Monday
Jan072013
by 
Bishop Hill
Bishop Hill Principle of proportionality
Jan 7, 2013 Climate: Parliament EU FOI Pat Swords is well known to readers as the man behind the legal challenge to the Irish government's renewables policy. Here he writes about the current state of play.
Ultimately the wind and climate change scandal at EU, member state and municipality level is nothing more than a reflection of a weak democracy. If people solely express opinions, then the political process and the administration which fawns to it, will just exist to manipulate various opinions to maximise its agenda. If progress is to be made, we have to move away from public opinion to holding the administration to account on the detail, in particular did it follow the procedural requirements to reach the position it is now in. For instance it may not be quite so important that the Climate Research Unit derived a somewhat unique version of climate change records, but it is hugely important that they acted unlawfully in relation to the transparency of how they derived this. Who watches the watchman? Unfortunately it is left to the concerned citizen, mostly being those who do 'detail' to enforce these standards. Not the Lord Oxburghs of the world. Only in such a manner is the dreadful position we are now in going to be reversed, before more collateral damage occurs.
In relation to my endeavours. The High Court Judicial Review of the Irish Renewable Energy Programme takes place on the 15th January and slowly it is starting to get traction, see for instance the nice press article below:
The UNECE hearing on the Scottish renewable energy programme took place in Geneva on the 12th December, see press article on this below.
Progress was made there too. The Compliance Committee clearly understood that there were significant legal failings with both the Scottish / EU renewable energy programme and the approval process for the two projects in question, the Carriag Gheal wind farm and the associated forestry access route. Shortly written questions in relation to these will be presented to the Parties by UNECE for answer by the end of February.
Knowing that as 2013 progresses, more interest will be shown in the above and similar, I have prepared the attached draft document. It outlines how the position was reached, such that the Irish renewable energy programme is in a Judicial Review, and more to the point, where this has the potential to lead to. Not all people will be interested in reading such detail, even fewer using it as a guide to act themselves, but there are always a few, as the Irish playwright George Bernard Shaw put it: "The reasonable man adapts his needs to the world, the unreasonable man persists in adapting the world to his needs, therefore all progress depends on the unreasonable man".
So Happy New Year and if you have the possibility to circulate this draft to a wider audience, I'd be interested to read their comments.
Reader Comments (17)
Bravo Pat Swords, and all such unreasonable men and women.
Tony Newbery of HarmlessSky has long argued that judicial review is the only way forward - that only the legal mind is capable of sorting out the complexity of the arguments around the science and the politics of climate change policy. He points to Justice Burton’s judgement in the case of Dimmock v the Crown over Al Gore’s film (do read it, as an example of how to be polite and deadly).
Newbery fought and lost the legal battle against the BBC, and Morabito went and won it for us all.
It’s hard, boring work. If it works, it’ll prove, among other things, that we lightweights are just wasting our time. I don’t mine that. He also serves, who only hangs around watching the show, or something.
My admiration for people like Pat Swords is boundless.
My admiration for people like Pat Swords is boundless.
Jan 7, 2013 at 8:54 AM | Jack Savage
Mine too and my immense respect.
This will take a lot of careful reading. I agree with the sentiment that "My admiration for people like Pat Swords is boundless".
In order to save the World, that is national and international socialism, democracy and rights must be put aside?
Pat, we all owe you a debt for slowing (and hopefully stopping) the juggernaut which is trampling on people's economic, political and social rights. You have obviously done a lot of work, presumably at your own expense and in your own time, and there are not many like you. People like you and Steve McIntyre strike dread into the hearts of your opponents - because you won't be intimidated, you do your homework and you won't go away.
I had a look at the document. One thing I'm not clear on from your post is what the purpose is. Is it a legal guide for others, or a history of the campaign, or a polemic? It reads like a bit of each, which is fine (it's your document) but it would be easier to make constructive suggestions if you clarified what it is to be used for.
One quick suggestion is to get an editor to go through the final version - there are some dodgy bits of grammar and construction which could be easily fixed, and would make it more professional and easier to read.
Once again, well done, and good luck!
Pat Swords is well known to reader as the man behind the legal challenge to the Irish government's renewables policy.
Then:
...grandmother-takes-uk-and-eu-to-the-united-nations-over-plans-to-turn-scotland-into-windfarm
Which is it, M or F?
Whichever, I'm in the 'boundless admiration camp'.
"Pat Swords is well known to reader"
There's more than one of us, surely..?
Lord help him if he misplaces an apostrophe in here.....
Snotrocket - Pat is an Irish bloke, the Argyll granny just used Pat's legal argument to challenge a proposed windfarm in her part of Scotland. At the risk of being terribly PC (which I normally would never feel guilty about) I recall a fair point someone made about the Independent's article being both sexist and ageist - the lady in question is a community councillor, who just happens to have grandchildren, and this has no bearing on the strength of the argument she is making. Many other male councillors and politicians have grandchildren as they are not described as grandfathers. Sorry for the OT digression.
You say "If people solely express opinions, then the political process and the administration which fawns to it, will just exist to manipulate various opinions to maximise its agenda. If progress is to be made, we have to move away from public opinion to holding the administration to account on the detail, in particular did it follow the procedural requirements to reach the position it is now in. "
I'm not quite clear about the logic of your first phrases, but the middle and last ones are clear and convincing. I suspect that work calls for a particular grit and determination, and that you have it. More power to your elbow. I suspect your work is more effective at least in the short term (where we all live!) than the work of 100 of those of us of who, like me, merely record their opinions and make lament like pipers playing on a remote hillside while you are in the thick of a battle.
@Pat Swords
Although I'm an Aussie, I married an Irish lady. Her (and my) brother-in-law is a Dubliner who worked for the Independent over many years. I had the pleasure of being guested for a week in his Dublin home just last October
I mentioned your name to him, along with the various comments etc you are publishing and the legal status quo you have described
I've forwarded these links to him
The quis custodiet question ("who shall guard the guards?") is duly answered by the idea of "standing surety" dating from Magna Carta signatories at Runnymede in AD 1215. "Sureties" are not self-dealing officials concerned with maintaining their prerogatives, but private citizens dedicated and above all organized to ensure that so-called public-sector parties adhere in letter-and-spirit to policies, principles, procedures agreed to in matters significantly affecting a polity's well-being.
As postwar constituents have discovered, mere voting provides neither protection nor redress against malfeasant public officials bent on exploiting State resources for their personal financial benefit or manipulative ideological ends. But the genius of representative democracy is procedural: Repealing or rescinding Corn Laws, "rotten boroughs," ruinous collectivist tax-codes, need not require riots, tumbrils transporting miscreants to the Place de la Concord. But absent Sureties, mass-action very well may be a prerequisite to lancing public-sector boils.
If, please God, these Judicial reviews have the outcome we all crave - can I retain the movie rights..? (I'm thinking Erin Brockovich....)
Just wishin'....
Thanks for the comments. Yes it is all work in progress, this is a whole area of environmental law and democracy, which is only evolving. However, with regard to putting a strong procedural and technical framework on the system of governance it is vital.
The good news. The questions presented by UNECE on the Communication on the Scottish renewable energy programme are just out. They will be up on the webpage shortly, see below, but they are good, real good.
http://tinyurl.com/8sfe9te
Both the Scottish and EU administrations are being asked to demonstrate, how they have in particular instances complied with the procedural requirements and took submissions into account in the decision making. Furthermore, given the thousands of wind turbines in Scotland, they are being asked to explain why the Renewable Energy Route Map is a policy not a plan / programme. In other words, the documentation is still draft, there is no official plan / programme, there was no information disseminated and public participation completed prior to adopting the plan / programme. Yet the turbines are all over the landscape.
My Judicial Review on the 15th is a real test case. According to the Convention and EU law I have to be provided with Access to Justice, which is fair, equitable, timely and not prohibitively expensive. Yet there are absolutely no Court rules in place to implement this. In both the Irish and UK system you have to pay up front and if you win then the Judge has the discretion to award you costs. However, this is a breach of your rights, what happens if you lose or the case runs on for days and you run out of funds? This is not equitable or 'not prohibitively expensive'. The UK has already been found to be non-compliant on this by the Aarhus Convention Compliance Committee and the EU Commission, so a test case has been referred to the European Court. This was heard in September, but the judgement is not out yet.
http://tinyurl.com/b4a3g9u
So my Judge is in a dilemma, the Convention is now ratified by Ireland, the European Court has already ruled that our legal cost rules were non compliant (C-427/07), further direction on this has been handed down by the European Court (C-240/09), additional action has been taken by the EU Commission against Ireland on this matter (issue of Formal Notice in May 2012), now I am in front of him with a really valid case. I'm saying it is not adequate for me to be replying on his discretion, as this is against the ruling of the European Court in C-427/07:
http://tinyurl.com/az6q3e6
He knows that if he comes to a deal, then precedent will be set. The Courts don't want to do this, as it opens them up to the citizens to challenge the State, so they have still in the last few months 'shut the door' on those who have applied.
http://tinyurl.com/aypvbne
http://tinyurl.com/af8u8ue
as the Chinese proverb states - 'may you live in interesting times'.
@Pat Swords
I trust you will post here at least a link to the outcome in a week
It may be that a decision is with-held as pending, or a decision delivered with reasons to be published later (common enough), or ... any of a myriad of variations
But we are watching with keen interest. Accountability is an equally pointed issue in Aus, and almost as difficult to achieve, although we don't have as yet the impenetrable overlay of the EU bureaucracy. We will soon, however, as our own unaccountable Govt has deliberately linked the various segments of CO2 emissions/renewable energy "policy" to that of the EU within a few years
Those who fudge and vitiate and circumvent procedures and Constitutions do not do so out of carelessness or ignorance or sloth. They act with purpose. Never forget that.