Brian O'Shea (Waterford, Labour)

Cuirim fáilte roimh an Aire Stáit, an Teachta Ó Gallachóir, go dtí an Teach. Tá sé tar éis an Bhille seo a mholadh go dtí an Teach thar ceann an Rialtais. Déanaim chomh-bhrón leis an Aire, an Teachta Brian Ó Luineacháin, ar bhás a mháthair chéile — go ndéana Dia trócaire uirthi.

Tá áthas orm labhairt sa díospóireacht seo ar Bille na nDlí-Chleachtaóirí (An Ghaeilge) 2007. Foilsíodh Bille de chuid an Lucht Oibre — an Bille Lucht Cleachta Dlí (Cáilíocht) (Leasú) 2007 — i mí Meán Fhómhair seo caite. Tá an dá Bille dírithe ar an bhfadhb céanna — seirbhísí dlí a sholáthar trí Ghaeilge. Tá Bille an Lucht Oibre i bhfad níos fearr ó thaobh an dlí agus na Ghaeilge de. Tá Bille an rialtas lochtach. Beidh níos mó le rá agam faoi sin amach anseo.

I was amazed at what the Minister of State, Deputy Gallagher, said on behalf of the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, about the Labour Party Bill. He said that it does not provide a proper alternative and is short on detail. I reject that assertion. The Government's Bill is vague and sloppily drafted. I find it extraordinary that the Minister considers the provisions of the Labour Party Bill are in conflict with the Government's policy on the promotion of Irish. What policy? Last December, we had the publication of the long-promised statement on the Irish language, which promised, as had been promised before, a 20-year strategy for the Irish language. Last week, I managed to extract an undertaking from the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, that the 20-year strategy would definitely be available by the end of 2008. What exactly was this statement? It was a collection of clichés, a list of legislation and a list of Irish language organisations and contacts. Somebody should let us all in on the secret of what is the Government's policy for the promotion of the Irish language. I am certainly not aware of any such policy.

In the Competition Authority report, Competition in Professional Services, Solicitors and Barristers, published in December 2006, the issue of the Irish competency requirement of solicitors and barristers was addressed. The recommendation of the Competition Authority was that the existing basic Irish competency requirement should be abolished and replaced by a voluntary system of high level Irish language training. In the details of the recommendation the report stated: "The Minister for Justice, Equality and Law Reform should introduce legislation to repeal sections 3 and 4 of the Legal Practitioners Qualifications Act 1929 by June 2008." The report further stated:

The Law Society and the Honourable Society of King's Inns should publish criteria for a voluntary system whereby solicitors and barristers who wish to represent clients in Irish or who have a particular interest in Irish could be trained and examined to a high and consistent standard. Institutions other than the Law Society and King's Inns should be permitted to provide such courses and examinations.

It was recommended that this be actioned by December 2007. I note that the Bill does not refer to other institutions providing the courses mentioned in the legislation.

On 25 October, the Dáil ordered the Legal Practitioners (Qualifications) (Amendment) Bill 2007 be printed. I had introduced this Bill on behalf of the Labour Party. The purpose of the Bill as laid out in the explanatory memorandum is "to remove the compulsory Irish examination for Legal Practitioners and replace it with a voluntary system of recognising competency in the Irish language as recommended by the Competition Authority Report, Competition in Professional Services, Solicitors and Barristers (December 2006)".

On 28 November 2007, the Minister for Justice, Equality and Law Reform presented the Bill now before the House, the purpose of which as laid out in the explanatory memorandum is to promote the better use of the Irish language by legal practitioners and the provision of legal services through Irish. For that purpose, the Bill provides that the Honourable Society of the King's Inns and the Law Society shall establish courses of study in the Irish language and provide registers, which will be made available to the public, showing details of those practitioners who are able to provide legal services through the Irish language.

The Government Bill is significantly inferior to the Labour Party Bill for a number of reasons. It is an attempt to be all things to all men. The Competition Authority report is not mentioned and the competition issue is not alluded to. The existing legislation is the Legal Practitioners (Qualifications) Act 1929. Section 3 of this Act provides that a person cannot be admitted by the Chief Justice to practise as a barrister-at-law in Irish courts unless he or she has previously satisfied the Chief Justice that he or she possesses a competent knowledge of the Irish language, while section 4 of the Act provides that no person can become a solicitor unless he or she has passed an examination designed to show that he or she has a competent knowledge of the Irish language.

The Competition Authority described the effect of these restraints as follows:

The Irish Examinations constitute a barrier for non-Irish speaking persons who have obtained their law degree in Ireland and wish to become a solicitor or barrister. Such persons have increased education costs, as they must take pre-examination Irish courses. This may even reduce the number of qualifying lawyers in Ireland [I believe that is the case]. Lawyers who have qualified in other jurisdictions do not have to take this examination.

The Competition Authority describes the rationale offered by the restraint as follows:

Irish citizens have a constitutional right to be represented in Irish in legal proceedings. Irish is also a recognised language of the European Union. The objective of the Irish examination is to ensure that Irish solicitors and barristers can represent clients in Irish.

In their submissions to the Competition Authority, both the Law Society and King's Inns addressed the issue of the restraint. This extract from the Competition Authority report summarises their positions:

The Law Society agrees with the proposal that legislation be amended to abolish the Irish language competency requirement and favoured the establishment of a voluntary system.

"This is a better means of ensuring that Irish-speaking clients can be effectively represented through the Irish language and the Society would be pleased to be involved in the introduction of such a voluntary system and would urge the State to assist in its establishment."

King's Inns notes that it currently offers an optional course in Advanced advocacy and Legal Drafting through the medium of the Irish language and is open to the idea of a course to replace the existing Irish competency requirement.

"King's Inns considers the development of such a course is important in order to have available legal practitioners who are qualified to conduct cases in Irish. It is willing to consider the further development of such courses and the granting of a qualification to those who reach an agreed standard."

King's Inns has informed the Competition Authority that it has made proposals to the Department of Justice, Equality and Law Reform proposing a basic Irish course for all trainees and an advanced course for those who wish to undertake it, leading to a recognised qualification.

The analysis of the Competition Authority was as follows:

While the objective of ensuring that those who wish can be represented through the medium of Irish is valid, it cannot be achieved unless the Irish examination is of a sufficiently high standard to ensure that those who pass it are competent to conduct litigation in Irish.

It is not necessary to require all lawyers to be proficient in Irish in order to ensure that those who wish to avail of their constitutional right to be represented in Irish can do so. The objective would be better achieved by a system that encouraged, but did not compel, students to attain a level of competency in Irish sufficient for full legal practice. This competency could be tested by examination, and those holding the ensuing qualification could hold themselves out as practitioners willing and able to practise in Irish and English.

The Competition Authority has outlined a solution.

In its Preliminary Report, the Competition Authority proposed that the Irish language competency requirement be abolished and replaced by a voluntary system for lawyers who wish to represent their clients in Irish. Following consideration of the submissions received in response to the Preliminary Report, the Authority reiterates its earlier recommendation.

Such a voluntary system would encourage those who wish to do so to achieve a significant level of competency in Irish. Those who have achieved this level of competency, which would be verified by an examination, could advertise themselves as being qualified and willing to provide legal services through the medium of the Irish language.

This would ensure that, instead of the current situation where nominally all legal practitioners are competent in Irish but few are actually able, or willing, to provide legal services through Irish, there would be a pool of legal practitioners who have the ability to provide full legal services through Irish to those clients who wish to receive them.

The Labour Party decided to address this issue. There is no doubt that the existing system is faulty. No one could argue that a large percentage of the lawyers in Ireland are capable of properly representing their clients in Irish. When one considers that only 68% of lawyers who responded to the question in the 2006 Census of Population answered "Yes" to the question, "Can you speak Irish?"', it gives some measure of how successful the implementation of the 1929 Act has been. It should be borne in mind that lawyers answering the census question were subjective in their replies and that no level of competency is stated relative to any subjective measure.

The Labour Party, instead of negatively attacking the Government for what it was not doing, came up with its own Bill as a responsible Opposition party. The Bill was designed to promote excellence in the Irish language rather than seeking to set basic minimum standards. Our Bill would serve to enhance the status of the Irish language in the legal system. The Bill would also enable those who had been refused recognition previously, as a result of failing or not taking the Irish language test, to re-apply and be readmitted without taking the test.

There are many capable barristers and solicitors with fluent Irish, many of them Irish language enthusiasts, and litigants have never experienced any problem in securing legal representation if they wish to pursue legal action through the medium of Irish. I presented our Bill as meeting the needs of an inclusive, pluralist Ireland and also meeting the needs of a modern and competitive legal system. The Legal Practitioners (Irish Language) Bill 2007 is a fudge. It is very vague. It does not, for example, have any provision stopping an examination in relation to the proposed course on Irish language terminology and the understanding of legal texts in the Irish language for all students undertaking the barrister-at-law course other than a statutory examination. A similar type course is proposed to be held by the Law Society. Both courses are also to enable practitioners to identify the nature of the service being sought and, where appropriate, to facilitate a referral to a practitioner competent to provide a service through Irish.

This rationale for these courses beggars belief. Surely the Minister is not seriously suggesting that without the courses lawyers would be unable to identify the nature of the service being sought and make a referral to a practitioner competent to provide a service through Irish. Bringing this ludicrous explanation to an extreme, surely the Irish language registers to be established and maintained by the King's Inns and the Law Society of those who have passed the proposed advanced courses in the practise of law through Irish and to be available to the public will be of assistance to clients wishing to bring their cases before the courts through Irish. How the results of such possible examinations by the King's Inns and by the Law Society might be used must give cause for concern.

The legislation talks of all students undertaking the course in legal terminology. This is vague. What does "undertaking" mean in regard to fulfilling the statutory requirement in regard to being deemed to have attended the course? How many lectures must be attended? Must students attend the whole lecture in each instance to qualify as attending? Who will police the statutory requirement? Must the lectures be conducted solely through Irish? These are issues which need to be clarified in the legislation so that this is not open to subjective interpretation of legislation which would allow the Irish language's legal terminology courses to be used in an oppressive way.

There is a further piece of sloppy drafting in section 1(2) where it is provided: "The Council [of King's Inns] shall have regard to Government policy on bilingualism." Government policy is only that until it becomes law. I referred already to Government policy and I do not intend to return to that issue. Surely this section should refer to public policy. Government policy may change with the coming into power of a new Governments, but public policy remains public policy until it is changed by the Oireachtas. Clarity here will be absolutely necessary. Only last night I heard of someone who qualified as a lawyer 40 years ago here but who does not have the Irish language competency. The Labour Party Bill would have allowed him to practise. Under the Fianna Fáil Bill, such people do not appear to be covered at all, as the Bill provides for all students undertaking the barrister-at-law degree but in regard to the Law Society it refers to enabling practitioners. I ask the Minister in his reply to clarify the apparent different approach in regard to the proposed Irish legal terminology courses to be provided by the King's Inns and the Law Society.

It is clear that Fianna Fáil cannot bring itself to desist from the fundamentalist addiction to compulsion as regards the Irish language whatever the context or however inappropriate is compulsion in that context. This is the mind set which maintains that compulsion always comes before the Irish language in the order of things. This flawed perception has led the Minister to this legislative fudge but like all such fudges, trying to please everybody often pleases nobody. The right action is to remove the compulsion and by all means have both courses, but only for those who want to do them. This is best both for the law and for the Irish language. The 1929 Act established a system which has been in place for nearly 80 years but however well-intentioned were its parliamentary advocates, essentially the Act has failed.

In preparation for this debate I looked up the meaning of the word "attend" in the Oxford English Dictionary as its meaning needs to be well clarified in the legislation. It is described as, "to present oneself for the purpose of taking some part in the proceedings at a meeting for business, worship, instruction, entertainment".

Why move from a pointless compulsory test to an even more pointless compulsory course? If only the physical presence of students is required, pity the instructor who has to face the sullen ranks of the bored, the uninterested, the uncaring and the jokers, who have no reason to learn. Such a scheme only serves to confirm the view that some advocates of compulsory Irish are more in favour of compulsion than of Irish. If people profess to love the Irish language why do they wish to alienate the majority of students by forcing them to present at a course which they and their instructors know to be pointless?

It is long since time to move on, not least in these rapidly changing times in Ireland.

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