I welcome the Minister of State, Deputy Thomas Byrne, and his officials. As I said in the very limited time that was available on Second Stage, I am totally opposed to the enactment of this Bill. I want to make a few points.

First, I am fully in favour of free trade. I do not believe in tariffs. As between Ireland and Canada, I have no problems with the European Union concluding a trade with agreement with Canada for the importation and exportation of goods and services between the two jurisdictions, namely the member states of the European Union, which are independent states, on the one hand, and Canada, which is a highly respectable, stable democracy, even if it is, at present, under siege from the appalling rhetoric of President Trump, on the other.

The second point is that I do not believe that any real Irish interest is served by the Comprehensive Economic and Trade Agreement, CETA, being ratified. The free tree trade elements of CETA are already in operation, so the positive benefits of the agreement are already in play.

Nobody that I know of in this House is opposed to those already existing elements continuing to operate. As a matter of European law, the EU is not competent to conclude this agreement except by the individual ratification of all its member states. At the moment, or as last advised, 17 EU member states have indicated their willingness to ratify it and ten states in the EU have yet to ratify it. This is something in which we have a free choice. This Bill is before us because former Deputy Patrick Costello brought a case in the High Court effectively to prevent Ireland from ratifying the CETA agreement on the grounds that it was an impermissible derogation from Irish sovereignty, on which point he won by a majority of four to three in the Supreme Court. The Supreme Court held that for Ireland to ratify this agreement, with the Constitution as it is and the law as it was, would be unconstitutional. So we start from there.

As I indicated on the last occasion, being in favour of free trade and tariff-free imports and exports between countries does not mean being in favour of elevating international capital or international corporations to the status of sovereign independent states - bodies that can go to a tribunal and have a sovereign state made amenable to the order of that tribunal, except insofar as a sovereign state agrees voluntarily to accept that state of affairs by way of some international agreement. It is well worth noting that Belgium, Bulgaria, Cyprus, France, Greece, Hungary, Ireland, Italy, Poland and Slovenia have not ratified the CETA agreement. These are not just outliers. France, Poland, Hungary and Ireland are countries which are significant players in the European Union's affairs. What I find problematical about this Bill is that its effect is not stated honestly to the Irish people. I listened carefully to the Minister of State's reply on Second Stage and I agreed with a lot of it. This does not prevent Ireland from regulating huge areas which are part of our sovereign entitlement as a member state. We are not totally bound by this agreement to surrender those powers of regulation, as the Minister says. I accept that proposition.

However, that is not what is at stake here. I regard it as unfortunate that the Supreme Court, when asked by former Deputy Patrick Costello to rule whether Ireland could ratify the CETA agreement as it stood by reference to the Constitution, ruled by a majority that it could not do so - that the Constitution did not permit the State to do so. Unfortunately, the majority agreed to a formula put forward by Mr. Justice Gerard Hogan which effectively said we should amend our Arbitration Act so as to qualify the enforceability of the decisions of the appeal court envisaged by the CETA agreement to make them unenforceable in the High Court in Ireland, and presumably in the Irish courts of appeal, if they adversely affected the constitutional order of the Irish State on the one hand or European law on the other.

I have the greatest respect for the judges of the Supreme Court and in particular Mr. Justice Gerard Hogan, but it was not his function to speculate on what amendment would or would not get the Government out of its difficulty. I do not see it as the function of the Supreme Court to effectively advise proofs as to how Ireland could ratify CETA without offending the Constitution. Why do I say that? First, it was prejudging a broader issue as to whether the combined effect of this Bill, if enacted, and the CETA agreement are, in fact, constitutional. It was prejudging that issue and the Supreme Court should not do that. If this Bill was put before the Legislature and enacted into law, it was perfectly open to somebody to decide to litigate it before a court which has not committed itself to any propositions in relation to the question as to whether this Bill actually does clear the decks, so to speak, for Ireland's ratification.

Therefore I think it was an unfortunate, if well-intentioned, peradventure into what is in fact the political sphere for the Supreme Court to say that if the Legislature comes up with an amendment to the Arbitration Act, there is no constitutional problem insofar as it provides in the amending Act that there is a residual capacity on the part of the Irish courts to refuse to enforce the decisions of the arbitral court and the appeal court provided for in CETA on the grounds, crucially, that they would adversely affect the constitutional order of the State.

What is the constitutional order of the State? We do not know in advance what the constitutional order of the State will turn out to be in this context. It is a very vague phrase. It is what the Supreme Court in the end will decide it means if a challenge comes to this legislation or to Ireland's ratification at a later stage. The real question is as follows. Is the formula put forward by Mr. Justice Hogan's judgment, in which a majority of the Supreme Court ruled that Ireland's ratification of CETA would be unconstitutional without it, effective? I do not think it is. I do not think it has any effect at all. I think it is a legal fig leaf, a fiction and a fantasy.

I might elaborate on that point.

Section 25A to be inserted proposes that an award of the appeal court provided for by CETA is "not ... enforceable in the State if enforcing the award would compromise ... the constitutional order of the State." What does that mean? What is the constitutional order of the State we are talking about? What is the implication of that vague sentence? Mr. Justice Hogan was not legislating when he handed down his opinion as to a possible cure for the inability of the State to ratify CETA. In the language he used he was not purporting to determine what would be the constitutional order of the State. He was not saying that one set of circumstances would be compatible with the constitutional order of the State but another would not. He was not attempting any of that. Yet, we have this half-mangled sentence from his judgment put down before us as if it is a cure-all - the placebo pill effect. We are supposed to say that this cures the problem because the majority of the Supreme Court has said that if the Arbitration Act is amended to include a formula of this kind - not in those exact words - and if we do what was hinted at by the majority in the Supreme Court by putting in this formula of words in the amending statute to the Arbitration Act, the constitutional problem goes out the window.

There are so many obvious problems with this. It is, as presented to this House, a sham. If I did not believe that I would not say it. First of all, it is utterly vague. I do not know whether a particular set of circumstances would offend the constitutional order of the State at all. I do not know what that means but I know that a jurisdiction is being created for the High Court in Ireland to consider that question. Let us be clear that every statute has that written into it, implicitly. The Road Traffic Act has that written into it. It must be interpreted in accordance with the Constitution. Is that what we are talking about? Is that what this great cure-all supposedly achieves? Every single Bill we pass in this House is impressed with the imperative that it must be consistent, must be applied by the courts and everywhere else, and disapplied if it does not satisfy the test that it is compatible with the constitutional order of the Irish State. This is nothing new. Every single Act and statutory instrument must be interpreted in that way.

But none of them say it.

None of them say it. None of them say, "This Act is clearly unconstitutional because we have written that into it." Nobody has ever made such a brazen attempt to put a fig leaf on a proposal which is either redundant or meaningless.

My second point is that the Bill purports to say that these orders are not enforceable in the State but are enforceable everywhere else. Every asset of the Irish State anywhere in the world is amenable to an action. Let us suppose that we have reserves in banks in Spain, New York or Switzerland, or gold reserves held here, there or anywhere, they are all amenable to actions in those states if they are the means whereby damages or whatever are awarded to a Canadian company. Every single asset of the Irish State abroad is amenable to it. The Irish State is amenable in any jurisdiction which accepts jurisdiction in litigation to a declaration that it is in breach of CETA and that it is liable to an investor in Ireland.

The formula that has been chosen here actually is that it would not be enforceable in the Irish State, but that excludes the vast majority of jurisdictions across the world where it is enforceable. If Ireland wants to fight a case, it has to persuade the Spanish, Swiss or German courts that Ireland signed up to this agreement on the basis that nothing in it could be enforced if it infringed the constitutional order in Ireland. If the Spanish, Swiss or German courts decide that this is a strange ground being offered as to why it should not be enforced, what might a European Union member state do? If it did not reject it outright and say it was rubbish, it would refer it to the European Court of Justice to decide whether this is a legitimate ground for contesting enforceability, in Spain, France, Germany or wherever else, of the CETA court judgment. This is the fundamental problem with Mr. Justice Hogan's formulation. What will the European Court of Justice make of this? The Government has signed up to an agreement. The Minister has said that the Arbitration Act, which is a local statute, permits him not to have it enforced within Ireland. Is that consistent with CETA, as ratified by all the other member states and now as part of European Union law? I would put my entire life's savings, such as they are, on the proposition that the Court of Justice of the European Union would rule that Ireland has signed the agreement and is bound by it. It would rule that no amendment, this way or that, either before or after it was signed, can vary Ireland's liability under it. No domestic legislation can have that effect.

I will develop this point, if I may. If this is effective, it will be effective in three years' time as well. If we suddenly woke up and said, "We forgot about the Bill that was presented to us in 2025 but we are now going to introduce the same protection." If it is good law in European law terms, it should be capable of being done before or after we ratify this agreement and before it becomes binding on Ireland. For instance, would it be unlawful to repeal the Arbitration Act with this in it if the effect of that was to lay Ireland open - because we have ratified CETA - to an action which this particular formula seeks to make unenforceable?

This brings me to a second, fundamental objection I have to this. The Minister and the Government have not said, at any point, that when it ratifies CETA it is done subject to the reservation that none of it is enforceable in Ireland, but all of it is enforceable outside Ireland against Ireland. Is the Government going to put a protocol in or a reservation in our signature to the treaty that it cannot effect the so-called constitutional order in Ireland, whatever that formula means? Is anybody seriously suggesting that we are going to do that and get away with it? One of the things we have to tease out here on Committee Stage is whether it is the intention of the Government to ratify CETA without qualification, or is it the intention of the Government to say that it has a reservation here?

I see the Minister of State nodding his head to the first proposition and shaking his head to the second. There will be nothing on paper if Ireland ratifies CETA to show this particular reservation has been made domestically as part of domestic jurisdiction in Ireland. Anybody looking at CETA with Ireland's ratification attached to it will see nothing about our constitutional order in it. There is no protection whatsoever for somebody whose job it will be thereafter to adjudicate on whether, in any particular case, an order of the CETA court or CETA appellate court is enforceable in Ireland. There will not be a trace of it in international law. It will all be found in domestic law, and in the insertion of an obscure section, namely section 25A, into the Arbitration Act 2010.

This is fundamental. If Ireland is going to ratify and execute the CETA agreement and is not going to say," By the way, back in Dublin we signed and enacted this little change by way of amendment to our Arbitration Act, which makes some possible outcomes unenforceable in Ireland", and does not make that a condition or qualification of our ratification of this agreement, it will not be worth a damn as a matter of international law. This is a fraud. If we are telling the Irish people that we have this protection internally against enforcement in Ireland but that, at the same time - and this is the crucial point - we are saying that we did not make this clear to all the other states at the time we adhered to this agreement and that we never said that our ratification was subject to a protocol or reservation along these lines and if that is the basis on which we are going to move forward, then it is completely worthless.

Selling a worthless proposition of that kind to the Irish people is a very suspect thing to do. Let us imagine what will happen if an action is brought against Ireland by a Canadian company in the French courts - if France is foolish enough to ratify this as well, I have to qualify that - or the German courts, of course, Germany has ratified it. Is a German court going to say, "Well sorry, this is the agreement. Where in the agreement does it say that you can opt out by virtue of some particular adjudications of the arbitral court, by reference to the provisions of the Irish Constitution?" The Irish lawyers are going to say, "Well, it doesn't actually, but in the Dáil and the Seanad, the Irish people were led to believe that this would be effective.". The German court will say, "Sorry, we have to interpret the treaty as we have it. If you had this problem about its enforceability on particular grounds, you should have stated that as part of your ratification process." If someone waves a copy of Mr. Justice Hogan's decision or a copy of the legislation before the court, it will say, "That is a piece of domestic legislation. We cannot consider the treaty - the CETA agreement - by reference to a piece of domestic legislation enacted in Ireland after Ireland signified its agreement to this treaty."

It will not be possible to do that in pursuance of some kind of way out of the Supreme Court's general finding in the case brought by Patrick Costello to the effect that the ratification of the agreement, as it stood, was unconstitutional. I have to express surprise at the Supreme Court's acceptance of this formula, not merely because it was not submitted to the court for adjudication, not merely because it was outside the scope of the litigation put before it or because it was, in effect, considering in advance a situation that might or might not arise depending on what the Oireachtas did but because the whole idea that section 25A cures an unconstitutionality in terms of ratifying the CETA agreement is mistaken and incapable of being stood up before any tribunal. It is ineffectual and wrong.

The other thing we have to bear in mind is that once we put our head into this particular jurisdictional noose and stand on the platform, it will be for others to pull the lever thereafter. Ireland cannot get out of this agreement, except by leaving the European Union. We are stuck with it, and we are stuck with the jurisdiction of the European Court of Justice to determine what the agreement means. It will no longer be a domestic entitlement of the Irish court system or of the Irish people, even by referendum, to say whether or not particular judgments of the arbitral court or arbitral appeal court are enforceable in Ireland. That is of huge significance. Once we ratify this, it will become part of the European furniture. We cannot get out of or denounce this agreement unless the whole of the EU decides to denounce it. Let us be clear about that. Unlike with most treaties, Ireland will not be in a position to state that it is denouncing the agreement, that it is not longer effective and that, for whatever reason, it has decided to exit it. Once this becomes ratified by all the member states that are party to it, including Ireland, the European Union will be the only body capable of reversing out of it. Individual member states will only be able to get out of their obligations under it, which last for 20 years no matter what happens, by leaving the European Union.

Let us be clear that this is going to be the law. It is not my version of the law; that is what we are going to do. We are going to put ourselves in a position where once this becomes part of the furniture of the European Union in terms of its trade portfolio of agreements, we cannot get out of, change or do anything else about it, unless all the other member states agree. We will no longer have an individual, sovereign right to effectively renounce or denounce this agreement under the international law relating to treaties. That is hugely significant.

Dr. Oisin Suttle, a member of Maynooth University's department of law, has said that once CETA is adopted, Ireland will become subject to EU law in respect of its obligations under the agreement and that only Canada or the EU, as a whole, can terminate it. In his words, "It is Ireland's choice to be bound by the treaty but once bound, it will take the EU and its member states, acting together, to terminate it." As already stated, even if the treaty was terminated by the EU, for whatever reason, obligations in respect of investors and the investment court system provided for in the agreement, will remain in place for a further 20 years.

Why do we want to do this? This is the fundamental problem I have with this. If this were necessary to attract trade or investment from Canada or to permit trade or investment from Ireland into Canada that would otherwise not occur, an argument could be made that this was a good thing from Ireland's point of view. Let us say, for instance, that there were Canadian firms lining up to invest in Ireland saying that, until we became party to CETA, they were not going to invest and they would not trust our system to protect them if they made an investment in Ireland. If that were a plausible scenario, then fine. Then the people, through the Legislature, would have to ask where the balance lay there. Is there a whole load of investment that is not going to take place or is going to go elsewhere other than Ireland if we do not accept this proposition, and is the only way to attract that investment to accord rights to investors from Canada to have these supraconstitutional rights of enforcement against Ireland? If that was the question we had to decide, I would sit down and say we should examine it in detail. However, let us also be clear that the free trade aspects of CETA have been in operation for nine years. During that period, Irish exports to Canada have quadrupled and Canadian exports to Ireland have increased from €1 billion to €10 billion annually. What do we want on top of that? What is the issue with us not accepting that these arbitral investment courts should be in place? What has it prevented happening that otherwise would happen?

That is where we come to the fundamental absurdity of Ireland not thinking of its own self-interest. If I were a Canadian investor or the chief executive of a major Canadian company and I had to choose between Ireland and, say, Bulgaria as the location for my €10 billion investment in a huge piece of national infrastructure or whatever, I would say Ireland was a pretty rock-solid place. The Judiciary is independent and respected. The common law system and its principles as known in Canada apply in Ireland, too. The Irish courts are predictable. I would get as fair a hearing in the Irish courts as we would in the arbitral court. However, what we are doing here is effectively saying we are all Bulgaria or Slovenia. We are all as doubtful in the minds of investors as the most doubtful party to this agreement and for that reason, any investor is to be given the same rights against Ireland as it has in respect of the dodgiest state. Who is actually asking for this? Are there Canadian companies saying they would love to come to Ireland but the system of law is insufficient protection for them? Not merely do I not believe that; I believe that is an absurd proposition and in those circumstances, it should not be entertained as a reason.

The flip side of that coin is that if there is any Irish company - there are many Irish companies investing in North America - saying it is a bit worried about the Canadian system and how it may confiscate or completely compromise the company's investment if it invested in Canada and that there would have to be a special arbitral court before investing in Canada, then I have never heard of such an Irish group of would-be investors. The idea is simply grotesque.

Some people have come with a slightly old-fashioned view about sovereignty. Some people have stated that we cannot compromise our sovereignty in any way. We do compromise our sovereignty by international trade agreements to which we are a party, but in all of those agreements, except this one, we are free to say that if it comes to Ireland, say, nationalising the road system in which Canadians have invested or whatever it is - getting rid of toll roads owned by Canadians or something like that, if it comes to a decision of that kind - and we are told this would violate an international agreement, we can actually denounce that agreement as a matter of international law and say that, in future, toll roads are susceptible to nationalisation. If the Canadian investors in the toll road system came to Ireland and said they had effectively been expropriated or seriously damaged by the new legislation brought in in Ireland, which violated their rights as investors, the Irish High Court or Supreme Court would look at that proposition and see if it was true. If they had been short-changed by the actions of the Irish State or whatever, they would be entitled to compensation because they did a deal that guaranteed this would not happen.

That would be fine but this is essentially different. It is fundamentally different in that we are saying, for the first time, that Ireland is agreeing that no matter what the Irish courts think of a dispute or their own neutrality in a dispute, an investor has the right to go to an investment court and obtain a judgment that will be enforceable in Ireland or anywhere else in the world. That is what we are doing, and we are being told it is all right to do this because the Arbitration Act has been amended and a court before which such a claim is brought in future can ask itself the question in Ireland, as regards a case brought in Ireland, whether enforcement of the order would, in some sense, jeopardise Ireland's constitutional order. It is not worth the paper it is written on because anybody who is dissatisfied or institutes a claim in Ireland, for instance, and who does not go to Europe directly can, if they get a negative outcome in the courts, demand, as of right, that the European Court of Justice should adjudicate on whether section 25A of the Arbitration Act is sufficient as a matter of European law to withhold enforcement of the agreement in Ireland. Anybody who is dissatisfied with an Irish court's decision on this matter, where section 25A is invoked, is entitled, as of right, to ask the European Court of Justice if it is valid and whether it gives Ireland a way to ignore and fail to enforce in Ireland the award of the investment court.

You cannot predict everything but I can predict one thing about the European Court of Justice, having appeared there on occasion. That court will throw out the Irish objection on its backside and tell us, sorry, but we signed this agreement, we had the opportunity not to sign the agreement, nobody forced us to sign the agreement and we never wrote into the agreement that section 25A applied as a special protocol to Ireland, yet we are now waving an Act that was passed some time in 2026 in front of the court's nose and telling it that the Act lets us off the hook on constitutional grounds.

That is what the Government is predicting the European Court of Justice will say, namely, that it never thought of that one and, goodness, section 25A of the Arbitration Act gives Ireland an out on this. The chance of the European Court of Justice accepting that proposition is, to put it mildly, absolutely zilch.

That is not true.

It will not happen. It simply will not. The European Court of Justice will say that, if we had written it into the agreement as a reservation and a protocol, then anybody investing in Ireland would have to be aware that there was this particular loophole in Irish law that allowed the Irish courts to refuse to enforce the agreement and it does not apply to the courts of any other member states before which such a case was brought. For that reason, the so-called escape hatch that the Supreme Court waved at the time it found in favour of former Deputy Patrick Costello is not worth the paper it is written on as a matter of international law. It is not enforceable. It is of no value to Ireland.

The last point I want to make is on a more general ideological approach. I do not subscribe to any left-wing ideology at all but I do subscribe to this proposition: individual nation states, particularly those with the rule of law and democracy, are the granular guarantors of the rights of citizens, collectively and individually. We are not in some miasma soup where international capital flows around and is accorded the same status as a state. You can call it neoliberal but that is ridiculous. It is elevating capital, including investors' capital, to a height where it is shoulder to shoulder and on equal terms with sovereign states to create this jurisdiction. It is saying that money can out-trump the democratic wishes, properly expressed, of the people of a sovereign, independent nation state. It is all right to have investment courts provided for by agreements but ones that you cannot get out of are qualitatively different.

The question I have to put is why this is being pushed here now. Is it because Mark Carney, the eminently decent Canadian Prime Minister, is shortly to visit us and we want to have something to give him on the way in, like Keir Starmer's letter to President Trump, saying we have done our bit for him? Will the Minister of State be posing with the Tánaiste and the Taoiseach, waving at the Prime Minister Ireland's instrument of ratification and saying this is what we did for him? We are so friendly with Canada, we did this for him. What is the hurry on this if all of those other member states have said they are not ratifying this? Why do we need to do it now? There have been constant statements in the media to the effect that Ireland will do this as a matter of urgency to coincide with Prime Minister Carney's visit to Ireland. That is grotesque.

The very last point I want to make on section 2 is that section 25A does not just apply to Canada.

Yes.

It could be the United States tomorrow. It could be any country you name that Ireland wants to do a deal with. It could be President Trump's rich friends launching an action against Ireland to enforce their rights in relation to some investment they have made. Once we put our neck in this particular noose and stand on this particular platform, we are going down a road. I accept that any such extension of this would require a decision by the Houses of the Oireachtas, but I have seen what the party Whip does in these Houses. If enough pressure is put on us by the United States to sign up to an agreement like this, we will do it. The Minister of State should not cod himself. We will do it. It is not simply a matter of that being a distant possibility. It is a very close possibility.

When Mr. David O'Sullivan came to speak about CETA to the European affairs committee in the previous Dáil, Senator Higgins pointed out to him very politely, but embarrassingly for him, that an English law firm of which he was an adviser had said you would not actually have to enforce your obligations under this agreement. The mere threat of enforcement would quite likely produce a different result in most member states. You would find them much more reasonable if you said you may bring them to the investment court. That is what his law firm in London went on the record as saying as a ground for ratifying CETA.

I just make the point now that we are being extremely naïve in ratifying this agreement. We are gaining nothing from it. The Supreme Court's formula is absolutely worthless. It will not stand up to the European Union's court scrutiny. It will not be effective in any other state where litigation against Ireland is launched, to which we are the only party, in respect of assets or whatever else. It is pointless. It serves no useful purpose. The time has come for Ireland in particular - this should be said through the Minister of State and his Department - to say this is not a question of being good Europeans. This is a question of throwing our comparative advantages away for nothing.

The Supreme Court's formula does not assist us in the slightest in relation to the long-term consequences of ratifying CETA. If I heard from the Minister of State here today that Ireland would write it into CETA when ratifying it that, under this new system, Ireland alone of the other states had the right to say that enforcement in Ireland, but only in Ireland and the Irish courts system, was not possible where it offended Ireland's constitutional order, we might have a slightly different game. We might be playing soccer rather than Gaelic football, but we are not. This, I am afraid, is a tragic error.

I acknowledge that Deputy Michael Cahill from Kerry was in the Visitor's Gallery with John and Michael Shanahan. The Minister of State, Deputy Emer Higgins, was there with her aunt, Mary, her cousin, Claire, and Claire's children, Ella and Liam.

I note that I received notification of amendments being out of order six minutes in advance of the debate, which obviously is a really tight timeline. That is just something to note. I know that is nothing to do with the Minister of State but it relates to the Seanad Office. Learning of it just six minutes before the debate makes it very difficult for Senators to plan their speaking notes.

I will interrupt the Senator. I am going to allow latitude so that people can speak to the section, especially where their amendments were ruled out of order because I am conscious that people received very short notice about it.

I thank the Leas-Chathaoirleach. That is much appreciated.

Senator McDowell touched on so many important points. I was struck by his analogy about the noose and the platform we are standing on, and the lever that any company can choose to pull should they want to take a case against Ireland. It is incredibly evocative and very much sums up the precipice on which we are sitting. He also asked the questions of why now, why we are rushing and what is the motivation behind this.

As the Minister of State acknowledged on Committee Stage in the Dáil, CETA is already largely in effect - 99% of the trade elements of CETA are already in effect - with an increase from €3.2 billion worth of trade in 2016 to €10 billion worth of trade in 2023. That does lead us to wonder why we are rushing into something that is going to have such a fundamental negative impact on Ireland and Irish sovereignty when it comes to public policy decision-making. That is what this will endeavour to do.

This Bill is not about improving trade for Irish companies because, as has been said, the trade is there and the trade provisions are already active. What this Bill is doing is totally unnecessarily exposing us to the risk of being sued by foreign investors for actions that are perceived as negatively impacting their investments. That will have an absolutely chilling regulatory impact on public policy and decision-making. We have seen that before. Human rights groups and academics have already talked at length about how investor courts have a regulatory chilling impact.

It is like a through-the-looking-glass moment because we are having this debate at the same time as the Government just announced Ireland's withdrawal from the energy charter treaty to avoid risks of arbitration. We have withdrawn from the ECT because of risks of arbitration - or we are in the process of withdrawal - and at the same time we are introducing a new mechanism which will have the same impact. This is actively attempting to ratify a new agreement which is going to impose additional challenges to our sovereignty. Under the ECT we saw companies sue EU member states for millions when they tried to move away from fossil fuels, one example being Uniper, a German energy company that utilised the energy charter treaty to challenge the Netherlands 2030 coal phase-out, claiming damages for stranded assets. That claim was worth over €2 billion. It is nonsensical to do this at the same time as we are having this discussion. We are having this discussion while the Government is withdrawing from the ECT.

Ireland is massively exposed by the arbitration clauses because of high levels of FDI in our economy, which we have ironically been able to attract without having these arbitration clauses. Companies have come and invested in Ireland without investor court systems and arbitration clauses. We have this favourable environment already so why would we be pursuing risks to our own public policy?

ICS courts are effectively a repackaging of ISDS. I know the Minister of State might say the opposite, but that is what they are. It is just a reframing of the ISDS system, which has been strongly condemned. CETA and the associated joint interpretive documents provide no meaningful concrete safeguards about how countries like Ireland can push back against companies. The fundamental issue is that the fundamental priority of ICS arbitrations is compensation claims. They are not looking at the balancing of different pieces of legislation in the way a national court would. When our High Court is looking at cases, it takes the wider legislative framing and balances that with public interest issues. However, according to this Bill, the High Court is only going to be looking at interests relating to the Constitution, which is actually incredibly limited. We will not see the different aspects of legislation being looked at in the ICS arbitration courts.

We have seen a marked EU-wide shift towards a deregulatory agenda under the guise of competition. This is a huge part of that. Again, when we ask why are we pushing this deregulation agenda through under the guise of competition, I always wonder who we are competing with. Who are we trying to compete against? Who do we hope to compete against by lowering our human rights standards or our environmental standards? I have a suspicion that it is China. That is quite a scary concept because then we are trying to lower our operational and procedural standards to compete with China - a country that has vast human rights violations in its supply chains. It is a scary thought that we are on a race to the bottom on human rights and environmental regulations.

Ironically as well, we often hear from this Government, and from the Minister of State, that we need to safeguard the triple lock because it is undermining our sovereignty. That is one argument that is made around sovereignty in the UN Security Council, yet at the same time we are handing over our policy-making sovereignty to investor courts. We are allowing companies to be able-----

No.

That is what is happening.

Senator McDowell does not agree with the Senator on that.

That is okay. Senator McDowell and I are different people. We are not in the same political party.

That is the only thing the Senator is right about.

The Minister of State wishes to hand over our policy-making sovereignty to investor courts. We are effectively handing over compensation claims to outside investor courts to decide. That is a terrifying thought. We are handing that power to outside investor courts. They do not need to be based in Ireland at all. We are bypassing our own national courts system and the ECJ. We have a functioning system that can deal with these things. It is already dealing with arbitration claims that might come up in the existing trade and investor system that we have. They already exist. There is no need to introduce this other element. It is crazy stuff. I cannot tell if it is wilful ignorance or naivety.

I travelled to Canada in December last year as part of the foreign affairs committee trade delegation. I also met with the Canadian delegation at PACE in Strasbourg. I support the strong trade relationships the Department and the Government are engaging in. I also support the huge amount of work being done on the Canada-Ireland 180 project, which is to mark the incredibly special relationship that we have with Canada from the 100,000 Irish people who landed on Canadian shores in 1847 during the Famine. I recognise that special relationship. I also recognise the importance of diversifying away from the likes of the US, which is not a reliable partner at the moment for a plethora of reasons of which we are all very aware. I am pro trade with Canada. I believe that Canada is a good country for us to engage with in trade. However, I met with Canadian representatives, notably MPs from Bloc Québécois, who are incredibly concerned about the impacts of arbitration courts on their own systems. As the Minister of State will be aware, given their own experience with the Lone Pine case where US-based energy companies sued Quebec for $250 million in an arbitration claim under NAFTA. That is an unresolved case since 2013 which could see Canada lose more than $100 million. There are major concerns in Canada itself about the impact. It is moving away from arbitration clauses in its own trade agreements with the US. It is doing that now so it kind of beggars belief that we would be seeking to do the opposite.

I fundamentally support opening up a trade relationship with Canada, which I think is a positive move. The Department has done a lot of work around that with the Beyond Barriers report. At the same time, let us get real: Canadian oil companies do not have a great track record when it comes to human rights and their bottom line is profit. While we can say that Canada is a great trading partner, and the Canadian Government is a good trading partner, that does not extend to individual Canadian companies because we do not have any control over them. They will do what they want that is beneficial to their bottom line. We cannot just say that because little old Ireland has a good working relationship with the Canadian Government that it will somehow insulate us from the impact of potential cases being taken by Canadian companies. That is not what big corporations and big multinationals are about. They are not about doing the decent thing.

Big companies and multinationals have previously affected progress in public policy through ISDS schemes, which are effectively the same as the ICS scheme and they will have a regulatory chilling effect on progressive public policy. This is what this arbitration Bill and the full ratification of CETA is going to bring us into.

I note that the Minister of State said on Committee Stage that Canada has moved on from investor protection clauses in other agreements, yet we are pursuing them here. Canada has moved on. He said that himself. He said the reality is that the possibility of any of us coming before an investor protection system in any substantive way is very remote. Canadian companies are outside of the Canadian Government so I take issue with the idea that it is remote that any Canadian company would choose to sue Ireland or take an arbitration case based on their bottom lines being impacted, or that it is outside of the reality that we know. There are lists of active cases of companies suing states because their bottom line is being affected.

The Minister of State also said that we have no instances so far where any company has suggested that if investment protection provisions were in force they would need to avail of them. That is because of course under the current arbitration mechanisms that exist companies can seek resolution with our national courts and through the European courts.

Of course companies are not saying they need to avail of additional mechanisms because we actually have a really well functioning system as it is. It is important to highlight that. The Minister of State went on to say there is not even the remotest possibility under this agreement that companies would seek to use investment protection provisions. Given that we have a whole ream of examples over our recent history of companies taking investment protection provisions against countries, that is not a credible argument.

The Minister of State also said if an Irish government were to say it is going to seize all the houses owned by Canadian pension funds at half their value but would not touch any other properties, those funds might, for example, have a claim in an arbitration court or even in the Irish courts or under Irish law. We know Canadian pension schemes have a huge vested interest in the Irish housing system because many vulture funds bought up a lot of property and are making huge amounts of profit off rents from people in Ireland. The Minister of State gave an extreme example but that is also an admission that if we are changing a policy that affects the bottom line of Canadian companies, they would in fact take the case. A significant volume of student residential accommodation in Ireland is held by institutional investors, including Canadian linked funds. Any future government policy aimed at regulating or acquiring such properties could be exposed to CETA under investor claims if the Bill is enacted. If a future government wanted to take serious action on the housing crisis, for example, this Bill could provide a serious threat to its ability to do so. If the State tries to nationalise or seize a particular investment to achieve policy goals, which any future government or this Government if it continues in government could do, and there happens to be a large Canadian investment in that area, what is stopping those investors from going to the ICS system and claiming anti-Canadian discrimination, particularly given the fact that we have provided inducements to invest, as the IDA does as part of its business outreach to bring different companies into Ireland? In regard to that piece around inducement to invest, a company may be invited to Ireland under particular investment structures, and is advised that this is the current regulatory framework for the business to come in, so in terms of housing, this is the current framework for this company to come in and make money in Ireland. If we have done outreach and invited companies, they could argue to an investor court that the regulatory environment changed; they were promised one thing and given this inducement to invest on one ground but it changed. That would actually be quite strong grounds for a case in the arbitration court. That could apply on any public policy issue. Going back to that idea that these elements exist, we have the ability, as it stands, for the courts to deal with arbitration cases.

One important case that we should mention is Vermilion, a Canadian oil and gas company that in 2017 produced 75% of France's oil. It lobbied alongside several companies and against progressive French policy which sought to end fossil fuel extraction. We are living in a climate catastrophe so we want to move to renewables. I refer to this idea that a company that produces 75% of a country's oil - in this case, Vermilion and France - could then sue. The mere threat of awards was enough to make the French Government backtrack on its policy. The threat of Vermilion Energy going after the French Government because a potential policy was going to undermine its ability to make money was enough to make the French Government backtrack and instead allow all current exploration and exploitation projects by all companies to continue for another 20 years. That is chilling.

To echo one of the points that Senator McDowell made about the zombie clause and the idea that if Ireland implements this and fully ratifies CETA, we will only be able to extract ourselves by leaving the EU, that is tying the hands of any future governments to make any decisions on this issue. That is what this is doing. Going back to the question of why the rush, I point to France, Italy and Belgium. It is highly unlikely in the case of Hungary although there is a new government there. Under the Orban regime Hungary was unlikely to ratify. Slovenia, Bulgaria and Cyprus are perhaps a little less likely. To what end are we rushing into this? Pre-legislative scrutiny was waived. I voted against the waiving of pre-legislative scrutiny at the foreign affairs committee. While we have many legislators in this House and in the Dáil with very different backgrounds, we have not heard sufficiently from experts in this field, beyond the ruling of the Supreme Court judges on which there are questions. We are rushing into something that will tie the hands of future governments for future generations for a minimum of 20 years, should we seek to leave it. Should we seek to leave it, it can only be as a collective in the EU. This is at a time when we are removing ourselves from the energy charter treaty, ECT, and Canada itself is removing arbitration clauses from its future trade agreements.

Under the Bill as it is currently written, we will never have another opportunity to discuss this. We will not have another opportunity to discuss arbitration clauses for future trade agreements because any given Minister at any given time will be able to include them in any future trade agreements. This Bill includes CETA and the Chile trade agreement. Actually, when it comes to ratification of CETA, it is only done in the Dáil. It will not be coming here. This is our last opportunity to have this discussion unless we put in an amendment which allows or enforces the Minister of the day, any future Minister, to come back to the Oireachtas and the committees of the Oireachtas. We should not be diminishing our role as parliamentarians to scrutinise major policy decisions in the future. I will have amendments on this down the line if they have not been ruled out of order. I cannot remember whether they have been ruled out of order. We need to have measures in place to ensure that we, as parliamentarians, or future parliamentarians, will have the opportunity to review the implications of this decision in future trade agreements.

The Minister of State will be coming back in a while. There are other speakers as well. Next up is Senator Harmon. The Minister of State will come back shortly.

I want to accommodate the Minister of State. I want a clear statement about whether we are going to incorporate the provisions of this Bill in any instrument or act of ratification. I want somebody who can answer that question, before the Minister of State goes.

The Minister of State will be back. I call Senator Harmon.

I am here.

Before we move on, I welcome the Rebel Tappers, a dance troupe from Cork who are here with Deputy Séamus McGrath. They are most welcome to Seanad Éireann.

I thank the Cathaoirleach. It is important to welcome the Cork guests in the Gallery, and Deputy McGrath. I welcome the Minister of State. I want to state unequivocally that I am opposed to this legislation. The Labour Party is opposed to this Bill. As has been mentioned, a number of our amendments have been ruled out of order. We got notification of that quite late. It is important to have it read into the record later as to why those amendments were ruled out of order.

We are well aware of how important good trading relationships are for Ireland at the moment and in the future. Certainly, the Labour Party is a pro-trade party. This is not about being anti-trade. In regard to Canada, for example, we have good trading relationships already. The trade deal has been operating for several years without these courts. In that time there has been a 98% increase in trade between Ireland and Canada. Canadian-Irish relationships are extremely important. I have a sister living in Canada and had the pleasure of visiting there last year. It is important that we keep these relationships intact and build on them. However, this Bill has nothing to do with that. We are opposed to the Bill because it exposes Ireland to needless risks through the investor court system.

Who is this Bill for? Who has been lobbying for the Bill? The correspondence I have received from ordinary members of the Irish public, ordinary Irish citizens, has been completely opposed to this Bill.

Where, then, is the lobbying coming from in relation to this? Where is the pressure coming from? Is it just big business that is lobbying for this? Where is the need for it coming from? I think there is a lack of awareness around it among the public as regards the risks it poses, not just for the present, but for the future in terms of how it could affect our country on a number of different issues, including the environment, the economy, our rights and political decision-making.

I want to speak to section 2, which I am opposing. Section 2 inserts a numbered reference to the new section 25A, which will be inserted into the Arbitration Act 2010 under section 4 of this Bill. We are opposed to all sections of the Bill and have tabled separate amendments to oppose that section also. That new section 25A provides that awards made pursuant to CETA and the EU-Chile Advanced Framework Agreement will be enforceable in Ireland in the same manner as a judgment or an order of the High Court. From a Labour Party perspective, we have been clear throughout the passage of this Bill through the Oireachtas that we are opposed to trade agreements that include investment court systems and the potential to undermine social and environmental regulations. We recognise the importance of an outward-looking Ireland trading with the world, particularly in the midst of global uncertainty. As we have seen in recent years, and in the face of tariffs, war and other disruption, trade agreements with the wider world are important, but we need to recognise the fact that CETA has been successfully implemented on a provisional basis for years now without the investor courts, which are a one-way system, in that states cannot sue companies in investor-state arbitrations.

The first question is why EU and Canadian investors would not trust their own local courts. That is a very important question to ask. There is simply no reason to have such protection in jurisdictions with mature legal systems. We have discussed this at length during the Bill's passage. We know from experience that investor-state claims have the effect of inhibiting the ability of domestic governments to pass legislation addressing public concerns such as health, environmental protection, labour rights and human rights. Examples were cited earlier. We saw in Canada in 2013 Lone Pine Resources filing a damages claim worth 250 million Canadian dollars, or €161 million, under NAFTA against Canada over Quebec's moratorium on fracking. Investor-state claims have a regulatory chilling effect on governments, leaving them hamstrung. That is why we are opposed to the idea at the heart of this Bill that there is a need for these investor courts in a trade agreement between two mature democracies. Why is there any need to legislate for them here?

I want to speak to a number of points about some of the amendments that were ruled out of order, just for the record. I know latitude was allowed for this, as the Leas-Chathaoirleach stated previously. In relation to amendment No. 1, which we tabled, what the Government is seeking to do is simply unnecessary. We have made the point again and again. CETA has been in operation for several years now. Canada-Ireland trade has nearly doubled since the introduction of CETA in 2017. Canadian foreign direct investment in Ireland is up by 131% since 2016, while Irish investment in Canada has also risen by 31%, so the agreement is working already. There is no need for investor courts. All they will achieve is to expose our country to risks and chill moves towards sensible regulation in both countries.

Whom will this benefit? What benefit will this actually bring to the Irish people? I see this as having far more risks than it does public good for Ireland. We need to guard against any showboating when Irish politicians meet our fellow political representatives in Canada. This is not about trying to be the best girls or boys in the class for five minutes and then putting the Irish people at risk for decades and generations to come. This is really about long-term guarding against risk and protecting human rights, labour rights, environmental rights, health and our ability as public representatives to make decisions without fear or favour in relation to big businesses that may be seeking to sue in their own interests. We are therefore opposed to the Bill. Certainly from the Labour Party perspective, we are opposed to this. We have opposed it in the Dáil and will continue to oppose it in the Seanad.

I want to make a few general points relevant to this section and the purpose of this Bill. I fully agree with the comments of Senators McDowell, Stephenson and Harmon. The role of the Irish courts is being shamefully diluted through this legislation, and I honestly have not heard one single good reason for that. Throughout this entire debate, the Opposition, civil society organisations and expert networks like the Irish Coalition for Business and Human Rights have raised the very chilling effect that ISDS, ICS and similar investor court systems have on our capacity as parliamentarians to legislate in the public interest. This is not an imagined threat but is already happening in many jurisdictions around the world, be that in public health, housing, climate or other areas. In response, the Government repeatedly cites the following section of the joint interpretative instrument on CETA:

CETA preserves the ability of the European Union and its Member States and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest, to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity.

There are two problems with this answer. First, the answer relates entirely to Canada. The text the Minister of State cites is from CETA, but the legislation before us goes much further. First, it also applies to a trade agreement with Chile and, second and more concerningly, it will empower the Government to agree to investor courts for any future trade agreement with any country in the world by simple ministerial order. With no primary legislation and no substantial debate in these Houses, it is absolutely misleading and, frankly, dishonest for the Government to cite this Canada-specific text as a supposed safeguard in the context of legislation that applies anywhere in the world.

Of more importance is the question of who will actually read and interpret this supposed safeguard text. Even if you accept the Government's argument, which I absolutely do not, that this paragraph is wonderful and sufficient to protect the public interest, it misses the key point: no matter how good the text is, it will ultimately not be up to judges in an Irish court to interpret it. It will be read by a non-transparent corporate court. You can insert the nicest language in the world into CETA or any other trade deal, but what matters is who will actually read and uphold it. The reason we are fighting to insert the High Court back into this process is that we can be reasonably confident, based on years of actual case law and transparent public judgments, as to how our courts will interpret the public interest, but this is simply and categorically not true for private investor courts. We do not know how they see it. This question of interpretation has been completely ignored by the Government in its answers to date.

The Government repeatedly claimed that the ICS was a totally different mechanism than the pre-existing and much-criticised ISDS system. I categorically reject this false distinction. It reminds me of the promises made and alleged safeguards proposed when the ICS was initially brought in many years before the court cases started arising and public budgets started being hit. The ICS regime ultimately maintains many of the same procedural rules as ISDS, including the use of International Centre for Settlement of Investment Disputes, ICSID, and UN Commission on International Trade Law, UNCITRAL, arbitration rules.

It relies on the existing enforcement regime for ISDS awards, including the ICSID and New York conventions. This means, in effect, that investors using ICS can choose to enforce an award in any of over 170 contracting states or to use ICSID enforcement rules in 158 member countries. These states are required to enforce judgments within their territories as if they are the final judgments of their own national courts.

Much has been said about review mechanisms. A review mechanism in the Irish courts only works if the investor chooses to enforce in Ireland alone, which, realistically, no claimant would do if it is expected that the Irish system, considering the public interest or other policy goals, would be hostile to an award that could be achieved elsewhere. ISDS awards can be enforced almost anywhere. There would be no obligation to consider Irish laws in the context of an award enforced outside of Ireland. There is no requirement for investors to attempt to have their awards enforced in Ireland.

Similarly, there have been numerous instances where a state has refused to pay an award but where the investor has successfully enforced the award through the threat of extraterritorial enforcement. This has included the seizure of assets of respondent states outside respondent states' borders. Investors have sought to and been successful in enforcing claims in countries other than the respondent state and sought compensation through the seizure of the assets of a respondent state in a third state. This has included the seizing of aircraft in Tanzania, state cultural and language institutes in Spain and bank accounts. Recently, a court in the Netherlands allowed the enforcement of an award against Spain in respect of an ECT claim by Eurus Energy in which the investor seized a property in Utrecht valued at around €10 million that will be sold through public auction if Spain does not pay the award. This is the kind of activity that is happening under existing systems.

Ultimately, the Government is insisting that this is a new and fundamentally different system from those that have gone before and from the energy charter treaty which we are supposedly trying to leave and under which cases are allegedly being launched against Ireland. Those with decades of experience of these kinds of international corporate trade disputes have set out in great detail why they do not accept this distinction. In all likelihood, if these amendments are rejected by the Government, we will need to wait another ten or 20 years to see what happens, watching the cases mount up and, perhaps, watching another round of rebranding of these courts after the damage has been done. What I said about the energy charter treaty is not abstract; it is already happening.

This month, Lansdowne Oil and Gas, a UK-based investor in an Irish offshore oil and gas field, and its Irish subsidiary lodged an ECT claim against Ireland. The case ultimately relates to a refusal by the Department of the environment to grant this company a licence to drill at the Barryroe oil and gas field in the north Celtic Sea. At a time when we need to be doing everything possible to decarbonise our economy and our society and get away from fossil fuels, a private company is seeking to force us to do the opposite or to compensate it handsomely. The claim may amount to US$100 million. Incredibly, Lansdowne claims that Ireland leaving the ECT is immaterial because of a 20-year sunset clause. Even if we leave, we are still on the hook for two decades. That is the kind of system we are operating in, even when we choose to leave it.

There are also at least three other notices of intention disputes, effectively threats, from other companies under the ECT. When the ECT was agreed, the climate and corporate accountability organisation which raised this prospect was dismissed as engaging in scaremongering. The same argument is being made today. We are walking into a scenario where some of the most powerful and ruthless private companies in the world will be able to seek damages in respect of their potential profits when we try to legislate in the obvious public interest. If the ECT is wrong for Ireland, the investor court system devised here is also wrong, and I fully oppose it.

Amendment No. 24 makes specific reference to the opinions and findings of the ICJ. I am particularly interested in this in light of my years of work on the occupied territories Bill and my ongoing fight to force the Government to comply with the findings of the ICJ. Incredibly, we are not there yet. In 2003, the ICJ delivered a landmark advisory opinion on the legal consequences of the construction of an apartheid wall in the occupied Palestinian territory. It set out clear obligations for all UN member states that have been shamefully ignored and largely forgotten in the 20 years since. In 2024, the ICJ tried again in this regard at the request of the UN General Assembly. It looked at the situation in Palestine and found unequivocally that not only is the occupation illegal and not only are the settlements built on stolen Palestinian land legal but that all countries, including Ireland, are required not to provide any economic trade to support them. As of this morning there are two countries, Spain and Slovenia, that are only even partly complying with the international law obligations set out by the ICJ. That is absolutely shameful. The Irish Government continues to make promises and delays legislation by adopting, in the spirit of St. Augustine, a "make me chaste but not yet" approach.

In the meantime, by contrast to that terrible delay, we see this legislation being rushed through the Houses at breakneck pace in time for the visit of the Prime Minister of Canada. There is no doubt that this legislation will make it harder for Ireland to take progressive measures in the public interest and in compliance with international law, including forcing multinational companies, some of them no doubt Canadian, that are trading with and supporting illegal settlements, to stop doing so. If we finally deliver on our obligations and stop those companies profiting from a brutal and oppressive occupation, they will be able to head to an investor court and seek compensation. How is this something that we are even considering? The amendment seeks to protect against that prospect, and the Government should accept it.

Amendments Nos. 29 and 30 deal with climate. I want to speak briefly in support of them. Across Europe and here in Ireland, we are witnessing a dangerous and rapid row-back on climate commitments. The essential driving force behind this is a short-sighted focus on so-called competitiveness above all other social and policy objectives, including human rights, development and climate. At EU level, a long list of so-called omnibus proposals is being used to shred protections for citizens across a range of areas. The row-back is misleading and is presented as mere simplification to make life easier for most businesses, which, no doubt, the vast majority of us would support. In reality, however, it is an effort by large powerful corporate actors to seize on the current global instability to undo years of work and reduce hard-won standards. This is most evident in climate protection, nature restoration, protection of habitats, water quality and even biodiversity. The Irish Government should reject this race to the bottom and accept the amendments. Our trade policy should be conducted in a manner that respects the standards of the Paris Agreement. That is the simple principle we would like to see inserted into the legislation.

Before I call the next speaker, I welcome the guests of Deputy Noel McCarthy. I also welcome the guests of the Minister of State, Deputy Moynihan, from Liscaroll. I hope they enjoy their visit.

Some of my colleagues jumped ahead to discuss specific amendments. I will be coming back later to these specific amendments, including amendments Nos. 29 and 30, which relate to the Paris Agreement.

I want to pick up on some of the core points. I will be very happy to tease out some of the specific issues with the Minister of State as we come to them. I need to highlight two core points. First, this is financially and politically reckless. It is reckless in every sense. The consequences are unknown but what we do know is that there will be and can be very serious consequences.

The Minister used this line on Committee Stage in the Dáil. It is the idea that there is not the remotest possibility that we would be seeing these cases. Cases happen all the time. These structures have been in place for a long time and they get used because they deliver very strong effects for companies - I am going to come back to that - not just financially but also in an ability to influence and shape and change policy. There have been findings of hundreds of millions and of billions against states right across the world. There is a litany of them. It is, in fact, preposterous to suggest that these would not be used. I find that to be worrying. The fact that was being said speaks to a core problem.

Through one of my colleagues in the Dáil, I tabled some parliamentary questions about where the risk analysis had been. There has not been a risk analysis in relation to this across multiple Departments, which will be immensely affected. When Brexit was coming, we were teasing out what it will it mean for the mushroom industry and what it will mean in this area and that area, yet we have this hugely consequential decision where the risk is not being assessed and the Minister is saying, against any evidence of any expert anywhere, that he does not believe there is any possibility that we will be seeing cases. There is key exposure in the areas of housing and care and home care, as well as in public health where there is exposure and a litany of cases. Even when we look to the areas of climate, environment and energy, there is a litany of cases. If we look to the area of mining, there are huge industries related to Canada and others and, indeed, Chile where there is a litany of cases and a litany of companies that have proven themselves to be extremely litigious, including companies operating in Ireland, for example, such as Canadian companies that have a record of taking cases.

The recklessness is also in the context that this does not need to be done. When the Minister described what would happen if we do not ratify, and he has gone into this in some detail on Second Stage, let us be clear; what he is describing is what would happen if we pushed a ratification vote and decided to force a ratification vote on the Dáil and that did not pass. That is the scenario. However, what the Minister has also admitted is that there is no timeline or deadline and there is no requirement for a ratification vote. The consequences he has described are, therefore, entirely voluntarily sought-out risk that the Government is seeking to take. Yes, there are risks in terms of the fact that I do not believe this will stand up constitutionally. Where does that leave us in a bind then? Will we say that, actually, our constitutional courts found that this does not stand up and that the Arbitration Act does not stand up but we have already have ratified a document that relates to courts that do not effectively recognise the supremacy of our Supreme Court? We will be in a situation then, as Senator McDowell has described, where we do not have an ability to leave.

I want to place this recklessness in the context of the point, and I do not really think it was appropriate, where I saw the Minister rolling his eyes when sovereignty was mentioned. This fundamentally does relate to sovereignty and on two levels, that is, the sovereignty of our courts and sovereignty in respect of the ability to serve the Irish public and deliver legislation that reflects their wishes and their mandate. In respect of the courts, the Supreme Court found there was an issue with sovereignty. That was its finding. This is not us saying it. That is what it told us. As for what has been proposed, again, it is not even proposed because what was said was that something may be able to address it because, bear in mind, it would not be appropriate for the Minister to come in here and say that the Supreme Court told us to do this. No, it pointed to a possible measure that could or may ameliorate this issue. It is pretend. It is literally a measure, as was described, which is kind of simply saying, in a bizarre way, that we will say it is constitutional. I have been here through ten years of legislation; all legislation is meant to be constitutional. We will say that we will only do the thing that is constitutional in a Bill, which is bizarre, frankly, in draftsmanship.

Also, that does not have meaningful effect. Let us go back to the sovereignty question when it comes to the courts. What happened in the Singapore case was that the European court was asked who gets to decide in relation to trade and investment courts. What it said was that the European Commission has been given authority in relation to trade negotiations with the various provisions and public policy exceptions and that it goes to nation states to hold the responsibility in terms of whether or not they want to sign up to investor courts. They decide whether or not to sign up to investor courts. That is a separate decision that they make, which, by the way, they do not have to make because of provisional application. The trade bit goes ahead but they do not have to make a decision and there is no timeline or deadline. I should point out that there have been certain trade agreements in which countries were 20 years or longer in provisional application and then exited without ever fully ratifying. However, they choose to ratify. At that point, they surrender their sovereignty. They are trying to ask whether a state wants to surrender the sovereignty whereby instead of an issue being decided by its court system, precedence will now be given to a decision made by an outside arbitration tribunal, which is not in Canada or the EU and it does not consider itself, by the way, bound by any of these laws, be it the International Court of Justice, ICJ, or European courts or anything else. They are separate. They are asking whether states want to surrender sovereignty in relation to judicial decision-making to this other body. What the fix is supposed to say is that, yes, we will choose to surrender our sovereignty but we will ignore what they say if it does not suit the Constitution. It is literally that analogy. We are being asked to voluntarily surrender something we currently own, which is control of the courts and how issues are decided and the confidence. By the way, the Canadian ambassador himself said there has been no instance where a Canadian company has said it is not getting proper treatment in our courts and all the rest. However, that does not mean they are going to choose our courts when they have an arbitration body, which is not required to perform any of the balancing functions in terms of public interest or anything else that our courts are required to do. We are surrendering a situation whereby when there is a dispute, it is decided by our national court, which has a balancing function that balances public interest and European law and, one would hope, international law and all the rest when making a decision. We are saying that instead of that happening here, we are going to allow it to happen there, in an investor court system, although not necessarily, of course, the new investor court system. It could be under the old ICSID rules. It could under the New York rules. We do not know what form of arbitration tribunal will be attached to any of the future deals we will be signed up to, and we know there is great flexibility for corporations in choosing exactly how they would like to see a case tried, even under CETA.

That is what we are being asked to do; surrender that sovereignty from the courts and then have an ameliorating thing where we will try to make it not hurt by saying it will not apply in these constitutional issues. As has been outlined directly, however, any European court is going to say that we already said we wanted to give up the sovereignty and that we made that decision, and why are we now saying we want to hold a little bit of it back around the application?

We will be in that weak position.

In terms of the extraterritorial aspect and the seizure of assets, they do not even have to rely on Europe. The UK courts have ordered seizures of property belonging to Spain. The Instituto Cervantes headquarters in the UK was seized. I have multiple examples; I cannot even list how many. The state-owned air traffic control company of Spain was also seized. This is part of the recklessness. We are very proud of our diplomatic structures and our wonderful embassies across the world, from the Villa Spada right over to the US. They are now in the firing line, factually. Any asset overseas can be seized if the national or local court in that jurisdiction declares it, and it has been done in multiple instances in relation to Spain, for example. This is the recklessness. That is one bit of the sovereignty.

The other bit of the sovereignty is in relation to our lawmaking. The quote the Minister of State has used, and I am sure will use again, is that “the mere fact” that the bottom line or profits are affected is not in itself an issue and that we have the right to legislate. Yes, we retain the right to legislate and "the mere fact" that profits are affected, and I know it is emphasised, is only under the CETA agreement. We do not know if any of this language will be in any future agreements that come through. The point is “the mere fact”. Of course, it is not simply “Our profits are affected, give us money.” It is that our profits are expected, are seen as reasonable expectations, and the expropriation of those profits means the fair and equitable treatment obligation has been breached.

That language might sound soft, but that is the language that has been used for decades by arbitration tribunals in order to award hundreds of millions and billions against states. It is worth noting that under Article 8.10 of CETA:

When applying the above fair and equitable treatment obligation, the Tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation ...

It is not a matter of saying that we will pick on Canadian companies when we make that law about renters’ rights. If the Canadian company were encouraged to invest, as it would be because it is normal practice for countries to encourage companies to invest, the company would be able to say we encouraged it to invest and that it wants special treatment and special compensation. What happens then is the chilling effect, which is real and directly cuts across sovereignty. That is the issue. The Minister of State talked about policy freedom. We have talked about all of the obstacles. We have said it is terrible to have judicial reviews and all these obstacles to getting things done. A new obstacle to getting things done will have to be a legal analysis of who is going to sue us if we do this.

That chilling effect has had a direct effect. When Vermilion, a Canadian company that has a strong base in Ireland, sued the French Government over a potential climate law, that law was diluted. When David O'Sullivan came here to advocate for the ratification of these investor courts, I read out a piece from his law firm explicitly stating that threatening to take a case can get the law overturned. That is what the function is in many cases - it is the threat. Very importantly, the text of CETA states that when deciding how much of an award there will be, it takes into account if there was any repeal or amendment of the measure. If you change the law, we will charge you less. That is there as a chilling effect. It is there in the text of CETA with regard to how awards are calculated.

That is the picture we paint of the future and how this impacts on sovereignty. When it comes to budget time, it does not just compromise our policymaking in the day-to-day, but it also compromises our budget predictions. Do we now have to add a fund for how we are going to pay for potential cases? Will each Minister have to make the case as to why they should be given money, and that it is not going to come with an additional cost because they have already factored in keeping the corporations happy? That is the compromise of a policymaking decision that leads to future generations being betrayed when they elect people. I say this for all parties. This is not a left-right thing. This is when they elect people of any party based, for example, on a manifesto, or based on things they want delivered, and then that party says, actually, it will not come with any cost.

It was relevant to mention the occupied territories Bill because we all know that should have been passed ages ago. It is not getting passed because of pressure and concern around corporations and the corporate mood. Can we imagine if they also had a little instrument here to say, “And we will sue you”? That is what I do not know. I come back to this question; is it just that they want a photo opportunity or that the Government has not thought about the risk? Is it just recklessness or is it a willingness to compromise our sovereignty? Is it a desire to have a useful tool that stops the Government and future governments from doing things that might upset lobbyists? That is where we are at. I will come back to the specific amendments at a later point.

I would like a specific answer on the CETA text. Will there be a change to the CETA text to reflect what is proposed in the arbitration amendment? Has there been contact with the European Commission to seek assurances from our fellow EU member states that they will not be enforcing rulings if the High Court were to decide against it?

Cuirim fáilte roimh an Aire Stáit. As I said on the last Stage, I would go so far as to say this is reckless. I would actually call it dystopian. I think we are walking into a situation that will be irreversible. I know the Minister of State comes from a legal background. It is great to be a Member of a House where there are so many legal minds. However, I do not understand why the Government is supporting this. I do not see any justification for it. Both Ireland and Canada have mature legal systems, with both deriving from the British legal system. We have an existing, mature legal system in this country. Why are we creating a parallel justice system that can override our own legislation and the legality that we have here? It makes no sense. As Senator Higgins said, not only is there going to be a financial cost, but there will be an effect on the budget in each Department. We can see there is an overspend in budgets as it is. We can see that we are not meeting our climate targets and we are paying fines. In each budget, if we are going to get sued, is this going to be part of it? It beggars belief.

I live in the north west. Under the NAFTA agreement, we have seen that Canada itself has been sued by an investor court because of Quebec and its decision to ban fracking. The current Government seems to be ploughing ahead and it is not committing to investing in renewable energies. However, if a Canadian investor decides to invest in LNG infrastructure, and if the Government sees sense or if a new government comes in and says it will not invest in that because it is madness, then we are liable because the loss of profits of a Canadian company that might have invested in fossil fuel infrastructure means it will be able to sue us. It beggars belief. It does not make sense why we would want to create a system like this, particularly when we are proud of our judicial system. The Minister of State is from a legal background. Why would we want to create an alternative court system in parallel to what we have already?

I am not exaggerating in saying it is dystopian. We are talking about sovereignty. We are going to place the democratic will of a sovereign State, Ireland, on an equal par with corporate organisations. This is the stuff of nightmares if it happens. It is bad enough that we can see throughout current Government policy that we are handing over certain deals and contracts to private organisations. I brought up last week the issue of childcare being sold off for profit to multinational chains, and we see the mess that is already happening in the housing sector. Now, we are giving investors a legal entitlement to sue our independent, sovereign State that we fought so hard to get, if we implement policies that affect their ability to make profit.

We are having this discussion but, unfortunately, the Government has such a big majority in this Chamber. In this debate, we are reasoning with the Minister of State to listen to the Opposition. I know he has come in to listen but I ask him to please take on board what we are saying.

As Senator Stephenson said, this is our last opportunity in the Seanad to raise this. If this legislation goes through, it will be 20 years, at minimum, before it can be overturned. I am appealing to the Minister of State in this regard. We have amendments that we want to discuss, but they have been ruled out of order. We will stay for the debate and, hopefully, we will be able to talk about them at some stage. I am not exaggerating by saying that we are walking into a dystopian reality.

Before I call the next speaker, I welcome Deputy Richard O’Donoghue and a group from Limerick, in Bulgaden. I welcome them all to the Public Gallery. I call Senator Andrews.

First, I wish to put on the record that Sinn Féin is completely opposed to this legislation and we will vote against it on every single Stage. I commend my colleague and former Member of this House, MEP Lynn Boylan, as well as her staff, on the work they have done on this Bill. They have shone a light on the potential impact of both this legislation and CETA on this country. This is a Bill with far-reaching implications. If enacted, it will undermine the sovereignty of our courts, workers’ rights and environmental protections. It has been shamefully rushed through the Oireachtas. The Government is playing with fire with this legislation. There must be proper scrutiny. Countless international authorities have highlighted that investor courts have huge potential implications for the environment, for workers’ rights and, fundamentally, for sovereignty.

This Bill will take decisions, which would otherwise be under the jurisdiction of an Irish court, and place them clearly with an international investor court, over which we have absolutely no oversight or control. This will be disastrous for the Irish people and only serve to benefit multinational corporations. Given the Government’s policy on housing, that is probably no surprise. It will create problems that do not currently exist, further hollow out our democracy and popular sovereignty and take crucial decisions away from the people.

There is no reason for the Government to be so frantic to rush this through, considering that nine other EU states have not ratified CETA. When it comes to holding Israel to account, the Government always talks about the need to act in unison, work together and achieve consensus. Yet, this is an example where the Government is rushing ahead. The absolute last thing this country needs is to hand even more power over to multinationals that seem to hold almost all of the levers of power already. Sinn Féin will continue to oppose CETA. I urge the Government to grant appropriate time on this Stage to this vital debate.

Does Senator Collins wish to come in on this section?

I wish to briefly speak about two of our amendments that were ruled out of order. Amendment No. 38 sought to add something that the Government has shown its aversion to throughout this whole process, namely, democratic scrutiny. This amendment would have ensured that we, as Members of the Oireachtas, and the public received proper oversight and scrutiny of what the Government is trying to do here and the implications for our legal obligations and wider ability to affect public policy decisions. It would have ensured expert input into this process, which the Government actively blocked when it forced this Bill through without pre-legislative scrutiny.

Amendment No. 39 sought to address a core deficiency in this Bill that was highlighted as a future problem in the Costello case. If Ireland ratifies CETA or the EU-Chile agreement, then enforcement of awards made by investor courts-----

We are on section 2. Senator Collins is referring to amendments in another section. I will, however, allow latitude because-----

It is because they were ruled out of order so late in the day.

I know but we have not reached them yet. Senators will be able to speak on amendments ruled out of order when we speak to that section.

It would be helpful to me, from looking at the list of amendments, to know which amendments will be discussed. The procedures of this House, which I fully respect, inform the individual proposer, but I do not know which of these amendments on the list are still on the agenda for discussion.

Amendment No. 39 was ruled out of order because once the House agreed on Second Stage that this is the principle of the Bill, then-----

Is there a list? There is a whole rake of amendments here. I would like to know which amendments have been knocked out.

It is in the grouping list. Have we the grouping list to hand?

That information is not on the grouping list.

We will try to get that information. Due to the 48-hour rule in relation to amendments, many Senators only received notice today, but staff were working all last night going through them.

I completely understand that.

I am allowing latitude.

It is only because, at the start, we were told we could speak about amendments that were ruled out of order because we received notice so late.

I am just allowing latitude. There is a grouping list. I will ensure it is circulated.

It was like five minutes beforehand.

We are on Committee Stage. Apart from the Senators who have put down amendments, the other Members of the House are in a state of complete ignorance as to which amendments will be debated.

I thank the Senator. Senator Collins may continue.

If Ireland ratifies CETA or the EU-Chile agreement, enforcement of awards made by investor courts will become a necessitated obligation of EU membership within the meaning of Article 29.4.6° of the Constitution. This was outlined in the judgment of Mr. Justice Charleton, who highlighted that any domestic legislation permitting the refusal of enforcement would conflict with the duty of sincere co-operation under Article 4(3) of the Treaty on European Union. If this is challenged in the Court of Justice of the European Union, then Irish courts will, in black and white, be required to automatically enforce awards. This will bring us back to square one with the constitutional issues the Costello ruling identified with ratification. Mr. Justice Hogan appeared to recognise this difficulty in his judgment. In paragraph 86 of his judgment, he observed that:

...were an Irish court to contemplate a refusal to recognise a CETA award post-ratification ... compliance with CETA would then be a “necessitated obligation” of the [European] membership ... of the [proposed] Article 29.4.6 of the Constitution.

He went on to state that:

There would be at least a question mark as to whether an Irish court could properly refuse to recognise a CETA award by reference to some domestic ordre-public-style considerations having regard to the duty of sincere co-operation contained in Article 4(3).

Therefore, once the Government proceeds to ratify CETA, it appears the mechanisms envisaged in this Bill will be null and void. Therefore, the Bill cannot claim to address the constitutional issues raised by the Costello case, which I do not believe it does in any case.

This amendment would have inserted a new section 25B into the principal Act to condition commencement of section 25A on the Government submitting a declaration to the European Commission that Ireland will allow its courts to oversee the enforcement of claims made under international agreements referred to in section 25A. It would also have required confirmation from the Commission that such a declaration was valid and the provisions of which would not conflict with the Treaty on the Functioning of the European Union, the Treaty on European Union or case law of the Court of Justice of the European Union. Furthermore, it would have required other parties to such agreements – Canada in the case of CETA - to acknowledge the declaration and accept its provisions.

To be clear, I do not believe the European Commission or, indeed, Canada would accept this. The Commission would rightly say that Ireland’s ratification of CETA means that it is now an obligation of its EU membership. The Canadian Government would rightfully say that CETA does not envisage domestic court oversight of awards and that the institution of such a process breaches the agreement. The same problem would arise for the EU-Chile agreement. The best way to describe what the Government is doing here is to say it is adopting a hope-no-one-notices approach. It is hoping the public does not notice that the State is exposing itself to the worst form of corporate capture, as well as hoping that the Commission does not notice that it is advancing legislation that is likely to breach EU law.

It must hope that the Commission does not notice that it is advancing legislation which is likely to breach EU law. The Government has tied itself up in legal knots to create a system that is clearly not going to work.

I will try to deal with the various points that were raised. Senator Collins made the mistake that Senator McDowell made on Second Stage, which is to assume that the position started with the decision of Mr. Justice Charleton. The Senator makes worthy points, but when you are talking about constitutional law and trying to interpret the Supreme Court, you do not start with the dissent; you start with the majority.

I wrote down the various points that Senator McDowell made about this Supreme Court judgment. I never in my life heard such a hammering of the Supreme Court as I heard at points of his speech. He said that Mr. Justice Hogan's decision is worthless and is not worth the paper it was written on. He accused the Supreme Court of Ireland of advising on proofs. He said it was mistaken. I also know Mr. Justice Hogan, though not very well. He taught me law. He never once described a Supreme Court decision in the terms in which the Senator has described this one.

We must remind ourselves why we are here. We are here because Patrick Costello won, and the State lost, a case about the ratification of CETA and the constitutionality of the agreement. It is a fact that Mr. Justice Hogan set out a pathway, if the Oireachtas or the Government wish to take it. It was agreed by a majority of the justices of the Supreme Court. That pathway is exactly what we are providing with this legislation. We should respect the Supreme Court in the same way that the Supreme Court has respected the prerogatives and privileges of the Government, this House and the Dáil. Mr. Justice Hogan was clear that this is a matter for the Oireachtas. We must start by making that point. This is a pathway that has been suggested to us by the Supreme Court of Ireland. We are following it on the advice of the Supreme Court, the Attorney General, the lawyers and the trade experts. To describe what the Government is doing as reckless, mistaken or wrong is completely incorrect.

Senator Black was wrong on one point. None of the trade agreements mentioned in any way affects the right to regulate or the right of the State to decide its own public policy. I have stated that ad nauseam, and am more than happy to take the time that the Seanad offers to continue to state that into the record.

I agree with Senator McDowell on one point. He is right. The argument we have heard from some members of the Opposition in particular is that somehow this will affect our right to address housing and environmental issues. We heard that care workers will be at risk because of CETA. That is the latest scare story thrown into the mix. That is wrong. We are talking about agreements. I refer to all of them, not just CETA. I include the agreements with Chile, Vietnam, Singapore and Mexico. These agreements include articles which affirm that the parties preserve their rights to regulate for public policy purposes. They also provide that investment protection provisions shall not be interpreted as commitments on the part of governments that their legal frameworks will remain unchanged. The agreements further clarify that the fact that a measure may negatively affect an investment or an investor's expectation of profits is not sufficient to say that the measure is inconsistent with the agreement.

I draw to Senators' attention that the commitment to preserving the right to regulate, for example, in CETA, is not only reflected in the substantive articles addressing the issue but also in preambles to the agreements. I am more than happy to quote the various trade agreement if Senators wish me to. In the case of CETA specifically, the joint interpretative instrument confirms that:

CETA preserves the ability of the European Union and its Member States and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest, to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity.

Talk about crossing the t's and dotting the i's.

CETA, in its very terms, defines indirect expropriation, specifying that non-discriminatory measures to attain legitimate policy goals regarding labour, health and the environment are not deemed to be indirect expropriation unless they are manifestly disproportionate. Some have acknowledged it, but other Senators have claimed, despite all this, that they would not be effective in practice. I also remind Senators that these agreements include provisions providing guidance to the investment dispute resolution tribunal, including in relation to the application of the right to regulate. I have previously quoted Article 8.9(2) of CETA, which provides:

The mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor's expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section.

These agreements include clearly defined investment protection standards, including unfair, inequitable treatment and expropriation, and provide clear guidance to tribunals as to how these should be interpreted.

I turn to Article 17.3 of the Chile agreement. I was not here when she said it, but Senator Black stated that certain matters were not in these other agreements. The Chile agreement states:

The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, the environment, including climate change, public morals, social or consumer protection, privacy and data protection, or the promotion and protection of cultural diversity.

The Vietnam agreement would need this legislation for us to ratify it. Article 2.2 states:

The Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, environment or public morals, social or consumer protection, or promotion and protection of cultural diversity.

Article 2.2 of the Singapore agreement states:

The Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, public education, safety, environment or public morals, social or consumer protection privacy and data protection and the promotion and protection of cultural diversity.

Article 10.3 of the proposed agreement with Mexico states:

The Parties affirm the right to regulate within their territories to achieve legitimate policy objectives, such as public health, social services, public education, safety, environment, public morals, social or consumer protection, privacy and data protection, the promotion and protection of cultural diversity, or competition.

There are many other references that I could quote.

Senator McDowell and others raised the issue of whether we need a protocol for this legislation. I reject the suggestion that we need a protocol. Senator McDowell stated as a matter of fact that because he had appeared before the European Court of Justice that he could tell me how it would decide. I have also been involved in cases before the European Court of Justice and I would not claim to know, based on that, what it would decide. Of course, Mr. Justice Hogan was the Advocate General of the Court of Justice of the European Union. I assume he has information similar to that which the Senator has. The question the Senator raises is based on a misperception that the Bill is in conflict with the provisions of CETA and, therefore, you would need such a protocol. That is not the case. The Bill has been drafted to ensure compliance not just with the Constitution but also the international obligations that we will assume upon ratification of the relevant international agreements, and, therefore, we would not need it. As the Chief Justice said, CETA only requires that under Article 8.4(1) of the agreement, the execution of the award shall be governed by the laws concerning the execution of judgments or awards enforced where the execution is sought. In the case of Ireland, that is the legislation we are considering. It is a sovereign matter for us.

I heard the case made in arguments by Senators McDowell, Collins and Higgins that somehow the trade agreement, CETA, and EU law overrule these provisions. An argument has been raised that when CETA is fully ratified, the enforcement of awards becomes a necessitated obligation of EU membership - and large parts of the Opposition consistently voted against us having necessitated obligations, but they have been hugely beneficial to our economy and society - and, therefore, any constitutional discretion would vanish. As stated, the Supreme Court not only identified constitutional concerns which prevented the ratification of CETA as Irish law then stood, but the majority, as I have said, identified this legislative path.

To be clear, with the assistance of the Attorney General we have carefully considered what the Supreme Court has said. It is not open for the Government to say that this decision is worthless. It is not open for us to say it is mistaken or just advising on proofs, as Senator McDowell has said. We have a policy objective to ratify CETA and the only way we can do it is to, first of all, pass this legislation and then, in accordance with our Constitution - and I mean no disrespect to the Seanad - we have a vote in the Dáil. That is the only way we can do it. We wish to do it as a matter of policy. Execution of the award, as I have said before, is a matter under national law. That is the reality.

The point has been made time and time again that we do not need to do this because it is in force. People are just coasting over the benefits of this trade agreement as if they are automatic. First of all, we only get the benefits of these trade agreements - and there are so many of them that have been hugely beneficial to Ireland, probably disproportionately so - because when they are ratified, they become necessitated obligations of the European Union. There are European Union trade negotiators who, on behalf of all member states, negotiate trade agreements on our behalf. We get huge benefits from those trade agreements and as a small, sovereign independent state not connected to the European Union, I think we would have great difficulties in negotiating trade agreements with individual member states in terms of the time it would take and whether other states would want to do trade agreements with small countries. The benefits to this country of the European Union having trade competence are hugely important.

What would be the costs if we did not ratify this or if we rejected CETA? As the regulatory impact analysis assessment of the Department said, this option - rejection of the agreement - has the potential to cause the collapse of the agreement in its entirety. If Ireland or any EU member state did not satisfy CETA, it would be a first for an EU trade agreement. Given that such a step would be unprecedented, it is not clear what would follow in terms of the level of legal and reputational cost for Ireland and the EU, though it is likely to be significant. It is also not possible to anticipate Canada's willingness to renegotiate only particular elements of such a comprehensive agreement.

We make the case very strongly for CETA and the benefits of trade agreements. The Opposition, which is opposed to this legislation, says today it is in favour of all the benefits of the trade agreement but it never said this back in 2016 or 2017 when those benefits were not apparent. We came in and said this is good for us because it will create jobs and opportunities in this country. That has happened - more than we ever imagined. It involves, at international level, negotiation of agreements. As Senator McDowell has rightly said, certainly in the EU there is a sharing of sovereignty. Any time you make an agreement with another international entity, a country or whatever, you are in some way sharing your sovereignty but that then gives us huge benefits. Those benefits are now taken for granted but the very strong point I am making is I do not believe we can take these benefits for granted.

Senators have raised previous cases. I cannot comment on NAFTA cases as we were not party to that treaty but they have raised cases under the long-standing investor-state dispute settlement system, which was common enough in the older agreements. There have been no cases actually decided to date. We have had no judgments against us under the old system and there have been none decided under the new system, which is what we are talking about here - the investor court system. The cases that have been referenced and cited previously were part of the old, long-standing system of investor-state dispute settlement. Under the new ICS, which is in the CETA agreement and the other agreements we talked about and which this Bill would enable us to ratify, significant and targeted improvements have been introduced to address the concerns that have been raised in relation to the long-term system - some of which Opposition Senators have quoted from today - and to improve on that. The intention of the new system, which is part of CETA - which we have had no decisions from yet, by the way, because CETA has not been ratified - is to learn from the shortcomings of the ad hoc ISDS system and introduce a new and improved approach. Cases decided under the old system, therefore, do not provide an accurate indication of how the new system would work and how cases under this system would be decided and enforced.

As mentioned previously, this is a very different system that took the concerns about the old system to heart. Concerns were listened to in relation to this and the negotiators and the State did their best to alleviate those concerns. The concerns were listened to about the right to regulate. Every t was crossed and every i was dotted. It is in every agreement, the interpretative statement and the instructions to any potential investor courts. Again, Senator McDowell, who is totally opposed to this Bill, agrees that is not true. I think Senator McDowell comes from the point of view of sovereignty but not the point of view of the right to regulate being at risk. We say that it is not at risk and it simply could not be clearer. People who continue to make this case are really not looking at the text of the agreement, the text of the interpretative statement or the other provisions that relate to this.

I also object to something else. I will not say it. I will say it later, maybe. There was another point I was going to object to but I think I have raised most of the legal points. There may be other questions. People accuse us of wanting to guillotine this legislation. I got to speak after two hours. I am happy to listen to every section of this and go through it but there is a happy medium between filibuster and guillotine. I think we can all agree where that happy medium lies, in my opinion. I am not accusing anyone of filibustering so far.

I thank the Minister of State for his reply. On one particular point, he implied that there would be negative implications for Ireland as a strong member state of Europe and the European Union if we do not ratify this. On Committee Stage at the select committee, the Minister of State said: "If we do not ratify this agreement, the agreement will not happen and it is quite possible the tariff arrangements would be reversed." However, we already know that multiple countries - I read them out before - such as France and Italy are highly unlikely to ratify. There is a sense from the Government that the framing of this Bill is essential to the continuation of the beneficial tariff arrangements set out under CETA but there is no evidence of that. Numerous major countries like France, Italy and Poland have not ratified. There is little evidence that they are going to do so in the near future. Again, it comes back to that question of, "Why now and what is the rush?" I do not think the Minister of State's response necessarily addressed that particular piece.

There is an idea that we really need to push back in regard to the arrangements. We welcome the arrangements, without a doubt. I have my Canada-Ireland pin on, my partner is Canadian, I have strong personal links to Canada and I see us as living in a turbulent world where we need to lean into those partners. I was not here in 2016 and 2017 to support or not support but I really want to address this idea that, suddenly, the tariff arrangement is somehow going to collapse should we not ratify. It does not seem to be bound in any evidence. The Minister of State said in the committee:

There is no time limit. The EU is not forcing us to do this. This is a choice. My choice and that of the Government and the people of Ireland is to do trade, promote trade and ratify this agreement. That is what the Government chooses to do, supported by the Dáil.

That is important to reflect on because the Minister of State said it himself: "The EU is not forcing us to do this." There is no time limit. It is really important and it points, in my opinion and that of so many colleagues on this side of the Chamber, to that piece around recklessness and rushing into something. The Minister of State has given us time today and I understand there will be another Committee Stage debate scheduled as well. Maybe not, but it was my understanding that this was not the last. I appreciate that but given that the implications of this are so serious - in our opinion and that of plenty of experts, as we are not alone in saying this will have future implications - the fact that we did not have pre-legislative scrutiny removed one of the parliamentary roles in getting experts in, as I said before. Lots of us have different backgrounds but I refer to getting the real experts in and having the real opportunity to speak to them. I know the time for that is now past.

I appreciate that the Minister of State feels - and he made a remark to the effect - that we should go with the majority opinion and, of course, the majority opinion supported the changes. However, I would say that Mr. Justice Charleton noted that CETA has "unlimited powers of interpretation of a vague set of principles within the treaty". Given the seriousness of that statement by one of our Supreme Court judges, I would be absolutely shocked that we would not give it the due consideration it requires.

The Minister of State also said at the committee:

I should also say that this agreement has been operated on a provisional basis in relation to the trade provisions for the past ten years or so. I have not heard any complaints from Canadian companies about what the Irish Government is doing to them in this country.

We have the provisional application in place. I do not believe there is evidence that the provisional application will suddenly collapse should we choose, like many of the strongest economies in Europe such as France and Italy, not to ratify this agreement. The basis for our ongoing trade relationship with Canada can be renewed in a different discourse and through different mechanisms without this arbitration component.

I think the Minister of State used the term "manifestly disproportionate" as regards the treatment of companies and the impact it would have on them. "Manifestly disproportionate" could be this idea that we have induced investment and the investment environment has changed drastically. I really want to make this point because we have done that. We have done the outreach with the Beyond Barriers: Deepening Canada-Ireland Trade and Investment report. I was part of the joint foreign affairs committee. We are going out and inviting them into a certain investment environment with policies that exist today. If we change that, there is an argument that there would be a manifestly disproportionate trade environment to the one in which they originally entered and invested in the country. That is our principal concern, namely, that we are tying ourselves into future issues.

On the whole idea of fair and equitable treatment, "manifest arbitrariness" is a particularly vague term in Article 8.10.2(c). It is uncertain how any ICS tribunal could actually interpret it and it could provide a very clear avenue for investors to bring a host state to court. That is the language that Mr. Justice Charleton alluded to in terms of the vagueness in many of the points in the agreement, the vagueness that would be wholly open to interpretation. That interpretation would be by a tribunal that was not required, like our High Court would be, to look at the big picture of all of the legislation and the public interest. Under this particular Bill, the High Court is limited to looking at issues of constitutionality and not public interest. That is a major concern.

I ask the Minister of State for a simple answer because I think he answered the question I raised.

That is no problem.

Is it the case that the Government does not intend to put any reservation, qualification or protocol to our ratification of CETA if this Bill is passed?

The advice says that is not necessary because execution of awards is a national matter and under the-----

No, I am asking a simple question. It is a yes-no answer.

I have given an answer.

No. We are entitled to an answer on whether the Government does or does not intend to ratify this, subject to an express reservation of protocol in the instrument of ratification. That is all I want to know. I just want a "Yes" or "No".

I have given the answer. It is not necessary.

Sorry, that is not the answer. With respect, it is an arrogant thing to say that it is not necessary.

I will let the Minister of State reply in a few minutes. I have another Senator indicating.

Whenever the Leas-Chathaoirleach wants.

Is it the intention of the Government to do it? I did not ask whether it was necessary. I asked whether the Government was going to do it.

I have another Senator to bring in before I let the Minister of State reply.

I only ask that question because I do not want to waste the Minister of State's time. If he is saying that the Government does not intend to do it, that is one thing. If he is saying it is not necessary, that is another thing. I want to know which it is.

There is no intention to-----

That is fair enough. Now, we have the answer.

The Minister of State has criticised me for querying the views of the Supreme Court in relation to the amendment of the Arbitration Act. I want to say this one thing to the Minister of State at the very outset; I am a practising barrister. I appear before the Supreme Court on occasion. I have the greatest respect for that institution. Nobody in this House has a greater respect for it, but on this occasion, it set out what the Minister of State said was a pathway to ratification. Let us be clear about this. Former Deputy Patrick Costello, when he went there, did not ask the court to set out a pathway to ratification. He asked it to decide whether ratification was compatible with the Irish Constitution. He never asked the Supreme Court to advance a view about the Arbitration Act or come up with a solution or pathway. He never did anything like that.

The Minister of State is an experienced lawyer and he knows what I am driving at now. The views expressed by Mr. Justice Hogan and the majority in the Supreme Court were not views that arose from the dispute that was put before them by former Deputy Costello. He did not argue that point, and a case not argued is a case not decided. The fundamental principle is that a statement by any judge or any number of judges in respect of a point that was not raised, has not been raised and has not been litigated in the Supreme Court - it has not been litigated as to whether this Bill does or does not cure anything - is obiter dictum. It is simply an expression of views. Commentators have said that this was a very unusual set of judgments. Having said that the ratification of CETA was clearly in conflict with the Constitution, the Supreme Court then went on to imagine for some reason that if a statute was altered so as to make these decisions of the courts in some circumstances non-enforceable, the Constitution would thereby be made compatible with CETA. That is a reverse logic that I cannot accept. The Constitution either did or did not permit the State to ratify CETA and the presence or absence of some provision in statute law does not alter that situation.

I am sorry if the Minister of State thinks I am taking a fair amount of time but I have put down no amendments to this.

I have not complained. I am just doing my job.

There is no question of a filibuster here. I have put down no amendments for the very simple reason that no amendment, in my view, can cure what the Government is trying to achieve. CETA is incompatible with the Constitution, as it presently exists. Various members of the Supreme Court, for one reason or another, expressed a view that if you amended the Arbitration Act 2010, CETA would somehow become compatible with the Constitution. In other words, the absence of section 25A from the Arbitration Act, proposed to be inserted in this Bill, was the reason ratification by the Government would be unconstitutional. The absence of a statutory provision was the reason ratification would be unconstitutional. I do not accept that logic.

With the greatest respect to all of the members of the Supreme Court who adopted Mr. Justice Hogan's obiter dictum, they were not asked to decide that point. They were not asked by Deputy Costello, as he then was, to point out a pathway to the Government. In my experience, no other Supreme Court has ever done that.

I do not remember any case where the Supreme Court has looked at something, decided it was unconstitutional and suggested changing a statue in order to cure the problem. When I say it is worthless, I am say that on a considered basis. I am not just throwing an insult at the majority of the Supreme Court. I am saying that, in logic, what it is doing and proposing needs to be examined very carefully and what it held out as a pathway - to use the Minister of State's phrase - was not, with the greatest of respect to the court, part of its function at the time. If the former Deputy Patrick Costello had been given the right to argue as to whether the text of this Bill would cure it, he could have made all sorts of arguments of the kind that I am making. Unfortunately, he was not afforded that right.

The Minister of State referred to the Attorney General. I have served as Attorney General. The Attorney General is not infallible and can get things wrong. In this case, the Attorney General went the all the way to the Supreme Court, argued that ratification of CETA was compatible with the Constitution and was told by a majority that it is not.

That was said in the context of CETA being reckless and dystopian. I never said he was infallible.

I did not use the words "reckless" or "dystopian".

The Senator did not, but others did.

I am saying that the Attorney General argued the exact contrary to the majority decision of the Supreme Court. Let us be 100% clear. The Government's position was that this is compatible with the Constitution. The majority of the Supreme Court said it is not. For some reason, the majority, including those who thought it was constitutional, then subscribed to an obiter dictum stating that if the Arbitration Act 2010 was amended in a particular way, that would cure all the difficulties. With respect, that logic is deeply flawed.

I will make a second point in that regard, which has been made just recently. There was no pre-legislative scrutiny of this Bill. Expert lawyers were not brought in to advise the committee or the Irish public as to what the implications of this Bill would be. No expert opinion was received, for instance, as to whether the Court of Justice of the European Union would say that this was fine. No experts in law were brought in to discuss that issue before the committee whose duty it is to discuss legislation such as this. Instead, the Government said that the matter was urgent and that pre-legislative scrutiny would be a waste of time. It is not urgent for the very reason that France and Italy and other countries are not going to ratify it. The only urgency I can see is the impending visit of Prime Minister Carney.

The Minister of State indicated that this would be the first time that a collective agreement was not ratified by the member states and therefore lapsed. If the member states, including Ireland, in their wisdom say that they are not interested in the arbitral courts aspect of this agreement and would prefer, on balance, that it were not there, that decision would not herald the end of the world. It may cause a flutter in Iveagh House. We have to be at the centre of European affairs. We do not want to be peripheral. We do not want to join this country or that country. We want to be right up there waving our little European flag. It will make no difference whatsoever if the parties to the CETA agreement have to go back and excise from the agreement the arbitral court provision, or at least allow the member states to opt in or opt out other than on the basis of a mass walkout by the EU or a member state ceasing to be part of the European Union.

The other thing about the Minister of State questioning me about criticising the obiter dictum set out in Mr. Justice Hogan's decision is this. Mr. Justice Hogan was not asked to decide that point, nor were any of the other judges asked to decide it. This was a volunteered opinion. It was not the function of the former Deputy Costello's case to work out ways to ratify CETA. I make the following very simple political point with a degree of foreboding. Supposing Sinn Féin, the Labour Party, the Social Democrats, the Green Party or whoever else were in government. Would it be the function of the Supreme Court to start telling those parties, which are opposed to CETA, "This is the way you can do it, folks."? Of course it would not. That underlines the fact that I have the gravest reservations about an obiter dictum of that kind being enunciated by members of the Supreme Court as if it was self-evident that a responsible court would tell the Government how it could ratify CETA instead of doing what it was asked to do by Patrick Costello, which was to say that it is not compatible with the Constitution as things stand. This is the first time I am aware of where someone has ever said that an Act of Parliament of this kind could, if enacted, and as advised in the vaguest of terms, cure a constitutional difficulty for the Government in this way.

The funny thing about Mr. Justice Charleton's decision is that he had one great advantage. He spoke last in the delivery of judgments. I do not mean that he enunciated his judgment last. Rather, I mean that his judgment was written after he had read all the judgments of the other judges. At paragraph 9, he began listing the reasons for his dissent:

9. Ireland has a legislature. Ireland has a judiciary. Both may make mistakes but neither are unworthy of trust, either by an investor in business from Ireland or Canada or from any other country. [Hear, hear.] Experience in commercial litigation over many years demonstrates that nationals of Ireland or of any other country are treated equally by the judiciary. Experience of living in this country establishes that the legislature does not engage in abusive legislation against foreign investors.

10. CETA sets up a supra-legislative body through the Joint Committee, with unlimited powers of interpretation of a vague set of principles within the treaty. The Joint Committee makes new laws. These override the exclusive law-making powers of the Oireachtas. That process is in no way democratic.

11. The CETA tribunal and appeal tribunal may overturn a decision of any Irish or Canadian court on the basis of such elastic concepts as discriminatory or unfair conduct and such concepts may be stretched without limit through ordinary tribunal interpretation or through rulings of the Joint Committee. That is to set up a supra-national legislature and a system of final adjudication by persons appointed as tribunal members which is extra-judicial and above the untainted judicial systems of Canada and Ireland.

12. CETA tribunal awards will be automatically enforceable in the High Court in Ireland and in Canada. In Ireland the discretion, on constitutional grounds, for refusing to enforce what are likely to be gigantic awards is so vanishingly small as to be reduced to nothing. That is, as the law now stands. When the CETA treaty is fully ratified enforcement of those extra-judicial awards becomes a necessitated obligation of EU member membership and vanishes altogether.

That is what he says. By the way, nobody in this House, not even the Minister, will contradict him on that. Nobody will. He goes on to say:

The majority posit that a potential solution is the amendment of the 2010 Arbitration Act to expand the grounds for judicial refusal to enforce a CETA award. The grounds for that legislative change cannot override the necessitated obligation of European Union membership. Even if that were legally possible, to have a discretionary ground for refusal to enforce a CETA tribunal award would operate as a fundamental contradiction of the treaty itself. Even the insertion, at this stage, of a protocol based on the protection of the constitutional tradition of Ireland would be so far reaching as to fundamentally contradict the CETA treaty itself; something impossible under the Vienna Convention on the Law of Treaties (1969).

I would like to hear somebody say he is wrong on that. We hear from the Government that the majority of the Supreme Court bashed ahead with Mr. Justice Hogan's obiter dictum.

Having made those arguments, Mr. Justice Charleton said the following. He was looking at all the judgments, including the people who said it was constitutionally possible to ratify CETA and the people who said that it was not. In paragraph 52 of his judgment, he states:

A majority of the Court holds that ratification (and it follows upon ratification by all the EU Member States, incorporation into Irish law) of CETA is not the proper exercise by the Government of its powers to engage in international relations under Article 29.4 of the Constitution. Automatic enforceability of CETA awards, leaving aside the diminution of legislative sovereignty under Article 5 and 28.2 [of the Constitution], the bypassing of the courts system under Article 34 and the finality of decisions of the Supreme Court under Article 34.5.6°, makes this system part of the “domestic law of the State” under Article 29.6 and this requires that this not be done “save as may be determined by the Oireachtas.” A majority of the Court proposes that an amendment to the Arbitration Act 2010 would bring into play a sufficient discretion whereby, were our constitutional order to be offended by either the nature of a CETA tribunal award or by the manner in which a rule of Irish law was elided in favour of a principle based on the vague assertions upon which such tribunals act, or whereby the ruling of the Joint Committee set up a rule of law inimical to national law, that a legislative provision widening judicial discretion in not enforcing such a finding domestically would suffice to give CETA constitutional validity.

53. Since that same majority, of which this analysis is part, holds that there is a clear disregard of the constitutional order, it is posited that a discretion to refuse the enforcement of a CETA tribunal award based on offence to constitutional principles, would cure the defects sufficiently to enable the adoption by the Oireachtas of CETA under Article 29.6 of the Constitution. That is not possible. Accession, on the one hand, including acceptance of the non-existence of defences to enforcement of CETA tribunal awards, and, on the other, to a wide statutory discretion to disagree and to disregard CETA tribunal awards bears the danger of becoming a constitutional β.

Protocol

54. It is appropriate to also doubt if qualified ratification of an international instrument, reserving by legislation a power to the Irish judiciary to override an award of the CETA tribunal, without the agreed and properly negotiated insertion of a protocol, such as Protocol 21 of the Treaty on European Union, which granted Ireland a “flexible opt-out to any proposals concerning the area of freedom, security and justice”, per the Law Reform Commission Discussion Paper ... modifying its terms in respect of that one signatory that would be necessary, would suffice.

55. That worry arises particularly in light of the requirement under Article 26 of the Vienna Convention on the Law of Treaties (1969), which is under the pacta sunt servanda ... [in other words that agreements are to be obeyed], and adopts that ancient principle, requiring that every treaty is binding on parties, thus requiring the State to perform its obligations under CETA, in this instance, in good faith. As a matter of international law, the answer would realistically be predicted to be negative.

It is not just me saying that the ECJ, EU or my life savings are at issue here. Here is a judge of the Supreme Court saying that if this goes to be determined as a matter of international law, it will be worthless. It will be set aside. He states, "Any such amendment would seem to run contrary to the express requirement under Article 18 of the [Vienna Convention on the Law of Treaties] VCLT, which provides that a contracting state “is obliged to refrain from acts which would defeat the object and purpose of a treaty”." That is the principle of international law. I am not inventing this, nor is Mr. Justice Charleton inventing this. This is what is generally understood to be international law. Article 19 states, and this is the important point, because we have just elicited from the Government that it intends to ratify without any reservation or protocol of any kind, which is why I had to insist on a clear answer to that question, "... reservations on the part of the State are permissible provided, per subsection (c), that the reservation is not “incompatible with the object and purpose of the treaty”. How would such a solution be compatible?" He is talking about Mr. Justice Hogan's solution here.

In paragraph 56, he states:

It is also notable that the Law Reform Commission states at [3.167] of the aforementioned discussion paper that the reservations entered by Ireland in respect of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights have been removed over time, thereby “increasing the scope of the State’s initial ratifications” and highlighting the limited impact of such restrictions on an international agreement of this kind. Further, the suggested solution is one of adaptation while at the same time qualifying the clear text of the instrument. Within the text of CETA the grounds for refusal of enforcement of a tribunal award are those already existing within the treaty. No other grounds of refusal are possible outside of a protocol within the agreement specifically qualifying the enforcement duty vis-à-vis Ireland.

57. Effectively, such an amendment to the 2010 Act would, in respect of CETA tribunal awards only, render the grounds for non-enforcement ones which contradict the terms of the treaty, which requires a level of enforceability that places those awards at the very least on the level of certainty of a commercial arbitration as between non-state actors. That is of course discounting the principle of the automatic application of European law.

That is the first thing he says. As a matter of international law, you could ratify subject to a reservation. Quite clearly, the Supreme Court's majority never considered whether Ireland could or could not do that. However, we are now told in this House, at an advanced stage of the legislative process, that there is no intention to do it. We intend on signing this cheque and saying effectively to our bank manager in a private note, or in private note in our own diary, that we may not honour that cheque. That is what we are doing in terms of international law.

He stated, in paragraph 58:

Even were this possible, there remain clear affronts to sovereignty. These amount to a clear disregard of the Constitution. Firstly, the power of amendment of CETA by the Joint Committee is not one where Ireland has any chance of democratic participation. Secondly, the interpretative power of the Joint Committee may confidently be predicted to add to, ameliorate, clarify, expand and refine the existing obligations of Member States under CETA. Thereby, what amounts to a denial of justice or due process in judicial proceedings, or a fundamental breach of transparency in judicial or administrative proceedings, or manifest arbitrariness, or abusive treatment of investors, or any unfair or inequitable treatment, may be moved from the chimera of legal ectoplasm into tangible rules.

In paragraph 59 he stated:

None of these rules will be anything that the people of Ireland or their democratic representatives will have debated and adopted through Article 15.2 and Article 5 of the Constitution. Thirdly, over time, and through the laudable principle of ascribing to consistency, both the tribunals of CETA at first instance and those on appeal will accrue much more than the acquis communautaire of the European courts. There, principles were developed from treaties grounded in certainty of law and derived from legislative acts and interpretations that over time displayed fundamental cornerstones that required identification and declaration. Here, under CETA, the process is [just] the opposite. Principles are given. No one knows what they mean. It is up to the Joint Committee to state what the rules are. Where those rules go is a matter for the Joint Committee and for tribunal interpretation. Instead of principles derived from law, we are given aspirations that become law outside the democratic process.

He goes on:

Nor should the power of investment capital be underestimated. States are buffeted by the vagaries of markets due to the necessity to sell bonds to borrow. The purchasing power of those forces prior to the economic crisis of 2007 has been vastly amplified due to the economic response at that time of near zero percent interest rates which has expanded wealth holdings. The nature of what is purchased may amount to great significance in terms of national assets. As [Ms Justice Dunne] states, rulings in contradiction of Irish law have consequent chilling effects.

This analysis by Mr. Justice Charleton came when he saw what the others were proposing. He saw what Mr. Justice Hogan was saying. He saw that a majority of the members were agreeing with Mr. Justice Hogan about the Arbitration Act. He never saw this Bill and nobody ever argued before him that this Bill and the terms of this Bill, as they are, render ratification of CETA constitutional.

It was not Mr. Costello's business to start advising proofs to the Government telling it that if it did this or that it would be all right. He was faced with the Government claiming that it can ratify without any changes in legislation or changes to the Constitution. It was then told that it could not because if it ratified CETA without at least qualification, it will breach the terms of the Constitution. So, he summarised his own position by stating that "Ratification of CETA by the Government is not now necessitated by Article 29.4.6°." I think we all agree on that. It is not a necessitated obligation.

Second, he stated that:

The powers of interpretation, amounting to the promulgation of law, based on vague principles of justice and the condemnation of arbitrariness ceded both to the CETA tribunal members and, the point assumes even greater force, to the Joint Committee [envisaged under the agreement] constitute the diminution of sovereignty which vests in the Oireachtas under Article 15.2 of the Constitution and offends against the guarantee in Article 6 of the Constitution whereby all powers of government derive from and are subject to the Irish people. The powers of interpretation given under CETA to the Joint Committee amount to the ceding of legislative sovereignty. These powers cannot be exercised on any democratic basis. These powers are without defined, or any definable, limit. Interpretations, amounting to the creation of laws, by the CETA Joint Tribunal cannot be appealed to any body, much less, as the Constitution requires, to the ultimate authority of the Irish people.

I will stop there to say that in Ireland, the people are sovereign. If these Houses want to ratify CETA in its present form, we can go to the people and ask them if we should do this. I can tell Members that if it went to the people, it would be thrown out on its ear. There is no chance that the Irish people would agree to this because they would take the common-sense view that everything is okay as it stands. Free trade is fine but we like to depend on our own courts in the last analysis to defend Irish interests and our own Legislature to do the same.

He goes on to say:

It is not just an alternative to the system of Courts under Article 34 of the Constitution which the tribunal, appellate tribunal and Joint Committee interpretative system sets up, but an actual contradiction of the express terms of the jurisdiction of the Irish courts and in particular the finality of the Supreme Court in terms of domestic law. The Constitution does not authorise or contemplate that there be such an alternative. While Irish law will be a matter of fact for the CETA tribunals, in reality through tribunal decisions a new system of law applying to Canadian investors in Ireland will arise.

Enforcement under the New York Convention and through the Arbitration Act 2010 will be automatic in execution of the express terms of CETA.

Even were that not the case, and some realistic residual discretion to refuse might remain, perhaps created by legislation as the majority propose, upon ratification by all Member States of the European Union and on bringing CETA into effect, all obligations, and in particular the obligation to enforce a tribunal or appellate CETA tribunal award in domestic law, will become necessitated under Article 29.4 of the Constitution...

Let us consider what he is saying. That is so crystal clear and so obviously correct. They will become necessitated obligations, and no Act of Parliament enacted before or after ratification changes what are or are not necessitated obligations or immunises any obligation from being necessitated or being enforceable under European law.

He says that once they become necessitated obligations under Article 29.4 of the Constitution and Article 4(3) of the Treaty on European Union, they will leave an Irish court with no discretion but to enforce. He states:

The interpretive power of the Joint Committee is not democratic and is one in which the Irish people do not participate. Ceding legislative sovereignty to the unlimited interpretive powers of the Joint Committee is a clear disregard of the Constitution.

The following is an important point, and this is what this House has to hear clearly, and I would like to see somebody contradict this paragraph. He states:

An amendment to the Arbitration Act 2010, such as is proposed by the majority of the court, is a contradiction of CETA and in addition to Government decision and legislation, will also require a specific protocol to the treaty as a matter of international law.

The Minister of State has just told Members that there will be no such protocol and no such reservation. We will sign the cheque without anything written on the front of it to say that we will not be honouring it in certain circumstances and rely on an independent third party to say that because we amended our Arbitration Act in 2026, we will get away that exception. It is rubbish. It is rubbish because the European Court of Justice, to whom this matter in theory and practice could be referred to by anybody who is dissatisfied with the decision of the Irish court, will say that it is sorry but Ireland ratified this treaty without reservation or protocol and that it is, as a matter of European law, bound by its terms.

They are necessitated obligations by virtue of Ireland's membership of the European Union and the supremacy of European Union law in European legal matters. It would state that Ireland must obey the court in Luxembourg and any attempt in 2026 to write into Irish statute law some kind of escape hatch or emergency cord for it to pull out of its obligations is invalid as a matter of European law. It is not only invalid as a matter of European law; it is invalid as a matter of international Vienna Convention law. I have not heard a single person say we can simply ratify this agreement in the way proposed.

Mr. Justice Charleton went on to state:

In effect, therefore, this analysis agrees with ... [the majority] that the appeal should be allowed because CETA constitutes a clear disregard of the Constitution. Disagreement arises with those judgments (and in addition with ... [the minority judgments]) [on the validity issue] insofar as they suggest that such constitutional disregard could be cured by amending the Arbitration Act 2010. That solution, giving judicial discretion to the High Court to refuse to enforce awards of the CETA tribunal is a contradiction of CETA itself; either with or without a protocol introduced into the treaty. Further, even if there was such a protocol, supposing it to be possible under international law, which is firmly to be doubted, refusal to enforce a CETA tribunal award on any grounds as to our constitutional tradition would clash with our European Union obligations and Article 29.4 of the Constitution. This would place such a judicial veto outside legal norms and beyond constitutional scrutiny.

That is the law properly exposed and stated, and it was done having taken a look at Mr. Justice Hogan's obiter dictum and pathway, to use the Minister of State's phrase. It was done analysing precisely what the effect of that would be. Nobody has come to the Supreme Court and said, "By the way, Ireland will not be writing this into the ratification. There will be none of that. We will just say, 'It is there', and we will rely on a totally improper statement of a legal kind. This is highly unlikely to arise and, therefore, because the Supreme Court showed us this vague pathway, it is all kosher." It is not. The Supreme Court never decided it. By the way, the Supreme Court now is differently composed from the Supreme Court that handed down that judgment. A number of the members are gone. I do not know what the newer members of the Supreme Court would make of the analysis of Mr. Justice Charleton, who is also gone, but I do know one thing: that his analysis would be put on the table of the courtroom in Luxembourg by the Commission and that its representatives would tell Ireland that its so-called solution is worthless.

I welcome Sr. Helen Keegan and Maureen McGloin from Drumshanbo. They are accompanied by Councillor Enda McGloin. You are very welcome. Enjoy your visit to Leinster House.

The point I made is that the Minister of State quoted the so-called safeguards from the Canada trade deal or other previous agreements but the legislation before the House is not limited to Canada or Vietnam or Mexico. It will open up investor courts for any future trade deal with any country in the world, with or without those safeguards, by simple ministerial order - no primary legislation or real debate needed. That is a fact.

Second, the key point the Minister of State did not address in his response is who will actually interpret those so-called safeguards. Who will do that? It will not be Irish courts with public judgments and years of case law; it will be investor courts. The words can be as nice as you like, but it matters who interprets the public interest, and that is what is substantially different.

I will be brief because I am keen to get to my amendments. In the spirit of the yes-no answers, I would like just a few, and the Minister of State might front-load my questions - I know he will be limited in his time for a response - to ensure they are answered.

The Minister of State has focused again and again on the right to regulate and t's and i's. The right to regulate is there. Of course it is. It would be quite something if they could take away the right to regulate. The sovereignty and the courts issue has been examined in detail but the impact on the sovereignty in a legislative way is through the cost of regulation. We are signing a blank cheque in respect of the future cost of regulating, passing laws and giving effect to the mandate the public give us. In that regard, that blank cheque is very clear. Can the Minister of State confirm - I can confirm, but can he deny - that "unfair and inequitable treatment", the language that is here still in the investor court system, is the basis on which multiple very large million-dollar and billion-dollar awards have been made against states in the past? It is unfair and inequitable treatment. The Minister of State did not respond to the fact that in the text of CETA it mentions inducements, of encouraging investment, as one of the grounds which make more likely a judgment of unfair and inequitable treatment. These are the facts. Can the Minister confirm - I can confirm, but can he deny - that as regards all this investor court system or supposed reform he has mentioned, that same language, "unfair and inequitable", is there and the interpretative agreement is something signed by Canada and the parties? It is not signed up to by corporations. Yes or no, is it not the case that those corporations can also choose and seek to have their trial heard under the old ICSID rules? They are not obliged to go with the investor court system. They can go under the old rules that gave us those multiple rulings the Minister of State is trying to tell us are not relevant, even though the grounds are the same. Can the Minister of State also confirm that, as I said, there has not been a risk analysis in relation to that question of the clause on inducements? As my colleague has just said, can the Minister of State confirm that there is nothing in this legislation that confines the arbitration findings to the investor court system? It simply refers to an investment dispute resolution provision attached, so it could be anything. This lengthy discussion about the ICS is a little by the by because it is not necessarily going to be the ICS. It could be one of the old bad tribunals again.

Lastly, on the cost, can the Minister of State tell us what analysis has been done in terms of the chilling effect? Can he confirm that the Energy Charter Treaty has never been a consideration in relation to any law made in Ireland in any shape or form and has never influenced or helped make any decisions in that regard? Not that it has been said publicly, but has it ever been part of an Attorney General's advice, perhaps? Is that something the Minister of State can come to us with? Again, when I mention the blank cheque that attaches to laws, the fact that a change in the law leads to a reduction in costs is a direct input on sovereignty whereby the cost will change according to the obedience of the member state or the state that has been taken to court.

As regards some of the points Senator McDowell raised, first, he mentioned the Vienna Convention on the Law of Treaties. It reminds me of the Vienna Convention on diplomacy, which is relevant to a point made earlier by Senator Higgins, who suggested that the Villa Spada might be at risk. That is not the case. It could not possibly be the case. Senator McDowell also urged anybody here to contradict Mr. Justice Charleton. Mr. Justice Charleton was in the minority of the Supreme Court, so the majority clearly by default did contradict him.

They did not answer his points at all.

They did, actually.

They did not.

The Minister of State without interruption, please

The Chief Justice did in fact read his judgment and refers to it in his judgment, so I think on that point the Senator is completely wrong. I think it is fair to say that.

He was in the minority.

For all this talk about obiter dicta, this is not a High Court bound by precedent; this is a Legislature making laws which the Supreme Court envisages. Nobody in the Attorney General's office could simply say this is worthless or not worth the paper it is written on. The Attorney General is not a High Court judge deciding a case; the Attorney General is giving advice to the Government, which wishes - for public policy reasons, for the betterment of our economy and for the prosperity of our country, the European Union and Canada - to implement and ratify this treaty. We see the benefits to it and they have been well analysed. The Attorney General advises us on that, sees a Supreme Court decision and says, "Well, the Supreme Court has declared the ratification to be unconstitutional but a majority of the Supreme Court has said that it could be ratified if you do this". Mr. Justice Gerard Hogan was clear this is a matter for Government and the Legislature; it is not a matter for the Supreme Court. We have never said we are bound by the Supreme Court; we are doing this because we want to do it and think it is in the best interests of the people of this country and of our economies.

We believe this is very important. We are passing this legislation. It is a pathway. There is not a ratio decidendi or an obiter dictum. That is not relevant to us. What is relevant to us is the suggestion of a pathway by the Supreme Court. Like every piece of legislation that comes out of the Oireachtas, it is subject to constitutional provisions for legislation. It will have to measure up to the standards set out in our Constitution and that is the work we have tried to do, recognising the Costello case and what the Supreme Court has said. We have tried to do this and the Attorney General has tried to do this. We have not tried to be reckless or dystopian. We are not trying, as one Senator said in the last debate, to bring the country down the Swanee. That is what we were told we were trying to do. The facts are completely opposed to that.

I will be clear in relation to Mr. Justice Charleton. I have to say I have never seen the Supreme Court so personalised in all my life. We need to look at the judgment on the overall basis. It is worthy from an academic point of view but the Government cannot say it prefers the dissent and will ignore the majority, as some people in the Opposition want to do. That is not open to us because that is not the law. The dissent is not the law. We have to go with what we believe to be constitutional. The majority of the Supreme Court did not agree with Mr. Justice Charleton; the majority agreed with what Mr. Justice Hogan had said. The Chief Justice, Mr. Justice O'Donnell, considered - contrary to what Senator McDowell has told us at length - in writing what Mr. Justice Charleton said and explained his reasons for disagreeing with it. There was a good debate among Supreme Court judges and, out of that debate, we get a majority position that the Government is using to bring this legislation through on a constitutional path.

The Supreme Court not only identified constitutional concerns preventing the ratification of CETA but also identified a path to cure those concerns. The Government, advised by the Attorney General and my officials, has carefully considered the entirety of the Supreme Court case. We cannot and have not picked and chosen. We have also looked at Mr. Justice Charleton's dissent. The legislation is in response and we are confident it addresses the concerns of the majority of the Supreme Court in the Costello case and follows the legislative path identified.

Nobody has said a referendum is required. Contrary to what many people have said, it was not a decision of the Supreme Court that a referendum was required. If we were to ratify CETA without making the legislative changes, we would be breaching the Constitution but the Government is confident the legislation we are passing addresses the concerns of the Supreme Court in the Costello case following the legislative path identified in that case. Therefore, a referendum is not required because it would be constitutional. A referendum is only required, in general terms, to change the Constitution. That is not required in this case.

People are talking about various countries apparently not going to ratify CETA or other agreements. We have absolutely no information that that is the case. It appears to us we cannot say that definitively. Let us say we decide we will not do this through a court case saying it is unconstitutional, through a failed vote or through a decision not to do it. I presume if the Opposition came into government, it would announce it is not ratifying CETA. That is presumably what it would do because we are required to have legal certainty.

That is a stretch of a presumption. Provisional application has been spoken about by everyone.

Sorry, could we have the Minister of State-----

There was a bit of a stretch of a presumption by the Minister of State so-----

The Minister of State, without interruption, please.

-----it would need to be challenged.

The regulatory impact assessment clearly states the thing would collapse and we would be left with tariffs and whatever pertained before we had the CETA agreement with Canada, and that jobs around the country would be at risk. Investor courts are new and have been designed to deal with the issues raised regarding the previous system of dispute resolution. There have been many significant changes.

The previous system still applies. That was a factual question I asked.

That is not the case.

The Minister of State, without interruption.

Article 8.23 of CETA. It was a factual question.

As the Senator knows, she is allowed to come back in on Committee Stage but the Minister of State wants to give a reply.

That would only be possible where there is consent so that would not be case.

Where there is consent.

Yes, but that is not what the Senator said. She made out this was still in force when it is not in force. The State would not be bound by that because there would be required to be consent. I stand over what I said on Dáil Committee Stage that this is exceedingly unlikely. That is said by a number of the judges in the Supreme Court case. It does not cure any unconstitutionality or any difficulties with it, but they stated they feel it is unlikely too. We have all said the domestic courts are options as well for anybody. Those dispute resolution protections are needed not just to protect investors coming into Europe but to protect Irish companies going into Canada or wherever they are going. I accept it is remote and not likely but those are the provisions that treaties have had in them to ensure balanced trade that benefits all our people. I am at the Senator's disposal-----

I asked about fair and equitable treatment.

Yes, I will answer that.

And about inducements.

Senator-----

I asked four very specific questions.

The Senator can come back in but I want to give the Minister of State an opportunity to give a response.

I have no difficulty in answering the Senator's queries but I have repeated myself many times - though not, I acknowledge, on this next point.

Comments have been made on the provisions regarding fair and equitable treatment in CETA. It is important to stress the standard drafted under the investor court system is quite different from the old system. The fair and equitable treatment provisions under the ISDS system - the old system that is not in this treaty - were opaque and based on customary international law. There was no description of content. The new types, including in CETA, clearly lift the aspects of fair and equitable treatment. Examples of these are denials of justice, manifest arbitrariness, targeted arbitration and manifestly wrong grounds such as gender, race or religious belief. The investor court system provides clear guidance to the dispute resolution tribunals on applying the standards. This detail and clarity is an improvement on the old system. Many examples put before us in the Seanad have been based on the old system and that system has been changed.

In order to ensure the tribunals in all circumstances respect the intent of the parties, which are the states, the EU and Canada, the agreements make provision for the issuance of binding notes of interpretation where serious concerns arise on matters of interpretation. The joint interpretative instrument on CETA confirms that "Canada and the European Union and its Member States are committed to using these provisions to avoid and correct any misinterpretation of CETA by Tribunals." CETA's joint interpretative instrument explains that Canada and the European Union and its member states are committed to monitoring the operation of all these investment rules, to addressing in a timely manner any shortcomings that could emerge and to exploring ways in which to continually improve their operation over time.

That answers the point.

I have a final question. I do not need to come back because it was factual. Can the Minister confirm that there is nothing in the Bill that combines it with the investor court system?

Excuse me, Senator.

I asked four yes-or-no questions.

Then you stopped. You are now entitled to ask a question.

I have asked the question. The question was, factually, that the investor court system is not specified in this legislation. Is it not the case that other investor-state dispute mechanisms may apply through this legislation? Yes or no. With respect, Chair, I asked a yes-or-no question. It was a very simple question. It is reasonable to ask that it be answered. In terms of expediency, as we move forward, I did not go on at length. It was simply yes or no. I am restating it because perhaps it slipped the mind of the Minister of State.

The Minister of State has finished. The Senator is now entitled to ask a question.

I would like that question answered - yes or no. Is it not the case that there is no specification that it would be the ICS system, and we can come back on the merits or not of that? It simply mentions investor-state dispute mechanisms. The future agreements that may be attached to this may, indeed, contain different investor-state dispute mechanisms.

I will clarify the question. Is the Senator asking if a future trade agreement that we have not envisaged-----

Yes.

Allow the Minister to respond.

It is important that we give a precise answer. I want to get the precise question. The question is that the Senator is envisaging an agreement that is not yet agreed, but that could potentially be subject to ministerial order under the Act.

Yes. It concerns investor dispute resolution provisions. That is all the language says. It does not say ICS. There could be any kind of investor-state dispute.

No, that is not going to be the case.

It is not going to be the case, or it cannot be the case under the law.

It will not be the case.

Based on what?

It will not be the case because these old-style dispute resolution mechanisms are not part of the framework of any modern trade agreement.

So it could be the case.

It is not going to be the case.

If we are having a debate, I need one person to be in possession.

The answer is that it could be the case, but he does not expect it to be the case.

Is the Senator going to ask the question?

The answer is clearly that it could be the case. We do not know what will happen in the next chapter. What is clear from what the Minister of State has said is that it is not excluded, but that he does not anticipate it happening. Perhaps it would not be his personal preference.

Does the Senator want to ask a question?

I am asking if that can be contradicted by the Minister of State. I do not think it is the case. As the Minister of State tried to understand my question, I am trying to understand his answer.

I need people to ask questions. I need one person to be standing so that we all know who is supposed to be asking the question. I call the Minister of State.

All the modern trade agreements have this new system of investor courts, not the old system. That is what this legislation will apply to. Certainly, any of the ones that we have mentioned today, the ones that are in the Bill, are ones that may well become part of the Bill, that I am aware of now-----

But-----

I am sorry, Senator. The Minister of State is still standing.

They contain this system. It is also the case that they are examples of mixed agreements, and I am right in saying that. For example, the recent Mercosur agreement would not be part of this because it does not have those provisions at all. Again, we are moving even beyond that.

The point is that things can change. They have changed in the past largely due to pressure from those members who opposed the old system, which did not include the Irish Government, I note. They have changed again, although not as far as we would like, but they can change back. This is a blank cheque. We do not know what kind of clauses or provisions may be in future trade agreements. We do not know what kind of investor-state dispute mechanisms there will be. We are being asked not just to move on CETA and on Chile, but, in some of the subsections of this Bill, to give a blank cheque for the Minister to make future determination on any kind of future investor-state dispute mechanism without scrutiny, even the minimal scrutiny that CETA has had. By the way, whenever it was scrutinised in the EU committee or elsewhere, it has been found against, and even a committee with a Government majority found against it.

There is another point that is very important. I stand over what I said, which is correct. It is also the case that for every agreement that will become subject to the provisions in the Arbitration (Amendment) Bill, the order that the Minister would make in relation to this would be laid before this House and the Dáil, so there would be an opportunity for this House and separately for the Dáil to reject that. There is belt and braces in relation to the concerns that the Senator raises. I think that what I am hearing from the Senator is that she acknowledges, like I do, that the newer system is better than the old system.

I do not. In fact, I have said that the same grounds apply with a different dressing. In terms of puncturing this, I think it is important to say that this is an unknown that is part of the Bill.

As the Senator is the one speaking, I ask her to report progress.

I will report progress of a sort, but I hope we get to the amendments in the next part.

As it is after 4.15 p.m., the debate is adjourned by order of the House today. Senator Higgins will be in possession when the debate resumes.

I remind Members that on Committee Stage, they are allowed to come back in, so please allow the Minister, whoever the Minister is, to finish so that Members can ask their follow-up questions. We want to be able to tease this out in a manner that people can see there is a process.

I thank the Minister of State for coming to the House.