Fintan O’Toole: Supreme Court calls time on government waffle

So, Fine Gael fans were thrilled to discover, from a widely circulated picture of a half-naked Richard Bruton, that the former minister for communications, climate action and environment is rather ripped. Well he sure is now. On Friday, he was ripped – to shreds. And those images of him in his briefs seemed to echo Hans Christian Andersen's story, The Emperor's New Clothes.

In that story, no one dares to acknowledge that the emperor has no clothes on until an innocent child blurts it out. In our story, the role of the child is played by the seven members of the Supreme Court who delivered what must be one of the most devastating and consequential judgments on the Irish governmental process ever made.

The judges (rightly) do not use these words, but what the ruling – delivered by Chief Justice Frank Clarke on an appeal taken by Friends of the Irish Environment – amounts to is that the National Mitigation Plan on which the State's Climate Action Plan (CAP), published by Bruton last year was built, is bogus. The CAP, in its own terms, "builds on the policy framework, measures and actions set out in the National Mitigation Plan, Project Ireland 2040 and the draft National Energy and Climate Plan." The first of these is the only one that had the force of law, but it has been found to be, in fact, unlawful.

The framework of public policy on what remains the most crucial issue facing Ireland and the rest of the world has been found to be nothing more than a piece of political performance art, a show with no substance.

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The National Mitigation Plan was put forward by Bruton’s predecessor Denis Naughten, but it was “a whole-of-Government Plan”, that formed the cornerstone of climate policy within the lifetime of the last administration. A “plan” trumpeted, not just by Bruton but by Leo Varadkar, Simon Coveney and all of the last government, is exposed as being no plan at all. It is so poor as to be actually illegal. If the Mitigation Plan was an end-of-term essay, the Supreme Court has marked it as a big fat F minus. The standard of work is so entirely unacceptable that the judges have torn it up and thrown it back in the author’s face.

‘Correct legal term’

This ruling, moreover, is not just about climate change policy, supremely important as that is. It is also a great moment for Irish democracy. It calls time on – and I think this is the correct legal term – bullshit. For at the core of the ruling is the argument that waffle isn’t just annoying or insulting. It is a denial of the right of citizens to understand and evaluate what their government claims to be doing. The court has not just made a scathing judgment – it has made a stand for our right to make our own informed judgments.

It may reasonably be asked what gives the Supreme Court the right to do this. Is this not a breach of the separation of powers? No – because what gave the court the right to tear up the State’s climate strategy is the Oireachtas. The Mitigation Plan is not just another policy document – it is a legal obligation, imposed by the Oireachtas when it passed the Climate Action and Low Carbon Development Act in 2015. It instructed the relevant minister, as a matter of law, to “specify the policy measures that, in the opinion of the government, would be required” to create a resilient, low-carbon economy by 2050.

The CAP, published in June 2019, was ballyhooed by Varadkar (“We need to act now. With the Climate Action Plan we know what needs to be done.”) and by Bruton (“My mission is to make Ireland a leader in this transformation, not a follower”).

But there were obvious reasons for scepticism. One was the Environmental Protection Agency’s projection of a 6 per cent increase from current emissions levels by 2030. Another was Fine Gael’s presentation, in talks on government formation, of climate action measures as reluctant concessions to the Greens from whom “rural Ireland” needed to be “protected”.

But the biggest disconnection between the claims and the reality was the vagueness inherent in so much of the 2017 plan. As the Supreme Court put it, the “overriding requirement of a [legally] compliant plan is that it specifies how that objective is to be achieved by 2050”. The word the judges dwelt on is the one in the legislation: “specify”.

Lack of democracy

The most cheering aspect of the ruling is that it zones in on the truth that a lack of specifics in government documents is also a lack of democracy. As the Chief Justice puts it: “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 [goal] 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.”

This is a fundamental statement about the relationship between government and citizens. What it says is that vagueness and posturing from our political leaders are more than the play-acting to which we have become inured. They prevent citizens from holding those leaders to account. If commitments are not specific, how can we know whether they have been kept or not? And if we don’t know that, the whole thing is a charade. The Supreme Court has issued a very simple instruction to government: stop posing, get real. It must.

This article was amended on August 4th, 2020