Mr Justice Gerard Hogan

About this case:

• Citation:
  [2022] IESC 40
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

The respondents were seeking to challenge a compulsory purchase order for lands in the Connemara Gaeltacht and claimed that they did not have reasonable access to an Irish language version of the relevant legislation in advance of a hearing before An Bord Pleanála.

Delivering judgments in both Irish and English, Mr Justice Gerard Hogan noted that there was a constitutional obligation for the State to produce primary legislation in Irish, the official first language.

The court was satisfied that the delay of 17 months in this case was excessive. The court noted that there were approximately 450 Acts which were awaiting translation, which equated to “arrears” of about 10 years of legislation.

Background

The respondents sought to challenge a CPO order made in respect of lands in the Connemara Gaeltacht. An objection was lodged with An Bord Pleanála and an oral hearing was to be held on the matter. Pursuant to section 135(8)(b) of the Planning and Development Act 2000, cases involving a development within the Gaeltacht were required to be conducted in Irish unless the parties agreed otherwise.

The respondents claimed that they required official Irish language versions of certain pieces of legislation in order to adequately prepare for the oral hearing. In particular, it was claimed that the State had a constitutional obligation to provide an official translation of the Planning and Development (Amendment) Act 2018 and of 24 statutory instruments.

In relation to the statutory instruments, the respondents claimed that certain statutory instruments made pursuant to the European Communities Act 1972 amended other Acts of the Oireachtas. It was therefore claimed that there was an obligation for the State to translate these instruments. Further, it was claimed that other relevant statutory instruments needed to be translated as well.

In the High Court, it was held that the State had a constitutional obligation to make an official translation available as soon as possible and within a reasonable time. It was held that 17 months was not reasonable for the translation to still be outstanding. It was also ordered that the statutory instruments were required to be translated within a reasonable period of time. The State parties appealed to the Supreme Court.

Supreme Court

Mr Justice Hogan noted that the appeal involved three different categories of legislation, being 1) acts of the Oireachtas 2) statutory instruments made pursuant to the European Communities Act 1972 and 3) other statutory instruments. It was also noted that the Constitution provided that Irish was the first official language of the State.

Under Article 25, an official translation of an Act had to be in both Irish and English. However, despite the Act being signed by the President in July 2018, a translation was not publicly available until April 2020.

It was held that the necessity for translations was clear. Every year, there were between 40 and 50 acts which were signed into law, but approximately 450 acts were currently waiting to be translated. This amounted to a delay of 10 years, which gave rise to “anxious concern” and reflected a “non-compliance by the State with an express constitutional obligation”.

Although the court held that non-compliance with a constitutional time limit may be excusable depending on the circumstances (Re Article 26 and the Electoral (Amendment) Bill 1961 [1961] IR 169). However, in this case there was no satisfactory explanation of the delay in translation and accordingly the delay was excessive and unreasonable.

In respect of the second category of legislative measures, the court noted that statutory instruments made pursuant to the 1972 Act had statutory effect (see Quinn v. Ireland [2007] IESC 65). As such, this meant that such instruments had the same effect as statute for all practical purposes.

The constitutional requirement of a translation of a Bill signed by the President did not apply to statutory instruments generally, the court said (see Ó Murchú v. An Taoiseach [2010] IESC 26). However, it appeared to the court that the Constitution intended for all legislative measures which had the effect of primary legislation to be available in both languages.

As such, it was held that if primary text was altered by secondary legislation under the 1972 Act, then the updated text must be available in English and Irish. Any other conclusion would “jeopardise a coherent interpretation” of the constitutional provisions relating to language.

In respect of other forms of statutory instruments, the court held that it was clear from the Ó Murchú case that there was no general obligation to translate statutory instruments. While there was a constitutional duty to translate the Rules of the Superior Courts, this was tied with the constitutional right of access to the courts, it was held.

There was no suggestion that the respondents were actually prejudiced by the absence of an Irish translation of the relevant statutory instruments. The respondents spoke fluent English and the legal advisers would not be placed at a disadvantage in challenging the CPO.

Conclusion

The court upheld the High Court’s ruling that the State had delayed unreasonably in providing a translation of the 2018 Act. Further, the court affirmed that there was a constitutional obligation to effect a translation of statutory instruments made under section 3 of the 1972 Act. However, no other statutory instruments were required to be translated.

Glann Mór Céibh Teoranta and Ors. v. The Minister for Housing, Planning and Local Government and Ors. [2022] IESC 40