Mr. Oisín Coghlan:

There are a number of ways to decide whether a target is justiciable. When Mr. Conor Lenihan appeared before the committee on Friday, he stated the most eloquent way to do it was to follow what the United Kingdom had done, which was to specify the penalties, sanctions and correction mechanisms. The UK legislation makes clear the penalty if the target is breached; the Secretary of State must explain why to Parliament and, within a specified period which I believe is six months, come forward with a plan to make up the shortfall. The evidence from Mr. Lenihan and others is that if a court case is taken and these steps have been complied with, the case will fall because the matter of the breach will already have been remedied. This is the most elegant way to deal with it. Nowhere in the UK legislation does it state the targets are legally binding, as it does not use these words, and nowhere does it state they are non-justiciable, but it does specify the correction and penalty mechanisms. That is the simplest and most straightforward way to deal with the issue.

Another way to differentiate is to be clear on how the targets are framed. The Fiscal Responsibility Act has been mentioned, as has the Fiscal Advisory Council as a model for the expert advisory body mentioned in the Bill. Its way of dealing with targets is a possible model. On Friday one of the delegates about best endeavour, whereby targets are expressed which the Government shall to the best of its ability meet. The Fiscal Responsibility Act passed by the Government includes the phrase "best endeavour". The defence is ready made; if there is a shortfall, as long as every effort has been made, within reason, and a correction mechanism of parliamentary accountability and new plans are in place, the defence is set before the court case arises.

Another option which lawyers state is less elegant is that included in the Bill introduced by the previous Government, which is to state the targets are non-justiciable. The ultimate product of the interaction between the Attorney General and the previous Government was this formulation. The first product of the interaction between the Attorney General and the current Government in the outline heads of the Bill involves removing the targets. It must be the case that the Office of the Attorney General's advice is not decisive in this case because two versions have been produced; ultimately, therefore, it must be a political decision if and how targets are included in the Bill.

There is a case to be made for moving responsibility to the Department of the Taoiseach, but this is not a red line issue for Friends of the Earth. As the debate has evolved, potentially more creative ways around this issue can be seen. In the United Kingdom responsibility for dealing with climate change has moved from the ministry with responsibility for the environment to that with responsibility for energy. There is a very natural link between energy and climate change and I have come around to the view that having it solely within the purview of the Taoiseach may mean there will not be a champion in the Cabinet for dealing with climate change, other than the Taoiseach who must play the role of moderating between Ministers. I would not remove the role completely from a Department, but I am no longer convinced that the Department of the Environment, Community and Local Government is where it should rest. The Government moved responsibility for the natural environment from the Department of the Environment, Community and Local Government to the Department of Arts, Heritage and the Gaeltacht. A case can be made which would not require legislation that moving responsibility for the environment to the Department with responsibility for energy would have a potential benefit. Co-ordination would still be required at the centre because if we have learned anything from these hearings, it is that the measures we need to address climate change cut across so many Departments that no one Department has the power to follow through on the actions required. This raises the issue of institutional arrangements.

There are examples of the Department of the Taoiseach and a line Department having responsibility for an issue such as Northern Ireland and European affairs. In the past the Taoiseach was accountable to the Dáil and answered questions on EU affairs and Northern Ireland issues, although the Department of Foreign Affairs and Trade was also responsible. An assistant secretary at the Department of the Taoiseach had responsibility for these issues because they were as being of national importance. In this case it would not be that climate change measures were necessarily more important than any Department but that they cut across many of them. There is an argument for the Department of the Taoiseach having some responsibility. Responsibility for EU affairs has now been transferred entirely to the Department of the Taoiseach. A question was asked earlier about what would happen if responsibility was moved between Departments, whether it would mean duplication and what would the officials in question do. In moving responsibility for EU affairs from the Department of Foreign Affairs and Trade to the Department of Taoiseach I understand the officials moved also and this could happen if responsibility for dealing with the climate was moved from the Department of the Environment, Community and Local Government to the Department of Communications, Energy and Natural Resources.

When it comes to sub-Cabinet co-ordination aspects, we look for a relationship between the internal co-ordination of policy throughout the Government and an external oversight and advice role. The National Economic and Social Council, NESC, secretariat's report has much to offer on the issue of internal co-ordination. The report was not signed off on by the NESC as we were not asked to do so but merely to comment because the secretariat had been asked to compile the report independently. The report goes into detail on the idea of a technical secretariat and oversight committee chaired by a member of the Cabinet with assistant secretaries from various Departments on it. There could be a role for such a body. It would institutionalise what we have - the senior officials group and the Cabinet sub-committee on climate change and the green economy. The assistant secretaries from the Departments represented on the Cabinet sub-committee meet and an official from the Department of the Taoiseach co-ordinates the group. The Minister for the Environment, Community and Local Government, Deputy Phil Hogan, convenes the Cabinet sub-committee and it is chaired by the Taoiseach. It would be no harm to institutionalise this arrangement, perhaps along the lines proposed by the NESC secretariat in its report.

I am a member of the NESC and the Department of Jobs, Enterprise and Innovation made a presentation on how the Action Plan for Jobs worked. There are many interesting analogies because it is about getting various Departments focused on job creation and its structure to co-ordinate policy internally throughout the Government. The NESC secretariat was very interested because it had not considered the Action Plan for Jobs when compiling its report and interesting analogies can be made with regard to internal co-ordination. I hope that if the NESC appears before the committee again, this issue can be clarified, but I do not believe any of this changes the need for external advice and oversight because these are different functions. In the Action Plan for Jobs any State agency with a potential impact on job creation is brought in every month, in the same way the banks are asked about mortgages every month, to knock heads together, move things forward, overcome barriers and unlock opportunities.

That is an internal role in the Department of the Taoiseach. Another term for it would be the office of climate change. This is how it was in the all-party Bill that the committee’s equivalent produced in the last Oireachtas.

To use the fiscal analogy, that the Department of Finance co-ordinates budgetary policy and knocks Departments’ heads together and the Cabinet contains the Economic Management Council, EMC, does not obviate the need for the Comptroller and Auditor General or the Irish Fiscal Advisory Council, IFAC. They play different roles. The external body in this case, what I will call the climate advisory council, is more like the fiscal advisory council or the Comptroller and Auditor General, giving advice and getting a sense of audit, albeit not quite in the same way as the latter. It would produce annual reports to which the Government would need to respond. There could be a nice combination without considerable expense, as the internal cost would only relate to the organisation of civil servants rather than the recruitment of new civil servants and the external element would relate to a low-cost expert body that did not comprise the ex officiomembers proposed in the Bill. Those members would best belong in NESC's proposal for a technical secretariat that would help to co-ordinate and inform work throughout the Government. Nothing would stop the independent climate advisory council from drawing on the expertise of the technical secretariat in the Department of the Taoiseach's office of climate change. The council's members would be appointed in the same way as the IFAC's and would include independent academics and experts in business and energy, but who would not be members in a representative capacity.