Dr. Orla Kelleher:

I am making this statement on behalf of Dr. Dobbs and me. The citizens’ assembly made wide-ranging, important recommendations. A strong crosscutting message was the need for full and proper implementation and enforcement of existing environmental legislation and policy, as reflected in, for example, recommendation 8. This requires the provision of adequate funding and addressing structural issues. The assembly also considered that transformative changes are required.It sought to be innovative and ambitious in its recommendations, but in ways its members thought would be practical, logical, balanced and linked to Irish culture and history.

We focus here on three core transformative assembly recommendations. The first is recommendation 27 on multilevel environmental courts. The assembly recommended establishing environmental courts at Circuit Court and District Court level to complement existing proposals for one at High Court level and paralleling approaches to family law. This is of particular significance in the context of enforcement actions, where the Circuit Court and the District Court are the main venues for litigation. Potential advantages include improved enforcement, enhanced expertise, greater efficiency and reduced costs.

The second recommendation is 31(a) and (b), dealing with environmental rights. The assembly called for a referendum on inserting into the Constitution substantive human environmental rights, for example, a right to a safe, clean, healthy and sustainable environment including a safe and stable climate for the benefit of current and future generations; and procedural human environmental rights, for example, Aarhus rights regarding access to environmental information, public participation and access to justice.

There is an intuitive feeling that we should all have a legally guaranteed right to clean air, potable water, a safe and stable climate and so on. A right to a healthy environment, appropriately elucidated, encompasses and supports these rights. Over 100 states have enshrined a right to a healthy environment or other constitutional protections for a healthy environment. However, Bunreacht na hÉireanndoes not expressly guarantee substantive or procedural environmental rights. The Supreme Court found in Climate Case Ireland that the right to a healthy environment could not be read into the text of the Constitution. It also signalled that a referendum would be a more appropriate avenue by which to enshrine environmental rights in the Constitution.

Potential advantages of constitutionalising stand-alone environmental rights include: raising the profile of environmental issues and providing a basis for the enactment of strongerenvironmental laws; creating a level playing field vis-à-visother constitutional rights; providing a safety net where there are gaps in the law; and acting as a valuable enforcement tool, in particular if both individuals and NGOs have standing to litigate the right. Constitutional status also helps protect against subsequent erosion, whether accidentally or on purpose. Together, these can facilitate better environmental outcomes.

Procedural environmental rights are similarly fundamental and complement substantive rights. We support constitutionalising both substantive and procedural environmental rights and pairing them in one referendum question. While procedural environmental rights are present within legislation currently, they could be significantly improved. We emphasise that constitutional environmental rights should not be seen as a panacea or as a substitute for existing environmental laws, but as a complementary tool.

Potential concerns include weighting environmental rights above other fundamental rights and-or creating a tool that will be abused. These are valid but manageable concerns. Rights tend not to be absolute. Constitutionalising environmental rights shifts the balance to help protect the environment and thereby humans, reflecting the fundamental value of the environment, its dire state and the need for transformative change. It does not remove or nullify the existence of other rights.

The design and wording of any referendum will be key. The assembly recommendations provide an initial template that can be reflected upon and tailored as appropriate to ensure it gives effect to its ambitions, while minimising the chances for abuse. Careful design can be ensured through engaging an expert group comprising constitutional and environmental lawyers and academics, along with environmental and other suitable NGOs, for example, regarding social justice.

The third recommendation is 31 (c) and (d) on rights of nature. The assembly also called for a referendum on substantive and procedural rights of nature. While rights of nature and environmental rights can complement each other very well, we recommend that they be put as two separate questions to the public in a referendum. Dr. Dobbs’s reading of the discussions at the assembly was that they saw rights of nature, first, as a transformative and necessary tool and, second, with links to Irish culture and history, drawing on talks the members received on Brehon law and the Irish language. As with environmental rights, concerns were flagged but it was considered that these could be addressed through careful wording of any constitutional referendum and subsequently by legislators and the courts. Again, a suitable expert group to advise on wording, design and incorporation into the Irish constitutional context would be key.

We are very happy to elucidate on these points or address any questions the committee may have.