(“the obscure by the more obscure”)

If “bullshit” was a proper legal concept, it would have been used liberally in the latest Supreme Court judgment, and one can only imagine that the actual word was used in discussions between the learned judges before Chief Justice Clarke delivered the unanimous judgment.

The judgment was Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, and the item under consideration was that bureaucratic befuddlement known as the “National Mitigation Plan” (NMP), which contains the even more obtuse “Climate Action Plan”.

The Separation of Powers

Let’s get one technicality out of the way. The NMP is clearly a policy document, and the Separation of Powers doctrine says that the courts are prohibited from interfering with, or overruling, executive policy. Indeed, this was one of the reasons that the appellant, FIE, lost in the High Court.

The Supreme Court made short shrift of that argument, pointing out that the NMP was more than a simple policy document, it was actually created on the orders of the Climate Action and Low Carbon Development Act of 2015.  This Act instructed the relevant minister to “specify the policy measures that, in the opinion of the government, would be required” to create a resilient, low-carbon economy by 2050. In other words, policy became law.

(paragraph numbers refer to the original (unapproved) judgment)

“6.24 There may be an issue as to whether there are any areas which are truly completely outside the scope of judicial review on the grounds of a barrier, based on respect for the separation of powers, on the remit of the courts to review policy. But it does not seem to me that such questions properly arise in the circumstances of this case. If the government of the day were to announce that, as a matter of policy, it was going to publish, after public consultation, a plan designed to achieve precisely that which is defined in the 2015 Act as the NTO and then publish a plan which arguably failed to do what it was said it should do, then such questions might well arise. However, the position here is that there is legislation.

 

6.25 Most legislation has some policy behind it. It is likely to have been the policy of the government which was in power at the time when the legislation was enacted that legislation of the type in question should be promoted. Indeed, in the context of issues concerning whether there has been an impermissible delegation by the Oireachtas of the power to legislate, courts regularly have to consider whether legislation indicates the “principles and policies” by reference to which secondary law-making power can be exercised (see Cityview Press v. An Chomhairle Oiliúna (1980) IR 381). It may have been the policy of a particular government to introduce the legislation in question but once that legislation is passed it then become law and not policy.”

…

6.27 In that context, it does have to be acknowledged that some elements of the legislation simply require the Government to adopt a policy designed to the statutory end. For example, the legislation does not require any particular view to be taken as to which sectors are to contribute in which amounts to the reduction of carbon emissions. The legislation leaves it to the government of the day to make those policy choices. It is possible, therefore, that there may be elements of a compliant plan under the 2015 Act which may not truly be justiciable. However, it does seem to me to be absolutely clear that, where the legislation requires that a plan formulated under its provisions does certain things, then the law requires that a plan complies with those obligations and the question of whether a plan actually does comply with the statute in such regard is a matter of law rather than a matter of policy. It becomes a matter of law because the Oireachtas has chosen to legislate for at least some aspects of a compliant plan while leaving other elements up to policy decisions by the government of the day. It seems to me that the requirements of s.4, as to what a plan must specify, come within a category of statutory obligation which is clearly law rather than policy. Whether a plan complies, for example, with the obligation that it be specific as to how the NTO is to be achieved is, in my view, clearly a matter of law. The choices as to how the NTO might be achieved may well be policy choices and real questions might arise at to the extent to which those choices might be justiciable. However, whether the Plan does what it says on the statutory tin is a matter of law and clearly justiciable.”

 

⚖️    ✍🏻   ⚖️

This is a long judgment dealing with a number of complex legal arguments, but in the opinion of this author, the Supreme Court made a fundamentally important finding which echoes what a lot of people, this blog included, have been saying for a long time.

An attack on democracy

This concerns the lack of proper consultation, as would be expected in a country claiming to be a democracy. Yes, there was a call for submissions, and yes, these were made by various interested parties. Whether these submissions were actually considered by the drafters of the policy, given that the policy was already drafted before submissions were invited, is doubtful. But that is just the tip of the iceberg. The major criticism is that the NMP used language so obtuse and impenetrable, that the average citizen would not have a hope of understanding it, and therefore was never given the opportunity of properly engaging with the merits of the policy.

The NMP was not the first example of this undermining of democratic principles. The previous decade is littered with such examples of a bullyboy government foisting its policies onto the public with scant regard for public consultation and consideration of alternative viewpoints. The Supreme Court makes it clear that this practice is a direct attack on democratic governance:

“6.35 While there may be some merit in the suggestion that the document inquestion does provide greater detail in some areas, it must also be emphasised that it is not a plan in the sense in which that term is used in the 2015 Act. It has not been, for example, through the public consultation process which the 2015 Act mandates. While it may provide some level of transparency about the Government’s thinking as of 2019, it does not do so in the very formal way which the 2015 Act mandates. Whatever level of clarity is required by that Act about government policy to achieve the NTO by 2050, it must be provided in a formal plan adopted in accordance with the public participation measures set out in the 2015 Act.

 

6.36 More importantly, the real question at issue is as to whether the Plan itself gives any real or sufficient detail as to how it is intended to achieve the NTO. In that regard a number of factors must be taken in to account.

 

6.37 First it is necessary to reach some overall conclusion as to the level of specificity which the Act requires. It seems to me that the starting point for a consideration of that question must be to consider the purpose of the 2015 Act as a whole. The public participation element of that purpose is, of course, met by the public consultation process set out in section 4(8). But it is to the transparency element of the purpose of the legislation as a whole that the specificity mandated by s.4 is directed. The purpose of requiring the Plan to be specific is to allow any interested member of the public to know enough about how the Government currently intends to meet the NTO by 2050 so as to inform the views of the reasonable and interested member of the public as to whether that policy is considered to be effective and appropriate.

 

6.38 What the public thinks of any plan and what the public might do about it if they do not like a plan is a matter for the public to consider. But the 2015 Act requires that the public have sufficient information from the Plan to enable them to reach such conclusions as they wish. On that basis, it seems to me that the level of specificity required of a compliant plan is that it is sufficient to allow a reasonable and interested member of the public to know how the government of the day intends to meet the NTO so as, in turn, to allow such members of the public as may be interested to act in whatever way, political or otherwise, that they consider appropriate in the light of that policy.”

…

“6.43 Finally, it is necessary to look at the kind of policies which the Plan suggests need to be followed in order to meet the NTO. Having considered what the Plan says it does seem to me to be reasonable to characterise significant parts of the policies as being excessively vague or aspirational.”  (my emphasis – that word “bullshit” again springs to mind.)

 

“6.45 I accept that the legislation clearly contemplates that knowledge will evolve and that the detail of the Plan will become more fixed as time moves on. However, that does not seem to me to prevent there being a clear present statutory obligation on the Government, in formulating a plan, to at least give some realistic level of detail about how it is intended to meet the NTO.” (my emphasis)

The factual finding of this judgment is that the NMP predicts an increase in greenhouse gas emissions where the Act stipulated that there should be a decrease in these emissions. In other words, the NMP was in direct contravention of the Act and was therefore ultra vires.

However, this judgment is so much more than that. It is a scathing indictment of the process of government in this country, where the executive regards the general public as little more than ignorant fools who must be told what to do. That needs to change, and quickly.

(My thanks, and apologies, to Bill Watterson).