SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Thursday, 14 Feb 2008

Legal Practitioners (Irish Language) Bill 2007: Committee Stage.

Vice Chairman

Comóradh an cruinniú chun deis a thabhairt don choiste breathnú ar Bhille na nDlí-Chleachtóirí (An Ghaeilge) 2007. Ba mhaith liom fáilte a chuir roimh an Aire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí, an Teachta Brian Ó Luineacháin, agus a chuid oifigigh. Sula dtosóimid, an aontaíonn na gcomhaltaí go léir go leanfaimid orainn go dtí go bhfuil an breathnú ar an mBille críochnaithe? Should we continue until we have completed our consideration of the Bill? An bhfuil sé sin aontaithe? Aontaithe. Iarraim go múchfar gach fón póca.

SECTION 1.

Vice Chairman

Os rud é go bhfuil leasú Uimh. 2 mar mhalairt ar leasú Uimh. 1, agus go mbaineann leasuithe Uimh. 11 agus 12 le leasú Uimh. 1, tógfar leasuithe Uimh. 1, 2, 11 agus 12 le chéile.

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

I move amendment No. 1:

In page 6, subsection (2), lines 21 and 22, to delete "Government policy on bilingualism" and substitute the following:

"the status of the Irish language as the first official language".

The Irish language version of the amendment reads:

I leathanach 7, fo-alt (2), línte 23 agus 24, "ar bheartas an Rialtais maidir le dátheangachas" a scriosadh agus an méid seo a leanas a chur ina ionad:

"ar stádas na Gaeilge mar an phríomhtheanga oifigiúil".

Ba mhaith liom leasuithe Uimh. 1 agus 11 a ghlacadh i dteannta a chéile. Molaim go ndéanfaí tagairt shonrach i leagan Ghaeilge na leasuithe do "stádas na Gaeilge mar an phríomhtheanga oifigiúil", in ionad na tagairtí ghinearálta atá in Ailt 1 agus 2 faoi láthair do "bheartas an Rialtais maidir le dátheangachas". Agus na leasuithe á dtabhairt ar aghaidh agam, rinne mé na tuaraimí a nochtadh ar an Dara Céim a scrúdú. Tá na leasuithe a mhol na Teachtaí Rabbitte agus O'Shea curtha i gcuntas agam. Tá mé den tuaraim gur fearr a chuireann tagairt don "phríomhtheanga oifigiúil" le prionsabail an Bhille. Molaim gur cheart go sásódh an téarma sin chomhaltaí an choiste.

Deputy Brian O’Shea

Tá mé chun labhairt as Gaeilge agus as Béarla sa díospóireacht seo. Tá áthas orm go nglacann an Aire go bhfuil locht sa téarmaíocht atá sa Bhille mar a seasann sé. Bhí mé ag smaoineamh ar an leasú atá curtha síos ag an Aire, ina luaitear na focail "stádas na Gaeilge mar an phríomhtheanga oifigiúil". D'fhoilsigh Coiste Uile-Pháirtí an Oireachtais ar an mBunreacht tuarascáil i 1996. Maidir le leagan na bhfocal in Alt 8 den mBunreacht, deir an tuarascáil: "This wording is unrealistic, given that English is the language currently spoken as their vernacular by 98% of the population of the State". Rinne an coiste moltaí áirithe maidir le conas gur féidir an chuid sin den mBunreacht a athrú i reafrainn. Mhol an coiste gur chóir dúinn daoine a mhealladh agus a gríosadh chun an Ghaeilge a labhairt, srl. Is ceist eile é sin. Tá ceist agam maidir leis an leasú a rinne an Aire ar an leasú atá molta aige. Sa chéad leagan de leasú Uimh. 1, rinneadh tagairt don "chéad teanga oifigiúil", ach anois úsáideann an leasú an téarma atá sa Bhunreacht — an "phríomhtheanga oifigiúil". Nach bhfuil sé intuigthe go gcaithfidh gach eagras Stáit cloí leis an mBunreacht? An gcuireann an leasú seo leis an reachtaíocht ar shlí ar bith? Caithfidh gach eagras Stáit seasamh leis an mBunreacht. What I am saying, in effect, is that the status of the Irish language is enshrined in the Constitution as "the first official language". Is it necessary to amend this legislation to call on the council of the Honorable Society of King's Inns and, later in the Bill, the Law Society of Ireland to work in line with the law, as defined by the Constitution? Is it necessary to make an amendment calling on the Honorable Society of the King's Inns or the Law Society of Ireland to work in line with the law, as defined by the Constitution? Does this amendment add to the legislation? The problem with the original wording, which referred to "Government policy", was dealt with on Second Stage. I take it the Minister agreed with that decision. I am not convinced this amendment adds to the Bill.

Deputy Thomas Byrne

Ba mhaith liom mo bhuíochas a ghabháil leis an Aire as ucht an leasú seo a chur os ár gcomhair. Bhí míchruinneas ag baint le dréacht an Bhille mar a tionscnaíodh é. Tá cairteanna ag Ollchumann Dlí na hÉireann agus ag Comhairle Chumann Onórach Óstaí an Rí ach ní eagraíochtaí Stáit iad. Tá sé tábhachtach go mbeadh deis ag daoine an Ghaeilge a úsáid nuair atá siad os comhair cúirte nó ag fáil comhairle ó abhchóidí agus ó dhlíodóirí, agus ní bhionn an deis sin acu de ghnáth. Caithfear an ceart sin a chur i reachtaíocht.

Gabhaim buíochas leis an Aire arís. Bhí míchruinneas sa Bhille agus caithfimid iarracht a dhéanamh i gconái an reachtaíocht is fearr a chur ar fáil.

Deputy Brian Lenihan

Is í an cheist a cuireadh, an gcuireann an leasú seo leis an mBille. Is dóigh liom go gcuireann. In the drafting of any legislation the scheme and purpose of the Bill are important. The point made on Second Stage was that the reference to a policy of bilingualism did not capture the scheme and purpose of this legislation. The reference to the Constitution has been inserted to make clear the reason there are obligations remaining on the legal professional organisations. The Constitution is the basic law of the land and prescribes Irish as it does in the relevant article. For that reason, the status of Irish as the first official language is of peculiar importance to the legal profession, whose task it is to appear before the courts established under the Constitution.

Deputy Brian O’Shea

We cannot pass legislation that could, in its operation, be in any way repugnant to the Constitution. Any body, whether statutory or private, must observe the law. I do not see why the Bill should call on anyone to observe the provisions of the Constitution.

Deputy Brian Lenihan

The amendment refers to "the status of the Irish language as the first official language" nó "stádas na Gaeilge mar an chéad teanga oifigiúil". I cannot see how that can be repugnant or objectionable.

Deputy Brian O’Shea

That is not the point I am making. This is an unnecessary addition. Everyone must observe the Constitution.

Deputy Brian Lenihan

This is a particular context. That is why the obligation is referred to in this context.

Deputy Brian O’Shea

There is no context to observing the law. One observes it.

Deputy Brian Lenihan

The Long Title of the Bill is:

An Act to promote the better use of the Irish language by legal practitioners and the provision of legal services through Irish and for that purpose to provide for courses of study and the establishment of registers by the Honorable Society of the King's Inns and the Law Society of Ireland, to repeal the Legal Practitioners (Qualification) Act 1929, to amend the Solicitors Act 1954 and to provide for related matters.

The amendment will insert a reference in section 1(2) to the obligation of the Council of the King's Inns to "have regard to the status of the Irish language as the first official language". I cannot see how that is in any way objectionable.

Deputy Brian O’Shea

I am not suggesting it is. We have a tendency to include measures in legislation that do not add to it. I do not object to the thrust or spirit of the Minister's amendment. However, whether it is made does not affect the position of the legislation vis-à-vis the Constitution.

Deputy Brian Lenihan

It does not add to the Constitution.

Deputy Brian O’Shea

Or to the legislation.

Deputy Brian Lenihan

It does add to the legislation in the sense that the council of the King's Inns must have regard to it.

Deputy Brian O’Shea

The council must have regard to it because it is the law.

Deputy Brian Lenihan

The council might not necessarily make that inference if it were not referred to in the legislation.

Deputy Brian O’Shea

Whether it does, the obligation is included in law.

Deputy Brian Lenihan

Where is the obligation in law?

Deputy Brian O’Shea

The obligation in law is included because the Constitution places the Irish language as the first official language.

Deputy Brian Lenihan

That does not create any obligations. To create an obligation one must use a form of words that creates a right or imposes a duty. Article 8 of the Constitution does not do that. It prescribes a state of affairs.

Deputy Thomas Byrne

If Deputy O'Shea's argument were correct, we would not have a need for the Official Languages Act.

Deputy Brian O’Shea

The Official Languages Act interprets the Constitution and gives statutory explanations and direction. Is the Minister saying Article 8.1 of the Constitution has no legal standing and merely states a position?

Deputy Brian Lenihan

The courts, in various decisions, have imposed certain obligations on the State, stemming from Article 8 of the Constitution. Again, we cannot leave this to the vagaries of judicial interpretation. We must be clear-cut in a measure dealing with legal education as to whence the obligation derives.

Deputy Brian O’Shea

The Bill simply refers to the status of the Irish language.

Deputy Brian Lenihan

It does more than that. It states the council must have regard to the status of the Irish language. The citizen does not have to have regard to the status of the Irish language simply because Article 8 of the Constitution is in place. The citizen is free to speak Irish or English at his or her pleasure. I do not accept the Deputy's suggestion that this phrase and the manner in which the amendment is drafted have no effective purpose.

Deputy Brian O’Shea

I still disagree. The amendment merely asks that the council have regard to the status of the Irish language. It is understood that the status of the Irish language would have to be a basis for this legislation. This is a technical point and I do not wish to labour it. I agree with the thrust of the Minister's amendment but it is superfluous and does not add to the legislation.

Deputy Brian Lenihan

The status of the language and the formula used in the Constitution do not oblige any citizen to speak Irish. We are imposing an obligation on the council. In that sense the reference adds to the legislation.

Deputy Brian O’Shea

We are amending legislation that provides for statutory attendance at a course and the provision of a voluntary course leading to a statutory examination. The Irish language and competency in it are part of the legislation.

Deputy Brian Lenihan

The Deputy's point is that these words are not absolutely essential to the legislation.

Deputy Brian O’Shea

They do not add to the legislation.

Deputy Brian Lenihan

They put the legislation in a context, which is valuable.

Deputy Brian O’Shea

There is already that context. I will not labour the point. We have given it a fair airing.

Amendment agreed to.

Vice Chairman

Ní féidir leasú Uimh. 2 a mholadh mar tógadh le leasú Uimh. 1 é.

Deputy Brian O’Shea

Tá mé sásta é a tharraingt siar anois, ach b'fhéidir go dtiocfaidh mé ar ais chuige ar Chéim na Tuarascála.

Amendment No. 2 not moved

Vice Chairman

Tá gaol idir leasú Uimh. 3 agus leasú Uimh. 13 agus de bharr sin tógfar le chéile iad.

Deputy Brian O’Shea

I move amendment No. 3:

In page 6, subsection (2), line 23, to delete "ensure that" and substitute "encourage an outcome whereby".

This amendment seeks to remove the word "ensure" from the legislation in the section that reads: "The Council shall have regard to Government policy on bilingualism [that has been changed now] and, in particular, shall in so far as it is reasonable to do so, seek to ensure that an adequate number of barristers-at-law are competent in the Irish language".

We submit that the word "ensure" implies something is mandatory. However, the thrust of the Bill is voluntarist. The formula we suggest, "encourage an outcome whereby", would be better.

Let us consider the recommendation of the constitution review group, which suggested a change in Article 8. It suggested that, because the Irish language was a unique expression of Irish tradition and culture, the State should take special care to nurture it and increase its use. As the Constitution stands and the Minister rightly pointed out, it makes a statement. It states Irish is the first official language, which is an abstract term.

The word "ensure" sounds legalistic and is not the appropriate term in a Bill such as this. The formula we suggest is, "encourage an outcome whereby" an adequate number of barristers-at-law are competent in the Irish language so as to be able to practise law through Irish as well as through English. That is the thrust of our amendment.

Deputy Brian Lenihan

Déanann na leasuithe maolú ar phríomh chúspóir an Bhille oibligeád a chur ar Óstaí an Rí agus ar an Dlí-Chumann féachaint a bhéas réasúnach dóibh déanamh amhlaidh lena chinntiú go mbeidh líon dátheangach abhcóidí agus aturnaetha inniúil don chleachtadh trí Ghaeilge. Ní dualgas iomlán é seo, ach tá sé níos láidre ná oibligeád a chur ar Óstaí an Rí agus ar and Dlí-Chumann gan aon féachaint leis an toradh sin a spreagadh, mar a mholtar sna leasuithe.

It is not an absolute duty imposed on the King's Inns and the Law Society, but there is a statutory duty, which is stronger than the one suggested in the amendment. It imposes that duty by requiring the King's Inns and the Law Society to hold courses in Irish legal terminology and the understanding of legal texts in Irish for all persons undertaking their professional training courses and to establish an advanced course on the practice of law through the Irish language as optional subjects in the professional training courses, to hold examinations in the practise of law through Irish at least once a year for those who have undertaken the advanced course and to publish registers containing the names and contact details of the barristers and solicitors who have passed these examinations. That is the substance of the Bill, which seeks to impose a duty on the Law Society and the King's Inns. The phraseology used in the amendment, "encourage an outcome whereby", is very weak. The phrase "ensure that" is stronger and more appropriate in the legislation.

Deputy Brian O’Shea

I disagree. The word "ensure" implies something is mandatory and leans strongly in the direction of compulsion. The previous wording in the section was "The Council shall ... in so far as it is reasonable for it to do so, seek". That is conditional, but we are now moving in a different way. First, we are moving towards an examination for those who want to become proficient in the Irish language. There is another course in respect of which the only statutory obligation is to attend. I will deal with that issue later. I suggest that, where there is not a statutory obligation to have an examination in either the King's Inns or the Law Society, nothing prohibits it. I am concerned about this.

Essentially, the system under which there is a compulsory examination has failed. On Second Stage I mentioned that in census 2006 only 68% of barristers and solicitors stated they could speak Irish, a subjective response, yet there have been examinations since 1929, whereby the Chief Justice has had to be satisfied that people had a competent knowledge of the Irish language. Therefore, the compulsion route has failed. I put it to the Minister that the way forward is through encouragement rather than use of a term such as "ensure". We can force people to attend a course, but that is all we can do. Those who will opt for the voluntary course will do it from a desire to do the right thing. The route suggested in the amendment would best serve the future of the Irish language and the provision of solicitors and barristers competent to conduct cases and deal with clients through Irish. There is an unfortunate emphasis on a retrograde step through the use of the word "ensure".

Deputy Charles Flanagan

I am not sure whether there is much between the parties or between the terms "encourage an outcome" and "seek to ensure". I do not have a difficulty with what is proposed in the Bill and accept what the Minister said. It appears either proposal would result in the same scenario, a level of competence in the Irish language for those who wish to engage in its use. This is available for those who wish to use it. Therefore, I do not have a difficulty with what is proposed.

Deputy Brian Lenihan

We are going down the same road again. Clearly, the 1929 Act was redolent of the policy of compulsion introduced from the foundation of the State in 1922. I am fascinated by the fruits of Deputy O'Shea's research, which established the proportion of barristers who described themselves in the census as competent in the Irish language. I admire him for his industry. In my experience as a barrister there is a substantial number who are competent in transacting business in the Irish language, although not the proportion referred to by the Deputy. The number certainly did not amount to 69% or 70%.

Deputy Brian O’Shea

No, 68% said they could speak the Irish language, which could mean a minimal ability to speak the language, or otherwise.

Deputy Brian Lenihan

There would certainly be a substantial number of counsel and solicitors who would be able to transact legal business in the Irish language, which is a real achievement. That would not have been the case in 1929. I do not think it is because of the 1929 Act that this came about. However, there is no doubt that there is a substantial number of lawyers in both branches of the profession who are competent and able to transact business in the Irish language, which is welcome. That was not the case in 1929 when the number of individuals who would have been competent to transact business in the Irish language would have been very small. That is a measure of the extent to which the Irish language movement has succeeded. I often think that movement spends a great deal of time beating itself up, as well as beating the rest of us up for our lapses in this regard. In fact, substantial progress has been made in saving Irish as a language.

The effect of amendment No. 3, in legal terms, would be to render nugatory the Bill. If we were merely to oblige the King's Inns and the Law Society to "encourage an outcome whereby" an adequate number of barristers would be competent in the Irish language, as the Deputy proposes in his amendment, we would not provide for any sense of legal obligation whatsoever. The legislation states the bodies in question should "seek to ensure" a reasonable number of legal practitioners are competent in the Irish language. That is a reasonable requirement to make. Given that it is the policy of the State to promote bilingualism and that the Constitution states Irish is "the first official language", it is clear that citizens are entitled to transact their business before the courts in Irish and that it is reasonable to require the legal profession to ensure an adequate number of legal practitioners are available to assist them in that regard.

Deputy Brian O’Shea

I accept what the Minister said. I hope he is not insinuating that the fact that so many barristers and solicitors are competent in the Irish language, to which I alluded on Second Stage, can be attributed to the examination provided by the King's Inns.

Deputy Brian Lenihan

No.

Deputy Brian O’Shea

I do not think anyone would go that far. We cannot suggest the proficiency of some legal practitioners in the Irish language is as a result of the examination. Now that we are moving away from a compulsory examination, we will not be able to do much more than encourage. It is obvious that the Law Society of Ireland will be obliged to provide appropriate courses and facilitate in every way those who genuinely want to increase their competence in the Irish language. The use of the word "ensure" suggests it will be mandatory. The role of the Law Society of Ireland will be to encourage barristers to improve their Irish. We need to place a focus on encouragement, rather than compulsion, across the spectrum of Irish language activities. We need to rectify a problem that is getting worse across that spectrum. As it is obvious that the Minister is unwilling to accept my proposal, I will withdraw amendment No. 3 with a view to returning to this matter on Report Stage.

Deputy Brian Lenihan

Gabhaim mo bhuíochas leis an Teachta. The language of the law is always formulated in terms of compulsion — rights and duties — rather than vague aspirations.

Deputy Brian O’Shea

This is a different matter. I will not reopen the debate at this stage.

Amendment, by leave, withdrawn.

Vice Chairman

Os rud é go bhfuil leasuithe Uimh. 6, agus 7, agus leasuithe Uimh. 14 go dtí 16, go huile, gaolmhar le leasú Uimh. 4, in ainmneacha na Teachtaí O'Shea agus Rabbitte, tógfar na leasuithe sin go léir le chéile.

Deputy Brian O’Shea

I move amendment No. 4:

In page 6, subsection (3)(a), line 27, after “a” to insert “bilingual”.

Baineann na leasuithe seo leis an moladh atá sa Bhille go ndéanfaidh Comhairle Chumann Onórach Óstaí an Rí "cúrsa teagaisc i dtéarmaíocht dhlíthiúil na Gaeilge agus i dtuiscint téacsanna dlíthiúla sa Ghaeilge a sholáthar do dhaoine atá ag déanamh staidéir i gcomhair céime abhcóide dlí". Tá leasuithe eile molta ag an Aire. I leasuithe Uimh. 4 agus 14, molaim gur chóir dúinn a soiléiriú go mbeidh an cúrsa teagaisc "dátheangach" chun go mbainfidh na mic léinn an tairbhe is fearr as. De réir mar is eol dom, tá an cúrsa atá ar fáil faoi láthair á theagasc i nGaeilge amháin. Níl sé sin inghlactha. Tá sé tábhachtach go gcuirfear an chúrsa ar fáil ar bhealach a chinnteoidh go dtiocfaidh na mic léinn amach as le caighdeán Gaeilge chómh láidir agus is féidir.

Amendment No. 4 seeks to amend section 1(3)(a) of the Bill, which states “the Council shall provide a course of instruction in Irish legal terminology and the understanding of legal texts in the Irish language”, in order that it specifies that the council of the Honorable Society of King’s Inns will have to offer a “bilingual” course. As I understand it, the course being provided by the King’s Inns is offered in Irish only. When I used to teach Irish in school, I felt the bilingual approach produced the best results in all situations. The amendment would insert the word “bilingual” in the legislation, thereby ensuring courses in the Irish language only would not be provided. The bilingual approach is in the best interests of students, particularly those who have difficulties. Students should be able to ask questions in English when they need clarification on certain aspects of the course. We should ensure such a facility is not denied to them.

In amendment No. 6 I suggest a change be made to the proposal in the legislation that the course to be provided by the King's Inns "shall be undertaken by all ... persons" who are studying for the degree of barrister-at-law. This brings us back to the compulsion argument. The Minister was unavoidably absent when the Second Stage debate took place. On that occasion I was surprised that the speech delivered by the Minister of State, Deputy Gallagher, did not mention the Competition Authority's report on the King's Inns, which strongly recommended that Irish language courses be voluntary. The Minister has moved away from that recommendation, which was accepted by the Law Society and the King's Inns, by replacing a voluntary examination with voluntary attendance. I will return to this aspect of the debate later. What is the point in hunting students into a course in which they have no interest? They will be required to attend the course, but they will not have to engage with it.

I spoke on Second Stage about the meaning of the word "attendance" in this context. According to the Oxford English Dictionary, to “attend” means to “to present oneself for the purpose of taking some part in the proceedings at a meeting for business, worship, instruction, or entertainment”. In this case, the students will be attending for the purposes of instruction. They will be able to go to lessons but not listen. Interesting questions are raised by the requirement that students must attend the course. Will a vigilante committee be appointed to ensure they do so? If a student does not attend, will he or she have to produce a medical certificate or some other documentation to explain his or her absence? This measure represents a return to the concept of compulsion. We are moving from a compulsory exam to compulsory attendance. The emphasis should be on encouraging people to reach a high standard of Irish and to use the language in their work. I submit that the proposed course is fundamentally ill-thought out. The requirement that law students attend a compulsory course represents a further stick with which they can be beaten. How many lectures must a student attend to satisfy the attendance criterion? Must one attend 90%? The basic course could be expanded into a major burden. The legislation is weak on this point.

I have pointed out that the compulsory course is at odds with the report of the Competition Authority, which recommended a purely voluntary system.

Deputy Brian Lenihan

Níl aon eolas in aon chor ag an Údarás Iomaíochta faoin teanga. Níl mórán eolais aige ar ghairm an dlí ach an oiread. I will deal with that in a minute.

Deputy Brian O’Shea

Tá súil agam go ndéanfaidh. Tá an tAire ag rá nach bhfuil aon fhiúntas ag údarás a cuireadh ar bun ag an Stát maidir leis an gceist seo.

Deputy Brian Lenihan

The Competition Authority has no expertise in the Irish language. It is not within its statutory remit to decide policy on the Irish language.

Deputy Brian O’Shea

The report also dealt with other issues regarding entry into the legal profession.

Deputy Brian Lenihan

Those are very important issues.

Deputy Brian O’Shea

We should not be dismissive of the findings. I am sure the select committee notes the Minister's opinion of the Competition Authority's competence to pronounce in this area.

It is not necessary, as the Bill seems to imply, for a person to undergo a course to facilitate referral to a practitioner who is competent in Irish. That is a most extraordinary provision. Does one need to do a course to refer a client to a solicitor or barrister who is competent in Irish? This is a weak part of the Bill. The Labour Party proposes that attendance at the terminology course be voluntary. There is no statutory provision of an examination following this course, neither is it excluded. Could the Honourable Society of the King's Inns or the Incorporated Law Society of Ireland decide to introduce an examination?

What intrigues me is how the statutory obligation to attend the course will be refereed. This problem will give rise to an element of authoritarianism, which is not to be welcomed.

Amendment No. 7 seeks to insert the following:

The Minister shall prescribe the maximum duration of a course under this subsection and shall prescribe what constitutes satisfactory attendance at such a course. No examination, written or oral work or other test may be held for such a course.

We seek to ensure the voluntary nature of attendance at the course cannot be undermined. This section is open to abuse. A course of instruction could evolve into a major hurdle to be cleared and there is nothing in the section prohibiting an examination. Furthermore, an open-ended definition of the term "undertaking a course" might be applied to require 100% attendance at a series of, perhaps, 40 hour long lectures in one year, all so that one may tell a client who to telephone to find a lawyer capable of taking a case in Irish. This will be against a background of a public register of those who have completed the voluntary course, which will increase the number of barristers and solicitors who already have competence in the Irish language. A system of compulsory attendance leading to a compulsory examination is rife with difficulties.

Amendments Nos. 14 to 16, inclusive, are analogous to amendments Nos. 4 to 7, inclusive, which we have discussed.

Deputy Brian Lenihan

Sections 1 and 2 leave it to the discretion of the King's Inns and the Law Society to determine how to deliver their courses in Irish legal terminology and understanding of Irish legal texts. These bodies are the professional training and education providers for barristers and solicitors and they are best placed to make a decision on the manner and duration of these courses.

I understand the spirit in which amendments Nos. 4 and 14, specifically, were proposed. Deputy O'Shea made the point that in his pedagogic experience a bilingual approach is of far greater assistance in the teaching of a subject. I t is a matter for the King's Inns and the Law Society to make detailed pedagogical decisions such as this, however, and I do not believe we should insert amendments into the Bill to provide how they do the course.

Amendments Nos. 6, 7 and 15 are more at the heart of the points being made by Deputy O'Shea. There is no question of an examination, written or oral work or other tests being prescribed for this course. I am willing to have a look at this issue to ensure the Bill, as drafted, makes that clear before we visit the issue again on Report Stage. I am prepared to examine the question of whether the Bill, as drafted, ensures the element of educational instruction required to be provided in the Bill is not subject to examination. That is the net issue of the amendment. I certainly am prepared to have that issue examined. I would not have introduced the Bill had I thought any question of an examination on this element remained in it. I will check that out for the Deputy. I am satisfied, however, that the Bill contains no question of an examination being insisted upon. I will look into that issue because Deputy O'Shea has raised it.

Amendment No. 7 would require the Minister to prescribe the maximum duration of the course provided for in this subsection and prescribe what constitutes satisfactory attendance at such a course. That is fundamentally a matter for the King's Inns and the Law Society to regulate and is what the legislation provides.

Deputy O'Shea refers to the question of making attendance at the course voluntary. If there are two official languages in the State, recourse can be had to the courts by persons who wish to exercise their right and avail of the use of the Irish language before the courts. If that is the case, it is important that lawyers understand the basis of this in a general sense. That is why the course is being provided for in the legislation.

As a former law student, I am grateful to Deputy O'Shea for his sympathies regarding compulsory attendance at courses. There are many other subjects law students are required to learn, such as the Rule in Shelley's Case, the arcane mysteries of real property law and the complicated taxation statutes we enact in these Houses and inflict upon them.It is not unusual to ask law students to do a particular subject. The legislation merely stipulates that the subject must be provided as part of the course of instruction. It does not provide for an examination in the subject.

Deputy Brian O’Shea

On the basic issue of attendance, who is the arbiter and what criteria will be applied in terms of what constitutes "attendance". Will a roll be called at each lecture or will there be some vigilante presence to ensure people are there? Attendance is compulsory statutorily. Can the Minister recall from some of the courses he attended what was the exact regime? Were rolls called or how exactly was satisfactory attendance established? This is not clear in the legislation.

To sidestep the issue of bilingualism in the provision of the courses is not good enough. If, as I understand it, the provision of the current course is not available bilingually, for me as a citizen of this State and a person who subscribes to the laws of the State it is wrong that should happen. I do not believe that one can say we will leave that to the inns of court. A decision can be taken. I understand that the current situation is that the courses are provided through Irish only.

It is no use saying to me that the inns of court have the call on this. This is a basic right for people. If they want clarification, using English, of issues in the Irish language, how can that be denied to them? We have two languages in the State and have a bilingual policy. However, my information is that there has been a refusal to provide the existing course bilingually. Will we move on and perpetuate that situation or will we insert a safeguard here to ensure it cannot happen?

Deputy Brian Lenihan

The existing course will disappear with the enactment of this legislation. What the legislation envisages is an entirely different regime, and I am content to leave the details of that regime to the relevant professional bodies. I do not believe it is appropriate in legislation for us to go into the pedagogical details of how a particular course of instruction can be imparted.

One other matter, Deputy O'Shea uses the expression "compulsory attendance" very freely. The phrase "compulsory attendance" does not appear in this legislation. The legislation provides that a course "shall be undertaken".

Deputy Brian O’Shea

Is the Minister saying this could equally be interpreted as voluntary attendance?

Deputy Brian Lenihan

No, I am saying that what the legislation provides is that a course "shall be undertaken". Again, I am content to leave the matter as to whether a student takes a course to the Kings Inns and the Law Society, which have introduced substantial changes in their curriculum and modes of instruction in recent years and do a very good job. I think they can be entrusted with the task of ensuring this course is provided.

Deputy Brian O’Shea

Would the Minister be satisfied with a situation where a student who, for example, attended fewer than 80% of the lectures is not allowed his or her living because of not having attended 80% plus of the lectures?

Deputy Brian Lenihan

Let us take the example of the Law Society. I understand that attendance is compulsory at all lectures in the Law Society. There is an intensive form of instruction in Blackhall Place, where the student learns in a hands-on way about issues such as office management, professional ethics, the conduct of litigation, how to react with clients and how to take instructions from clients, etc. All these matters are imparted by the Law Society in practical modular exercises in Blackhall Place. All that this Bill provides, as far as the Law Society is concerned, is that there will be such an exercise with regard to Irish legal terminology and it will not be examinable.

One could pose the same question with regard to the Kings Inns, which has traditionally provided its instruction through lectures. One could raise the same issue with regard to conveyancing. If a student failed to attend the course on conveyancing, would the Kings Inns allow that student to be admitted to the degree of barrister of law? I am content to leave that matter to the Kings Inns to decide and do not believe we should go into the details of that in legislation. These are educational institutions and have their own measure of authority over their students. I have full confidence in their capacities to do that.

Deputy Brian O’Shea

I still put the question. As proposed, an examination is not required on completion of this module. Would the Minister be happy with a situation where a student who had otherwise passed his or her exams was denied the right to practise because of a perceived unsatisfactory attendance level at this particular course, which does not have an examination on completion and is provided to enable students develop their skills in an area in which they may never want to practise or be able to use them?

Deputy Brian Lenihan

The purpose of the course is not to enable them to use the Irish language in the courts. The purpose of the course is to make them understand the purpose and function of the Irish language in the courts, in the same way, for example, as a student will do many subjects in the course of their legal instruction that will explain a particular branch of the law they may never encounter for the rest of their lives.

Deputy Brian O’Shea

I take the point, but the Minister has not answered my question. Is he satisfied with a situation where somebody who has passed everything else is denied the right to practise because of failure to attend to a satisfactory level a course that is compulsory for them to attend? Whatever he says, the words "undertaking a course" imply compulsion. We either call it a voluntary course or we do not. I feel this is open to abuse by a certain mindset, and that is my concern.

Deputy Brian Lenihan

I was not quite sure from where the Deputy was coming on this. I have every confidence in both the Kings Inns and the Law Society and their capacity to implement this section in a reasonable way.

Vice Chairman

An bhfuil an Teachta chun an leasú a bhrú?

Deputy Brian O’Shea

Níl mé chun é a bhrú ag an am seo, ach tiocfaidh mé ar ais chuige ar Chéim na Tuarascála. Iarraim ar an Aire féachaint ar an gceist agus iniúchadh a dhéanamh ar cad a tharlaíonn faoi láthair. Tá eagla orm go dtarlóidh rud éigin nach dtabharfaidh cothrom na féinne do mhic léinn áirithe.

Deputy Brian Lenihan

Tuigim é sin, ach ag an am céanna tá muinín agam in Óstaí an Rí agus sa Dlí-Chumann go mbeidh siad in ann cothrom na féinne a thabhairt do na mic léinn. Bhí sé an-deacair an rud a bhí ann faoin sean reacht a chur i bhfeidhm ag an ghairm, ach ní chuireann an foráil sa Bhille seo aon eagla ar éinne.

Deputy Brian O’Shea

An mbeidh aon iachall ar the Honourable Society of Kings Inns tuarascáil bliana a thabhairt don Oireachtas ar conas atá siad ag déileáil leis na rudaí seo? Os rud é go bhfuil an scéal mar atá sé faoi láthair, ba cheart súil ghéar a choimeád ar cad atá ag tarlú. Chun sin a dhéanamh, ba cheart go mbeadh iachall ar Óstaí an Rí tuarascáil a chur ar fáil don Oireachtas gach bliain.

Deputy Brian Lenihan

B'fhéidir gur féidir é sin a dhéanamh, ach b'fhéidir freisin go mbeadh sé níos fearr an tuarascáil sin a thabhairt don Aire ó am go ham. Bheadh sé sin níos casta ná tuarascáil bliaintiúil a thabhairt don Oireachtas. Deireann Alt 1(13) den Bhille go "dtabharfaidh an Chomhairle tuarascáil i scríbhinn i nGaeilge" don Aire gach bliain. Bainfidh an tuarascáil le cur i bhfeidhm an alt sa bhliain roimhe. Cuimseoidh sé trácht ar na daoine atá ag déanamh an chúrsa agus aon fhaisnéis eile gur mian leis an Aire a fháil.

Deputy Brian O’Shea

Cá bhfuil sé sin?

Deputy Brian Lenihan

Tá sé in Alt 1(13) den Bhille.

Deputy Brian O’Shea

An bhfuil aon dualgas ar an Aire an tuarascáil sin a fhoilsiú nó a chur faoi bhráid an chomhchoiste gach bhliain? Ceapaim go bhfuil sé tábhachtach go mbeidh a fhios ag an Oireachtas cad díreach atá ag tarlú.

Deputy Brian Lenihan

Is féidir é sin a dhéanamh. Déanfaidh mé scrúdú ar sin. B'fhéidir go gcuirfidh mé leasú eile isteach ar chéim na Tuarascála.

Deputy Brian O’Shea

Tá go maith. Tarraingeoidh mé siar leasú Uimh. 4.

Vice Chairman

Maith go leor.

Amendment, by leave, withdrawn.

Vice Chairman

Os rud é go bhfuil leasuithe Uimh. 8 agus 10 gaolmhar le leasú Uimh. 5, tógfar leasuithe Uimh. 5, 8 agus 10 le chéile.

Deputy Brian Lenihan

I move amendment No. 5:

In page 6, subsection (3)(a), lines 29 and 30, to delete “studying for the degree of barrister-at-law.” and substitute “attending the degree course of barrister-at-law.”.

Ní ach leasuithe teicniúla dréachtaithe atá i gceist anseo. Is mar a chéile go díreach iad. Is é cuspóir na leasuithe ná a thabhairt chun lánchinnteacht gur le daoine atá ag freastal ar chúrsaí chéime abhcóide Óstaí an Rí a thagraíonn an Bhille.

Deputy Brian O’Shea

Cad faoi daoine atá ag staidéir sa bhaile, mar shampla? Ní bheidh orthu freastal ar an gcúrsa.

Deputy Brian Lenihan

Níl sé sin ceart.

Deputy Brian O’Shea

Cén difríocht atá idir an dá rud? Cén difríocht atá idir duine atá ag staidéir agus duine atá ag freastal ar chúrsa?

Deputy Brian Lenihan

Úsáideann Óstaí an Rí an téarma "duine atá ag freastal ar an gcúrsa céime abhcóide dlí" chun cur síos a dhéanamh ar ghach scoláire. Má tá duine ag "attending the degree course of barrister-at-law", tá sé nó sí in Óstaí an Rí, ag ithe an dinnéir agus ag freastal ar na ollaimh atá ann.

Deputy Brian O’Shea

Okay. Bíonn an saol ait uaireanta.

Deputy Brian Lenihan

Tá na dinnéir éigeanta chomh maith. Níl aon scrúdú nó tuairisc fúthu.

Deputy Brian O’Shea

Níl siad dátheangach, dé réir dealramh.

Deputy Brian Lenihan

B'fhéidir go bhfuil. Chuala mé Gaeilge ann, chun an fhírinne a rá.

Deputy Brian O’Shea

An rud is annamh is iontach.

Amendment agreed to.

Amendments Nos. 6 and 7 not moved.

Deputy Brian Lenihan

I move amendment No. 8:

In page 8, subsection (3)(b), line 1, to delete “studying for the degree of barrister-at-law” and substitute “attending the degree course of barrister-at-law”.

Amendment agreed to.

Vice Chairman

Tá gaol idir leasú Uimh. 9 agus leasuithe Uimh. 17 agus 23 agus de bharr sin tógfar le chéile iad.

Deputy Brian O’Shea

I move amendment No. 9:

In page 8, subsection (3)(b), line 3, after “with” to insert the following:

", or attended a course of instruction or sat an examination for the purposes of seeking to comply with,".

Tá leasuithe Uimh. 9 agus 17 ar aon dul, ach tá leasú Uimh. 23 difriúil. Amendment No. 9 is technical, in a sense. It is required to deal with current students, such as those who sat the Irish examination in January of this year. Let us say, for argument's sake, that this Bill becomes law in March 2008. If a person passed the Irish examination in January 2008 but is not notified of that result until April 2008, technically he or she may not have complied with section 3 of the 1929 Act prior to the passing of this Act. Under section 1(3)(b) of this legislation, a person who attends the Irish course in 2008 and 2009 but fails the examination will be required to attend Irish lectures for a second time, because they did not pass the examination, even though they will not have to sit a further examination. I have outlined two anomalies that theoretically could arise during the transitional period. If accepted, amendment No. 9 will change section 1(3)(b) so that it states:

Any person studying for the degree of barrister-at-law who, before the repeal by this Act of the Legal Practitioners (Qualification) Act 1929, had complied with, or attended a course of instruction or sat an examination for the purposes of seeking to comply with, section 3 of that Act shall be deemed to have attended the course referred to in paragraph (a).

The amendment seeks to remove any anomalies that could arise during the transitional period.

Amendment No. 17 seeks to amend the proposed new subsection 2A(c)(ii) of section 40 of the Solicitors Act 1954 so that it reads:

Any person undertaking the Professional Practice Course who, before the commencement of section 2 of the Legal Practitioners (Irish Language) Act 2007, had passed both of the examinations in the Irish language provided for by regulations made under subsection (3) of this section, or attended a course of instruction or sat an examination for the purposes of those regulations, shall be deemed to have attended the course referred to in subparagraph (i).

We are trying to remove any anomalies in the legislation.

Deputy Brian Lenihan

The Deputy has raised two distinct issues. The first issue, the implementation of the Act, is dealt with in the commencement section of the Bill, which states:

Tagann an tAcht seo i ngníomh cibé lá nó laethanta a cheapfaidh an tAire Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí le hordú nó le horduithe i gcoitinne nó faoi threoir aon chríche nó forála áirithe, agus féadfar laethanta éagsúla a cheapadh amhlaidh chun críoch éagsúil nó le haghaidh forálacha éagsúla.

The legislation gives the Minister flexibility in relation to its commencement. I will be able to deal with any anomalies that may develop this year.

The second issue raised by the Deputy in these amendments, which is more general, centres on the position of those who have completed their training without meeting the current statutory Irish language requirements and who have not been admitted to practice. In other words, it relates not to what will happen in the future but to what has happened in the past. I agree that this issue should be addressed in the Bill. I thank Deputy O'Shea for these amendments. I am in the process of consulting the various interests on the best way to resolve this matter. For example, I will revisit the issue of the arrangements that should be put in place for those who attended the King's Inns in the past but are disqualified from being called to the Bar solely on the basis of not fulfilling the requirement to have passed the Irish language test. I certainly am prepared to examine this matter with a view to putting arrangements in place for such people.

Deputy Brian O’Shea

I will withdraw amendment No. 9. I cannot withdraw amendment No. 17 at this stage but I will do so when we come to it.

Amendment No. 23 seeks to insert a new section 4 to provide the following:

4.-(1) The Chief Justice shall not refuse to admit any person to practise as a barrister-at-law in the courts of Ireland on the ground of the person's lack of a competent knowledge of the Irish language.

(2) Where prior to the passing of this Act any person was refused admission to, or did not apply for admission to, practise as a barrister-at-law on the ground of failing to satisfy the Chief Justice as to the person's competent knowledge of the Irish language, pursuant to the Legal Practitioners (Qualification) Act 1929, the person may apply to the Chief Justice for admission to practice as a barrister-at-law and the Chief Justice shall admit such person to practise as a barrister-at-law if the person is otherwise qualified for such admission.

(3) The Law Society of Ireland shall not refuse to admit any person to practise as a solicitor in the courts of Ireland on the ground of the person's lack of a competent knowledge of the Irish language.

(4) Where prior to the passing of this Act any person was refused admission to practise as a solicitor on the ground of failing to satisfy the Law Society of Ireland as to the person's competent knowledge of the Irish language, the person may apply to the Law Society of Ireland for admission to practise as a solicitor and the Law Society of Ireland shall admit such person to practise as a solicitor if the person is otherwise qualified for such admission.

This is an important amendment to deal with persons who did not sit or pass the Irish examination prior to 2008. Such persons have suffered a serious injustice by being subject to a compulsory regime. They have been deprived of their right to earn a livelihood as lawyers and we should take steps to redress that in so far as it is possible. The amendment would provide that such persons can now apply to be called to the Bar or to become solicitors.

Deputy Brian Lenihan

I replied to that point some minutes ago. Did we not take the three amendments together?

Deputy Brian O’Shea

I did not move the amendment.

Deputy Brian Lenihan

Gabh mo leithscéal.

Deputy Brian O’Shea

As I said during the debate on Second Stage of the Bill, I am aware of a person who, 40 years ago, qualified as a barrister but did not take the Irish examination. For 40 years, the person has been denied the right to practise as a barrister. This is an extraordinarily bizarre situation. I believe a person who was unable to pass the Irish examination or, for reasons of principle or otherwise, did not take it, could successfully sue the State for lack of earnings having been denied the right to earn their living.Is it not now time to tidy this situation? Are we asking these people to attend a course, “attendance” being the word? Will such people be admitted to the course provided for younger students? Will attendance at such a course be a compulsory step to earning a living for people who are already well qualified to do so?

Deputy Brian Lenihan

I replied to this question some moments ago.

Deputy Brian O’Shea

I would prefer the Minister to reply—

Deputy Brian Lenihan

Again.

Deputy Brian O’Shea

—after I have had a chance to present my own arguments.

Deputy Charles Flanagan

I may be of assistance to the Minister. What is proposed here is a form of amnesty for those who may have gone through the system but did not reach the required standard in Irish. With the removal of the compulsory element from the process, what is required is a formula that would be, in effect, an amnesty for those who are in the system but have not been able to practise for the reason Deputy O'Shea has given.

Deputy Brian Lenihan

The amnesty word is regarded with distaste in many sections of my Department. It is not a word that is congenial in the Department of Justice, Equality and Law Reform.

It is worth noting that this difficulty never arose with the solicitors' profession. The Incorporated Law Society of Ireland insisted that students pass the Irish examination before doing any course of study. As a result, the difficulty does not arise in the solicitors' branch of the profession. The difficulty arises with barristers because students were permitted to do the course and were disqualified solely on the basis of their failure to pass the requirement of the 1929 legislation. Successive Chief Justices, some of them very erudite in the Irish language, at times took a relaxed view of what should be required of students. I understand the position has become more difficult in the King’s Inns in recent years than in earlier generations.

I accept, however, there is an issue to be addressed regarding those whose call to the Bar did not take place solely on the grounds of their non-compliance with the 1929 Act. The issue should be addressed in this Bill. I thank Deputy O'Shea for his amendment. I am in the process of consulting the various interests on the best way to resolve this matter.

Deputy Brian O’Shea

That is most encouraging. Is the Minister minded to resolve the issue in a fair and equitable way?

Deputy Brian Lenihan

Yes. I do not believe, however, a person would have had a successful right of action against the State for the deprivation of his or her livelihood.

Deputy Brian O’Shea

Is the Minister going as far as the A word? Is this an amnesty?

Deputy Brian Lenihan

I will see what formula can be devised that is appropriate to the circumstances in which that group of people find themselves.

Deputy Brian O’Shea

I will withdraw this amendment when we reach it. I thank the Minister for his progressive attitude.

Amendment, by leave, withdrawn.

Deputy Brian Lenihan

I move amendment No. 10:

In page 8, subsection (4), line 8, to delete "pursuing the barrister-at-law degree course." and substitute "attending the degree course of barrister-at-law.".

Amendment agreed to.

Section 1, as amended, agreed to.

SECTION 2.

Deputy Brian Lenihan

I move amendment No. 11:

In page 10, lines 23 and 24, to delete "Government policy on bilingualism" and substitute the following:

"the status of the Irish language as the first official language".

Amendment agreed to.

Amendments Nos. 12 to 17, inclusive, not moved.

Section 2, as amended, agreed to.

NEW SECTIONS.

Vice Chairman

Tá gaol idir leasuithe Uimh. 18, 19, 20 agus 21 agus tógfar le chéile iad.

Deputy Brian Lenihan

I move amendment No. 18:

In page 14, before section 3, to insert the following new section:

3.-Section 43 (inserted by section 51 of the Solicitors (Amendment) Act 1994) of the Solicitors Act 1954, is amended by substituting the following subsection for subsection (4):

"(4) A person to whom this section applies shall not be required to undertake a course of instruction under section 40(2A)(c)(i) (inserted by section 2 of the Legal Practitioners (Irish Language) Act 2008), if he or she—

(a) has undertaken a course of instruction provided for under section 1 of the Legal Practitioners (Irish Language) Act 2008, or

(b) has passed, or was, immediately before the commencement of the Legal Practitioners (Irish Language) Act 2008, exempted from passing any examination in the Irish language prescribed by the Chief Justice under section 3 of the Legal Practitioners (Qualification) Act 1929.“.”.

Táimse chun na leasuithe seo a mhíniú trí Bhéarla mar tá siad an-chasta ar fad.

Section 43 of the Solicitors Act 1954 provides for the making of exemptions from compulsory examinations in the trainee solicitor programme for barristers seeking to cross over to practise as solicitors. Such exemptions are warranted given the many common features in the training of the two professions. Government amendment No. 18 amends section 43(4) so that a practising barrister seeking to cross over to practise as a solicitor will not have to undertake the Law Society course of instruction in Irish legal terminology, owing to his or her completion of a similar course during his or her attendance at the Kings Inns barrister at law degree course.

I agree that section 40(6) of the 1954 Act ought to be repealed. Government amendment No. 19 provides for this. Both the King's Inns and the Law Society are required by the new sections to report to me annually on the new arrangements. In this context, there is no longer a need for the Minister for Education and Science to have any role in the appointment of Law Society examiners in the Irish language.

With regard to section 43(2) of the 1954 Act, the Solicitors Act apprenticeship regulations made by the Law Society appear to repeal this subsection. Section 43(2) was included in the 1994 Act to regulate apprenticeship and education matters, pending the making of detailed regulations by the Law Society. The coming into operation of such regulations is deemed by section 43(8) to have repealed the relevant subsection. There is a small degree of uncertainty about this and in view of the unusual construction of these provisions and in the interest of certainty, amendment No. 19 clarifies that the subsection is repealed. Amendments Nos. 20 and 21 are not in my name.

Deputy Brian O’Shea

Those are tidying up amendments in the name of the Labour Party.

Deputy Brian Lenihan

I will not accept those amendments because the repeal of various statutory provisions, which arise as a consequence of the provisions of the Bill, are provided for in section 3 of the Bill. Amendment No. 19 deals with all the repeals, including a number of those proposed in the Opposition amendments. In other words, my technical amendments deal with those issues.

Deputy Brian O’Shea

I will withdraw amendments Nos. 20 and 21 on that basis but will check the Minister has covered the issues before Report Stage.

Amendment agreed to.

Deputy Brian Lenihan

I move amendment No. 19:

In page 14, before section 3, to insert the following new section

3.—The following are repealed:

(a) the Legal Practitioners (Qualification) Act 1929,

(b) section 40(6) of the Solicitors Act 1954, and

(c) in so far as it is not already repealed, section 43(2) of the Solicitors Act 1954 (inserted by section 51 of the Solicitors (Amendment) Act 1994).”.

Amendment agreed to.

Amendments Nos. 20 and 21 not moved.

Vice Chairman

Amendment No. 22 has been ruled out of order as it is outside the scope of the Bill.

Amendment No. 22 not moved.

Section 3 deleted.

Amendment No. 23 not moved.

Section 4 agreed to.

Title agreed to.

Bill reported with amendments.

Vice Chairman

Ba mhaith liom buíochas a ghabháil leis an Aire agus lena chuid oifigigh agus leis na Teachtaí a ghlac páirt agus a bhí i láthair anseo.