Thomas Byrne
Meath East · Fianna Fáil · Ireland
“We are very proud of the work they do in what are often very dangerous circumstances. Let us be 100% clear: our troops will only ever do peacekeeping, peace enforcement or conflict prevention in accordance with the principles of the UN Charter and, of course, as with every action of this Government, in accordance with the Constitution.”
“To be clear on what our troops will be doing, they will be doing peacekeeping, peace enforcement and conflict prevention. That is what the law says; not what the Deputy imagines it to be. We are bound by our Constitution and international law. The legislation changes nothing in that regard.”
“We are bound by international law. We are bound by international law since our Constitution came into force and we continue to be bound by international law and always will be, no matter what happens to this legislation. International law governs what we do as a Government.”
“I propose to take Questions Nos. 125, 140, 157 and 185 together. I am taking this question on behalf of the Minister. A commitment to reform what is known as the triple lock was set out in the programme for Government.”
“-----in accordance with UN principles and, of course, in accordance with our own Constitution, which commits us to peace and friendly relations among nations. The triple lock is a statutory mechanism.”
“Switzerland, the classical neutral country that is not even a member of the European Union and will never join the European Union, it is so neutral and independent, accepts UN, EU and OSCE mandates. I understand the situation is similar in Austria, which is another neutral country. By the way, it is also similar in Germany.”
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“The premise of the amendment accepts what we are trying to do. The Senator just wants to improve it. The procedure in relation to the new section 25A would follow the 2010 Act and the relevant rules of court. For these reasons, we are unable to agree to amendment No. 18.”
“As I stated previously, with the help of the Attorney General, the Government has carefully considered the Supreme Court’s findings in the Costello case, and the legislation sets out the response, including specification of the grounds on which an award is not enforceable. The Senator’s amendment seeks to amend and expand what are carefully considered positions. I note that the Senator's amendment goes into the detail of the legislation, and the premise of the amendment actually accepts what we are trying to do.”
“It would be on the news or on "Six One", if this were ever to happen. It is not going to happen. The idea that there would be any kind of enormous liability is again in the category of the scare stories we have heard. There is nothing secret about this and there is nothing secret about the Irish court system. The system in CETA has been specifically designed to be transparent and to allow for full public scrutiny.”
“The amendment appears to be based on the premise that somehow these investor courts, and, indeed High Court decisions, would lack transparency. This is not the case. CETA and similar agreements ensure transparency of proceedings for full public scrutiny. All substantive materials, including the request, the written submissions by the party, the decisions of the first instance tribunal and-or appeal tribunal will be publicly available. Hearings will be open to the public. Interested parties, that is, NGOs and trade unions, would be able to make submissions, aided by publicly available materials. Any domestic proceedings are held in open court. The amendment seems to be partly premised on the fact that Irish court decisions could be made behind closed doors. That would not be the case.”
“What is being continually thrown in every contribution is that this is completely incorrect. What Senators are basing it on is on a different system. They are basing it on something that is not only not in the text of CETA and the various documents and court decisions surrounding it, but the very opposite of what they are saying is written in black and white in CETA, the interpretative instrument and court decisions, including our own Supreme Court decisions.”
“All I can say is that we are dealing with two different animals and the second one has been created and devised because of the experience of the previous one. I will quote from the regulatory impact analysis: ... the State’s exposure to economic loss cannot be regarded as materially impacted arising from the introduction of the ICS mechanism provided for within CETA, and especially given the already existing recourse inward investors from any jurisdiction have [in] the domestic courts. Furthermore, it must be noted that CETA preserves the right of each EU Member State to regulate in [the] public interest.”
“On the Energy Charter Treaty, again, what is happening here in this House is a conflation of two different systems. The system we are debating under CETA has been specifically designed with the experience under the Energy Charter Treaty and other agreements fully in mind. The Government has a regulatory impact assessment and it is publicly available to anybody. There are no costs to the State arising from CETA. In a case where it is determined that there has been a material breach, the ICS could require a state to pay monetary damages, but investors cannot be given compensation just because they have lost profits, sustained economic loss or incurred costs.”
“However, if there is an added element of abusive treatment, manifest arbitrariness, targeted discrimination or some equivalent behaviour on the part of a party, then it is that behaviour that could bring a claim within the scope of CETA and potentially result in liability for the party concerned. The Government and the text of the agreement itself do not agree that this in anyway hollows out the protections of the right to regulate; indeed, many of those activities described would be not permitted under the Constitution in any event.”
“However, I can say with almost complete certainty that this has not arisen in the case of CETA. I also want to contradict one point that was made earlier to the effect that there was some process to fast-track CETA. There is no process to fast-track the ratification of the agreement. The Constitution provides the ratification process for that. All this legislation is doing is enabling us to do that process in a constitutional way but that process is set out in the Constitution. I want to be clear that the right to regulate provisions means that the mere fact that the interests of an investor are adversely affected by measures taken to protect the public interest will not amount to a breach of the agreement.”
“The terms under which people invest in this country are the laws of the land, trade agreements that are relevant to their particular operations or maybe their place of operation. They are the terms. The trade agreement in this case and the other cases that would come in under this legislation specifically point to the fact that the State can continue to regulate. I can say with 100% confidence that no Government decision has ever considered whether there is a regulatory chill on the Government because of the Canada trade agreement. The Government is subject to regulatory chill at times. The Constitution prevents the Government doing certain things that political parties may want to do from time to time. That is a prevention of what the Government is doing.”
“It is simply not the case that the right to regulate is accompanied by some cost. That is a moving on of the argument. It is a moving of the ground of the argument because the argument does not stand up. We could not be clearer that this does not arise. I have said this at length. The courts have said it at length. Some Supreme Court judges have stated this as well. I cannot put it any further than this - what the Senators are saying is simply not correct. This is about investment. We want Irish companies to do in Canada what Canadian companies are doing here, which is investing, providing services, selling goods and employing people. That is what we want to do because that is how we raise our funding for the State - by generating taxes - and it is how people can get jobs, employment and have the good life.”
“The Government has not said that. The CETA agreement says the opposite, as does the CETA joint interpretative instrument. The European Court of Justice said the opposite. All the legal advice said the opposite. On the companies the Senator mentioned, it is very unfortunate that we have started to bring individual companies into the debate as if they are some threat to the State. I do not know those companies or who they are, but it is not fair to mention them in the Seanad as some kind of threat to the State. The legal advice those companies will have is the same as the legal advice the Government is receiving and I am outlining here. They would not have a right to sue the State in the circumstances that Senator Higgins and many others described. This is well established. It could not be written any clearer.”
“That is changing the foundations of the argument. The Senator is not saying what some Senators said, namely, that we would not be able to regulate these things. What she is saying is that if we do, we will get fined. I have outlined at length-----”
“The Senator has accused me of being in a fantasy here. The reverse could be argued to be true as well. She talked about stratospheric awards. That is the vista in front of us if we are to pass this legislation. She has moved on the debate now because she has lost the question on the right to regulate. She is saying that the State can regulate-----”
“That is well covered. This legislation is about the enforcement of any awards at international level and that is what the constitutional problem was in the Costello case. The judge in the Costello case has said that if the Government wishes to ratify CETA, it will have to change the Arbitration Act and here is a way, the judge suggested, the Government could do it. We have considered that carefully. We have read the judgments as a whole and we have taken the Attorney General's advice. In that context, we drafted the legislation that we have. I, therefore, cannot accept amendments in relation to it.”
“The CETA agreement does not affect the State's right to regulate and the idea that corporations could seek to ameliorate their position by taking High Court cases here is not the procedure. A corporation could potentially take a case to an investor court but the law is clear that cannot impact on the State's right to regulate, which essentially, for a large part of it, is its legislation.”
“I cannot explain it any further. I will not accuse anyone of a misunderstanding but the fact is that the right to regulate is contained within the CETA agreement. It is the investor courts that are bound by that. This legislation relates to enforcement of awards and we are saying that we have drafted this very carefully to comply with the suggestion given to us in the Supreme Court case. That has been done carefully over a period of time. It is not possible then for me to accept other amendments in relation to that, which would go against the process that we have already had to implement this legislation that will allow us to ratify CETA in a constitutional way. The right to regulate has already been dealt with extensively in the CETA agreement.”
“It is therefore a matter for the courts to determine what constitutes a threat. We believe that the proposed amendment is unnecessary and overly prescriptive and therefore, we are not able to agree to accept it.”
“As I have already said on a number of occasions, the Government, with the assistance of the Attorney General, has carefully considered the Supreme Court's findings in the Costello case. We take everything in the round on that. The amendment seeks to provide a partial definition of the meaning of the term "constitutional order of the State" but the Bill intentionally does not include a definition. This is because the term has previously been referenced by Irish courts in their case law. It would be a matter for determination by the High Court or Supreme Court in any cases regarding the enforcement of awards in the State under the Act. It is for the courts to act as the guardians of the Constitution. It is not for the Executive or indeed for the Parliament to be prescriptive about what constitutes the constitutional order of the State.”
“Each one of them would bring important benefits to Ireland and it is important we continue to make the case for trade and being out there in the world. Any time there is an agreement between two sovereign states, there will be a bit of give and take on both sides, including in this case in relation to the investor protection clause. That is simply the reality. The idea is that there will be an overall benefit, on an overall, practical and non-ideological basis, that it will benefit the people of the country, protect their jobs and protect and enhance the wealth of the country. People have mentioned the close connection between Canada and the EU. The CETA agreement has led to that. I do not understand the point about using security and defence of the EU as a point of leverage with Canada. Perhaps that can be explained.”
“I cannot put it any further. The reality is, although the Senators say this is about the investor courts - and in fairness their argument is about that; that is a fact - they keep giving precedents that are not relevant and they also ignore the fact that if we make a decision not to ratify this agreement, the agreement will collapse. That is the language of the Government's regulatory impact analysis. The agreement will collapse and we will lose its benefits. I do not know whether the Social Democrats, the Labour Party or anyone has told the Commission they think this should be renegotiated. The reality is that the Commission is negotiating many other trade agreements at the moment, all of which would bring serious benefits to Ireland.”
“That model, which is criticised by many, has been spectacularly successful in generating jobs and investment in the country. Everyone who comes in here to nitpick around this is completely ignoring the bigger picture. Everyone who comes in here and quotes old cases that are not relevant is doing a disservice to all the people in their constituencies who are employed by companies that completely depend on trade. The minute we forget about the importance of trade agreements, the minute we challenge-----”
“There are also huge numbers of Irish people working in Irish companies that export to Canada. That is the simple reality of this. It is why we are here. This is about protecting jobs. I have noticed - and this is a general point about politics in Ireland - that we never hear from the Opposition about how to generate more than €100 billion per year for public spending. We never hear a debate about how to do it better or how to generate more income. From my point of view, as Minister of State with responsibility for European affairs, and that of the Government, it is all about opening the country to further trade, developing Irish companies that can trade abroad and create jobs and investment here and continuing to attract foreign direct investment, FDI.”
“Of course, the Opposition gives that no credence because it does not suit the anti-trade agreement agenda that some people in the Opposition have, although I am not accusing everyone of that. On Senator Davitt's point, it is important to talk about the benefits of this agreement. CETA has contributed to a significant increase in bilateral trade in goods and services with Canada since its provisional application in 2017. It has directly created jobs in each and every constituency. Every Senator will know people working in industries and businesses that benefit from CETA. Trade has increased from €3.2 billion in 2016 to more than €12 billion in 2024. The reason I say that Senators will know such people is that Canadian companies employ 22,000 people in Ireland.”
“It includes the full range because, of course, things will change over time. I cannot go further than that on this particular point. It is self-evident if one reads the text of the joint interpretative agreement and the other texts connected to this agreement. There were criticisms of the old system. I keep saying that the criticisms of the old system have been recognised ye, each time I come into the Seanad, I am given a long list of cases that were decided under the old system. Speaking about the old system, one of the negotiators of CETA said that the new system is a very different system that took concerns about the old system, such as those the Senators have raised, to heart. The negotiators heard about those decisions and concerns and did their best to alleviate them by coming up with a reformed investor court system.”
“Again, I have to go back to the joint interpretative instrument on the environment, which states: CETA commits the European Union and its Member States and Canada to provide for and encourage high levels of environmental protection, as well as to strive to continue to improve such laws and policies and their underlying levels of protection. CETA explicitly recognises the right of Canada and of the European Union and its Member States, to set their own environmental priorities, to establish their own levels of environmental protection and to adopt or modify their relevant laws and policies accordingly, mindful of their international obligations, including those set by multilateral environmental agreements. The instrument does not just reference one agreement, as the Senator has done.”
“A great deal is sold abroad. This is a general point about trade agreements. We must continue to support them. The interpretations that have been offered here in the Seanad are simply not the reality.”
“Anyone here who is active in a constituency with a whiskey distillery or a manufacturer of Irish cream or another specific Irish product will know that these companies are benefiting very directly from the trade agreement with Canada. The same goes for agricultural products as well. Members cannot come into the Seanad to rail against trade agreements and then go back to the farmers in the constituency in which they live to tell them that they voted against trade agreements that have allowed them to sell their produce abroad. For example, 90% of beef products-----”
“The agreement itself says that states are not going to reduce the level of environmental protection to facilitate trade and investment. I cannot continue to make that point. There has to be some realism to this debate. We keep hearing references to cases and I keep saying that this is a new system that is designed to address some of those concerns. Again, it comes back to the fundamental point that the certainty the trade agreement with Canada has offered, the reduction in tariffs and the openness to trade have generated economic benefits for this country and for our citizens. We cannot take those economic benefits for granted.”
“It is just not credible to come into the Seanad and say that, while we know there is an agreement between Canada, the EU and its member states not to reduce the level of environmental protection, these big bad old corporations are going to be able to use little loopholes here and there to force all of those who came to this agreement to do what they do not want to do. It is suggested that sovereign states will be forced to do what they do not want to do and what they all agreed not to do as a fundamental part of this agreement. The Senators are saying that, despite the parties having done all of this, companies will be able to work their way around it. There is no logic to the argument that is being made.”
“With regard to amendment No. 13, CETA includes commitments to co-operate on trade-related environmental issues of common concern, such as climate change. In fact, in this agreement between the European Union, its member states and Canada, everybody has agreed not to lower levels of environmental protection to encourage trade or investment. That has been agreed between the parties. In any event, there is absolutely no question of the State not meeting its obligations under the agreements referenced in the amendment due to an investor courts system. The amendment is completely unnecessary.”
“To account for that, and based on the legal advice we have from the Attorney General, we very carefully drafted the legislation in order that we can ratify CETA in a constitutional manner, which is a policy objective of the Government.”
“Essentially, the Senator is trying to make the case that a CETA tribunal is going to make a decision that fundamentally affects how public policy is made in this country and I am telling her that is not possible. What we are doing is simply amending the Arbitration Act to allow us to ratify CETA. Ultimately, and quite honestly, we do not share the Senator's view. We have considered this very carefully from a legal position. We do not share her view or her concerns about how the Irish courts would interpret the new provisions set out in this legislation. I have explained at length where the thinking came from. It is very simple because it is in black and white. There is no secret process to how we came up with this law. The thinking is black and white in the Supreme Court decision of Mr. Justice Hogan.”
“We cannot start to be prescriptive about what the High Court will or will not find. We are giving it guidance, through legislation, based on what the Supreme Court has said. The term "constitutional order" has been referenced by Irish courts in a number of cases. It would be a matter for determination in the ordinary manner by the High Court, and of course the Supreme Court if necessary, in any cases regarding the enforcement of awards in the State under the new Article 25A of the 2010 Act. It is not for the Executive or Legislature to be prescriptive about what constitutes the constitutional order of the State, nor is it for me to be prescriptive here as to what a High Court judge might find in the future.”
“I cannot put the matter any further. The amendments are trying to tie the hands of the High Court. We are trying to give the High Court discretion. The items the Senator mentioned are not within the constitutional order of the State or the legal order of the EU. I do not believe it would be helpful to start expanding on what Mr. Justice Hogan said in his decision in the Costello case. We have examined that decision and drafted the legislation in accordance with it in order that it would be appropriate for the High Court, as we see it, to make these determinations. By going narrower than the broad scope we have given, the Senator is tying the hands of the High Court. That is not something we feel is appropriate.”
“The wording in the legislation these amendments seek to challenge is derived from the suggestion of Mr. Justice Hogan to the Oireachtas and the Government that if we wish to ratify the CETA agreement then without being prescriptive or putting any obligation on the Oireachtas the Government, this is a way that it could be done in accordance with the Constitution. We have taken the advice of the Attorney General. Our lawyers have studied the judgment carefully in the round and drafted this legislation. I have described all it seeks to do and I cannot put the position any further.”
“CETA and similar agreements include administrative and institutional provisions that provide for the establishment of committees, such as the CETA joint committee, which are responsible for questions concerning trade and investment between the parties and the implementation and application of the agreements. A party may refer to the joint committee any issue relating to the implementation and interpretation of the agreement or any other issue concerning trade and investment between the parties. Where serious concerns arise with regard to matters of interpretation that may affect investment, a select committee may recommend to the CETA joint committee the adoption of interpretations of the agreement. An interpretation adopted by the joint committee is binding on the CETA tribunal.”
“While the fair and equitable treatment provision under the old approach is generally opaque and based on customary international law with no description of the content, these newer agreements clearly list the aspects of fair and equitable treatment. These include the denial of justice, manifest arbitrariness or targeted discrimination on manifestly wrong grounds, such as gender, race or religious belief. ICS agreements provide clear guidance to dispute resolution tribunals on how these standards should be applied. The detail and clarity is one of the improvements of the new investor court system, from which nobody has quoted any case because they cannot do so, addressing concerns raised in relation to the long-standing ISDS system. Reference has also been made at times to the joint committees in these agreements.”
“There are a number of points to be made. Again, I cannot go any further on the right to regulate. I have quoted it to almost everybody and there have been statements made by Supreme Court judges on it. Again, there are cases being quoted by Senators that do not relate to the type of system under CETA. There was a German case to which Senator Higgins referred on the issue of tax collection. The CETA tribunal will not be allowed to make such an order. It does not even arise. It does not even relate to the legislation. The remedies are limited in any event and it is important to say this. Comments have been made about the provisions on fair and equitable treatment included in CETA. It is important to stress in this regard that the standard drafted under the new system is very different from the old approach.”
“Senator Higgins put forward the idea that the public interest is not in the mix but it is in the mix because the whole basis of the right to regulate under the agreement is about the public interest in the State and the State regulating, passing laws and having policies as essentially its electorate deems fit in the general elections, which ultimately appoint governments and parliaments.”
“We keep saying that the right to regulate is not affected. There have been considerable efforts to ensure that is the case. It is not a matter of the enforcement in Irish law. It is a matter of the agreement, which is subject to a separate legal process to ratify. This legislation does not ratify it. A number of cases were put forward in the Seanad as if they were, perhaps, precedents for us to accept. They are not precedents because each and every one of the cases quoted in the Seanad was under the old system, which has been reformed and which we cannot go back to. This is about as much as I can say on the amendments. It has been set out very clearly that this is about the enforcement of potential awards. The right to regulate is separately provided for in the CETA agreement. We are not concerned about this in the slightest.”
“As a matter of legal policy, it is preferable to leave it to the courts to determine in any given case that the constitutional order of the State would be compromised by enforcing a particular award. The Senators' amendment is prescriptive on a matter that is properly one for determination by the courts. In the amendment from Senators O'Reilly and Keogan, under what would be a new subsection (3C), they are asking us to put in a provision that would "materially impair the capacity of the State to legislate or regulate in the public interest" in the enforcement. However, they are completely ignoring that the right to regulate is in CETA itself, the interpretative instrument and the opinion of the CJEU. The right to regulate is protected. It is a matter with which the investor courts must comply.”
“Nobody goes on to talk about what Mr. Justice Hogan suggested in his judgment. He was not giving an instruction to the Oireachtas or the Government. He made suggestions. The only person who referred to it previously was Senator McDowell. He was dismissive of Mr. Justice Hogan in that respect. The amendment would replace the language that has been developed having regard to the Costello case and is intended to address the concerns of the Supreme Court. Neither amendment can be accepted. The Government, with the assistance of the Attorney General, has carefully considered what the Supreme Court said. It is confident that the Bill addresses the concerns of the court in this case. We do not believe that adding the language set out in the amendment would achieve greater clarity.”
“It has been a fundamental position of Sinn Féin that it opposes the very thing it is looking for here today. On that basis, it is very hard to take the party seriously or to take seriously some of the arguments coming forward. I have said repeatedly to Sinn Féin, Senators Higgins and O'Reilly and Aontú that the right to regulate is clearly defined. This Bill is not about the ratification of CETA. Everybody is quoting from bits of judgments and bits of laws. The Government cannot do that. It has to look at every line of every judgment and agreement. We cannot pick and choose. Senators are quoting the fact that the ratification of CETA was found to be an unconstitutional matter. That is accepted by everybody. The Government, more than anybody, has to take cognisance of that because it wants to ratify it.”
“I was pretty robust with everybody who spoke in the previous debate. I robustly defended my own position and tried to get the correct information out. I will be robust with Sinn Féin now because, quite frankly, it is hard to take seriously its amendment to insert subsection (3C), which states, "materially compromise the State’s obligation ... to give effect to European Union law (including the Charter of Fundamental Rights and Freedoms) and to preserve its coherence and integrity". Every time there has been a referendum in this State relating to European law for the betterment of the country and for greater cohesion, Sinn Féin has voted "No". It has done so in every referendum to put that into effect. The Senator is now telling me that Sinn Féin is coming to the Seanad worried sick about this issue because somehow it is in jeopardy.”
“I know what Senator McDowell said about obiter dictum but this was stated by a number of justices and in a full decision of the Court of Justice of the European Union. This matter could not be clearer. This is an attempt by the Opposition some of whom, and I accept everyone's good faith on this, do not support trade agreements as a general principle. This Government supports trade agreements as a general principle and all trade agreements mean give and take on both sides. We know in Ireland's case, the take is much more significant in every trade agreement we have ever been a party to or entered into.”
“The court has stated that the parties: have taken care to ensure that those tribunals have no jurisdiction to call into question the choices democratically made within a Party relating to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals, the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights. The Court of Justice of the European Union could not be clearer about this and what CETA is designed to achieve. The Opposition want to keep contradicting the text of CETA and the text of the joint interpretative instrument. The Supreme Court has made comments on this as well.”
“I cannot bring the matter any further in relation to the investor court system, except to state what I have stated on numerous occasions, namely, that this is a radically new procedure, with many checkpoints and improvements included to ensure that it is transparent and fair and - this is not a small point - that the State has the right to regulate. That could not be clearer from the text of the agreement and from the text of the joint interpretive statement. We heard a lot in previous debates about the European Court of Justice.”
“What is happening here is that the Government, and the previous Government, very clearly wanted to have the Dáil ratify the Comprehensive Economic and Trade Agreement and other trade agreements. A challenge was brought through the courts. The court said it was not possible under the current provisions, but it also said that if the Government wishes to do it, then, under its prerogative and the Dáil's prerogative, this is a way it could be done that would be constitutional. That is all we are doing here. There needs to be a separate debate in the Dáil then on the formal ratification of CETA and any other trade agreements it would apply to.”
“I have rejected that point on a number of occasions. I have to reject the idea that I personally will be deciding on these things. If a government is to decide to sign up to an international agreement of this nature, it will have to make a decision. The Dáil, under a very specific constitutional provision, also has to make the decision. That is an opportunity for the Dáil to decide yea or nay. The impression given by this debate on the legislation is that, somehow, it gives a carte blanche to the Government. It does not. It simply-----”