Mr. Tom Flynn:

There is a fundamental qualitative difference between an administrative scheme and a statutory scheme. I am sure the Deputy will know this from his own experience. If I have a statutory right to something, I have statutory protection for that.

It can be removed only by an Act of the Oireachtas, either in ending or revoking the provision or replacing it with something else. The difficulty with an administrative scheme is it has no statutory underpinning. It is at the whim of the Minister of the Department in question, who can remove or vary the scheme. They are at large as to how they may operate that scheme. An administrative scheme is no substitute for a statutory scheme.

I wish to highlight another point, which is an argument that could be contested and I accept that. There is an argument that an administrative scheme, for the reasons I have explained, would not provide the certainty as to an applicant having a right to costs as is required under either EU law or the convention. Going back to the original, when the Aarhus obligation was introduced in Ireland, Ireland initially defended that by saying we have a rule of court, which confers discretion on the judge to award costs. Therefore, applicants have the level of certainty required in the Aarhus Convention to take cases in a reasonably affordable manner. The Court of Justice said that is not sufficient - a discretionary rule of court. Ms Minch may know the case number; I cannot remember it. I refer to the first case where the Court of Justice said we had to change our legislation to bring in statutory provisions to provide the certainty required under EU law. That is one of the reasons an administrative scheme may be vulnerable to attack on that ground. I am just offering that as a possible argument. I am sure the State lawyers would be able to construct an argument against that but I would think there certainly would be an issue in relation to that.