Dr Niamh Nic Shuibhne
[ Article 4 / 1922 Constitution ] → Article 8 / 1937 Constitution
Every bill shall be signed by the President in the text in which it was passed...by both Houses of the Oireachtas, and if a bill is so passed...in both the official languages, the President shall sign the text of the bill in each of those languages.
Where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other official language.
In case of conflict between the texts of a law enrolled under this section in both the official languages, the text in the national language shall prevail.
In case of conflict between the texts of any copy of this Constitution...the text in the national language shall prevail.
[ Attorney General v. Coyne and Wallace 101 ILTR 17 (1963) ]
[ Report of the Constitution Review Group, (Dublin: Rialtas na hÉireann, 1996) ]
Unusual position re: Irish, as a minority language, and legal status - 'over' protected?
Article 4/1922 - equal status
Article 8/1937 - strengthening of position of Irish still further
BUT - no legislative 'filling-in' of these very vague constitutional statements
Some piecemeal provisions - e.g. linguistic competence requirements for lawyers
HOWEVER - animation of the provisions by the Courts
Summary of legal framework developed judicially -
Also - Constitution Review Group: really, only notable attempt to change things before work seriously commenced on the Language Bill; recommended replacement of Article 8 with the following -
Formal decision to introduce language legislation - 1997 - then Minister of State for Dept of Arts, Heritage, Gaeltacht and the Islands, Éamon Ó Cuív (now - Dept of Community, Rural and Gaeltacht Affairs -Éamon Ó Cuív now Minister)
However - Bill not actually published until Spring 2002 - eighty years since first constitutional provision made for language in Ireland
Legal Fiction vis-à-vis wording of Article 8 (first official language) ?
Language fiction ? from 'both sides' - demotion of status for promoters; inflated status (or - unreasonably inflated commitment to resources) for detractors;
Note - importance of adherence to constitutional requirements came through strongly from Supreme Court in 2001 (Ó Beoláin)
If the Constitution doesn't accurately reflect linguistic position in Ireland - then Constitution must be amended, not ignored
Tensions re: Irish as first official/national language - de facto minority language - can inappropriate protection be as damaging as no protection...?
e.g. The curious anomalies that maintaining a status in law for Irish which bears little relation to its status in fact can produce was exemplified in the legally sound but pragmatically suspect decision in Ó Beoláin last year, which forced the government more literally to respect the obligation in Article 25.4.4° of the Constitution and thus to publish all Acts of the Oireachtas in English and Irish simultaneously and, more onerously, to deal immediately with a twenty-year backlog. This was a victory of considerable symbolic significance, but is it truly the most efficient - or relevant - deployment of resources in terms of discernible benefits for Irish speakers ?
The proposed proclamation of equality is hardly a more worthy or preferable alternative to an already unrepresentative status; rather than attempting to redress some very real language problems, manufacturing an 'equality' of status perpetuates, in reality, just another level of inequality. And, ironically, equality in real terms is clearly still lacking when the substance of the Bill is examined
It is not the objective of striving to ensure equal linguistic access to public services for speakers of English and Irish that fails to convince but, instead, the (at any rate, constitutionally dubious) need to proclaim an equality of status for the languages per se in the process.
note generally: 'rights' terminology very rarely used even though, clearly, ethos of the bill thus intended
one of few instances of '...has the right...' - in essence, member of either House has the right to use either English/Irish in any debates etc
(note then - no compulsion on members ever to use the 'first' official language)
codifying SC decision by affirming that acts must be published in Irish/English simultaneously
again - to large extent - codifying the body of language rights re: court proceedings woven together judicially over last 80 years
|s. 7(1)||person may use either Irish/English re: proceedings/pleadings/any related documents|
|s. 7(2)||duty on courts re: ensuring that this choice can be exercised and that no disadvantage ensues re: person selecting one official language or the other|
|s. 7(3)||court, in that vein, 'may' require simultaneous translation facilities|
|s. 7(6)||no inconvenience/expense over and above that incurred re: use of other official language|
|s. 7(4)||sets out that State/public body shall use * in civil proceedings* the official language selected by the other party - unless they can establish that reasonable notice not given|
goes on to state, however,
any other provision of this section, a person shall not be compelled
to use a particular official language in any proceedings'
this formulation also reflects different intended legislative - equality - and constitutional - priority - standards
(point of debate - linguistic competence re: public servants ?)
note at outset - no general duty of translation still re: official
some documents (e.g. 'documents of major public importance') to be published in English/Irish simultaneously - but these are hardly the most in-demand forms etc used on a daily basis
again - symbolism over substance ?
* no general rights/duties re: service receipt/provision *
The extent to which a public body required to provide services in Irish = to be determined by the 'scheme' to be put in place i.e. setting out measures which public body would adopt to ensure equal treatment for persons wishing to obtain a service through either of the official languages
As part of the preparatory phase re: drafting of the Bill, then Minister of State attempted to estimate the appropriate degree of service through Irish re: various public bodies in various geographical locations
On one view - reasonable and pragmatic effort to channel resources and services where they are actually needed
BUT - success depends on the nature of the schemes to be drafted - and on commitment to implementation thereafter
extent of services through Irish very much hinged on schemes -
e.g. section 8(1) 'a person may communicate with and receive services from any public body in either of the official languages in accordance with any scheme in force in relation to such body'
and note - in section 9 - corresponding 'duty to provide services' is similarly qualified re: being in accordance with the scheme in place.
What is somewhat worrying, then, is (a) lack of detail in the draft Bill on this point and (b) overwhelming degree of Ministerial responsibility - and discretion ...
list of public bodies in First Schedule:
over 200 listed - includes - as might be expected -
also - e.g. An Post, Aer Lingus, Broadcasting Complaints Commission, Central Bank, Data Protection Commissioner, ESB, Food Safety Authority, Blood Transfusion Service, Museum of Modern Art, Irish Water Safety Association, National Lottery etc
Independent already established to considerable effect in other bilingual and plurilingual jurisdictions - and so to be welcomed here
outlined in section 22, including -
Sections 32-33: Miscellaneous
( First Schedule: Public Bodies )
( Second Schedule: Official Languages Commissioner )
Seanad debates: 24 April 2002
Before change of government - first discussion of the Language Bill in Upper House
Contributions in English and Irish
General acceptance that language legislation well overdue - (e.g. governmental treatment since constitutional protection introduced = 'of great emptiness')
But equally - concerns that Bill seeks to do too much which is not actually reflective of reality/English majority etc - so in many ways, a disappointingly stale debate ...
Alongside this - and perhaps overall - strong focus on resource implications ... including 'human' resources - and inevitable degree of 'compulsion' re: public service employment called into question
But perhaps most telling of all - next item of business on the courts service - first comment - 'We will proceed as Béarla so that there is some sense around here."
Language Organisations e.g. Comhdháil Náisiúnta na Gaeilge
Generally - welcoming the draft - but have suggested a number of amendments
Bill currently lapsed - as a result of intervening election But Government has now said it wants to have the Bill back before the Seanad this month (February 2003), with a view to enactment by the end of 2003
At the moment - Department assessing various amendments etc put forward by interested bodies
For more complete analysis of the Language Bill, see
Niamh Nic Shuibhne, "Eighty Years a' Growing: The Official Languages (Equality) Bill 2002", (2002) Irish Law Times, (2002) vol. 20:13 Irish Law Times, 198-203.
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