Rochtain ar Cheartas: Access to Justice for Gaeilgeoirí by Muireann McHugh [Page

Rochtain ar Cheartas: Access to Justice for Gaeilgeoirí

By Muireann McHugh, SF Law

De réir Bunreacht na hÉireann, cosnaítear cearta na Gaeilge go sainráithe. De réir Airteagal 8, is í an Ghaeilge an céad teanga oifigiúil na hÉireann. Tá cosaintí ann de réir reachta freisin. Ach, in ainneoin an aird a thugann Bunreacht na hÉireann do chearta teanga, tá sí siombalach ar an iomlán. In ionad cosaint láidir a thabhairt do Ghaeilgeoirí, bíonn siad fágtha le Béarla a úsáid i socruithe oifigiúla, mar shampla sa chóras dleathach. Mar sin, bíonn sé deacair do Ghaeilgeoirí rochtain a fháil ar cheartas, toisc gur mhainnigh an Stát a dhualgais bunreachtúla.

Article 8 of the Constitution affords the highest legal protection to Irish language rights. However, this “protection” seems to be largely symbolic. Notwithstanding the efforts of the drafters of the Constitution to place the Irish language on a high footing, the English language has become dominant in Irish society. This makes it nearly impossible for Gaeilgeoirí (Irish language speakers) to use their spoken language when dealing with official or governmental authorities; including those within the legal system. Irish-speaking defendants facing the judicial process are presented with limited options, and it is challenging for Gaeilgeoirí to find an adequate avenue for justice. This begs the question; what rights do Irish speakers have in the administration of justice?

Cearta agus Teidlíochtaí Gaeilgeoirí sa Chóras Dleathach Rights and Entitlements of Gaeilgeoirí in the Legal System

Section 8 of the Official Languages Act 2003 deals directly with the administration of justice for Irish-speaking people. As per s.8(2), anyone appearing in court or offering evidence can use their language of choice without “discrimination.” In civil proceedings where the State or some State body are party, the other party can use their language of choice. Significantly, no provision is made with regards to language for criminal trials (trialacha coiriúla). The practical difficulties that would be involved, such as Irish speaking Gardaí, solicitors, witnesses etc were deemed too great to overcome. In the case of MacCarthaigh v Éire, the Supreme Court held that a defendant of a criminal trial is not entitled to an Irish speaking jury (giúiré). It was found that to limit the jury to such an extent would be inconsistent with the legal requirement for a jury to be made up of a sample of the entire population of Ireland, not just the two per cent who are Irish speaking.

Two landmark cases which furthered the development of Irish language rights were the cases of Ó Beoláin v Fahy and Ó Cadhla v The Minister for Justice and Equality. The Ó Beoláin judgment confirmed, for the first time, that the State had a duty under Article 8 to translate Acts of the Oireachtas. This is a significant judgement in the promotion of access to justice for Gaeilgeoirí, as it enhanced their ability to read and understand the law, and regulate their conduct accordingly. In Ó Cadhla, Ní Raifeartaigh J held that the State has a constitutional duty under Article 8 to make “reasonable efforts” to assign a bilingual judge (breitheamh) in a criminal trial. In many respects, this decision is to be welcomed, but it does not go as far as conferring a positive duty onto the State. Thus, there is no guarantee that an Irish-speaking defendant will be tried by an Irish speaking judge, which hugely hinders a Gaeilgeoir’s access to justice. Evidently, there is judicial reluctance to vindicate express constitutional language rights.

Drogall Breithiúnach agus Dualgas an Stáit Judicial Reluctance and the State’s Duty

The jurisprudence surrounding Irish language rights cases suggests a willingness to recognise the validity of these rights under Article 8 of the Constitution, but a reluctance to posit a duty on the State to fully vindicate these language rights. Cases normally deal with individual redress instead of sweeping change for Gaeilgeoirí.

For example, in Ó Cadhla, Ní Raifeartaigh J held that her findings were not intended to have any “wider application” than a defendant facing criminal trial in the District Court (Cúirt Dúiche). This aspect of the judgement has clear negative implications on Gaeilgeoirí in their pursuit for justice, because their language rights are only accounted for in the judicial processes of the District Court.

This can be defined as judicial cowardice at best, and judicial laziness at worst. It is difficult for Gaeilgeoirí to discern the exact boundaries of their language rights with respect to the legal system because of flawed judicial reasoning. This is arguably a breach of two important rule of law principles; clarity and consistency.

The State’s failure to properly vindicate constitutional language rights needs to be rectified by the judiciary. As Ní Raifeartaigh J comments on, litigants seeking to have their cases heard in Irish are oftentimes considered “obstructive or insincere” – but should the State not instead be held culpable for failing to meet their explicit constitutional duties? As it stands, individuals bear the burden of the State’s constitutional failures. Where is the justice? Cá bhfuil an ceartas?

Cearta Trasnacha Intersectional Rights

It is often argued that there are too many practical difficulties in relation to language rights, because there are so few Irish speaking people in the country, especially against the backdrop of a legal system that derives from the British common law system. However, if the State properly undertook their duties under Article 8, and vindicated Irish language rights across the board, constitutional breaches would not manifest in the specific context of access to justice.

If the Government institutionalised bilingualism, instead of displaying tokenism and passivity towards language rights, there would be proper systems in place for Gaeilgeoirí to utilise as necessary.

This issue highlights the intersectional nature of rights; they cannot be categorised or separated from each other. The denial of rights in one area will display itself as a denial of rights in another area – as can be seen here with language rights and the administration of justice.

In the case of Ó Cadhla, Ní Raifeartaigh J asserted that the case dealt with a language rights issue, not a “due process” issue. But it is impossible to separate criminal process rights and the administration of justice from language rights. Ó Cadhla was claiming he had a right to be heard by a bilingual judge – surely due process rights under Article 38.1 of the Constitution come into play? This demonstrates how language rights in the administration of justice cannot be promoted without full vindication of language rights.

Access to justice is not possible without access to language rights. Ní féidir rochtain ar cheartas a fháil gan rochtain ar chearta teanga. Ní féidir cearta teanga a chur chun cinn gan chearta teanga a fhíorú go hiomlán. Tá constaicí os comhair an cheartais ag Gaeilgeoirí, toisc gur theip ar an Stát ar a dhualgas bunreachtúil, agus gur mhainnigh na Cúirteanna cearta teanga a aithint go hiomlán. Tá sé dodhéanta na cearta seo a scaradh, tá siad fite fuaite ina chéile. Ar an iomlán, níl rochtain leordhóthanach ag na Gaeilgeoirí ar an gceartas. Caithfidh na Cúirteanna misneach a thaispeáint, agus caithfidh an Stát toilteanas a thaispeáint cearta teanga a chosaint. Is ansin amháin a bheidh rochtain ag na Gaeilgeoirí ar cheartas.

The Eagle Interviews Professor Gerard Whyte, Trinity College Dublin

By Dara Neylon-Marqués, SS Law and Political Science

Photo courtesy of Professor Gerard Whyte Gerard Whyte is a Professor and Fellow at Trinity College Dublin. He has published extensively on public interest law, law and religion, constitutional law, social welfare law and labour law. Further, he has worked alongside various not-for-profit organizations such as FLAC, PILA, the Irish Commission for Justice and Peace, Mercy Law Resource Centre, Community Law and Mediation, and is also a former member of the Irish Council of People with Disabilities. As a barrister, acting as a FLAC volunteer in Westland Row and Meath St., he was a first contact for claimants in social welfare cases such as The State (Kenny) v. Minister for Social Welfare, acting on behalf of claimants in their dealings with the Department, and identifying the cases as ones of public interest for FLAC to pursue further.

What initially sparked your interest in public interest law and access to justice?

I think there were two factors. The first is my working class background. That naturally sensitised me to the concerns of people from low-income communities. A classmate from school, Seamus Fagan, was recently awarded the Order of Merit by the Australian Government, because of the years he spent as an academic in Australia, trying to make third level education more accessible to people from low income and disadvantaged communities. The second factor is that I’m Catholic, and I would have been influenced by Catholic social teaching. In particular, a theological movement known as liberation theology which emerged from Latin America in the 1960s. It advocates for what is known as a ‘preferential option’ for the poor, where you analyse public policy in terms of its impact on people living on the margins of society.

As a former member of the Irish Council of People with Disabilities, what would you identify as the main barrier to accessing justice for this group of people in Ireland?

The first point I would make would be to say that people with disabilities encounter the same barriers to accessing justice as other people. Legal services don’t come cheap, and people can be unaware of their legal rights so it would never occur to them to go to a lawyer to resolve whatever difficulties they have. There is also the fact that people can be intimidated by the legal process. Another barrier more recent in origin is digital exclusion. If you don’t have access to computers and are not computer literate, you’ll face barriers as the legal system is increasingly going online.

When you turn to focus specifically on people with disabilities, the second point I’d make is that it’s not a homogenous community. I think the barriers would vary in accordance with the disability. People who are visually impaired might need to have documents converted into braille or orally recorded. People who are members of the deaf community might need to have sign language interpreters if they’re going to talk with a solicitor. Ultimately, I’m not sure that there is a main barrier that people with disabilities might experience as

it varies depending on the type of disability in question.

In your book ‘Social Inclusion and the Legal System’ you defend the constitutional and political legitimacy of pursuing socio-economic rights through litigation due to the underlying commitment to social inclusion in our Constitution. Why do you think the courts have been so reluctant to pursue socioeconomic rights and, considering increasing individualism in society, do you think there will be any change in perspective as new generations of judges enter the judiciary?

While I have argued that within the Irish Constitution there’s material that would justify a judge identifying implied socio-economic rights, I still have to accept that there are institutional limits to what judges can do. If a judge was to decide that the Constitution protected a right to shelter, the judge doesn’t have the abilities or expertise to then go and draft a policy that would vindicate that right. That’s entrusted to civil servants and politicians.

In terms of why they are reluctant even to acknowledge socio-economic rights in the first place, I think the answer is probably to do with the nature of the legal world emerging from 18th-century and 19th-century liberalism where the focus is on protecting the individual from the state and guaranteeing private property. Notwithstanding all the changes that have occurred over the decades, judges are still significantly influenced by that focus on the individual.

In TD v Minister for Education and Sinnott v Minister of Education, the Supreme Court endorsed the idea that the court could not get involved in identifying implied socio-economic rights because this involved a claim of public expenditure and distributive justice was to be left to politicians. However, the Supreme Court since State (Healy) v Donoghue has committed to the view that the Constitution requires the State to provide a criminal legal aid scheme, which resulted in a fivefold increase in expenditure on legal aid. At that time, no Supreme Court judge was worried that they’d made a decision that entailed distributive justice. This could be because criminal legal aid is at the core of the liberal project, which protects the individual against an oppressive state. Judges were so immersed in that understanding of the law that it never occurred to them that there could be problems with requiring the state to pay for criminal legal aid. But when asked about increasing expenditure on education systems for people with learning difficulties or social housing you come across the objections raised in Sinnott and TD.

It’s hard to know if this will change. When I was an undergraduate in the 1970s, the late Professor Jim Brady taught us about the cyclical phenomenon of equity jurisprudence. His argument was that when you look historically at how the courts have developed equitable principles, they have swung back and forth between activist and conservative periods. Brady’s bottom argument was that this pendulum will always swing. So maybe that might hold out some hope that a future generation of Irish judges might be a bit more adventurous concerning things like implied socio-economic rights.

In your response to Mel Cousin’s report on Public Interest Law and Litigation in Ireland, you argue that public interest law is a symptom of the failure of the political system to adequately address social exclusion. Thus, marginalisation can only be comprehensively addressed through politics. What reforms should our governments be prioritising to ensure justice for marginalised groups, especially in light of the effects of the pandemic?

There are two different ways of approaching access to justice. The service model and the strategic model. The service model is more conservative and focuses on the cost of legal services as the main barrier. It addresses the problem by employing State solicitors or having the State pay for private solicitors. Essentially, it’s our civil legal aid scheme. The strategic model identifies additional problems beyond lack of income. It recognises the issue of people being unaware of their rights and also being intimidated by the world of law.

For any of us, going out of our comfort zone to engage with people from a different background or class can be intimidating and so it can be for working class people who find themselves having to deal with lawyers.

So, the strategic approach also focuses on ‘know your rights courses,’ going into schools to talk to pupils about employment law, social welfare, or criminal law, and also tries to deliver the services in a way that minimises the cultural gap between working class people and the law, for example by setting up neighbourhood Law Centres in disadvantaged communities.

I think that the strategic model is much more effective so I would love it if the upcoming Government review of the civil legal aid scheme incorporates these additional elements. However, I think the review might just try to improve the service model as it still doesn’t cover most tribunal work such as employment or social welfare cases, unless you go to the High Court. These are important areas of the law for people from low-income communities. Regarding the pandemic, FLAC indicated that employment cases had spiked, outstripping the queries on family law for the first time. People were worried about being laid off or businesses closing, so certainly the pandemic had a strong impact in that area.

In the aforementioned response, you also highlighted the low numbers of academics and lawyers that specialize in public interest law. What advice would you give to law students who wish to pursue a career in this area, especially given the stereotype of social justice lawyers struggling to make ends meet?

I think your analysis of the situation is right, if you want to get involved in public interest law activities on a full-time basis, you do have to make financial sacrifices. Places like Mercy Law Centre and CLM have restricted budgets and cannot afford to match the salaries paid in commercial law. Also, there’s still only a limited pool of positions in the public interest law area. The silver lining in the cloud, though, is that it is not a binary choice. Increasingly, the bigger law firms are seeing a value in having a pro bono practice. PILA have connections with something like 45 legal practices in Ireland and firms like A&L Goodbody and Arthur Cox have both employed full-time pro bono officers to liaise with the voluntary community. So, it’s not the case that if you go into commercial law that you’re closing the door on public interest law.