SEMINAR OUTLINE

1. The Irish Language in Ireland - Legal Background

   [ Article 4 / 1922 Constitution ] → Article 8 / 1937 Constitution

   1. The Irish language as the national language is the first official language.
   2. The English language is recognised as a second official language.
   3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.

   Article 25.4.3°
   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.

   Article 25.4.4°
   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.

   Article 25.4.6°
   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.

   Article 25.5.4°
   In case of conflict between the texts of any copy of this Constitution...the text in the national language shall prevail.

   →

   R. (Ó Coileáin) v. Crotty 61 ILTR 81 (1927) Attorney General v. Joyce and Walsh [1929] IR 526 An Stát (Mac Fhearraigh) v. Mac Gamhna [1983] IRSR (1980-1998) 38 An Stát (Mac Fhearraigh) v. Neilan [1984] IRSR (1980-1998) 38 Ó Monacháin v. An Taoiseach [1986] ILRM 660 Ó Murchú v. Cláraitheoir na gCuideachtaí agus an tAire Tionscal agus Tráchtála [1988] IRSR (1980-1998) 42 Delap v An tAire Dlí agus Cirt agus an tArd-Aighne, [1990] IRSR (1980-1998) 46 Ní Cheallaigh v. An tAire Comhshaoil [1992] IRSR (1980-1998) 122 Mac Cárthaigh v. Éire, an tArd-Aighne agus Stiúrthóir na nIonchúiseamh Poiblí (Supreme Court, unreported, 15 July 1998) Ó Beoláin v. Breitheamh na Cúirte Dúiche Mary Fahy, Stiúrthóir na nIonchúiseamh Poiblí, an tAire Dlí agus Cirt, Éire agus an tArd-Aighne (judgment of 4 April 2001) [ Attorney General v. Coyne and Wallace 101 ILTR 17 (1963) ] [ Report of the Constitution Review Group, (Dublin: Rialtas na hÉireann, 1996) ]

The Official Languages (Equality) Bill 2002 - Outline

• (Getting past) The Title
• Sections 1-4: General/Definitions
• Section 5: Use of Official Languages in the Houses of the Oireachtas
• Section 6: Acts of the Oireachtas
• Section 7: Administration of Justice
• Sections 8-20: Public Bodies
• Sections 21-31: The Official Languages Commissioner
• Sections 32-33: Miscellaneous

• ( First Schedule: Public Bodies )
• ( Second Schedule: Official Languages Commissioner )

Some Reactions

• Seanad debates: 24 April 2002
• Language Organisations e.g. Comhdháil Náisiúnta na Gaeilge

The Way Forward ?

BACKGROUND

first - constitutional provisions

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 -

• from the outset - judgments framed in the language of 'rights' - note 'double' rights construction (natural justice and constitutional language choice rights) - and also: the individual's competence in either language is not decisive - choice remains with citizen;
• converse of language rights construction - courts emphasised state duty re: their recognition and implementation;
• generally - right to use Irish in court proceedings (costs e.g. interpreters borne by the State) BUT - not to Irish speaking judge or jury; interpretation in English of any evidence given in Irish only required to be recorded; choice of language has been extended to the State; nothing re: interactions with other public bodies;
• right to obtain official documents in Irish - BUT - no general duty of translation on the State; apart from re: Acts of the Oireachtas;

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 -

1. The Irish language and the English language are the two official languages.
2. Because the Irish language is a unique expression of Irish tradition and culture, the State shall take special care to nurture the language and to increase its use.

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OFFICIAL LANGUAGES (EQUALITY) BILL - OUTLINE

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

(Getting past) The Title

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.

...legislative dishonesty...?

Sections 1-4: General/Definitions

note generally: 'rights' terminology very rarely used even though, clearly, ethos of the bill thus intended

Section 5: Use of Official Languages in the Houses of the Oireachtas

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)

Section 6: Acts of the Oireachtas

codifying SC decision by affirming that acts must be published in Irish/English simultaneously

Section 7: Administration of Justice

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
BUT -
s. 7(5)	goes on to state, however, that 'notwithstanding any other provision of this section, a person shall not be compelled to use a particular official language in any proceedings' so: ? this formulation also reflects different intended legislative - equality - and constitutional - priority - standards

(point of debate - linguistic competence re: public servants ?)

Sections 8-20: Public Bodies

note at outset - no general duty of translation still re: official forms/documents;
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 ...

• guidelines for preparation of schemes to be issued by Minister
• BUT - Minister 'may' write to the head of a public body to prepare and present a draft scheme - no binding duty here ...
• if required - public body would devise its own scheme re: measures it intends to put in place re: ensuring linguistic equality in provision of services; and it must ensure that 'an adequate number' of its staff are competent in Irish
• acceptance of scheme - rests with Minister - who can amend as s/he 'considers appropriate'
• note: if public body doesn't respond - all Minister can do is report to Oireachtas

list of public bodies in First Schedule:

over 200 listed - includes - as might be expected -

• government departments
• State Solicitor/Attorney General/Director of Public Prosecutions/Revenue Commissioners Offices
• health authorities

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

Sections 21-31: The Official Languages Commissioner

Independent already established to considerable effect in other bilingual and plurilingual jurisdictions - and so to be welcomed here

functions ?

outlined in section 22, including -

• monitoring compliance of public bodies with 'provisions, purposes and spirit' of the legislation;
• investigations re: failure of public body to comply with the legislation (at request of Minister, via complaint made by any person, or own initiative);
• powers re: obtaining evidence/information etc re: carrying out investigative function;
• where failure re: compliance is found - redress = financial compensation (section 28) - if such a scheme set up by Minister with consent of Minister for Finance ... nothing in Bill which creates a duty to redress the cause of the complaint substantively ...

Sections 32-33: Miscellaneous

( First Schedule: Public Bodies )
( Second Schedule: Official Languages Commissioner )

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SOME REACTIONS

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

including -

• suggestion that the Gaeltacht be establish as a separate court 'district' and 'circuit' in itself, to be administered through Irish, and with facilities to be made available if persons wish to proceed through English; also that Irish would be working language of public bodies located in the Gaeltacht;
• also extending scope of legislation to private companies located in Gaeltacht - since receive state support;
• extension of rights re: court proceedings to criminal as well as civil cases;
• deletion of dependency on 'scheme' re: rights to access to public services etc.
• replace 'Minister may' with 'Minister shall' re: initiating preparation of draft schemes; plus 'Minister shall' set up compensation scheme re: non-compliance with Act by public bodies;
• asks that Commissioner be appointed within 3 months of enactment of the Bill;
• and - while acknowledging that list of public bodies very comprehensive - suggests some additions - including (ironic that left out in first place) Law Society and Bar Council ...

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THE WAY FORWARD ?

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

NOTE -

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.