I want to put on record my disappointment and frustration at the fact that this debate is being guillotined. This has to be taken in the context of the Government and the Government members of the committee having moved to avoid pre-legislative scrutiny of this legislation, which was crucial. We in the committee have all cited international authorities, and will likely do so here tonight again, outlining the manner in which the investor courts have huge potential implications for the environment, for workers' rights and for sovereignty fundamentally. This is about sovereignty, to some extent, and how that is undermined. The fact is that there was no pre-legislative scrutiny and there was no opportunity. There was no scope for the public, public representatives or the media to hear that kind of evidence. I want to pay tribute to my party colleague Lynn Boylan MEP and my colleagues here from across the political spectrum who attended the alternative pre-legislative scrutiny session that was held in the European Commission building. Ultimately, it was a huge failure that the pre-legislative scrutiny did not proceed, and that is compounded by the fact the Government is restricting the debate tonight to a single hour. This is despite the fact we have dozens upon dozens of amendments and that this is very significant legislation that has huge ramifications. We should remind ourselves that this was the subject of constitutional challenge. The Supreme Court recognised there was a clear issue here in ensuring Irish courts had clarity around when they could set aside the decisions of investor courts. That is the fundamental point here. Similar to what my colleague Deputy Smith has outlined, momentum internationally is moving away from these courts. UN-appointed experts are saying that the investor-state dispute settlement mechanism, ISDS, is beyond reform. It is being removed from the North American Free Trade Agreement. Ireland and other countries are looking to resile from the Energy Charter Treaty because it is recognised that it is asymmetrical and it gives huge advantages to courts that states, legislatures and governments simply do not enjoy. I have no problem with - in fact, I think it is right - a decision about a company being upended if it is arbitrary, if it undermines its reasonable and legitimate expectations or if a government is interfering with how the company might conduct itself. However, we have more than ample legislation on our own Statute Book for our courts if there is a decision that is unfair to a company, an individual or a trade union or anything like that. Our courts absolutely have the legislation to ensure they have a remedy, and the Government should be satisfied with that as well. This Bill is not necessary to ensure that trade between Ireland and Canada can continue to grow. It has grown and that is important. It does not mean, by any stretch of the imagination, that we do not respect the fact that Canada is clearly a democracy. It is clearly a country we want to have good relationships with but this legislation goes much further than simply Canada. This is opening the door to this system potentially being used for trade deals with any number of countries around the world, and trade deals that are not even anticipated. It clearly opens the door for that and undermines our own domestic court system. That is very serious and dangerous. It could potentially lead to the State being significantly liable. We have amendments later on asking the Government to publish annually any costs that might be incurred by the State through this court system into the future. We are rushing the legislation and that is profoundly wrong.

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It is effectively the same.

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There is a difference between the ISDS and the investor courts system but it is in form rather than substance. Ultimately, the Irish courts or the Irish government will have the same difficulty, potentially. It is true there are permanent judges and more transparency in the sense of openness and so on but in terms of the power they have when they make a decision against an Irish government because of some policy decision it takes we will still be in the same position. Again, I ask for the Minister of State's opinion on why the world is moving away from this. Why are the Canadians and the Americans moving away from NAFTA? Why is this Government proposing to move away from it in the form of the Energy Charter Treaty? A number of difficulties have been raised with the current system. It does not require claimants to exhaust domestic remedies and there is still the issue of the sovereignty of our courts. There are multiple examples. Deputy Smith gave some. The Antin case is a significant example as well. I would be very surprised if this managed to sustain itself through the courts because it does not make it sufficiently clear. What the Costello judgment called on the Government to do is to make it very clear in what circumstances Irish courts could set aside decisions of an investor court - ISDS, ICS or whatever you want to call it. It must be clear in what circumstances it can set those aside but that is not at all clear and consequently I am concerned about the implications of that for the sovereignty of our courts and their ability to make decisions. We have more than adequate remedies for companies, individuals, trade unions and representative organisations that feel a decision that has been arrived at that is unfair.

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How could there be?

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It has not been established yet.

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The Minister of State he had nothing to do with the scheduling of the football debate. I am sure that is true albeit it is an important debate. It is a pastime enjoyed by hundreds of thousands of people. Perhaps he can tell us if he had anything to do with the decision to propose a guillotine or did he encourage it?

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I can take a nod or something like that either. I suspect the Minister of State and certainly the Government very much supported the clear party line vote of Government TDs to not proceed with pre-legislative scrutiny within the committee. He might not have had much to do with the football decision but I think he has something to do with the decision to rush this and not allow pre-legislative scrutiny, which is probably a bigger issue than the guillotine but that is profoundly wrong as well. We are getting to three or four amendments out of dozens; it is utterly unacceptable. The Minister of State talked about the fact that there were no decisions concerning CETA and Ireland. There could not be because the court system is not in place in any event but there are cases against Ireland currently under the Energy Charter Treaty with potential amounts, if found against the State, of hundreds of millions of euro. They are significant cases. I do not understand the logic when the world is turning against this, the expert adviser to the UN is talking about how the ISDS cannot be reformed, in other words, no reform is adequate for the investor court system with the North American Free Trade Agreement moving away from it and the Irish Government moving away from it. What makes the Irish Government think somehow this would be different? The point made by Deputy Gibney is crucial. There is no protection under this legislation for an award made against Ireland in the investor courts when an attempt is made to enforce it in another court. I would also make the point that in our estimation the Bill does not do even the minimum required by the Supreme Court and, potentially, we have concerns, which we address in a later amendment that we probably will not reach, that CETA tribunals could undermine decisions taken by the people in referendums. Mr. Justice Charleton, in his description of it, said the proposed changes would breach EU law and so are likely to be undone by the EU courts, leaving us with no protection. To come back to the fundamental point because we do not have a lot of time left, ultimately one of the most interesting parts of the Constitution comprises the guiding principles on social policy. They are non-justiciable but they give a very high-minded and ambitious sense of the importance of the ability of the State to intervene in terms of the social good. They talk about the manner in which private property ultimately must be balanced with the need to recognise the public good. The ambition in this recognises the fact that the State has to be able to intervene, make policy and make decisions to ensure the good of the Irish people. We are outsourcing the ability to make decisions or at least undermining our ability or the ability of our courts to have the final say on this kind of thing. Where a public policy decision is arrived at by an Irish Government and is challenged by a company, and a decision is made against it at an investor court, in our view there is nothing in the legislation that makes it clear in what circumstances this can be set aside. It talks very clearly about the enforcement, but it is the non-enforcement that is the issue we are most concerned about and in what circumstances it can be set aside. The legislation is far too vague in this regard and, as I have said, I would be very surprised if it does not end up before the courts again.

Sentiment score: 0.28