The Supreme Court has found the State delayed “unreasonably” in fulfilling its constitutional duty to provide an Irish version of an Act of the Oireachtas.
In a ruling published in both Irish and English, Mr Justice Gerard Hogan affirmed the High Court’s finding that there was “excessive and unreasonable” delay in supplying a translation of the Planning and Development (Amendment) Act 2018.
The Act was signed by the President in July 2018, but a translation was not made publicly available until April 2020.
It had been sought, along with Irish versions of various statutory instruments, by Siobhán Denvir-Bairéad and her companies Gleann Mór Céibh Teoranta and Gleann Mór Cuan Teoranta.
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She wanted the legal texts so she could contest at an oral Irish hearing, held by An Bord Pleanála, Irish Water’s compulsory purchase order over lands she owns in the Connemara Gaeltacht area.
Mr Justice Hogan noted that about 40 to 50 Acts are signed into law annually, and, as of February 2021, there were some 450 Acts of the Oireachtas awaiting translation.
This state of affairs gives rise to “anxious concern”, with the extent of delays speaking to the State’s “manifest non-compliance” with an express constitutional obligation, he said. While it was easy to have sympathy for the difficulties the State has in securing appropriate staff for translating legislation, the delay could not be regarded as reasonable, he said.
The court overturned a High Court finding that the State was obliged to provide Irish translations of various statutory instruments sought. Mr Justice Hogan said there was not generally an obligation to provide Irish versions of statutory instruments except for some special and exceptional cases.
There is a constitutional obligation to translate statutory instruments made under section 3 of the European Communities Act 1972, he said. That is because these particular instruments amend Acts of the Oireachtas and, therefore, they constitute part of the State’s primary law.
There was no need, given Ms Denvir-Bairéad is fluent in English, to go beyond making a declaration regarding these special status instruments by restraining the hearing of the oral hearing before An Bord Pleanála, the judge said.
The Supreme Court agreed to hear the State’s appeal, which bypassed the Court of Appeal, as it raised important legal issues that could affect general public administration.
Articles 8 and 25 of the Constitution were at the heart of the case, said Mr Justice Hogan on behalf of the five-judge Supreme Court.
The State appellants, comprising the Minister for Housing, Planning and Local Government, An Bord Pleanála, Ireland and the Attorney General, said there were practical difficulties in providing an Irish translation of the large number of Acts made each year, many of which are long and complex.
If the State was obliged to provide official translations of statutory instruments when requested to by individuals, as in this case, this would result in delays. The State’s obligation to facilitate the use of Irish by people who wish to use it for official purposes must be subject to some standard of proportionality and balance, they said.
Mr Justice Hogan said the court “expressly rejected” a suggestion that Article 8 imposed a general duty of translating all statutory instruments.
The High Court’s order that the State must provide an official translation of various statutory instruments, which do not have special status, “goes too far and imposes too great a burden on the clearly stretched translation resources of the State”, he said.
