Irish Language in the Courts, South and North
The Irish Times reports that Irish was not even among the top ten most used languages in the courts last year. The cost of providing interpretation services for Irish was less than €2,000 in total during 2006 and fell further to €1,012 in 2007, according to official figures provided by the Courts Service. By contrast, over 10,000 requests were made to the Courts Service last year for interpreters for 71 different languages. Polish topped the list. The other main languages were Romanian, Lithuanian, Russian, Mandarin Chinese, Latvian, Portuguese, French, Czech and Arabic.
Section 8 of the Official Languages Act 2003 provides that a person has the right to be heard and to use the Irish language in the courts. Irish is recognised as the first official language in Article 8 of the Constitution, but allows the legislature to make provision for the exclusive use of Irish or English in a particular context. The leading case is Ó Beoláin v. Fahy  2 I.R. 279. You can read about Ó Beoláin in Irish and in English in this article by UCC’s Seán Ó Conaill in the 2008 Irish Student Law Review. In that case, Hardiman J. held in the Supreme Court that:
it is not possible (at least in the absence of law of the type envisaged in Article 8.3) to exclude Irish, which is the national language and at the same time the first official language of the State, from any part of the public discourse of the nation or from any official business of the State or from the official business of any of its members. Nor is it possible in these contexts to treat it in a manner which is less favourable than the way in which the second official language is treated. Neither is it possible to prevent those who are capable and desirous of using Irish in making their case or in communicating from so doing or to disadvantage them when so doing in any national or official context.
An Coimisinéir Teanga Seán Ó Cuirreáin, whose office constitutes an ombudsman service and compliance agency in relation to state services through Irish, puts the matter down to a perception of ‘compulsory English’ in the courts system:
“It appears that many Irish speakers, even in the strongest Gaeltacht areas, are either unaware of their right to use Irish in court business or remain convinced that it is in their best interests to leave their language rights and preferences aside and opt for English as the default language of the law…”
Hardiman J. spotted this very problem in 2001, describing the prevailing situation in relation to Irish in the courts as one in which
only a person of unusual independence will attempt to conduct his or her legal business through the medium of Irish… They [instances cited as exceptions to the norm] cannot at all contend with the stark reality that the individual who seeks basic legal materials in Irish will more than likely be conscious of causing embarrassment to the officials from whom he seeks them and will certainly become conscious that his business will be much more rapidly and efficaciously dealt with if he resorts to English. I can only say that this situation is an offence to the letter and spirit of the Constitution.
The Language Commissioner has launched an information campaign to counteract the perception of ‘compulsory English’. In his press release, the Commissioner argues that it is ‘an abuse of human rights to conduct court proceedings without due regard to the language ability of participants’. He refers to a survey commissioned by the Health Service Executive in areas of the Gaeltacht in 2007 which showed that 75% of those surveyed could express themselves better in Irish than in English when dealing with health professionals and suggests that ‘[t]he same would more likely than not be true in their dealings with the courts
and with legal issues…’
The press release further notes that, although the low cost of English-Irish translation services can be attributed to cases in which judge, lawyers and parties were fluent in Irish, those cases are ‘negligible’. A real question arises as to whether the use of the language is inhibited because legal professionals are not competent, or prefer not to, run cases through Irish. The Legal Practitioners (Irish Language) Act 2008 abolishes the statutory requirement for barristers and solicitors to pass an examination in the Irish language as a condition of qualification, replacing the examination with a voluntary course of training which would enable practitioners to obtain a specialist language qualification. It is hoped that this reform will establish a coterie of practitioners willing and able to assist litigants who wish to use the Irish language in the courts (see a letter to the Irish Examiner by students at the King’s Inns responding to the development here).
Very different questions arise in Northern Ireland. In July of this year the High Court of Justice in Northern Ireland ruled in the case of In re the Administration of Justice (Language) Act (Ireland) 1737  NIQB 66. Caoimhin Mac Giolla Catháin, a Belfast Irish speaker, challenged a decision of the Northern Irish Courts Service refusing him permission to lodge a court application for an occasional liquor licence drafted in the Irish language, on the basis that the Administration of Justice (Language) Act (Ireland) 1737 requires that all proceedings be in English. He argued
first, that the Administration of Justice (Language) Act (Ireland) 1737 (“the 1737 Act”) – which requires that, in Northern Ireland, all court proceedings and associated documents be in the English language – is incompatible with the European Charter for Regional and Minorities Language (“the Charter”), specifically Article 7(2), and as such is in breach of his legitimate expectation that the UK will act consistently with its international legal obligations under the Charter; and secondly that the prohibition under the 1737 Act of any language other than English in Courts breaches his rights under the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) and specifically Article 14 taken together with Article 6.
The court rejected the first submission on the basis that the Charter, which has not been embodied in domestic legislation, does not bind the UK government. The court further held that there was no breach of Article 6 (and hence none of Article 14) because:
Article 6 is about the fairness of proceedings in the determination of civil rights or obligations or a criminal charge. The right contained in Article 6 is entitled the “Right to a Fair Trial”. It is incontestable that such a right might be jeopardised in circumstances where a party to the proceedings could not fully understand them if they were conducted in English without any form of translation facilities. However that is not the case before the court. As has already been observed the applicant is fluent in English and is fully competent to transact court business in English and the determination of any application for an occasional liquor licence has in the past been determined successfully in favour of the same premises on no fewer than six occasions since January 2008 when the applications were all processed in English. As fairness is not at risk I accept the respondent’s submission that Article 6 is not in play and that the necessary connection to enable the court to conclude that the applicant’s Article 14 complaint is within the ambit of Article 6 cannot be found.
The court acknowledged that it is permissible, under statute, to use Welsh in the Welsh courts and Scots Gaelic in the Scottish courts. It further accepted that the UK government made a number of commitments to promote the Irish language in the Good Friday Agreement. None of this was relevant to the final decision. There is also some interesting discussion in the judgment on the historical purpose of the 1737 Act.
Mr Lavery QC on behalf of the applicant submitted that Article 7(2) was infringed because the 1737 Act was a measure “intended to discourage or endanger the maintenance or development” of the Irish language. He submitted this was the effect of the Act because it denies legitimacy to the use of Irish in all court proceedings whatsoever; that persons, such as the applicant, for whom Irish is their first language and who speak Irish in their everyday lives consider not only that the development of the language is hampered by the blanket ban on the use of Irish in court proceedings but that it also amounts to an affront to the Irish language and its speakers in keeping with what he described as the historic policy of attempting to Anglicize the Irish people and destroy their native culture which was regarded as barbaric and inferior; that this was explicit in earlier times when the Irish were described as the “mere” Irish and that remnants of this are to be found to the present day as in the hostility of many to the Irish language; that the Act was clearly passed to further that policy and the attempt to justify such an enactment was he submitted hardly consistent with a commitment to create a multi-cultural and equal society as stipulated in the agreement; that in 1737 English was not the language spoken or understood by the whole of the vast majority of the population of Ireland or even indeed what was to become Northern Ireland; that the aim of the statute was not therefore simply to secure the orderly transaction of court business in a language understood and used by the majority.