Apologies for the delay. This is the sixth and final delegate to come before the committee today. I welcome Dr. Roderic O'Gorman from the School of Law and Government on behalf of Dublin City University.

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

I thank the joint committee for extending the invitation to me to speak about this matter. As the Acting Chairman stated, my background is in law. I am a law lecturer, mainly specialising in European Union and Irish constitutional law at the School of Law and Government in Dublin City University. I am also chairperson of the Green Party in Ireland, but I am not speaking in that capacity today.

As the last speaker in this series of hearings, I will not say anything to members that they have not heard already. There will be nothing exciting or novel and I am sure with the long week members have had, they do not want to hear anything too dramatic at this stage. However, I will focus on certain elements of the legislation and look forward to members' questions on these issues.

In my submission, which I tried to keep as brief as possible, I focused on a number of areas. Specifically, I looked at the independence of the expert advisory body and made some suggestions on the way I believe we could strengthen its independence in its ability to publish its reports and ensure they are not tampered with, particularly if they are critical of the policy of the Government of the day.

I also tried to address some of the constitutional law implications. As I said, for all of us, dealing with the advice of the Attorney General is like shadow boxing because we do not know what the Attorney General has said to the Cabinet. Trying, therefore, to anticipate some of the areas that may have been of concern to the Attorney General is difficult, particularly the reason specific domestic targets were not enshrined in the legislation. I will speak, first, about whether it is constitutionally viable in the first place to have targets enshrined in Irish law.

Second, I will address some of the points on justiciability. According to anecdotal evidence, there were some concerns that if targets were included, they might be justiciable and that could open up the State to expensive litigation. Earlier in the week Mr. Conor Linehan spoke to the committee and made a detailed submission on potential concerns about constitutional property rights. My submission did not go into as much detail as his, as I considered he had covered everything. I am happy to talk about these property rights issues if anyone wants to raise any point.

In my submission I also spoke about my concerns about the lack of domestic targets, specifically for 2030 and 2050. The lack of domestic targets will, in many ways, both in the short and medium term, undermine the goal of achieving a low-carbon, climate-resilient, environmentally sustainable economy by 2050. I have highlighted not only the environmental problems but also the fact that by failing to have targets and plan adequately we risk leaving the economy woefully unprepared to make the transition to a low-carbon model.

These are the points I highlighted, but I look forward to taking questions on broad issues dealt with within the legislation.

I thank Dr. O'Gorman for attending. It is a little harder when a delegate appears after everyone else.

The Minister's approach is to set sectoral targets and comply with overall EU targets. Dr. O'Gorman is suggesting a very different approach in having clear national targets to bind everybody in. Does he believe it would be divvied out between the different sectors at that stage? The Government's proposed approach may change because these are only the draft heads of the Bill. What key issues need to be addressed? How would they be addressed in setting national targets and having a top-down approach by tying in the various sectors involved?

Dr. O'Gorman has argued that it is possible to set targets, but how does he think that can be changed? On the one hand, the Government states it cannot set these targets because it might lead to the Four Courts every day of the week, while, on the other, Dr. O'Gorman says that would not happen. How does he think we can turn this situation around?

Personally, we need targets if we want to mark where we are going, know what steps must be taken and how fast we must go. Do we need to run faster to catch up, to slow down or to change course? Perhaps Dr. O'Gorman might answer these points.

When the Deputy initially spoke about targets, he used the term "bind", a really tricky word. How binding are the targets? I see targets as something to aim at and achieve. One should look at how the various elements in the legislation are meant to operate. There is a national roadmap, as well as sectoral roadmaps. In addition, there is an annual review, a periodic review, the transitional statement, obligations on public bodies and the power to make regulations. All of these feed into head 4(1), which sets out the low-carbon goal.

The mechanisms for having a low-carbon economy and to review progress include the roadmap, regulations and the expert body's review mechanisms. I fail to see how the initial plan can be made if we do not know what the target is. I also fail to see how the expert body can review progress towards the achievement of a low-carbon economy if there is not some set figure that proves we are or are not on the way or are close to achieving it.

I accept that there is a figure for 2020, but I argue that we should have figures for 2030 and 2050 also. We should not leave it until the introduction of the EU targets, although I accept that they will come, but we do not know when. There is public consultation on the 2030 target. The European Commission is talking about bringing forward its draft proposal by the end of the year, but it could be a number of years before the 2030 target is reached. It is notionally a 40% cut. The 2050 target could be a considerable length of time away.

My concern is that the framework set out, which is reasonably good, cannot operate properly. It cannot show us the direction to get to this low-carbon economy if it does not know the end result. It means that in the medium term the whole framework will be operating blindly.

That covers the issue of targets. Does the committee wish me to respond to the constitutionality of the targets set?

Yes, please.

I will look at a number of current pieces of legislation that set targets as a legislative practice. A number of people have referenced the Fiscal Responsibility Act and there are also targets for achieving the debt and budgetary rules. We see this as a target because there is a contingency or provision that if these targets are not met, there is a correction mechanism. For example, the recently introduced gender quotas include a target set out in legislation, that is, 30% in the next general election and 40% subsequently. If the Government had wanted to, it could have stated parties must, compulsorily, have figures of 30% and 40%, but it went for a target and consequence approach instead. The consequence is a loss of funding if the target is not met.

Most usefully, section 47 of the Disability Act 2005 sets a target for public bodies to employ people with disabilities at a rate of 3%. That legislation was included in the Statute Book in 2005 and there have been annual reports on the moves made to achieve that target. It was only in 2011 - six years after the legislation was enacted - that it was finally achieved. The failure to achieve it did not result in the Government facing litigation during that time. However, the annual report showed that it was not just a case of ensuring people with disabilities were employed in public bodies; there was a goal to work towards and it has been achieved. I hope it will be achieved continuously. That indicates that there is no presumption against the use of targets in legislation in an Irish context.

Dr. O'Gorman referred to gender quotas and said there was a target and consequence approach.

Yes.

There are targets within the heads of Bills, but, to a great extent, it is a question of getting the foundations right. The 2030 target will be negotiated in 2015 and there will be a consequence as a result of those negotiations. Having listened to earlier evidence to the committee, we are still not clear on what will be counted. Will bogs be counted as a single entity? Will forestry or grasslands be counted? If we were to unilaterally set a target for 2030 prior to 2015, could we be at cross-purposes?

If we were to set a target that included the revitalisation of bogs, grasslands, grazing lands and forestry, but these were not counted in the overall negotiations in 2015, we could have major problems. Do we need to set these targets?

The 2005 Disability Act contained no consequences for non-achievement, apart from the embarrassment of having a report on it. The insertion of specific domestic targets into law would provide a goal for the apparatus of State and representatives of the key economic players. When the EU 2030 targets are negotiated, they will be transposed and introduced in a direct manner of application. They will then automatically be binding. If they are more stringent than the targets put in place by this Bill, they will apply. If they are less stringent, we will have a certain amount of wiggle room for a period. I do not see how allowing the apparatus of State to start to plan for a target in that range would be a bad development. When one examines the scope of change required in the economy to get to the 80% target in 2050, it will be one of the most massive shifts we will have ever seen. When one is about to engage in such a massive shift, I cannot understand why one would not decide not to start planning towards that shift now.

I do not think Dr. O’Gorman answered the question. If we were to set a 2030 target, should the State include in it forestry, grasslands, bog revitalisation and the deposit of carbon in the Kinsale gas field? If the parameters are not in place in terms of what one is counting, what does the target mean?

If one refers back to the last example of targets in the Climate Change Response Bill 2010, which contained a 40% cut, I am not sure if one needs to be specific at this stage. It is more about getting the economy to a position where it will be aiming in a particular direction and that is reflected in public policy such as this.

We have a goal to work towards for 2020, which will be quite difficult. The Government must ensure it hits this target with all of the parameters included. Many have pointed out that the 2030 targets are so vague because we have not got the 2015 negotiations sorted. Forestry should have been included in our 2020 target and it was not.

I agree with the Deputy that it is essential we meet the 2020 target. I am also concerned with the difficulty in achieving the 2050 target. What we do to achieve the 2020 target will involve the low-hanging fruit, while achieving the 2050 target will require a large-scale shift in the economy. My concern is that by not having a specific target for 2050, we will not have a step-by-step piecemeal approach. Such an approach does not allow us to plan for the scale of the jump we will need to make to get to the target for 2050. Some of the EU documents being circulated are talking about higher figures.

There is a very vexed question around targets and how they are managed. What is Dr. O’Gorman’s view of the proposed composition of the expert advisory group? Does he believe it will have sufficient independence? There has been an emerging theme that the Department of the Environment, Community and Local Government might not be the most appropriate Department to do this work. Some have suggested that the Department of Communications, Energy and Natural Resources or the Department of the Taoiseach should do it.

I know Dr. O’Gorman is chairman of the Green Party, which was very much involved in the last climate change Bill. Does he have any information on how one actually reaches the targets once they are set and what it is going to cost in each sector? When one recommends what should be done, the science of how one does it would be a good starting place.

On the independence of the advisory committee, how does one actually define “independent”? When an academic is charged with preparing a paper on his or her specialty, he or she is bound through peer reviews and international comparisons to ensure it reaches the highest and best scientific standards available. One must also ensure the best science is available on the economic front.

Obviously, we would love to have some recommendations, although I suppose one could not look for them. If I were an academic charged with doing this, I would ensure my best paper was put forward, recommend the best possible methodology and say this was how we should be doing it. If I were a politician charged with cutting my cloth according to size, I would have to find out where I was going to get the money for it. How would Dr. O'Gorman advise me to do this?

I have a few questions. The last witness talked about the institutional architecture being just as important as the targets. I can see that it is critically important to have a rock-solid, independent expert advisory group because it will come forward with the science. That is what drives it. I am interested in hearing what Dr. O'Gorman has to say on this. Clearly, he is saying it must be independent; we are on the same page on that point.

On why there is resistance to targets, the agriculture sector will exceed them and it will be a challenge for us to make them up with the other sectors involved. We heard one of the delegates talking about the shock to the agriculture sector, which is an important one in rebuilding the economy. Will Dr. O'Gorman address that issue? Will he also address the concern about targets being justiciable and how that issue has been handled in other countries?

With regard to Senator Cáit Keane's first question on specific targets for various sectors, I cannot speak to it this afternoon. I would want to have done significantly more work before I could speak to it. As I did not prepare to deal with that area, I do not want to pretend to have a level of knowledge of it. It links with the question on the shock to the agriculture sector. As I said before, the scale of what we must do is huge and if one must carry out an enormous task, the way I understand it is that one plans as quickly as possible to move towards that target. My worry is that by failing to know what the final destination is in respect of a specific figure at this point, we might minimise the changes we need to make in each sector now. That means that when we finally do know what the 2050 targets are from the European Union, it is then, maybe ten years from now, that the agriculture system will have to undergo an even greater shock than it would have had to if we had been planning for that target from this point. That would involve an even greater degree of hardship for the agriculture, transport and energy sectors, etc. I do not underestimate the scale of the difficulty and do not blame sectors for being nervous about this, but we must understand this is happening. The European Union will implement targets that Ireland and all other member states will have to meet and the sooner we start planning and get the various sectors prepared for this, the better prepared they will be in the long run.

Most of the other questions relate to the issue of independence. Quite a number of other contributors mentioned the Fiscal Advisory Council which has been created under the Fiscal Responsibility Act as a potential model of an independent institution with a very important reporting function. If one looks at section 8(1) of the Act, it states, "The Fiscal Council shall be independent in the performance of its functions". That is a clear declaration within the legislation that the members of the council will be independent in what they do. Something similar should be inserted in this legislation. I say this because, as the committee identified, there are eight members of the expert advisory group. There is a chairman; four people sit on it because of their other positions and up to three others have been independently appointed. Without in any way trying to cast aspersions on the four, they represent very important organisations, but all of them are vested in a particular part of the apparatus of State. It is important for the legislation to ensure that when they sit as part of the expert advisory body, they are not necessarily bringing the specific concerns of the EPA, Teagasc or the SEAI but are coming to it on a purely independent basis. In the earlier draft Bill dating from 2010, only two obligatory seats were filled. There are arguments on both sides. Having only four totally independent members on the panel may limit the scope of the Government to pick really good individuals. Nevertheless, the sectors filling the four obligatory spaces are important. I would, however, have a small concern about the ability of the Government to identify the strongest people available.

On the points I made about reporting, that is really crucial. Again, I refer back to the Fiscal Responsibility Act, of which section 8(5) states that after the Fiscal Council gives its report to the Government on compliance with balanced budget rules, it must be published. Under the proposed heads, permission must be sought for publication and publication will be in such manner as the Government determines. When one looks back at the scandals in the health service or the abuse scandals, one can see we have had a problem in this country in speaking truth to power. If we believe the move to tackle climate change is serious, it is vital that this institution be given the freest rein to ensure the best scientific advice and analysis of the moves taken by the Government in each annual or seven-year period are disseminated to the public. Again, we have obligations under the Aarhus Convention, which speaks to the ideal in terms of access to environmental information. I doubt the Government would suppress a report it did not like, but it would be a catastrophe if it were to delete a paragraph here and there. We need to see the legislation strengthened in that area.

In respect of the targets being justiciable, in my research I focus more on Ireland because that is probably the best area at which to look. There was a provision in the Climate Change Response Bill 2010 that was seen as a guarantee of the non-justiciability of targets. I know that this provision was criticised at the time and many felt it went too far. My view is that I would rather see something like this in the Bill and genuine domestic targets rather than the lack of such targets. If we must ensure the non-justiciability of targets, we could include something like section 3(2) of the Climate Change Response Bill which states:

The emissions reduction targets specified in section 4 shall not be justiciable and no proceedings shall be brought in respect of a contravention of a national plan other than a contravention consisting of a failure by a Minister of the Government to comply with subsection (16) of section 5 or a failure by a public body to comply with subsection (1) or (4) of section 11.

That is an important option that is available. It is important that this section did not exclude justiciability in a situation where a Minister or a public body directly contravened the obligation to have regard to national plans.

It does not completely insulate a Minister from challenge, but it does insulate where there is a failure to reach the targets. If it was necessary for something like that to be included in the Bill, I would include it but with specific domestic targets included. This could definitely be located in the Department of the Taoiseach. The European Union has consolidated climate change issues in a new Directorate General, with a specific Commissioner in that area. Therefore, another model would be to take the legal elements of climate change from the Department of the Environment, Community and Local Government and combine them with elements of transport, energy and other areas in a specific Department with responsibility for climate change.

I thank Dr. O'Gorman. That concludes today's session and the public hearings. We have heard from more than 30 sets of delegates over three fairly long days, the sunniest of the year.

We are not bitter.

No.

The Seanad will do it for someone.

Perhaps that is a good omen in starting on the path of putting the legislation together. I thank Dr. O'Gorman for his contribution.