Toward a Greener Constitution: The Fate of a Constitutional Right to a Healthy Environment in Ireland by Muireann McHugh

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

doctrine is shrouded in controversy as it vests huge power in unelected judges to recognise rights. The Irish courts appeared to move away from the practice of judicial activism in the 1990s, however there have been whispers of a revival of the unenumerated rights doctrine when the Supreme Court recognised a right to work in N.H.V v Minister for Justice and Equality 2017.

Analysis of Clarke CJ’s Judgment in the FIE Case

In the FIE case, Clarke CJ held that he could not recognise a right to a healthy environment because it already fell into the rubrics of the right to life and the right to bodily integrity. This logic, however, does not follow the precedent set out in State (Healy) v Donoghue 1976. In this case, O’Higgins CJ recognised a right to legal aid. Evidently, this does not go beyond the broader constitutional right to a trial in due course of the law under Article 38.1. Nonetheless, the Court explicitly recognised a right to legal aid consistent with Article 38.1 to create stability. Therefore, Clarke CJ’s obiter comments that it was unnecessary to expressly identify the environmental right diverges from the precedent set in Donoghue.

In many ways, the identification of a right to a healthy environment is uncharted territory for the Irish judiciary. There are no references to rights or obligations in relation to the natural environment in the Constitution. Hitherto, environmental matters have rested solely with the legislature, and the intersection of environmental and constitutional rights is a novel area of Irish law. Clarke CJ protected the integrity of the separation of powers in his judgment through his unwillingness to cross the threshold of environmental law, which has traditionally been a matter for the legislature.

Clarke CJ also raised concerns about the “impermissibly vague” nature of the right to a healthy environment. Whilst Barrett J held that the responsibility to lay down the parameters of newly recognised unenumerated rights lies with later courts, Clarke CJ instead opined that some precision was necessary before identifying an unenumerated right in order to properly regulate and guide human conduct. Barrett J offered no insight into the duties and responsibilities an environmental right would involve, or what powers it would confer onto the Irish Government. From this perspective, Clarke CJ’s reasoning is sound.

However, it is noteworthy that some elements of the Irish Constitution are vague. By virtue of the existence of unenumerated rights, it is clear that some constitutional provisions are sufficiently ambiguous and vague enough to allow standalone rights to be derived from them. The right to marital privacy, for example, was derived from Article 41.3.1°, which obliges the State to protect the institution of marriage. The Constitution offers no guidance as to whether this obligation should be approached in a collective sense, or in an individualistic manner. However, as the case law developed, following Barrett J’s prediction of what would happen with the right to an environment, specific duties and responsibilities that the right to marriage free from attack conferred onto the State was identified. Therefore, Clarke CJ’s argument in the FIE case, that the recognition of an unenumerated right should come with a relatively concrete outline of the limitations and obligations the right imposes, is baseless.

The Future of the Right to a Healthy Environment

Clarke CJ’s decision not to identify a constitutional right to a healthy environment lacked judicial foresight in some respects. The international jurisprudence suggests that a right to a healthy environment will eventually materialise in Ireland. For example, countries such as Myanmar, Kenya, Iceland, and Zimbabwe have recognised a constitutional right to a healthy environment in recent times. Clarke CJ merely delayed the inevitable.

However, Clarke CJ did give insight into how exactly the right to a healthy environment could be legally recognised in Ireland at some point in the future. He made clear that while he could not identify a right to a healthy environment in the FIE case, a constitutional right to a healthy environment could be recognised in a later case with an individual plaintiff who is personally affected by the non-existence of the right, instead of a corporate body

Page 20 such as FIE. Additionally, Clarke CJ makes reference to the possibility of inserting a provision into the Constitution for a right to a healthy environment vis-a-vis a referendum. This is an inherently democratic approach, which is favourable in a constitutional democracy such as Ireland. Whilst the right to a healthy environment was not recognised in the FIE case, Clarke CJ left the fate of the right to a healthy environment unsealed.

The Future of Unenumerated Rights

Not only did Clarke CJ give insight into the future of the right to an environment, he also gave insight into the future of unenumerated rights more broadly. There is significant coverage on the shift in terminology from unenumerated to derived rights in his judgement. He expresses favour for the term “derived rights” in lieu of unenumerated rights because “it conveys that there must be some root of title in the text or structure of the Constitution from which the right in question can be derived.” This deviation gives insight into the future of unenumerated rights, as it suggests a modern revival of judicial activism in the form of derived rights. Developments in case law should ebb and flow, and this had a bearing on Clarke CJ’s unwillingness to identify a derived right in the FIE case. Just as unenumerated rights gradually fell out of favour in the 1990s, derived rights should be reintroduced by the judiciary in the same gradual fashion. The judiciary have shown a renewed interest in the unenumerated rights doctrine in N.H.V v Minister for Justice [2017], and so are in the infancy of a possible derived rights revival. Only further development of the case law will confirm this, but Clarke CJ’s judgment gives insight into what the future of judicial activism in the Irish courts could entail.

Conclusion

Undoubtedly, some of the most fundamental Irish constitutional rights underpin Clarke CJ’s judgment in the FIE case. He ruled that FIE did not have standing to make a constitutional claim and that a right to a healthy environment was “impermissibly vague”, and displayed a desire to safeguard democracy by suggesting that constitutional right to a healthy environment could be recognised by way of referendum. Clarke CJ firmly left the door open for a right to a healthy environment to be inserted as a constitutional provision in the future, while also giving insight into the fate of derived constitutional rights as a whole. However, considering the urgency with which we need to tackle climate change on a personal, governmental and institutional scale, one cannot help but be disappointed at the fact that Ireland still does not recognise a constitutional right to a healthy environment, notwithstanding the constitutional legal principles, which Clarke CJ conformed to in his judgment.

“However, considering the urgency with which we need to tackle climate change on a personal, governmental and institutional scale, one cannot help but be disappointed at the fact that Ireland still does not recognise a constitutional right to a healthy environment, notwithstanding the constitutional legal principles, which Clarke CJ conformed to in his judgment.”