English is the working language of court proceedings in Northern Ireland; interpretation and translation services are provided for those who do not speak or understand English. Whether this policy is informed by the Penal Laws is currently contested.
In a recent Facebook post (3/8/2018) discussing “concerns that Irish speakers would be given the right to use Irish in the courts”, Linda Ervine stated:
At present other languages can be used in courts it is only Irish that is banned. This ban was part of the penal laws. Removing the ban will be a symbol of a new respect for a language which was once spoken by the majority of people here.
This statement builds on previous debates on the position of the Irish language in courts in Northern Ireland.
The “ban” that Ervine refers to is as a result of the the Administration of Justice (Language) Act (Ireland) 1737, which in practice means that “all court proceedings in Northern Ireland, including any documentation relating to those proceedings, must be in English, except where an individual does not speak or understand English”.
Historically, English was compelled to be used in courtrooms from 1362 in England, 1535 in Wales (repealed in 1887), and 1737 in Ireland.
The Welsh Courts Act 1942 and the Welsh Language Act 1967 allow for Welsh speakers to use the Welsh language in courtrooms.
In Ireland, the Constitution of Ireland 1937 (Article 8) allows for the exclusive use of Irish (first official language) or English (second official language). However, this does not extend to someone demanding that the whole proceedings of court be done in Irish.
We could not find Scottish legislation that informs what language can be used in the courtroom. In practice, it is the English language. The Gaelic Language (Scotland) Act 2005 gives “equal respect” to English and Gaelic, and includes“facilitating access, in Scotland and elsewhere, to the Gaelic language and Gaelic culture”. But unlike in Wales and Ireland, the Act does not provide for statutory equality of Gaelic.
We spoke with the Scottish Court Service, who advised us that requests for interpretation and translation services are at the discretion of the relevant judge, and in compliance with legislation to ensure a fair hearing. The Scottish Court Service also advised us that a previous Freedom of Information request revealed that it had received no requests for such services from any Scottish Gaelic speaker; there are no test case opinions.
In Northern Ireland, the original 1737 Act remains in place.
In 2009, the High Court rejected that the 1737 Act should be repealed. The legal case was as a result of an application made by Caoimhín Mac Giolla Catháin, after being informed that his application for an occasional drinks licence could not be considered, given that it was made in Irish. The applicant sought to judicially review the Act on two grounds: firstly that the Act was inconsistent with the UK’s ratification of the Charter on Regional and Minority Languages (ECRML); and secondly that the Act was inconsistent with UK’s ratification of the European Convention on Human Rights (ECHR). The original High Court decision was subsequently upheld by the Court of Appeal in 2010.
The Irish Times reported at the time that the Court of Appeal dismissed claims that the law was discriminatory and breached the European Convention on Human Rights (ECHR). Lord Justice Girvan, sitting with Lord Chief Justice Sir Declan Morgan and Lord Justice Coghlin, said that the Act had not been shown to be incompatible with any of Mr Cathain’s Convention rights, given that the provisions of the ECHR are concerned primarily with those who do not understand the language of the court and further noting that the applicant had previously successfully applied to the court for a licence in English.
“Conferring on individual litigants a right at their option to convert court forms from English into a language not understood by the vast majority of intended recipients would frustrate the interests of justices.”
“In a jurisdiction where English is the language of the overwhelming majority of the population the requirement that court documents initiating proceedings be in English as the working language of the court is a practical necessity in the interests of fairness.”
Therefore, it is not only the Irish language that is “banned” in courts, as stated by Ervine, but rather all languages other than English, though interpretation and translation services will be provided in cases where English is not spoken or understood by the individual concerned.
In the context of language rights and the wider political debate, Girvan stated:
“The way in which Irish should be recognised and valued in Northern Ireland is a matter of political debate. The Good Friday and St Andrew’s Agreements pointed up the issue. How the question should be dealt with is a question of policy not law. The court cannot resolve the issue or contribute to the political debate. It can only determine the present appeal by reference to the correct legal principles applicable under the existing law.”
The ban part of the Penal Laws?
The Penal Laws were a series of oppressive Acts passed in the 16th and 17th centuries, with the expressed view of discriminating against Roman Catholics, and indeed, dissenting Protestants.
Whether or not the Act constitutes an effective “Penal Law” was also considered in the initial case. A report on the case detailed that Mr Justice Treacy referred to analysis by historian Dr Eamon Phoenix, who concluded:
“The 1737 Act … can be viewed as a piece of discriminatory legislation directed at the mother tongue of the mass of the Irish population at that time … It is therefore the cultural equivalent of the penal laws.”
However, the court also considered the analysis of Dr McBride, King’s College, London, who stated:
“I cannot find any evidence to suggest that the Act was ever regarded as part of the ‘penal laws’, that it was intended as (an) anti-Catholic measure, or that it was intended to weaken the position of the Irish language in Ireland.”
However, Mr Justice Treacy did not deem this to be central to the legal issues presented in the above case, and the position of the Act as remnant of the Penal Laws was not taken into consideration.
In Wales and Ireland, dual English-Welsh/English-Irish speakers have a statutory right to use Welsh/Irish in the courtroom. In Ireland, there has been a test case that proves the discretion of a judge in which official language can be used in the courtroom; in practice the proceedings are in English. In Scotland, there has been no request for interpretation and transcription services in a courtroom from a dual English-Scottish-Gaelic speaker, nor any test case for the use of any language but English in the courtroom.
In all jurisdictions (England, Wales, Scotland, Northern Ireland, and Ireland), all provide interpretation and transcription services to ensure a fair hearing, per Article 6 of the ECHR.
Image: Laganside Courts. Northern Ireland Court Service. Belfast, Northern Ireland. CC BY-NC Allan LEONARD @MrUlster
FactCheckNI is Northern Ireland’s first and only dedicated independent fact-checking service and a verified signatory to the International Fact-Checking Network’s Code of Principles. You can learn more about about FactCheckNI, our personnel, what our article verdicts mean, and how to submit a claim.