Joint Committee on Climate Action debate -
Thursday, 15 Oct 2020

General Scheme of the Climate Action and Low Carbon Development (Amendment) Bill 2020: Discussion (Resumed)

Chairman

I welcome Dr. Diarmuid Torney, associate professor at the school of law and government, Dublin City University, DCU, and Dr. Áine Ryall, co-director of the Centre for Law and the Environment, University College Cork, UCC. Our witnesses are appearing remotely from inside the Leinster House complex. They will be invited to make a brief opening statement, followed by a question and answer session.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the Chairman to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I also advise witnesses that any submissions or opening statements they have made to the committee will be published on the committee website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I remind members and witnesses to turn off their mobile phones or switch them to flight mode as they interfere with the sound system and make it difficult for the parliamentary reporters to report the meeting. Television coverage and web streaming will also be adversely affected.

I also remind members of the importance of cleaning and sanitising their seats and desk spaces when leaving the meeting.

I now invite Dr. Torney to make his opening statement.

Dr. Diarmuid Torney

I thank the Chairman and members of the committee for the invitation to contribute to its pre-legislative scrutiny of the Bill. I am an associate professor in the school of law and government in DCU, specialising in climate change governance. Along with Dr. Áine Ryall and others, I was a member of the expert advisory group to the Citizens’ Assembly 2016 to 2018 during its deliberations on the topic of climate change. The origins of the legislation the committee is scrutinising can be traced back to the assembly’s first recommendation on the topic of climate change. It is to be welcomed that the assembly’s recommendation is being acted upon.

The draft Bill published last week by the Government represents an important milestone in Ireland’s approach to climate change. However, it was regrettable that a consolidated version of the legislation, showing the 2015 Act along with the proposed amendments included, was not published alongside the draft amending legislation.

Even for someone such as myself with expertise in this area, it was challenging to piece together its implications by reading it alongside the 2015 Act.

It is important to acknowledge that already in its current form the Bill represents a significant strengthening of the 2015 legislation it seeks to amend. It enshrines in law a quantitative target for decarbonisation for the first time, and a process of setting intermediate quantitative targets through a system of carbon budgets. The Bill elaborates a more robust planning process involving a national long-term climate action strategy and an annually updated climate action plan. There is also a strengthened role for the Climate Change Advisory Council, CCAC. All of these developments are to be welcomed. Nonetheless, in my judgment there are a number of weaknesses in the current draft that ought to be addressed before the Bill is passed into law.

In my opening remarks, I will focus on a number of specific areas. Although under the Bill the State is required to "pursue the transition to a climate resilient and climate neutral economy by the end of the year 2050" it is not required to achieve it. Both the 2015 Act and the general scheme of the climate action (amendment) Bill published by the outgoing Government in January included an obligation on the State to "pursue and achieve" the national transition objective. The words "and achieve" disappeared from the draft published last week.

A related point is that although the Bill sets out a detailed and robust procedure for setting five-year carbon budgets, there is no clearly stated obligation on the Government to comply with these carbon budgets. By contrast, the UK Climate Change Act, considered by many to be a leading example of framework climate change legislation, states unambiguously that "It is the duty of the Secretary of State...to ensure that the net UK carbon account for a budgetary period does not exceed the carbon budget".

The provisions regarding the setting of carbon budgets are lacking in precision. There appears to be no obligation on either the CCAC to recommend, or the Government to approve, carbon budgets that are consistent with the national 2050 climate objective. There is nothing in the Bill to stop the Government from setting carbon budgets that are explicitly inconsistent with the 2050 objective. There is also nothing in the Bill to stop the Government from setting carbon budgets that are explicitly inconsistent with the State's obligations under EU and international law.

The language used to set out which greenhouse gases are covered by the carbon budgets is imprecise. In his opening statement to the committee yesterday, Mr. Brian Carroll, assistant secretary in the Department of the Environment, Climate and Communications, indicated the carbon budgets will cover all greenhouse gases and all sectors of the economy. This may indeed be the Government's intention, but the definitions section of the Bill states that "carbon budget" means "in relation to one or more greenhouse gases, the total amount of greenhouse gas emissions that are permitted during the budget period".

I emphasise that the climate Bill, no matter how strong, will not by itself deliver the transformational change required. Rather, it should be seen as one part of a much bigger jigsaw. It is an important start, but it needs to be accompanied by a wide range of other actions, including strong measures to ensure citizen participation and a just transition. I thank the committee for the opportunity to contribute to its discussions today. I am happy to answer questions on these points or other aspects of the Bill.

Dr. Áine Ryall

I thank the committee for the invitation to appear before it. I will begin by making some overarching points of principle that are vital to frame the discussion and our analysis of the Bill. The Bill is hugely welcome but it is essential that the draft text is examined closely and improved where appropriate. In this context, I hope there will be wide engagement and a robust exchange of views during the pre-legislative scrutiny stage and that members of the public will be encouraged to follow the discussion and make their views known through their elected representatives. The Bill is urgent, and we must make progress in a timely fashion, but it is also essential that the legislation that emerges at the end of the process is fit for purpose and enables Ireland to meet its climate obligations.

As a lawyer, I would like to say a few words about vague and ambiguous language in legislation. I understand from following the proceedings yesterday that this issue has already surfaced. Speaking as a lawyer, vague and ambiguous language is problematic, especially when it comes to effective implementation and enforcement of legal rights and obligations. This is surely something that must concern the committee. It is certainly something that concerns the public. Vague language can lead to very complex disputes over the precise meaning and implications of particular legal provisions and, of course, it fuels litigation, which is something that everybody wants to avoid at all costs. I stress that during the pre-legislative scrutiny stage, the committee must keep in mind the importance of precision and clear obligations. I make this general point to highlight the importance of using this stage of the process to scrutinise forensically the language used and how particular obligations set out in the Bill have been designed and drafted to ensure they are fit for purpose. Otherwise, there will be problems with the impact of these provisions and in ensuring they are enforceable.

My particular area of experience is environmental law, including climate law and human rights. I teach and research these areas in the School of Law at University College Cork. As did my good colleague, Dr. Torney, I served as a member of the expert advisory group to the Citizens' Assembly during the climate change module of the assembly's work programme. This experience, and the engagement with the citizen members of the assembly, has given us unique insights into a range of areas that are of vital relevance to the Bill. I hope they will be of benefit to the committee in its deliberations.

I have a number of points to make on the recent Supreme Court judgment in the case that has come to be known as Climate Case Ireland. Many points arising from this decision are very relevant to our debate on the Bill. I will highlight two points and I do not suggest for a moment they are the only relevant issues. The Supreme Court judgment is very strong on the principles of public participation and transparency in the formation and publication of climate policy. This is absolutely fundamental and it must inform how this pre-legislative scrutiny process proceeds and how the Bill ultimately evolves. The public must be involved and their views must be taken into account. This aspect of the Supreme Court's judgment is very welcome and it underpins the core values of participation, transparency and accountability that should inform all environmental decision-making. We need to watch closely for these in the Bill and we must ensure these elements are robust enough. The Bill must provide effective opportunities for public participation. I have some concerns about the weaker elements of some aspects of the Bill as it stands, with regard to discretionary aspects of public participation. I hope we will get to these shortly.

On a related point concerning public participation, which Dr. Torney also made, I find it very disappointing that no effort seems to have been made when the Bill was first published to provide an unofficial consolidated text that would incorporate, even by means of simple tracked changes in a Word document, what the Bill proposes to change within the existing text of the 2015 Act.

That would have made it so much easier for members of the public, people interested in the way this Bill will impact on our legislation and anybody who does not have legal training to engage effectively in this process. I believe that is a missed opportunity and I hope there might still be time for such an unofficial document to be produced and published online to allow people to follow the debate properly.

The second point I would make about the Supreme Court judgment is to highlight the "significant weight", which was the actual wording used by the court, that it placed on the views of the Climate Change Advisory Council. It seems clear from reading the Supreme Court judgment in the Climate Case Ireland case that the court was very influenced by the views of the council. I make that point because it confirms in a very clear way how vital the role of the council is and, in the context of the Bill, how essential it is that we work to ensure that its independence is strengthened, its oversight role is developed further and that it has the wide range of expertise it needs to deliver its mandate. Of course, it must have the resources to do that properly and in a timely fashion.

My final point brings me back to one of the recommendations from the Citizens' Assembly. Again, it concerns the assembly's report on the topic of how the State can make Ireland a leader in tacking climate change. Many of the members will be aware that the first recommendation the assembly made was to ensure climate change is at the centre of policymaking in Ireland. The recommendation was that a new or existing independent body should be resourced appropriately, operate in a transparent manner, and be given a broad range of functions and powers in legislation to urgently address climate change. A majority, 97%, of the assembly members who were present voted in favour of that recommendation so it was a very strong endorsement of that powerful recommendation.

It is very important to recall, if we read the assembly's report, that the recommendation also included in the text that was put to the assembly on the ballot paper a number of examples of possible powers and functions that this new or independent body could have and one of those potential functions was "To pursue the State in legal proceedings to ensure that the State lives up to its legal obligations relating to climate change." The theme of my opening remarks is about enforcement. That is where everything comes to the fore.

It is interesting that the point about giving an independent body the power to pursue the State, in litigation if necessary, does not appear to have gained any traction following the publication of the Citizens' Assembly report. It did not feature among the recommendations of the Joint Committee on Climate Action and there was no mention of it in the non-statutory climate action plan published in 2019. That is unfortunate. I am pressing the point here in some detail because I believe it is an issue that must be considered if we are to have confidence in an effective enforcement mechanism. There is no point in imposing obligations and setting targets unless there is a legal mechanism to ensure that those targets are met and that there are consequences and sanctions if they are not.

The Bill raises a host of significant issues that I cannot go into the detail of now but I am happy to go through them with the members during this session.

I will conclude by giving everybody, including members of the public who I imagine are tuning in to this session, a brief reminder of what is at stake here. We must achieve the correct outcome at the conclusion of this legislative process. We must deliver robust, workable climate legislation that supports a just transition and protects human rights. We must ensure that the new legislation has the necessary impact across society and the economy to deliver the transformative changes required within the necessary timeframes. I thank the members for their attention and I look forward to their questions.

Chairman

I thank Dr. Ryall. I will take questions from members in the order in which they raise their hands.

Deputy Richard Bruton

A question of interest to me is the issue of consequences and sanctions. I would be interested to hear the comments of either speaker or both on the other jurisdictions that have used consequences and sanctions. Mr. Brian Carroll made the point yesterday that, ultimately, the Oireachtas is the key body, Ministers have to be accountable to the Dáil and that that was the primary form of sanction and accountability before the public forum and so on. I am interested to know what would be the exemplars of alternative consequences and sanctions that were imposed. Yesterday, Mr. Carroll spoke of the financial consequences of missing targets being allocated to individual sectors being a potential issue. Is that widely used in other jurisdictions? Are there models as to how this could be done?

On the issue of which gases are included, the debate we had yesterday concerned biogenic methane. As I understand it, biogenic methane has a much more damaging effect but its life is shorter. Regarding some of the examples cited, New Zealand has set a target of a 10% reduction in biogenic methane by 2030 and a 24% to 47% reduction in a later period, taking into account the difficulty in reducing biogenic methane to nil. Dr. Torney made points about the treatment of different gases. He might comment on that issue because I believe it is one on which there has been considerable debate, including whether the New Zealand model is appropriate for an agrarian society such as ours.

The other issue I am interested in is policy tools. Both speakers made heavy play of creating a legal obligation but did not seem to be quite so helpful in suggesting policy tools that can deliver that. I acknowledge technology is uncertain but if we create a legal obligation on the State, and to take one example, there are members of this committee who would have divergent views on carbon taxation, is it the intention that legislation of this sort would create such an obligation? The Oireachtas is also obliged to make decisions about carbon taxes and to take their impact into account. If we take a solely legalistic approach to this and focus on enforcing the State to do this, that and the other without specifying what those are at the time we make the decisions to enforce them, we are to some degree signing a blank cheque in that we do not know what will be the consequences for our communities. How do we balance that concern? Ultimately, tackling climate change is about motivating sectors, communities, homeowners, farmers and the whole nine yards to make changes in their behaviour and lifestyles. It is not just about the State saying we have it.

Chairman

If I may interrupt, the Deputy's time has concluded. We will allow the witnesses to address his points.

Dr. Diarmuid Torney

I will deal with the questions on carbon budgets and biogenic methane first before responding to the other related questions.

Drawing on the forceful points my colleague, Dr. Ryall, made about the need for legal clarity and precise language, I will decline to make a recommendation as to whether there should be a separate budget for biogenic methane as I feel that is beyond my area of expertise. It should, however, be defined in law whether it is one budget or more. At a minimum, who makes that decision should be defined. The Deputy will be aware that the process of setting the carbon budgets involves a recommendation from the Climate Change Advisory Council being submitted to the Government. The Government then takes into account the advisory council's recommendation and proposes a carbon budget to the Houses of the Oireachtas for approval. In that sequence of decision making, it is not clear to me who makes the call on whether there should be one budget for all greenhouse gases, as suggested yesterday by Mr. Carroll, or separate budgets. At a minimum, it should be specified in law. If the law does not provide clarity about whether there is to be one budget or more than one budget, it should at least be defined in law who makes that decision.

On the question of consequences, sanctions and legal obligations, and policy tools, those issues are all related. The principle goes back to the UK Climate Change Act of 2008 which, as I noted in my opening remarks, is landmark legislation that many observers around the world point to as a model of best practice. That principle is that the legislation should specify the overall carbon constraint but should not be prescriptive on policy. It is the job of the executive and the legislator to figure out the precise policy tools, whether that be a carbon tax, some other instrument or some combination thereof. It is generally accepted that it should not be prescribed in detail in legislation such as this. If the law is not prescriptive on the precise policy details, it should at least be prescriptive about the overall constraint. That is where the carbon budgets and the 2050 target come in.

The question of whether that should be binding is important because binding obligations are more forceful in driving policymaking than are non-binding obligations.

Deputy Richard Bruton

What are the sanctions used in other jurisdictions?

Dr. Diarmuid Torney

There are some models-----

Chairman

I will step in as we have five minutes for questions. Will Dr. Torney address Deputy Bruton's last question briefly before we will move to the next speaker?

Dr. Diarmuid Torney

My apologies. My understanding is that there is a model in the German law but I would need to look into that further. I will be happy to revert to the Deputy with a more precise answer.

Deputy Darren O'Rourke

I thank all the contributors. It is useful to benefit from their experience. Will Dr. Torney speak to his third point and his opinion that there appears to be no obligation on the Climate Change Advisory Council to recommend that the Government approve carbon budgets that are consistent with the national 2050 climate objective? There was some discussion yesterday on these issues and the absence of interim targets. The 2050 targets seem to be the only targets. An opinion was expressed that there is enough in Government policy and the carbon budgets will provide a strong basis for those targets to be met.

Dr. Torney noted that the Climate Change Advisory Council is strengthened in the Bill. Will Dr. Ryall speak to the issue of public involvement and participation and whether the advisory council meets the bar set by the Citizens' Assembly? How might it be improved? Would another vehicle be more appropriate?

Dr. Diarmuid Torney

I will try to be more brief this time as I understand Dr. Ryall had some remarks to make in response to Deputy Bruton's questions. I apologise for that.

I thank the Deputy for his question. I must confess I watched some of yesterday's session but not all of the discussion afterwards. I have seen some reporting on it but I do not know the full details of the discussion the committee had yesterday.

My understanding is that Mr. Carroll expressed the view that it is a principle that EU and international legal obligations should not be repeated in national legislation. If that is the legal advice received by the Government, it seems it would still be possible to include an obligation that the setting of carbon budgets be consistent with both the 2050 target and the State's EU and international obligations. That would not be repeating an international obligation, specifically, in national law but merely including a requirement that setting a national target would be consistent with the State's obligations.

Chairman

I ask Dr. Ryall to respond on the question of public participation. There are two minutes left.

Dr. Áine Ryall

My understanding was that Dr. Torney and I would both be able to comment on the questions. I was keen to respond to Deputy Bruton's question. With the Chairman's agreement, I will deal with both questions together.

I fully agree with Deputy Bruton that oversight by the Oireachtas is absolutely fundamental. This is a policy-heavy area where significant political decisions must be made and serious consequences will arise from those decisions in terms of carbon taxation and everything else. However, I was certainly not making the argument that this was solely a legalistic approach or a legal issue but, rather, that the law is a key component of this overall framework.

This fits in with the second question that was posed concerning potentially strengthening the Climate Change Advisory Council and the role of the public in all of this. This brings me back to the point of consequences and sanctions mentioned by Deputy Bruton, and the idea of exemplars and models elsewhere in response to his point about making, as I suppose any lawyer would, great play of the consequences. We do not even have to look to other jurisdictions for appropriate models.

Take, for example, the State's fundamental duties to uphold human rights. The Irish Human Rights and Equality Commission has a statutory power to initiate litigation where it believes it is necessary to protect and enforce human rights. There are already models, therefore, within our legal system. Climate litigation is expanding exponentially, including here in Ireland with Climate Case Ireland. The law will be part and parcel of this, irrespective of how the Bill ultimately deals with it.

I refer the committee, because it could be helpful, to the state of Vermont, which recently passed the nicely titled Vermont Global Warming Solutions Act 2020. Interestingly, there is the Vermont Climate Council, which speaks to Deputy O'Rourke's question. It is an advisory body much like ours and the legislative model there involves climate action plans. The membership of the Vermont advisory body is very interesting and would be worth examining, along with the ideas of a just transition sub-committee, a youth member and different constituencies. To return to the Deputy's point about public participation, there are other models we could look at.

The other interesting aspect of the Vermont model is that it sets binding targets and timelines for greenhouse reductions in every sector and, to return to Deputy Bruton's point, gives citizens the right to go to court to enforce those binding targets. It is probably the committee's intention in any event but it would be helpful to hear directly from individuals and lawyers from other jurisdictions - perhaps Scotland and elsewhere - who have direct knowledge of these other models in practice. I can safely say good models are out there. I do not suggest we should just cut and paste them into our legislative framework but rather choose the best ones that will work in an Irish context.

Chairman

I thank Dr. Ryall. We must move on in order to be fair to all members.

Senator John McGahon

Picking up on what Dr. Ryall was just saying, it would be a very good idea if the committee could get a wide-ranging view on what other jurisdictions are doing. She mentioned Vermont and her colleague, Dr. Torney, mentioned Germany. I fully accept Dr. Ryall's point that in the case of human rights, for example, we have our own laws, and of course we can build on that. Nevertheless, it would be good if we could get a wide view of what rights citizens throughout the world have to instigate litigation against governments over a failure to hit targets.

Dr. Ryall stated that vague and ambiguous language could lead to complex disputes. Will she give an example of a part of the Bill that stands out to her where, as a result of vague language, a big problem will come down the tracks? To her legal knowledge, is any such vague language in the Bill a stand-out problem?

Dr. Torney stated that there should be other strong measures, alongside the Bill, to ensure active citizen participation. Will he give one or two examples of what active citizen participation would be? He went on to state that there is no obligation on the Climate Change Advisory Council or within the Government to set those targets. Without that level of oversight in the Bill, is it unrealistic that the targets will be met?

Dr. Áine Ryall

I thank the Senator for those very good comments and questions. I can answer them in very general terms. Phrases such as "take into account" and "have regard to" will potentially generate issues into the future and potentially generate litigation as people will, inevitably, attempt to test the frontiers of what they mean. We must try to ensure that the intention is made real in practice. Those phrases, and some discretionary language about some of the public participation obligations, such as that certain persons "may" consult the public, need to be specifically identified throughout the Bill and considered closely by the committee with a view to strengthening them where appropriate to ensure that ambiguity will be ironed out and eliminated, if possible at an early stage. Otherwise, it will just store up uncertainty and, inevitably, lead to litigation.

Dr. Diarmuid Torney

On the Senator's point about comparing examples elsewhere, I recommend that the committee examine a report published in January or February of this year by the Ecologic Institute, a research organisation in Germany. The report is European in focus but is a comprehensive review of national framework climate laws throughout Europe. It sets them out clearly and is a very good resource for those who want to see, in a European context, what various countries have included in their national climate change laws.

On the point about active participation, a number of years ago a national dialogue on climate action was established but it is fair to say it has not, yet at least, delivered on its potential. It has held, in my understanding, relatively few meetings but has significant potential to deliver not only at a national level but also if rolled out at a local level throughout the country with the kind of active participation that has been lacking in the formation and implementation of climate policy to date.

In regard to the question about targets, the point I was making earlier was about the setting of targets and whether the council and the Government were required to set targets consistent with either the 2050 goal set out in the legislation or the State's EU and international commitments. The question of setting targets is slightly different from whether those targets will be met. I will not offer a view of whether the targets are likely to be met.

Senator Alice-Mary Higgins

I will go straight to the question of language. We heard discussion about the question of accountability to the Oireachtas. One of my concerns, as an Oireachtas Member who is unlikely ever to be in government, is that there seems to be a great deal of ministerial discretion and not simply in the context of the phrase "have regard to". When the speaker from the Government spoke yesterday, the only basis on which he guaranteed there would be targets of 7% was that that was stated in the Government's policy. That is different, however, from having it in legislation or in a system. Dr. Torney might elaborate on that question of ministerial discretion and the long-term implications of that for accountability. I was very interested when he mentioned being consistent with our obligations. The phrase "have regard to" is applied to 26 factors. Could different verbs be attached appropriately to different aspects, so there would be no suggestion of an equivalence of weighting between having regard to one small issue and to our UN targets?

I am also concerned about the independence of the advisory council, which was a key concern for the Citizens' Assembly. It suggested there should be a sectoral role for the advisory council rather than having just an overall budget. It would be interesting to hear comments on that.

The Bill suggests that "in the performance of its functions", the Climate Change Advisory Council should have regard not only to paragraphs (a) to (d) of section 3 (3), which cover the climate action plan and so forth, but also to Government policy on climate change. Is there a concern in respect of independence if, in performing its functions and making its recommendations, the council is asked to take on board the policy of the Government? Is it normal to embed Government policy as a weighted factor in that balance between the Legislature and the public?

Dr. Diarmuid Torney

I thank the Senator. There were a lot of questions there so I apologise in advance if I do not get to answer all of them or if I gloss over something.

Chairman

If Dr. Torney would like to make a written observation to the committee through the secretariat that would be facilitated if he does not have enough time.

Dr. Diarmuid Torney

I thank the Cathaoirleach. On Senator Higgins's point about the list of 25 items and whether there might be different language attached with different stringency to different items, there may be merit in that. Reading through those 25 items, there are two that appear to me to be of a different character and those are the State's EU and international legal obligations. In my judgment, there is a case to be made for attaching a greater weight to the solemn commitments the State has made to its EU partners and the international community, such that those points would be put in a different category and the Government's obligations under sections 4 to 6 would be consistent with those legal obligations.

On the point about the Climate Change Advisory Council having to have regard to Government policy, this comes back to the discussion we have been having about the looseness of the legal language. The council is required to have regard to Government policy but it is not required to recommend carbon budgets that are consistent with policy. The council, in my reading, is not necessarily constrained by Government policy but should have regard to it.

I will leave the other comments and hand over to Dr. Ryall but I would be happy to follow up on the Senator's other points afterwards.

Dr. Áine Ryall

Following up briefly, it must be the case that the council can have regard to and must consider Government policy. It would not make sense otherwise because Government policy is key in all of this. However, the point is it is not bound by it. It is just one factor and what should count in terms of the council's recommendations and its role in setting the carbon budgets is our international, EU and national obligations in terms of targets. That should be the bottom line.

Coming back to the initial part of the question about the independence of the Council, one point I was hoping to make in the course of this session, and I am glad the Senator brought it up, is that one of the hallmarks in judging the independence of any body is the appointment process. I am not suggesting that the members are not independent as they stand and this is a general point but it would be important to consider some form of public appointment process where the roles would be advertised publicly, there would be specific criteria and there would be interviews or a similar process. I am thinking of how the Government sets up the system for appointments to the Irish Human Rights and Equality Commission, which is a very open, transparent and competitive process. It demonstrates that one can get a nice balance of the different areas of expertise that are required and it underpins independence. That should be considered in the context of the Climate Change Advisory Council.

Deputy Jennifer Whitmore

I thank Dr. Torney and Dr. Ryall for coming in today. I agree with what they have said in that it is a welcome first step. People have been looking forward to having this document in front of them and seeing progress regarding our climate obligations. I am fearful that, because we have been waiting for it for so long, there is a rush to get through the process and we do not scrutinise it properly to make sure it has the strength it needs. While I believe this Government has the intent to put this through properly, what I am focussed on is that we do not know the make-up of the next Government or the Government after so the legislation we put in place today has to be strong to withstand any future changes in government.

I am aware that much of the discussion yesterday and today is legalistic. For members of the public who might be watching in, could the witnesses paint a basic picture of what are the risks if the legislation were to go through as it stands ? What are the outcomes we can see? Is there a possibility that we could reach 2029 and there would be no reduction in admissions and no legal ramifications to that?

Chairman

I thank the Deputy. Which witness was she directing that at, or was it both?

Deputy Jennifer Whitmore

Both. I think I have a bit of time left.

Dr. Áine Ryall

I am happy to start. I thank Deputy Whitmore and I agree this is urgent and we need to press on but the Deputy is right to stress the importance of getting it right. We have one shot at this so it is important to take the time necessary. That ties in with the point the Deputy's colleagues have made about looking at other jurisdictions and seeing what best practice is and learning from those. On the Deputy's excellent question regarding what the consequences would be if the Bill were to be passed as is tomorrow morning, these things are always hard to predict but it seems to me that much legislation, not just this Bill, creates many obligations. There are many reasons why Government fails to deliver on legal obligations and, if people can afford it and have access to the courts, there will then inevitably be litigation to work out and deliver those obligations. There will be enforcement and a follow-up in litigation no matter what we do.

The point I am trying to get across is that if we make this Bill as robust as possible, make the obligations clear and put in place provisions to enable people, including the public, to follow through if they see a breach of obligations, that could save a lot of back and forth trying to tease out things and wasting time and court resources. The way to do it is to get it right now and, hopefully, avoid litigation. I am concerned that, if it goes through as it is, it is storing up trouble. There is no doubt about that. It is coming back to "have regard to" and vague provisions. People will say it could mean X or it could mean Y and that could and probably will end up in the High Court.

Dr. Diarmuid Torney

I concur with everything Dr. Ryall said and I agree with Deputy Whitmore on the need for proper scrutiny of the legislation. Building on Dr. Ryall's comments, I emphasise, as I did in closing my opening remarks, that we cannot rely on a piece of legislation, no matter how strong, to deliver the transformation required. There is a risk that observers come to think of this Bill as climate action in itself and that is not the case. It is a means of facilitating the State and society in delivering transformational change but, even if this legislation was strengthened in every way that every witness to this committee recommends, that still would not preclude that we could reach 2029 and the Government would still not have undertaken action. That is why I said in my opening statement that we should see this Bill as part of a much bigger jigsaw. It is an important framework and I have set out ways in which I think it should be strengthened.

Even taking on board the recommendations Dr. Ryall and I have made it is still not a panacea.

Senator Lynn Boylan

I thank our speakers who I understand are both very busy. We really appreciate them giving us their time today. My first question is for Dr. Ryall. She said she wanted to expand on certain areas and as a committee we would welcome some of her written observations, likewise with Dr. Torney, to allow us to tease out what they are saying. Returning to the issue of public participation, while there appears to be little provision in the Bill for participation by the wider public or indeed prescribed bodies, information is key to participation. Will Dr. Ryall share some of her insights into the obligations of the Aarhus Convention in respect of the proactive dissemination of information and how that helps the public to participate in the first place?

My question for Dr. Torney is on the carbon budgets. I believe the Scottish Act caps the number of carbon offsets. While there are references in this Bill to technological innovations and to sequestration, it is not defined. Could Dr. Torney elaborate as to what better models we could look to around the accounting mechanism of the carbon units and capping how much of it is going to be offset, compared to how much of it is going to be absolute reductions?

Dr. Áine Ryall

I thank the Senator for those excellent questions. On the Aarhus Convention I must declare that as vice-chair of the Aarhus Convention Compliance Committee, I speak here in a purely personal capacity. The Aarhus Convention creates important human rights for the public including, as the Senator mentioned, the right to information, the right to participate in decision-making and also the right of access to the courts to enforce environmental rights. As the Senator said, information is absolutely key and it comes back to the original point that both Dr. Torney and I made about how practically impossible it is for a member of the public to try to piece together the Bill as it stands with what currently exists in the 2015 Act. It is incumbent on Government to make the effort to make the information as accessible as possible to the public and to publish information online in a timely fashion. There are some very good models of this such as the Citizens Information Board. The Environmental Protection Agency has also been a very significant advocate and educator, for want of a better expression, with the series of free, public, live-streamed lectures it has run over the years to inform the public about some of the key issues around climate change. These were not necessarily focused on law but, as Dr. Torney said, the wider societal issues and making the science more accessible to the public.

On the participation point, a concern I have more generally is that there are so many public consultations often going on at the same time, whether to do with planning or the marine environment or some draft Government strategy. It is very difficult for the public who are busy working or have other commitments to find the time and get access to the expertise to make the high-quality submissions that will actually have an impact and change the direction a particular draft document or proposal might take. It really does come down to the Government putting the resources into developing websites or portals to ensure the public knows where to go to get the basic information and then of course to give the public sufficient time. Timeframes for public participation, whether on a climate action plan or one of the local authority plans or whatever, can be an issue. Is two months enough if the public needs to take expert advice? This committee is now taking expert advice and we see how complicated it is so how is a member of the public expected to get the necessary advice to see what is important? That point came across very clearly in the Supreme Court judgment in Climate Case Ireland. A reasonable, interested member of the public reading the national mitigation plan must be able to see what the Government has in mind in terms of policy measures and be able to make his or her own judgment as to whether these policy measures are good enough to get us to the 2050 target.

Chairman

We are very short on time for obvious reasons. I remind witnesses that if they would like to follow up with written observations we would welcome follow-up responses to the questions that have been asked.

Dr. Diarmuid Torney

I thank Senator Boylan for her question. I will need to look into it further and follow up with further details. There is potentially merit in capping the use of carbon offsets but I do not know enough about models in other jurisdictions so I will have to look into that and get back to her with details.

Deputy Réada Cronin

I thank Dr. Torney and Dr. Ryall. I am glad that the imprecise language in the Bill was raised. It is a worry expressed by many here because we are not going to be able to achieve our aims if we are not precise about what we want. On the wider engagement, Dr. Ryall mentioned public participation, timeframes and the language of the Bill, which is very legalistic. I am worried about poverty-proofing this Bill and the impact it is going to have on poorer communities with carbon taxes and so on. The Climate Change Advisory Council are very good people but it is the usual suspects who are on most of these groups. How do the witnesses think we could best achieve a wider engagement with the people who will be impacted by this Bill? We must also consider our global responsibilities for the next 30 years to impoverished people around the world who will also be impacted by this.

Dr. Áine Ryall

It is a very good question and a difficult one to answer. One thing to mention immediately is the vital role of the media in all of this, and accurate media reporting of things such as these proceedings. It is important that this meeting is being live-streamed and that our opening statements will be published to its website. Again, the explanatory memorandum to the Bill is quite helpful as a resource but it should be ensured the public is aware there is such a memorandum. A big issue is members of the public who might not have any Internet access or any reliable Internet access as that is a fundamental requirement to even get the documents now. It is also a concern in the context of the green schools and green campus programmes and starting at an early stage to build up the information so we have active and engaged citizens from a very early stage of an individual's career. We must also ensure that is adequately resourced. I share the Deputy's concerns about poverty-proofing and, as a member of the expert advisory group to the Citizens' Assembly, this was something that surfaced on a very regular basis in the course of the debate there, as did the concerns of rural communities about transport and electric vehicles. Again, many of the recommendations from the Citizens' Assembly do attempt to address those concerns insofar as they can, in particular ring-fencing a certain element of the revenue from a carbon tax, for example. There are mechanisms for doing it but it needs to be very carefully calibrated. Poverty-proofing is a critical issue and something that the policymakers will have to make the tough calls on, ultimately in the budgetary context as well with competing demands.

Dr. Diarmuid Torney

I concur with everything Dr. Ryall has said. Returning to a response I gave to Deputy Bruton, this Bill itself really just puts in place the framework, it does not specify any measures.

It does not, for example, say anything about a carbon tax. It does not specify the policy instruments through which Government should achieve the targets to be set out under, for example, the carbon budgets process. It does, however, as we have discussed this morning, set out a variety of different matters which the Government and the advisory council must take into account in the performance of their functions. Stronger language could be included, for example with regard to poverty-proofing, environmental justice or a just transition, in the list of items to which Government must have regard in the elaboration of policies to meet its targets.

Deputy Bríd Smith

I thank the witnesses for their presentation. I was late and missed most of it but I will look back on it. I will return to the last issue about which Dr. Torney was speaking. There seems to be a lot of discussion about the term "having regard to" and what it might mean. I have two questions on that matter. Could other language be used to strengthen these provisions? Could an alternative phrase to "having regard to" be used to strengthen what is intended? In the witnesses' experience of international law, do they find it odd that a reference to the levels of CO2 in the atmosphere is missing from that litany of 25 to 26 points the Bill obliges Ministers to have regard to? Surely whether those levels are dangerous or safe, as determined by international science, should be the guiding principle of whatever we do. Mauna Loa Observatory says the level should be at 350 parts per million. These levels do not seem to be mentioned here. Do the witnesses find that odd? Would an obligation to have regard to the levels of CO2 in the atmosphere be an underlying principle in most international legislation in this regard?

Dr. Diarmuid Torney

I thank the Deputy. I am looking at the relevant section of the draft Bill. The proposed new section 3(3)(a) of the Climate Action and Low Carbon Development Act 2015 refers to "the ultimate objective specified in Article 2 of the United Nations Framework Convention on Climate Change". I am unable to repeat the exact language used in that article but it refers to stabilising greenhouse gases at a certain level. I am unable to state the exact level specified but the article specifies a safe level. There is therefore, in effect, a reference to the principle that underpins the Deputy's question.

On the broader point about the term "having regard to", an alternative phrasing might be "must be consistent with". There has been some discussion around this already this morning. The challenge is that any government acting in good faith would struggle to develop policy consistent with 25 very diverse items. There may be tensions between different elements of the list. It would be challenging for a Bill to specify that in setting policy, the Government must ensure that policy is consistent with everything in that Bill. Alternative language exists but it would not be a matter of simply taking out "having regard to" and replacing it with "must be consistent with" across the board.

I made the point earlier, in response to a different question, that I see this section 3(3)(a) regarding the State's international obligations as being of a different character to everything else in the list. There may be merit in specifying that Government policy must be consistent with this point alone.

Chairman

The Deputy still has a minute and a half.

Deputy Bríd Smith

I thank the Chairman but that is fine.

Dr. Áine Ryall

If there is a minute available may I briefly address the point about language which the Deputy raised?

Chairman

Yes. Dr. Ryall has a minute.

Dr. Áine Ryall

With regard to language, there is no magic formula. The language appropriate in a particular context will depend on that context. I have seen language such as "take due account of" and similar phrases in my role with the Aarhus Convention compliance committee. It can be very important to oblige the State party or decision maker to set out in writing how it took account of submissions made and other relevant factors, in other words, to provide a written record of its reasoning process. This can be very onerous for public authorities and the State but can often protect them from litigation in the end because, if the public can see that their views, concerns and submissions were actually taken into consideration and assigned some weight in the decision-making process, it can be a very positive experience and can in some cases, although not all, defuse a situation in which people believe that, while a public body claims to have had regard to their views or to given policies, it is uncertain whether it actually did. The written record of the reasoning and the decision-making process can be really important in this regard. Deputy Bríd Smith has made a very significant point in the context of the Bill.

Senator Pauline O'Reilly

I thank both witnesses for joining us today. I will start with one of the points Dr. Ryall made in her opening statement. She mentioned that those present at the Citizens' Assembly voted in favour of a recommendation that the CCAC or an independent body should instigate legal proceedings to ensure the State complies with its legal obligations. How could that work in a situation in which the CCAC puts forward proposals for what goes into the climate budget? How could it take the State to court over proposals it had itself put forward? Was Dr. Ryall talking about the CCAC or a separate body?

I spoke yesterday about one of the ways in which the language could be firmed up with particular reference to the start of the proposed section 3 where it says "The State shall pursue the transition". If that line was changed to strengthen the provision, what changes would have to be made to the rest of the Bill to ensure it had effect?

Does Dr. Ryall believe social justice could be, or needs to be, woven into the Bill more carefully? Particularly on the idea of a just transition, the public have different points of view on what that means. Is there a way to weave this into the Bill?

Dr. Áine Ryall

I thank Senator Pauline O'Reilly, who has raised a number of very important points. I propose to deal firstly with the point she made concerning the report of the Citizens' Assembly. I have included references to the pages that deal with that particular recommendation in my opening statement so that people can see the assembly's reasoning and how the draft was formulated, revised and ultimately finalised. The recommendation was that a new or existing independent body would take on particular functions including potentially pursuing the State by way of litigation if that was seen to be necessary. The Citizens' Assembly's recommendation did not specify that this body should be the CCAC or any other particular body. It left open the prospect that it might be a newly established State body. My own personal view, however, is that the resources and effort required to establish such a body could be very significant.

It would not necessarily be the case that the Climate Change Advisory Council might end up litigating. For the very reasons the Senator suggests, it would be inappropriate if the council itself has a very involved role in presenting and pursuing the various carbon budgets, so there definitely is an issue about who or what body would have that enforcement role, and that needs to be teased out further.

I will jump to the Senator’s third point because I can come back in writing about the question of the term “shall pursue”, which I think is too weak and needs to be improved.

On the social justice and just transition point, it is also important to mention the wider climate justice agenda, which came up on one of the earlier questions about poverty proofing the Bill and poverty proofing our climate policy. Climate change, air quality and air pollution are closely interlinked. We have an incredibly serious air quality problem in this jurisdiction, on which the EPA, to be fair, has been very strong in advocating. In terms of climate justice and, for example, more poorly resourced communities being forced to suffer poorer air quality, these are all issues that need to be part of the wider framework of the just transition and the social justice concerns that have been mentioned. It is important that these be kept in mind as the Bill evolves.

Senator Pauline O'Reilly

Dr. Ryall might come back to me on her proposals for how we can strengthen the Bill in those areas she has just mentioned such as poverty proofing, just transition and social justice and whether she thinks the Bill is the appropriate place for this or whether it should be in policy.

Deputy Christopher O'Sullivan

This is my first experience of pre-legislative scrutiny in committee and I find it fascinating, particularly the debate and the language around language, for want of a better description. My own experience with this relates to local authority development plans where serious debates raged about the use of language and the interpretation of language. I totally understand, therefore, the frustration and I understand that the more vague the language, the more open it is to litigation down the line.

My question might be a silly one but I will ask it anyway. Is there any place for vague language within legislation? What I mean by that is we have had a lot of reference to the advisory council “having regard to” Government policy. Surely that is an example of language that leaves the interpretation open yet it is more suitable than language such as that the advisory council “would be bound by” Government policy, in particular as a future administration might have less ambitious targets. Is there a place for language that, if not vague, at least leaves the interpretation open in regard to a body such as the advisory council?

Dr. Áine Ryall

It definitely is not a silly question. As I said in response to one of the earlier questions, the appropriate language in a particular Bill will depend on the context. It will be appropriate in some cases to say that such and such a body “shall have regard to”, but it would not be appropriate in other contexts where one is trying to create a binding, firm obligation leading to a particular result. It simply depends. It will be appropriate at times but absolutely not appropriate in other contexts. If we use that loose language in the wrong context, and the Deputy himself pointed to the context of planning, and development plans in particular, there is a high risk of somebody litigating to get the particular outcome they want.

Deputy Cormac Devlin

I thank the witnesses for attending. I have several questions on the opening statements. I will start with Dr. Ryall, who mentioned the Climate Change Advisory Council and its need for independence and oversight. She touched earlier on the ideal composition of the council and the importance of funding it. However, she might elaborate on the issue of its make-up. With regard to Ireland's climate action Bill, when it is ultimately adopted, how would she see it intertwine or complement our EU obligations? I will have questions for Dr. Torney next.

Dr. Áine Ryall

I thank the Deputy for those very good questions. To deal with the Climate Change Advisory Council, while it is hard to envisage an ideal composition, at the moment, the balance of expertise on the current committee is not correct. Again, that is no reflection whatsoever on any of the individual members but simply the way the appointments were made. We certainly need a lawyer or somebody with some legal background on the council, given the importance of our international and EU law obligations and how central they are in all of this. My personal view is that it would be a good idea to have a member representing younger people. The next generations, certainly in my experience of dealing with them as a university lecturer, bring very fresh perspectives and have very sharp insights into policy and on how to motivate and engage the public. That is certainly something that could be considered. The just transition also needs to be reflected in the make-up of that grouping. Like many others, I feel very strongly about the gender balance issue and the importance of diversity in this day and age, and that should be a no-brainer.

It is important, of course, that we do not have an unwieldy council that is so big it becomes unworkable, so, again, important choices will have to be made about what composition is considered appropriate, and the particular areas of expertise that are needed to ensure it can do the job properly. The resource issue should go without saying.

I will come back to the point I made earlier about the independence and transparency of the process. A transparent appointment process would perhaps give the council a higher profile and bring it more to the attention of the public, and that is something I would highly recommend.

On the question of how the current Bill interacts with our international and European Union law obligations, ideally, the two should be mutually reinforcing and there should not be conflict between them; one should reinforce the other and vice versa. I do not think there is a difficulty in making explicit references to our international and EU law obligations in the text of our legislation. They should be mutually reinforcing and that is essentially how it should work.

Deputy Cormac Devlin

I thank Dr. Ryall. I have two questions for Dr. Torney and, as our time is limited, he might come back to me on these. First, he referenced the draft text of 2015 and said there were pieces missing from it. I heard both witnesses state there should be some sort of attachment or document, separate to all of this, for the public's engagement with it. He might elaborate on what he has come across that is missing. Second, in terms of setting climate targets, would he propose setting targets for specific sectors within the economy and could those sectors offset their targets to other sectors?

Dr. Diarmuid Torney

On the point about the 2015 text, if I understand the question correctly, that was a point about transparency. Dr. Ryall made the point very eloquently that it would have been helpful to have an unofficial version of the 2015 Act, perhaps with tracked changes. Given the proposed changes in the Bill, it was very difficult, even for experts, to look through the text from last week and the 2015 Act and try to make sense of it, never mind for members of the public.

On the question of targets, my judgment is that it is properly the role of the Government to decide on that allocation within various sectors of the economy in order that the overall cap in the form of the carbon budgets is required to be set under the climate Bill but that the manner in which that is divided up between Government Departments is a matter of interministerial and interdepartmental negotiation, just as in the case of the annual financial budget. Different Ministers make the case that their Department should get a larger share and, ultimately, the Government collectively decides how the cake is divided up between the different sectors.

Deputy Alan Farrell

I thank our witnesses for their contributions thus far. The vast majority of my questions have been answered at this stage, but I will go back for a moment to the composition of the Climate Change Advisory Council. There was mention earlier of a more transparent process. I think it was Dr. Ryall who mentioned it. Are either or both of our contributors aware of the Judicial Appointments Advisory Board, JAAB, or the Public Appointments Service? Would they be, in addition to the Irish Human Rights and Equality Commission, comparable? Do the witnesses have a view on this? Perhaps they could expand on it in the four minutes that remain. Either may start. I do not mind.

Dr. Áine Ryall

It is like the point I made earlier about language. What is appropriate will depend on the context. What one does not want is a process that would run on for a very significant period and delay the population of the Climate Change Advisory Council. Personally, however, I like the process by which the commissioners are appointed to the Irish Human Rights and Equality Commission. It is a very robust and rigorous process which confirms the importance of the role they play. Ultimately, once they are selected after a very intensive, competitive process, they are then appointed formally by the President, which again adds, in my view, a certain prestige to their role. The reason I am harking on about the Irish Human Rights and Equality Commission is that, in my view at least, climate change is a fundamental issue of human rights and indeed constitutional rights, so it seems to me to be an appropriate comparator. There are, however, people much more experienced than I am in the public appointments processes and what would be appropriate and proportionate in this context. I have a concern that too elaborate a process would take too long. We need the necessary expertise and a full complement of the newly formulated council in place as soon as possible.

Deputy Alan Farrell

I thank Dr. Ryall. Does Dr. Torney have a view on the matter?

Dr. Diarmuid Torney

To add to Dr. Ryall's comments, there is a website run, I think, by the Public Appointments Service, stateboards.ie, which lists State boards and similar bodies to which appointments may be made. It is notable that the Climate Change Advisory Council is not listed - at least the last time I checked it was not. One can search by Government Department. On the website vacancies on State boards are advertised and there is a process of expressing an interest if a member of the public wishes to do so. There is therefore a more or less ready-made template for managing a process of appointment to a body such as the Climate Change Advisory Council in an open and transparent way, and I echo Dr. Ryall's comments and concerns in that regard.

Deputy Alan Farrell

I thank Dr. Torney and Dr. Ryall. As I said, the vast majority of my questions have been asked and well answered at this stage.

Chairman

We have been through one round of questions and have a little time, perhaps ten minutes or so, for a quick second round. If members would raise their hands, we will take the questions together and then allow Dr. Ryall and Dr. Torney to answer them together.

Senator Pauline O'Reilly

Regarding the causes of action under the legislation, or what the witnesses think should be under the legislation, could failure to meet the target set by the carbon budgets be one ground on which to litigate? Another ground that comes to mind is failure to put together an adequate carbon budget. Do we need to strengthen the legislation to take account of these two different aspects?

Chairman

I call Senator Higgins.

Dr. Áine Ryall

That is a very good question. I am just writing it down in order that I will be able to follow up on it later as well.

Chairman

I am sorry to cut across Dr. Ryall. We will take members' questions together-----

Dr. Áine Ryall

I beg your pardon. Excuse me.

Chairman

-----because this will be a very quick second round. Then we will bring both Dr. Ryall and Dr. Torney in again to answer comprehensively.

Senator Alice-Mary Higgins

I refer to the reasonable person who might want to take action and a 2050 national target. Is it difficult having a national target that is so far away? The witnesses have indicated that they believe it is not being met. Might a national interim minimum target allow for more practical action on the part of both the Legislature and interested persons if they feel targets are not in line? Human rights have been referred to. The public has a duty in respect of equality and human rights, biodiversity measures and the strategic development goals, SDGs, which have really specific indicators. Do the witnesses believe these measures should be considered in the formulation of these carbon budgets?

Deputy Darren O'Rourke

The issue of public involvement and the challenge of having a really representative Climate Change Advisory Council, which I think is an impossible challenge, make me wonder if there is merit in establishing a climate action citizens' assembly on an almost permanent basis that might advise the advisory council or input into it. Is that something the witnesses think deserves consideration?

Deputy Cormac Devlin

I thank the Chairman for allowing this second round. How broad should the just transition be, in the opinions of both witnesses, to protect those on low incomes? There is a fear of these targets and of changes to public policy on climate change, particularly among those on low incomes or of limited means.

Senator Lynn Boylan

I will be very brief. Following up on what Deputy O'Rourke said, are the witnesses familiar with the legislation in Scotland, which refers to maintaining a social consensus with trade unions, communities and business? Would that be useful in the Bill, as a topic of discussion for that permanent citizens' assembly or in reaching out to the wider public?

I wish to follow up also on what Senator Higgins said about biodiversity. We as a country have declared a biodiversity emergency. The only references to the expertise of the advisory council come in the context of biodiversity and ecosystem services, which could put on the advisory council somebody who has an interest in ecosystem services but not necessarily the biodiversity element. Should biodiversity be referred to elsewhere or as something that the Minister should take account of, given that the role of agriculture has to be taken into account? Is there a role for the Minister in this regard?

Chairman

We will allow Dr. Ryall four minutes and Dr. Torney another four minutes to answer as best they can those quick-fire questions from members. Would Dr. Ryall like to go first?

Dr. Áine Ryall

I apologise again for intruding earlier. Taking the first question concerning causes of action, if the Bill is enacted and provides for a cause of action, it would certainly then be possible to sue for any alleged failure to meet specified targets, but again it would depend on the precise wording of the legislation.

It was also mentioned that someone could potentially make a challenge if an adequate target was not set to begin with. That is certainly a possibility. I say that based on some observations the Chief Justice made in the Climate Case Ireland judgment in which he explored the possibility of further litigation in this area based, perhaps, on constitutional rights. If the court were to be convinced that the Government had not acted adequately to protect people's constitutional right to life and constitutional right to bodily integrity, for example, there may well be a case where the court might have to step in and order the State to take a particular course of action. That is a possibility. It is untried and untested so far. Based on reading the Climate Case Ireland judgment, we should be on the lookout for it. It should concentrate minds when drafting this legislation because everybody wants to avoid litigation. If the job of work to be done on this Bill is done well, it should result in less scope and capacity for litigation.

I also agree with the comment made that a 2050 target is so far away, it is impossible for the ordinary punter to get their head around it. The need for clear interim targets is fundamental and vital for ongoing accountability to track how we are doing. The public sector duty, which was also mentioned, applies across the board to public authorities. There may be no need to replicate it here because it is covered in other legislation. However, that should be considered carefully while working through the Bill.

There was the suggestion for a permanent climate action citizens' assembly. Another way to do that might be to consider the kinds of committees that might serve the CCAC. There might be a just transition committee or other variations. We should not create a structure that is so elaborate that it becomes very costly and by definition very slow-moving.

Those are some initial thoughts. I will reflect further on how broad the just transition should be. That is a difficult one, but there is good material on that in the report of the Citizens' Assembly.

Chairman

Senator Higgins is asking Dr. Ryall to comment on the SDGs and the biodiversity aspect.

Dr. Áine Ryall

I was just conscious of time. Climate and biodiversity are so closely connected that it would be worth considering how best to integrate a reference as appropriate to biodiversity in this legislation. I would also be conscious that we do not want it to overlap with other legislation dealing specifically with biodiversity. If the Senator does not mind, I will reflect further on that. I am not certain that I would embed the sustainable development goals in this legislation. Would it be added to the already lengthy list of factors that would need to be taken into account? I will reflect on it further. Of course, more effort should be made to promote the sustainable development goals so that it is not just a question of State authorities and public authorities paying lip service to them. These are very important, and they need to be made operational. If the Chairman does not mind, I will come back in writing on some of those more complicated issues.

Chairman

We very much appreciate that. Dr. Torney may take four minutes to address those points.

Dr. Diarmuid Torney

I will pick up as best I can on the varied questions that came in. The point about the 2050 target being far away is very well made. I would make a broader point about ex post accountability, or accountability once targets have been missed. That is a suboptimal form of accountability because we know that once greenhouse gases are emitted, they stay in the atmosphere for decades to centuries. We need robust accountability mechanisms as we go along. We need strong requirements on the Government to plan in a way that is consistent with the carbon budgets and the 2050 goal. I emphasise the need for strong requirements on the Government to plan in a measured way to develop the climate action plan and long-term strategy in a manner that is consistent with the carbon budgets and the 2050 goal. That is the kind of accountability that was demonstrated in the Supreme Court decision. It was not that the Government had failed to achieve a decarbonisation objective; it was that it had failed to plan in a way that was consistent with delivery of the objective.

On the points about SDGs and biodiversity and perhaps also just transition, these are all very important elements and principles. Like Dr. Ryall I think I will need to reflect more on how the different points raised could best be incorporated into the Bill. As I said in earlier contributions, the Bill provides an overarching framework. It does not develop all the policies we will need to deliver strong climate action. There is a trade-off between including everything we think is important and not overloading what is essentially meant to be the framework for action rather than action itself.

On having a citizens' assembly on climate change on a permanent basis, I concur with Dr. Ryall that we need robust mechanisms for public engagement and public involvement in decision-making, but we need to do so in a way that does not become excessively cumbersome and costly. I think there is a balance to be struck there. It certainly is important to include mechanisms for public involvement and to build societal consensus. Not every detail of that should necessarily be in this legislation.

Just because something is not in this Bill, it does not mean that we think it is not vitally important. There are other ways in which we can express our commitment to principles we think are important alongside trying to enshrine them in this legislation.

Chairman

That concludes our questioning. On behalf of the committee, I thank Dr. Torney and Dr. Ryall for attending today. It has been a very worthwhile, engaging and thorough session. It will assist us greatly in our consideration of the draft Bill.

The joint committee went into private session at 10.49 a.m. and adjourned at 10.59 a.m. until 11.30 a.m. on Wednesday, 21 October 2020.