Analysis by Jim Allister QC MLA:
It is the precise wording of the legislation that matters.
The very first clause (78F) confirms the purpose is to give “official recognition of the status of the Irish language”. So, no one can be in any doubt as to what is intended. The purpose is clear: official recognition.
The Bill then specifies (78F(2)) how that “official recognition” will be given, namely by the appointment of an Irish Language Commissioner with statutory powers to establish and impose required standards on every public authority in respect of all the services they provide to the public.
The “main function” of the Commissioner is then put in the form of a statutory duty (78H) to “protect and enhance the development of the use of the Irish language by public authorities” in respect of their provision of services. This is to be done (78H(2)) by the Commissioner setting “best practice standards” for every public authority and monitoring their performance.
In consequence of 78H(4) there will be no restraint on the exercise of the Commissioner’s functions through a unionist veto, because any “directions” as to the exercise of those functions must be from the joint First Ministers – meaning the First Minister would require Sinn Fein consent to any directions she wished to issue.
Every public authority (78I) must prepare and publish (and implement) a plan – in consultation with the Commissioner – as to how it will meet the standards set by the Commissioner in enhancing the use of Irish in the delivery of their services.
Whereas there has been an attempt to claim that the DUP has a full proof veto on what goes into the Commissioner’s best practice standards, this does not bear rigorous scrutiny. Two points are relevant:
- The statutory framework is key here. The fact that the mode of the compulsion for official recognition of Irish is the giving of functions to the Commissioner, with the main function being to enhance the use of Irish by public authorities, means that it would probably be ruled unlawful for the First Minister to block approval of standards essential to that task.
- The prospect of the exercise of any veto on the standards set is substantially reduced by the political reality that Arlene Foster only holds office on the grace and favour of Sinn Fein which can still bring Stormont down on a whim. So, any attempt by the DUP to thwart the progression of Irish is likely to be met by the same response as 3 years ago.
The lesson from Scotland and Wales on language Acts is that the toe in the door guarantees it will be pushed open wider over time. Here, the mechanism for this is built in. Clause 78K provides for the Commissioner at any time to review the standards set and he must do that every 5 years. Cue fresh political crises.
In reviewing the Irish language proposals it is informative to compare and contrast the provision for Ulster Scots and the Ulster British tradition.
Contrary to much of the DUP’s spin there is no one to be called an Ulster Scots or Ulster British Identity Commissioner. Instead, in the legislation there is to be a person simply under the title “Commissioner“ (whereas for Irish the title is “Irish Language Commissioner”). And their powers and remit is minimal compared to the Irish Language Commissioner.
The functions (Clause 78Q) are merely to “enhance and develop the language, arts and literature associated with the Ulster Scots and Ulster British tradition”. Note, no reference to Orange culture, or any type of culture.
The means by which the Commissioner is to exercise his function is to “produce and distribute publicity material” (78(2)). Unlike Irish, no official recognition; no performance “standards” to be put on any public authority; no duty on public authorities to enhance the provision of services in Ulster Scots; no obligation for public authorities to produce a plan of action; no 5 yearly review. Indeed, while the Commissioner must increase awareness and visibility of Ulster Scots services “which are provided by public authorities to the public”, that relates to provision as is, with no compulsion to enhance. What a contrast with Irish!
In short the proposed legislation provides for an aggressive, proactive agenda for Irish, but an anodyne approach to the Ulster British tradition. The net result, inevitably, will be widening disparity.