Fortnight Publications Ltd

The last of the Penal Laws

Author(s): Ciarán Dunbar
Source: Fortnight, No. 457 (FEBRUARY 2008), pp. 9-10
Published by: Fortnight Publications Ltd
Stable URL: http://www.jstor.org/stable/25704115 .
Accessed: 15/05/2011 20:14

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at .
http://www.jstor.org/action/showPublisher?publisherCode=fortpub. .

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

Fortnight Publications Ltd is collaborating with JSTOR to digitize, preserve and extend access to Fortnight.

http://www.jstor.org
would be served by an attempt to
enshrine such principles from the
Agreement in a Bill of Rights.
The last of the Penal Laws
That is a legitimate position which
merits furtherdebate. But there is an Ciar?nDunbarunearthstheunedifying of the
history
alternative view. ban on theuse of Irishinourcourtsand argues that
-
'Justice' the London based human now is thetimefora change
-
rights organisation points out in a
recent Report on British Bill of
that 'bills of are unusual
Rights' rights
in that they are a combination of law,
The recent court case theirprohibition is implied in the term
symbolism and aspiration. So a Bill of *.. .any other or
involvingBelfast school
tongue language
Rights for Northern Ireland could whatsoever*. The fact that the Irish
contain the symbolism and aspiration teacher Maire Nie an Bhaird evenmentioned, despite
of an ethical as well as a legal language isnot
has brought to public its position as the single and only
framework to help resolve the historic attention the status of the
issues of contention between the two language of the vast majority of people
IrishLanguage inthe throughout Ireland at the time,
communities.
Northern IrelandJudicial irrefutablydemonstrates that the new
Thus formal validity could be given
law did not in fact
to the concepts of mutual respect and system. She was arrested in
... protect the lives and fortunesof
parity of esteem as they appear in the May 2006 and chargedwith
the subjects of thiskingdom more
Agreement. What then would be the disorderly behaviour,
list of such rights within such
convicted in February 2007 effectivelythan heretofore from the
framework? peril of being ensured, and brought
The late Stephen Livingstone (so
and fined?100 but intodanger, by formsand
much missed) suggested a list at a subsequently found not proceeding in courts of justice in
an
Conference inQUB in 2001: language, guiltyon appeal. She unknown language.

citizenship, flags, marches and
education. This is not a closed listbut
it is correctly focused in terms of the
Nor is this a 'restricted'
Agreement.
narrow' view of the task posed by the
Agreement.
Rather it is an attempt
us
grapple with the real task set for by
the Agreement. The Agreement does
not contain a mandate for a Bill of
all rights'.
Rights encompassing
Anyone may hope and campaign for
such a comprehensive Bill, but that is
not the task set out by theAgreement.
Many of the problems of our past
derive, I suggest, from the readiness of
each of the two historic communities
to seek advantage over the other
regardlessof respect for the rule of law.
But the ruleof law demands respectfor
maintained that the reason It must be admitted that this was
for her arrest was indeed the original aim of the law
or ultimatelyfor speaking for originally enacted by the English
as the Westminister Act
speaking Irish inthe parliament
1731. As Seamus de Napier has argued,
to
presence of the PSNI. 'the Irish Parliament ignored that basic
reason forwhich theWestminister Act
also requested that her case
^ ^he
Obe heard in Irish and that the 1731 was enacted, and, shrewdly, they
court documents be supplied to her in accepted in 1797, thewording of the
Act without change as a resultmore of
Irish. But this was refused as Irish
racism than of ignorance, despite the
no use Irish in the
speakershave rightto
Northern Ireland Courts. Irish is not fact that only a minority of people in
Ireland spoke English at the time.The
permitted to be spoken in court and
evidence in Irish in inadmissible. entrenching of the English speaking
world against the Irish speaking
This prohibition dates back to the
Administration of Justice (Language) world was the intention inDublin at
Act (Ireland) 1737) which remains in the time. A secret Penal Law1', (my
force inNorthern Ireland.The primary translation).

aim of theAct was supposedly to ensure The 1797 Act legally entrenched the
and compliance with the text of legal as the
as the
that the common people could position of theEnglish Language
documents such Agreement.
language of the courts in Ireland. As a
Those who seek to tamper with the comprehend legal proceedings by
result the statusof theEnglish language
terms of the Agreement ignore the banning the use of what would now
as well as in Ireland was raised immeasurably. It
great opportunity which the probably be called legalese,
was a severe blow to the Irish language
to address the Latin and French. The Act begins with
Agreement presents and to its speakers and their associated
this statement of intent.
issues of division between those two
culture.
communities. But they also do Whereas many and greatmischiefs The effectof thisnew law in Ireland,
something which is unconscionable: to do frequentlyhappen to the subjects whether by accident or design,was thus
endanger respect for the rule of law by of thiskingdom from the the opposite of its stated intent. By
everyone inNorthern Ireland. proceedings in courts of justice being legallybarring the Irish language from
in an unknown language; the courts, it rendered the
There is no mention in the Act of administration of justice an
Neil Faris isa solicitor and member of the Bill of
Irish or any other Celtic language. But impossibility to all but a smallminority ^
Rights Forum appointed to be reflectiveof the
business sector

FORTNIGHT 2008
FEBRUARY 9
|
 in Ireland. Itdiscriminated against those ...it ishereby enacted that theWelsh (Language) Act (Ireland) isoverdue.
court in We welcome the proposal in the
who spoke nothing but Irish and languagemay be used in any
handed an automatic to Wales ... or witness second document that an Irish
advantage by any party

English speakers in all

areas of life who considers that he would language oath should be recognised
affectedby the operation of law otherwise be at a disadvantage by within the courts and tribunals.
There is some evidence that 'language reason of his natural language being However, access to use of Irish must

men were occasionally employed in Welsh. not be subject to exemption based on

Irish courts. But there was no "the interestsof justice". Irish
The Welsh Language Act 1967 added must
requirement that they be in anyway
documents have
language equal
to this by providing that 'theWelsh
qualified and there
was no right to validitywith English language
such an nor Language may be spoken by any party, documents in the administration of
any
request interpreter witness or other person who desires to
that such a be justice.
requirement person use it'.The right to useWelsh inWelsh
provided. courts was then made absolute in the However on 16 October 2007 the
In 1984 permission to speak Irish in Minister forCulture Arts and Leisure,
Welsh Language Act 1993.
court was briefly granted in the 0
The status of Scottish Gaelic in the Edwin Poots, formally rejected calls for
Fiaich case. But a week later Sean 0 an Irish Language Act and confirmed
Scottish judicial system, however, is
Can?in's attempt to defend himself in thathe will bring no such Bill before the
little better than that of Irish here.
Irishwas ignored by themagistrate and Stormont Assembly: I remain
Scottish Gaels have no right to give
he was subject to a fine.Mr 0 Can?in a
evidence before any court in Gaelic unpersuaded that there is compelling
refused to pay the fine and was case for progressing legislation, at this
unless they are monoglots. This was
to
subsequently sentenced fourteendays established in 1982 in the case ofTaylor time.There is, inmy view, insufficient
imprisonment. vs. Haughey. The Gaelic Language community consensus; potentially
Now that the UK government has a real possibility
(Scotland) Act 2005 contains no significant costs; and
signed the European Charter for status.The that legislation could undermine good
some provisionwhich changes this
Regional and Minority Languages Crofters Holding Act 1886 and the relations and in so doing prove counter
change might be expected. However, it to see the
CroftersAct 1993 which superseded it, productive to those wishing
has accepted only one paragraph of in a
however, does that one member language developed non-politicised
require
Article 9 of in relation to Irish and the
of the four person Crofter's and inclusive manner.
judicial system: Commission should be a Gaelic The Administration of Justice
The Parties undertake tomake And under the Scottish Land (Language) Act (Ireland) 1737
Speaker. - a
available in the regional or minority represents the lastof the Penal Laws
as Seamus
languages
the most important The Administrationof secret Penal Law' de Napier

texts and those has entitled it. It is a relic and an

Act
national statutory

relatingparticularly to
users of these Justice(Language) anachronism. It is a piece of legislation

languages,
unless they
are otherwise
(Ireland)1737 which must be removed from the statute
book before itcan trulybe said that Irish
provided.
represents the last of
the Penal Laws - 'a
speakers
have achieved any measure of
Even this limitedprotection, however,
equality in Northern Ireland. Irish
has not been delivered.Therese Gorman
wrote in 2002 that '[a]t this stage not secret Penal Law' speakers, especially native Irish speakers.

only has thiswork not been undertaken, Court Act 1993 one of sevenmembers of Justice(Language)
Administration
it is not even clear which government
of that court is also required to be a Act (Ireland) 1737
department is responsible for the Gaelic speaker
of this ...
provision
implementation The treatmentof Irish also contrasts
this can hardly be viewed as complying
with the treatment of the speakers of
with the principles outlined in part two
to
of the charter... [and] offersvery limited immigrantlanguageswho are entitled
avail of interpretersat all stages of the
scope for the promotion of Irish in the
judicial process under the auspics of
judicial system.'Until the 1737 Justice Section 75 of theNorthern IrelandAct
Act is repealed, it prevents the
1998.
government from ratifyingany other The Irish Language umbrella
to the
provisions of the charter relating Pobal has demanded that
organisation
legal system. that the 1737 Act be repealed and that
The prohibition on the use of Irish in
the use of Irish should be facilitated in
the judicial systemcontrasts starklywith
the courts. Its to the Second
response
the status of the Welsh language.
1
de Napier, S. 'An dli agus ciirsai teanga i
DCAL Consultation Paper on the Irish
speakers are also
dTuaisceart Iiireann in Language and Law in
Though Welsh
Language Act argues that Northern Ireland, 27, (B^al Feirste, Cl0 Ollscoil
universally bilingual with English, the na Banriona, 2003)
courts was
right to use Welsh in the
... the courts should bear the costs
Ciaran Dunbar isa fulltime researcherwith the
enshrined by theWelsh Courts Act of translationand that the repeal of
Northern IrelandPlace-Names Project,Dept. of Irish
(1942). the 1737 Administration of Justice and Celtic, QUB and a regular contributor to the Irish
languagemedia.

10 FORTNIGHT FEBRUARY 2008