Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 61:

In page 12, line 10, after “Government” to insert “and the Government of Ireland”.

In a recent High Court case, the Department of the Environment, Climate and Communications successfully argued that the Government is not bound by section 15 of the 2015 Act we are amending with this legislation. The argument the Department successfully made was that because section 15 only referred to a Minister of the Government but did not refer directly to the Government as a whole, according to Mr. Justice Garrett Simons, there was "no statutory obligation on the Government" to take account of the national climate plan or national carbon reduction objectives. We have had this Government and this Department arguing that certain language in the Climate Action and Low Carbon Development Act 2015 functions as a loophole, meaning that the Government cannot be held to account. That language is still in the Bill. One of the key points of disagreement I had with the Minister, Deputy Eamon Ryan, in terms of numerous recommendations from the Joint Committee on Environment and Climate Action related to accountability and the importance of same. The Government and the Department have successfully used a loophole recently. Why on earth would that not be addressed or fixed in this Bill?

I will not talk about each of my amendments in each of their locations. I want to signal that I probably will not press them for reasons of time. Instead, I will support the amendment tabled by Senators Bacik and Moynihan, which does something similar and which seeks to ensure that at every point that this issue of the non-inclusion of a reference to the Government featured, it would be perceived that where a Minister of the Government is referenced, then the Government would be assumed to be referenced. That amendment does this in quite a clean way. It would be a single amendment vote and therefore, a bit easier.

One exception I will make is to amendment No. 108. The ruling I mentioned earlier was delivered in the process of a series of legal challenges to the Shannon liquefied natural gas, LNG, project, which Friends of the Irish Environment had taken. That points to the importance of clarity and transparency. We cannot argue that the issue of LNG is not relevant to this Bill when we look to the fact that the previous legislation was central in a case on the LNG project. In a reversal, in the court the Department argued that because the Government is not listed as a relevant body under section 15, it is not bound by the provisions of the relevant body. However, in the Chamber the argument has been that the Government cannot be listed as a body and therefore it cannot be listed as a relevant body and that is why the Government cannot get it inserted into the list of relevant bodies in section 15. It is a circular argument whereby, on one hand, we are being told we cannot go into that section and, on the other, the Government is stating that it cannot be held accountable because it is not in that section.

I am seeking to add direct reference to the Government throughout the Bill. In amendment No. 108, I explicitly do not seek to include the Government in the list of relevant bodies but I say that a relevant body or "the Government of Ireland" must abide by the various different provisions. That addresses the concern that it cannot be said that the Government is a relevant body because the Government is not being put into that subcategory. However, the amendment would insert reference to the Government of Ireland into section 15 and would thereby appropriately ensure that the kind of loophole which was used in the High Court case to which I refer would not be used again.

Amendment No. 108 satisfies both versions of the concern and the argument and addresses them both in a clear way. Why would we not address a loophole if a legally sound way to address it is presented? The amendment represents a legally sound way to address that loophole.