2026-04-15

We move now immediately to the Arbitration (Amendment) Bill 2025: Report and Final Stages. Members need to indicate should they wish to speak. Amendment No. 1 in the name of Deputy Smith is out of order. Amendment No. 2 is ruled out of order.

Amendment No. 3 arises out of committee proceedings.

I move amendment No. 3: In page 3, to delete lines 11 to 13. I will be pressing this amendment.

This amendment will delete section 2. Section 2 inserts a number of references to the new section 25A which would be inserted into the Arbitration Act 2010 under section 4 of this Bill. A separate amendment to delete that subsection itself has, unfortunately, been ruled out of order. The new section 25A provides that awards made pursuant to Canada-EU Comprehensive Economic and Trade Agreement, CETA, and the Chile-EU Advanced Framework Agreement would be enforceable in Ireland in the same manner as a judgment or order of the High Court. We in the Labour Party have been clear throughout the passage of this Bill through the Oireachtas, and indeed before, that we were opposed to trade agreements that include investor court systems, which have a massive potential to undermine social and environmental regulations. We recognise the importance of an outward-looking Ireland trading with the world, particularly in the midst of global uncertainty as we have seen in recent years in the face of tariffs, war and other major disruptions. Trade agreements with the wider world are, of course, important but we need to recognise that CETA has been successfully implemented on a provisional basis for years now without the investor court. It is worth noting at the outset, in the short time we have for the debate this evening, that Canada has agreed to remove the investor court system from the renegotiated North American Free Trade Agreement with the United States and Mexico. Investor courts are an outdated system and are not needed between modern trading blocs and modern states. It is a one-way system. States cannot sue companies in investor state arbitrations. The first question that needs to be answered is why EU and Canadian investors would not trust their own local court system. This was well aired on Committee Stage and has had huge interest from academics, politicians and civil society questioning, without a proper answer, why the investor court system remains so implacably defended by this Government. We have discussed this at length during the Bill's passage but we know from experience that investor court state claims have the effect of inhibiting the ability of domestic governments to pass legislation addressing public concerns such as health, environmental protection, labour rights and human rights. Examples like this were seen in Canada in 2013 when Lone Pine Resources Inc. filed a $250 million Canadian dollar damages claim against Canada under the North American Free Trade Agreement, NAFTA, over Quebec's moratorium on fracking. These claims have a regulatory chilling effect on governments, leaving them hamstrung. That is what a Canadian mining company has done under the previous NAFTA agreement when an investor court system has been in place. Now we are going to walk headlong into the same system, putting our State's economic, social and environmental security at risk. This is at the heart of our opposition to this and at the heart of our opposition to the amendment.

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.

Sadly, I too would like to start by expressing my absolute disgust that this debate will be guillotined after just an hour. It railroads any meaningful analysis of the Bill. I am under no impression that most of our amendments are going to go undebated tonight and undiscussed. That a mere hour has been dedicated to discuss what will ultimately be a transformative agreement for this economy and for our future trading partnerships is deeply disturbing. From the beginning, this Government has demonstrated carelessness in the oversight of the ratification of CETA. We have seen that through the constitutional challenges. The lack of pre-legislative scrutiny for this Bill is scandalous. The Dáil select committee and the joint committee have heard no independent expert advice as part of the legislative process for this Bill. The Government continues to rush ahead despite expressions of concern from two Supreme Court justices, one sitting and one former, Mr. Justice Charleton and Mr. Justice Hogan, respectively. Indeed, Mr. Justice Charleton has said that CETA has "...unlimited powers of interpretation of a vague set of principles within the treaty." This is a pretty concerning statement, but this Government does not seem to care and is instead ploughing ahead with a Bill that could have extreme consequences for us all. We should not be surprised, however, because it is an action befitting of this Government. It is trade at any cost, which leads to deregulation and rash decisions made in the pursuit of wealth, with no thought given to the long-term economic health of this country. If these concerns alone do not demonstrate that this agreement requires far more intense Government scrutiny than a discussion tucked away for an hour before home time, I do not know what does. This amendment, and many of the amendments we are looking at this evening, seek to strengthen the safeguards and the obligations of due diligence on any Minister in the handling of treaty negotiations and trade negotiations. All we are trying to do is bulwark against what I see as handing over our sovereignty willingly to arbitrary investor courts that will haul us over the coals. It will have a chilling effect on this House, on the parliamentary procedures of this country and on our ability to build any sort of just transition or build into our policymaking any social or ethical concerns. I was at a round table today discussing AI and the regulatory gap because I see this same deregulation under the banner of simplification and harmonisation across all Government policy right now. I heard a European expert describe the EPP, the Minister of State's European grouping, as uncritically pro-business

That is not my group.

For me, that is exactly what is happening here, so I support this amendment and look forward to debating further.

I will say that I am not an EPP member.

That is a point of clarity.

As a point of clarity I am in Renew Europe, and I am proud to be part of Renew Europe. At the outset I return briefly to first principles and set out the reasons behind this legislation. The Arbitration (Amendment) Bill 2025 seeks to put Ireland, which is a country that greatly benefits from international trade, in a position where it can decide to ratify the range of EU trade and investment agreements we massively benefit from as EU member states. There is a bit of a misconception in what Deputy Ó Laoghaire says because he says there are so many ramifications from this Bill. There are no ramifications from this Bill if we do not ratify the treaties to which it refers. It is important to remember there is a separate ratification process under the Constitution if we are to ratify CETA. This Bill guides us from the Costello case as to how we do so in a constitutional way. However, this Bill does not ratify CETA. That is a separate constitutional procedure in this House. There has been no shortage of debate on the issue and this is a debate, which is not rushed. The EU-Canada Comprehensive Economic and Trade Agreement, CETA, has been scrutinised rigorously and at length in a number of forums, including in the Oireachtas, the courts and at national, international and European level over the past ten years. I think this is my third time to debate the Bill in the Oireachtas and many amendments have been considered and discussed to date. They are all important amendments, but many are on the same issues and are variations on the same theme. Free trade benefits the Irish economy. At a time of global turbulence, it is an important signal for Ireland to seek to ratify these agreements with Canada and Chile, which provide Irish companies and exporters with new opportunities to expand and grow trade overseas. Our trade and investment relationship with the friendly, democratic state of Canada is deep and growing, with over €12 billion in trade in 2024 and direct employment in each other's economies of approximately 20,000 people. Our trade with Chile is more modest but it is growing, and I am convinced that a fully ratified agreement can support more trade and more jobs, most importantly of all. I am conscious of claims that we should not be concerned with ratifying CETA, as has been said at committee, because the parts which provide for more open trading are already provisionally applied. Provisional application is an important mechanism that allows companies, consumers and the State to benefit from the trade agreement at an early stage, but it is not the same as ratification. On the subject of investment dispute resolution, there is again a misconception. We keep hearing in the Dáil and the public media about the ISDS system, the investor-state dispute settlement system. This is not the same as that. This is the investor court system, which has been developed in response to concerns that many people raised about the previous system, which Members keep referring to.

It is effectively the same.

It is not the same. It is a different system and people keep quoting the previous system, which the Canada trade agreement has actually worked to improve and to make it more transparent. That is important. Irish companies need access to effective international remedies abroad and companies investing in Ireland want similar reassurance. The Irish Government is working to make the economy more competitive and resilient to economic shocks, and the Government’s approach in bringing forward the legislation has been questioned as to why we are doing this. The reality is that this legislation stems from the decision of the Supreme Court in the Costello case. It identified concerns, but the judgment of the Supreme Court identified the legislative path for us. That is what we are doing in bringing forward this Bill. We are following the judgment of the Supreme Court and that is all this legislation is doing. We acknowledge the Costello case. It happened, but the court gave a path for us to be able to ratify CETA in a constructional way. Again, we keep hearing, and Deputy Gibney spoke, about how we will not be able to do the just transition, we cannot regulate anymore, and we cannot do anything now because these companies decide. None of that is true. It absolutely does not prevent us from regulating on public policy, protecting public health, workers, the environment and the rental market. This type of talk about the Canada trade agreement is scaremongering, it really is. It is not believable scaremongering either. It is scarcely believable. These agreements include articles, which affirm that the parties preserve their right to regulate for public policy purposes. This is stitched into the CETA agreement, which again we will have another debate about after we pass this legislation because we will have to have a Dáil resolution about it. The trade agreement also provides that the investment protection provisions shall not be interpreted as a commitment from governments that their legal frameworks will remain unchanged. The Dáil and the European Union can change legislation. The agreements further clarify that the fact a measure may negatively affect an investment or an investor's expectations of profits is not sufficient to say the measure is inconsistent with the agreement. I draw the Deputies' attention to the commitment to preserving the right to regulate as reflected not only in the substantive articles addressing this issue but also in the preambles to the agreement, the general treaty structure and, in the case of CETA - again to address concerns that have been raised - the joint interpretive instrument. The negotiators, the member states of the European Union and Canada, have gone far to address any concerns on this. The joint interpretive instrument says that CETA preserves the ability of the European Union and its member states and Canada to adopt and apply their own laws and regulations that regulate economic activity in the public interest to achieve legitimate public policy objectives such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social and consumer protection, privacy and data protection and the promotion and protection of cultural diversity. Yet, Deputies from across the floor of the House come in to tell me that black is white and that it is not the case even though that is what the member states have agreed in the joint interpretive instrument. I think that is wrong and that is misinformation and fearmongering that does not stand up to any scrutiny. CETA also clearly defines indirect expropriation. It specifies that non-discriminatory measures to attain legitimate policy goals, for example, regarding labour, health and the environment, are not deemed to be indirect expropriation unless they are manifestly disproportionate. Concerns have been raised that despite all of this, the affirmation of the right to regulate would not be effective in practice. Just to reassure everyone, these agreements include provisions which provide guidance to investment dispute resolution tribunals, including in relation to the application of the right to regulate. For example, Article 8.9(2) of CETA provides that "the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor's expectations, including its expectations of profits, does not amount to a breach of an obligation". These agreements include clearly defined investment protection standards, including fair and equitable treatment on expropriation, and provide clear guidance to tribunals on how these should be applied. There is no danger to the State's right to regulate. We have crossed the t's, dotted the i's and done absolutely everything and it is still the case that Deputies opposite do not believe what is written in front of them in the treaties and in the guidance to it.

It is worth clarifying that we know the difference between an ISDS system and an investor court system. There is not much of a difference. The investor court system really formalises the previous ISDS system, but in effect they do the same thing. We have had this at committee. It was an absolute disgrace that we did not have pre-legislative scrutiny on this. It was remiss of me to not commend Lynn Boylan on the briefing she arranged a couple of months ago, as referred to by Deputy Ó Laoghaire, which Deputy Gibney and others were present at. That should have taken place in a committee room as part of pre-legislative scrutiny of this Bill. The Minister of State keeps saying that we are scaremongering when we can point to examples of where Canadian companies have sued states. We can point to examples within Europe where a German energy company sued the Netherlands for its decarbonisation policy and the impact that was having on its business. We can also point to the fact that there is a threat here because Canadian pensions funds are heavily in the Irish energy system, not just in renewables but in oil and gas in Corrib and Whitegate. The Canadians are heavily invested in the Irish energy sector in fossil fuels. That is not to take into account hypotheticals that could come with regard to our housing system if that changed towards a more public system and Canadian pension funds had investments in private housing, which some of them do. The Minister of State accuses us of scaremongering even though we have seen the investor court system in action being used by Canadian mining companies and others. He is saying we are saying black is white but we can throw that right back at him because we have the examples and we are highlighting a valid threat from what is an outdated, outmoded system that is not needed between two modern trading blocs. It is absolutely unbelievable.

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.

In response to the Minister of State's comments on Deputy Ó Laoghaire's remarks, a single vote under Article 29.5.2° is sufficient to ratify and the Government planned to do that on CETA after less than two hours of debate in a situation where such a ratification would have had multiple breaches of our Constitution. The Supreme Court, in response, identified a potential but unvalidated path to ratify, but not to protect Ireland. I agree with others that the Minister of State's allegations of fearmongering are completely unfounded because we have seen time and again and have detailed examples of where these investor courts have been problematic. He should consider instances like France and the Canadian oil and gas company Vermillion. In 2017, Vermillion produced 75% of France's oil and lobbied alongside several other companies against the Hulot law, which was a progressive French policy that sought the end of fossil fuel extraction and banned the renewal of exploitation permits. The mere threat of awards was enough to make the French Government backtrack on its policy and instead it allowed all current exploration and exploitation projects by oil companies to continue being developed without any constraints for more than 20 years. I could go on listing the many human rights abuses ISDS schemes have caused or the moments big corporations took money from taxpayers like with Lone Pine Resources versus Canada, a case that has been unresolved since 2013 that could see Canada lose more than €100 million. The ICS, which is the body through which companies will seek award from this State via CETA represents a mere repackaging of the ISDS systems that have been denounced across the world by human rights groups and academics alike. As such, there is plenty of evidence and we are not misinterpreting what the ICS is. We know full well the difference between the ISDS and the ICS and we are not fearmongering.

With the malevolent Trump Administration, we need to closer links with Canada through the EU and this legislation is clearly facilitating what is essentially a trade-off with pluses and minuses. The question is not about whether we are losing sovereignty but whether sovereignty is worth giving up in certain situations, and I believe it is. We have agreed to pool sovereignty at EU level in multiple areas. The Supreme Court decision stated CETA created a parallel system of justice but it did not say the ICS was unconstitutional and required a referendum. Instead it suggested amending legislation would be needed to meet the threshold and that is the Bill before us. I said on Second Stage it struck a reasonable balance to meet the threshold so I do not have a problem with it. The old-style ISDS system has been improved in the ICS. The ICS will have open hearings, independent decision-making processes, judges appointed who cannot engage in outside activities and some, admittedly limited, facility for NGOs, civil society, trade unions, etc. It is a trade-off some will hate and others will reluctantly see as necessary. EU companies, as has been mentioned, can sue Canadian companies and Canadian companies can sue EU companies so while Ireland can be sued without recourse to Irish courts, the action cannot be spurious and must show a company has been affected detrimentally in some way because of a breach of the agreement. We might not like it but companies have a right to be compensated for loss of expected earnings and the threat is overemphasised because making such amendments would not in itself be in breach of the agreement. States still have the right to amend policy on environmental matters, consumer protection, public health and labour laws. Threats will happen and there is always the risk of a chilling effect but the EU is starting to take on the IT companies and it is through the EU we shout down these threats. However, I am concerned about the lack of proper Oireachtas scrutiny on Committee and Report Stages. We had the confidence motion on Tuesday where the anger of ordinary people was expressed in a robust way by Deputies on this side of the House. The Government was accused of being out of touch and not listening to the people. A day later, after having a good Second Stage debate on CETA, we scheduled statements on football. I am a football fan and it was a great debate, which I welcomed, but it could have been deferred for another week. We could have had several more hours of discussion and proper amendments debated. The Government has the numbers anyway and, like I said, there is a trade-off here, but I will not be voting for this as is because it has not been given the proper scrutiny it deserves by this House.

The Minister of State is saying we should just trust this Government on the basis the investor court system is now better than ISDS and all we know that is wrong there. The Energy Charter Treaty and the fact that everyone with any element of sense is moving away from it has been mentioned by many. The Antin versus Spain case relates to giving big business the ability to take a state to the cleaners. That is the reality. The Australian case is the always the first one brought to people's attention and while I accept Australia eventually won, it is about the idea of big tobacco in the form of Phillip Morris even taking that case. Even though Australia won, it did so at a huge cost and the case ran from 2011 to 2015. Let us not pretend that did not impact on other countries, and even on Australia, by chilling it from taking necessary action be it on environmental, health, workers' rights or human rights grounds. That is the problem. What are we getting? What is the advantage of this investor courts system? Am I wrong in thinking CETA is already in operation with respect to the trade elements, which are the parts the Government keeps saying are wonderful? We are all in favour of free trade and of building up those necessary relationships and ensuring we facilitate business across the board but what is the advantage of the investor court system? Most people would ask why we should take a chance on this. I do not see any advantage in any way, shape or form. If any company is found to be in a circumstance where it has been wronged by rule changes and there has been an element of unfairness is the Minister of State telling me Irish or European law does not have the capacity to deal with that? Is he saying a company from here would not be able to deal with that through the Canadian courts? Is that what we are talking about? From what I see the Government is literally giving the power to big business and big corporations and not even from a point of view of screwing over the small guy but from screwing over us as a State. We are talking about the fact the Government could literally have its lights put out, or have the absolute fear of having its lights put out. We know for sure that many governments, and we could even possibly say it about this Government, have obviously been impacted by the fear of taking action on particular legislation and how it would go down in Washington or anywhere else. I am certainly not talking about the occupied territories Bill.

No, unless it relates to the amendment.

That is the reality. What I am saying is that the one thing we have seen, and whether we call it ISDS or the investor court system, with all the nuances, changes and added bells, it is still a rose or a briar by another name. That is all we are talking about here. I am asking the Minister of State whether he can ensure us that all the worries on this side of the of the House will not happen. Can he tell me the advantage to us in passing this legislation and in relation to the investor court system? Can he assure us in respect of all the worries he says we are over-egging? Everyone would trust anything this Government told them anyway, and you could see that over the past period of time. This was the Government that said it was not going to provide any sort of supports or mitigations at the start of the week but by the end of the week, having dealt with its backbenchers, some of the Independents and the pressure put on by people, it moved.

Speak to the amendment.

That is all I am saying. I suppose it had a chilling effect of sorts. I want to know from this Minister of State what advantage there is to us, the Irish people, to this Government or to any future Irish Government of having the investor court system in play. With other treaties, we have seen states walking away. Do we intend to do it ourselves in relation to not being shackled by what you can only say is corporations being facilitated to "chill"? I was going to use a term that I probably should not use in the House. I refer to forcing a government into a situation where it may not go ahead with legislation that may be beneficial to the people out of fear that a major corporation using this leverage of the ICS will put its lights out from a financial point of view. This is the first time the Ceann Comhairle will have seen me do this. I am handing my speaking time back with a minute and 44 seconds on the clock.

There is a God.

I do believe.

The Minister to speak.

Deputies have raised a number of cases, none involving Ireland. In fact, there was a letter in the newspaper today which criticised me for describing these cases as relatively rare and then it went on to give the reason in the same letter why we have relatively low numbers of cases involving Ireland. We have very few. The cases that have been talked about are not related to CETA. Even the example used of the Canadian company is not under the CETA agreement.

How could there be?

Deputy, please.

Exactly. That is my point.

It has not been established yet.

That is my point. These examples have been given as if they are directly related to the ratification of CETA or the passage of this legislation. The cases the Deputies mentioned have not been decided under the investor court system. They have been decided under the old, long-standing system of investor state dispute settlement, ISDS. I have already outlined the difficulties with that. We felt there was a lack of consistency and predictability, a lack of transparency and the issue of the right to regulate, which I have spoken about at length already, was not there. In the Vermillion case Deputy Gibney spoke about, none of the provisions I am talking about that apply under CETA were there and it was not under an investor court system but under the ISDS system. It was not under CETA. There was no provision allowing for the right to regulate under that particular treaty that the Vermillion case was concerned with in France. Because of those concerns were raised, we have collectively, as a European Union of member states and Canada, decided to change the way we do things, which is to ensure we have a right to regulate and ensure we have an investor court system that works and recognises the role of the sate in regulating and doing social good, but also gives predictability, certainty and transparency to business in order that we can develop important trade ties. I know that many people in the development sector are concerned about trade agreements in general but this is between Canada and the European Union. It is a totally different circumstance.

Deputy Ó Murchú has two minutes left.

I get what the Minister of State says about the right to regulate and having certain protections. He has already stated that he believes the investor court system is an improvement on the old ISDS but I still have not heard anything that settles me in regard to the fact that there is any advantage to us signing up to this and that it does not leave this State open to the possibility of big corporations being able to put its lights out from a financial point of view and to have a detrimental impact on everything from regulation to legislating from a point of view of improving people's lives, whether we are talking about everything from housing to the environment to health. It is basically encompassing the entirety of the work done in a Chamber like this and beyond. That is my problem. My particular issue is that I do not see any advantage to it. My understanding is that those trade elements that we are all benefitting from are in operation at this point and there is nothing negatively impacting on them. Look at where we are talking about. We are talking about Canada and this State within the European Union. Somebody is going to tell me that there is not a sufficient amount of legislation or a sufficient number of frameworks to deal with issues that may exist if a company feels it is wronged. I do not believe, however, we need to give them a battering ram from the point of view that it can put its lights out and make us think twice or three times about not going ahead with necessary legislation or regulation.

I move amendment No. 4: In page 3, to delete lines 14 to 18.

Amendments Nos. 5 to 10, inclusive, have been ruled out of order.

I move amendment No. 11: In page 4, to delete lines 3 to 13. This amendment would delete subsection (2) of the new section 25A, to be inserted to the Arbitration Act 2010 under section 4 of the Bill. The purpose of the amendment is to allow us time to consider whether subsection (4)(2) of the new section 25A is compatible with agreements such as CETA. If CETA or any other international agreement like it was to be ratified by Ireland and all other member states, it would then become EU law. We cannot then rely on our own constitutional protections as Article 29.4 makes clear. This subsection therefore does not make sense. It is asking us to rely on a constitutional protection that ultimately will not be there. What is more is that investors will be able to simply step outside of the jurisdiction without going to the lengths of arguing whether there are any legitimate limitations as the enforceability of their claims and that is why we are proposing the deletion of subsection 4(2) with this amendment.

I will pick up on a couple of the comments from the previous debate which apply to this amendment as well. I am still dumbstruck that we had no pre-legislative scrutiny. There is virtually no debate tonight, or not enough. I agree with Deputy Gogarty in that as much as I value the debate on football, it could have been pushed back for a week and we could have had more opportunity to properly analyse this. We should have had experts giving their opinions on this. We have had so many expressions of concern regarding all of this. Putting aside the fact CETA will expose the State to investor state dispute claims and awards with relatively little protection, the Government's proposed section 25A will allow the Minister to make trade details with barely any Government scrutiny, so with hardly any due diligence. This is in particular when we consider that the new section 25A(1) is not limited to the ratification of CETA but also includes the advanced framework agreement between the European Union and its member states and the Republic of Chile and, alarmingly, any other international agreements. To be clear, this involves rewriting our entire approach to trade. These amendments are set out to build in those better safeguards and the due diligence we believe is appropriate for any such activity by any Government. It is in that spirit that these amendments are put forward.

I had nothing to do with the scheduling of the debate on football. I presume that is a matter for the Business Committee. As Deputies are aware, the Costello judgment prevented Ireland's ratification of CETA and other mixed EU trade agreements containing similar investment provisions. The Supreme Court in the Costello case not only identified constitutional concerns that prevented the ratification of CETA but the court then identified a legislative path to allow us to cure the concerns that had been raised. The Government, working with the Attorney General, has considered the findings of the Supreme Court. This legislation is the response, having looked at what the Supreme Court said and the guidance the Supreme Court gave us, which we are now implementing. The Bill before us amends the Arbitration Act, introduces a procedure into Irish law for the enforcement of awards rendered by tribunals established under CETA and similar international agreements, addresses the concerns of the Supreme Court and specifies the applicable grounds on which an award may not be enforced. The concerns the Supreme Court raised could not be met if amendment No. 11 were accepted. Therefore, we cannot accept it. I think it was said from across the floor that we are rewriting our whole approach to that trade and trade agreements can be brought in without scrutiny but that is not the case. There is a whole procedure involving the Commission, member states, the European Parliament and national parliaments, maybe, to do this. Trade agreements do not happen overnight. If the State were ever to rely on the provisions of this Bill, first of all we would have to ratify a trade agreement. Every signatory has to ratify it for the investor courts force to come into force anyway. There then has to be an award against the State in the investor court. If the State does not like it, it then has the remedy under the legislation - let us remember this legislation is extremely short, on a very net point and is not directly related to CETA. The State is then essentially challenging the enforcement of the award in the State. That is what the Bill is about. The enforcement is prevented if enforcing the award would compromise the constitutional order of the State or the autonomy of the legal order of the European Union. That gives the Supreme Court and the High Court the ultimate say on any award an investor court might theoretically make. I stand over my assertion that this would be incredibly rare. The way this would work is the State says no, it will rely on the arbitration Bill to prevent this because it believes enforcing the award would compromise the constitutional order of the State or the autonomy of the legal order of the European Union and then the Irish courts would decide. That is what the Bill does. Setting it out in such simple terms is a challenge to all of the scare stories put forward by the Opposition. Our task is to ratify CETA in a way that passes constitutional muster. Fortunately in this case we have guidance from the Supreme Court. That is all the Bill tries to do.

We did not have much time to debate this even on Committee Stage. The Minister of State accused us of putting forward hypotheticals to scaremonger even though we are basing them on a number of cases that have taken place internationally. He has constantly told us that X, Y and Z have to happen, ultimately this is really rare and probably will not happen anyway so what is the big worry but this is going to happen. The ICS will come in under this and we will be vulnerable. It is a risk we do not have to take because we have a modern, trusted Judiciary that is well capable of determining cases if a company feels the State has acted with a degree of malevolence to impact its ability to make profits. There is a system for a grievance to be taken against the State, should a company want to do so. That is the system in which we believe. We do not believe in an investor court system. We are not scaremongering; we are basing it on evidence of a system that is rooted in a mid-20th century system where the rich global north was exploiting the poor global south and did not trust their judiciary systems so they set up the ISDS system, which ultimately became the ICS. The corporates have codified and formalised that and have put enough pressure on the EU, Canada and everyone else to ensure that this system must be included in trade deals. It is a system that is fundamentally wrong especially when we have modern, trusted, transparent judiciaries like we have in this country. That is where we are coming from.

Does the Minister of State understand the ability of the CETA joint committee to amend the text of CETA, which is effectively what Mr. Justice Hogan described as "quasi-legislative" capacity bypassing the Oireachtas? If the Minister of State is wrong, we will be exposed for 20 years even after we signal withdrawal and possibly more given that the whole EU may need to withdraw. The CETA joint committee can amend elements of the text, adding to interpretations on areas where we will be exposed. I will read from paragraph 17 of Mr. Justice Hogan's judgment in the Costello case: Would the ratification of CETA be unconstitutional inasmuch as Article 25 CETA allows for the Joint Committee to give interpretative decisions which bind the CETA Tribunals, thus compromising the democracy guarantee in Article 5 of the Constitution? Answer: Yes. An interpretative ruling of this kind is really a form of quasi-legislation which in practice amounts to a de facto amendment of CETA. Even though such an interpretative decision might well – and probably would — involve a (potential) charge on public funds in the course of what might well amount to the de facto amendment of an international agreement, there would be no procedure whereby the prior consent of Dáil Éireann could be obtained in the manner required by Article 29.5.2. That is Article 29.5.2° of our Constitution. The killer point is that the defence provided in section 25A of the Bill only works if the claim comes before our courts. This is a false protection the Government is putting forward under section 25A. It is a scurrilous vehicle to bypass the constitutional protection we all treasure. It leaves our State exposed.

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?

You might wait to answer.

I will answer.

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.

I will not take very long. There is an element of repetition at this stage. I would ask, as Deputy Ó Laoghaire has, that there would be an answer on how we ended up with a guillotine at the close of business. A lot of us enjoy playing soccer and wanted to talk about volunteerism and the need to invest in football but we could have done that at any other time. This is legislation with incredibly worrying aspects. The Minister of State is going to talk about protections that were put in place on the basis that the ISDS and investor court systems leave us open and susceptible to corporations that will be able to take action against the State and may have a chilling effect on governments from the point of view of acting in pursuit of what is the social good, or any sort of good, in a wide range of particular issues. We all accept that we are not in an age of absolute national sovereignty but we would like to think that we would maintain as much power as we could from the point of view of being able to regulate, legislate and do the best for our people. In saying this, I do not think governments have always done this but they should have the capacity and the ability to do it. I do not see the advantage and I do not see what gain we get. When we are talking about trade, as far as I can see all of the positives of CETA are in operation as we speak. The framework exists for corporations to get their absolute rights vindicated in the court systems that exist here, in Canada and throughout the EU.

The nub of the issue is that the Bill is before the House because of a Supreme Court decision and the Costello judgment. We are going to have differences of opinion on it. There was a 4:3 split in the judgment but a 6:1 majority said that while it is unconstitutional, it does not require a referendum because the State can change Irish law to put in place strict safeguards to make sure Irish sovereignty and EU sovereignty are protected in the context of the Bill. This is why we have the arbitration amendment in section 25. The fundamental point, as I said earlier, is that it is a trade-off. On balance, following Mark Carney's speech a few months ago, and I reiterated it when the Canadian ambassador was here when we gave our commiserations for the tragedy that had recently happened there, we have to collectively get together in this new type of world where alliances are what will help small- and medium-sized countries. Ireland is only strong as part of its EU membership. Canada and the EU collectively are only strong by working together in a world where we cannot rely on historic partners. In this context, maybe five years ago the risk might have been judged to have been greater but now there is a trade-off. There is a certain level of risk. The Minister of State is doing his best to go through why these risks are overstated by members of the Opposition and civic groups, and maybe they are. I agree with the Minister of State on a lot of aspects but I want a response tonight as to why, given that the Supreme Court put it in the Minister of State's hands to go through this legislation with a fine-tooth comb so the concerns of the courts were reflected through the legislation, the legislation is not being allowed to have as long as is possible. We have had much longer debates on other legislation. As an Independent I will not say I have specific expertise because I cover a wide range of areas, but there are spokespersons here who are particularly focused on tabling amendments and want to have those amendments discussed. I wanted to see them discussed because I was listening to debate all night before I came down here. It is totally unfair to the people of Ireland not to be seen to have this scrutiny. It might be laborious for the Minister of State's advisers and for him but we should go through everything step by step and amendment by amendment over a period of hours and then come to the vote. At least we could say the House went through it the way it should have. I do not believe that it has gone through it the way it should have.

To be clear, as one Deputy said, there is an element of repetition. That is what happened on Committee Stage when there was no time limit whatsoever and yet, quite frankly, the debate ran out of steam. This is a Bill that is not even two pages long in total. It is a very short piece of legislation. It is a very net point. We have not seen much debate on the individual amendments tonight to get through them. We have heard the overall points that have been made time and time again. I want to be clear about one thing. We have heard about 6:1 and 4:3 majorities but we do not have an American-style Supreme Court. We have decisions of the Supreme Court and the Government has to go with the decisions of the Supreme Court. I want to be clear, to counteract some more misinformation, that the Supreme Court found the joint committee system in CETA does not breach the Constitution. This is what the Supreme Court found. In fact, the joint committee system is a procedure that is designed to preclude the possibility of the development of jurisprudence beyond the scope anticipated by the parties. This is another protection. The joint committee system is another protection. These investor courts are not for big business only. Small and medium enterprises have very much been a focus of trade agreements in recent times in particular, and there is specific provision for them here. Here we are developing trade relationships with Canada. It is not to do with the Third World and it is not to do with development of poor countries. It involves two large powers trying to engage with each other in a fair way that benefits people. To be clear, the Bill seeks to follow the Supreme Court decision to allow us on another day to ratify the CETA agreement.

The time permitted for the debate having expired, I am required to put the following question in accordance with an order of the Dáil of 14 April: "That Fourth Stage is hereby completed and the Bill is hereby passed."