Monday, 19 April 2010

Irish versus Transparency?

Nat O'Connor: Am I the only one who was wondering why it was taking so long for the Finance Act 2010 to be publicly available? (It was signed into law by the President on 3 April).

It appears to be due to Section 10 of the Official Languages Act 2003, which requires major documents to be published simultaneously in both Irish and English. The work of translating the Act will take several weeks. Hence, it could be well into May before it is available in either hard copy or online.

Meanwhile, the Act is law. On 9 April, the Minister for Finance signed Statutory Instrument (SI) 147 of 2010 bring the VAT changes into force. This SI refers to the original Act, yet interested parties cannot look up the sections mentioned because the Act is not available yet.

This all creates a transparency gap, which could last anything up to two months, given that this Finance Act is particularly long.

Now, it is not as bad as all that, because the Oireachtas website publishes each stage of the Finance Bill as it went through both houses. The final version ("as deemed to be have been passed by both Houses of the Oireachtas") is the same text as the Finance Act. (This document is also available in print from the Government Publications Office).

So the practical part of the transparency gap is resolved because the provisions of the Official Languages Act are neatly side-stepped. Although Irish speakers are currently denied the ability to discuss the technical detail of the final version of the Bill as Gaelige, as it is in English.

But does all this really create a major lack of transparency? Not in practical terms, once I learned that the final Bill on the Oireachtas website text won't be further amended. Maybe this was obvious from the 'deemed passed' label, but as someone looking at the later amendments of the legislation, I want to see the definitive text of the Act, so I can be absolutely certain there will be no more last minute changes.

I have a lot of sympathy for frustrated Irish speakers, who for decades were denied the ability to interact with public bodies in their native language. But there is a basic 'rule of law' requirement that if a new law is brought into force, then on principle the text should immediately be available, without delay.

The Official Languages Act doesn't state that legislation must be published simultaneously, only the more general heading of documents of "major public importance". Yes, I think the Finance Act 2010 is of major public importance. But I think the principle of transparency of the law, that laws must be published when they come into force, must take precedence.

In which case, one option is that the translation must take place before the Act becomes law; which means that this too must be completed within the strict time limits established by the Constituion for money bills.


Anonymous said...

The Finance Bill as passed by both Houses of the Oireachtas is available on the Oireachtas website. Its as good as the Act itself, if anyone cares!

Nat O`Connor said...

"It's as good as the Act itself"

But it really isn't.

There are some basic principles that underpin rule of law. One is that 'ignorance of the law is no execuse before the law'; in other words, you can't say you didn't know something was illegal. This principle in turn absolutely requires the formal publication of laws when they are enacted. If laws are not published when they become 'active', then this undermines the basic operation of rule of law.

Having a stop-gap of several weeks while we wait for translation is a shoddy way to run a democracy. The law shouldn't be active until it is ready for publication in both languages.