Seanad debates

Friday, 9 July 2021

Climate Action and Low Carbon Development (Amendment) Bill 2021: Report and Final Stages

 

9:30 am

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 11 removes the language in respect of limitation of liability. I had a very lengthy discussion on this issue with the Minister, which I do not think was satisfactory, but we probably do not need to go over it all again. This clause was added to the Bill after scrutiny and pre-legislative scrutiny. If our last discussion was about closing a loophole in the previous Bill, this opens a new loophole in the new Bill. It is a provision that would remove the potential to access remedy or redress by way of damages or compensation for not just individual citizens but, as was mentioned, SMEs, and others who might be affected, by a failure "of whatever kind, to comply with [the] provision of this Act or any obligation or duty created thereunder." It is very widely framed.

There are very serious concerns about this when one looks at Article 13 of the European Convention of Human Rights, which specifically mentions individuals' rights to effective remedy. This is especially since remedy is mentioned in the way limitation of liability is phrased in this clause. There are also concerns in respect of the Aarhus Convention regarding climate action and the environment. As was pointed out in other amendments we discussed, this creates a situation whereby we are, potentially, weakening the strength of judicial action. Part of the strength of judicial action is that the Government might be required to take new measures and instigate new policies, but another is the potential financial cost of non-compliance. We are removing the element of financial penalty in terms of redress, remediation, relief, compensation or damages. We are removing one of the strong levers that might be used to force the Government to follow through and not fail to comply with the obligations and duties created under this Act.

At the same time, as has been mentioned, we are looking at proposals to bring in new liabilities for investment companies and international investors, where they would still be able to seek compensation and have the threat of legal action with, potentially, devastating costs. We are creating an environment where one hand is being strengthened, which is those who may wish to take action against climate action, while the other hand, those who want to take action to seek and press the Government to follow through and deliver, is being weakened. We may have a scenario where inaction might become less expensive than action. The concern is, of course, that it might have a chilling effect on Government and its policies. We know that cost forms part of the advice received from the Attorney General. We know the potential for cases to be taken because we have heard it 1 million times on property rights and all the rest.

I am concerned in this regard and I support, along with Senators Bacik, Moynihan, Sherlock and others, the removal of this clause from the Bill. The Minister should think about, and reflect, on it. If measures are needed in future, they should be brought in as separate or amending legislation but, right now, this is an incredibly wide provision that creates hostages to fortune, loopholes and, potentially, perverse disincentives to action.

On my other amendment in this set, I note the language: "arising out of any failure, of whatever kind, to comply with any provision of this Act or any obligation or duty...thereunder". Again, this is not saying that if, despite our best reasonable efforts we fail to achieve measures, or, if due to circumstances beyond our control we fail to achieve it, or anything else.This language is not subtle, it is wide open. It refers to any failure of whatever kind. One failure of any kind could be that we did not want to, and there would be no damages or compensation in such cases. There is no nuance.

I would like the Minister to tell us why the phrase "of whatever kind" is included. I am sure that in including it and seeking to limit the liability, the Government probably had certain scenarios in mind, some of them perhaps very reasonable, in which compensation or damages might not be appropriate. In phrasing the provision this broadly, however, it could mean anything. Will the Minister tell us what the words "of whatever kind" mean in this instance? What is the range of scenarios envisaged? We can then determine whether the scenarios are those that unfold when people seek compensation for, say, the avoidable flooding of their communities or other subsidiary actions, or for the failure to follow through on anything that might be in a sectoral plan, a climate plan or budget or a departmental plan that emerges from the Bill.

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