THE SUPREME COURT
[Appeal No: 374/2010]
Denham C.J.
O’Donnell J.
Clarke J.
Dunne J.
Charleton J.
John Conway
Applicant/Appellant
and
Ireland, the Attorney General and the National Roads Authority
Respondents
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 Ó 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 case, a number of questions might require to be answered.
2.7 It must, of course, be recalled that the Public Participation Directives were introduced at least in part for the purposes of seeking to ensure that the European Union itself would comply with its obligations under the Aarhus Convention. Thus at least many of the measures which are to be found in the Convention have a counterpart in those Directives. Whatever may be the questions which might arise as to the extent to which the Aarhus Convention may have an indirect effect in Irish law there is no doubt but that the Public Participation Directives form part of European Union law and must, in the ordinary way, therefore, potentially form part of Irish law subject only to the established parameters concerning the effect of directives within the national legal order of member states. On that basis it is appropriate to look also, in the context of the issues which might arise in a case such as this were the Aarhus Convention to be engaged, at the Public Participation Directives insofar as they are relevant to the costs regime in environmental cases and in comparison with the parallel provisions of the Aarhus Convention in that same regard.
(b) The Public Participation Directives and the Aarhus Convention
2.8 In one sense the question of the extent to which the Aarhus Convention itself may impact on the law in this jurisdiction is relevant only in circumstances where it might be said that there are possible differences between the provisions of the Convention and those found in the Public Participation Directives. The Public Participation Directives themselves clearly have a significant potential to affect the law as applied in Ireland given that they are binding on all member states. Subject to general considerations such as the question as to whether any aspect of those directives might be said to be directly effective, an Irish court will, of course, be required to apply those measures of European law. I will shortly turn to the argument that the Aarhus Convention may be relevant in construing the Public Participation Directives. However, the question of the effectiveness in Irish law (by virtue of binding Union law) of the Aarhus Convention would only be of relevance in a case where there was an argument that the provisions of that Convention went further, in some material respect, than the Public Participation Directives interpreted, as they would have to be, in the light of the fact that the Union is itself a subscriber to the Convention. If there is no difference, in respect of any particular aspect of the regime, between the Convention and the Public Participation Directives as properly interpreted in light of the Convention, then it is hard to see how the question of the applicability of the Convention itself is of any relevance because the Directives are undoubtedly applicable within the limits of Union law.
2.9 It is, perhaps, in that context appropriate to set out in full the relevant part of the text both of Article 9 of the Aarhus Convention and the former Article 10a of the Public Participation Directives which is now Article 11 of the codified Directive.
2.10 Article 9 in relevant part is in the following terms:-
“1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible…”
2.11 Article 11 in relevant part is in the following terms:-
2.12 As can be seen Article 11 provides, insofar as relevant to the issues which arise in this case, that there be a review procedure to challenge the substantive or procedural legality of decisions, acts or omissions subject to the Public Participation Directives which procedure, amongst other things, can not be prohibitively expensive. Article 9 is somewhat differently worded although the broad objective is clearly the same. Article 9.2 is concerned with decisions where Article 9.3 is concerned with acts and omissions by private persons and public authorities. Both provide for the necessity of a review procedure which, in accordance with Article 9.4, must, amongst other things, not be prohibitively expensive.
2.13 Of some relevance to this case is the fact that the acts or omissions referred to in Article 9.3 of the Aarhus Convention are those which are said to “contravene provisions of … national law relating to the environment”. On the other hand, Art. 11 refers to acts or omissions “subject to the Public Participation provisions of this Directive”. It is possible that there might be an issue, therefore, as to the scope of the types of acts or omissions which are covered by, respectively, Article 9.3 of the Aarhus Convention or Article 11 of the Public Participation Directives.
2.14 It must be acknowledged, therefore, that there is at least a possibility that, notwithstanding the interpretive role of the Aarhus Convention in construing the Public Participation Directives, the question of whether the Convention itself is directly applicable might be relevant although for that to be so it would be necessary that the Convention go further in some material respect than the Directives.
2.15 Against that background and assuming that there may at least be some circumstances where the Aarhus Convention itself may be indirectly relevant in Irish law, it is necessary to turn to the question of whether provisions of that convention may be directly effective and then turn to the extent to which the Convention may require to be used as an interpretive tool in the context of construing the Public Participation Directives.
(c) The extent to which relevant provisions of the Aarhus Convention may be directly effective
In the so-called Slovak Brown Bears case [Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky Case C-240/09], the CJEU accepted that the Aarhus Convention might be directly effective subject to certain considerations including the general principles concerning direct effectiveness which apply when determining whether the provisions of an EU directive are likewise directly effective in member states so as, at least, to bind emanations of the State.
2.16 The Court of Justice said:-
“The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the legal order of the European Union (see, by analogy, Case C 344/04 IATA and ELFAA [2006] ECR I 403, paragraph 36, and Case C 459/03 Commission v Ireland [2006] ECR I 4635, paragraph 82). Within the framework of that legal order the Court therefore has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (see, inter alia, Case 181/73 Haegeman [1974] ECR 449, paragraphs 4 to 6, and Case 12/86 Demirel [1987] ECR 3719, paragraph 7).
Since the Aarhus Convention was concluded by the Community and all the Member States on the basis of joint competence, it follows that where a case is brought before the Court in accordance with the provisions of the EC Treaty, in particular Article 234 EC thereof, the Court has jurisdiction to define the obligations which the Community has assumed and those which remain the sole responsibility of the Member States in order to interpret the Aarhus Convention (see, by analogy, Joined Cases C 300/98 and C 392/98 Dior and Others [2000] ECR I 11307, paragraph 33, and Case C 431/05 Merck Genéricos - Produtos Farmacêuticos [2007] ECR I 7001, paragraph 33).
Next, it must be determined whether, in the field covered by Article 9(3) of the Aarhus Convention, the European Union has exercised its powers and adopted provisions to implement the obligations which derive from it. If that were not the case, the obligations deriving from Article 9(3) of the Aarhus Convention would continue to be covered by the national law of the Member States. In those circumstances, it would be for the courts of those Member States to determine, on the basis of national law, whether individuals could rely directly on the rules of that international agreement relevant to that field or whether the courts must apply those rules of their own motion. In that case, EU law does not require or forbid the legal order of a Member State to accord to individuals the right to rely directly on a rule laid down in the Aarhus Convention or to oblige the courts to apply that rule of their own motion (see, by analogy, Dior and Others, paragraph 48 and MerckGenéricos - Produtos Farmacêuticos, paragraph 34).
However, if it were to be held that the European Union has exercised its powers and adopted provisions in the field covered by Article 9(3) of the Aarhus Convention, EU law would apply and it would be for the Court of Justice to determine whether the provision of the international agreement in question has direct effect”
2.17 However, it does need to be noted that the particular provisions of the Aarhus Convention which were under consideration in Slovak Brown Bears were found by the CJEU not to be directly effective. Nonetheless the Court did rule that there remained obligations on the courts of member states. The Court said:-
“Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 does not have direct effect in European Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law.”
2.18 It seems to follow, therefore, that it is at least possible in principle that provisions of the Aarhus Convention may be directly effective in member states or be required to be implemented as far as practicable by a conforming interpretation of national procedural rules but it is also clear that not every provision of the Convention is directly effective or capable of such implementation. Thus, in respect of any particular provision sought to be relied on, it will be necessary to determine whether it met the relevant criteria. That could well raise important questions not least in the context of the “not prohibitively expensive” requirements to be found in Article. 9.4 of the Convention.
(d) Does the Aarhus Convention play an important role in the interpretation of the Public Participation Directives?
2.19 It has been accepted by the CJEU that European Union law must be “properly aligned” with the Aarhus Convention. At para. 26 of its judgment in The Queen (Edwards & anor) v. Environmental Agency & ors (Case C-260/11) the Court so held. As noted earlier the original Article 10a of the Public Participation Directives is now Article 11 of the codified Directive. That provision must be “properly aligned” with the Aarhus Convention. However, as the CJEU pointed out at para. 30 of Edwards, neither Art. 9(4) of the Aarhus Convention or the Public Participation Directives specify “how the cost of judicial proceedings should be assessed in order to establish whether it must be regarded as prohibitively expensive”.
2.20 In the same paragraph the Court went on to hold that the question of whether costs were not prohibitively expensive, so as to comply with the obligations under both the Convention and the directives, “cannot be a matter for national law alone”. It follows that there may be important questions as to whether the Public Participation Directives, construed, if necessary, in a manner so as to properly align those Directives with the Aarhus Convention, are, in any particular respect, directly effective so as to place an obligation on the courts of member states to enforce the measures in question at least as against emanations of the State or, even if not directly effective, whether the obligation on member states’ courts to interpret, to the fullest extent possible, procedural rules so as to implement the objectives of the measures, may have practical application.
(e) A Right to Legal Aid?
2.21 It is in the context of the possible answers to those earlier issues that the question of a possible entitlement to legal aid in at least some circumstances arises. It is certainly clear from the judgment of the CJEU in Edwards (see para. 35) that the relevant provisions of the Public Participation Directives require that a person should not be prevented from seeking to pursue a claim within the scope of the directives “by reason of the financial burden that might arise as a result”. The Court went on to deal specifically with the circumstances then prevailing in the United Kingdom relating to the award of costs against an unsuccessful claimant and the criteria which required to be utilised in ensuring that any such award of costs did not breach the “prohibitively expensive” threshold.
2.22 To that extent at least it would appear that the CJEU took the view that courts, in enforcing an order for costs against an unsuccessful party, should limit the amount of costs awarded so as to meet the criteria specified in the Directives. However, the Court, citing Case-216/05 Commission v. Ireland, also drew attention to the fact that member states retained a broad discretion as to the choice of method of implementing that requirement although clearly remaining subject to an obligation to ensure that the methods adopted were fully effective. In that context the Court noted, at para. 38, that it was necessary to take into account all of the relevant provisions of national law including any national legal aid scheme or any costs protection regime. The Court also noted, in the same context, that significant differences between national laws in such areas have to be taken into account.
2.23 It must be recalled that the costs of litigation can vary from state to state, from court to court within in the same state, and from type of case to type of case within the same court having regard to a whole range of factors. Costs can include fees which must be paid to the Court, an exposure to the costs of a successful party and the possibility, in certain member states, that a person whose ability to develop on foot of a development consent may be delayed by reason of an unsuccessful claim may be entitled to some form of compensation from the party whose claim delayed the project concerned.
2.24 It is certainly arguable, in addition, that any costs which a party might necessarily have to incur in being able effectively to access justice, within the scope of the Aarhus Convention and the Public Participation Directives, would also have to be taken into account. In that context it is, perhaps, important to note that, at least in general terms, the burden of carrying litigation in a common law system falls more heavily on the parties and less heavily on the Court and its administration than is the case in many civil law systems. In passing it should be noted that the taxpayers in common law systems seem to benefit from this measure to no small extent. But a consequence of that saving in cost to the taxpayer is that a greater burden of establishing the facts and researching the law is placed on parties such that, at least in some cases, it would not be reasonable to expect a party to be able to present a case themselves without some form of legal (and perhaps other expert) assistance.
2.25 It is at least arguable that, in the absence of legal aid, and assuming that the case is one which meets criteria such as those which I have just identified, an overall assessment of the cost of proceedings would have to take into account the costs which a party might necessarily have to incur to be able reasonably and effectively to achieve access to justice. It follows that there is an important question as to whether there may not at least be some cases where the State may either have to provide legal aid or provide some subsidy for parties who bring litigation within the scope of the Aarhus convention and/or the Public Participation Directives.
2.26 In that regard I have not lost sight of the point made by counsel on behalf of the State to the effect that Article 9 of the Aarhus Convention itself only speaks of member states considering the adoption of a legal aid scheme. It is, however, arguable that the reason why that provision is not expressed in more definitive terms may be precisely because the legal systems of relevant states may differ significantly so that the requirement for a legal aid scheme, in order that the overall cost of relevant litigation not be prohibitively expensive, may differ radically from state to state or, indeed, between certain types of proceedings within each state.
2.27 However, even if the above argument concerning an entitlement to legal aid at the level of principle were ultimately to prevail, there is a further difficult question which arises.
(f) Could there be a directly effective right to Legal Aid?
2.28 As the Court of Justice pointed out in Edwards, it is principally for each member state to decide on the precise range of measures which are put in place to ensure that relevant proceedings can be brought in a manner which is not prohibitively expensive subject to the overall requirement that those measures collectively are effective to meet the end of cost not becoming a significant barrier to pursuing relevant claims. It is easy to see how, in that overall context, questions about the award by a court of the costs of litigation against an unsuccessful person may be an area where a court, in the light of its obligations to interpret its own procedures and rules in a manner designed to enforce Union law insofar as is practicable, might be required to intervene. It is not as clear that a court, which, as in the Irish context, plays no role in the grant of legal aid in civil or administrative cases could determine that the Public Participation Directives or the Aarhus Convention were sufficiently clear to mandate that a court require that legal aid be provided and in particular to deal with the sort of practical problems which might then follow as to how such a scheme would be implemented both having regard to the method of provision of legal aid and taking into account factors including those identified by the CJEU in Edwards such as whether the claimant has a reasonable prospect of success, the importance of what is at stake both for the claimant and the protection of the environment and the potentially frivolous nature of the claim. Even if a court were to conclude, therefore, that there might well be cases where legal aid was required to meet the obligations of the State under Union law, it would not necessarily follow that it would be possible or appropriate for the Court to put in place a legal aid scheme.
2.29 The whole point of the jurisprudence in respect of direct effect and allied areas is that there may be circumstances where a member state may be in breach of its obligation to transpose but where the relevant measure cannot be enforced within the member state in a particular case either because the measure concerned does not comply with the criteria for direct effect or cannot otherwise be implemented by interpretative measures or, indeed, because the measure might involve imposing obligations or liabilities on natural or legal persons who are not emanations of the State. Even if, therefore, it were to be established that the proper transposition of the Public Participation Directives, in an Irish context, required the State, at least in some cases, to put in place a legal aid scheme, it would not necessarily follow that such obligation was sufficiently clear in the detail of its potential implementation to create directly effective rights. That is a question which might well arise in an appropriate case.
(g) The existing Legal Aid Scheme
2.30 Finally, it is necessary to briefly touch on the civil legal aid scheme which applies in Ireland. It is important to record, as a fact, that Mr. Conway did not apply to the Legal Aid Board for legal aid in this case. His stated reason for not so doing was that he had applied in the past and been refused and did not, therefore, see any point. It was suggested in the evidence that it had not been possible to identify any case in which legal aid had been granted for an environmental challenge. The Court’s researches were able to identify one tangential reference in a case (Ní Eilí v. Environmental Protection Agency [1997] 2 ILRM 458) in which it would appear that, for a brief period of time at the commencement of the proceedings in question, the relevant applicant may have had the benefit of legal aid. However, the evidence certainly suggests that, at a very minimum, the grant of legal aid in environmental cases is an extreme rarity.
2.31 Furthermore, there are potentially difficult issues which would arise were it to be suggested that any obligation to provide legal aid in cases in which the Aarhus Convention and/or the Public Participation Directive were engaged, could be met within the context of the Irish Civil Legal Aid Scheme as presently constituted. Although not relevant to this case, given that Mr. Conway has brought these proceedings in his own name and on his own behalf, the fact that the scheme seems to exclude representative bodies might well be a problem given the status given to non-governmental organisations in the Convention and the Directives. Furthermore, it is at least arguable from the criteria, identified by the CJEU in Edwards, for determining whether the costs of proceedings are prohibitively expensive (being a mix of subjective and objective factors) that even wealthy persons might, at least in some circumstances, be entitled to legal aid (should such an obligation arise) if the absence of legal aid were to lead to such proceedings being prohibitively expensive on an objective basis. There might well, indeed, be other issues as to whether the existing Irish Civil Legal Aid Scheme could supply, without significant amendment, any requirement which might be established as a matter of Union law to provide legal aid in at least some environmental cases.
2.32 In such a context it is important to note a significant aspect of the submissions made by counsel on behalf of the State. It was precisely because counsel argued that neither Aarhus nor the Public Participation Directives were engaged in this case that counsel suggested that important issues such as the ones which I have identified should not be answered on this appeal. That was so, counsel argued, not least because, should a case emerge in which the Aarhus Convention and/or the Public Participation Directives were clearly engaged, the State parties would need to consider precisely what position to adopt. Indeed, were an obligation to provide legal aid to be established, it seems almost certain that the State would need to give urgent consideration either to amending the existing civil legal aid scheme or introducing a new, and standalone, scheme for the provision of legal aid in qualifying cases. If a right to legal aid in at least some cases were ultimately to be established it would certainly be preferable for the orderly implementation of such a scheme that it would be done by the State putting in place appropriate measures which met the requirements of any obligations ultimately identified rather than by the courts attempting to establish the detail of any such scheme on a case by case basis.
2.33 Against that background it is appropriate to turn next to the procedural history of these proceedings and the facts which underlie them.
3. Procedural History and Facts
3.1 These proceedings were commenced by Mr. Conway on the 27th September, 2007. A principal focus of the relief claimed involved seeking orders which would have compelled the third named respondent (“the NRA”) not to fill in the bed of the old N1 roadway and also would have required a redesignation of the A1/N1 as a motorway. The proceedings also sought to compel the State to ratify the Aarhus Convention and to provide Mr. Conway with legal, engineering and quantity surveying expertise for the purposes of these proceedings. These latter reliefs were said to be required in order to give effect to the access to justice provisions of the Aarhus Convention.
3.2 The A1/N1 Newry Dundalk link road, to give it its full title, is a two lane dual carriageway from the Ballymascanlon roundabout north of Dundalk to the border with Northern Ireland at Cloghoge where it connects with a section of the A1 roadway in Northern Ireland.
3.3 The A1/N1 project was the subject of a decision of An Bórd Pleanála of the 16th September, 2003 on an application by Louth County Council made under s.51(2) of the Roads Act, 1993 (“the 1993 Act”). That decision had been preceded by an oral hearing at which Mr. Conway attended and made submissions. Part of the scheme then under consideration involved filling in the old N1 road along a stretch of that roadway. Ultimately the new A1/N1 was built and the filling in of the old N1 road along the relevant stretch commenced in June, 2007. By the time these proceedings were commenced on the 26th September, 2007 the filling in work was substantially complete. There is no evidence to suggest that any of the works carried were done other than in accordance with the permission granted by An Bórd Pleanála.
3.4 It should also be noted that, as a matter of law, the designation of a roadway as a motorway is dealt with by the Roads Act, 2007 and in particular s.8 thereof which empowers the Minister for Transport on the application of the NRA to declare as a motorway an existing national road. That legislation does not create any statutory duty on the NRA to apply to have a roadway so designated.
3.5 Mr. Conway’s proceedings were struck out by Laffoy J. as a result of applications brought both by the State and the NRA. Insofar as the proceedings might be construed as involving a challenge to the carrying out of road works by the NRA, which works had been constructed in accordance with the decision of An Bórd Pleanála, the trial judge held same to amount to an impermissible collateral attack on that decision in circumstances where an extension of time would be required and would not be granted, given the lengthy delay in the initiation of the proceedings and the fact that the works authorised by the decision had been implemented and the road in use.
3.6 So far as the claim in respect of ratification of the Aarhus Convention was concerned Laffoy J. came to the view that this claim must fail having regard to Art. 29 of the Constitution.
3.7 On the 14th October, 2010 Mr. Conway appealed this decision but failed to take any steps to prosecute his appeal. In passing it should be noted that the Aarhus Convention was ratified by Ireland on the 18th June, 2012. On the 27th March, 2014 an application was brought on behalf of the State to have the appeal dismissed for want of prosecution. In response Mr. Conway sought legal aid which led to the application which is currently before this Court.
3.8 Against that procedural and factual background it is necessary to analyse the argument put forward on behalf of the State to the effect that this was not a case in which the important and difficult issues, concerning the possible requirement under the Aarhus Convention and/or the Public Participation Directives to provide legal aid in some circumstances, arose and that, therefore, those issues should not be determined.
4. Analysis
4.1 For the purposes of analysing the reasons why counsel so argued it makes sense to adopt, solely for the purposes of this analysis, an assumption which begs a number of important questions against the State. For that purpose, and only for that purpose, I will assume that at least some relevant aspects of the Aarhus Convention form part of Irish law as being a directly effective part of the corpus of European Union law (or as a result of the obligation to interpret Irish procedure so as to accord with the Convention) or that the relevant obligations of the State under the Public Participation Directives are at least as broad as the obligations under the Aarhus Convention. I will also assume, on the same basis, that there may be at least some circumstances where the obligation to ensure that the type of proceedings contemplated by the Aarhus Convention and/or the Public Participation Directive are not “prohibitively expensive” requires that some form of financial assistance be given to parties who wish to bring such proceedings.
4.2 On the basis of those assumptions it would, of course, be necessary to determine the precise type of proceedings which would come within the ambit of any such obligation.
4.3 As noted earlier the obligation contained in Article 9.4 of the Aarhus Convention, which requires that relevant proceedings should not be prohibitively expensive, refers back to the type of proceedings specified in Articles. 9.1, 9.2 and 9.3. Article 9.1 relates to litigation concerning information and, while important in itself, has no particular relevance to these proceedings. Article 9.2 is concerned with litigation in which a person wishes to challenge the substantive or procedural legality of permissions in the environmental field. Insofar as the roadways with which these proceedings are concerned (being the new roadway and the substantive closure of part of the pre-existing roadway) were the subject of consents then those consents were given at a time prior to the ratification by Ireland of the Aarhus Convention, prior to the ratification by the European Union of that Convention and prior to the latest date for the transposition of the Public Participation Directive into the laws of member states.
4.4 In any event Mr. Conway does not seek to challenge that consent as such and indeed were he now to seek to do so, such a claim would be hugely out of time in circumstances where the major infrastructural project with which those consents were concerned has long since been completed and was so well before these proceedings were commenced and where he might face at least some of the problems of retrospectivity identified by this Court in Sweetman v Shell E & P Ireland Ltd [2016] IESC 58.
4.5 In those circumstances Article 9.2 does not truly arise. However, in fairness to counsel for Mr. Conway, his argument centred on Article 9.3. That article is often seen as applying to what might loosely be called enforcement proceedings whereby individuals or bodies may seek to obtain appropriate orders where development has taken place either without a necessary permission or in contravention of the terms of such a permission. However, as noted earlier, there is an argument that the wording of Article 9.3 is sufficiently broad to capture a case in which a member of the public seeks to assert that a public authority has failed to comply with some aspect of what is described in that article as environmental law. Under that heading counsel suggests that it may be possible to characterise Mr. Conway’s claim as being one in which he asserts that the NRA is in breach of a statutory obligation under s. 17 of the 1993 Act which provides for the “general duty…to secure the provision of a safe and efficient network of national roads”. In reality that is the only basis on which counsel was able to argue that the Aarhus Convention was engaged in the circumstances of this case. The roads development itself had a permission including a permission involving the significant alterations which took place to the pre-existing roadway.
4.6 Leaving aside the claim as formulated by Mr. Conway in his pleadings, it is important to note that, even at the oral hearing, counsel did not identify any aspect of Article 11 of the Public Participation Directives which itself might be engaged. The only form of omission to which that article applies is an omission “subject to the public participation provisions of this Directive”. No omission coming within the scope of that article was identified. Thus the only basis put forward for suggesting that there might be an obligation in Union law to provide legal aid in this case centred on the belated contention that there was an obligation deriving from Art. 9.3 of the Aarhus Convention concerning an allegation that there was an omission in the sense of a failure to comply with s.17 of the 1993 Act.
4.7 It is against that backdrop that it is necessary to consider the case which Mr. Conway brought before the High Court. As noted earlier, part of his claim sought orders compelling Ireland to ratify the Aarhus Convention. It is, quite frankly, very difficult indeed to see how such a claim could ever have been successful having regard to the terms of the Irish Constitution which confer on the Executive the sole power of making foreign policy and entering into international treaties. In any event Ireland has, in fact, now ratified the Convention so that any such issue is moot.
4.8 As already noted the balance of the claim seeks a range of orders designed to secure that a portion of the A1/N1 roadway, which forms part of the Dublin/Belfast route north of Dundalk and south of the border with Northern Ireland, be designated as a motorway and that, to the same end, certain portions of the previous roadway which formed part of the former route from Dublin to Belfast be restored principally so that it could accommodate traffic which would not be permitted to use a motorway. Some further consequential orders are sought together with an order compelling the State to enforce the law which forbids drivers without an appropriate licence to drive motor vehicles on the motorway network.
4.9 That latter claim is clearly wholly outside environmental law as such. Insofar as the other claims are concerned they amount, in substance, to a contention that there is a better solution to the Irish road network than the one which was implemented as a result of the decisions to which reference has already been made. In Mr. Conway’s view that better solution would involve designating the entire stretch of roadway between the Ballymascanlon exit and the border as motorway. This would in fact bring that portion of the roadway into line with the remainder of the route travelling north from Dublin towards Belfast as far as Dundalk (which is so designated although the remainder of the route in Northern Ireland is not of motorway standard). Mr. Conway’s solution would also require the restoration of certain portions of the old N1 motorway to facilitate that redesignation.
4.10 At this juncture it is perhaps appropriate to mention that, at the close of the oral argument, counsel for Mr. Conway asked for leave to file some additional written submissions. The particular context in which that permission was sought was that the oral hearing took place over two days separated by the summer vacation. Counsel noted that certain additional case law had arisen subsequent to the earlier hearing and that he wished to deal with same. The Court allowed written submissions to be filed on that basis and afforded the State the opportunity to put in replying submissions. Both sets of submissions were filed although the State makes complaint that Mr. Conway’s document addresses many more issues than those to which the permission to file additional submissions related. I think it is fair to say that the State has a valid point in that regard.
4.11 However, be that as it may, the additional submissions have added greater clarity, in my view, to the question of whether it can be said that the Aarhus Convention is engaged at all by these proceedings.
4.12 Insofar as the redesignation of the motorway and consequential works are concerned, Mr. Conway’s complaint cannot, if it is to come within Article 9(3), as noted earlier, be about any decision but can only concern an act or omission. So far as acts are concerned, no acts of any of the defendants are specified which might bring the claim within the ambit of Article 9(3). The only remaining question is as to whether it could be said that the claim amounts to a challenge to an omission by a public authority which is alleged to contravene provisions of law relating to the environment.
4.13 While not providing a definitive legal interpretation of the scope of the Aarhus Convention it is, in my view, appropriate to have regard to decisions and commentaries of the compliance committee established under the Aarhus Convention for the purposes of facilitating the compliance by subscribing states with the terms of the Convention itself. That committee has taken the view that “national law” relating to the environment includes EU law applicable within EU member states.
4.14 In the context of what is said to be encompassed within environmental law for the purposes of Art. 9.3, the compliance committee in its guide said the following:-
“First, as regards “contravening national law relating to the environment”, it does not have to be established prima facie, i.e., before the review, that there has been a violation. Rather, there must have been an allegation by the member of the public that there has been an act or omission violating national law relating to the environment (see ACCC/C/2006/18 (Denmark) discussed above). Second, national laws relating to the environment are neither limited to the information or public participation rights guaranteed by the Convention, nor to legislation where the environment is mentioned in the title or heading. Rather, the decisive issue is if the provision in question somehow relates to the environment. Thus, also acts and omissions that may contravene provisions on, among other things, city planning, environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships are covered by paragraph 3, regardless of whether the provisions in question are found in planning laws, taxation laws or maritime laws. This was illustrated in the Compliance Committee’s findings on communication ACCC/C/2005/11 (Belgium), 424 where the Committee assessed Belgian planning laws under article 9, paragraph 3, and in its findings on Bulgarian planning law in communication ACCC/C/2011/58.425”
4.15 It follows that the question of whether a national law may be a “law relating to the environment” for the purposes of Article 9.3 of the Aarhus Convention must be determined as a matter of substance rather than as a matter of form. It does not matter if the legislation in question deals with other questions or has a title implying that its principal focus may be matters other than environmental provided, importantly, that the measure sought to be enforced can properly be said, in any material and realistic way, to relate to the environment.
4.16 It is true that the construction of roadway projects can, of course, have significant impacts on the environment and laws concerning the grant of permission for such projects clearly form part of environmental law. It is also true that the health and safety of humans frequently forms an important objective of environmental law. For example, the need to obtain permission for projects which might, were they not properly controlled, create a danger to the health of persons residing in the vicinity, are clearly measures designed for health and safety purposes but also having a significant environmental element.
4.17 But on the other hand, many measures concerning either road traffic or health and safety do not have any material environmental component at all. For example, much road traffic legislation is concerned either with ensuring the efficient flow of traffic or measures designed to reduce accidents and thus help safety. At least many such measures could not be described as having any material environmental element. Likewise, pure health and safety measures, such as many which are applied for the protection of workers in industry, will often have no material environment component.
4.18 It follows that the mere fact that roadways can have an environmental impact and that the purpose of environment legislation can frequently be directed towards protecting health and safety does not mean that all road traffic legislation or all health and safety legislation can be regarded as coming within the ambit of environmental law for the purposes of Article 9.3.
4.19 Against the backdrop of that general analysis and the analysis of the claim which Mr. Conway has brought in these proceedings, I cannot conclude that this claim can be said to amount to an allegation of an omission by a public authority in relation to national environmental law. The claim simply suggests that there may be a better solution, in terms of efficiency and road safety, to the roads system in Ireland than the one which was implemented after a lawful process designed to determine whether the motorway project between Dundalk and the border should go ahead. The claim as pleaded does not identify any specific national measures as having been breached let alone specify any particular omissions by a public authority of compliance with a mandatory measure which comes within the ambit of environmental law even allowing for the broad definition of that term which I am satisfied ought be applied in accordance with the guidance of the Aarhus Convention Compliance Committee.
4.20 In making this point I am sympathetic to one issue raised by counsel for Mr. Conway. In the course of the oral hearing the point came to be described as the “chicken and egg” problem. As put forward by counsel the problem may be described in the following way. One of the important questions on which an interested party might require legal assistance in many types of cases is as to the proper formulation of a claim. If there are, as counsel argued was the case, some circumstances in which a case might qualify for legal aid under either the Aarhus Convention or the Public Participation Directives but if it was necessary, in order to so qualify, that the proceedings be formulated in a way which clearly brought them within the scope of engagement of those measures, then the relevant interested party might fall at the first hurdle by not formulating the proceedings in an appropriate way precisely because the party concerned did not have legal aid. Thus the absence of legal aid, in order to assist in the formulation of the claim itself, might, arguably, prevent a party from obtaining legal aid even though, had the proceedings been properly formulated in the first place, legal aid might be appropriate.
4.21 In the light of that problem I do consider that it would not be appropriate for a court to take an overly technical view of the proceedings as formulated for the purposes of deciding whether the Aarhus Convention and/or the Public Participation Directives were engaged so as, in turn, to determine whether it was necessary to go on to consider whether an entitlement to legal aid might arise. A claim, even if not particularly well formulated by a litigant in person, which reasonably appear to come within the ambit of the relevant provisions of either the Aarhus Convention or the Public Participation Directives might, therefore, require a court to go on to consider at least some of the difficult and important issues identified earlier in this judgment.
4.22 But I am not satisfied that, even applying a generous interpretation to the claim put forward by Mr. Conway, it could be said to be one which engages the Aarhus Convention. As noted earlier no suggestion was put forward by counsel, in the circumstances of this case, to suggest that the Public Participation Directives were engaged.
4.23 It is also important to recall that the works done in building the new roadway and partially filling in its predecessor were all conducted on foot of a valid permission after a process in which there was full public participation. The time for any challenge to that permission has long since passed. On any view a roads authority must have a significant discretion as to how to allocate resources concerning the construction and maintenance of roads, how to design roads and whether to seek to have major roadways designated as motorways. While there may, of course, be a limit to the range of choices which can lawfully be made, it is important to take into account the fact that, within the limits of what may be legally permissible, a roads authority will necessarily enjoy a significant margin of discretion. The fact that one solution might by some be considered better than others cannot mean, of itself, that any alternative solution is unlawful. The solution decided upon as a result of the process which took place in the mid-noughties was the one actually implemented. If that solution was lawful then it cannot now be argued that there could be a legal obligation under national law to adopt some other solution. It is only if the original solution was unlawfully arrived at in some material respect that it could be argued at all that there is an obligation on a roads authority to now implement a different solution.
4.24 However, as the State argued in their supplemental submissions, to suggest that the solution originally devised and implemented was unlawful would amount to a clear collateral attack on the original permission. Such an attack is not permissible in Irish law for to permit such a challenge would be to undermine the time limits present in Irish national procedural law which are designed to bring certainty to permissions for a whole range of developments. Mr. Conway cannot, therefore, seek to argue in these proceedings that the original permission was unlawful. It necessarily follows, therefore, that the solution to the roadway between Dundalk and the border which was the subject of that permission was at least within the range of lawful solutions to the problem of upgrading the national routes in the area in question. On that basis there could be no legitimate argument to the effect that there could be an obligation in Irish law on a roads authority to now adopt a different solution. No change in the circumstances is advanced which might justify an argument that a different solution is now legally mandated.
4.25 I have already indicated that it does not seem to me that the proceedings as formulated by Mr. Conway, even allowing some latitude in their interpretation, can in any way be said to involve a challenge based on environmental law. But even if the relevant statutory provisions were to be considered as forming part of environmental law in the sense in which that term is used in the Aarhus Convention, it would be necessary for there to be some stateable basis for the proposition that there is an obligation in law to redesign the road network in the way which Mr. Conway urges. For a legal obligation in that regard to arise it would necessarily follow that the solution already adopted must have been unlawful for, unless that were so, the only issue would be as to which of two lawful solutions were preferable. National law provides no legal obligation to choose any particular solution once it is lawful. Thus, without challenging the lawfulness of the earlier permission, there is no arguable basis for suggesting that national law imposes an obligation to adopt Mr. Conway’s solution. But to suggest that the permission given for the roadway that was actually implemented was unlawful would amount to an impermissible collateral attack on that permission.
4.26 As the CJEU noted in Edwards, a court, in considering the prohibitively expensive provisions of the Aarhus Convention and the Public Participation Directives, is entitled to have regard to the question of whether the proceedings have a reasonable prospect of success. Proceedings which attempted, at this remove, to suggest that there is a legal obligation to adopt a different solution to the roadways in question to the one for which permission was granted are, in my view, unstateable as a matter of national law and this would not, therefore, even if Aarhus were engaged, be a case in which it would be appropriate to require the expenditure of public funds.
4.27 In those circumstances I am not satisfied that this is a case in which the Aarhus Convention or the Public Participation Directives are engaged. On that basis it seems to me that counsel for the State was correct when she argued that it would be highly inappropriate to seek to address the difficult and important questions which might arise in a case where one or other or both of those measures were engaged.
5. Conclusions
5.1 For the reasons set out in this judgment I am, therefore, not satisfied that it has been shown that, even on a generous interpretation of the claim made by Mr. Conway in these proceedings, this case engages either the Aarhus Convention or the Public Participation Directives.
5.2 I note the many important and potentially difficult issues concerning the possibility of an entitlement to legal aid in at least some cases which might well arise in the event that there were an application to the Court for an order requiring that provision be made for legal aid in a case where either or both of the Aarhus Convention or the Public Participation Directives were engaged.
5.3 However, I am persuaded by the argument of counsel for the State 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.
