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northern ireland

NI: High Court: Executive in breach of Northern Ireland Act for lack of Irish language strategy

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northern ireland

The High Court in Belfast granted Irish language organisation, Conradh Na Gaeilge, a declaration that the Executive Committee failed, in breach of its statutory duty the Northern Ireland Act 1998, to adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language.

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About this case:

The Executive argued that the obligation had not simply been neglected as a considerable period of time had been spent on devising a strategy, but there had been difficulty in reaching an agreement. Mr Justice Paul Maguire rejected this argument, stating that it was safe to assume Parliament was aware of the particular difficulty in finding consensus in Northern Ireland, and would not have used the word “adopt” if “consideration” was all that was required.

Background

In 2006, the United Kingdom government endorsed “the need for respect for and recognition of the Irish language in Northern Ireland”, which gave rise to legal provision being made in the form of a provision in the Northern Ireland (St Andrew’s Agreement) Act 2007 which added a new Section 28D to the Northern Ireland Act 1998.

Section 28D (1) states that the “Executive Committee shall adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language”.

In its application for judicial review, Conradh Na Gaeilge (CNaG) claimed that the Executive Committee within Northern Ireland’s devolved system of government failed to discharge the legal obligation to adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language.

In these circumstances, CNaG sought from the court, inter alia, a declaration that the Executive Committee “has failed to comply with its duty under Section 28D (1) of the Northern Ireland Act 1998 to adopt a strategy”

Executive Response

Counsel for the Executive Office argued that the Court needed to take into account the operation of the Executive and its relationship with Ministers. While accepting that no strategy had been adopted, it was undeniable that the Department of Culture, Arts and Leisure (DCAL) had for a considerable period of time applied itself to devising such a strategy.

Ultimately, Ministers had more than once been consulted, but no agreement had been reached about a strategy. In addition, a strategy was presented to the Executive Committee in March 2016, but did not “command the necessary level of support to enable it to be adopted”.

As such, the Executive argued that the obligation had not “simply been neglected and left unattended to”.

Discussion

Justice Maguire considered CAJ and Gormally’s Application NIQB 59, finding that it dealt with a very similar provision in the Northern Ireland Act, and therefore provided guidance as to the approach which the Court should take.

The court was of the opinion that it should make a declaration that the Executive Committee failed, in breach of its statutory duty under 28D (1) of the Northern Ireland Act 1998, to adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language.

Justice Maguire set out five reasons for the Court granting CNaG’s application:

  1. Nearly 10 years elapsed since the obligation contained in Section 28D had been imposed yet no strategy as required by the Section had been adopted. There had been more than a reasonable time in which this obligation on the Executive Committee could have been performed since it was originally imposed, and it could not have been the intention of Parliament that after nearly 10 years from the coming into force of the Act in 2007 this obligation would remain unfulfilled.

  2. The obligation is an obligation of outcome not means, and the required outcome is adoption. The non-performance of the obligation could not be excused by the fact that there have been efforts at times to move matters on towards the development of a strategy or strategies.

  3. The Executive Committee cannot escape its obligation by seeking to blame others – it remains the key body which has been at the centre of the delivery of government in Northern Ireland and it cannot simply avoid doing what the law requires.

  4. The object of the provision appears to be to ensure that a required target be met – Justice Maguire stated that in imposing the statutory obligation it was “safe to assume that Parliament was well aware of the difficulties involved in finding a political consensus in terms of devising a strategy in respect of the enhancement and protection and development of the Irish language in Northern Ireland”. Consequently, “if Parliament had wished only to require the consideration by the Executive Committee of the issue as to whether a strategy could be devised it would surely have said so”.

  5. Finally, the result after nearly 10 years is that the purpose of section 28D has been frustrated and has been robbed of any practical effect.

    • by Seosamh Gráinséir for Irish Legal News

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