The judgment in the first legal challenge to the Official Languages Act 2003 (the “Act”) was delivered on 14 October 2008, just two weeks after the publication of the Official Languages Act 2003 (Section 9) Regulations 2008 on 1 October 2008 (the “2008 Regulations”), both of which reinforce the broad and potentially far-reaching powers of the Act. However, in the current economic environment where the public sector is under pressure to cut spending, the costly administrative obligations imposed by the Act on over 600 public bodies may come under increased scrutiny.
The Act provides statutory and institutional backing to the constitutional protection of the Irish language as the first official language. It does so in the context of delivery of public services. The Act currently applies to over 600 public bodies, which include government departments, local authorities, and State agencies, including companies such as Aer Lingus Group plc, An Post, Bord Gáis Éireann, Bus Éireann, the ESB, IFSRA, and RTÉ.
The Act imposes legal duties on these public bodies to ensure that an adequate number of its staff are competent in the Irish language, and produce correspondence, documents, brochures, mail-shots and other publications in both the Irish and English languages for the public. Certain documents are to be published simultaneously in both languages. The public bodies must advise the Minister for the Community, Rural and Gaeltacht Affairs through a statutory scheme of the services that they propose to provide through the Irish language. The 2008 Regulations extend the scope of the Act to recorded oral announcements, stationery, and signage.
An Coimisinéir Teanga is entrusted with monitoring compliance. His Annual Report for 2007 indicated that it conducted 12 investigations in 2007 concerning complaints regarding compliance with the Act. The Report states that the investigation process requires a substantial amount of time and resources from the public body concerned and An Coimisinéir Teanga. There is little recourse to the courts for public bodies subject to the Act, apart from the right to appeal to the High Court on a point of law.
Outside of a small group of enthusiasts there was little public demand for the Act or even awareness of it. This may well have reflected the fact that much of the Oireachtas debates on it were conducted in Irish, notwithstanding that only approximately 1 per cent of Dáil and Seanad debates are conducted through Irish. Significantly, neither the Department of the Community, Rural and Gaeltacht Affairs, nor the Department of Finance “costed” the Act before it was implemented, and it will be interesting to see if the Comptroller & Auditor General expresses a view in the future expenditure that has arisen because of the Act, in the context of the take up materials required under the Act.
Public bodies will either have to ensure that some members of staff are proficient in Irish or outsource the work relating to compliance with the Act. One of the major problems with this is the lack of individuals with sufficient fluency and the lack of sufficient translation services should public bodies wish to outsource the work. To redress this An Coimisinéir Teanga’s Annual Report for 2007 advocates positive discrimination for the public sector for Irish speakers. This would surely be a step backwards for multicultural Ireland.
Most significantly, there are public bodies to whom the Minister can extend the scope of the Act under paragraph 1(5) of the First Schedule. This includes at paragraph 1(5)(c) those who at the date of the Act were a public body but are subsequently privatised. This surely creates an unfair advantage in certain sectors. For example, Aer Lingus plc, which was a public body at the time the Act was implemented and is now privatised falls within this category (and was designated under the Act in 2003), whilst its direct competitor, Ryanair does not. There are obvious cost implications for Aer Lingus as a consequence of compliance, which Ryanair does not face.
However, the most radical and far-reaching aspect of the Act is the potential for the Minister under paragraph 1(5)(d) of the First Schedule to extend the Act to: “any other body, organisation or group on which functions in relation to the general public or a class of the general public stand conferred or permitted by enactment or by any licence or authority given under any enactment”. It was paragraph 1(5)(d) which was the subject of the recent ruling of Judge MacMenamin in Central Applications Office Ltd (“the CAO”) v the Minister for Community, Rural and Gaeltacht Affairs, Ireland and the Attorney General  IEHC 309.
The CAO is a non-profit company, and has no statutory basis. Its main function is to centrally process applications for admission to third level colleges. It challenged its designation as a public body under the Official Languages Act (Public Bodies) Regulations 2006. It was noted by the court that the State had no responsibility for the CAO’s operations and it was, in effect, a “service provider” to various universities and third level institutions.
However, the court ruled that whilst the CAO had not been designated under paragraph 1(5)(c), its designation correctly fell within the parameters of paragraph 1(5)(d) on the basis that the CAO’s functions were captured by public statutes governing higher education institutions. The court considered that the functions of a university include the administration of applications and admissions and cited, by way of example, section 13(1)(c) of the Universities Act 1997 which permits universities to establish “trading, research or other corporations . . . for the purpose of promoting or assisting , or in connection with the functions of, [a] university”.. On this basis Judge MacMenamin ruled as follows (emphasis added):
“The logical conclusion of the plaintiff’s case here is that the CAO is now exercising functions which are not permitted by any authority given under any enactment. I do not think this is a tenable position. . . . . To the contrary there is permission for such functions as outlined in the statutes. . . . . The issue is not whether the CAO itself is permitted under any enactment but whether that body is permitted to exercise powers and duties by virtue of an implied or express authority under an enactment. . . . . . A perusal of the Act of 2003, shows clearly that while its predominant focus is undoubtedly on public bodies which are emanations of the State, the categories identified are not by any means so confined. . . . . . It may well be that the CAO even as a private company is to be seen as a mere co-operative “service provider” to the universities. But that does not prevent it coming within the four walls of the clause”.
Depending on how this case is interpreted, potentially any service provider to State emanations whose functions are conferred by Statute or under any enactment could, in the future, be designated under the Act. Furthermore, the above dicta appears to underpin the view that the Act is potentially very far-reaching and could encompass those operating in the private sector. The explanatory memorandum of the Official Languages (Equality) Bill 2002 is illustrative of this point where it states that the first schedule: “also sets out the procedure in the event of seeking to extend the scope of the Act at a future date to sectors of the economy other than the public sector which are engaged in the provision of services directly to the public (eg. commercial banks, other lending agencies, insurance companies, transport companies, health care providers, telecommunications companies)”.
Apart from the unimaginable costs this would cause to businesses in Ireland, there are simply not the resources available in the State to achieve this objective. Theoretically, even publicans could be designated under paragraph 1(5)(d) of the Act. It would create an unfair advantage in certain business sectors for those businesses that are business-to-business providers only and do not “offer services to the public”. Extending the scope of the Act in this way would no doubt have detrimental consequences to inward investment in Ireland. For example, it would be difficult to imagine trying to persuade a global company in the banking or telecommunications sectors to establish its European headquarters here when it would have to allocate a significant amount of its budget in complying with the Act and recruiting staff that speak Irish.
In light of the potentially broad scope of the Act which has been confirmed by the recent caselaw, and the financial costs involved in complying with the Act, it remains to be seen whether, in the context of the current economic environment, the full application and extension of the Act might proceed – the context of increasing cost pressures, commentators in the public and private sectors might call for the curtailment of the Act.
This Article first appeared in the Public Affairs Ireland Journal.