Household Charge Challenge

godtabh

RTE.ie have reported that there is to be a challenge to the household charge based on the fact that it wasnt published in Irish and hence unconstitutional.

Is there precedent for this? Can a statute be revoked for this type of thing?

godtabh

so it has been found to be un constitutional

Link

Avatargh

No it hasn't.

The article was written by someone who doesn't understand the difference between being given leave to challenge a piece of legislation and actually challenging it.

It is border line irresponsible journalism actually to write about "High Court ruling that legislation bringing in the tax was unconstitutional". That didn't happen.

And anyway, its far from clear that a lack of translation actually affects the documents promulgated. It may be unconstitutional not to do it, but that doesn't mean the actually published / signed version is unconstitutional. It will be interesting to see how it goes.

Lockstep

Unconstitutional as it's not in Irish.

Meh.

Avatargh

Well, its probably unconstitutional not to publish a translation within a reasonable time of the President signing it. It's just a question as to whether that omission is an abstract unconstitutionality or whether it effects the actually signed text.

There is something about discussing on-going cases though on boards.ie isn't there? I'll stop here just in case.

Ashashi

This is a bit pedantic by the person taking it. This is going to cost huge amounts and will most likely result in the legislation being published as gaeilge.

godtabh

I am not a legal expert and I am only reading what has been published

Hence why I posted it here for discussion. What has been reported will make it even hard for the government to get the remaining 85% signed up.

nuac

Early days yet in that case. Application for leave ( to commence the case ) is not too hard to get. Hard and expensive part comes later.

State should speed up their translation of Statutes - plenty around to do it.

benway

Avatargh wrote: »

No it hasn't.

The article was written by someone who doesn't understand the difference between being given leave to challenge a piece of legislation and actually challenging it.

It is border line irresponsible journalism actually to write about "High Court ruling that legislation bringing in the tax was unconstitutional". That didn't happen

The standards of court reporters in this country never ceases to amaze me - I pretty much expect to see at least one basic error in any given report. This is an extreme example, granted.

On the substance of this, I'm a firm supporter of ár dteanga fhéin, think it's ridiculous that a translation wouldn't have been produced contemporaneously, surely to God it isn't too much to ask to have one fully paid up gaelgeoir on the drafting team?

This reflects the fact, for me, that the household charge is a poorly thought out and hurried measure, in my view also regressive, so if this litigation causes difficulties with it, so much the better. Likelihood is that the translation will be made available before the return date of the substantive motion, rendering the whole thing moot ... except for costs.

BrianD

benway wrote: »

The standards of court reporters in this country never ceases to amaze me - I pretty much expect to see at least one basic error in any given report. This is an extreme example, granted.

On the substance of this, I'm a firm supporter of ár dteanga fhéin, think it's ridiculous that a translation wouldn't have been produced contemporaneously, surely to God it isn't too much to ask to have one fully paid up gaelgeoir on the drafting team?

This reflects the fact, for me, that the household charge is a poorly thought out and hurried measure, in my view also regressive, so if this litigation causes difficulties with it, so much the better. Likelihood is that the translation will be made available before the return date of the substantive motion, rendering the whole thing moot ... except for costs.

But it sounds more dramatic if you report it like that and gets more eyes and ears onto your medium. Exactly why RTE are in so much hot water at the moment.

It seems from this morning s reports that it's not unusual for the translated version to follow the English text within a reasonable time. The legislation was published only a few months ago so I guess we'd still be in the reasonable timeframe.

plasmaguy

I hope whoever brings this, loses and has full costs including those of the state awarded against them.

It's ridiculous the lengths and cost some people will go to, to avoid paying a tax, which was the norm up intil 1977 and which is the norm in every civilized democracy the world over.

No wonder the Germans called us the Wild West.

No property tax, low income tax, no banking regulation, all reasons why we were the wild west.

Paying ourselves the biggest salaries and social welfare in Europe based off a temporary boom in stamp duty, is in any wonder we run an annual deficit of 15 billion.

Pocaide

Out of curiousity, where would one find out which Acts have been published in Irish or not as the case may be

Procrastastudy

benway wrote: »

On the substance of this, I'm a firm supporter of ár dteanga fhéin, think it's ridiculous that a translation wouldn't have been produced contemporaneously, surely to God it isn't too much to ask to have one fully paid up gaelgeoir on the drafting team?

I don't understand Irish beyond the popular reference and the odd word I have learnt here and there during my short time studying law. I think issues creep in as its not a direct translation. As the Irish version would take priority over the English version - I think they'd need quite a skilled group of people to do it.

That's not to say I disagree that legislation should be in Irish - it should!

source

Wasn't there a situation last year where a judge, I think it was in Sligo, threw out a case as the defence successfully argued that the legislation was unconstitutional as it wasn't translated into Irish.

I think it was Liquor licensing legislation that was questioned.

seamus

It was in Mayo last year:
http://www.mayonews.ie/index.php?option=com_content&view=article&id=13310:judge-astonished-by-gaping-liquor-licensing-loophole&catid=23:news&Itemid=46

As far as I can tell, the basis of such a challenge relates to article 25.4.6 which says that where there is a question of clarity as to the wording of a law, the Irish translation always takes precedent.

So if there is no translation in Irish, it is impossible to validate the english version and therefore the law is unenforceable until such a time as the Irish translation is made available.

That's my understanding of it anyway. The constitution specifically allows that the law can be passed in either language without the other translation being available. Failure to provide a translation in a reasonable timeframe doesn't cause that law to be revoked.

benway

BrianD wrote:

But it sounds more dramatic if you report it like that and gets more eyes and ears onto your medium. Exactly why RTE are in so much hot water at the moment.

Tbh, I always took these things as O'Reilly empire / tabloid sensationalism and spin, but the more I see of it, the more I think it's just plain incompetence.

seamus wrote: »

Failure to provide a translation in a reasonable timeframe doesn't cause that law to be revoked.

It doesn't, but there is an obligation on the State to make a translation available "as soon as is practicable"

7.—As soon as may be after the enactment of any Act of the Oireachtas, the text thereof shall be printed and published in each of the official languages simultaneously.

7.—A luaithe is féidir tar éis aon Acht den Oireachtas a achtú, déanfar an téacs den chéanna a chló agus a fhoilsiú go comhuaineach i ngach ceann de na teangacha oifigiúla.

http://www.oireachtas.ie/documents/bills28/acts/2003/a3203.pdf

Personally, I'd translate that as, "as soon as possible", or "as soon as can be" rather than "as soon as may be", but maybe that's more a reflection on mo chuid gaeilge.

Act was passed on the 19th of December - is three months really as soon as is "practicable"? To provide a translation into the first language of the state, lest we forget? Personally speaking, I think that's shabby, and I can't for the life of me understand why both versions aren't worked on at the same time - would surely be more efficient.

plasmaguy wrote:

I hope whoever brings this, loses and has full costs including those of the state awarded against them.

Doubtful they'll lose, I'd imagine that the State will provide the translation before it comes back before the Court, so it will probably be moot*. The law regarding Judicial Review is clear that alternative remedies must have been exhausted before going down this road, so there will probably be the question of whether the Applicant can show official requests for a translation, and responses.

I personally think they have quite a good case on principle, especially if they argue that they have been prejudiced in their ability to prepare challenge the Act as Gaeilge, as is their right, with the deadline for registration now being only a couple of weeks away. Would imagine that they'll get their costs, or at least I really can't imagine that the State will get its costs against them.

* Translated version to be provided next week:
http://www.irishtimes.com/newspaper/breaking/2012/0315/breaking168.html

07734

Would this mean that I can break any law that hasn't been translated into Irish??? (serious question)

benway

07734 wrote: »

Would this mean that I can break any law that hasn't been translated into Irish??? (serious question)

Nope - from where I see it, it would invalidate the proceedings against you in so far as the unavailability of a translation inhibits your ability to conduct your defense in the first language of the state, but not the Act itself.

I suppose that you could attempt to have proceedings struck out on that basis, as in that Mayo case ... but on a different day, for a different offence, the Judge would be just as likely to adjourn proceedings and direct that a translation be furnished. It's only a Circuit Court decision and seems slightly odd, wouldn't put too much weight on it.

Although ... you might possibly get away with it. I wonder if being charged in English where no Irish version exists would count as the commencement of proceedings, and if you're therefore prejudiced in your defense from the outset because you're not charged as Gaeilge? Wouldn't want to try it out or anything, though. The fact that there's even that much ambiguity goes to show that both versions really should be produced within days of each other rather than weeks or months.

MagicSean

GCDLawstudent wrote: »

I don't understand Irish beyond the popular reference and the odd word I have learnt here and there during my short time studying law. I think issues creep in as its not a direct translation. As the Irish version would take priority over the English version - I think they'd need quite a skilled group of people to do it.

That's not to say I disagree that legislation should be in Irish - it should!

No it shouldn't. It's as pointless as having legislation in latin. The current strategy of trying to force Irish on everyone and everything has all but killed the language. It's one of the reasons I'd like to see a whole new Constitution introduced that is in line with the current day.

johnfás

Have often thought that a much more interesting challenge would be that in general you cannot obtain a copy of a legislative instrument until it has been translated. The result in some instances is that even after a piece of legislation has been commenced, the public has no right to obtain a copy of that legislation. What we would tend to do is seek to rely on the final Bill, as passed by the Oireachtas, which is available from the Oireachtas. However, that is not the Act. And it would be interesting to see the argument being made in court regarding the enforceability of a law where you in fact have no right to notice of the Act. Which is a different point to claiming you weren't on notice when it was actually available.

benway

MagicSean wrote: »

No it shouldn't. It's as pointless as having legislation in latin. The current strategy of trying to force Irish on everyone and everything has all but killed the language. It's one of the reasons I'd like to see a whole new Constitution introduced that is in line with the current day.

Gan den chéad uair, I beg to differ, a chara.

I still think the aspiration to revive the Irish language is a noble one - but it remains that, an aspiration. I'd say it's less being killed by its being "forced" on everyone, and more by the fact that it isn't used in day-to-day business. If you can't defend a court case, or ascertain your legal rights in the first language of the state, then something is seriously wrong.

It'll delight you to note that, in so far as I'm aware, there's another Judicial Review floating about the place aiming to ensure that pharmaceuticals sold in the state carry na cúpla focail, freisin.

MagicSean

benway wrote: »

Gan den chéad uair, I beg to differ, a chara.

I still think the aspiration to revive the Irish language is a noble one - but it remains that, an aspiration. I'd say it's less being killed by its being "forced" on everyone, and more by the fact that it isn't used in day-to-day business. If you can't defend a court case, or ascertain your legal rights in the first language of the state, then something is seriously wrong.

It'll delight you to note that, in so far as I'm aware, there's another Judicial Review floating about the place aiming to ensure that pharmaceuticals sold in the state carry na cúpla focail, freisin.

The first language of the state is English, in every place but in the Constitution. The Constitution should recognise this.

benway

MagicSean wrote: »

The first language of the state is English, in every place but in the Constitution.

Not in my house, it isn't. And there are plenty more like me out there. I recognise your right to conduct your business in English, if you so choose, but I consider Gaeilge mo príomhtheanga. Gaeilge beagánín briste, ar ndóigh, ón easpa í a úsaid i mo shaol oibre.

Nobody's asking for legislation to be published in Irish first, or strictly insisting that it be published simultaneously to the English, but it's ridiculous to suggest that we should drop it altogether. Granted, as we can see, things aren't far off that point.

clashburke

godtabh wrote: »

so it has been found to be un constitutional

Link

sh*te like that article is poping up on my facebook all day!!:mad: people delighted with it... RTE need to run a story to shed light on the truth of the matter and get rid of the bull that is being spouted!!


edit: (directed at the link not the poster)

johnnyskeleton

MagicSean wrote: »

No it shouldn't. It's as pointless as having legislation in latin. The current strategy of trying to force Irish on everyone and everything has all but killed the language. It's one of the reasons I'd like to see a whole new Constitution introduced that is in line with the current day.

to temper your views somewhat, the money spent translating acts that no one reads into Irish would be better spent teaching basic spoke Irish to people.

benway

We get plenty of instruction at school, it's the lack of use in the grown-up world that's the problem.

I see they've corrected that story online now, shocking stuff. Hard to believe how little most court reporters know about ... y'know, the law.

Procrastastudy

MagicSean wrote: »

No it shouldn't. It's as pointless as having legislation in latin. The current strategy of trying to force Irish on everyone and everything has all but killed the language. It's one of the reasons I'd like to see a whole new Constitution introduced that is in line with the current day.

I can't really argue with the point you make reference it killing the language I simply dont have enough knowledge to form an opinion on the matter.

The point of having legislation in Irish is that there are certain cultural fundamentals in a nation's language. Certain concepts simply dont translate. I wish I knew enough to point you in the direction of some credible ones but the two I have come across are the protection of good name and references to the family which actually don't seem to be correctly interpreted because the English language has been used. I am also under them impression that the Irish language version of a staute takes priority over the English as well as in the case of a Constitutional conflict.

As regards the Constitution it has been said it's not some form of jurispudential aircraft that needs a new certificate every year - it's a document stating the fundamental values of the state. They may not be yours or mine but they are (theorically) that of the majority. If there is a big enough movement to change aspect then that can happen. A full rewrite would probably just leave us with a document which is just as unsatisfactory to some as the current.

I do find the use of latin in your example interesting as latin is used in instances where the concept cannot be clearly communicted in English.

benway

GCDLawstudent wrote: »

The point of having legislation in Irish is that there are certain cultural fundamentals in a nation's language. Certain concepts simply dont translate.

Non-issue, I think. Unless we were to revert to Brehon law and resurrect what's left of their precedents ... as our Fremen brethren would suggest ... our entire legal system is derived from English. It's more a question of transposing English words and concepts into Irish. We generally cheat by adopting the English word wholesale - send me a téacs on my fón if you don't believe me. Just as the English system ultimately derived from Rome, hence the Latin, and the Roman system derived from Greeks, hence the Hellenisms.

Our colonial overlords were pretty thorough when it came to cultural imperialism, not having a go or complaining about it, just stating facts ... as MagicJohn will attest. Personally, I think it's important to retain and nurture a distinct national identity, and the language is a fundamental element. Anyway, probably not the time or place to get too deep into this discussion...

Hogzy

johnnyskeleton wrote: »

to temper your views somewhat, the money spent translating acts that no one reads into Irish would be better spent teaching basic spoke Irish to people.

You would need a lot more than "basic spoke Irish" to understand legislation that is in Irish.

seamus

benway wrote: »

Act was passed on the 19th of December - is three months really as soon as is "practicable"? To provide a translation into the first language of the state, lest we forget? Personally speaking, I think that's shabby, and I can't for the life of me understand why both versions aren't worked on at the same time - would surely be more efficient.

The issue I think is around the authority of the Irish translation.
Although the act is passed in either language, the translation from English to Irish needs to be done very carefully to avoid any conflict between the two.
Far from the Mayo's judge's glib remark that it can be "done in a day", the accuracy of the translation needs to be verified; again and again and again. Then it has to be reviewed by the Minister.
You need someone with specific legal knowledge and experience to carry out the translation as your ordinary Irish speaker may use words which are ambiguous in a legal sense.
If you do a rushed translation, then you risk enacting the law as it wasn't originally intended.

Is that a 3-month process? I don't know, though given the size of some Acts and the general slowness of civil servants, it wouldn't surprise me at all.

The same caveat doesn't apply in the opposite direction because although it's important to get the translation as accurate as possible, the Irish language version is always the gold master.

Obviously the solution to the problem is to modify Article 25.4.6 so that the version of the law which takes precedent is the language in which it was originally published. This doesn't remove the obligation to publish in Irish, but it should reduce the effort required to produce these translations.

MagicSean wrote: »

No it shouldn't. It's as pointless as having legislation in latin.

"Pointless and petty" is how I described it in AH, but from a more general point of view, it does make sense.
In order to prosecute a non-English speaker in English, you must provide them with a translator. It seems like this could be reasonably applied to the tiny handful of Irish-only speakers in this country.
But when you consider that Irish has prominence as the "first language" in the constitution, then providing an Irish citizen who speaks Irish with a translator in order to prosecute them in Ireland, seems absurd. And I suspect it would be strongly open to constitutional challenge.

Which basically means that as long as there may be an Irish-only speaker on the island, we must reserve them the right to be prosecuted as Gaeilge.

Petty and pointless it may be, but it can't be ignored.

benway

seamus wrote: »

Obviously the solution to the problem is to modify Article 25.4.6 so that the version of the law which takes precedent is the language in which it was originally published. This doesn't remove the obligation to publish in Irish, but it should reduce the effort required to produce these translations.

Obviously the solution is to have gaelgeoirs working on each of the drafting teams within the department - produce both versions simultaneously rather than queue them for translation. Would say that the cost of running a referendum would cover their wages for 10 years.

Petty and pointless to you, my man....

seamus

benway wrote: »

Obviously the solution is to have gaelgeoirs working on each of the drafting teams within the department - produce both versions simultaneously rather than queue them for translation. Would say that the cost of running a referendum would cover their wages for 10 years.

That's impossible to say. I imagine the number of people qualified to work on such translations is relatively small. You can't just use any old gaelgeoirs.

In addition, since draft legislation changes on a regular basis, it makes no sense to have to continue translating and verifying it throughout the draft stage. However, translation ideally should begin in earnest once the final bill is presented.

benway

seamus wrote: »

That's impossible to say. I imagine the number of people qualified to work on such translations is relatively small. You can't just use any old gaelgeoirs.

The Law and Irish courses in UCG and UCC must have at least fifty graduates per year - the Irish language is thriving if you know where to look. Not in Dublin, usually.

Carawaystick

I'd imagine the fact the deadline to pay by direct debit having passed before the as Gaeilge version of the law has ben published may give a bit more impetus

I'd imagine MichaelD in the Áras might lead to more impetus to insisting on a Gaeilge version of an act being prepared before it is signed into law ( maybe except in rushed cases.)

Maybe I'm a dreamer or I saw an Aisling