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Laws and State Agencies (Episode 6)

Three ornaments of wisdom: abundance of knowledge, a number of precedents, to employ a good counsel.

– The Triads of Ireland

There are three sources for laws in Ireland, the national parliament structures, the EU, and international agreements. As I stated in the first episode, international law can be a bit of an honour system, so it only counts as binding once it’s been ratified in a country. In Ireland this means passing a piece of legislation through the Dáil and the Seanad each time that integrates the new agreement into Irish law. So legally speaking these agreements are no different from any law passed exclusively in Ireland, however there is a perception that there is less enforcement applied these laws and that breaches of them are less politically damaging to a sitting government than breaching laws of national origin. For international and EU regulations in particular there are a lot of initialisms and acronyms to decode and so I’ll specifically be adding a glossary of them to the end of the written version of this episode before the sources, at From the Roots pod dot com.

I want to clarify some terms about Irish state structures for anyone less familiar, particularly any international audience. Ireland has a two-house parliamentary democracy, referred to in its entirety as the Oireachtas, the main house of which is the Dáil and the members of which are called Teachta Dála, or more commonly TDs. The upper house or the Seanad, made up of Senators, it has a less active role and probably won’t come up as much. While the creation of legislation is centralised in the Oireachtas, the implementation of policy and infrastructure projects have historically the remit of local area authorities, also known as county councils, though there are exceptions to that, as well as state or semi-state agencies.

The role of state agencies, sometimes referred to as advisory bodies, is to act as autonomous or semi-autonomous groups to help develop and implement policy in targeted areas. No one definition exists of state agency in Ireland which is universally accepted, which has led to conflicting views between public service organisations. This inconsistency was actually noted in a 2008 OECD report on the Irish public service.

For this podcast though, I’ll define them as state-funded organisations which operate outside the main structure of the civil service but are beholden to government policy objectives. State agencies are more directly under the authority of the relevant government minister, though they tend to take a hands off approach for operational purposes in particular where they are generating research or evidence-led policy papers, whereas semi-states are more autonomous again and the state acts in the role of majority share holder. For example the National Parks and Wildlife Service, NPWS, or Teagasc the agricultural research group are a state agencies, while Coillte the for-profit forestry service is a semi-state. The work and history of any of these agencies could require their own episodes.

Like with the government departments, various state agencies have been created, changed, renamed, merged, split and dismantled many times since the foundation of the state. Frequent changes to the name of departments or agencies responsible for environmental policy adds confusion to research either in the literature or through primary sources.

One of the early state agencies relevant to environmental policy was An Fóras Forbatha (National Development Agency) set up in the late 1960s. An Fóras Forbatha was responsible for much of the early calls for increased environmental regulation in Ireland because surveys which highlighted concerns due to ongoing development. An Fóras Forbatha was dissolved as part of the foundation of the Environmental Protection Agency (EPA) in 1992.

There’s a pretty limited academic literature on the history of Irish environmental policy-making. A lot of articles mistakenly assume that it didn’t really exist before we joined the EU. So the majority of research that does exist is concerned with implementation of EU directives rather than the process of national policy making.

The first national park was designated in 1932, just ten years after the beginning of the Irish Free State, but the statutory protection for that park was never properly set out and actually the legal protection afforded to all Irish national parks as entities is still debatable to this day.

The next legislative move which could be considered environmental would the Consolidated Fisheries Act 1959 (Flynn 2003). This is part of a larger trend internationally where early wildlife protection often came from the perspective of managing game. Early national parks were supported by big game hunters. Similarly in Ireland the Fisheries Act was more from the perspective of keeping fish stocks up than biodiversity, but the effect was similar.

When discussing that era pre-EU, pre-EPA, environmental regulation, a lot of writers leave out the original Wildlife Act of 1976. In more than half of the academic sources that I looked at, the Wildlife Act is not even listed among the statutes covering the environment. Because the law didn’t come into effect until 76, three years after we joined what was then the European Economic Community or EEC, it tends to get lumped in with the policies we adopted as part of that European influence. That opinion was put about by one academic George Taylor and then cited by a lot of other people, but a newspaper archive search can show very easily that the Wildlife Act was being promised by politicians as early as 1966 and was debated publicly throughout the 60s and 70s.

The Wildlife Acts have been amended and added many times since 76, most recently in 2021. One of major things that the Wildlife Acts do, are give the government and civil service a series of what are called statutory instruments, or set of legal tools, to protect wildlife and habitats. Two of these tools are Nature Reserve Designation Orders or Natural Heritage Area Designation Orders. Nature Reserves are state owned land that are given the kind of protection that most people assume is given to national parks and puts them under the direct management of the National Parks and Wildlife Service. Other instruments include flora protection orders or protection of wild animals orders that grant legal protection to specific species.

For example, there was a Protection of Wild Animals Order put into effect in 2022 for basking sharks. While the shark fishing industry in Ireland had collapsed decades ago when populations plummeted, they weren’t technically a protected species until increases in sightings over the past few years brought them to national attention.

That protection order is also a fun example of the way that ecological protection gets bounced around between departments. The order was put out by Malcolm Noonan who is Minister for Nature, Heritage & Electoral Reform, an interesting combination, which is a junior ministry in the Department of Housing, Local Government & Heritage. It had to be co-signed by Charlie McConalogue, Minister for Agriculture, Food & the Marine, because fisheries comes under their control. Meanwhile the OPW that manages both heritage sites and flood management is under the Department of Tourism where it was moved from its previous home in the Department of Finance. Just in case I hadn’t already made my point about how the civil service shuffle can complicate any research. 

I am belabouring that point not because state agencies like the NPWS or parts of the civil service like the OPW, don’t have anyone doing good work but because both that good work itself and anyone on the outside trying to support or critique it have to stumble through a lot of organisational labyrinths to do so.

The NPWS is the state agency responsible for enforcing the Wildlife Acts but they have very little support or capacity to do so. The Gardaí, Irish police force, are not training in ecological crime and have been known not to pass information on to the NPWS or the Director of Public Prosecutions (DPP). This tangle makes it difficult for people who do want to support wildlife to know who to reach out to and makes it easy for bad actors to get away with breaking these regulations. NPWS is severely under resourced for its huge remit and responsibility, but that also deserves its own episode.

There are three parts to the European Union when it comes to lawmaking, the Commission, the Parliament and the Council. The EU Parliament with its MEPs is probably the best known and understood, as it functions in a similar way to any parliament. The Commission is the executive, functioning like a European civil service, and the Council is made up of one government minister from each member state.

There are whole host of EU regulations related to the environment and there might be future episodes on specific ones. Two significant laws that I wanted to mention are the Habitat Directive and Water Framework Directive.

The EU Directive on the Conservation of Habitats, Flora and Fauna, commonly known as “the Habitats Directive”, was adopted in 1992 and transposed into Irish law in 1997. It requires Member States to take measures to maintain or restore natural habitats and wild species listed on the Annexes to the Directive. Under Article 11 of the Directive, each member state has to monitor the conservation status of the habitats and species in the Annexes and under Article 17, to report to the European Commission every six years on their status. This work falls also to NPWS in Ireland. It calls for the designation of key habitats called Special Areas of Conservation or SACs, and unlike national parks or nature reserves, these areas apply regulations across landscapes regardless of land ownership. In April 2019, Ireland submitted the third assessment of conservation status for 59 habitats and 60 species. I’ll add that report to the source list.

Similar to the Habitats Directive is the Birds Directive, except that the areas assigned to its regulation are called Special Protected Areas or SPAs.

The Water Framework Directive had the relatively simple aim to improve water quality. It applies to rivers, lakes, groundwater, estuaries and coastal waters. It was agreed by all member states in 2000. It runs in 6 year cycles, its first cycle ran from 2009 – 2015, the second from 2016 to 2021, and the current cycle will end in 2027. The Directive’s aim for ‘good status’ for all water bodies by 2027 will almost definitely not be achieved, with less than half of EU water bodies reaching that status. 56% of Irish rivers are in good conditions, which is slightly above the EU average, but far below the goals of the Directive.

There are four main international environmental agreements I want to highlight, but like this the previous two categories, this is by no means an exhaustive list.

In episode one I outlined the Paris Agreement, which is probably the best known and the most likely to be mentioned in current news stories. The Paris Agreement dates from December 2015 and outlines the specific goals of holding the global average temperature to below 2°C above pre-industrial levels and aiming to hold them below 1.5°C above pre-industrial levels. The EPA has stated that Ireland’s current policies mean that we will not meet our national targets.

Paris stems from the 21st Conference of the Parties of the far harder to name UNFCCC (the United Nations Framework Convention on Climate Change) from 1994. The UNFCCC was drafted at the 1992 Earth Summit in Rio de Janeiro. A lot of the international agreements related to the environment to this day still have their origins in that conference.

One that predates the Earth Summit is the Vienna Convention on the Ozone Layer. The Vienna Convention began in 1985 but wasn’t binding until the Montreal Protocol two years later which dealt specifically with substances that deplete the ozone layer. The most well known of these substances were CFCs, chlorofluorocarbons, found in refrigeration and aerosols. Ireland ratified Vienna in 1988 and its often considered one of the success stories of international environmental cooperation.

Another treaty that came out of the Rio Earth Summit was the Convention on Biological Diversity. Ireland ratified it in 1996 and we’ve submitted six national reports about our progress to its aims also through NPWS.

The Aarhus convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dates from 1998 but was ratified by Ireland in 2012 and all EU states are members of it. Aarhus was very forward looking when it was written. It made a point of linking environment protection and human rights. That idea and concepts like climate justice are more mainstream now, but in the 90s it was a significant achievement. For all its forward thinking though, a lot of its aims remain unfulfilled. It explicitly acknowledges the obligation owed to future generations and on sustainability being something achieved with open democratic structures and public accountability. It allows for Freedom of Information on the Environment requests in particular. The style of the convention inspired the EU Water Framework Directive.

There is so much that I haven’t outlined in this episode in order to stay within my fifteen minute goal. Overall the take away I’m hoping people get from this information dump is that the surface of environment law appears very convoluted, but the on the ground reality is often much simpler. There’s usually only one or two bodies taking responsibility for something and the information is usually publicly accessible, but you have to be familiar with a host of initials or jargon in order to know what to search for. In some ways this episode sums up why I wanted to start this podcast.

Glossary

CBD – Convention on Biological Diversity

CFCs – Chlorofluorocarbons

DPD – Director of Public Prosecutions

EEC – European Economic Community (precursor to the EU)

EPA – Environmental Protection Agency

NPWS – National Parks and Wildlife Service

OECD – Organisation of Economic Cooperation and Development

OPW – Office of Public Works

SAC – Special Area of Conservation

SPA – Special Protected Area

TD – Teachta Dála

UNFCCC – United Nations Framework Convention on Climate Change

Episode 6 Sources

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