Mr. Conor Linehan:

I take that as covering the targets as well. In my written submission, I sought to emphasise that. To some extent, I hesitate to make this point because Attorneys General are always extremely eminent lawyers, which is why they are appointed. The climate change response Bill may not have been a good example around which to consider the issue of justiciablility, because a lot of other considerations were in play when the language of that Bill was being finalised.

Ultimately, the word "non-justiciable" appeared in it. It is something that would be somewhat eye-opening for lawyers. One tends not to get an express statement in legislation to the effect that it shall not be justiciable. That is the Legislature saying to the courts that they cannot go near it, which is highly unusual. A number of decisions are relevant, including the Sinn Féin funds case in 1947, Buckley & Others v.Attorney General and Another, where there was a similar attempt to make such a provision. The Supreme Court said it cannot happen. More recently, there are decisions, including in the Tormey case, which suggest the same. It is not necessary to do that in any event in respect of the targets. It is done much more subtly in the UK legislation, as I have described. The courts in the UK are told what the redress is where a target is not being met. If a person comes to court to say the target is not being met, there is a ready-made approach. It may be a political solution or redress and not very effective to require the Minister to explain to Parliament what will be done where a target is seriously missed. That is aside from the point I made earlier that, by its nature, a target is a target, especially a greenhouse gas reduction target, the achievement of which reaches into every sector of the economy over a multi-decade period. The courts will not want to get into making themselves expert as to how the Government is going to get back on track and whether it is off-track in the first place. It is not necessary to get caught up in the language of justiciability for the reasons I have explained.

Deputy Barry Cowen asked if a review group would be acceptable. Some review mechanism is important. One can have a long-term target, but it requires a mechanism to ensure one adjusts to get back on track. I am not quite sure how it operates in the UK. Certainly, there is a power for the Minister to adjust the long-term target and to adjust the reference baseline by reference to developments in climate science and changes in international and EU law. The Committee on Climate Change, which is the advisory body in the UK, probably has a role in advising the Secretary of State. I am not sure it is necessary to have a specific review group in respect of adjustment of targets. Certainly, if one is going to have an advisory body, it should have a role in the question of any adjustments or changes to the target.

Senator Keane asked if the targets will be legally binding. It is unique legislation. Let us assume there is a domestic target in the eventual enactment. While it is not unique in Irish law to have targets to achieve certain things in the environmental field, the examples of which I can think derive ultimately from EU directives. An example is the targets on the diversion of waste away from landfill, which are specific quantitative targets set out every couple of years. They are set out in secondary legislation, transposed from EU directives. The directive on packaging and packaging waste of some 15 years ago included targets for member states.

This may be the first time we have had quantitative targets in non-financial legislation. There is a degree of State planning about this. There will be people who want the targets to be legally binding and there will be those whose political perspective is that there should be flexibility. It does not have to be one or the other. A target has a value even if it is not legally binding. It has symbolic value. There are a range of reasons one could cite for wishing to surpass EU or international targets which bind one. Different countries have their own motivation for imposing domestic targets separate from or above international or regional targets. It would be unworkable to make the targets legally binding in the sense of allowing someone to go to court on the basis that the Government is straying from them to seek a mandatory order compelling the State to get back on track. Someone would need to police that. The courts are extremely reluctant to make mandatory orders against other organs of State and the most they might do is make a declaratory order and leave it up to Government to implement the decision. If, on balance, the committee would like to see a domestic target included but the Attorney General is concerned people would run into court every other day to try to stop this or that project or to force the Minister to act in a certain way, they should be reassured. Nevertheless, a target has a value which is more than symbolic. The Minister would be under a duty to try to achieve the target but such duty would not constitute an all-or-nothing obligation. It is a duty to use best endeavours. I would like to think we can assume there will not be cynicism around the target and, once it is in there, Ministers will not turn their backs on it. There will be a bona fide effort to achieve it. Perhaps that will go some way towards answering Deputy Kevin Humphreys, part of whose question I may have missed.