Michael McDowell
National University of Ireland · Independent · Ireland
“Then I think of this particular Chamber where people are polite and kind to each other and listen to each other respectfully. There is no baying or shouting down or whatever. It is a great tribute to the Seanad staff that that spirit continues to exist in this House.”
“I note that the whole scheme of the planning Act is that exempt development proposals are considered by the Houses. It is questionable whether this House has really considered the exempt development regulations. Without debate, we sent them off to a committee.”
“I am one of the people who disagrees with the substance of that report. We have to have a real solid debate on it here in this House, not merely a cursory one. It is an issue of fundamental importance. It cannot be avoided, one way or the other. Whatever your views are on it, it needs to be thrashed out.”
“Although coming up to the end of this term we are rushing things through, and the guillotine is well-oiled and slicing this way and that, we have a lot of work to do in the autumn.”
“The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretar…”
“If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombar…”
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“As sure as night follows day, when confronted with the difficulties of getting at such material by means of a search warrant, it would be so easy to just stop the journalist on the street and see if they can get that material from them under a power of search that is not the subject matter of a warrant, as arose in the Emmett Corcoran case.”
“Maybe, in the context of a warrant for a search being applied for, a court would say that this is not a journalist at all but a local gouger wandering around with a camera phone in his pocket, and that it is not what the European Convention on Human Rights is concerned with at all. However, I ask the Minister to deal with the question regarding what protection a journalist has, who might have their papers, notebooks and things like that in his or her car as they drive in public. What effective protection have they in a stop-and-search situation, when sections 9 and 10 are so open to their use by gardaí to look at particular materials and invade the journalist's journalistic privilege? If a garda can look at a journalist's papers on foot of a power of search not requiring a warrant of any kind, it will happen.”
“I am not suggesting we should have exclusionary rules such as those the United States has, but I do think the Minister is not facing up to the searches of journalists, or of documents that are in their possession or power, which are not the subject of a prior warrant application to a District Court judge. We should cover that situation. I am mindful of one other thing. There is a whole crowd of yahoos going around now with their cameras up claiming to be journalists. For some of them, if it was not so ridiculous it would be absurd and perhaps harmful. There are people posting stuff on social media and claiming to be a journalist whose function is to go around harassing people by putting a phone camera in their faces. They then claim they are journalists. I fully appreciate that the claim to be a journalist is a difficult one.”
“I fully understand that the Minister is meeting the Emmett Corcoran decision in the Supreme Court, and that he rightly says members of the Supreme Court said this should be urgently addressed, but what about the point I am making? The Minister referred to the fact that a defence lawyer leaving court could resist his brief being grabbed by a member of An Garda Síochána with a view to just nosing through it on the basis that there could be evidence of an offence committed in it. I fully understand that but a journalist is given no right to resist a search of his or her documents in a stop-and-search situation as envisaged by section 10. It does not appear there is any law in Ireland that says the fruits of such a search, if conducted lawfully, cannot be used to mount or pursue an investigation such as there is in the United States.”
“If I believe that a journalist has any material in his possession which, if I see it, will enable me to effectively breach his or her privilege, and I deploy my powers under sections 9 or 10 of this Bill of stop and search, there is no protection at all for the journalist to say, "Sorry, you cannot look at the notebook in the car". Worse still, there is nothing there to say that a garda who decides to do that is acting unlawfully. There is nothing there to effectively protect the journalist who is stopped on the street or is in a car that is stopped on the street, whether as the driver or the passenger, and who has documentary material in his or her possession, having it read by the Garda on a deliberate basis. There is nothing there to prevent that situation.”
“If we are going to protect journalists in the circumstances referred to by the Supreme Court in the Emmett Corcoran case, why are we not going to say that a member of An Garda Síochána shall not deploy the powers under section 10 of a stop and search with a view to getting or seeing material which would be privileged if it were the subject of a search warrant? The Minister has not dealt with that issue. Under the Schedule, we are dealing with any offence of theft of any kind whatsoever. That is not something that is going to bring down the State or which amounts to murder, manslaughter or an offence under the Offences Against the State Act. Any offence of theft is covered by this.”
“I fully accept that the privilege still exists but what is the consequence if the file can be read by a garda who, bona fide, believes the file is there and is evidence relating to the commission of an offence? There is no protection at all for the journalist in those circumstances. The garda has actually taken the file out of the car, read it, shut it and put it back in the car and knows precisely what is in it. The garda has invaded the journalist's privilege successfully and, because no warrant was involved, he now knows what he could not have achieved if he had waited for that file to get back to the journalist's house.”
“However, we are now saying that any garda can stop any car in which he believes there is any evidence of the commission of a theft and he can seize anything in that car without any protection for journalistic privilege of any kind whatsoever. This is not pedantic or theoretical. If a member of An Garda Síochána has a choice between stopping a journalist's car and finding material in it which is evidential of the crime of theft or, alternatively, waiting until the journalist gets home and applying to a District Court judge, with an elaborate protection procedure for the journalist's recognised rights of qualified privilege, why would the garda not stop his or her car? Why would they not do that give that this legislation allows them to do that?”
“That is a necessary protection but I go back to the point I made to the Minister on instances where there is no search warrant required. Where there is a stop-and-search power deployed, there is no premises involved at all. The whole warrant procedure and the obligations, which are rightly being provided for in this legislation, simply have no application. What happens then? If a member of An Garda Síochána stops a journalist and seizes his notebook in his car, what happens then? No warrant is involved. No obligation to tell any District Court judge anything is activated by this necessary legislation in respect of search warrants.”
“The Minister said that the offences in the Schedule are all serious offences, and many of them are, but if he looks at paragraph 14 of the Schedule of offences he will see it states that any "offence under section 4 ... of the Criminal Justice (Theft and Fraud Offences) Act 2001" is an offence for the purposes of the Act. When I look at section 4 of the 2001 Act, I discover that any offence of theft is covered by the Schedule. It is not all at the level of murder or anything else. That is the first point I want to make. Second, it is all very well to provide, for journalists' places of business, places of residence or whatever, that a search warrant cannot be applied for without incurring the obligation to inform the District Court, at the time the warrant is applied for, that there is a potential privilege issue.”
“Are we dealing satisfactorily with the deployment of search of individuals and vehicles belonging to individuals in a manner which protects journalistic privilege to the same extent as would be required, if this legislation is passed, in respect of material which is stored electronically and which is not immediately visible on a search to members of An Garda Síochána?”
“A garda can in good faith say they believe that so-and-so - a crime correspondent - has just had a meeting with a baddie, and that they are going to search his car and find out if there are any written documents in his possession or evidence of the commission of the indictable offence by the baddie. I wonder what the law would be in such circumstances. Would it be lawful for a garda to deploy his or her power of search of a vehicle to obtain sight of the journalist's notebook in a way which invades a journalist's protected status? In the alternative scenario dealt with in the Emmett Corcoran case, the material would be available to the Garda after opening electronically a phone, computer or other device in the possession of a journalist in respect of whose premises a warrant had issued. I would like the Minister to deal with this issue.”
“Section 24(1), for instance, provides: This subsection applies where— (a) material has been the subject of a privilege screening analysis or an examination (including a digital forensic examination), (b) it is considered that the material concerned may be privileged material, and (c) the authorised member wishes to have access to the material on the grounds that he or she considers that the material is evidence of or relating to the commission of an offence. That kind of scenario is dealt with under Parts 3 and 4. The particular scenario that I am putting forward, however, is in respect of material which is privileged, like a journalist's notebook. This seems to have no protection at all under the provisions of this Bill.”
“How does the journalist driver resist handing over his material to the Garda? I do believe that a member of An Garda Síochána did in fact deploy search powers under Part 2 in respect of a car where he thought that there was documentary evidence of the commission of an offence, be it photographs, confessional material, inculpatory material, or statements by somebody who was a witnesses to a crime which indicates somebody's particular involvement in it. That situation is worthy of protection under the ECHR jurisprudence, in like manner to material stored on a journalist's phone, which requires further interference to access it other than simply using one's eyes. Section 23 deals with treatment of materials seized under search warrant and section 24 deals with privilege.”
“He is staring at it in written form in front of him and does not have to take any further step, once he opens the file, to know and to invade the journalist's privilege. Are we dealing with such a scenario adequately or at all? I agree with the Minister that the two members of the Supreme Court in the Emmett Corcoran case said that as a matter of urgency the law should be changed to deal with the protection of invasion of journalistic privilege under warrant, and that section 10 needs reform in that respect. I fully accept that is a fair summation of the recommendations made by the members of the court. However, we are also dealing with searches unauthorised by warrant, say, of a car in which an member of An Garda Síochána believes there is evidence of the commission of an offence of some kind.”
“Unlike electronically stored material, there probably will not be a code encrypting the information temporarily from third-party observation. Is the journalist in those circumstances entitled to refuse to hand the garda the file? One the garda reads it, he cannot unknow what he has seen. If a journalist has notes saying that such-and-such an offence was committed by such-and-such a person, of whatever kind, a garda who opens the file and reads it is not in the same position as somebody staring at a phone in which this material may or may not be there and in respect of which a claim of privilege is made. He is looking at actual documents which are the subject of the same kind of journalistic privilege as would be the case for those stored on an electronic device.”
“I would like the Minister to explain to me if the journalist can tell the garda that they may not seize a document in his or her possession because it contains material that is the subject of qualified journalistic privilege. The Minister is correct. The jurisprudence of the Irish courts is that journalistic privilege, however defined, is not as absolute as the kind of privilege I have, as a Member speaking in this House, or a witness has in a court case. What happens then? Part 3 deals with searches of premises under warrant issued by a district judge. Suppose we are dealing with the deployment of a member of An Garda Síochána's powers under Part 2. What happens then to the material that is taken from the journalist's possession, effectively, because it is evidence in the eyes of a garda which relates to the commission of an offence?”
“Let us take it that he has reasonable grounds to believe an offence has been committed. The garda: May require a person to stop a vehicle for the purposes of enabling the member to ascertain whether ... any person in ... the vehicle has committed, is committing or is about to commit [an] offence, or evidence relating to the commission or intended commission of the offence by any person is in or on the vehicle or on any person [occupying] it. Let us suppose we are dealing with material here like a journalist's notebook or documents given to an investigative journalist relating to the commission of an offence, or which could be so related. Let us suppose a garda suspects that such documentation is in a car, stops the car and finds the file on the back seat or passenger seat of the car.”
“Let us also suppose for a moment that we are dealing with the search of a person or of a vehicle where a member of An Garda Síochána stops a car that belongs to a journalist in which the garda believes documents that could be evidence related to a criminal offence are located. Let us suppose a search takes place under Part 2 of the Act, which does not deal with searches of premises under warrant but with searches carried out of persons and vehicles done without warrant under, say, section 10. That section provides for circumstances in which a member of An Garda Síochána is in a public place or any other place to which power of entry by law is implicitly or explicitly provided, and has reasonable grounds to believe that an offence in Schedule 1 has been, or is about to be, committed.”
“I first want to remind myself and put on the record that the Emmett Corcoran case to which the Minister referred was one in which I was personally involved as Mr. Corcoran's counsel. I respect the rules of my profession that I am not supposed to comment on cases in which I appeared. Nothing I say now is supposed to compromise in any sense that perfectly sensible rule. I have a few questions for the Minister. As I understand it, the particulars of the Corcoran case, as outlined to the House by the Minister, appear to be correct. However, there is a slightly wider issue, and I ask the Minister to consider it. Let us suppose the information subject to journalistic privilege is not on a phone. Let us take that case and suppose it is a notebook, a file or something like that.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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, "...”
“[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.”
“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 ...”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”