Gaeilgeoiri says 18th Century Ban Discriminates Against Language

From today’s Irish News, by Bimpe Fatogun:

Penal laws-era repression or common-sense legislation? Evidence from leading historians is to be heard at Belfast High Court today as it decides whether to uphold a centuries-old ban on the Irish language within its precincts. Bimpe Fatogun reports…

IT’S not every day that the High Court in Belfast discusses the pros and cons of a law passed by a parliament dissolved more than two centuries ago.

Today the right of access to an ancient language will be pursued through modern human-rights legislation.

The case, on the face of it, is a minor one.

It follows an attempt by a west Belfast man to apply for a drinks licence in Irish.

Caoimhin Mac Giolla Cathain, a member of the Shaws Road Gaeltacht community, wanted the permit for a concert being organised at the Culturlann centre on the city’s Falls Road.

However, his law firm, Michael Flanigan Solicitors, was told that any application had to be made in English under the provisions of the obscure Administration of

Justice (Language) Act Ireland of 1737.

This decrees “that all proceedings in courts of justice within this kingdom shall be in the English language”.

The quaintly worded law includes the following rather wordy explanation: “Whereas many and great mischiefs do frequently happen to the subjects of this kingdom from the proceedings in courts of justice being in an unknown language; those who are sum- moned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their lawyers and attorneys, who use a character not legible to any but persons practising the law.”

The wording alone appears to open up the argument that this 18th century statue might be a tad outdated.

It was passed by the Irish Parliament – itself abolished by the Act of Union in 1801.

The law refers anachronistically to the “proceedings of courts-leet, courts-baron, and customary-courts, and all copies thereof… within this kingdom”.

However, that is not the main plank of the argument put forward by Mr Mac Giolla Cathain and his legal team for the judicial review hearing granted in April.

They contend that the act is discriminatory against the Irish language and must be repealed if the United Kingdom is to fulfil its obligations under the Human Rights Act and European treaties.

One argument is that it is a hangover from the punitive penal laws.

To this end the legal team has drawn on the expert evidence of, among others, Stranmillis University College historian Dr Eamon Phoenix.

He has prepared a submission for the court which supports the view that the law was passed in the spirit of

that time of Irish Catholic

oppression.

The case, which is due to be heard today, has drawn in two of the north’s most respected barristers – Michael Lavery QC for the applicant and Paul Maguire QC for the government – and sparked wider interest.

Irish language campaigners have seized upon it.

Janet Muller, chief executive of Pobal, an umbrella organisation for Irish-language groups, has prepared an affidavit which will be included in the evidence.

“This is an outdated and unfair law which discriminates against the Irish language and against Irish speakers,” Ms Muller said.

“In Wales, Welsh speakers have had the right to use Welsh in court proceedings of all kinds since 1942.

“In Scotland, there are a number of courts where Gaidhlig can be heard on a daily basis if requested.

“The evidence which I am placing before the court shows that the British government is once again guilty of applying double standards to the users of the different primary indigenous languages on these islands.”

Ms Muller argues that continued application of the act contravenes the rights of Irish speakers under the Good Friday Agreement, the Human Rights Act, the European Charter for Regional or Minority Languages and the Framework Convention.

Penal laws began to be seriously enforced in Ireland from the late 1500s – part of a determined effort to impose English culture and government control throughout Ireland for the first time.

The ‘plantations’ of Ireland brought with them the anti-Catholic legislation which would eventually disenfranchise the richest of the Catholic Irish and Presbyterian Scottish settlers in favour of a minority of Church of Ireland worshippers.

The following years saw a series of reversals and returns to the laws as the British monarchy’s attitude to its Catholic subjects fluctuated from king to king.

New penal laws were passed after 1695 and at this stage there was an even more determined effort to enforce them.

Among the discriminations now faced by Catholics and Dissenters under the penal laws were: exclusion from most public office; a ban on inter-marriage with Protestants; a bar from holding firearms or serving in the armed forces; exclusion from voting, the legal professions and the judiciary and owning a horse worth more than £5.

Dr Phoenix said he has made the argument that the 1737 act “belongs to the penal laws in Irish history which sought to discriminate against the majority population”.

The law has been repealed completely in Britain, where it was seen to adversely affect Scottish and Welsh speakers.

The Lord Chancellor’s office is defending the High Court action in Belfast.

It is likely to argue that the leglislation was simply passed to aid the work of the courts and is not discriminatory.

The law itself makes no specific mention of barring Irish (or Welsh and Scottish) from the courts, confining itself to references to Latin and French – previously significant languages in official proceedings.

Indeed its convoluted legal language could be seen to back the government’s case.

“All proceedings whatsoever in any courts of justice within this kingdom, and which concern the law and administration of justice,” it says, “shall be in the English tongue and language, and not in Latin or French, or any other tongue or language whatsoever, and shall be written or printed in a common legible hand and character, and not in any hand commonly called court-hand, with the like way of writing or printing, and with such abbreviations, as are now commonly used in the English language, and with the like manner of expressing numbers by figures as have been heretofore or are now commonly used in the said courts respectively.”

However, Mr Justice Weatherup’s ruling earlier this year that Mr Mac Giolla Cathain’s right to access the courts might have been interfered with means there will be much debate before the case is decided.