The High Court has ruled that a statement by UN Special Rapporteur David R. Boyd is inadmissible in evidence in a judicial review concerning the Government’s National Mitigation Plan. The ruling concerns the evidence to be considered at the substantive hearing; it does not decide whether the plan is lawful.
Friends of the Irish Environment CLG is seeking judicial review of the Government’s decision to approve the plan, published on 19 July 2017 under the Climate Change and Low Carbon Development Act 2015. The organisation argues that the plan does not meet the Act’s requirements and that the State has failed to comply with national and European Union law. The respondents deny that the plan has the alleged human rights impacts.
The application before Mr Justice MacGrath concerned four documents the applicant sought to add to the case record after serving an affidavit without leave: an Intergovernmental Panel on Climate Change report, the Climate Change Advisory Council’s 2018 annual report, an Environmental Protection Agency emissions projections report, and Mr Boyd’s statement. The parties agreed how the first three documents might be treated at the hearing, leaving Mr Boyd’s statement as the main disputed document.
The applicant described the statement as an expert account from an authoritative source on human rights implications of the plan. Mr Boyd’s statement argued that Ireland has positive human rights obligations to reduce greenhouse gas emissions. The respondents objected that his qualifications to give opinions on Irish, international and foreign law were not established, and argued that legal interpretation was for the court. They also challenged the statement’s compliance with rules governing expert evidence.
The judge first addressed the late affidavit. Although no specific affidavit filing deadline had been ordered, he said the applicant could file it and, if leave was required under the Rules of the Superior Courts, could apply for leave, subject to his ruling on the statement.
He then held that the statement was inadmissible in its entirety. The judgment says its main purpose and conclusion were opinions on Ireland’s obligations under international human rights and environmental law, but Mr Boyd had not shown particular expertise entitling him to give those opinions. The court also found that the applicable Irish evidentiary principles had not been met. Citing O’Brien v. the Clerk of Dáil Éireann, the judge said the report was not suitable for partial admission by separating unobjectionable passages from the rest.
The order was limited to excluding Mr Boyd’s statement from evidence. The underlying judicial review remained at an advanced stage, with a hearing date allocated; the judgment did not determine the challenge to the National Mitigation Plan.