Professor Brice Dickson:

In answer to Senator Martin’s question, yes, environmental rights are not properly protected either in the North or in the South. To the extent that they are in the North, it is largely because of the UK's membership of the EU. With that going and with the Retained EU Law (Revocation and Reform) Bill 2022, which is going through Westminster at the moment, it is very likely that a lot of the EU derived environmental protection laws in the North will be repealed or at least severely amended, which will leave a gap in the North as well as in the rest of the UK. That gap might be filled by adequate UK legislation but I would not put a lot of money on that frankly. It is also part of the debate around a Bill of rights in Northern Ireland, which we still do not have despite the Good Friday Agreement coming up to its 25th anniversary. The Assembly in the North could do a lot more to protect rights even though it has limited competence in some areas but it could do something in the area of environmental rights that it has not yet done.

Senator Black asked about a stronger European Convention on Human Rights Act here. Yes, in some ways this jurisdiction's Act is slightly stronger than the UK's Act but in other respects it is weaker. For example, the remedial order approach in the UK by which if a law is declared incompatible by a court then that is immediately referred to Parliament. In all cases to date a remedial order has gone through to amend the law accordingly. That system does not exist in the South. Declarations of incompatibly are notified to the Oireachtas but there is no obligation for any action then to be taken.

One cannot at the moment, as has been said, strike down legislation here under the European Convention of Human Rights Act but that could be changed to bring it into line with the UK system as regards secondary legislation invalidity. The definition of the authorities, in respect of which the 2003 Act applies, is more limited than the definition of a public authority in the UK's Act. It there was levelling up then the South could benefit from that in the way that the North would benefit in other respects.