Conway v Ireland, the Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 February 2017
• Neutral Citation: [2017] IESC 13
• Court: Supreme Court
• Docket Number: [Appeal No: 374/2010],No. 1017 [S.C. No. 374 of 2010]
• Date: 24 February 2017

Between/

John Conway

Applicant/Appellant

and

Ireland, the Attorney General

and

the National Roads Authority

Respondents

[2017] IESC 13

[Appeal No: 374/2010]

THE SUPREME COURT

Legal aid – Aarhus Convention – Public Participation Directives – Appellant seeking a direction that the first and second respondents make provision for the payment to him of the legal expenses which he will incur in pursuing this appeal – Whether the provisions of the Aarhus Convention or the requirements of EU implementing measures were engaged

Facts: The appellant, Mr Conway, applied to the Supreme Court seeking a direction that the first and second respondents (the State) make provision for the payment to him of the legal expenses which he will incur in pursuing this appeal. In substance Mr Conway sought an order requiring the State to provide him with legal aid for this appeal. His argument was that the Aarhus Convention (Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters of 25 June 1998) and/or certain measures of European Union law which have been adopted for the purposes of the Union complying with its obligations as a subscribing party to the Aarhus Convention, entitle him to such an order.

Held by Clarke J that Mr Conway was not entitled to such an order. Clarke J held that neither the provisions of the Aarhus Convention itself nor the requirements of EU implementing measures were engaged having regard to the particular nature of the most unusual claim which Mr Conway sought to pursue in these proceedings and on this appeal. In coming to that view Clarke J was persuaded by the argument put forward by counsel for the State. However, Clarke J noted that counsel also argued that, precisely because important and potentially difficult issues might be raised in regard to legal aid in the context of a case where the Aarhus Convention and its European Union implementing measures were undoubtedly engaged, it would be inappropriate to deal with those complex questions in a case where they did not arise.

Clarke J held that that, precisely because of the importance and difficulty of those issues and the potential need of the State to consider its response in the context of a case in which the Aarhus Convention or the Public Participation Directives were engaged, it would be inappropriate to address those issues in the circumstances of this case.

Motion dismissed.

Judgment of Mr. Justice Clarke delivered the 24th February, 2017.

1. Introduction

1.1 The full impact of the consequences of the ratification of the Aarhus Convention by a large number of states and by the European Union itself has, perhaps, not yet become fully clear. One of the broad objectives of that Convention (Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters of 25 June 1998) was to provide wider access to justice in the context of environmental issues. However, the precise manner in which aspects of the legal systems of subscribing states are required to be adjusted in order to meet the obligations undertaken in the Aarhus Convention has not yet been fully worked out.

1.2 At one level, and on one view, the application currently before this Court raises a whole range of extremely important and potentially difficult issues. The applicant/appellant ('Mr. Conway') has, in the context of this appeal, brought an application seeking a direction that the first and second named respondents ('the State') make provision for the payment to him of the legal expenses which he will incur in pursuing this appeal. In substance Mr. Conway seeks an order requiring the State to provide him with legal aid for this appeal. His argument is that the Aarhus Convention and/or certain measures of European Union law which have been adopted for the purposes of the Union complying with its obligations as a subscribing party to the Aarhus Convention, entitle him to such an order.

1.3 I have ultimately concluded that Mr. Conway is not entitled to such an order. My reason for reaching that conclusion is that neither the provisions of the Aarhus Convention itself nor the requirements of EU implementing measures are engaged having regard to the particular nature of the most unusual claim which Mr. Conway seeks to pursue in these proceedings and on this appeal. In coming to that view I am persuaded by the argument put forward by counsel for the State. However, counsel also argued that, precisely because important and potentially difficult issues might be raised in regard to legal aid in the context of a case where the Aarhus Convention and its European Union implementing measures were undoubtedly engaged, it would be inappropriate to deal with those complex questions in a case where they did not arise.

1.4 In that context, and perhaps unusually, it seems to me to be important to start by setting out the issues which would undoubtedly arise in a case which fell squarely within the parameters of the Aarhus Convention and the relevant implementing directives. I, therefore, turn to those issues.

2. Ireland and Aarhus

(a) The Constitution

2.1 It seems to me that the appropriate starting point must be the Constitution. Article. 29.6 of the Constitution provides that ' No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas'. This provision is clear in its terms and has been consistently applied in a series of cases at least since In Re O Láidhléis [1960] I.R. 93. Indeed, it may well be that the provisions of Article 29.6 are part of the general arrangements which confer the exclusive law making power of the State on the Oireachtas (subject only to the special provisions deriving from Ireland's membership of the European Union).

2.2 The power of making foreign policy (as part of the Executive function of the State in relation to external relations) is, of course, vested in the Executive or Government (see Articles 28 and 29). To allow the Government to change the domestic law of the State by means of an international treaty would, in effect, be to permit the Government to legislate by the backdoor without reference to the Oireachtas. While the separation of powers between the Government and the Oireachtas has, perhaps, been less explored in Irish constitutional litigation than the separation of powers between the courts, on the one hand, and the Government or the Oireachtas, on the other, nonetheless the division of responsibilities between Government and Oireachtas in the particular way in which that division is specified in the Irish Constitution forms an important part of the Irish constitutional architecture.

2.3 It follows that there can be no doubt but that, as a matter of Irish constitutional law, the Aarhus Convention cannot, save to the extent that it may be 'determined by the Oireachtas,' become part of Irish domestic law. While the constitutional architecture in other jurisdictions may differ, that aspect of the position in Irish constitutional law is at least clear. In fairness counsel for Mr. Conway did not argue otherwise. There would not have been any legitimate basis on which counsel could have so argued.

2.4 However, that is not an end to the matter. As noted earlier, the European Union is itself a subscribing party to the Aarhus Convention. Furthermore, the European Union has adopted measures designed to ensure that, within the ambit of Union law, the obligations which it undertook by subscribing to the Aarhus Convention are met. It is on that basis that counsel argued that obligations arising under the Aarhus Convention or under the relevant implementing measures at EU level (being Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, and the more recent codified Directive 2011/92/EU, ('the Public Participation Directives' or 'the Directives')) form part of Irish law. While there may, as counsel acknowledged, be some legitimate debate about the precise extent to which the Aarhus Convention itself can be said to apply in Irish domestic law, the fact that the EU is itself a subscriber to the Convention and that the EU has adopted measures designed to implement the Convention in its laws means that, at least in that indirect way, the Aarhus Convention has some application in Ireland.

2.5 However, it is important to emphasise that, in so saying, it needs to be recognised that it is insufficient in Ireland simply to mount a claim based on an alleged breach of the Aarhus Convention. It is necessary to demonstrate that a relevant provision of the Aarhus Convention is material either because it has the potential to be directly effective itself as a matter of European Union law, because the Convention may be relevant in interpreting measures of the European institutions designed to give effect to its provisions or because it is said that, in some other way, Union law requires the application of the Convention in Ireland. A simple claim based on an allegation of a breach of the Aarhus Convention must necessarily fail as a matter of Irish law. A claim that a relevant provision of the Aarhus Convention may be applicable or influence the proper interpretation or application in Ireland of EU measures as a matter of European law is a different matter which needs to be considered on its merits.

2.6 In a case where the provisions of the Aarhus Convention were potentially engaged, a range of important and potentially difficult issues might then possibly arise. Without necessarily being exhaustive, and in the context of the issues which arise in this...