Arbitration (Amendment) Bill 2025: Committee Stage
Seanad Éireann — 2026-05-20
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Michael McDowell (IND), National University of Ireland

That is fair enough. Now, we have the answer.
The Minister of State has criticised me for querying the views of the Supreme Court in relation to the amendment of the Arbitration Act. I want to say this one thing to the Minister of State at the very outset; I am a practising barrister. I appear before the Supreme Court on occasion. I have the greatest respect for that institution. Nobody in this House has a greater respect for it, but on this occasion, it set out what the Minister of State said was a pathway to ratification. Let us be clear about this. Former Deputy Patrick Costello, when he went there, did not ask the court to set out a pathway to ratification. He asked it to decide whether ratification was compatible with the Irish Constitution. He never asked the Supreme Court to advance a view about the Arbitration Act or come up with a solution or pathway. He never did anything like that.
The Minister of State is an experienced lawyer and he knows what I am driving at now. The views expressed by Mr. Justice Hogan and the majority in the Supreme Court were not views that arose from the dispute that was put before them by former Deputy Costello. He did not argue that point, and a case not argued is a case not decided. The fundamental principle is that a statement by any judge or any number of judges in respect of a point that was not raised, has not been raised and has not been litigated in the Supreme Court - it has not been litigated as to whether this Bill does or does not cure anything - is obiter dictum. It is simply an expression of views. Commentators have said that this was a very unusual set of judgments. Having said that the ratification of CETA was clearly in conflict with the Constitution, the Supreme Court then went on to imagine for some reason that if a statute was altered so as to make these decisions of the courts in some circumstances non-enforceable, the Constitution would thereby be made compatible with CETA. That is a reverse logic that I cannot accept. The Constitution either did or did not permit the State to ratify CETA and the presence or absence of some provision in statute law does not alter that situation.
I am sorry if the Minister of State thinks I am taking a fair amount of time but I have put down no amendments to this.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-20/debate/main
Retrieved: 2026-08-14T04:54:58+00:00
Sitting date: 2026-05-20