Public Consultation on the Implementation of the Aarhus Convention in Ireland
Submission on preliminary draft of Ireland’s National Implementation Report 2014
INTRODUCTION
[1]
The Department of Environment, Community and Local Government (DECLG) is to be
commended for initiating this public consultation on Ireland’s first National Implementation Report
and for initiating the process in good time. This consultation provides a welcome opportunity for
the public to play a significant role in the elaboration of this ground-breaking report.
[2]
The final report will be an important marker for the future. An accurate, comprehensive and
high quality national implementation report would be a significant resource for all interested parties.
The preliminary draft report therefore merits careful attention at this early stage in its development.
[3]
This submission makes a number of general comments. It should be read in conjunction
with a separate document - an annotated text of the draft preliminary National Implementation
Report. The annotations (via track changes) - include comments and suggestions on particular
aspects of the preliminary draft report.
GENERAL COMMENTS
Process by which national implementation report is prepared
[4]
The template provided for national implementation reports includes a section on the
process by which the report has been prepared. In addition to a ‘brief summary’ of the process
followed in the preparation of the report, and details of the public authorities consulted, information
must be provided ‘on how the public was consulted and how the outcome of the public consultation
was taken into account.’ The requirement to explain how the outcome of the consultation was
taken into consideration resonates with contemporary models of public participation where the
decision-maker must demonstrate the impact of the consultation on the final outcome. This is a
vital element of the public consultation process because it enables the public to verify the extent to
which its comments and submissions were taken into consideration.
This requirement promotes
transparency and goes some way towards ensuring that consultation is a meaningful exercise and
not simply a token gesture.
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[5]
The draft preliminary report is a work in progress and the public has the opportunity to
mould the final content. It will be interesting to see how the preliminary draft evolves over the
coming months and to gauge - at a later stage - the extent to which the consultation process leads to
amendment of the original draft text. It will also be interesting to see the extent to which other
Government Departments and public authorities (including, for example, An Bord Pleanála, the
Environmental Protection Agency and the Aquaculture Licensing Appeals Board) engage in the
consultation process.
[6]
Has the judiciary been invited to participate in the preparation of the national
implementation report? The judiciary play a key role in delivering effective implementation.
[7]
It is vital that all comments and submissions received by DECLG are published promptly on
its dedicated website to ensure transparency, generate discussion and promote further constructive
engagement with the consultation process.
[8]
A useful reference point for members of the public who wish to engage in the consultation
process is the Guidance on Reporting Requirements prepared by the Aarhus Convention Compliance
Committee (20 February 2007). This document provides valuable (and highly practical) pointers as
to what information should be included in the national implementation report.1
Style of draft preliminary report
[9]
A considerable portion of the draft report comprises references to (or lists of) the legislative
measures that aim to transpose various obligations set down in the Aarhus Convention. The
narrative should be fleshed out to make it more readable and more interesting. As it stands, it is
heavy going to plough through the myriad of legislative instruments referred to. The readability of
the draft text is also hampered by the inclusion throughout of multiple hyperlinks to the texts of the
various legislative instruments. The extensive hyperlinks break up the flow of the text.
More
consideration should be given to how best to include the hyperlinks without breaking up the text
(e.g. the title of each legislative instrument could incorporate the relevant hyperlink).
1
See: www.unece.org/fileadmin/DAM/env/documents/2007/pp/ece_mp_pp_wg_1_2007_L_4_e.pdf. Further
useful guidance on reporting requirements is available here: www.unece.org/environmentalpolicy/treaties/public-participation/aarhus-convention/areas-ofwork/envppimplemintro/envppreports/envppreports-implementation-2014.html.
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Transposition v. practical implementation
[10]
The draft report focuses primarily on setting out details of national transposition measures
(i.e. legislative provisions). There is very little detail on practical implementation and on the
challenges/obstacles encountered in implementation. This is surprising. While the report does
acknowledge (albeit briefly), that ‘obstacles were encountered with regard to costs measures in the
transposition of Article 9 in Ireland’s transposition of its corresponding provision in Directive
2003/35/EC’, it states (categorically) that no obstacles were encountered with implementing any
other provisions of the Convention.
[11]
The lack of detail on practical implementation and current challenges is a major weakness of
the preliminary draft report. This particular aspect will hopefully be amplified and strengthened in
the course of the consultation process. It is clear from the Guidance on Reporting Requirements, and
from the experience gained in previous reporting cycles, that national reports should provide an
account of practical implementation and should focus on areas of difficulty.
The Meeting of the
Parties therefore invited Parties to provide more detailed information on practical implementation.
It also invited Parties to ‘indicate [in the implementation report] major differences of opinion
emerging from the consultation process.’2 Presumably, this material will be added after the first
phase of the consultation process?
Developments in the jurisprudence relevant to practical implementation
[12]
The draft preliminary report contains no references to, or discussion of, developments in the
jurisprudence from the Irish courts. This is another surprising omission given the role the courts play
in implementation.
2
Report of the first Meeting of the Parties, Decision I/8 Reporting Requirements (2 April 2004)
http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.9.e.pdf.
See
further:
Aarhus Convention Compliance Committee, Guidance on Reporting Requirements (20 February 2007) para 32.
Text available here:
http://www.unece.org/fileadmin/DAM/env/documents/2007/pp/ece_mp_pp_wg_1_2007_L_4_e.pdf.
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Resource constraints as an obstacle to implementation and capacity building?
[13]
It is curious that the draft preliminary report makes no mention of resource constraints and
their impact on implementation and capacity building. This must surely be very significant given the
severe restrictions that all public authorities continue to experience in the current economic
climate?
CONCLUSION
[14]
The final report must provide a comprehensive account of the current status of
implementation, rather than a list of legislative provisions and related documents.
[15]
It should be user-friendly. The final output should deliver a valuable resource and provide a
practical reference point for all interested parties.
[16]
The level of detail presented on practical implementation and current challenges needs to
be ratcheted up significantly.
[17]
Relevant developments in the Irish jurisprudence should be included in the final text.
[18]
The main differences of opinion on the status of implementation that are expressed in the
course of the public consultation should be reflected in the final report.
PLEASE SEE SEPARATE DOCUMENT FOR DETAILED COMMENTS – ANNOTATED TEXT OF
PRELIMINARY DRAFT NATIONAL IMPLEMENTATION REPORT FOR IRELAND 2014
Áine Ryall
Faculty of Law
UCC
a.ryall@ucc.ie
9 August 2013
@EnvJusticeUCC
http://environmentaljustice.ie/
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