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

There is no question of a filibuster here. I have put down no amendments for the very simple reason that no amendment, in my view, can cure what the Government is trying to achieve. CETA is incompatible with the Constitution, as it presently exists. Various members of the Supreme Court, for one reason or another, expressed a view that if you amended the Arbitration Act 2010, CETA would somehow become compatible with the Constitution. In other words, the absence of section 25A from the Arbitration Act, proposed to be inserted in this Bill, was the reason ratification by the Government would be unconstitutional. The absence of a statutory provision was the reason ratification would be unconstitutional. I do not accept that logic.
With the greatest respect to all of the members of the Supreme Court who adopted Mr. Justice Hogan's obiter dictum , they were not asked to decide that point. They were not asked by Deputy Costello, as he then was, to point out a pathway to the Government. In my experience, no other Supreme Court has ever done that.
I do not remember any case where the Supreme Court has looked at something, decided it was unconstitutional and suggested changing a statue in order to cure the problem. When I say it is worthless, I am say that on a considered basis. I am not just throwing an insult at the majority of the Supreme Court. I am saying that, in logic, what it is doing and proposing needs to be examined very carefully and what it held out as a pathway - to use the Minister of State's phrase - was not, with the greatest of respect to the court, part of its function at the time. If the former Deputy Patrick Costello had been given the right to argue as to whether the text of this Bill would cure it, he could have made all sorts of arguments of the kind that I am making. Unfortunately, he was not afforded that right.
The Minister of State referred to the Attorney General. I have served as Attorney General. The Attorney General is not infallible and can get things wrong. In this case, the Attorney General went the all the way to the Supreme Court, argued that ratification of CETA was compatible with the Constitution and was told by a majority that it is not.

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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