NI High Court: Executive failing in its duty to enact a strategy to promote the Irish language
Northern Ireland’s High Court has, for the second time, declared that the Northern Ireland Executive is failing in its duty to enhance and protect the development of the Irish language. There has been inaction on this point since the provisions were introduced in 2007.
About this case:
- Citation: NIQB 56
- Court:High Court
- Judge:Mr Justice David Scoffield
In this judicial review application, the applicant, Conradh na Gaeilge, sought to challenge the Executive Committee’s ongoing failure to adopt an Irish language strategy, pursuant to its duty under section 28D of the Northern Ireland Act 1998 (NIA).
The applicant previously brought successful judicial review proceedings in relation to this same issue in 2017. Despite the previous High Court declaration, the Executive Committee has still failed to adopt any strategy.
The applicant now sought an order of mandamus to ensure compliance with the Executive’s statutory duty. Section 28D of the NIA states: “The Executive Committee shall adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language”.
This provision came into force in 2007. From May 2007 to 2012 no Irish language strategy, draft or otherwise, was created. Between 2012 and 2015, some public consultations were held, which led to draft strategies being published in 2015.
Ministers voted to require that the matter proceed only with cross-community support. This required the paper to achieve an overall majority, and a majority of both unionist and nationalist designated ministers voting on it.
Such cross-community agreement was not achieved and therefore the Executive paper seeking approval of the strategies was not agreed. No further steps were taken until 2017, which is when the High Court declared that the Executive Committee had failed to comply with its duty.
In 2020, departmental officials made a submission to the minister with proposals for the development of the Irish language strategy. It was acknowledged in this submission that the proposed timetable had been “unavoidably delayed due to Covid”.
In November 2020, the minister circulated a paper on the Irish language strategy to the Executive Committee. Evidence suggested that the minister sought to have the issue progressed within the Executive Committee at over 30 of its meetings between December 2020 and June 2021.
Notwithstanding this, the paper on the Irish language strategy was never included on the Executive Committee agenda. The court believed that the issue was being blocked from substantive consideration at the Executive Committee.
Since that time, an expert advisory panel and co-design group had been appointed. It was hoped that the department would be in a position to publish draft strategies for public consultation in early 2022; but that did not occur.
The applicant accepted that Covid-19 disrupted the anticipated timescales but contended that there was no proper justification for the egregious failure to move matters forward in relation to a draft Irish language strategy.
The court agreed with the applicant’s claim that there had been a breach of section 28D, due to a failure to adopt a strategy setting out how the Executive Committee proposed to enhance and protect the development of the Irish language.
That conclusion was “unsurprising”, given that the duty came into effect in 2007 and no such strategy had since been adopted. The Executive Committee was “manifestly still in breach of it […] it was incumbent upon the Executive to act with alacrity. It has plainly failed to do so”.
The court noted that the required strategy had not been adopted in a reasonable period of time, and that the Executive could not “escape its legal obligation by seeking to blame others”.
Remedy and conclusion
The applicant sought an order of mandamus compelling the Executive Committee to immediately publish a comprehensive timetable for the development and delivery of the Irish language strategy.
However, it was argued that these timescales were simply not realistic, given the amount of work which remained to be done to develop, consult upon and publish the strategy.
This position was worsened by the fact that there is presently no functioning Executive Committee in place, which has been the case since February 2022. The making of a mandatory order against the Executive Committee therefore couldn’t arise.
The court also accepted that making an order which would require political agreement on a matter of political controversy might appear to “trample on the separation of powers”.
However, this was not accepted in the present case, where the Executive was failing in its duty to act based on provisions passed by Parliament. Any order requiring the Executive Committee to adopt a strategy would merely replicate what Parliament had already required.
Therefore, the court made the following declaration:
“The failure of the Executive Committee of the Northern Ireland Assembly to adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language was, at the time of the commencement of these proceedings (on 27 May 2021), unlawful and in breach of section 28D(1) of the Northern Ireland Act 1998. ”
Conradh na Gaeilge’s application for judicial review was therefore allowed, and the only relief granted was the above declaration.