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Fortnight Publications Ltd

The last of the Penal LawsAuthor(s): Ciarn DunbarSource: Fortnight, No. 457 (FEBRUARY 2008), pp. 9-10Published by: Fortnight Publications LtdStable URL: http://www.jstor.org/stable/25704115 .

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would be served by an attempt toenshrine such principles from theAgreement ina Bill ofRights.That is a legitimateposition whichmerits further ebate. But there is analternative view.

'Justice' theLondon based humanrightsorganisation - points out in arecent Report on British Bill ofRights' that 'billsof rights re unusualin that theyare a combination of law,symbolism and aspiration. So a Bill ofRights for Northern Ireland couldcontain the symbolism and aspirationof an ethical as well as a legalframeworkto help resolve the historicissues of contention between the twocommunities.Thus formal validity could be givento the concepts ofmutual respectandparity of esteem as theyappear in theAgreement.What then would be thelist of such rights within suchframework?The late Stephen Livingstone (somuch missed) suggested a list at aConference inQUB in2001: language,

citizenship, flags, marches andeducation. This isnot a closed listbutit is correctlyfocused in termsof theAgreement. Nor is this a 'restricted' ornarrow' view of the taskposed by theAgreement. Rather it is an attempt tograpplewith the real task set forus bytheAgreement. The Agreement doesnot contain a mandate for a Bill ofRights encompassing all rights'.Anyone may hope and campaign forsuch a comprehensive Bill, but that isnot the task setout by theAgreement.Many of the problems of our pastderive, I suggest,from the readiness ofeach of the two historic communitiesto seek advantage over the otherregardless f respectforthe ruleof law.But the ruleof law demands respectforand compliance with the textof legaldocuments such as the Agreement.Those who seek to tamperwith theterms of the Agreement ignore thegreat opportunity which theAgreement presents to address theissues of division between those twocommunities. But they also dosomethingwhich isunconscionable: toendanger respectfor the ruleof lawbyeveryone inNorthern Ireland.

Neil Faris is solicitor and member of the Bill ofRightsForumappointed to be reflectivef thebusiness sector

The last of the Penal LawsCiar?nDunbar nearths heunedifyingistoryf thebanon theuse of Irish n urcourts ndarguesthatnow is the ime or change

The recent court caseinvolving elfast schoolteacher Maire Nie an Bhairdhas brought to publicattention the status of theIrishLanguage in heNorthern IrelandJudicial

system. She was arrested inMay 2006 and chargedwithdisorderlybehaviour,convicted inFebruary2007and fined?100 butsubsequently found notguilty n appeal. Shemaintained that the reason

for her arrest wasultimatelyfor speaking forspeaking Irish in he

presence of the PSNI.^ ^he also requested that her caseObe heard in Irish and that thecourt documents be supplied to her inIrish. But this was refused as Irishspeakershave no right ouse Irish intheNorthern Ireland Courts. Irish is notpermitted to be spoken in court andevidence in Irish in inadmissible.This prohibition dates back to theAdministration of Justice (Language)Act (Ireland) 1737) which remains inforce inNorthern Ireland.The primaryaim of theAct was supposedly to ensurethat the common people couldcomprehend legal proceedings bybanning the use of what would nowprobably be called legalese, as well asLatin and French.The Act beginswiththis statement of intent.Whereas many and greatmischiefsdo frequentlyhappen to the subjectsof thiskingdom from theproceedings incourts of justicebeinginan unknown language;There is no mention in theAct ofIrishor any other Celtic language. But

theirprohibition is implied in the term*.. .any other tongue or languagewhatsoever*. The fact that the Irishlanguage isnot evenmentioned, despiteits position as the single and onlylanguage of thevastmajority of peoplethroughout Ireland at the time,irrefutably emonstrates that the newlaw did not infact

... protect the livesand fortunesofthe subjects of thiskingdommoreeffectively hanheretofore from theperil of being ensured, and broughtintodanger, by forms ndproceeding in courtsof justice in anunknown language.Itmust be admitted that thiswasindeed the original aim of the law

originally enacted by the Englishparliament as theWestminister Act1731. As Seamus deNapier has argued,'the Irish Parliament ignored thatbasicreason forwhich theWestminister Act1731 was enacted, and, shrewdly, theyaccepted in 1797, thewording of theAct without change as a resultmore ofracism than of ignorance, despite thefact thatonly a minority of people inIreland spoke English at the time.Theentrenching of the English speakingworld against the Irishspeakingworld was the intention inDublin atthe time. A secret Penal Law1', (mytranslation).The 1797Act legallyentrenched theposition of theEnglish Language as thelanguage of the courts in Ireland.As aresultthe statusof theEnglish languagein Irelandwas raised immeasurably. Itwas a severeblow to the Irish languageand to its speakers and theirassociatedculture.The effect f thisnew law in Ireland,whether by accident or design,was thusthe opposite of its stated intent. Bylegallybarring the Irish language fromthe courts, it rendered theadministration of justice animpossibilityto all but a smallminority

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in Ireland. Itdiscriminated against thosewho spoke nothing but Irish andhanded an automatic advantage toEnglish speakers in all areas of lifeaffectedby theoperation of lawThere is some evidence that 'languagemen were occasionally employed inIrish courts. But there was norequirement that they be in anywayqualified and therewas no right torequest such an interpreter nor anyrequirement that such a person beprovided.In 1984 permission to speak Irish incourt was briefly granted in the 0Fiaich case. But a week later Sean 0Can?in's attempt to defend himself inIrishwas ignoredby themagistrate andhewas subject to a fine.Mr 0 Can?inrefused to pay the fine and wassubsequently sentenced to fourteendaysimprisonment.Now that theUK government hassigned the European Charter forRegional andMinority Languages somechangemight be expected.However, ithas accepted only one paragraph ofArticle 9 of in relation to Irish and thejudicial system:The Parties undertake tomakeavailable in the regionalorminoritylanguages the most importantnational statutory texts and thoserelatingparticularly tousers of theselanguages, unless they are otherwiseprovided.Even this limitedprotection,however,has not been delivered.Therese Gormanwrote in 2002 that '[a]t this stage not

onlyhas thiswork not been undertaken,it is not even clearwhich governmentdepartment is responsible for theimplementation of this provision ...thiscan hardly be viewed as complyingwith theprinciples outlined inpart twoof thecharter... [and] offers ery limitedscope for the promotion of Irish in thejudicial system.'Until the 1737 JusticeAct is repealed, it prevents thegovernment from ratifying ny otherprovisions of the charter relating to thelegal system.The prohibition on theuse of Irish inthe judicial system ontrastsstarkly iththe status of theWelsh language.Though Welsh speakers are alsouniversally bilingual with English, theright to useWelsh in the courts wasenshrined by theWelsh Courts Act(1942).

...it ishereby enacted that theWelshlanguagemay be used inany court inWales ... by any party or witnesswho considers thathe wouldotherwise be at a disadvantage byreasonof his natural language beingWelsh.

TheWelsh Language Act 1967 addedto this by providing that 'theWelshLanguage may be spoken by any party,witness or other person who desires touse it'. he rightto useWelsh inWelshcourtswas then made absolute in theWelsh Language Act 1993.The status of Scottish Gaelic in theScottish judicial system, however, islittle better than that of Irish here.Scottish Gaels have no right to giveevidence before any court inGaelicunless they are monoglots. This wasestablished in 1982 in thecase ofTaylorvs. Haughey. The Gaelic Language(Scotland) Act 2005 contains noprovisionwhich changes thisstatus. heCrofters Holding Act 1886 and theCroftersAct 1993 which superseded it,however, does require that one memberof the four person Crofter'sCommission should be a GaelicSpeaker.And under the Scottish LandThe Administration fJusticeLanguage) ct(Ireland)737representsthe last ofthePenal Laws - 'asecret Penal Law'

Court Act 1993 one of sevenmembersof that court is also required to be aGaelic speakerThe treatmentof Irishalso contrastswith the treatmentof the speakers ofimmigrant anguageswho are entitled toavail of interpreterst all stages of thejudicial process under the auspics ofSection 75 of theNorthern IrelandAct1998.The Irish Language umbrellaorganisation Pobal has demanded thatthat the 1737Act be repealed and thattheuse of Irish should be facilitated inthe courts. Its response to the SecondDCAL Consultation Paper on the IrishLanguage Act argues that

... the courts should bear the costsof translation nd that the repealofthe 1737Administration of Justice

(Language) Act (Ireland) isoverdue.We welcome theproposal in thesecond document thatan Irishlanguageoath should be recognisedwithin the courts and tribunals.

However, access to use of Irish mustnot be subject to exemption based on"the interests f justice". Irishlanguage documents must have equalvaliditywith English languagedocuments in the administrationofjustice.

However on 16 October 2007 theMinister forCulture Arts and Leisure,Edwin Poots, formally rejected calls foran IrishLanguage Act and confirmedthathewill bringno suchBill before theStormont Assembly: I remainunpersuaded that there is a compellingcase for progressing legislation, at thistime.There is, inmy view, insufficientcommunity consensus; potentiallysignificant costs; and a real possibilitythat legislation could undermine goodrelationsand in so doing prove counterproductive to thosewishing to see thelanguage developed in a non-politicisedand inclusive manner.The Administration of Justice(Language) Act (Ireland) 1737representsthe lastof thePenal Laws - asecret Penal Law' as Seamus de Napierhas entitled it. It is a relic and ananachronism. It is a piece of legislationwhich must be removedfrom thestatutebook before it an truly e said that rishspeakers have achieved any measure ofequality in Northern Ireland. Irishspeakers,especiallynative Irishspeakers.

AdministrationfJusticeLanguage)Act (Ireland)1737

1de Napier, S. 'Andli agus ciirsai teanga idTuaisceart Iiireann inLanguage and Law inNorthern Ireland, 27, (B^al Feirste,Cl0 Ollscoilna Banriona, 2003)Ciaran Dunbar is full ime researcherwith theNorthern IrelandPlace-NamesProject,Dept. of IrishandCeltic,QUB and a regularcontributorto the Irishlanguagemedia.

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