I welcome Dr. Peter Doran and Mr. Fergal Mawe on behalf of Ceartas, Irish Lawyers for Human Rights.

Before we begin, witnesses should please note that they are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed to restrict their evidence to the subject matter of these proceedings and to respect the parliamentary practice that, where possible, they should not criticise or make charges against an person, persons or an entity. They are asked to read the document on privilege which has been circulated to them. I remind them not to read their opening statements which have been circulated to committee members.

On behalf of Ceartas, Irish Lawyers for Human Rights, I thank the joint committee for giving us the opportunity to appear before it and present the work of Dr. Peter Doran. Ceartas commissioned this work on the connection between human rights and the environment, particularly at an international level, through international jurisprudence and law following publication of the recent Bill. Without further ado, I will hand over to Dr. Doran.

I thank the joint committee. It is a great privilege and pleasure to have the opportunity to be here.

At the head of my submission for Ceartas I quote William McDonough, an award-winning green architect, who said, “Design is the first signal of human intention.” In other words, if we get the design right and the intention behind it is right, many of the problems down the line will be avoided. My interest and the focus of my paper was the design principle that we might pick up, in particular, from the UK Climate Change Act 2008.

Based on the heads of the climate action and low carbon development Bill, it provides a sound structure that will certainly bring about a step change in creating a law-based arrangement for a whole-of-government approach. That in itself, as other speakers have said, will be tremendous progress in institutionalising our whole of government response to climate change. In the UK legislation there is a great focus on the presence of targets. When we talk about the role that reference has played in the Irish debate, we have tended to focus on the presence of the headline target for 2050 and the other targets, but we should not lose sight of the way in which these targets are fully integrated into a rather ingenious design, a whole set of innovative reporting and budget mechanisms.

In order to appreciate the role of these targets and the presence of the targets in the legislation, we have to see it in the round. The targets and objectives are inseparable from the overall design. One of the particular features is the independent and very robust role given to the climate change committee which is the expert body in the United Kingdom. All of this is intended to turn a moment of consensus in British politics into an opportunity to adopt a long-range policy framework guided by a clear long-range objective. There are many ways to project that objective and insert it in the proposed Irish legislation. It can be numerical or a reference to the language of carbon neutrality or low carbon. We need that kind of lighthouse somewhere in the legislation to guide us all home to the safe operating space for the climate.

There is a robust role for parliamentary scrutiny, as well as the expert body. One of the roles clear objectives and targets in legislation can play is to enhance the scrutiny role of parliamentary committees and the wider Parliament.

Another design principle at the heart of the UK legislation is the creation of what I call a bulwark or circuit-breaker to begin to devolve some of the tricky questions of the capacity of the various sectors to contribute to climate change mitigation, where the limits of that capacity begin and end and where the special pleading begins and ends. The politicisation of the process leading to the various drafts of the Irish legislation, the highly political debate and the special pleas from business and agriculture have demonstrated just how difficult it can be to unpack with clarity the real capacity within sectors to embrace innovation and change and the science-led objective which is to have reductions of around 80% to 95% by 2050.

The independence, in particular, of the expert body, its very clear mandate, the very clearly defined relationships between the expert body and the Minister and the ability of the expert body to lay reports before Parliament are as important a feature of the UK legislation as the presence of targets and objectives.

I thank the delegates for their presentation and their attendance on such a sunny Friday afternoon. The Minister appeared before the joint committee last Wednesday. He has been clear and emphatic that he has almost a disregard for national targets. He is kicking to touch and saying it is the business of the European Union. In a way, it puts the committee's work at a significant disadvantage, because he was not shy about putting across his views. I ask the delegates to comment on whether it is proper for us to adhere to the EU targets set.

One of the Minister's concerns is that the measurement of greenhouse gas emissions in Ireland is not quantifiable, or not sufficiently scientific, and that more work is required on measurement. The submission from IBEC last week was very emphatic that the committee should not recommend the approach taken by the United Kingdom. The IBEC representatives gave a particular example of the fractiousness between that committee and the environment committee. What Mr. Doran recommends seems laudable in principle, but I ask whether it is borne out in the UK relationship. Neil Walker commented in his submission: "For the avoidance of doubt ... such a body must not be modelled on the UK’s Committee on Climate Change, whose relationship with the Department of Energy and Climate Change and with the UK Treasury has become increasingly fractious and ineffective over recent years."

As part of my preparations I listened very carefully to the Minister's contribution at the committee. I am puzzled. I have not been able to work out in my own mind what is the relationship between the difficulty, which is a genuine one, around land use, land-use change and forestry, LULUCF, and the agricultural methodologies and the adoption of targets. A very simple way to overcome any uncertainty around the agriculture sector would be to mandate the expert body - established perhaps in shadow form at an earlier stage - to advise post-2015. I presume some of these methodological issues will be resolved by 2015 as part of the international debate or negotiation. It would be a simple matter to devolve in part decisions about the level of ambition of targets and how the EU targets would be reflected in Irish legislation and to allow time for this to happen when the EU negotiations on burden-sharing and the US-CCC negotiations are complete. There would then be greater clarity.

Whereas the Minister talks about the need to avoid a new layer of targets, there is no reason the targets which might be reflected in the legislation eventually should not incorporate and simply reflect a calibration of existing targets, both European and future UN targets. The UK legislation includes the flexibility to revise targets, albeit in a way where the limits of that review would be prescribed.

I refer to the point argued by IBEC and suspect that there is a certain exaggeration. I understand part of IBEC's argument was the very point with which I began, that the fraught nature of these negotiations and the interaction of the sectors with the Government and the issues around burden-sharing are incredibly difficult. Climate change is, ultimately, about redesigning the entire economic system, shifting its basis from a fossil fuel design to one that will be liberated from that paradigm. The short-term calculations of business and industry can sometimes prevent us from seizing the opportunity to have a legislative design that will serve well into the future.

Given the consensus that has continued for several Governments, it would be a great shame to drop the ball by failing to press home the opportunity to have a long-term framework within the legislation. The Bill can act as a bulwark to test the intentions, capacity and good faith of IBEC, the agriculture sector and others by allowing for the establishment of an expert body with true independence and the ability to bring forward proposals to each sector in a way that would remove some of the difficult decisions from the more politicised forums in which they have been residing thus far.

The difficulty is that what Dr. Doran has just described is not actually in the proposed Bill. All of the expert witnesses have acknowledged that changing the economic system will involve an extraordinarily radical and momentous effort. There is quite a strong and coherent argument in this country to the effect that we are not ready for change on such a scale, that it clashes with Harvest 2020 and so on. There is a division in industry between those who welcome targets and those do not, and a tension between agriculture and other sectors. There is also the issue of internal burden-sharing. Does Dr. Doran accept that none of these issues is included in the proposed legislation?

The main risk for this process is the perception that the challenge of long-term transition will undermine economic recovery within sections of business and industry. There is also, as we know, significant nervousness within agriculture. I am saying a genuinely independent, well resourced and expert-led body would provide us with the ability to present scenarios to these sectors and define very clearly where their actual capacity for transition lies in the short, medium and long term. It would allow us to begin to see where that capacity might be exhausted at any particular moment in the short term and thereby ascertain more clearly, in the context of the opportunities, the validity of the special pleading, defensiveness and occasional misrepresentation we have had from these sectors. It is the role of an independent, robust and well resourced expert body to throw some light on the type of politicisation that leads to obfuscation and which might well undermine this very unique moment in Irish political decision-making where we have a consensus that can be translated into a long-term trajectory of action on climate change.

The United Kingdom legislation is built on the notion of incremental momentum. Nobody is trying to reset the economy overnight, but what we have there is a very clear set of mandates, reporting requirements and duties on the Minister which serve to build a political momentum and turn the legislation itself into an ally in stretching all sectors and politicians to embark on this journey. It will not be easy. In the longer term, as the transition progresses, there will be winners and losers. We need an expert body which would facilitate that type of incremental process and allow new ideas to emerge without the type of defensiveness that tends to stem from our immediate economic conditions.

There is certainly no defensiveness on my part, even though I am part of the policy-making agenda. I am totally open to listening to the expertise in academia and science, but I am also charged with ensuring the economy stays on track and that there is sufficient money, for example, to pay all social welfare recipients. While broadly welcoming the heads of the Bill, Dr. Doran has pointed out that they do not include targets. The reality is that the "how to" questions we are posing can be just as effective as targets if we are all working to the same agenda. For instance, the Minister envisages a low-carbon objective for 2050 which would see zero omissions from energy generation. How feasible does Dr. Doran consider that to be? What is his view on the potential increase in the marginal cost of abatement measures for the end stages of the process to complete conversion? There is also a carbon-neutral objective in regard to agriculture. These laudable objectives are not called targets, but they signpost the direction in which everybody is trying to go.

Dr. Doran has observed that design is the first signal of human intention. We are charged with designing for living, the economy, sustainable development and so on. We put on all of these hats when we come to these meetings and listen to the experts. I take a great deal from their contributions. A previous delegate made the point that we should avoid the "ourselves alone" mindset on this issue, which might see us dissociating from the European Union. This is a small island and we cannot stand alone in seeking to effect change in this area. Does Dr. Doran envisage a situation in which Ireland has the capacity to go out in front on this issue? If it is possible for us to lead the way, we should do so. In fact, we are already recognised as being ahead of the posse in several respects, being among the top three countries in Europe on several indicators.

Dr. Doran's reference to the limits of capacity is very apt. How does he see us proceeding within the limited economic capacity in which we find ourselves? The incremental implementation approach being taken in the United Kingdom sounds like a good one. Has any work been undertaken in ascertaining the cost - day to day, month to month and year to year - of implementing a strategic and incremental approach in each sector? It seems that is how it should be done, but it is, as always, a case of "how to".

I tend to agree that there are many ways to reflect the long-term trajectory. The language the Minister has used - that is, "zero carbon" and "carbon-neutral" - might well be the way to reflect the ambitious 2050 objective if it is ultimately supported by figures for each of the sectors. It does need to be much clearer. We had a discussion earlier about understanding the role of the media and communications in the climate change agenda. Legislation has a communicative function also, especially where there is a headline objective which clearly shows there is a radical break with the past. Climate change is different in so far as our choices are already laid down by physics. As I said in my paper, we cannot negotiate with physics. It is about working with the envelope, working together in a pragmatic way which does not undermine our economic capacity. A clear headline objective in some form would be very useful. As I said, there is no reason any target or objective could not simply refer to existing European and upcoming UN objectives.

That task could easily be taken on board by the expert body, for example. One of the first things the climate change committee in the United Kingdom was asked to do was to advise on the long-term target in the context of the level of ambition required. In terms of what is possible, it is well known that all of the technologies we require to facilitate this transition are available. What we must do is begin to challenge some of the institutionalised obstacles and interests. One of the chief areas now beginning to be addressed by the G8 and the United Nations is fossil fuel subsidies. As long as the incentives in the industrial and economic system are pushing in the wrong direction, we are going to come up against obstacles. All of the technologies are available, but there are still perverse incentives which are hindering the transition. While the heads of the Bill reflect the long-term nature of the transition, it will be important to highlight the ultimate objective which will have to reflect an existing EU commitment to reducing emissions by between 80% and 95%. That ambition must be communicated very clearly to the various sectors and the public if we are to bring people along on this journey.

Will Dr. Doran outline his thoughts on what should be the composition of the expert advisory body? Will he also indicate his views on how we might start a national conversation on this matter? We must face the fact that climate change is not currently a priority for people.

If members look at the papers I submitted for distribution to them, they will see that I have provided information on the membership of the Committee on Climate Change in the United Kingdom. The committee is currently headed up by Mr. John Gummer, a former UK Secretary of State for the Environment, who has, since leaving government, become very active in multilateral environmental negotiations. He has a well earned reputation for being a champion of ambitious climate change objectives, both at home and within the international system. It is my experience, in the context of the UK system, that the people chosen to sit on the body should be defined by their expertise. In other words, they should be recognised experts among their peers and, ideally, have an international profile. They should understand the political system and not necessarily be individuals who have come out of that system. At least some of them should have academic backgrounds, but there will also be a need for people who have a grasp of the likely economic impact of recommendations made. That is also part of the profile of those who have become members of the UK Committee on Climate Change. Some of these individuals worked with the Stern commission.

The key word I would use in this matter is "leadership". What is needed is people who embody ambition and have the respect and trust of the various sectors involved. In the context of the point I made about constructing a circuit breaker to depoliticise, to some extent, some of the toing and froing between the sectors and the Government, I would avoid creating some kind of a stakeholder group. What is required is people with expertise and authority who have access to the very best international research and can present challenging scenarios to each of the sectors and invite them to respond to them. In that way, the sectors could explore the limits of their genuine capacity to contribute to the long-term targets.

Will the Deputy repeat her second question? I am having difficulty reading my own writing.

It was about starting a national conversation.

Yes. I have already alluded to the communicative role the legislation can play, especially if it contains some very clear language in respect of ambition. As part of this, there will be a need to provide an explanation of the massive opportunities and challenges to which this matter gives rise for any country. As part of the conversation on the economic and financial transition we are undergoing, we need to take cognisance of the ecological aspect. It is becoming clear in popular and academic discussions of the ecological problématique that climate change is but one of the issues involved. Climate change is perhaps a vanguard issue, but there are other issues and tipping points which we are going to be obliged to address.

It is clear that we are between stories. The latter are not just stories about the ending or the twilight of a certain industrial or technological model. We are between stories right across the board in the context of the challenge to our lifestyles and self-understanding and we must begin to explain the issue of climate change in that context. People refer to a new age called the Anthropocene in which human agency is the key determinant of geological change. This captures the imagination and is not necessarily a story of threat and sacrifice. It is also a transition to a story that invites us to look long and hard at the meaning of our existence and the limits of the values relating to consumerism. It is also a deeply moral and ethical story, not only as a result of our responsibility to adopt new lifestyles at home but also to meet our ethical obligation to those who, as a result of the problem of climate change, are facing much more immediate crises in terms of food and water security. When this matter is cast in these wider contexts, it grabs the imagination. There is a great deal of material which can be used to engage constituencies. As we have heard, younger people are already alive to the frameworks for presenting these issues.

Dr. Doran stated there might be a need for us to revisit the issue of subsidies. A case was brought before the European court on this matter. I presume our subsidies are based on fact.

On a global energy map the west coast of Ireland would be coloured orange, signifying it had high wind energy resources. There is also the issue of land-based versus sea-based wind energy resources. One could say the reason we subsidise wind energy production is that Ireland is obviously the best place in Europe to develop such resources and why would we not subsidise it? Dr. Doran has made the comment that we may have to look at this. What consideration do we need to give it or what would be the reason for looking at it?

The Senator has asked if we have the wherewithal to make the transition. I have pointed out that we are beginning to see some serious high level political attention being given to the issue of fossil fuel subsidies. I hope some of the money will be freed up with a view to investing in technologies that will put us on the road to the transition to clean energy, rather using than fossil fuels. The European Union spends the equivalent of the cost of three or four Greek bailouts every year on fossil fuel subsidies, shoring up the fossil fuel industry. A former executive secretary of the UNFCCC has pointed out that massive amounts of money are invested in the energy sector all the time. The energy portfolios are massive, numbering in the trillions of dollars. If this money is being spent, why would we not ensure we climate-proof these investments at every level within the international financial institutions, the European Union and our own jurisdiction?

I apologise for not being present for Dr. Doran's presentation. I had to attend another meeting.

I imagine that most of us who have been involved in these hearings, especially those on the political side, are not too far away from each other in our thinking, especially having heard the evidence. I met a large group at lunchtime and began to generate a discussion on the impact of climate change and the change in people's lifestyles and I was amazed that people switched off. They just wanted to deal with what was happening in their day to day lives.

It is too far into the future.

It is too far in the distance for them. We have moved on from focusing on the 2020 targets. I sense there was a better buy-in a year ago, even though our economic circumstances were worse then than they are now. As a member of a minor party, I am aware that we have always paid a penalty for being ahead of public opinion on various issues. My party is the bit party of the two and a bit party system. We have fought for people to have the right to remarry and for the legislation that went through today. I was struck, particularly because the group was large, by the lack of buy-in on this issue; even though the problem could be related to climate change, they just wanted to have it fixed. If we can get the foundations or model right in this Bill on which we can build, are we tying ourselves in a knot by focusing on the 2050 target and using specific language in terms of whether it should be a legal duty or a compelling action? These are the words used in the Dr. Doran's submission, while the Minister has used the words "low carbon" and "zero emissions" in respect of a different head of the Bill, but essentially they are talking about the same issue.

A specific consideration in the heads of the Bill relates to the transfer of an international agreement into the Bill when it is finished, which will include enforceability because penalties, be they fines or otherwise, will apply if the international targets set are not reached. We are living inside a bubble to a great extent and in the past four days of hearings we have spoken about a target in the case of every submission, for which some delegates were for and some were against. It is the be all and end all to have an emissions reduction target of 80% by 2050, if that is what it should be. It would be better for us at this stage to make sure we put in what is needed for the foundations. There is a sense of urgency about this, but we need to introduce the Bill, put it in the Statute Book and then build on it. Is there an over-emphasis on setting a target? It probably is more important to get the expert group right than to insert a target for 2050 because we will get it through the international agreement. We need to get the review periods right because they will all build up to the final equation. I would be interested to hear Dr. Doran's opinion on this aspect.

Before Dr. Doran replies, I wish to add my tuppence worth because of the tight time schedule. I was intrigued when he said a clearly defined relationship in terms of the expert body was just as important as targets. We have a very poor history of designing good institutional architecture. That may well be because we inherited architecture that we had not moulded ourselves. In that context, there may be a different set of circumstances here compared to other countries. How would Dr. Doran characterise climate change legislation that does not contain explicitly stated targets? Would it be fit for purpose? We sought but did not get the legal advice from the Attorney General on this issue. Some of us assume there is a concern that including targets would make the legislation justiciable, which is why there is some resistance to it. It might not be the only reason and I suspect it is not. A contributor in one of our earlier sessions last week referred to the UK model and said there were political, as opposed to legal, targets and that they were important as almost a means of including them, yet Dr. Doran spoke about the UK Act being aspirational. I would like to hear his comments on these points.

I will take that last point first. I have looked at some of the legal deliberations in the run-up to the adoption of the UK legislation and the consensus within the legal community which offered advice was that it was most unlikely that a court would consider, for example, a judicial review around the question of duties or targets, that they would be regarded as political and that the court would be most likely to defer to Parliament. That is one of the understandings of these targets, that they are really political tools that enhance the accountability of the Executive and the ability to scrutinise, especially in forums such as this. They are an instrument to enhance the scrutiny function rather than to haul the Minister before a court. That was the consensus and I have a number of quotes in the document-----

The Acting Chairman has made an important point and I wish to clarify the position. Dr. Doran used the words "most likely" and "consensus" in relation to whether the matter could go before the court. We have a Constitution and when the words "most likely" and "consensus" are used about a matter such as this, it usually ends up in the courts.

We are working to a very tight time schedule.

Yes, but that is an important point that should be made.

We have inherited the same courts system.

I will give an example from a leading authority in environmental law who contributed to the scrutiny stage of the UK legislation. He said parliament had become fond of imposing duties of a kind which, since they were of a general and indefinite character, were perhaps to be considered as political duties rather than as legal duties which a court could enforce. He also said many such duties might be found in statutes concerned with social services and nationalisation. He further said that only in the unlikely event of its total default would an authority be at risk of legal compulsion in respect of its general duties. Mr. Forsyth went on to consider the question of the duty on the Minister.

It would be useful if there were further pieces of information that informed the UK legislation that fitted into that category. Perhaps Dr. Doran might provide the information in writing? We are coming towards the conclusion of the meeting and the information is important.

There is an example in the submission about fuel poverty targets. Friends of the Earth attempted to take a judicial review because targets were included in the legislation and that was thrown out for much the same reason I outlined, that it was simply regarded as a support to an objective. Targets often include issues that are not in the immediate control of the Minister. The circumstances are not always within the gift of the Minister to control and the courts tend to recognise this in the event of there being challenges, or at least that is the view of the lawyers who contributed to the scrutiny.

We will draw the discussion to a close. I thank the delegates for their contribution.