Central Applications Office Ltd (plaintiff/ appellant) v Minister for Community, Rural and Gaeltacht Affairs, Ireland and Attorney General (defendant/ respondent)

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 13 May 2010
• Neutral Citation: [2010] IESC 32
• Docket Number: [S.C. Nos. 40 and 415 of 2009]
• Court: Supreme Court
• Date: 13 May 2010

[2010] IESC 32

THE SUPREME COURT

Hardiman J.

Fennelly J.

Finnegan J.

Record No. 040 and 415/2009

Central Applications Office Ltd v Min for Community & Ors

Between:

CENTRAL APPLICATIONS OFFICE LIMITED

Plaintiff/Appellant

-and-

THE MINISTER FOR COMMUNITY, RURAL AND GAELTACHT AFFAIRS, IRELAND AND THE ATTORNEY GENERAL

Defendants/Respondents

OFFICIAL LANGUAGES ACT 2003 PART III

OFFICIAL LANGUAGES ACT 2003 (PUBLIC BODIES) REGS 2006 SI 150/2006

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1(5)(D)

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1(5)(C)

CONSTITUTION ART 25.4.6

OFFICIAL LANGUAGES ACT 2003 S10

OFFICIAL LANGUAGES ACT 2003 S9

OFFICIAL LANGUAGES ACT 2003 S11

OFFICIAL LANGUAGES ACT 2003 S13

OFFICIAL LANGUAGES ACT 2003 S2

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1(1)

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1(2)

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 3

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 4

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 5

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 5(C)

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 5(D)

OFFICIAL LANGUAGES ACT 2003 S2(1)

OFFICIAL LANGUAGES ACT 2003 S4(1)

OFFICIAL LANGUAGES ACT 2003 FIRST SCHED PARA 1(5)

REGIONAL TECHNICAL COLLEGES ACT 1992 SECOND SCHED PARA 14

UNIVERSITIES ACT 1997 S13

UNIVERSITIES ACT 1997 S13(1)

SHORTER OED 3ED 1944

UNIVERSITIES ACT 1997 S13(2)

UNIVERSITIES ACT 1997 S7

MINISTER

Powers

Official language - Public body -- Whether designation as public body ultra vires - Power to designate as public body must be examined objectively - Priority to Irish language text - No conflict - Enactment in both national languages - Official Languages Act 2003 (Public Bodies) Regulations 2006 (SI 150/2006) - Regional Technical Colleges Act 1992 (No 16) sch 2, para 14 - Universities Act 1997 (No 24), ss 7 & 13 - Official Languages Act 2003 (No 32) ss 2, 4, 10, 13 & sch1, para 1 - Constitution of Ireland 1937, Article 25.4.6 - Plaintiff's appeal allowed (40 & 415/2009 - SC - 13/5/2010) [2010] IESC 32

Central Applications Office Ltd v Minister for Community, Rural and Gaeltacht Affairs

Facts: The issue arose as to whether the Central Applications Office Limited (CAO) was lawfully designated as a public body for the purposes of the Official languages Act 2003. The CAO claimed that the designation was ultra vires the powers of the Minister pursuant to the Act of 2003. The High Court held that the designation was within the power of the Minister, while rejecting the reliance of the Minister on another provision. The Minister served a notice to vary as to the finding that the Minister was not empowered to make such a designation under the provision of paragraph 1(5)(c of the First Schedule. The High Court held that the functions performed by the CAO were not previously performed by the universities before 1976 when the CAO was formed, that the "functions" were not vested in them on the basis of a consideration of the Irish language text of the provisions and that the universities were not under public ownership an control.

Held by the Supreme Court per Fennelly J. (Hardiman & Finnegan JJ. concurring), that there were three components to the issue- the "function", the "authority" and the "enactment" under which the authority had been give. The difficulties concerned the second and third classes. The learned judge examined s. 13 of the Universities Act 1997 and paragraph 14 Second Schedule to the Regional Technical Colleges Act 1992 The former Act was not in force when the CAO was formed and the judgment had not identified any enactment providing a power for the universities to administer applications. The Minister was unable to identify any enactment under which any authority had been given. The question was not whether the CAO or its members acted ultra vires. The exercise of the powers of the Minister had to be examined objectively by reference to sub-para. (d). There had to be an enactment creating or referring to the function in question. The 2006 Regulations were adopted in excess of the power of the Minister in so far as they designated the CAO as a public body for the purposes of the Act. The appeal would be allowed and a declaration granted.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 13th day of May 2010.

2 Fennelly [nem diss]

3 1. The CAO needs no introduction to the present generation of school-leavers or their parents. Since 1976 it has enabled our institutions of third-level learning to reconcile annually the choices of the hopefuls - more than 60,000 last year - seeking to embark on a chosen career path.

4 2. The legal issue on this appeal is whether the Central Applications Office Limited, the appellant, (hereinafter "the CAO") was lawfully designated by the Respondent Minister (hereinafter "the Minister") as a public body for the purposes of the Official Languages Act, 2003 (the "Act of 2003") and thus subject to a number of obligations imposed or potentially imposed by Part 3 of the Act concerning the conduct of its affairs in both official languages.

5 3. The Minister designated the CAO as a public body for the purposes of the Act of 2003 by the Official Languages Act 2003 (Public Body) Regulations, 2006, S.I. No. 150 of 2006 (hereinafter "the 2006 Regulations"). The CAO claimed in High Court proceedings that this designation was ultra vires the Minister's powers under the Act of 2003. MacMenamin J, in his judgment of 14 ^th October 2008, held that the designation was within the power of the Minister under one provision of the Act (paragraph 1(5)(d) of the First Schedule), while rejecting the Minister's reliance on a different provision. The CAO has appealed to this Court against the decision holding the designation to have been validly made. The Minister has served a Notice to Vary the judgment insofar as it held that the Minister was not empowered to make such a designation under the provisions of paragraph 1(5)(c) of the First Schedule.

6 4. The general purpose of the Act of 2003, as proclaimed in its long title is "to promote the use of the Irish language for official purposes in the State" and, more specifically, "to provide for the use of both official languages of the state............ in communicating with or providing services to the public and in carrying out the work of public bodies............"

7 5. The Act of 2003 was enacted in both official languages of the State. In such a case, by virtue of Article 25, section 4.6 of the Constitution, "the text in the national language shall prevail" where there is "conflict between the texts..."

8 6. Part 3 of the Act provides for a range of means by which public bodies, as defined, are to meet the statutory objectives. Section 10, for example, lists a number of documents such as annual reports, policy documents and otherwise which must be published "in each of the official languages simultaneously..." Sections 9, 11 and 13 provide for the adoption of regulations by the Minister or the preparation of schemes by public bodies. It is only fair to say that the CAO maintains that it already conducts significant parts of its business in the Irish language. For present purposes, it suffices that it has the standing in law to maintain the present claim. The only issue is whether it is a public body for the purposes of the legislation. To that end, it is appropriate to summarise the provisions which have led it to be so designated as to bring it within the scope of Part 3.

9 7. The term "public body", by virtue of section 2, "is to be construed in accordance with the First Schedule." Paragraph 1 of that schedule commences: "Each of the following shall be a public body for the purposes of this act..." Paragraph 1 then comprises five subparagraphs listing or defining public bodies. Subparagraph 1 lists all government departments and offices. Subparagraph 2 comprises a list of more than two hundred named agencies, boards, state companies (commercial and non-commercial). Paragraph 3 refers to "a local authority;" paragraph 4 refers to "a health board." Subparagraph 5 is in issue in this case and should be quoted in its entirety. It refers to:

"any body, organisation or group standing prescribed for the time being, with the consent of such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government, and being-"

(a) a body, organisation or group that receives moneys directly from a Minister of the Government, a Department of State, the Central Fund or a public body specified in subparagraph (2), ( 3) or (4) of this paragraph in circumstances where the amount or aggregate of the amounts so received constitutes 50 per cent or more of the current expenditure of that body, organisation or group in a financial year,

(b) a body, organisation or group that at the date of the coming into operation of this Schedule is a public body but subsequently comes under private ownership and control,

(c) a body, organisation or group performing functions which previously stood vested in a body, organization or group under public ownership or control, or

(d) 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 any enactment or by any licence or authority given under any enactment.

10 8. The term "functions" occurs in both subparagraphs (c) and (d). Section 2(1) provides that the word "includes powers and duties."

11 9. The Minister justifies the designation of the CAO by reference to paragraphs (c) and (d). Section 4(1) of the Act provides:

"The Minister may, with the consent of the...