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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“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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".”
“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.”
“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.”
“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.”
“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.”
“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 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.”
“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.”
“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?”
“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 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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 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.”
“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.”
“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?”
“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.”
“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.”
“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 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.”
“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 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.”
“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.”
“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.”
“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.”
“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.”
“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?”
“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.”
“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?”
“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?”
“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.”
“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.”
“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.”
“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.”
“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?”
“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.”