Alice-Mary Higgins
National University of Ireland · Independent · Ireland
“We are signing up to be customers of liquefied natural gas - potentially fracked gas, potentially coming from a country that is busily fighting against climate action and trying to fast-track our route to destruction. We will be doing that every year in the budget and every day in the terminal.”
“We are not getting solid measures on those safeguards. The other safeguards we have, which are our planning laws and climate laws, are being either fast-tracked or suspended. We are suspending the existing safeguards and are not putting hard safeguards into this Bill, and we are being asked to go on faith.”
“Nonetheless, I have some practical questions. We need a little more on what the emergency is because it is not sufficient to say we will deal with it then. The emergency is the ground on which the Minister of State is asking for the normal planning process and the climate Act to be suspended. We need to know what the emergency is.”
“It should happen only after all relevant market-based measures have been implemented. Those market measures should include the demand-reduction strategies that are eligible under N-1, including demand reduction by large energy users, and should have been implemented, exhausted and proven insufficient.”
“Sure there is detail in it but the key issue is that what he is asking of the Oireachtas, which is to agree to it being built, is on the argument of there being an emergency. It should be very clear what the emergency is. I mentioned previously that the committee said our N-1 obligations could be met through demand management.”
“It comes from real places with real communities that are immediately and terribly impacted by fracking, as well as having an impact on the atmosphere that surrounds our beautiful planet, which we are destroying. As the Minister of State said, it impacts not just on business but on the liveability of large portions of this planet.”
The complete record
Every one of 1,900 lines we hold for Alice-Mary Higgins, in date order, each linked to its source. Free to read, in full, without an account. Page 16 of 38.
“I move amendment No. 25: In page 4, between lines 19 and 20, to insert the following: "(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where such enforcement would not be in the public interest.".”
“It is so not credible that the Minister of State is suggesting there will be no impact whatsoever when we see the Government already wobbling on previous commitments on international law, when the international law is crystal clear. As he knows himself, the foreign affairs committee has been clear on that as well, simply because of the concerns of the interests of some companies. Would it not be even more of a constraint on the Government or any future Government when it came to doing what we and the public all know is the right thing, if those companies also had a very useful tool by which they could threaten legal action in the event of the frustration of their expectations?”
“If we had a measure such as the occupied territories Bill - which in its preamble states that it relates to ensuring compliance with the opinion of the International Court of Justice - and were a company to take a case to the arbitration body and it went ahead and said here is the company's award, as we know it would because it does not consider itself bound by national and European law or the International Court Justice, would that award be enforced in Ireland? I suggest that it should not be. If an award is made in relation to a measure that was taken to ensure compliance with the International Court of Justice, then it should not be enforced here.”
“This is relevant in terms of the occupied territories Bill and the concern expressed relating to the financial impact on companies by taking action and having a full and proper Bill that addresses both goods and services. We are seeing the interests and concerns of companies being quoted very heavily as a rationale in the argument for the dilution of that Bill. This again goes back to it being hard to credit the suggestion that the chill effect would not come in.”
“I move amendment No. 24: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where such enforcement would run contrary to an opinion of the International Court of Justice.”. Amendment No. 24 is an important one but our time is constrained, so I will be very brief. Amendment No. 24 asks that the High Court would have discretion to refuse leave for enforcement of an award where such enforcement would run contrary to an opinion of the International Court of Justice.”
“It is there in the text of Article 8.10, that if a party has made a representation to encourage investment and then that investment is subsequently frustrated by the party, it may be considered unfair and inequitable treatment. Has the Minister of State considered that because any time he has been asked about it he has not given an answer?”
“The Minister of State has literally not answered the question. First, in terms of that list, it also includes provision for other measures that can be attached. It is not a closed box in terms of fair and equitable treatment. Further things may be added. The Minister of State has been repeatedly asked - and not just by me - to address the interpretation of fair and equitable treatment and the question of specific representations. He has not addressed that. Will he clarify what, if any, risk analysis has been taken in terms of that element of exposure? The Minister of State has been asked about it repeatedly and he has never spoken about this section.”
“It was Veolia, I am almost certain, that got a contract in Argentina to provide water and when Argentina ended that public contract because the water was undrinkable, it was told that under the terms of the contract it did not have to be drinkable and a ICSID case was taken. Veolia said that it was simply required to provide water; not to ensure its drinkability. These are the kinds of cases and kinds of vulnerabilities that have been created.”
“What this amendment will do, in terms of inducements, is ensure that the High Court will have full discretion to refuse leave for enforcement of an award made pursuant to an agreement where the applicant of such enforcement is in receipt of public grants, public investment moneys or public procurement contracts. What we do not want is to give a firm a public procurement contract, investment or a grant and it then gets to use that as proof that we gave it a reasonable expectation that then allows it to sue the State. That is exactly what is allowed under the CETA text, but it should not be enforced by our High Court. That is the vulnerability circle that has been created, and it is deeply regrettable. There are multiple examples of it.”
“With respect, it is not about mere fact, it is the fact plus the behaviour of the State, and the provision of fair and equitable means is wide open to be used by companies and has been one of the largest grounds on which previous cases have been taken. The Minister of State may say that they were different agreements but it is the same language. Nonetheless, even within this piece, it is explicitly clear that there is vulnerability. The Minister of State has been asked about this repeatedly. What risk analysis has been done around that question of the induced investment? Has there been proper consideration given in relation to our vulnerability when it comes to the provision of fair and equitable treatment?”
“It may well go that it came in and subsequently the party, that is, the State, has frustrated the expectations it had in relation to the investment the State encouraged it to make. That is a wide-open goal in terms of rulings against the Irish State. There are multiple examples again here. The fact is that this proactive encouragement to business should not come with a risk attached and by choosing to make ourselves vulnerable to the decisions of these arbitration tribunals, we are unnecessarily rushing to create a new risk attached to the encouragement of investment. Incidentally, not having the investor court has not been an obstacle to it. We heard the Canadian ambassador say that there has been no obstacle with our other courts. Companies, of course, prefer these courts.”
“One of the things that Canadian companies mentioned is that they like the really proactive measures the Government takes to invite them and encourage them to invest. That is good, of course; that is what we should be doing. Nobody is against that, but the problem when we choose to make ourselves liable to an arbitration tribunal is that those measures such as making specific representations to investors, or inducing or encouraging an investment, are in themselves a consideration in whether that company was unfairly or inequitably treated. I give the example of a very large REIT, which was encouraged to enter the rental market in Ireland, and then new rental regulations come in.”
“The text of CETA explicitly states: When applying the ... 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, and upon which the investor relied in deciding to make or maintain the covered investment, but that the Party subsequently frustrated. The point that was made relates to whether we have created inducements or encouraged a company to invest. For example, the IDA may have given them a grant or encouraged them to do so. We have a list. In the Beyond Barriers report that looked at trade, most of the areas of trade are all covered already and do not require the investor clause to operate.”
“That is the key point. That is the situation whereby an award may be made, and that is the situation whereby a government may be offered the opportunity to repeal a law or change it in order to reduce the bill. While the fair and equitable treatment obligation has not so much changed - it is set out more clearly compared to some of the previous obligations - the basic grounds are the same. It also has subsection (f), which allows for other things to be added under fair and equitable treatment in the future. It is not a closed box of circumstances applying to fair and equitable treatment in terms of CETA. As I keep saying, this is not the only piece. There will be other worse agreements as well, potentially. In terms of this one, the category of fair and equitable is not a closed box. It can be expanded.”
“That means on its own it is a fact that it is not a consideration if a company would lose profits. It is not the mere fact, it is the fact combined with what the Minister of State described as abusive treatment and so forth. Those categories of what constitutes abusive treatment are the basis on which the awards are made and that is wide open in itself to abuse. Indeed, Ireland is extremely vulnerable under a number of those categories. Here is one that is really clear. It has been asked about repeatedly, including by Senator Sarah O'Reilly and others. When applying the fair and equitable treatment obligations, which is one of the grounds on which those awards could be made, consideration must be given not only to whether a company loses profits but also to whether it was treated unfairly and inequitably in regards to that.”
“I move amendment No. 23: In page 4, between lines 19 and 20, to insert the following: "(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where the applicant of such enforcement is in receipt of public grants, public investment monies or public procurement contracts related to the circumstances of the award." What the Minister of State has just described is exactly as it is: when rulings are made, compromising on those laws and on those measures can be a consideration. That is directly the chill effect in practice. That comes to this piece here. The Minister of State leant on the fact and he keeps using the phrases "the right to regulate" and "the mere fact".”
“The High Court should have full discretion to refuse the enforcement of an award made under one of the many international agreements that may come in under this Bill, where the calculation of that award has been affected by repeal or modification of the measure giving rise to the award. If the amount of money that is being sought to be enforced against the Irish State has been affected by a compromise on the part of the Irish State in relation to the repeal or change to a law, that should not be enforceable in Ireland. Will the Minister of State clarify exactly where he is on that part of the enforcement piece in terms of being told this is how it operates? It is how this one operates too. It has been extremely effective.”
“We can regulate but whether we are willing to compromise on those laws is going to affect how big the rulings made against us will be. It will affect the size of the award that might be made. The chilling effect is built in. Leaving aside the chilling effect that happens due to the threat of a case and in terms of the cost of a case - by the way the costs are huge for cases for states, win or lose - if we do get to the table on this case, and if it does proceed, we will be under pressure to compromise on our law in order to ensure a lesser award. What I am simply saying in amendment No. 22 is that the High Court should not be asked to reward that.”
“I recall that I had to go and read the Transatlantic Trade and Investment Partnership, TTIP, in a private room with a pencil. That is where we were. The bar has not moved so much because there can still be requests for privacy in relation to certain parts of the detail of an adjudication. What is on the table when the bill attached to any law or public policy measure is being decided in these arbitrations is whether there was a willingness to compromise that law. That is the direct language. There is a reference to repeal or modification of a measure, namely, whether a country has been willing to repeal or modify a law. It is there on the bill. That is in the text of CETA, which does not seem to have moved on that much. Why have the right to regulate and then say "By the way"?”
“These are not small awards - they have run into hundreds of millions and even billions. This is what we have seen in the last few years. When it is being decided how big the bill will be, a tribunal will weigh up whether a law was repealed or modified. This is what is on the table. To be really clear, whatever about the right to regulate, in terms of the cost of making regulations and laws that reflect the actual will of the Irish people, their concerns and what they want to happen in a litany of areas we have heard about, right through from the environment to housing and public health, which has been a particular target of these kinds of cases, that is what is on the table. The Minister of State mentioned that the secrecy has been removed.”
“It is only necessary to threaten to bring a case against one country and have it fold to create a chilling effect, where other countries may not attempt similar legislation. I will expand on this point in case there is any doubt at all that this chilling effect is part of the designed functioning of not just CETA but also the many other investor trade dispute mechanisms we may be signing up to in this Bill. In terms of CETA, the text of that agreement states that, "For the calculation of monetary damages, the Tribunal shall also reduce the damages to take into account any restitution of property or repeal or modification of the measure." It is literally there in black and white concerning what happens when it is being decided how much money a state will have to pay. The litany of awards has been huge.”
“I have given a litany of examples whereby companies have demonstrated that just by taking a case, they get to change the law. Vermilion, by threatening its case against France, got a change in the French climate law. The company got it diluted. The minister for the environment in that country was explicitly clear that was what had happened. There are multiple examples. Togo passed a decree in 2012 requiring health warnings text to cover 65% of tobacco packaging. British American Tobacco and Philip Morris claimed the rules violated their trade rights under investor-state dispute settlement, ISDS, and Togo was forced to scale back its plans. What was really important was that this was then given as the example to intimidate other jurisdictions from bringing in similar laws.”
“I move amendment No. 22: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where the calculation of that award has been affected by any repeal or modification of the measure giving rise to that award.”. This amendment goes to the core of what everybody has been saying throughout the debate, despite the litany of references to the right to regulate, namely, what is being talked about is the compromising of regulation, lawmaking and policymaking because of the economic impact. This is not a shift in the position. That has always been the case and is how it has often worked.”
“I move amendment No. 21: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where that award was in relation to a public procurement decision made to ensure compliance with section 42 of Irish Human Rights and Equality Commission Act 2014.”.”
“I move amendment No. 20: In page 4, between lines 19 and 20, to insert the following: “(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where enforcement of that award would compromise the State's ability to achieve the objectives for in the Climate Action and Low Carbon Development Acts 2015 to 2021.”.”
“I move amendment No. 19: In page 4, between lines 19 and 20, to insert the following: “(4) Where an applicant is seeking leave from the High Court for enforcement of an award pursuant to an international agreement, the applicant shall demonstrate to the satisfaction of the High Court that the enforcement of that award shall not compromise— (a) the constitutional order of the State, (b) the fundamental principles of the constitutional order of the State, or (c) the State’s obligation (reflected in Article 29.4.4 of the Constitution) to give effect to European Union law (including the Charter of Fundamental Rights and Freedoms) and to preserve its coherence and integrity.”.”
“My amendments certainly do not represent an acceptance of the premise of the mechanism and its credibility. They are simply trying to ensure that we would have a guarantee of proper High Court scrutiny, with an evidence base, in relation to every instance of enforcement. I do not see why we cannot have a proper review in relation to every instance of enforcement and proper consideration, rather than simply in instances where that enforcement may be challenged. If the Minister of State envisages, as he suggested, so few awards being made and so few attempts at enforcement, then why not have a bar that would ensure the High Court would be provided with evidence in relation to those instances in terms of their compatibility with the law?”
“Rather than the State having to challenge the enforcement of an award by claiming it would "compromise the constitutional order of the State" or "the autonomy of the legal order of the European Union", there would be an onus on the applicant, that is, the company seeking to have an award enforced, to demonstrate that the enforcement of the award would not compromise the constitutional order of the State or the autonomy of the legal order of the European Union. It just shifts the burden of proof onto the people seeking the enforcement of an award. It would be for them to demonstrate that it does not compromise these aspects. These are straightforward amendments.”
“Amendments Nos. 18 and 19 simply refer to the language in the Bill. Regarding the current language used in the legislation, concerning awards not having been enforceable and never shall be enforceable, it is very hard to see how this applies in relation to the energy charter treaty and so forth. Leaving that aside, these amendments simply try to ensure that a burden of proof is placed on the applicant.”
“I move amendment No. 18: In page 4, between lines 19 and 20, to insert the following: “(4) Where an applicant is seeking leave from the High Court for enforcement of an award pursuant to an international agreement, the applicant shall demonstrate to the satisfaction of the High Court that the enforcement of that award shall not compromise— (a) the constitutional order of the State, or (b) the autonomy of the legal order of the European Union.”. I believe amendments Nos. 18 and 19 are grouped. If they are not, I propose that they be grouped.”
“I am going to assume from the Minister of State's lack of answer that the Energy Charter Treaty has been a factor in the making of regulation, legislation or public policy, and the threat of suit under that. That is something to note as we come to later amendments around the chilling effect.”
“They were "Yes" or "No" questions. It was simply a "Yes" or a "No" to whether the State has considered or factored in the Energy Charter Treaty when making decisions on legislation policy or regulation and whether the potential risk of litigation under the treaty had been a consideration in any of those processes. Then the other simple question related to the companies. The Minister of State stated that the companies have the same legal advice he has. None of us has the Attorney General's advice, so I do not know if the Minister of State means that the companies have similar legal advice. I was asking what engagement there had been with large companies around the expectations of how this is likely to operate.”
“I would like the Minister of State to clarify whether the Energy Charter Treaty has been considered in relation to any legislative or regulatory decisions? Has there been consideration of the potential impact of litigation under the treaty and its investor components? Has that ever been a factor in any decision-making by the State? He also mentioned that some of these large companies have the same advice that he has. Has he engaged with large Canadian companies in relation to their expectations of how this will operate?”
“I would like the Minister of State to clarify something. He mentioned that the Government has never considered CETA in relation to anything because, of course, we have not had the investment clauses, though I would have hoped there would have been a risk analysis in relation-----”
“These powers that the Minister of State is designating, or these responsibilities in terms of the decision being given to the High Court, do not just relate to CETA. They relate to any agreements made under this legislation. They also relate to any other agreement that may be made, which may have any other form of investor dispute mechanism attached. That will be voted on by the Oireachtas, but the point is that we do not know which kinds of systems will be feeding in awards and then enforcement will be sought. Where does the Minister of State stand on this? The risks are clear. Even if the Minister of State thinks differently about the risks and believes these cases will not arise and awards will not be made in relation to measures that might be taken, why block these amendments?”
“When people are concerned about this, they are concerned about what the impact of the enforcement of these measures and the enforcement of fines in relation to these policies may have. There are two issues. The first is the chilling effect in terms of whether it affects public policy. I will come to that in further detail in a later amendment. The second is the cost of these awards. We are looking at awards that relate to future unearned profit, not just the loss on a previous investment but a loss based on reasonable expectations of money someone was planning to make. The awards have been stratospheric. Senator Andrews pointed to that. There have been €100 billion in awards made under these kinds of arbitration mechanisms.”
“Does the Minister of State believe that if they do make awards, they should be enforceable? If an arbitration body makes an award in an area related to an impact of an area of public policy, should that be enforceable? Amendment No. 21, which is grouped with this one, addresses public procurement and compliance with the Irish Human Rights and Equality Commission Act. If actions are taken in relation to a public procurement decision based on the obligations of public duty, equality and human rights, should a measure taken in that way be subject to an award that can be enforced in Ireland? On amendment No. 25, I will not reiterate the points I made because this relates to the public interest question we discussed previously.”
“This is not a matter of what the court said the Government had to do to get its preferred mechanism of ratification to fly. This is a matter of "Yes" or "No". Does the Minister of State believe that awards made by arbitration bodies in relation to the impact of public policy measures in these areas should be enforceable on the State? We disagree on whether those arbitration bodies will make awards on these areas.”
“He suggested what the Government could do to try to get the fast-track ratification the Government had attempted, and to make that okay for the future. This is the Government's framing of that ruling. We are not talking about that in amendments Nos. 16, 20 or 21. We are simply asking whether the Minister of State believes that the High Court should be required to allow enforcement of an award which may compromise the State's ability to achieve the objectives of the Climate Action and Low Carbon Development Act. Does he think the High Court should have the opportunity to define enforcement of an award when it arises from legislative and regulatory measures the State has taken in all of those important areas listed by Senator Sarah O'Reilly, including labour protection and the protection of public services?”
“That is what arbitration bodies can do. The Minister of State can say we do not know what they will do or that maybe they will not do it or he does not think they will do it. That is where we are at. We know the others will do it because they have done it in the past. Those who critiqued correctly the previous agreements have also said that the ICS is slightly less secretive but operates in a very similar way. Those who were right in the past are telling us that there is a problem with the new system. That is the case. That is the arbitration bit. What we are talking about here is the enforcement bit. This is not just about what Mr. Justice Hogan said the Government had to do to get CETA through.”
“When we seek to strengthen our policies on climate we will meet challenges. We have seen challenges under the Energy Charter Treaty. Ireland is being challenged right now. We will see challenges if we try to strengthen our climate laws. Home care is an under-regulated area. Despite promises to put it on a statutory basis in the programme for Government, that has not been delivered. When we make that move, we will have exposure because one of the largest actors in that area is a large Canadian company. If we seek to further regulate in the rental area, we will find that the largest landlord in the State is a Canadian company. It is extremely credible and factual that there is a risk now attached to policy and legislation in areas of crucial public policy. A cost may be attached to it due to findings made under this.”
“It is like saying, "I am just so confident it will never happen that I am willing to sign us up to something". Not only is there a 20-year zombie clause, but we are choosing to accept and give sovereignty to these investor courts. Once done, we cannot take that back on our own. We need the entire European Union to do so. The Minister of State mentioned the right to regulate. Everybody has been explicitly clear. We know the Government can make the law. The question is what it will cost and whether that becomes an obstacle. The obstacles are clearly set out. The Minister of State also mentioned these interpretive agreements about keeping the existing standards, but we have a number of areas which are under-regulated. Does he believe our current action on climate will deliver enough? No, it will not.”
“We were told not to worry about that and that it would not affect those issues and yet, Europe has had to withdraw and now Ireland has had to withdraw, specifically because it will block the achievement of our carbon climate targets. In fact, the UN body, the Intergovernmental Panel on Climate Change, IPCC, has named investor dispute mechanisms as a whole, not one particular one but all of them, as one of the main blocks to achieving the climate policy changes that we need in order to deliver a liveable planet. Therefore, there is a litany of record and evidence of how this goes, including in the language of those legal companies that tend take this cases and plan to take these cases, and yet there is this plan of preposterous suggestion that we should not worry; it will never happen.”
“In 2016, I brought my first Private Members' business to this House, which passed. It was a motion stating that the EU-Singapore ruling is about to happen and they are almost definitely going to say you have to treat the investor courts bit and the trade bit separately. The Government then disagreed with me and it was wrong. Therefore, the record of who has been right and who has been wrong on this issue is that we were being told there was not a problem about the Energy Charter Treaty, which now everybody has to leave. My amendment No. 20 relates specifically to the ability to achieve our climate action targets.”
“He is saying that we should not look to everything that has ever happened, not in some abstract way but here in Europe and right across the world. The Minister is saying do not look to everything that has ever happened; look to what the Government hopes is going to pan out in this future untested mechanism where very credible people, including, for example, the German judges association, have pointed to the fact that there are not substantial enough differences. On that point of being right and wrong, the fact is the Minister of State is saying we responded. It was pulled kicking and screaming to make changes. The changes that were made were not like some spontaneous effort. They were made by people who criticised the previous system and were correct. Moreover, the criticisms being made now are made by the same people who were right then.”
“This Bill is about the enforceability and then a lot of the discussion that the Minister of State is asking us to lean into is to constantly reference the fact - bearing in mind that the ICS is only one of the mechanisms possible under the Bill in terms of other agreements - that you do not have precedents from there but that is because it is not established yet. In terms of fantasy and in terms of living on a hope and a dream, the person who is in a position here in this regard, namely, the Minister, is saying that we should not look to what has happened for the past 20 years and the multiple examples of these arbitration dispute mechanisms, the full gamut of which may come in under this legislation.”
“We looked for the grouping because there are multiple examples that we could give. Amendment No. 16 gathers a number of them together. Moving away from the question of what do we need to do to get this passed, those public concerns that related to the investor court components of CETA still stand and have not been addressed. There is a reason whereby anytime a light has been shone on this issue, there has been concern. For example, when the European affairs committee looked at these investor court components, even though there was a Government majority on that committee in the previous Oireachtas, it came down with a 50:50 split. They did not come down in favour of the passing of the investor court component of these agreements. We are moving between the two here.”
“This is why it is important that the High Court would be empowered explicitly to be clear that it would be consistent with a very long-established practice of the precedence of rulings of the Supreme Court, particularly when referred to by the President.”
“The amendment is simply saying that the same kind of standard would be applied and that there would not also be a situation where a company would be able to seek compensation in relation to a measure contained in a Bill which had been given that imprimatur from the Supreme Court. That is a really important point. This is a situation where individuals would not be able to take cases in relation to the effects that the Bill may have on them but unless we are very clear there is the concern or danger that a corporation would be able to seek measures to ameliorate the impact of that measure on its finances, were those found to be unfair or inequitable.”
“It does not narrow it. The language is very clear. The amendment states, "Without prejudice to the generality" and refers to "non-exhaustive examples of the operation of subsection (3)". There is nothing in amendment No. 14 that closes the frame or the discretion of the High Court. What it does is make clear very important instances whereby a Bill had been referred to the Supreme Court by the President, for example. We know that it is the case that if a Bill is referred to the Supreme Court by the President and that Bill is found to be constitutional that no individual may take a case in relation to that Bill. Its legality is so confirmed.”