Ireland
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Toward a Greener Constitution: The Fate of a Constitutional Right to a Healthy Environment in Ireland By Muireann McHugh, JF Law “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights.” Barrett J, Merriman v Fingal County Council. In Friends of the Irish Environment v Government of Ireland 2020 (hereinafter the FIE case), the Supreme Court dealt with two central issues: whether the Government’s National Mitigation Plan to tackle climate change was ultra vires and whether the unenumerated right to a healthy environment existed consistent with either the Constitution or the European Convention of Human Rights. The Latin phrase ultra vires directly translates to “beyond the powers’.’ Under the Climate Action and Low Carbon Development Act 2015 (the 2015 Act), the Government was legally bound to form the National Mitigation Plan to lay out specific aims and objectives to address climate change in Ireland. The environmental advocacy group, Friends of the Irish Environment (FIE), contended that the Plan did not have a sufficient degree of specificity which was required under the 2015 Act. In short, the 2015 Act vested in the Government the power to devise a specific plan, but the Government instead devised a vague plan. This is the essence of the argument FIE constructed in which they alleged that the Government had acted ultra vires. FIE also claimed that the Plan did not succeed in realising the right to an environment which is consistent with human dignity, recognised by Barrett J in the High Court in Merriman v Fingal County Council 2017. Although Chief Justice Frank Clarke overruled Barrett J’s judgment and did not recognise a right to a healthy environment in the FIE case, the judgment is significant because it gives insight into how a constitutional right to a healthy environment could materialise in Ireland in the future. Constitutional Legal Principles In order to understand Clarke CJ’s judgment, it is important to acknowledge some fundamental principles of Irish constitutional law. Firstly, the law should be clear, exact and definite in order to properly regulate human conduct, and its subjects need to understand what is legally required of them. Secondly, litigants only have locus standi, or standing, to challenge the constitutionality of legislation if they are personally affected by the provision. In general, corporate entities and non-governmental organisations cannot bring a constitutionality claim to court. Thirdly, the ‘unenumerated rights doctrine’, whereby constitutional rights are recognised even if they are not explicitly written in the Constitution, is a significant part of Irish Constitutional law. The doctrine was first conceived in Ireland in the case of Ryan v Attorney General [1965], where the Supreme Court recognised the right to bodily integrity. Since then, unenumerated rights such as the right to marital privacy in McGee v Attorney General [1974] and the right to earn a livelihood in Murphy v Stewart [1973] have been recognised by the Irish courts. The
