Arbitration (Amendment) Bill 2025: Committee Stage Seanad Éireann — 2026-05-20 ============================================================ Thomas Byrne (FF), Meath East For all this talk about obiter dicta , this is not a High Court bound by precedent; this is a Legislature making laws which the Supreme Court envisages. Nobody in the Attorney General's office could simply say this is worthless or not worth the paper it is written on. The Attorney General is not a High Court judge deciding a case; the Attorney General is giving advice to the Government, which wishes - for public policy reasons, for the betterment of our economy and for the prosperity of our country, the European Union and Canada - to implement and ratify this treaty. We see the benefits to it and they have been well analysed. The Attorney General advises us on that, sees a Supreme Court decision and says, "Well, the Supreme Court has declared the ratification to be unconstitutional but a majority of the Supreme Court has said that it could be ratified if you do this". Mr. Justice Gerard Hogan was clear this is a matter for Government and the Legislature; it is not a matter for the Supreme Court. We have never said we are bound by the Supreme Court; we are doing this because we want to do it and think it is in the best interests of the people of this country and of our economies. We believe this is very important. We are passing this legislation. It is a pathway. There is not a ratio decidendi or an obiter dictum . That is not relevant to us. What is relevant to us is the suggestion of a pathway by the Supreme Court. Like every piece of legislation that comes out of the Oireachtas, it is subject to constitutional provisions for legislation. It will have to measure up to the standards set out in our Constitution and that is the work we have tried to do, recognising the Costello case and what the Supreme Court has said. We have tried to do this and the Attorney General has tried to do this. We have not tried to be reckless or dystopian. We are not trying, as one Senator said in the last debate, to bring the country down the Swanee. That is what we were told we were trying to do. The facts are completely opposed to that. I will be clear in relation to Mr. Justice Charleton. I have to say I have never seen the Supreme Court so personalised in all my life. We need to look at the judgment on the overall basis. It is worthy from an academic point of view but the Government cannot say it prefers the dissent and will ignore the majority, as some people in the Opposition want to do. That is not open to us because that is not the law. The dissent is not the law. We have to go with what we believe to be constitutional. The majority of the Supreme Court did not agree with Mr. Justice Charleton; the majority agreed with what Mr. Justice Hogan had said. The Chief Justice, Mr. Justice O'Donnell, considered - contrary to what Senator McDowell has told us at length - in writing what Mr. Justice Charleton said and explained his reasons for disagreeing with it. There was a good debate among Supreme Court judges and, out of that debate, we get a majority position that the Government is using to bring this legislation through on a constitutional path. The Supreme Court not only identified constitutional concerns preventing the ratification of CETA but also identified a path to cure those concerns. The Government, advised by the Attorney General and my officials, has carefully considered the entirety of the Supreme Court case. We cannot and have not picked and chosen. We have also looked at Mr. Justice Charleton's dissent. The legislation is in response and we are confident it addresses the concerns of the majority of the Supreme Court in the Costello case and follows the legislative path identified. Nobody has said a referendum is required. Contrary to what many people have said, it was not a decision of the Supreme Court that a referendum was required. If we were to ratify CETA without making the legislative changes, we would be breaching the Constitution but the Government is confident the legislation we are passing addresses the concerns of the Supreme Court in the Costello case following the legislative path identified in that case. Therefore, a referendum is not required because it would be constitutional. A referendum is only required, in general terms, to change the Constitution. That is not required in this case. People are talking about various countries apparently not going to ratify CETA or other agreements. We have absolutely no information that that is the case. It appears to us we cannot say that definitively. Let us say we decide we will not do this through a court case saying it is unconstitutional, through a failed vote or through a decision not to do it. I presume if the Opposition came into government, it would announce it is not ratifying CETA. That is presumably what it would do because we are required to have legal certainty. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. 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