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Language, education and the European Convention on Human Rights in the twenty-first century

Published online by Cambridge University Press:  02 January 2018

Katherine Williams  and
Bernadette Rainey
Katherine Williams
Affiliation:
Centre for Welsh Legal Affairs, Department of Law, University of Wales, Aberystwyth
Bernadette Rainey
Affiliation:
Centre for Welsh Legal Affairs, Department of Law, University of Wales, Aberystwyth
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Abstract

In the Belgian Linguistic case the European Court of Human Rights held that legislation regarding language in education which was based on the principle of territoriality did not offend against the rights guaranteed in Article 2 of Protocol 1 or Article 8 of the European Convention on Human Rights, whether taken alone or in conjunction with Article 14 on non-discrimination. That ruling was given some 35 years ago, and this paper considers whether developments since then might lead the European Court of Human Rights to decide similar issues differently if they arose today. However, having considered the situation, including instruments which have been adopted specifically to deal with language rights and minority rights, the conclusion is reached that the European Court of Human Rights would be likely to continue to allow a fairly wide margin of appreciation to states in the highly sensitive and controversial area of language rights and how they should be protected.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 4 , November 2002 , pp. 625 - 650
Copyright
Copyright © Society of Legal Scholars 2002

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References

1. Human Rights Act 1998. For a general discussion of the legislation, see Tierney, S ‘The Human Rights Bill: Incorporating the European Convention on Human Rights into UK law’ [1998] 4 EPL 299.Google Scholar

2. No right exists to a place in a Welsh-medium school, although such schools exist in many parts of Wales, including those where Welsh is not the majority's first language. In primary schools, 17.9% of pupils in Wales receive all or most of their teaching in Welsh, 2.4% have part of the curriculum in Welsh and 78.1% learn Welsh as a second language. In secondary schools, 23% of schools offer Welsh as the medium for instruction for at least half of their foundation subjects and 14% of pupils study Welsh as a first language. (Figures from Welsh in Schools National Assembly of Wales Statistical Bulletin SB 48/2001 (December 2001), also quoted in The Welsh Language in Education in Wales Paper presented to Education and Lifelong Learning Committee on National Assembly, ELL 19–01(P2) (12 December 2001), available at http://www.wales.gov.uk/assemblydata/3C14D376000EA5340000348B00000000.rtf. It is not possible to assess the demand for places as there are no figures kept on this. In some areas (mostly rural) there appear to be more places than there are pupils, whilst others are working at close to capacity: see The Welsh Language in Education in Wales above. Note that some, such as Rhieni Dros Addysg Gymaeg (Parents for Welsh-Medium Education), claim that demand is greater than these figures suggest (in their evidence to the Education and Lifelong Learning Committee, ELL 03–02 (7 February 2002) p 1, available at http://www.wales.gov.uk/assemblydatd3CSAA387000B55B40000457500000000.html. I

3. For example, the teaching of science and mathematics through the medium of Welsh was opposed by some parents of children in a Welsh-medium school. See Assembly Minister's Report to the Education and Lifelong learning Committee, ELL 04–01 (14 February 2001) p 1, available on the website of National Assembly for Wales: http://www.wales.gov.uk/assemblydata/3A8930FC000618BB0000131B0000.html.

4. See, for example, the debate in the National Assembly for Wales Record of Proceedings (15 June 1999) pp 74–87. There was some discussion of whether Welsh should be compulsory up to Key Stage 4 in all schools; Monmouth, in particular, with only 2% Welsh-speaking, were interested in altering the situation. This was one of the areas considered by the Education and Lifelong Learning Committee but was not included in the final report. See http://www.wales.gov.uk/keypubassemedlearning/content/welsh-lang-final-e.rtf.

5. Although this paper takes Wales as its example, much of the discussion is equally relevant in a number of other member states of the Council of Europe, in particular, some of the newer members have minority groups and they might also be tackling such questions. For example, Spain has already dealt with such a situation in Catalonia (see J R Kasha ‘Education under Catalonia's Law of Linguistic Normalisation: Spanish Constitutionalism and International Human Rights Law’ (1996) 34 Col J Transnat L 657) and Slovakia has had to face this issue, but its legislation has met with severe problems and criticisms (see D Thomas ‘Slovakia: Language and National Unity’ (2000) 53(1) Par1 Aff 135). Wales has been chosen as it is the most widely spoken and used of the indigenous minority languages in the UK; it is the only indigenous minority language in the UK to have won strong official support and it is likely to have been one of the factors (both within Wales and at Westminster) behind the support for Welsh devolution. For a full consideration of the status of each of the minority languages in the UK, see R Dunbar ‘Implications of the European Charter for Regional or Minority Languages for British Linguistic Minorities’ (2000) 25 E LR Human Rights Survey 46.

6. Other cases have failed at the admissibility stage: see, for example, SM and GC v United Kingdom Application No 23716/94 concerning the availability of Irish language education in Northern Ireland (the applicants failed the admissibility test and the case was not decided on its merits).

7. Case relating to certain aspects of the laws on the use of languages in education in Belgium (merits) Judgment of 23 July 1968 (1980) 1 EHRR 252.

8. (1980) 1 EHRR 252 at 317–319 (resident requirement in six ‘special status’ communes where French schooling was available, access was denied to non-resident French-speaking families. However, non-resident Flemish speaking families were allowed access to Flemish language schools in same area).

9. In holding that there was no breach of the ECHR on a number of points, the court was unanimous, although there were two separate opinions on the reasoning which led to the decision. On the finding that one aspect of the legislation did unlawfully discriminate, the court ruled by eight votes to seven.

10. The details of this will be discussed later, but to give an example, the Commission found withdrawal of subsidies in unilingual areas amounted to discrimination based on language under Article 14, when read in conjunction with Article 2 of Protocol 1: Report of the Commission, Series B, p 315, para 412. In contrast, the court found no violation in this area: (1980) 1 EHRR 252 at 300.

11. Recommendation 285 (1961) considered inclusion of a minority right in the second Protocol. The proposed wording was: ‘Persons belonging to a national minority shall not be denied the right, in community with other members of their group, and as far as compatible with public order, to enjoy their own culture, to use their own language, to establish their own schools and receive teaching in the language of their choice or to profess and practise their own religion.’

12. Although it did not expressly talk in terms of ‘margir, of appreciation’. For general discussion of the concept of ‘margin of appreciation’ in the ECHR, see Yourow, H C The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence THe Hague: Martin Nijhoff Publishers, 1996)Google Scholar; N Lavender ‘The problem of the margin of Appreciation’ (1997) 4 EHRLR 380.

13. This is discussed later, but examples can be seen in Znze v Austria (1988) 10 EHRR 394; Johnston v Ireland (1987) 9 EHRR 203; Rees v United Kingdom (1987) 9 EHRR 56 at 67–68; Tyrer v United Kingdom (1979) 2 EHRR 1 at 10; and Murckx v Belgium (1979) 2 EHRR 330 at 346.

14. Framework Convention for the Protection of National Minorities, ETS No 157 (Council of Europe, 1995); European Charter for Regional or Minority languages, ETS No 148 (Council of Europe, 1992); European Convention on the Exercise of Children's Rights, ETS No 160 (Council of Europe, 1996) (not ratified by the UK); UN Convention on the Rights of the Child, UN.Doc A/44/25 (1989).

15. See the protection of child which was evident in Johnston v Ireland series A No 112 (1987) 9 EHRR 203. In the area of education, see the dissenting opinion of Kellberg in the Commission decision in Kjeldsen, Busk Madsen and Pedersen v Denmark (1975) Report of the Commission, European Court of Human Rights, series B, vol 21, pp 50–52, where he felt that insufficient stress had been put on the rights of the child; but in Eriksson v Sweden series A 156 (1989) 12 EHRR 183 the court expressly rejected a child's claim under the second sentence of Article 2 of Protocol 1.

16. See Van Bueren, G ‘Protecting Children's Rights in Europe-A Test Case Strategy’ (1996) 2 EHRLR 171 Google Scholar. In particular, Van Bueren notes that children need to be properly considered in all aspects of rights: provision, protection, participation and prevention. She suggests that at present it is only in the area of protection that they are properly catered for.

17. United Nations Convention on the Rights of The Child UN Doc A/44/25 was the first treaty to confim participation rights of children: see Kilkelly, U The Child and The European Convention on Human Rights (Aldershot: Ashgate Dartmouth, 1999) pp 117, 137Google Scholar.

18. Precedent and the court is considered below. For discussion on this see Merrills, J G The Development of International Law by the European Court of Human Rights (Manchester: Manchester University Press, 1988) pp 12–15 Google Scholar; and Johnston v Ireland (1987) 9 EHRR 203 at 219.

19. With the exception of some very specific references to language rights in Articles 5(2) and 6(3)(a) and (e), and the fact that protection against discrimination as an individual member of a minority group may be covered by Article 14 in association with another provision. To a limited extent, the Council of Europe has recognised language needs in its Charter for Regional or Minority Languages (1992) and its Framework Convention for the Protection of National Minorities (1999, both of which will be considered below. An attempt was made to add on an additional Protocol to the ECHR on the rights of minorities, which included language rights. It was proposed by the Parliamentary Assembly of the Council of Europe in Recommendation 1201(1993), but was never adopted by the Council of Ministers

20. As, for example, in relation to Articles 5 and 6 of the ECHR.

21. For material on the drafting of Article 2 of Protocol 1, see the collected edn of the Travaux Prkparatoires, vols I-VIII (The Hague: Martinus Nijhoff, 1975); for a overview, see A H Robertson ‘The European Convention on Human Rights: Recent Developments’ (1951) 28 BYIL 359.

22. 8th Session of the Committee of Ministers, Travaux Prkparatoires, n 21 above, vol VII, p 262.

23. For an indication of the differences, see Travaux Prkparatoires, n 21 above, vol VIII. Pp 186–188 give four versions of proposed Article 2: text of Assembly, August 1951; text of Committee on Administrative and Legal Questions, October 1951; text of Committee of Ministers, November 1951; and text of Assembly, December 1951.

24. The original text of the Assembly in August 1950 was in positive terms: ‘Every person has the right to education. The function assumed by the State in respect of education and of teaching may not encroach upon the right of parents to ensure the religious and moral education and teaching of their children in conformity with their own religious and philosophical convictions’: Travaux Préparatoires, vol VIII, p 186. So too was a separate proposal made by the Belgian delegation to the Committee of Experts in February 1951: ‘Every person has the right to education. Parents have the right to ensure the religious education and the teaching of their children in conformity with their own religious and philosophical convictions. The State in the organisation of public instruction shall respect this right of parents and shall take the necessary measures to ensure its effective exercise’: Travaux Préparatoires, n 21 above, vol VII, p 192

25. The UK suggested a version whose first sentence was framed in negative terms: ‘No person shall be denied the right to education’: Travaux Préparatoires, n 21 above, vol VII, p 186. This was later adopted as the first para of Article 2 of Protocol 1.

26. Travaux Préparatoires, n 21 above, vol VII, pp 200–202.

27. Travaux Préparatoires, n 21 above, vol I, p 168. This Committee of Government Experts had been set up by the Committee of Ministers to consider the draft proposal of the Protocol 1 rights from the Consultative Assembly.

28. Travaux Prkparatoires, n 21 above, vol III, p 262.

29. Travaux Prkparatoires, n 21 above, vol VII, p 246.

30. Travaux Prkparatoires, n 21 above, vol VII, p 246.

31. This would have involved adding the following additional sentence to the provision: ‘Parents or others in charge of the education of children shall have the right to decide freely that children in their charge shall attend recognised schools with another teaching language than the language of the country in question’: Travaux Prkparatoires, n 21 above, vol W, p 246.

32. The majority of the Committee of Experts, ‘while having no objection to the principle underlying the Danish proposal, were of the opinion that the Convention on Human Rights was not the most appropriate medium for settling this question’: Travaux Prkpararoires, n 21 above, vol VII, p 302.

33. Travaux Préparatoires, n 21 above, vol VIII, p 186.

34. Travaux Préparatoires, n 21 above, vol VIII, p 10.

35. Travaux Préparatoires, n 21 above, vol VIII, p 22.

36. Travaux Préparatoires, n 21 above, vol VIII, p 24.

37. ‘No person shall be denied the right to receive education. In the exercise of any functions which it may assume in relation to education and to teaching, the State shall have regard to the right of parents to ensure the religious education of their children in conformity with their own creeds and, where schools have been established by the State, to send their children to any other school of their choice, provided that such school conforms with the requirements of the law’: Travaux Prkparatoires, n 21 above, vol VIII, p56.

38. Eriksson v Sweden (1989) 12 EHRR 183 at 193.

39. The applications when originally placed before the European Commission of Human Rights challenged legislation of 1932, 1955 and 1959; while the applications were before the Commission the legislation was amended by Acts of 1963. The Commission ruled that the extension of the complaints to the new legislation was admissible: Report of the Commission, European Court of Human Rights (1965) series B, vol I, paras 114–125.

40. (1980) 1 EHRR 252 at 281.

41. (1980) 1 EHRR 252 at 281.

42. (1980) 1 EHRR 252 at 281–282.

43. (1980) 1 EHRR 252 at 281.

44. (1980) 1 EHRR 252 at 281.

45. In this respect the court contrasted Articles 5(2) and 6(3) (a) and (e).

46. (1980) 1 EHRR 252 at 282.

47. Seven votes to five; of the five dissenting Commissioners who considered there were some positive obligations, two reached the same conclusion as the majority, while three held that the failure to establish or subsidise French-medium education in the Flemish unilingual region infringed the first sentence of Article 2.

48. (1980) 1 EHRR 252 at 284.

49. (1980) 1 EHRR 252 at 293. This aspect of the case has been criticised for the court's failure to consider demographic change and the linguistic composition of the region: see G Gilbert ‘The Legal Protection Accorded to Minority Groups in Europe’ (1992) XXIII Neth YIL 67 at 88.

50. (1980) 1 EHRR 252 at 294.

51. A majority of the Commission came to this conclusion too. Two dissenting members of the Commission found unlawful discrimination on this point.

52. (1980) 1 EHRR 252 at 293.

53. (1980) 1 EHRR 252 at 300

54. Van Dijk and Van Hoof describe the court as applying ‘only a rather loose proportionality test’ in relation to Article 14: Van Dijk, P and Van Hoof, G J H Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law International, 3rd edn, 1998) p 726.Google Scholar

55. By seven votes to five.

56. Report of the Commission, n 39 above, series B, p 308, para 405.

57. Report of the Commission, n 39 above, series B, p 315, para 412.

58. This was due to the increase in the number of French speakers living in this traditionally Flemish-speaking region.

59. Report of the Commission, n 39 above, series B, p 339, para 451.

60. (1980) 1 EHRR 252 at 335–336.

61. In the Belgian Linguistic case these issues were one and the same, and the court held that it was unnecessary to consider it: (1980) 1 EHRR 252 at 310.

62. Mathieu-Mohin and Clerfaytv Belgium Judgment of 2 March 1987 (1988) 10 EHRR 1 at 18. See also Clerfayt and others v Belgium Application No 27120/95, 8 September 1997 (held inadmissible). In the earlier Clerfayt and hgrosv Belgium Application No 10650/83, the Commission had held that the ECHR did not guarantee public representatives the right to use the language of their choice in public bodies: 17May 1985, DR42, p 212.

63. See, for example, Gilbert, n 49 above; H Cullen, ‘Education Rights or Minority Rights?’ (1993)7 IJL and Fam143.

64. See Cullen, n 63 above.

65. See Gilbert, n 49 above, at 88.

66. Contemporary commentary was less clearly critical. For example, Gormley refers to the destabilising influence the language issue was having on the future existence of the state of Belgium, as well as the effect of too controversial a decision on the continuation of the existence of the European Court of Human Rights which was then in its infancy: P Gormley ‘The Development of International Law through cases from the European Court of Human Rights: Linguistic and Detention Disputes’ (1969) 2 Ottowa LR 382. Fawcett justifies a broad margin of appreciation in the regulation of linguistic use within a state as being necessary, and notes that Articles 9 and 10 protect the content of the message not necessarily the form in which it is expressed unless that is necessary to the ideas: Fawcett, J E S The Application of the European Convention on Human Rights (Oxford: Clarendon Press, 1969)Google Scholar. Both these texts were written prior to the final court decision.

67. Gilbert, n 49 above, at 92.

68. The lack of consensus on the meaning of this term is noted in the Belgian context by Alen, A and Peters, P ‘The Columberg Report on the Belgian Linguistic Legislation: A Storm in a Teacup’ (1999) 5 EPL 155 at 165–166Google Scholar.

69. Protection of Minorities in Belgium Provisional report of the Committee on Legal Affairs and Human Rights, 18 March 2002 (see the discussion in paras 13–27 of the Report).

70. Cossey v United Kingdom Judgment of the Court, para 35 (1991) 13 EHRR 622 at 639. In Cossey, the court declined to overrule an earlier decision.

71. For example, in Borgers v Belgium (1993) 15 EHRR 92, the court departed from its ruling in Delcourt v Belgium (1979–80) 1 EHRR 355. On the general issue of precedent and the court, see the discussion in Merrills, n 18 above, pp 12–15.

72. Cossey v United Kingdom (1991) 13 EHRR 622.

73. S Greer ‘Political Theories of the European Convention on Human Rights’ presentation at the Socio-Legal Studies Association Conference, Bristol, 2001.

74. As, for example, in the Belgian Linguistic case.

75. See, for example, Inze v Austria (1988) 10 EHRR 394; Johnston v Ireland (1987) 9 EHRR 203.

76. Rees v United Kingdom (1987) 9 EHRR 56 at 67–68.

77. Johnston v Ireland (1987) 9 EHRR 203 at 219.

78. See, for example, Tyrer v United Kingdom (1979) 2 EHRR 1 at 10; March v Belgium (1979) 2 EHRR 330 at 346.

79. In the earlier cases of Kjeldsen, Busk, Madsen and Pedersen v Denmark (1980) 1 EHRR 711 (the Danish Sex Education case) and Belgian Linguistics (1980) 1 EHRR 252 itself the court had felt constrained by the Travaux Preparatoires, whereas in Campbell and Cosans (1982) 4 EHRR 293 at 304 they explicitly reject this constraint (note that Justice Sir Maurice Evans, the UK judge, placed greater reliance on the Travaux Prepararoires: at 309).

80. Kjeldsen, Busk Madsen and Pedersen v Denmark (1980) 1 EHRR 711.

81. Kjeldsen, Busk Madsen and Pedersen v Denmark (1980) 1 EHRR 711 at 731.

82. Dissenting Judge Verdross considered that the court had failed to give sufficient regard to the parents’ (strict) religious and moral convictions: see Kjeldsen, Busk Madsen and Pedersen v Denmark (1980) 1 EHRR 711 at 734.

83. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293.

84. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 303.

85. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 305 (court’ s footnotes omitted).

86. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 305.

87. Robertson, n 21 above, at 362.

88. Robertson, n 21 above, at 362.

89. Merrills, J G and Robertson, A H Human Rights in Europe: A Study of the European Convention on Human Rights (Manchester: Manchester University Press, 4th edn, 2001) p 247 Google Scholar; see also Memlls, n 18 above, p 85: ‘The conclusion is thus inescapable that the Court's unwillingness to employ the travaux in Campbell and Cosans was not based on the reason given in the judgment, but on the desire to justify a different result.’

90. In Valsamis v Greece (1997) 24 EHRR 294, the court held that the parents’ Jehovah's Witness and pacifist beliefs should not have been offended by the purpose of or arrangements of a school parade which their children were required to attend on 28 October, National Day in Greece.

91. In January 1997 in S P v UK Application No 8566179, the Commission questioned whether the UK's reservation was valid. This occurred in the light of case law such as Belilos v Switzerland (1988) 10 EHRR 466 in which the European Court of Human Rights had stated that Article 64 (now Article 57) excluded reservations couched in terms that were too vague or broad for it to be possible to determine their exact scope and meaning: at 485. The Commission further suggested that if the reservation was valid it was inapplicable to provisions which had entered into force subsequent to the making of the reservation as suggested by the decision in Fischer v Austria (1995) 20 EHRR 349 where Austria unsuccessfully argued that the provisions in force in 1982 and in 1958 were essentially identical provisions: at 365–366. Either or both of these might allow the validity of the reservation to be questioned.

92. See, for example, Cohen v United Kingdom Application No 25959/94, 28 February 1996 – in this case Commission recalled the UK reservation, but found no need to look at it because the case was inadmissible. See also J and BL v UK Application No 14136/88; Graeme v UK Application No 1388 7 B8; Nortkott v UK Application No 13884/88; Pand LD v UK Application No 14135/88; PD v UK Application No 14137/88; ConnolleyvUK Application No 14138/88; SP v UK Application No 28915/95; WandDMvUK Application No 8566179: In contrast, in Campbell and Cosans v UK (1982) 4 EHRR 293, the court found that the state could not use its reservation on the facts with regard to corporal punishment as the state could take measures to comply with the provision that did not fall within the reservation. For general discussion on validity of reservations under Article 57 of the ECHR (originally Article 64), see Van Dijk and Van Hoof, n 54 above, pp 773–782. See also Belilos v Switzerland series A No 132, pp 25–28, paras 52–59 (1988) 10 EHRR 466 at 466–488; Fischer v Austria series A No 312, pp 18–20, paras 37–41 (1995) 20 EHRR 349 at 365–366.

93. See Cullen, n 63 above.

94. For example cases regarding disability all failed at admissibility stage, see Cohen v United Kingdom Application No 25959/94; J and BL v UK Application No 14136/88; Graeme v UK Application No 13887/88; Northcottv UK Application No 13884/88; P and LDv UK Application No 14135/88; PD v UK Application No 14137/88; Connolley v UK ApplicationNo 14138/88; SPvUK Application No 28915/195; W and DM vUK Application No 8566179; Simpson V UK Application No 146888/89; Smithv UK Application No 15186/89; Dahlberg v Sweden Application No 18511/91; Klerks v Netherlands Application No 25212/94; Ford v UK Application No 28374/95; Keating v UK Application No 29787/96. Found inadmissible by the court in Di Egidio v Italy Application No 36505/97; and Lukach v Russia Application No 48041/99.

95. Ratified by the UK on 27 March 2001 and in force in the UK from 1 July 2001 – the UK declared that the Charter would apply to Welsh, Scottish Gaelic and Irish.

96. Article 1 – note limitations, for example, the Charter would not cover Russian in Baltic states since it is used by the majority; it would not cover Irish in the Republic of Ireland since the Irish language has official status. However, it does cover Welsh in Wales as this is neither used by a majority within the UK nor is it one of the Official languages of the UK, despite it being an official language in Wales.

97. Article 8(1)(a).

98. Article 8(1)(b) and (c).

99. Article 8(2).

100. Article 15(1).

101. Although states outside the Council of Europe can become parties – hence the overlap with some of the Convention rights.

102. The Venice Commission Recommendation 1201 (1993).

103. Protection of Minorities in Belgium Provisional report of the Committee on Legal Affairs and Human Rights, 18 March 2002 (see the discussion in paras 13–27).

104. See especially the fundamental principles set out in Article 3 of the Framework Convention.

105. Protection of Minorities in Belgium Provisional Report of the Committee on Legal Affairs and Human Rights, 18 March 2002, para 27.

106. Van Bueren, G The International Law on the Rights of the Child (Dordrecht: Martin Nijhoff Publishers, 1995) p 240.Google Scholar

107. Remarked upon in the Commission in Kjeldsen, Busk Madsen and Pedersen v Denmark, 1975 Report of the Commission, European Court of Human Rights, series B, vol 21, p 50. Cf the separate concumng opinion of Kellberg: ‘it is hardly conceivable that the drafters would have intended to give parents something like dictatorial powers over the education of their children.’ Was it inconceivable? Not commented on in the majority opinion in the Commission, 1975 Report of the Commission European Court of Human Rights, series B, vol 21, pp 42–50, or judgments in court, (1980) 1 EHRR 711 at 725–733.

108. It has been criticised on this basis: see Cullen, n 63 above. See also Van Dijk and Van Hoof, n 54 above, p 644. As highlighted above, the Commission took a wider view than the court on the question of discrimination under Article 14.

109. Protocol 12 was opened for signature on 4 November 2000. As of 22 October 2002, only two states had ratified: Georgia on 15 June 2001 and Cyprus on 30 April 2002, and 27 states had signed. The UK has not signed.

110. see Kasha, n 5 above.

111. See Thomas, n 5 above, at 135–141.

112. Particularly if the Parliamentary Assembly adopts the territoriality principle suggested in the 2002 Provisional Report of the Committee on Legal Affairs and Human Rights Protection of Minorities in Belgium, 18 March 2002, esp paras 13–27.

113. See, for example, Welsh Language Act 1993, c 38; Government of Wales Act 1998, c 38, ss 47 and 120.

114. The only exception to this might arise if there were no longer a sufficient demand for instruction through that language.

115. March v Belgium (1979) 2 EHRR 330.

116. Airey v Ireland (1979) 2 EHRR 305.

117. See also X and Y v the Netherlands series A, p 91, 1985.

118. March v Belgium (1979) 2 EHRR 330.

119. When applying the ECHR in domestic courts it is arguable that they cannot apply the margin of appreciation doctrine and so state authorities will not have amount of discretion given to them by the Strasbourg organs: see R Singh ‘Is There a Role for the Margin of Appreciation in National Law After the Human Rights Act’ (1999) 1 EHRLR 15.

120. Government of Wales Act 1998, c 38, s 120(1): ‘The Assembly shall make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people.’

121. See, for example, the debates on the Columberg Report concerning the Belgian Lingistic legislation adopted by the Committee of Legal Affairs and Human Rights, Council of Europe, September 1998 (draft resolution). For analysis of the Report, see Alen and Peeters, n 68 above, at 165–166.

122. Different approaches are taken within states to language issues: see V Van Dyke ‘Equality and Discrimination in Education’ (1973) 17 I Studies Q 4 at 375.

123. Mathieu-Mohinand Clerfayt v Belgium Judgment of 2 March 1987; (1988) 10 EHRR 1 at 18. See also Clerjiuyr undors v Belgium Application No 27120/95, 8 September 1997 (held inadmissible). In these cases issue was that of voting rights under Article 3 of Protocol 1. In Clerjiuyt and Legros v Belgium Application No 10650/83, the Commission had held that the ECHR did not guarantee public representatives the right to use the language of their choice in public bodies.

124. Dunbar, n 5 above, at 49–50.