Introduction

This Commentary has been prompted by the Minister for Environment, Community and Local Government, Phil Hogan’s (TD) publication of the Government’s draft Climate Action and Low Carbon Development Bill 2013. The ‘Draft Heads’ of the Bill have attracted criticism for having departed from the ambition and approaches taken in several earlier draft climate change Bills published since 2007, notably in dropping headline greenhouse gas emissions reductions targets covering the period up to and including 2050. The Draft Heads also indicate that the Minister and his Department have decided on a radical departure from the innovative design and ambition of the UK Climate Change Act 2008, which is widely regarded as a world leading approach to placing evidence-based climate change targets on a statutory footing. Minister Hogan has attempted to justify this departure by suggesting that British and Irish emissions profiles cannot be compared, notably Ireland’s emissions from the dairy and the agri-food sectors. This commentary makes clear that the innovative design elements in the British legislation are not driven by the emissions profile but by an underlying political intention to demonstrate leadership and send a clear political signal to the business community and the multilateral negotiation process. In the words of William McDonough, “design is the first signal of intention.”

The UK Climate Change Act 2008

The central pillars of the UK Climate Change Act 2008 are legally-binding and evidence/science based targets for reducing emissions of GHGs by 2020 and 2050. The targets correspond with climate science and international and EU commitments, and a series of five-yearly carbon budgets which set maximum UK emissions that are intended to set the UK on a trajectory to meet the 2020 and 2050 targets. A key innovation is the creation of the independent Climate Change Committee (CCC) set up to advise the UK Government and to monitor its progress. The Committee, convened ahead of the implementing legislation, also played an important role in advising the UK Government on the headline 2050 target and carbon budgets, thus removing these sensitive considerations from the influences of day-to-day political decision-making and the influence of special pleading by sectors likely to be impacted by the mid- and long-term emissions pathways. The CCC has also provided detailed responses to the UK Government’s plan for low carbon development, recommending that the UK will require a ‘step change’ in the pace of UK emissions reduction if it is to meet its carbon budgets. Given the nature of the Irish political system, this design element – which has provided a circuit breaker that interrupts undue political pressures that might compromise a rigorous regulatory response based on sound science – is especially applicable here.

As ClientEarth has noted:

By putting a long-term framework into legislation the UK Act can help to overcome the tendency of political and electoral systems to favour short-term approaches. In the UK, specific concerns had been identified where political targets for emissions reductions were not carried through in subsequent action and policy.

Climate change implies unique – long-range & transformative – temporal horizons. The can only be institutionalized through the cultivation of a strong cross-party consensus, shored up by a vibrant civil society and innovative business and investment community.

The UK Act has addressed a concern among NGOs and politicians themselves that certain science-led decisions and some of the implications arising from the need for an economic or industrial transformation arising from climate change be devolved somewhat to a committee of respected expert advisors, while shoring up the role of the legislature in holding the Executive to account. The Act has also begun to address a key business concern insofar as it establishes certainty in relation to climate policy and a legal framework (carbon budgets) that will match long-term investment horizons in new energy infrastructure and energy-intensive industries.

ClientEarth said: “The statutory carbon budgets are the key policy innovation of the Act. Setting the budgets will trigger a chain of actions required of the government including putting forward policies and proposals to meet the budgets. The CCC advises and monitors progress and parliament scrutinises the implementation of the Act.” The core philosophy of the Act, pointing to the intention, is that a built-in series of duties, actions and reports will create the transparency, accountability and political pressure necessary to achieve the purpose of the legislation. ClientEarth notes that the UK has adopted this approach in preference to an enforcement mechanism, and bearing in mind that opportunities for enforcing legal targets and duties through judicial review are very limited.

The ambitious targets and carbon budgets that are a feature of the UK Climate Change Act 2008 are inseparable from the overall intention and design of the UK legislation. This kind of approach would represent a step change in the penetration of climate change policy making within the Irish political system, at all levels. The overall design, including headline targets, an expert-led response to climate science, and a central role for a fully briefed legislature in shoring up the accountability of the Executive, creates momentum and cultivates environmental integrity for a process where targets come to be regarded as allies in driving the process rather than a threat.

The Irish Government’s More Elusive Approach

Arguably, the important difference between the Irish and UK approaches is to be found in their contrasting attitudes to a readiness to face up to the immediate policy implications of a severely climate-constrained mid-century and the opportunity to design legislation that will facilitate a predictable pathway to 2050.

There is a working assumption that the Minister and his Department have resiled from a more ambitious approach to legislative design and targets because they wish to avoid being locked into commitments that may not be deliverable or are not supported by current ‘how to’ (NESC 2013) capacity. It has been reported that the Attorney General’s office is concerned that the inclusion of headline targets in the Bill will result in the Government or a future administration “being hauled into Court”. This has been taken to support a view that legal issues surrounding targets and the question of their justiciability have become a key concern for the Minister and his advisors. This assumption is disputed by the Department of Environment, Community and Local Government.

An alternative approach to targets is to regard them as active components or players in driving levels of ambition and innovation by sending clear long-term signals to relevant stakeholders, notably those engaged in day-to-day investment decisions and technological development. This is more akin to the UK approach and helps to explain both the overall design of the UK Climate Change Act 2008 and the considered attitude to long-term target setting. For the UK, the integrity and legitimacy of the ambitious 2050 target, for example, is integral to the design and overall political intention of the legislation. The target is substantive insofar as it is science-based, it is dynamic insofar as it is intended to stimulate the necessary and incremental policy interventions required to set the UK on an adequate low carbon pathway, and it has a powerful symbolic function for both the domestic constituencies and the international community where the UK seeks to play a leadership role in supporting a long-range multilateral agreement.

The contention that legal issues raised by the incorporation of headline targets have become a key consideration must also include a recognition that the decision is ultimately a political one, based on the Government’s calculation that ambitious long-range targets similar to those adopted in the UK legislation are unrealistic and/or have little merit in local circumstances where the national emissions profile, notably in the dairy/agricultural sector, are unusually challenging. Such a calculation implies a certain technocratic, or passive, understanding of the role of targets, deeming them little more than something akin to benchmarks for ‘end of term’ reports to be scrutinized by opposition parties and elements of a potentially litigious civil society. In this approach there is a tendency to lose sight of the unique character and scale of climate change as a threat. As we explain below, there is little reason to believe that legislation based on the UK model will lead to Judicial Review when it comes to the core general duty of a minister.

Legality of Targets

The question of enforceability of aspects of the UK Act has been the subject of some debate. ClientEarth points to the fact that the opportunities for enforcing legislation through the courts are very limited in the UK. In theory, the targets and carbon budgets are legally binding and the government could be challenged if it failed to meet them. In practice, judicial review in the UK is generally restricted to challenges related to procedural issues in this kind of case, and recent case law confirms that such a challenge is likely to have little chance of success.

Professor Christopher Forsyth raised a number of questions about the likely attitude of the courts should Judicial Review proceedings be pursued in this context. Noting that clause 1(1) of the UK Bill imposes a general duty upon the Secretary of State to ensure that the net UK carbon account for the year 2050 meets the baseline target (-80%), Forsyth observed that there is no indication that the duty is owed to any particular individual or class of individual or body or class of body. Such duties, notwithstanding their appearance in statutes, should be seen as imposing ‘political’ and not ‘legal duties’.

In his written evidence to the Joint Committee on the Draft UK Climate Change Bill, William Wilson responded on behalf of environmental lawyers who were asked to comment on whether the long-term target-based duty in clauses 1(1) and 2(1) were novel from a constitutional perspective, and to consider whether there were other similar examples on the statute book. He noted that the duties in the Bill were very wide ranging and would affect many sectors of the economy, and in that sense they were new. But it was certainly not unknown for binding targets to be agreed, particularly at the European level, and then applied by a variety of different means in national environmental laws. He cited the examples of the Water Framework Directive 2000/60/EC (Article 4) that requires that inland and coastal waters in the European Union achieve “good status” by 2015. Other examples include the Fourth Air Quality Daughter Directive 2004/107/EC, the UK Environment Act 1995, and the Landfill Directive 1999/31/EC.

Forsyth’s comments to the Joint Committee are consistent with a position set out by Mark Elliott in the publication, Parliamentary Brief (March, 2010). Noting the increasing regularity with which legislation is enacted that imposes targets on government ministers, Elliott describes the “aspirational” nature of such legislation where it lays down requirements that are largely unenforceable in a legal sense.

On clause 1(1) of the Climate Change Act 2008, Elliott cites Rodney Austin, also writing in Parliamentary Brief (2007), that where an issue of immense complexity is at stake, with wide scope for political judgment, the courts would be likely to regard ministerial decisions in such an area as either non-justiciable or as ones to which courts should pay substantial deference. Elliott believes that courts are rightly unwilling to second-guess ministerial decisions with consequences for the allocation of scarce resources, given that the immense array of interlocking issues raised by such decisions make their assessment by means of the forensic process inappropriate.

Conclusion

There has been much speculation around the reasons for the Minister’s decision to drop explicit science-based targets in the range adopted in the UK legislation (80%) and recommended by the European Council (80-95%) by 2050 on the basis of research produced by the Intergovernmental Panel on Climate Change (IPCC). At the outset it is important to note that the decision to drop ambitious headline targets is inseparable from the Minister’s equally significant decision to depart from the overall intention and design of the UK legislation, notably the establishment of an independent Climate Change Committee and a series of automatic triggers for on-going analysis, reporting and iteration of carbon budgets and policy adjustments.

Reported fears within the Department of the Environment, Community and Local Government regarding the risk of being locked into the delivery of a legally binding duty that could prove to be undeliverable, have been overstated. During the scrutiny hearings in the run-up to the adoption of the UK Climate Change Act 2008 such fears, with regard to the core duty on the Secretary of State “to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”, were authoritatively dismissed. It was concluded that the overall design of the UK legislation, with “aspirational” dimensions, would be to strengthen the hand of parliamentary scrutiny. On the general duty it was largely agreed that the courts would defer to parliament in the event of a Judicial Review. Moreover, the prospect of litigation has been minimized by building in opportunities to review targets, subject to prescribed criteria.

Note:

The UK Climate Act 2008 already applies to part of the territory of the island of Ireland (Northern Ireland). The devolved Northern Ireland Assembly may soon be invited to consider regional targets linked to the design and ambition of the UK Climate Act 2008.

Sources:

Client Earth, 2009, The UK Climate Change Act 2008 – Lessons for national climate laws: An independent review by ClientEarth. London: ClientEarth. Available at: www.clientearth.org/reports/climate-and-energy-lessons-from-the-climate-change-act.pdf

White, Victoria, 2012, ‘We need to put the Climate Bill back on agenda before it is too late’, The Irish Examiner, 13 December, p. 6.

Christopher Forsyth, Professor of Public Law and Private International Law, Faculty of Law, University of Cambridge. The net UK carbon account for the year 2050 was later revised upwards to 80% lower than the 1990 baseline on the advice of the UCC. See oral and written evidence, Joint Committee on Draft Climate Change Bill, House of Commons, Session 2006-2007. Available at: www.publications.parliament.uk/pa/jt/jtclimate.htm

Written Evidence by William Wilson (CCB 94), Supplementary memorandum to the Joint Committee on the Draft Climate Change Bill (Written Evidence), May 2007.

Elliott, Mark, 2010, ‘Let’s kid the people that we can turn a promise into law’, in Parliamentary Brief, March.

Dr Peter Doran is a Lecturer in Environmental Law and Sustainable Development at the School of Law, Queens University Belfast. He is also a senior editor and writer for the International Institute for Sustainable Development’s Earth Negotiations Bulletin and, in this capacity, has worked as a consultant to a range of UN convention secretariats including the United Nations Framework Convention on Climate Change.

This Commentary is an abbreviated version of a Briefing submitted to the Dáil Committee on Climate Change, and was commissioned by Ceartas (Irish Lawyers for Human Rights). Full submission available at: www.ceartaslaw.org/blog/entry/submission-on-ireland-s-carbon-targets.html.

Doran’s oral evidence to the Oireacthas Joint Committee is available at: www.ceartaslaw.org/blog/entry/submission-on-ireland-s-carbon-targets.html