hearing Concern
Hearing Dogs for Deaf People
Language of Sign as an Educational Resource (LASER)
LINK - the British Centre for Deafened People
National Association for Deafened People (NADP)
National Cochlear Implant Users' Association (NCIUA)
National Deaf Children's Society (NDCS)
North Wales Deaf Association (NWDA)
Royal Association in Aid of Deaf People (RAD)
Scottish Council on Deafness
SENSE, National Deafblind and Rubella Association
SIGN : The National Society for Mental Health & Deafness
Telecommunications Action Group (TAG)
Some member organisations (including the Association of Sign Language Interpreters and the British Association of Otorhinolaryngologists) wished to make clear that they had had insufficient consultation time to be in a position to support the Submission positively, but did not wish this to be construed as not necessarily agreeing with the Submission. Many other member organisations were unable to respond within the tight time-scale available.
The following supplementary comment has been received from Cued Speech Association
UK:
"The Management Committee of the Cued Speech Association UK, some of whom
are fluent BSL users, would like to wish the supporters of BSL well in their
campaign for the official recognition of BSL.
" As an organisation we are obliged to limit our activities to those which
concern Cued Speech, however, we see no conflict between the use of Cued Speech
and that of BSL. Cued Speech, as a visual representation of spoken language,
is an effective way for deaf people throughout the world to have direct access
to the written and spoken languages of their country, whilst also using the
sign language of their country, if that is their choice.
"The Association believes that it is important that the recognition of
BSL should take place within a framework which also recognises the importance
of choice for deaf people, particularly in the matters of communication support
and education."
Only 3 out of the 37 member organisations did not wish to append their support to the Submission.
Appendix B: UKCoD member organisations
Association of Lipspeakers
Association of Sign Language Interpreters
Association of Teachers of Lipreading to Adults
Breakthrough (Deaf/Hearing Integration)
British Association of Audiological Scientists
British Association of Community Doctors in Audiology
British Association of Otorhinolaryngologists
British Association of Teachers of the Deaf
British Deaf Association
British Society of Hearing Therapists
Catholic Deaf Association
Church of England Committee for Ministry Among Deaf People
Council for the Advancement of Communication with Deaf People
Deaf Broadcasting Council
D/deaf Equality Forward
DeafMail
Defeating Deafness (Hearing Research Trust)
DELTA
Ewing Foundation
Hard of Hearing Christian Fellowship
Hearing Dogs for the Deaf
Hearing Concern
Jewish Deaf Association
LASER
LINK - the British Centre for Deafened People
Midland Regional Association for the Deaf
National Association of Deafened People
National Cochlear Implant Users Association
National Centre for Cued Speech
National Deaf Children's Society
North Wales Association for the Deaf
Royal Association in Aid of Deaf People
Royal National Institute for Deaf People
Scottish Council on Deafness
SENSE - National Deafblind and Rubella Association
SIGN Campaign
Telecommunications Action Group
Appendix C: The European Charter for Regional or Minority Languages
(NB: A Council of Europe Explanatory Report accompanying and further explaining the Charter is available on the Council of Europe website at www.coe.fr)
EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES
Strasbourg, 5.XI.1992
Preamble
The member States of the Council of Europe signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity
between its members, particularly for the purpose of safeguarding and realising
the ideals and principles which are their common heritage;
Considering that the protection of the historical regional or minority languages
of Europe, some of which are in danger of eventual extinction, contributes to
the maintenance and development of Europe's cultural wealth and traditions;
Considering that the right to use a regional or minority language in private
and public life is an inalienable right conforming to the principles embodied
in the United Nations International Covenant on Civil and Political Rights ,
and according to the spirit of the Council of Europe Convention for the Protection
of Human Rights and Fundamental Freedoms ;
Having regard to the work carried out within the CSCE and in particular to the
Helsinki Final Act of 1975 and the document of the Copenhagen Meeting of 1990
Stressing the value of interculturalism and multilingualism and considering
that the protection and encouragement of regional or minority languages should
not be to the detriment of the official languages and the need to learn them;
Realising that the protection and promotion of regional or minority languages
in the different countries and regions of Europe represent an important contribution
to the building of a Europe based on the principles of democracy and cultural
diversity within the framework of national sovereignty and territorial integrity;
Taking into consideration the specific conditions and historical traditions
in the different regions of the European States,
Have agreed as follows:
Part I
General provisions
Article 1 - Definitions
For the purposes of this Charter:
a "regional or minority languages" means languages that are:
i traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population; and
ii different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants;
b "territory in which the regional or minority language is used" means the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures provided for in this Charter;
c "non-territorial languages" means languages used by nationals of the State which differ from the language or languages used by the rest of the State's population but which, although traditionally used within the territory of the State, cannot be identified with a particular area thereof.
Article 2 - Undertakings
Article 3 - Practical arrangements
Article 4 - Existing regimes of protection
Article 5 - Existing obligations
Nothing in this Charter may be interpreted as implying any right to engage in any activity or perform any action in contravention of the purposes of the Charter of the United Nations or other obligations under international law, including the principle of the sovereignty and territorial integrity of States.
Article 6 - Information
The Parties undertake to see to it that the authorities, organisations and persons concerned are informed of the rights and duties established by this Charter.
Part II
Objectives and principles pursued in accordance with Article 2, paragraph 1
Article 7 - Objectives and principles
1. In respect of regional or minority languages, within the territories in which such languages are used and according to the situation of each language, the Parties shall base their policies, legislation and practice on the following objectives and principles:
a the recognition of the regional or minority languages as an expression of cultural wealth;
b the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question;
c the need for resolute action to promote regional or minority languages in order to safeguard them;
d the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life;
e the maintenance and development of links, in the fields covered by this Charter, between groups using a regional or minority language and other groups in the State employing a language used in identical or similar form, as well as the establishment of cultural relations with other groups in the State using different languages;
f the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages;
g the provision of facilities enabling non-speakers of a regional or minority language living in the area where it is used to learn it if they so desire;
h the promotion of study and research on regional or minority languages at universities or equivalent institutions;
i the promotion of appropriate types of transnational exchanges, in the fields covered by this Charter, for regional or minority languages used in identical or similar form in two or more States.
2. The Parties undertake to eliminate, if they have not yet done so, any unjustified distinction, exclusion, restriction or preference relating to the use of a regional or minority language and intended to discourage or endanger the maintenance or development of it. The adoption of special measures in favour of regional or minority languages aimed at promoting equality between the users of these languages and the rest of the population or which take due account of their specific conditions is not considered to be an act of discrimination against the users of more widely-used languages.
3. The Parties undertake to promote, by appropriate measures, mutual understanding between all the linguistic groups of the country and in particular the inclusion of respect, understanding and tolerance in relation to regional or minority languages among the objectives of education and training provided within their countries and encouragement of the mass media to pursue the same objective.
4. In determining their policy with regard to regional or minority languages, the Parties shall take into consideration the needs and wishes expressed by the groups which use such languages. They are encouraged to establish bodies, if necessary, for the purpose of advising the authorities on all matters pertaining to regional or minority languages.
5. The Parties undertake to apply, mutatis mutandis, the principles listed in paragraphs 1 to 4 above to non-territorial languages. However, as far as these languages are concerned, the nature and scope of the measures to be taken to give effect to this Charter shall be determined in a flexible manner, bearing in mind the needs and wishes, and respecting the traditions and characteristics, of the groups which use the languages concerned.
Part III
Measures to promote the use of regional or minority languages in public life in accordance with the undertakings entered into under Article 2, paragraph 2
Article 8 - Education
1. With regard to education, the Parties undertake, within the territory in which such languages are used, according to the situation of each of these languages, and without prejudice to the teaching of the official language(s) of the State:
a
i to make available pre-school education in the relevant regional
or minority languages; or
ii to make available a substantial part of pre-school education in the relevant regional or minority languages; or
iii to apply one of the measures provided for under i and ii above at least to those pupils whose families so request and whose number is considered sufficient; or
iv if the public authorities have no direct competence in the field of pre-school education, to favour and/or encourage the application of the measures referred to under i to iii above;
b
i to make available primary education in the relevant regional
or minority languages; or
ii to make available a substantial part of primary education in the relevant regional or minority languages; or
iii to provide, within primary education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or
iv to apply one of the measures provided for under i to iii above at least to those pupils whose families so request and whose number is considered sufficient;
c
i to make available secondary education in the relevant regional
or minority languages; or
ii to make available a substantial part of secondary education in the relevant regional or minority languages; or
iii to provide, within secondary education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or
iv to apply one of the measures provided for under i to iii above at least to those pupils who, or where appropriate whose families, so wish in a number considered sufficient;
d
i to make available technical and vocational education in the
relevant regional or minority languages; or
ii to make available a substantial part of technical and vocational education in the relevant regional or minority languages; or
iii to provide, within technical and vocational education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or
iv to apply one of the measures provided for under i to iii above at least to those pupils who, or where appropriate whose families, so wish in a number considered sufficient;
e
i to make available university and other higher education in
regional or minority languages; or
ii to provide facilities for the study of these languages as university and higher education subjects; or
iii if, by reason of the role of the State in relation to higher education institutions, sub-paragraphs i and ii cannot be applied, to encourage and/or allow the provision of university or other forms of higher education in regional or minority languages or of facilities for the study of these languages as university or higher education subjects;
f
i to arrange for the provision of adult and continuing education
courses which are taught mainly or wholly in the regional or minority languages;
or
ii to offer such languages as subjects of adult and continuing education; or
iii if the public authorities have no direct competence in the field of adult education, to favour and/or encourage the offering of such languages as subjects of adult and continuing education;
g to make arrangements to ensure the teaching of the history and the culture which is reflected by the regional or minority language;
h to provide the basic and further training of the teachers required to implement those of paragraphs a to g accepted by the Party;
i to set up a supervisory body or bodies responsible for monitoring the measures taken and progress achieved in establishing or developing the teaching of regional or minority languages and for drawing up periodic reports of their findings, which will be made public.
2. With regard to education and in respect of territories other than those in which the regional or minority languages are traditionally used, the Parties undertake, if the number of users of a regional or minority language justifies it, to allow, encourage or provide teaching in or of the regional or minority language at all the appropriate stages of education.
Article 9 - Judicial authorities
1. The Parties undertake, in respect of those judicial districts in which the number of residents using the regional or minority languages justifies the measures specified below, according to the situation of each of these languages and on condition that the use of the facilities afforded by the present paragraph is not considered by the judge to hamper the proper administration of justice:
a
in criminal proceedings:
i to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or
ii to guarantee the accused the right to use his/her regional or minority language; and/or
iii to provide that requests and evidence, whether written or oral, shall not be considered inadmissible solely because they are formulated in a regional or minority language; and/or
iv to produce, on request, documents connected with legal proceedings in the relevant regional or minority language, if necessary by the use of interpreters and translations involving no extra expense for the persons concerned;
b
in civil proceedings:
i to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or
ii to allow, whenever a litigant has to appear in person before a court, that he or she may use his or her regional or minority language without thereby incurring additional expense; and/or
iii to allow documents and evidence to be produced in the regional or minority languages, if necessary by the use of interpreters and translations;
c
in proceedings before courts concerning administrative matters:
i to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or
ii to allow, whenever a litigant has to appear in person before a court, that he or she may use his or her regional or minority language without thereby incurring additional expense; and/or
iii to allow documents and evidence to be produced in the regional or minority languages, if necessary by the use of interpreters and translations;
d
to take steps to ensure that the application of sub-paragraphs i and iii of
paragraphs b and c above and any necessary use of interpreters and translations
does not involve extra expense for the persons concerned.
2. The Parties undertake:
a
not to deny the validity of legal documents drawn up within the State solely
because they are drafted in a regional or minority language; or
b
not to deny the validity, as between the parties, of legal documents drawn up
within the country solely because they are drafted in a regional or minority
language, and to provide that they can be invoked against interested third parties
who are not users of these languages on condition that the contents of the document
are made known to them by the person(s) who invoke(s) it; or
c
not to deny the validity, as between the parties, of legal documents drawn up
within the country solely because they are drafted in a regional or minority
language.
3. The Parties undertake to make available in the regional or minority languages the most important national statutory texts and those relating particularly to users of these languages, unless they are otherwise provided.
Article 10 - Administrative authorities and public services
1. Within the administrative districts of the State in which the number of residents who are users of regional or minority languages justifies the measures specified below and according to the situation of each language, the Parties undertake, as far as this is reasonably possible:
a
i to ensure that the administrative authorities use the regional
or minority languages; or
ii to ensure that such of their officers as are in contact with the public use the regional or minority languages in their relations with persons applying to them in these languages; or
iii to ensure that users of regional or minority languages may submit oral or written applications and receive a reply in these languages; or
iv to ensure that users of regional or minority languages may submit oral or written applications in these languages; or
v to ensure that users of regional or minority languages may validly submit a document in these languages;
b
to make available widely used administrative texts and forms for the population
in the regional or minority languages or in bilingual versions;
c
to allow the administrative authorities to draft documents in a regional or
minority language.
2. In respect of the local and regional authorities on whose territory the number of residents who are users of regional or minority languages is such as to justify the measures specified below, the Parties undertake to allow and/or encourage:
a
the use of regional or minority languages within the framework of the regional
or local authority;
b
the possibility for users of regional or minority languages to submit oral or
written applications in these languages;
c
the publication by regional authorities of their official documents also in
the relevant regional or minority languages;
d
the publication by local authorities of their official documents also in the
relevant regional or minority languages;
e
the use by regional authorities of regional or minority languages in debates
in their assemblies, without excluding, however, the use of the official language(s)
of the State;
f
the use by local authorities of regional or minority languages in debates in
their assemblies, without excluding, however, the use of the official language(s)
of the State;
g
the use or adoption, if necessary in conjunction with the name in the official
language(s), of traditional and correct forms of place-names in regional or
minority languages.
3. With regard to public services provided by the administrative authorities or other persons acting on their behalf, the Parties undertake, within the territory in which regional or minority languages are used, in accordance with the situation of each language and as far as this is reasonably possible:
a
to ensure that the regional or minority languages are used in the provision
of the service; or
b
to allow users of regional or minority languages to submit a request and receive
a reply in these languages; or
c
to allow users of regional or minority languages to submit a request in these
languages.
4. With a view to putting into effect those provisions of paragraphs 1, 2 and 3 accepted by them, the Parties undertake to take one or more of the following measures:
a
translation or interpretation as may be required;
b
recruitment and, where necessary, training of the officials and other public
service employees required;
c
compliance as far as possible with requests from public service employees having
a knowledge of a regional or minority language to be appointed in the territory
in which that language is used.
5. The Parties undertake to allow the use or adoption of family names in the regional or minority languages, at the request of those concerned.
Article 11 - Media
1. The Parties undertake, for the users of the regional or minority languages within the territories in which those languages are spoken, according to the situation of each language, to the extent that the public authorities, directly or indirectly, are competent, have power or play a role in this field, and respecting the principle of the independence and autonomy of the media:
a
to the extent that radio and television carry out a public service mission:
i to ensure the creation of at least one radio station and one television channel in the regional or minority languages; or
ii to encourage and/or facilitate the creation of at least one radio station and one television channel in the regional or minority languages; or
iii to make adequate provision so that broadcasters offer programmes in the regional or minority languages;
b
i to encourage and/or facilitate the creation of at least one
radio station in the regional or minority languages; or
ii to encourage and/or facilitate the broadcasting of radio programmes in the regional or minority languages on a regular basis;
c
i to encourage and/or facilitate the creation of at least one
television channel in the regional or minority languages; or
ii to encourage and/or facilitate the broadcasting of television programmes in the regional or minority languages on a regular basis;
d
to encourage and/or facilitate the production and distribution of audio and
audiovisual works in the regional or minority languages;
e
i to encourage and/or facilitate
the creation and/or maintenance of at least one newspaper in the regional or
minority languages; or
ii to encourage and/or facilitate the publication of newspaper articles in the regional or minority languages on a regular basis;
f
i to cover the additional costs of
those media which use regional or minority languages, wherever the law provides
for financial assistance in general for the media; or
ii to apply existing measures for financial assistance also to audiovisual productions in the regional or minority languages;
g to support the training of journalists and other staff for media using regional or minority languages.
2. The Parties undertake to guarantee freedom of direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar form to a regional or minority language, and not to oppose the retransmission of radio and television broadcasts from neighbouring countries in such a language. They further undertake to ensure that no restrictions will be placed on the freedom of expression and free circulation of information in the written press in a language used in identical or similar form to a regional or minority language. The exercise of the above-mentioned freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
3. The Parties undertake to ensure that the interests of the users of regional or minority languages are represented or taken into account within such bodies as may be established in accordance with the law with responsibility for guaranteeing the freedom and pluralism of the media.
Article 12 - Cultural activities and facilities
1. With regard to cultural activities and facilities - especially libraries, video libraries, cultural centres, museums, archives, academies, theatres and cinemas, as well as literary work and film production, vernacular forms of cultural expression, festivals and the culture industries, including inter alia the use of new technologies - the Parties undertake, within the territory in which such languages are used and to the extent that the public authorities are competent, have power or play a role in this field:
a to encourage types of expression and initiative specific to regional or minority languages and foster the different means of access to works produced in these languages;
b to foster the different means of access in other languages to works produced in regional or minority languages by aiding and developing translation, dubbing, post-synchronisation and subtitling activities;
c to foster access in regional or minority languages to works produced in other languages by aiding and developing translation, dubbing, post-synchronisation and subtitling activities;
d to ensure that the bodies responsible for organising or supporting cultural activities of various kinds make appropriate allowance for incorporating the knowledge and use of regional or minority languages and cultures in the undertakings which they initiate or for which they provide backing;
e to promote measures to ensure that the bodies responsible for organising or supporting cultural activities have at their disposal staff who have a full command of the regional or minority language concerned, as well as of the language(s) of the rest of the population;
f to encourage direct participation by representatives of the users of a given regional or minority language in providing facilities and planning cultural activities;
g to encourage and/or facilitate the creation of a body or bodies responsible for collecting, keeping a copy of and presenting or publishing works produced in the regional or minority languages;
h if necessary, to create and/or promote and finance translation and terminological research services, particularly with a view to maintaining and developing appropriate administrative, commercial, economic, social, technical or legal terminology in each regional or minority language.
2. In respect of territories other than those in which the regional or minority languages are traditionally used, the Parties undertake, if the number of users of a regional or minority language justifies it, to allow, encourage and/or provide appropriate cultural activities and facilities in accordance with the preceding paragraph.
3. The Parties undertake to make appropriate provision, in pursuing their cultural policy abroad, for regional or minority languages and the cultures they reflect.
Article 13 - Economic and social life
1. With regard to economic and social activities, the Parties undertake, within the whole country:
a to eliminate from their legislation any provision prohibiting or limiting without justifiable reasons the use of regional or minority languages in documents relating to economic or social life, particularly contracts of employment, and in technical documents such as instructions for the use of products or installations;
b to prohibit the insertion in internal regulations of companies and private documents of any clauses excluding or restricting the use of regional or minority languages, at least between users of the same language;
c to oppose practices designed to discourage the use of regional or minority languages in connection with economic or social activities;
d to facilitate and/or encourage the use of regional or minority languages by means other than those specified in the above sub-paragraphs.
2. With regard to economic and social activities, the Parties undertake, in so far as the public authorities are competent, within the territory in which the regional or minority languages are used, and as far as this is reasonably possible:
a to include in their financial and banking regulations provisions which allow, by means of procedures compatible with commercial practice, the use of regional or minority languages in drawing up payment orders (cheques, drafts, etc.) or other financial documents, or, where appropriate, to ensure the implementation of such provisions;
b in the economic and social sectors directly under their control (public sector), to organise activities to promote the use of regional or minority languages;
c to ensure that social care facilities such as hospitals, retirement homes and hostels offer the possibility of receiving and treating in their own language persons using a regional or minority language who are in need of care on grounds of ill-health, old age or for other reasons;
d to ensure by appropriate means that safety instructions are also drawn up in regional or minority languages;
e to arrange for information provided by the competent public authorities concerning the rights of consumers to be made available in regional or minority languages.
Article 14 - Transfrontier exchanges
The Parties undertake:
a to apply existing bilateral and multilateral agreements which bind them with the States in which the same language is used in identical or similar form, or if necessary to seek to conclude such agreements, in such a way as to foster contacts between the users of the same language in the States concerned in the fields of culture, education, information, vocational training and permanent education;
b for the benefit of regional or minority languages, to facilitate and/or promote co-operation across borders, in particular between regional or local authorities in whose territory the same language is used in identical or similar form.
Part IV
Application of the Charter
Article 15 - Periodical reports
1. The Parties shall present periodically to the Secretary General of the Council of Europe, in a form to be prescribed by the Committee of Ministers, a report on their policy pursued in accordance with Part II of this Charter and on the measures taken in application of those provisions of Part III which they have accepted. The first report shall be presented within the year following the entry into force of the Charter with respect to the Party concerned, the other reports at three-yearly intervals after the first report.
2. The Parties shall make their reports public.
Article 16 - Examination of the reports
1. The reports presented to the Secretary General of the Council of Europe under Article 15 shall be examined by a committee of experts constituted in accordance with Article 17.
2. Bodies or associations legally established in a Party may draw the attention of the committee of experts to matters relating to the undertakings entered into by that Party under Part III of this Charter. After consulting the Party concerned, the committee of experts may take account of this information in the preparation of the report specified in paragraph 3 below. These bodies or associations can furthermore submit statements concerning the policy pursued by a Party in accordance with Part II.
3. On the basis of the reports specified in paragraph 1 and the information mentioned in paragraph 2, the committee of experts shall prepare a report for the Committee of Ministers. This report shall be accompanied by the comments which the Parties have been requested to make and may be made public by the Committee of Ministers.
4. The report specified in paragraph 3 shall contain in particular the proposals of the committee of experts to the Committee of Ministers for the preparation of such recommendations of the latter body to one or more of the Parties as may be required.
5. The Secretary General of the Council of Europe shall make a two-yearly detailed report to the Parliamentary Assembly on the application of the Charter.
Article 17 - Committee of experts
1. The committee of experts shall be composed of one member per Party, appointed by the Committee of Ministers from a list of individuals of the highest integrity and recognised competence in the matters dealt with in the Charter, who shall be nominated by the Party concerned.
2. Members of the committee shall be appointed for a period of six years and shall be eligible for reappointment. A member who is unable to complete a term of office shall be replaced in accordance with the procedure laid down in paragraph 1, and the replacing member shall complete his predecessor's term of office.
3. The committee of experts shall adopt rules of procedure. Its secretarial services shall be provided by the Secretary General of the Council of Europe.
Part V
Final provisions
Article 18
This Charter shall be open for signature by the member States of the Council of Europe. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Article 19
1. This Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five member States of the Council of Europe have expressed their consent to be bound by the Charter in accordance with the provisions of Article 18.
2. In respect of any member State which subsequently expresses its consent to be bound by it, the Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article 20
1. After the entry into force of this Charter, the Committee of Ministers of the Council of Europe may invite any State not a member of the Council of Europe to accede to this Charter.
2. In respect of any acceding State, the Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 21
1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, make one or more reservations to paragraphs 2 to 5 of Article 7 of this Charter. No other reservation may be made.
2. Any Contracting State which has made a reservation under the preceding paragraph may wholly or partly withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take effect on the date of receipt of such notification by the Secretary General.
Article 22
1. Any Party may at any time denounce this Charter by means of a notification addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General.
Article 23
The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Charter of:
a any signature;
b the deposit of any instrument of ratification, acceptance, approval or accession;
c any date of entry into force of this Charter in accordance with Articles 19 and 20;
d any notification received in application of the provisions of Article 3, paragraph 2;
e any other act, notification or communication relating to this Charter.
In witness whereof the undersigned, being duly authorised thereto, have signed this Charter.
Done at Strasbourg, this 5th day of November 1992, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to any State invited to accede to this Charter.
Appendix D:
Rebuttal of government's legal advice on recognition of BSL under the European Charter
The government's legal advice on official recognition under the Charter was summarised in a letter from Margaret Hodge MP to FDP Chair Doug Alker dated 6 December 1999. That summary is shown here in italics, with a point-by-point rebuttal by Professor Bencie Woll, Department of Language and Communication Science, City University, London.
Summary of Legal Advice
The question of whether BSL is a regional or minority language or a non territorial language, as defined in the Charter, will depend upon establishing the following:
1. That it is a language
There is some debate as to whether or not BSL constitutes a language as opposed to a form of communication, however, we have been advised that it is distinct from English. This is really a matter for linguists.
There is NO debate among linguists as to whether BSL constitutes a language. Relevant reference articles include: The Encyclopaedia of Language (NE Collinge, editor), Routledge 1990; the Dictionary of Linguistics and Phonetics (D Crystal, editor), Blackwell, 1985; Languages of the British Isles (2nd edition, Cambridge University Press, in press); Multilingualism in the British Isles (S Alladina & V Edwards, eds.) Longman Linguistic Library 1991; and the recently published The Linguistics of British Sign Language: an introduction (RL Sutton-Spence & B Woll) Cambridge University Press 1999.
2. That it is a regional or minority language
Most of the Charter's provisions apply only to "regional and minority languages". For the purposes of the Charter these are languages which are:
A: traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population; and
B: different from the official language of that State.
British Sign Language is not used within a given part or territory of the UK, but it is used by a number of deaf people throughout the UK, regardless of where they live. It is therefore not a regional or minority language for the purposes of the Charter.
It is true that BSL is used throughout the UK and is therefore not a regional language. It is however, a minority (non-territorial) language as defined in the Charter and discussed in the section below. It should also be noted that Irish Sign Language is a regional minority language used (by the Catholic Deaf community) in Northern Ireland.
3. That it is a non-territorial language
A non territorial language as defined in the Charter is one which is "used by nationals of the State which differs from the language or languages used by the rest of the State's population but which, although traditionally used within the territory of the State, cannot be identified with a particular area thereof". What is meant by the term "traditional" here is unclear, but certainly one would expect the language to have been in use for a long time.
The Oxford Dictionary suggests that something is traditional if it is long established and handed down through generations. A BDA report indicates that the BDA recognised BSL as a separate language only in the 1980's which suggests that BSL is not a long established language which has been handed down through the generations, unlike say, Romany, and therefore it is unlikely that the language is one which can be described as having been traditionally used within the territory of the State.
The earliest references to the use of signing by a deaf person in Britain is in 1575 (St. Martin's Parish Register, Leicester). Subsequent early references to the use of signing by deaf people in Britain include: John Bulwer's "Chirologia" (1644) and "Philocophus" (1648); Samuel Pepys' diary; Daniel Defoe's "The Life and Times of Mr. Duncan Campbell" (1732), which includes illustrations of fingerspelling. Descriptions of signs and sign language grammar, including illustrations, are found in Bulwer and in many books and pamphlets published throughout the 19th century and into the 20th century. The sign languages of both Australia and New Zealand are dialects of BSL (with about 80% of vocabulary overlapping). This reflects the importation of the language to those countries in the early 19th century by deaf migrants and educators ("Dictionary of the sign language of the Australian Deaf Community" (T. Johnston, 1989).
It is certainly the case that the label "British Sign Language" was not applied to this language until approximately 20 years ago, when it was first used by Dr. Mary Brennan in order to formally differentiate BSL from other sign languages. Prior to that date the language was simply called "Sign". Such non-specific terms for languages are quite common (viz Bahasa, the language of Indonesia - Bahasa simply means language), especially where communities of users are not in general contact with other languages (in this case other sign languages). The late recognition of BSL as a distinct language by the BDA reflects this lack of contact and the fact that modern linguistic research on BSL only began in the late 1970s.
4. Applications of provisions of the Charter
The Committee of Experts is required to prepare a report for the Committee of Ministers on the basis of reports presented to it by parties to the Charter and information brought to its attention by bodies and associations legally established in a Party. The report is required to contain the Committee of Experts' proposals to the Committee of Ministers for the preparation of recommendations by the Committee of Ministers to one or more of the Parties, as may be required. Whether the Committee of Experts will consider that proposals are required in respect of BSL cannot be predicted and at least in part will turn upon whether they think that BSL is a language which the Charter was intended to protect.
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