Mr. Conor Linehan:

I am grateful for the opportunity to address the joint committee this morning on the outline heads of the Bill. In the interest of more discussion time, as the Chairman has suggested, I propose to summarise the main points of my opening statement rather than reading it. While the outline heads obviously are at a very early stage, as they stand I have two overriding impressions. The first relates to the absence of a domestic target from the heads of the Bill and the second relates to the emphasis in the heads of the Bill on policymaking and planning for climate change into the future. As indicated in my opening statement, I have a number of legal responses in respect of the omission of a domestic target from the Bill. The question of whether the heads or ultimately the Act include or omit targets, their stringency and whether they match or surpass European Union targets is a political issue and pertains to political decision-making, which I do not propose to address.

From a legal perspective, I have the strong view that targets are simply that: targets. For as long as they are not expressed as obligations or requirements in the heads of the Bill, the Bill itself or ultimately in the Act, they are not matters that leave the Government or the Legislature vulnerable to legal action at every hand's turn from members of the public who claim the targets are not being achieved or are not being achieved quickly enough.

As noted in the original written submission, I refer the joint committee to the discussion on this issue before the United Kingdom's parliamentary committee hearings into what became the United Kingdom's Climate Change Act 2008. At those hearings, the point was made strongly by a weight of legal opinion that it is extremely unlikely a court would take the view that the Government is hidebound or is binding itself legally to have such targets enforced. Essentially, the point made there and which I endorse - I am not simply taking it directly from the United Kingdom's position but rather have formed this view - is it is not simply a target. It is a greenhouse gas reduction target that a court would recognise and which entails the Government embarking on a series of policy choices into the decades ahead.

This brings up the entire issue of the separation of powers and of distributive justice in respect of how the targets will be met, how sectoral targets, if there are such targets, will be met and where the most stringent cuts will be enforced. I refer to all those distributive justice type of issues and the position of the courts here in a series of legal cases from O'Reilly v. Limerick Corporation in 1989, the Sinnott case on provision for special education for autistic children and the TD v. the Minister for Education case in respect of improper provision of secure units for young people. All these cases stress the courts ultimately are extremely reluctant to get into issues of distributive justice and it is a fundamental separation of powers issue that I believe will mean that were a case taken in respect of the enforceability of targets, it would be quickly knocked on the head for those reasons.

Moreover, it is not as though the legislation is without a mechanism to stress this point even further. I again refer to the United Kingdom Act in which, on foot of the parliamentary committee hearings, Parliament ultimately gave a message to the courts as to what was to happen if a target within a particular budgetary period was not met. To be specific, the Secretary of State would be obliged to come into Parliament, explain the reason it was not met and set out recommendations for meeting it or trying to redress it or to set it off in the next budgetary period. In other words, the legislation itself tells the courts this is the mechanism and the redress if the target is not being met. I refer to these matters because of the references in the media over a number of months to concerns within the Attorney General's office about constitutionality and the possibility of the Government leaving itself open to legal action. In my written statement, I have addressed this point and while I appreciate there are sensitivities in respect of Cabinet confidentiality and so on, I have suggested the joint committee might consider how it might at least get the gist of that concern. Ultimately, however, I made the point in my detailed written statement that I consider there to be ample scope within the Constitution, by reference to the principles of common good and social justice as well as separation of powers issues, that would leave the Government not needing to be concerned about any constitutional challenge. The rest of my submission is contained in the written document supplied.