Is it not time to put an end to the idea of compulsory Irish for lawyers, asks Henry Murdoch
It is time for us to recognise that the Irish language would be better served by removing the remaining compulsory elements associated with it, including the proficiency requirement for lawyers.
There is probably no better example of the difference between the law and the reality than the way in which the Irish language actually operates in practice in the legal system. In law the Irish language is the national language, and being the first official language, it ranks higher in the law than English. But the reality is that the English language dominates.
A litigant has a constitutional right to conduct his or her case in the Irish language and to have available the Rules of Court and Acts of the Oireachtas in the Irish language. The reality is that virtually all Acts are enacted in English and, since the mid-1980s, very few have been translated into Irish.
The Official Languages Act 2003 provides that from July 2006 the text of Acts will be printed and published simultaneously in Irish and English. However, the Rules of Court and the thousands of Statutory Instruments are predominantly in English. Again the reality is that the English language dominates in the law. Of course, this reflects the reality of the dominance of English as the spoken and written language of the people of Ireland. Every effort by successive governments to increase the use of the Irish language has failed.
Despite the relative success of the Irish-speaking schools (Gaelscoileanna) and the fact that more people now have a knowledge of the Irish language, there are probably less people speaking Irish as their daily language now than existed when we got our independence in 1922.
Many persons associate this failure with the compulsory approach taken to the learning of Irish. Up to recently, failing to pass Irish in the Leaving Certificate, closed off a huge number of employment and educational opportunities. Even today, failure to pass Irish in the Leaving Certificate, bars the person from entry to most Irish universities, even for a degree in a technical area.
It is now appropriate in the new millennium to revisit the whole approach to the Irish language. We are not consistent in our approach to it. We support the concept of an Irish language television station TG4, but turn a blind eye to the fact that it contains a high proportion of English. We require solicitors and barristers to have a particular proficiency in Irish, even when the demand for this proficiency is not evident on the ground.
Under a 1929 Act, proficiency in the Irish language has been a prerequisite to qualifying as a solicitor or barrister. Solicitors must pass the examination of the Law Society and barristers must satisfy the Chief Justice on their competence.
The 1928 Bill which proposed the requirement for proficiency in Irish for lawyers was the subject of bitter controversy in the Dáil, with the Law Society being particularly pilloried for their opposition to the measure, which their then president described as "atrocious" and "tyrannical".
Particular contempt was poured on the Law Society suggestion that they would support the measure if there were a similar requirement for candidates for election to the Dáil! The Benchers of Kings Inns were acknowledged to have been marginally more co-operative. Perhaps that is the reason for the different provisions regarding barristers, which are perceived as more benign than those applying to solicitors.
The 1929 Act specifies that no person may be admitted to practise as a barrister unless he satisfies the Chief Justice, by such evidence as the Chief Justice prescribes, that he possesses a competent knowledge of the Irish language.
Kenneth Ferguson, in his recent book King's Inns Barristers 1868 - 2004 lists the 63 overseas Kings Inn students from 17 countries, from Bahrain to Zimbabwe, who have been admitted as barristers since 1952 having so satisfied the Chief Justice. As Ferguson says: "A glance at the text of the (1929) statute would suggest that the spirit of mercy, in prodigious proportions, must have inspired the evidentiary standards of the Chief Justice."
Seriously though, the question must be raised as to why proficiency in Irish is an entry requirement to the legal profession when the demand for this proficiency is not evident on the ground? The Supreme Court in 1999 recognised the reality on the ground as regards jurors, where it held in a case conducted in the Irish language (MacCarthaigh v Éire), that there is no requirement for the jury to have the capacity to understand the Irish language without the assistance of an interpreter.
There is provision for interpreters in the courts and for the translation of any affidavit, summons, petition or notice from English into Irish and from Irish into English. Surely this is an adequate safeguard for the client. In any event, how many solicitors and barristers currently have the proficiency in Irish which they had on their enrolment or call? I would venture - not many.
And to cap it all, EU lawyers admitted as solicitors in Ireland since 1991 do not have to have one word of Irish. Under EU mutual recognition arrangements, qualified lawyers of EU countries are entitled to be admitted as solicitors in Ireland having passed a test in certain specified subjects, which do not include the Irish language. This is a pragmatic approach and reflects the reality but it raises the question as to why we have an Irish language test for Irish persons who wish to become a solicitor and not for our fellow Europeans.The Irish Language Commissioner in his first Annual Report in 2005 had to acknowledge that less than 1 per cent of Dáil and Seanad debates were conducted in Irish.
Conradh na Gaeilge asks us to accept that the Irish language is a vital component of our identity, central to a definition of Irishness in cultural terms. Of course it is, but it is also the English language, as we Irish speak it and write it, that is a vital component of our identity, central to a definition of Irishness in cultural terms. Think of George Bernard Shaw, Oscar Wilde, W B Yeats, James Joyce, John B Keane, John McGahern, Séamus Heaney, Dermot Healy, Colum McCann, and John Banville. Need I say more.
It is now time to recognise the reality that the Irish language is not the spoken day-to-day language of the people. It is time to remove those compulsory Irish language proficiency requirements which remain and which provide an unfair barrier to third-level education and to the legal profession. Proficiency in the Irish language should continue to be a requirement where there is a demonstrated need for such proficiency. The rights of persons to litigate in the Irish language should be protected, as should their ability to deal with State services in the Irish language.
There is genuine goodwill for the Irish language. It is likely that a more liberal approach to it, removing compulsion, would result in a greater interest in the language as has happened with the Welsh language, which is increasingly associated with a rich cultural identity.
Henry Murdoch is the author of Murdoch's Dictionary of Irish Law 4th edition (2004) and Murdoch's Irish Legal Companion 2005 on CD-rom and online