I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded.

Amendment No. 1 has been ruled out of order.

Amendment No. 2 has been ruled out of order as it is in conflict with the principle of the Bill as read a Second Time.

Amendment No. 3 has been ruled out of order. It, too, is in conflict with the principle of the Bill as read a Second Time.

Amendments Nos. 4 to 6, inclusive, are related. Amendment No. 5 is a physical alternative to amendment No. 4. Amendments Nos. 4 to 6, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 4, to delete lines 14 to 19 and substitute the following:

“(3) For the avoidance of doubt, it is hereby declared that an award made by a body empowered to make awards pursuant to an international agreement to which this section applies is not, and never was, enforceable in the State if enforcing the award would—

(a) conflict with the constitutional order of the State,

(b) conflict with the autonomy of the legal order of the European Union, or

(c) materially impair the capacity of the State to legislate or regulate in the public interest.”.

I second the amendment.

I am speaking to amendment No. 4. I will start by saying that I was disappointed by the response of the Minister of State, Deputy Byrne, during the previous debate. Rather than engaging with the substance of the amendment, he sought to portray those in opposition as somehow being anti-trade. No one is arguing against trade with Canada. No one is arguing against Irish business exporting, creating jobs or accessing new markets. The issue is the investor courts and the lack of protection for the State should this legislation be passed. We want to see where that protection lies within the legislation.

This amendment mirrors the Government’s drafting, with the only significant change being the addition of paragraph (c). This simply states that an award should not be enforceable where it “materially impairs the capacity of the State to legislate or regulate in the public interest.”. The Minister of State never really explained why he would not accept that amendment. We heard repeated references to the right to regulate. We heard references to legal advice and the Attorney General, but we never heard a clear explanation as to why this specific wording would be objectionable. If the Government is genuinely confident that Ireland’s right to regulate is fully protected, then surely there should be no difficulty in explicitly reflecting that principle within the legislation.

The Minister of State, on the one hand, criticised Senators for referring to CETA in the debate but then used the framework of the CETA agreement to justify why this amendment is unnecessary for the Arbitration (Amendment) Bill. It is incredibly strange and disingenuous. Many of the concerns expressed, both here today and before, relate to how these arrangements may operate in practice over time. We are being asked to accept assurances that everything will be fine and the right to regulate will be protected, but why can this not be reflected in the legislation? It would provide greater peace of mind and assurances that all will be fine.

The discussion reminds me of the debates that took place on the EU migration pact. At the time, many of the legitimate concerns raised were dismissed. People were told that they had little to worry about. Yet, as implementation approaches, questions continue to emerge around costs, obligations, burden, sharing arrangements and the practical realities of how the system will operate. These are issues that were brushed aside during the legislative process, as is happening here. I fear that in one or two years’ time people will view this legislation through the same lens and will be questioning why the Government passed legislation that does not protect the State or the interests of the country. While I welcome any opportunity to improve or enhance trade with other countries, this can be achieved without investor courts. If the Government truly believes in protecting the State’s ability to legislate now and into the future, it should have no issue supporting this amendment.

Are these amendments grouped?

Yes.

I will speak to amendment No. 5 around international agreements, conventions and treaties, the Paris Agreement, the 2030 Agenda for Sustainable Development, the Aarhus Convention, etc. This amendment is born out of the regulatory concerns we spoke about before, particularly in the context of regulatory chill and the impact this could have on environmental legislation. Under the Energy Charter Treaty, ECT, we saw companies sue EU member states for millions of euro when they tried to move away from fossil fuels. For example, the German energy company, Uniper, used the ECT to challenge the Netherlands’ 2030 coal phase-out. There is a massive range of different concerns about the impact this might have on environmental legislation in particular, and that is why I support this amendment.

We do not have explicit legal protections in the Bill, as it is written, for climate legislation. Instead, we are relying on general provisions within CETA. This is a concession. Rather than enabling clear safeguards in Irish law, we are relying on interpretive assurances and broad principles that leave environmental protections exposed to legal uncertainty. Given that the scale of potential liability has been highlighted, the refusal to explicitly protect climate measures is a significant gap in the legislation. I know the Minister of State does not agree that those risks are perhaps as strong as I am putting forward. Maybe he considers them scare stories. I think that is a term he used on Committee Stage in the Dáil. We have real examples of companies in this regard.

I gave the example of Uniper, the German energy company, taking out a case in the Netherlands over particularly challenging environmental concerns. Another German company, RWE, used the investment court system, ICS, mechanism to claim €1.4 billion. These cases exist. Another case is Bilcon versus Canada. In 2008, a US company challenged a Canadian environmental requirement affecting its plans to open a basalt quarry in a marine terminal in Nova Scotia. The investors planned to blast, extract and ship out large quantities of basalt. The investor-state dispute settlement, ISDS, tribunal decided that the Canadian Government's decision hindered the investor’s expectations around that. These are very real legitimate cases that we are seeing. That is why I support this amendment.

Amendment No. 6 seeks to insert:

“(4) For the avoidance of doubt, awards under an international agreement referred to in subsection (1) shall not be enforceable or recognised in the State if such awards were sought in a foreign jurisdiction or an international body.”.

I understand this amendment comes from the very real concerns that awards will be enforceable. Companies can choose to take a case in any jurisdiction, and why would they not? If they think that they are more likely to get a favourable award in another jurisdiction, why would they not take that measure? I think that this is a strong provision, protecting public policy concerns and not allowing those awards just to be enforceable. We talked a lot before about the concerns that assets could be seized in a secondary jurisdiction. If the case is taken in another jurisdiction, it might find favourably towards the company and assets could be seized in order to fulfil whatever award is given there. I have serious concerns about that.

I very strongly support both of these amendments.

I wish to speak to amendment No. 6, which seeks to address the fundamental issue with the Bill. The Government has imagined a fantastical situation where investors who believe that they may not be successful in obtaining an award through the process outlined in this Bill would simply accept that. There is nothing in this Bill that prevents investors from seeking enforcement in foreign courts or at international bodies such as the International Centre for Settlement of Investment Disputes.

There are numerous examples of enforcement being sought in foreign jurisdictions. One particularly egregious example is a recent case taken against Spain as part of the enforcement saga of investment treaty arbitration awards issued in renewable energy disputes. A Luxembourg investor secured a seizing order from the British courts directed at property owned by the Government of Spain in London. In March of last year, the European Commission ruled that paying this award constituted illegal state aid and directed the Spanish Government not to pay it. By virtue of its exposure to investor courts, Spain had assets seized in Britain and then we were told by the Commission that this was illegal state aid.

Has the Government carried out any risk assessment of this happening in Ireland if we expose ourselves to investor courts? Is it the Minister of State’s understanding that investors may seek enforcement outside Ireland? If that is the case, why would investors, who think they may not be successful in an Irish court, not seek enforcement elsewhere?

I welcome the Minister of State and his officials. I will deal with amendments Nos. 4, 5 and 6 in reverse order. Amendment No. 6 seeks to insert:

“(4) For the avoidance of doubt, awards under an international agreement referred to in subsection (1) shall not be enforceable or recognised in the State if such awards were sought in a foreign jurisdiction or an international body.”.

We have had some very interesting debates in this House over the last number of weeks about the Omagh bombing inquiry Bill. The Minister for justice is a very eminent senior counsel and a person whose legal opinion I would attach great weight to, notwithstanding that one’s professional or industrial experience is not always recognised in this House, it would seem. The Minister made the point that we could not require or compel Irish citizens to give evidence or participate in a judicial process or inquiry that was based in another jurisdiction, albeit on this island. He was really clear about that. I pointed out to him that there were very pressing matters in relation to the Omagh bombing and subsequent attempts to carry out car bombings in Dublin and the UK but he said that, notwithstanding all of that, there could be no crossover between the two jurisdictions. I say this as a layperson who has no legal training whatsoever: I think he is talking about sovereignty there.

This amendment simply asks that we endorse our own sovereignty and say that this “shall not be enforceable or recognised in the State if such awards were sought in a foreign jurisdiction or an international body.” I hope the Minister of State will accept this amendment. It is in our collective self-interest to support it. If the Government is to oppose it, it begs the question as to why we would dilute our sovereign status. Why would we expose Irish citizens to the threat or potential risk of financial exposure?

The State has a record in this regard. During the financial crash and crisis, we adhered to the austerity requirements set out by the members of the troika, who stayed across the road in the Merrion Hotel even though the rest of us were struggling to cope with the severe financial restrictions that were placed on us. The Government agreed that the debt should be socialised - the debt imposed by bankers, property speculators and developers. The narrative was that we had been bailed out by Europe, but that is not what happened. The Irish taxpayer and all our children are still paying that debt. The debt was socialised.

I see a number of contradictions in this regard. On the one hand, the Minister for justice, a senior counsel and very eminent lawyer, says that we cannot compel witnesses to participate in a judicial process that is set up in another jurisdiction, yet if the Minister of State rejects this amendment, he is saying that when it comes to exposing the Irish citizens to financial risk, we are quite happy to allow third parties and other interests to come in and speculatively take claims. As Senator Stephenson said, why would they not?

Amendment No. 4 states:

In page 4, to delete lines 14 to 19 and substitute the following:

“(3) For the avoidance of doubt, it is hereby declared that an award made by a body empowered to make awards pursuant to an international agreement to which this section applies is not, and never was, enforceable in the State if enforcing the award would ...

As I know everybody in the House can read, I will not continue to go through it. Again, it speaks to our Constitution. I will be 60 in August. I grew up in the Republic before we joined the European Union. It was the time of what was called the pitchfork and the candlestick when we were building social housing for our citizens. I remember in Finglas seeing the prefabricated houses being transported along Ballygall Road East to Ballygall and Finglas village and out into Finglas west and Finglas south. In a State that was not a member of the European Union and had no access to European funding or foreign direct investment as we have now, and as one of the poorest countries in Europe, our grandparents felt that social housing was a social good and not a commodity or something to speculate on. We joined the European Union. We had the Jack Charlton years. I remember the mass emigration of the eighties. I did my leaving cert in 1984. My youngest fellow is doing his today. He just completed his biology exam. By Christmas of 1984, only three of my class were left in Ireland. The rest of them went to Australia, Canada and New Zealand, where our kids are going now, because they offered them a life.

My point about this is that the neoliberal economic agenda is writ large ideologically and philosophically within this document.

That position has been endorsed, reinforced, carried out and executed by the Government since 2011, when a Taoiseach was appointed who promised us new politics and a fair deal. What has been the cumulative effect of that? In my lived experience, it means that my 25-year-old, my 24-year-old, my 22-year-old and my 18-year-old have no prospect of owning a home of their own. If you want to buy a one-bedroom apartment in Dublin, you have to be in the top 10% of earners in the European Union. If you want to buy a two-bedroom apartment, you have to be in the top 1% of earners in the European Union. Here are amendments that ask the State to indemnify our citizens at this point against the risk of exposure to interventions from outside our jurisdiction because we have learned that international debt can be socialised and levied on the Irish taxpayer by a Government that imposed austerity as though it were a virtue. I will say that I do not think that anybody in Fianna Fáil intended for the crash to happen. It was misadventure. However, the policies of austerity were premeditated and carefully calculated to inflict pain on the most vulnerable people in our society. In my family, our disabled son lost all of his services. He has never had physiotherapy in a meaningful sense. He has never had speech therapy or occupational therapy or any of those things in a meaningful sense. As a consequence, his life is significantly limited. As a parent watching that, it causes moral distress and injury. When the then Minister, Paschal Donohoe, was in the House for statements on the financial forecast for Ireland, it was interesting that when I made those points to him, he got visibly angry. He said that I had no idea how difficult it was to make those types of decisions around austerity. What he said to me was, "It hurts us more than it hurts you."

I ask the Minister of State to understand that the spirit and motivation of the people in this House putting down these amendments is to protect our collective interests. We remember how the Government has behaved in the past. On the one hand, it declared our sovereignty to be inviolable and stated that we cannot compel people to give evidence that would contribute to the public good in terms of contributing to knowledge over the Omagh bombing, the largest massacre in the history of the Troubles. It cannot do that but, you know what, like it did with the troika and austerity, the Government is quite happy to reject these amendments so that international capital and international liberal economic market forces can further strip money from what should be a wealthy republic but in actual fact is one where if you are trying to start a family, trying to build, get or buy a house or trying to make all of those decisions to self-actualise as a citizen, or if you are sick or elderly, you are in big trouble. That is not the Republic I remember from the 1970s and 1980s, notwithstanding all the challenges we had.

My grandmother fought in the War of Independence. If she were to read this, she would have a lot to say. There might be a citizens' assembly, like there was in 1916 on O'Connell Street. Our children have been sold out by this generation. We are supposed to be generation X but I would call us generation F, for "fail". Think of everything that our grandparents built up. My father, as a garda, was able to live in the community that he policed and was able to send five of his children to university. He did all of that on a garda's wage. Could a garda do that now?

Did the Senator call for an assembly on O'Connell Street, like 1916? Did we catch that right?

I am speaking, if the Minister of State could contain himself.

The Senator should speak on the amendment.

I will tell the Senator something-----

Cathaoirleach, if I-----

Tá brón orm. Gabh mo leithscéal. I want to maintain one voice at a time in the Chamber. I ask that we stick as relevantly as possible to the amendment.

I am sticking to it-----

The Senator is nowhere near the amendment.

-----and whether or not-----

I think the Senator has veered off it a bit.

The Senator called for another Easter Rising.

The Senator is so far off the amendment that he does not know where it is.

I ask the Senator to keep his contribution as concise and relevant to the amendment as possible.

We must be careful to keep the record of this House correct. I certainly never called for another 1916 Rising. What I am saying is that we must have a republic that serves the interests of its citizens. Amendments Nos. 4, 5 and 6, as set out, seek to do that. I cannot understand why any Government of this Republic would oppose or not support those amendments for all of the reasons I have set out. We have to draw a distinction between what the Government does not like to hear and what it thinks is relevant or irrelevant. Disagreement is a good thing. We must remember that this Government is here to serve the people. It is not in charge. It does not govern. This is a republic. The Government is here to serve all of us. These amendments reinforce that concept of service to the people and the need to protect the people. I would query why anyone would not support or would reject these amendments. I thank the Acting Chairperson for his patience.

I welcome the Minister of State to the Chamber again. At what we might call the dénouement of the Bill in the later stages of the evening, I will have a few more things to say. Right now, I will confine myself to a short comment on amendment No. 4 and the proposed new section 25A(3)(c), which refers to something that would "materially impair the capacity of the State to legislate or regulate in the public interest". That is a critical part of the amendment. Even though the EU investment court system, ICS, is designed to avoid the worst abuses of the investor-state dispute settlement, ISDS, the critics in this House and the Lower House have warned that the mere possibility of investor claims could discourage ambitious regulation, especially and critically in areas such as climate policy, public health, labour protections and digital regulation. Those concerns were explicitly raised by Opposition Deputies, who argued that the investor courts "have a massive potential to undermine social and environmental regulations". That matters because Government Departments may become far more cautious down the road when drafting laws if they fear triggering multimillion-euro claims. Even if the State ultimately wins, it is the fear factor that impels all of us. Those of us who have a titter of wit at all look at the court system in Ireland as the last-chance saloon. Politicians of all parties and none have gone to the courts to their great detriment and financial loss. If that is writ large in the context of the State, the whole fact of those multimillion-euro, and possibly multibillion-euro, awards that could be made against the State in relation to fundamental legislation and progressive legislation, there is a chilling effect. It is a sort of Big Brother-like prospect. That is why I strongly support amendment No. 4.

I am happy to speak in support of amendments Nos. 4, 5 and 6. Am I correct that they are grouped? Yes. I will speak to each of them.

Amendment No. 4 reflects the concern that people have. This is the reason people and councils across the country voted in the past to express their concerns about CETA. It is the reason there has been such strong and consistent concern and opposition from civil society across the world about these arbitration tribunals. It is what is evidenced by how they have operated in the past. The Minister of State will say that the ICS is not sitting yet and we do not know what it will do. We know what every other arbitration body does and how it operates. We know there is nothing very distinctive to ensure we will not see the same effect. What Senator Clonan said was true. These were originally inserted as a grab by corporations.

I worked on these in the early 2000s when they were the European partnership agreements. This speaks to amendment No. 6 and to the international system, which is very exploitative and grants inequitable power to corporations and which the Government is choosing to tie us into. They were originally agreements imposed on African countries because European companies said they could not trust those countries' courts. Then corporations liked it. They thought it was wonderful to have their own court system that does not get tied up in any of the messy balancing-out of things like the public interest, environmental law and precedent. It does not have to weight all of that in. It simply looks to what corporations want discussed, which is how much compensation they should be awarded. They liked those in the European partnership agreement and started attaching them to other agreements.

Then the message came that countries with much longer experience of arbitration tribunals than ourselves saw that the damage they did to public interest was immense. That is why there was a push-back and why NAFTA, which contained arbitration, was replaced by a deal between the United States and Canada which does not include investor courts between those countries and requires in the case of Mexico that domestic courts be fully exhausted before, in very limited circumstances, a case can be taken. It is why South Africa has led the rejection of these kinds of tribunals, particularly after Italian companies sought to sue it for the impact of the end of apartheid. It is why there has been a rejection from Australia. There has been a huge rejection because those in civil society and others who warned about the potential dangers were correct.

Some reforms were then proposed. Those reforms were not spontaneously proposed by companies; they were proposed under duress by governments which had previously claimed the system was fine but were forced by pressure from civil society and others to institute reforms. They produced reforms that people are telling us about, including German court judges, the experts in civil society who identified the original problems and the IPCC - the highest climate body in the world - which has specifically named investor courts and arbitration tribunals as one of the significant blocks to achieving a liveable planet. The warning bells that were ringing are still ringing and the people ringing them are still correct. Many of the new generation of trade deals do not include these at all. Even Mercosur did not have them. The deal between the UK and the EU did not have them because they are toxic overreach by corporations who added these extra rights for themselves on top of a good thing we all want to see happening, namely, trade deals between parties.

Interpretive documents have been quoted at length - the parties agreed to this, the parties agreed to that - in relation to CETA, but we are discussing here any number of unknown future trade deals. The states engage. They are the ones who commit to working together on regulation, raising standards and so on. That is between the parties who sign up to the positive obligations in these. Corporations do not have to sign up to anything but they get a tool they can use to exert pressure. Corporations do not have to sign up to climate targets in order to use the investor courts to seek compensation for an environmental law that impacts them. It is a tool that gives corporation a stick with which to intimidate or press states in relation to their laws and it continues to be the same in CETA, which is just one of the agreements we are discussing and only one of the situations to which the Government is seeking to open the door.

The text in CETA is clear. We do not get to come back in multiple times so let us not circle around the mere fact of profit loss. It is not the mere fact of profit loss; it is profit lost due to your expectations being frustrated because you were unfairly or inequitably treated, which is exactly the language used in previous cases. The fact we provide a non-closed list of examples of unfair or inequitable treatment does not mean the same logics will not be used by other arbitrators. The evidence points to them being used. They are the precedents, even if they are in other courts, of unfair and inequitable treatment.

Here is what is in the text of CETA. This is something the Minister of State has never answered. This is why public interest is key. The Minister of State will say the State can legislate and has the right to regulate but the language in amendment No. 4 is "materially impair the capacity of the State to legislate or regulate in the public interest." Impairing the capacity of the State materially is adding an unknown future cost to regulation in the public interest and to the better choices we might hope future generations will make to address under-regulated areas such as housing and rental rights, care, many emerging areas of public health, the climate action that is needed, protection of biodiversity and digital regulation. When future governments representing future generations wish to legislate, this Government is choosing to add a new risk level to that law-making: it is the risk it might come with an unknown price tag attached and the risk that you might get sued.

The language of CETA - which, again, is not all that is being opened up here - is this: "When applying the ... fair and equitable treatment obligation, the Tribunal may take into account whether a Party made specific representation to an investor to induce a covered investment, that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain the ... investment, but that the Party subsequently frustrated." This says that when the new tribunals - namely, the ICS - or the old tribunals under the old rules are weighing up and considering whether a company is entitled to compensation because of unfair and inequitable treatment, they will look to say, "Did you ask them to invest? Did you encourage them to invest?" These are things we should be doing but we are adding a risk that encouraging or asking them to invest, seeking to induce investments, creating expectations and then changing the law in a way that frustrates the expectation of profit the company had at the time it was invited to invest creates a vulnerability to that company taking and potentially winning cases for unfair and inequitable treatment. Parliamentary questions were put as to whether that vulnerability had been identified, properly considered and weighed up by Departments and I have received nothing about that. What we were told was a regulatory impact assessment had been done - full stop.

Going back to the core question of the material impact on the capacity of states to legislate or regulate in the public interest, it is not just that we have a vulnerability to cases being taken. There is the chilling effect we have heard about. There are multiple examples. We have given them again and again, including Vermilion, a Canadian company with strong interests in Ireland which took a case and diluted French climate law. These arbitration bodies are designed to chill laws. It is not an unfortunate side effect. CETA Article 8.39(3) states: "For the calculation of monetary damages, the Tribunal shall also reduce the damages to take into account any ... repeal or modification of the measure." If you repeal or modify the law, then we reduce the amount you have to pay. There could not be a clearer application of pressure against states. A state that is taken to court and has, as was said by Senator Conway, an award of hundreds of millions or possibly billions made against it, can get that bill reduced if it repeals the law, modifies the law or does what the corporations would like it to do.

That is a direct invitation to the compromising of the material capacity of the State to legislate and regulate, driven by the public interest, because it will come into a frame where there is the public interest on the one hand but then, on the other, there is the cost, the fact of that bill and whether we can get our bill from the corporation reduced. This is why it is a fundamental piece that we would, in terms of the enforcement of these awards, put in a break, so that where we see that it will materially impair the capacity of the State to legislate or regulate in the public interest, where we see that impact happening, and where the Irish courts, which, unlike these arbitration tribunals, can and do take into account international law, European law, environmental law, case precedence, constitutional precedent, the public interest and the full balance, see a public interest concern in the enforcement of an award, we would ask why we should have to support it. If the Minister of State does not believe there will be cases that impact on the State's capacity to legislate or regulate in the public interest, there is no reason not to put this in. If the Minister of State chooses to reject this amendment, he is choosing to reject a safeguard that literally says we do not want to see these awards being enforced when it compromises the State's capacities in terms of legislating in the public interest where it has a negative effect, where it has a chilling effect or where, even in the cost of an enforcement, for example, it maybe diminishes our Exchequer and affects our capacity to do other important things that we may wish to do.

Amendment No. 5 is clear in that these are the other really important things we sign up to. When the Minister of State talked about pooling our sovereignties and all of that, these are the things we have signed up to but they are not things that these arbitration bodies consider binding upon them. They are not under an obligation to say that you want compensation but the Convention on Biological Diversity says this and the Paris Agreement says that. They are not obligations in terms of the determining of awards. Certainly, arbitration bodies have been clear that they do not regard them as limiting on them. The 2030 Agenda for Sustainable Development, for example, the Aarhus Convention, the International Covenant on Economic, Social and Cultural Rights, the conventions on the International Labour Organization and the Convention on Biological Diversity are really important because these are examples of the high points of our collective pooling of what we want for humanity and for how we live together in our countries and on this planet, but the teeth are not being given to these conventions or to their applications. The real teeth are being applied in relation to corporations and their entitlement to compensation. How many times have we raised concerns about the Aarhus Convention and concerns in terms of our Paris targets, which the Government seemed to be just accepting the fact that the 2030 agenda for sustainable development, which Ireland at a better moment in our history helped to negotiate, are not being met? At the same time, it can fail on those standards but the stick is being given to the corporations. The power is being given to the corporations and those who have the power to inflict monetary injury on the State take precedence over these international agreements which are actually the key to our collective future here on this planet.

On amendment No. 6, it is important to reaffirm, and the Minister of State has had it reaffirmed, that by tying us into this system, even with this pretend non-enforcement clause, this fig leaf, which Senator McDowell and others have said will not effectively work and which is almost designed not to work, we are tying ourselves in to the idea whereby we are choosing to give away the power to issue awards against us to a new quasi-legal body, a new arbitration tribunal. We are choosing to surrender the sovereignty of our own courts and saying that we give it the power to issue fines on us, to penalise us and to create awards which we may or may not then enforce, but we know that they will be enforced. In any case, we are also tying ourselves into a system which Ireland had largely managed to avoid, with the exception of the Energy Charter Treaty, which has had a chilling effect on legislation, which Ireland has been sued under and which countries all left because of the damage that it caused. We are tying ourselves into a system and not learning from all those examples I have listed: of South Africa, of Australia, of Canada and America, of Mexico, and of all of those countries right across the global south who have said "Never again" on investor courts or arbitration tribunals. We are choosing not to learn from that past but instead to tie ourselves into a system, which, by the way, is not limited to the investment court system, ICS, and this is in the Bill, which is explicitly clear. It is any arbitration. It says any trade deal that contains an arbitration mechanism. We are choosing to tie ourselves into that, and it can be enforced elsewhere, and we have seen that happen. That is not a hypothetical. I mentioned the Villa Spada. The Minister of State rolled his eyes. No, that is what has actually happened. That is what happened to Spain.

The Vienna Convention.

Spain has had the Instituto Cervantes, in respect of which a case was taken in London to take possession of it. It has had its air traffic control business and cases taken to seek possession of that in Brussels. There are multiple examples of the enforcement of awards in foreign jurisdictions against national assets. Ireland is a country which has national assets spread right across the world. They are also being jeopardised in relation to choosing to make ourselves vulnerable in this way, taking the bird in the hand which we have in relation to trade, which is progressing, and the fact that, increasingly, there is huge pressure for future deals not to include these investor clauses and adding our weight to the movement against the inclusion of investor clauses, and instead, sacrificing here and making vulnerable or risking that bird in the hand for something which builds on the legacy of vultures in terms of how corporations have used these clauses and mechanisms.

At the outset, I will briefly return to first principles, because they are not as obvious as some make out, and the reasons behind this legislation. The Arbitration (Amendment) Bill seeks to put Ireland, a country which so greatly benefits from international trade, into a position where we can ratify the range of EU trade and investment agreements that we massively benefit from as an EU member state. It is not the case of international capital taking money from Ireland. If you look at our tax returns, it is the case of international capital investing money in Ireland, which can be seen in our tax returns and in some of the stories that were published this week. Ireland massively benefits from this and it is very much in our national interest to support trade agreements.

The EU-Canada trade agreement has been scrutinised rigorously, including as part of this legislation, but at length in other forums too, including in the Oireachtas, over the past ten years. Free trade benefits the Irish economy, and while it has been said, flippantly in some ways, that we all agree with free trade, that is actually not the case at the global international level at present. Free trade is under significant pressure. The economic system that has delivered massive investment and massive tax receipts into this country is under severe pressure because there are people out there who do not want free trade. There is quite a train of thought in the US, not only at the presidential level, that does not agree with free trade. In Ireland, we can demonstrate unequivocally that free trade has benefited this country and we should be always sending a signal that we are open to investment from business, because that has what has generated wealth in this country. It is a time of global turbulence. It is an important signal for Ireland to seek to ratify trade agreements with Canada, Chile and Mexico, which provide Irish companies and exporters with new opportunities to expand and grow trade overseas. It is not only about investment here. It is about those Irish companies going abroad as well. Our trade and investment relationship with Canada is deep and growing, with over €12 billion in trade.

I am convinced this will continue fantastically well.

I am conscious of claims made that we should not be concerned with ratifying CETA, as the parts that provide for trading are provisionally applied. Provisional application is an important mechanism that allows companies and consumers to benefit from a trade agreement at an early stage, but if the agreement is not ratified or if anyone rejects it, it falls, as do the trade parts; those benefits to the Irish economy fall. We saw the global reaction - I will not say "panic" - when President Trump imposed tariffs. We all knew of the impact that could have on our economy, our jobs and our tax receipts. When we are opening for trade, we should also be conscious of that.

I am also conscious there are political differences, and that some people do not believe in the free market economy. However, the fact of the matter is the free market economy, with all its flaws, is what has provided wealth to unprecedented numbers of people. If we look back to the 1970s when we really did not have any trade agreements, and when we look at the type of accommodation my parents lived in when they were young, we are a world away from that and from our pre-trade days.

When I look at the Acting Chairperson's area in Galway East and the impact of some international trade there, I often cite the Valeo factory in Tuam, which has approximately 1,000 people working there. It is part of the global motor industry, serving every market except, I think, China. Every single market in the world is done from Tuam, and it can only do that because we are part of the European Union, which negotiates trade agreements-----

Dexcom.

Dexcom. There are many examples in Galway, but also in all our of constituencies. These did not land on us too frequently before we joined the European Union. Yes, there were examples - there were pioneers who invested in this country and Irish pioneers who invested abroad - but with trade agreements, that is always easier to do now.

On the subject of the investment dispute resolution, I have said it time and again that this is a brand new system. This is the investor court system, where many of the concerns raised here today about the ISDS system have been addressed because people recognised them and changed the system, but I do not hear that acknowledgement from the Opposition.

Senator Higgins spoke about civil society. I am one who stands up for civil society; I was on "The Tonight Show" one night against one of our right-wing politicians who was telling me about all these NGOs. I know all the work they do - good work around the world - and I am not one to throw at NGOs, but I have to say that I do not understand where Trócaire is coming from intervening in this debate on Ireland and Canada. It is entitled to. This is a democracy and I value its input, but I cannot understand it. It keeps referring to the ISDS system, which is the old system, and does not refer to the changes. I do not understand Trócaire's role in this debate. It has a role and is entitled to have one, and civil society is something I value, but I am also entitled to push back and say I do not think it is correct. Certainly, that should be said on the record.

Irish companies benefit from these provisions abroad and that is important to recognise. The Government is working to make the Irish economy more competitive and more resilient to economic shocks. We are working to protect, preserve and sustain our hard-won economic progress in the years ahead, and I reject any suggestions that because of this Bill, we will have another "citizens' assembly" on O'Connell Street like in 1916, which I think is an exact quote from the Senator. That is just the height of exaggeration.

On a point of order, that is not what I said and I ask the Minister of State to withdraw that remark. Apologies, I should be standing. It is not what I said. I am not calling for a 1916 rising. As a former member of Óglaigh na hÉireann, that is the last thing I would do. I ask the Minister of State to retract-----

I do not know what the reference to 1916 and a citizens' assembly on O'Connell Street was-----

I am sorry, I am speaking. I did not say what the Minister of State has just asserted and I ask him to retract what he said.

I am happy to accept the record of the debate here today.

I thank the Minister of State.

The decision handed down by the Supreme Court in the Costello case identified constitutional concerns that prevented the ratification of CETA, and that is Irish law. We accept what the Supreme Court has said; everybody in this House accepts that. However, we have heard in some of the debate people picking and choosing between the bits they like and do not like. The Government has no option but to take the decision of the court very seriously and to work, as we wanted to and as we committed to in the programme for Government, to implement and ratify the CETA trade agreement. We can only do that if we follow the suggested advice in the Costello case in the Supreme Court. That is the place where the Government is coming from, which is a reasonable one. We want to implement this, and the Supreme Court offers us a pathway. I cannot go around picking out paragraphs, clauses of judgments or dissenting judgments. We have to take the decision as a whole and that is what we have done with this legislation, as any reasonable person would see.

We have heard much about the right to regulate and I have addressed it many times. It is not that the issue of the right to regulate comes in at the enforcement of the award stage, which is what we are talking about here. With the detailed provisions in CETA, the interpretive instrument and even the European Court decision, there is so much law on the right to regulate. It is incredible. There is so much law on the side of what I am saying. It is very strong.

However, those provisions are not taking into account at the enforcement stage. Rather, they are taking into account in the ICS, which is even a step before. The system is already set up in such a way that this is a block at the very start of the process. The legislation we are dealing with here is the enforcement of an award. My contention is that such an award would not come if it interfered with the State's right to regulate.

The reality is the right to regulate would have to be considered by the investor court before an award is made. The right to regulate in the public interest is protected in these agreements. These provisions mean that the mere fact that the interests of an investor are adversely affected by measures taken to regulate in the public interest does not amount to a breach in the agreement. However, if there is an added element - and we would want this for Irish companies - for example, abusive treatment, manifest arbitrariness, targeted discrimination or some equivalent behaviour, then it is that added element that could bring a claim within the scope of the agreement's protections and, thus, potentially result in liability. In such cases where a violation has been found and an award has been granted, the tribunal order cannot order a change to a measure giving rise to the award, but the respondent party could choose to do so. That is in the interest of protecting the parties and their rights.

A lot has been said about inward investment to this country and attracting companies. There has been some suggestion that the IDA would put us in a position of liability if it said too much to a company coming into the country, but nothing could be further from the truth. IDA Ireland is Ireland's inward investment promotion agency and it does a fantastic job to attract and retain foreign direct investment, which means jobs in every constituency and county in this country. Our attractiveness to investment is based on a value proposition that includes access to the EU and those global markets that the EU adds to by negotiating trade agreements, a strong talent base - our people are brilliant, hopeful for their future and working hard - and a decades-long track record as a location to successfully implement complex investments.

In pursuit of its mandate, the IDA promotes Ireland's value proposition and provides client companies with financial supports through its grant programme as well as non-financial supports, which are very important. This is in addition to property solutions and the advance factories we all used to call for all the time and that still exist. The IDA does not commit to grant funding until all necessary approvals have been obtained and a grant agreement is in place.

The reference in Article 8.10.4 to legitimate expectations only protects expectations that are frustrated by a breach to the obligation of fair and equitable treatment, leading to the results set out in Article 8.10.2. However, the Government is clear that a mere exercise of the right to regulation in a given sector affecting all investments, regardless of origin, is not the frustration of a legitimate expectation by unfair or inequitable treatment. Indeed, in March of this year, the CETA joint committee specified that under Article 8.10.4, representations made to an investor may only be taken into account to the extent that they are relevant as a factor in determining a breach of fair and equitable treatment set out in Article 8.10.2.

Furthermore, Article 8.9.2 of CETA specifies that the mere fact that a party regulates, including through a modification to its laws, in a manner that 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 under this section. There was an added emphasis to this. If such regulation does not amount to a breach of an obligation, there is no compensation that goes with it.

The Supreme Court justices, in the Costello judgment, referenced the similarities between CETA and Irish law in this context. The Chief Justice said the standard of fair and equitable treatment is recognisable and normally amounts to matters which would undermine the validity and lawfulness of a measure as a matter of Irish law. Ms Justice Baker said that CETA also makes provisions for a claim by a disappointed investor under a general rubric of legitimate expectation. The parameters and limitations of the claim are broadly similar to those in Irish law. The Government is not anticipating taking steps and we are not feeling chilled in our wish to legislate. The Seanad should not feel chilled in its desire to legislate either. Many of these things are certainly not worrisome to the people.

I have already spoke about the Costello case; that is why we are here. The Bill sets out the response. The drafting, which amendments Nos. 4 and 5 seek to change here, has been very carefully considered. We have looked at the Supreme Court case. We have gone with what Mr. Justice Hogan is saying. We do not want to be overly prescriptive. In fact, he said he did not want to be overly prescriptive because the courts have powers too. Amendment No. 4 will introduce a new provision regarding the right to regulate in the public interest but I have outlined this is already contained within the agreement. It would not arise at the enforcement stage because it is already there before you get to an award. That is already there and it is not necessary to do this.

The agreements affirm that the parties preserve their right to regulate for public policy purposes. They clarify that measures that negatively affect an investor's expectations of profits are not sufficient. In any future case under an ICS - all of these ISDS cases are not relevant because this is a new system with new procedures and new ways of doing things - relevant arguments will be raised at consultation, mediation, tribunal and appeal stages in relation to the right to regulate, if it were to arise, which is way before we come to the provisions of this legislation, which is about the enforcement stage of an award. It is hard to see how these cases arise but let us pick a hypothetical case. It has already gone through all of that and all that is happening here in the legislation is the enforcement of the award. We are saying that the provisions of CETA are such that an award could not be made in any event that would affect our right to regulate.

On amendment No. 5, I recall that, as set out in the joint interpretive instrument, CETA includes commitment to co-operate on trade-related environmental issues of concern, such as climate change. In CETA, the EU, its member states and Canada have further agreed not to lower levels of environmental protection in order to encourage trader investment. We have agreed to work hard on the environment together and it is no surprise because we are like-minded countries. In the event, there is no question of the State not meeting its obligations under the agreements referenced in this amendment and the amendment is completely unnecessary. Therefore, I cannot accept amendments Nos. 4 and 5.

On amendment No. 6, I note that although the proposed amendment states "For the avoidance of doubt", it does not appear to reflect the current legal position in the Bill or the current law. As drafted, the amendment is unclear and refers to awards that were sought in a foreign jurisdiction or from an international body. The amendment may be designed to address forum shopping and this was identified as an issue in the previous system but the newer investor court system agreements have been designed to prevent forum shopping, subject to specific exceptions. If the investor decides to initiate proceedings under the ICS of the applicable agreement, they must withdraw or continue any existing proceedings before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in the claim. They must also waive their rights to initiate any claim or proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in the claim. This is one of the many improvements of the new ICS compared with the old system.

At the separate stage of enforcement, it may be the case that enforcement of the award is pursued in different jurisdictions - that can happen in all sorts of cases and not just under trade agreements - if the state against which the award has been made has assets in those jurisdictions. The Villa Spada, which has been referenced a number of times, would be protected under the Vienna Convention. Diplomatic property is immune from any court proceeding anywhere in the world so there is no question of any of our lovely embassies or residences being seized in any circumstances, unless the country was to breach the Vienna Convention. That will not arise. Enforcement could only be pursued in different jurisdictions to obtain full satisfaction of an award and not double-payment of an award. We cannot agree to amendment No. 6.

I have only been here for the very short time of a year but I am trying to get to grips with things. Sometimes, when people are talking, I ask myself what did they actually say. There were an awful lot of words there but I do not think the Minister of State addressed what we are looking for here today. On the capacity of the State being materially impaired to legislate or regulate in the public interest, we have really been trying to stress our point on that over and over and in different ways to get the Minister of State to answer it and he consistently does not answer it.

All I could pick up from what the Minister of State said in his response there on amendment No. 4 - about which we have been stressing about over and over and which is really what this comes down to - I have just written a note that the Minister of State said the judge asked us or warned us not to be overly prescriptive. I do not feel that is overly prescriptive at all. It is merely a mirror image of what the Government has written itself. The amendment mirrors what the Government drafted and the only significant change was in the proposed subsection(3)(c), which simply states that an award should not be enforceable where it would "materially impair the capacity of the State to legislate or regulate in the public interest". The Government is effectively exposing the country to arbitration courts. The Minister of State spoke in his response about trade. We are talking about arbitration courts here, not trade and jobs. Yes, the Minister of State says in his response there is €12 billion of trade with Canada. That €12 billion of trade is happening without this agreement. He still has not explained the need for this agreement as it is or the reason he is refusing to accept amendment No. 4.

On amendment No. 6, Senator Clonan brought up the socialisation of the debt and exposing Irish citizens and future generations to the financial risk. If there is one thing I have learned from just being a layperson, it is that we are constantly listening to how mistakes have been made. We are constantly being told about previous errors that governments were warned about but refused to listen to and there is a pattern and history of this. I know exactly what the Minister of State will say in a few years' time. He will say we were dealing with the best advice available to us. That will be too late. All we are asking the Minister of State to do is listen to proposed amendments that we see as protecting our sovereignty and our taxpayers against possible exposure to huge fines or penalties.

On the Trócaire point, Trócaire is speaking because it has seen the damage from arbitration tribunals up close. That is why it is speaking. I do not think the Minister of State has covered the chilling effect.

On this side of the House, we are all in agreement about the chilling effect caused. Whereas we can see it happening, the Minister of State has not pointed out that it is not. I ask him to accept amendment No. 4. It is not overly prescriptive, as he has said. It is fair and would endorse our sovereignty. The Government is focused on giving additional rights to corporations and not protecting the Irish taxpayers, who will eventually end up paying the bill because of the "best advice" that was available to us at the time. I sometimes go back up to my office and say I do not know what has been said in the Chamber. This is because an awful lot of it is bluster. I deal only in direct, clear language, and we have been very clear on this side about what is wanted. There has been a disingenuous approach to what we are asking for. Many times before, issues with legislation have cropped up that have been warned about. I ask the Minister of State to consider amendments Nos. 4 and 6.

An bhfuil an tAire Stáit ag teacht isteach arís? I think he has covered a lot of that.

I am more than happy to. If there were a problem with the right to regulate in the way the Senator has described, although I am saying there is not, I would not be dealing with it here because it would be way too late. You need to deal with it in CETA. The argument I am making is that, on the basis of the very text of CETA, the interpretive statement made and the decisions of the European Court of Justice and, indeed, the Supreme Court, nobody saw an issue with the right to regulate. This is because of the language used. If I agreed with the Senator that there were a chilling effect on regulation, I absolutely would not be addressing it here. I would have addressed it a few years ago when CETA was being negotiated, or I would not have proposed the ratification of CETA to the Oireachtas. I would not be waiting until we had a trade agreement. There are rules for investors, which are to protect Irish companies also, and there are lengthy procedures for dealing with them. In those procedures, we did not forget to refer to the right to regulate. Every t is crossed and every i is dotted as best we can. I would not be doing it-----

That is-----

Let us be honest: every time we sign up to an international agreement – the EU is the most famous example of them all – we share a little bit of our sovereignty. That was the issue in our Supreme Court. Why do we share sovereignty? We do so because we all get huge benefits from it. We become part of something bigger and our people benefit. If I agreed with the Senator – I do not, although I respect her arguments – I would absolutely not be doing now what she proposes because it would be too late. We have gone through the procedures. Luckily, we have dealt with the procedures in the negotiation of CETA. In the various documents that have arisen from that, we have dealt very comprehensively with the rights to legislate and regulate. I am representing the Government and we do not feel chilled about this in any way whatsoever, because the text is in black and white. I cannot put it any clearer. We keep hearing about cases from a different system, a different era. Mexico was referred to. Such an agreement would probably be ratified using this procedure here.

I cannot put my case any further. We do not envisage any impact on the right to regulate. I have quoted at length from the agreement on that.

I move amendment No. 6:

In page 4, between lines 19 and 20, to insert the following:

"(4) For the avoidance of doubt, awards under an international agreement referred to in subsection (1) shall not be enforceable or recognised in the State if such awards were sought in a foreign jurisdiction or an international body.".

I second the amendment.

Amendment No. 7 has been ruled out of order.

I move amendment No. 8:

In page 4, between lines 19 and 20, to insert the following:

“(4) Where an applicant is seeking leave from the High Court for enforcement of an award pursuant to an international agreement, the applicant shall demonstrate to the satisfaction of the High Court that the enforcement of that award shall not compromise—

(a) the constitutional order of the State,

(b) the fundamental principles of the constitutional order of the State,

or,

(c) the State’s obligation (reflected in Article 29.4.4 of the Constitution) to give effect to European Union law (including the Charter of Fundamental Rights and Freedoms) and to preserve its coherence and integrity.”.

I second the amendment.

Amendment No. 8 seeks to reverse the burden of proof, so that where an applicant is seeking leave from the High Court for enforcement of an award, the applicant would demonstrate that the enforcement of the award would not compromise the constitutional order of the State, the fundamental principles of the constitutional order of the State, or the State's obligation to give effect to European laws, including the Charter of Fundamental Rights and Freedoms. Rather than it being the case that the State would go to the High Court to say it does not wish to allow enforcement on an award, because it feels it is in breach of the constitutional order of the State or EU law, the obligation would be on the applicant, that is, the company seeking enforcement of an award. It would have to demonstrate that the enforcement of the award would not breach these factors and is not in breach of them. It is a shifting of the burden of proof. It would ensure that any enforcement in the State would at least have gone through some process of consideration by the High Court in which the question of the constitutional order and that of the EU would be weighed up.

As previously stated, the Government, with the help of the Attorney General, the legal advisers of the Department and my officials, whom I thank for their work, has carefully considered the Supreme Court's findings in the Costello case. I have said this repeatedly. Those findings encompass specific references to the constitutional order of the State. The Bill sets out the response to the Supreme Court judgment, including the specification of the grounds on which an award is not enforceable. We believe amendment No. 8 is unclear, unnecessary and somewhat duplicative as well. Our provision in the Bill closely follows the guidance of the Supreme Court. The procedure in relation to the new section 25A will follow the original, parent Act and the relevant rules of court. For these reasons, I am unable to agree to amendment No. 8.

How stands the amendment?

I am pressing it.

I move amendment No. 9:

In page 4, between lines 19 and 20, to insert the following:

“(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where that award was in relation to a public procurement decision made to ensure compliance with section 42 of Irish Human Rights and Equality Commission Act 2014.”.

I second the amendment.

Amendment No. 9 is the same point in respect of measures that are taken in relation to equality. In their public procurement decisions, the State and various bodies of the State, as public procurement falls within the remit of the CETA deal, have an obligation to ensure compliance with section 42 of the Human Rights and Equality Commission Act, in terms of a positive duty in respect of equality and human rights.

Where a policy or procurement decision is made, to ensure compliance with that duty on equality, such a decision should not be eligible for the enforcement of cases. It is just one specific example of the public interest. The Minister of State has still not really addressed the chilling effect and awards getting reduced if you change or modify the law - that text in CETA - and the question of where fair and equitable comes in. There is a concern not just in terms of the effect on laws but on other policy decisions of the State that may be seen not just as frustrating a reasonable expectation of profit but that they feel they have been unfairly or inequitably treated. They should never be able to make that claim in an instance where the decision was in terms of compliance with equality and they certainly should not be able to enforce such a claim. Equality measures have been the target of arbitration cases in the past. I mentioned those who sought compensation for the end of apartheid - companies saying that the end of apartheid messed up their expectations and they believed it unfair and inequitable to be treated in that way. It is a reasonable measure. I am not going to go into it at length because we do not have time but it is one example of a public interest matter.

We have debated these things at length. I am in the Seanad's hands on that. I keep looking back to documents, comments and statements. I looked at a statement issued by the EU and Canada following the fifth meeting of the CETA joint committee. A joint committee was established. To be honest, the Opposition could have written this themselves:

...the Joint Committee adopted the CETA 'Interpretation on Investment', to clarify elements of investment provisions under CETA, notably “fair and equitable treatment”, “indirect expropriation”, and “investment and climate change,” and ensuring the Parties can regulate to achieve legitimate policy objectives such as in the framework of climate, energy, and health policies.

I keep saying it. Honestly, you could have written it yourselves. I do not know how much more I can say to counteract the worries, fears and, I would say, the scaremongering from some - not all - that keep being put forward in this debate. We can debate this as long as the Seanad wants - it has 90 days under the Constitution to make its mind up, I suppose. This could not be clearer. What we are concerned about is the enforcement of awards. Nobody in the public policy space, on this side, wants our right to regulate to be chilled. We are not here on behalf of companies that are going to sue the State for billions of quid. We have specifically provided that cannot be allowed to happen. We are here for our voters, our citizens and our people. Whether one likes international investment and trade or not - I am a big supporter but I know not everybody is - undoubtedly they have provided prosperity to people in a way they did not enjoy in the seventies. This land of milk and honey - it was a different country then. We are far more prosperous by any measure now. In fact, we are building more houses than at any time since then. We keep saying it. The Opposition keeps saying that is not correct and contradicting the written evidence in so many documents, including the very foundational treaty itself. I cannot put the matter any further.

The text has not been addressed - the Minister of State read the interpretative agreement, which does not have a binding piece. Article 8.39(3) states, "For the calculation of monetary damages, the Tribunal shall ... reduce the damages to take into account ... repeal or modification of the measure." If you change or repeal the law, you will have less of a bill. If that is not a clear chilling effect, I do not know what is. The Minister of State also did not address "fair and equitable". I will press this amendment. We will have a chance to come back on other issues.

I move amendment No. 10:

In page 4, between lines 19 and 20, to insert the following:

“(4) The High Court shall have full discretion to refuse leave for enforcement of an award made pursuant to an international agreement to which this section applies where such enforcement would not be in the public interest.”.

I second the amendment.

I do not need to speak about the amendment at great length because it is a point that has been made. These are issues of the public interest. They are the concerns which have been expressed very strongly by all across the Opposition. They are very legitimate concerns. They are based on the evidence of every arbitration body that has ever existed, though the Minister of State reminds us that one of the arbitration bodies attached to the CETA is a new one even though of course there is potential for old rules to come in and for other forms of arbitration to be attached to other trade deals with this new mechanism. All the evidence of how this has panned out every time it has been done is that cases are taken against the public interest and the public interest is compromised. That is what we pointed to in the evidence. The risk the Government is taking - it is saying it is a new thing, we do not know how it is going to go but it thinks it is going to go great yet we are telling the Government this is how it has always gone. In every instance, this is how corporations have continuously used these tools again and again. There is text built into the supposed new regime that talks about diluting laws and repealing or modifying them to avoid the bill. The companies that take cases advertise the fact that you can get a country to change its laws without even having to win the case, by just the threat. That is how it is designed to work, and the fact that there has never been a case made that it is really needed because our courts work fine. It is a thing that is wanted by corporations which they added on because CETA started negotiations years ago when these were still in play. They are not adding very much but the Government is asking us to take a risk, just trust and not worry because it thinks it is going to be fine. This reminds me of when I brought my very first Private Members' Bill in 2016 on CETA and the Singapore agreement. The Government argued I was wrong but I was right. The European Court of Justice proved my analysis was correct. I said they were going to treat the trade bit and investor courts separately, that is what was going to happen and that is what did happen. Investor courts are treated separately. That is part of why we have this whole set of decisions. The Singapore ruling-----

The Singapore ruling stated - that is why all this talk about trade-----

That is not a scandal. That is not giving extra rights to people that are not in the treaties.

I literally do not know what the Minister of State is saying in that regard. The European Court of Justice Singapore ruling made it clear trade is the EU competency, that is what the Commission does, and the investment court component is a sovereign and separate decision. That is what was anticipated, that it would be treated separately in 2016. At that time, the Government was really confident that was not going to happen and it was wrong. The Government is very confident that somehow for the first time in history there will be an arbitration tribunal body that will never have an impact on the public interest despite decades of experience.

That is why Trócaire cares about it. That is why I care about it. I come from working with Comhlámh, which led on this when it saw the impact these kinds of agreements had on developing countries. I have worked on it for 15 years.

We had a discussion on this in 2016, during which I spoke to a Government Member who said if it was as bad as it seems we would not be doing it, but we are doing it so it must not be as bad as it seems. That was the end of the argument. It was a circle of an argument. That is kind of where we are now when it comes to the public interest. We are all saying that there is a risk to the public interest, and the evidence of decades shows that. The Minister of State said it is too late. It is not too late. He has provisional trading applying. He has acknowledged that there is no deadline or timeline that requires Ireland to move to full ratification. There is no pressure if there is no date in Europe.

Some countries provisionally ratified the Energy Charter Treaty for 20 years and were then able to exit it immediately, whereas the countries that fully ratified it had a 20-year zombie closed attached when they all tried to leave, having all thought it was going to be fine. The public interest concerns are very real. Simply saying it is new and we think the text will work better does not justify the taking of a risk. It is the choice of the Government to push this matter through at a time when there is no obligation and there are no trade benefits or issues with our national courts. That is risk-taking behaviour in the extreme. As I said, on the public interest point the Minister of State has not addressed the question of the repeal or modification of laws in order to reduce the bills. I would like if that could be addressed.

I respect Trócaire and Comhlámh. I still cannot understand why they would seek to insert themselves into this particular debate, which is between the EU and Canada, two of the most prosperous entities in the world. We have acknowledged that there were problems with the old system of ISDS and there problems in the Third World, which those organisations are right to highlight. To parlay that experience into an agreement between two capable actors on the world stage is not correct.

The investor court is a corporation; it is not actually an agreement.

The Senator said it is a new thing, there is too much risk and we do not know how it will work. The same could be said for every new thing. What do we do when we are introducing anything? We draft legislation. We cross the t's and dot the i's. We draft, create and craft the legislation to ensure it suits the needs that the Parliament wants to address. That is exactly what has been done with CETA. I have repeatedly stated here that the right to regulate is not impacted.

The Senator quoted from Article 8.39(3), but the provision is in keeping with the trend of limiting available remedies for investors. It is in line with the goal to preserve the regulatory space of states. What is envisaged is that where something that happens, which is in breach of CETA, such as deciding to seize the property only of Canadian companies, that would be modified. That is the modification we are talking about. We are not talking about what the Senator referred to, namely, that we would not be able to modify our laws under our right to regulate, which is part of who we are as a sovereign nation.

The Senator is conflating one thing with another. That is causing some confusion. There is no risk to the right to regulate. This is something that we can do. In fact, a huge amount of the right to regulate has been allocated to the European Union institutions and the European Union treaties and I do not hear a complaint about that because it works really well. We are not giving any right to regulate away in this particular operation. When we have done it in European Union treaties, it has been a massive benefit to Ireland to have common rules around the Single Market so that our companies can trade around Europe.

Due to the protections in this trade agreement, our companies can trade with Canada and create jobs. Our companies can go to Canada with assurance, protection and the knowledge that they will not be treated arbitrarily. That is needed. It does not affect the right of any province, government or municipality of Canada to bring in its own rules and regulations. Irish companies going to Canada know that.

The amendment proposes to assign an extremely broad discretion to the High Court regarding the enforcement of relevant awards. The Government has carefully considered the Supreme Court's findings in the Costello case. The Bill sets out the response, including the specification of the grounds on which awards may not be enforced in subsection (3). We looked to the Supreme Court, which is what one would expect a competent Government and Attorney General to do. We took the advice of the Attorney General and officials. We considered previous references to constitutional order in Irish case law, as well as addressing the enforcement of judgments of Irish courts.

Amendment No. 10 seeks to extend and expand on what has been carefully considered in order to produce a proper Bill. The Bill has been drafted to ensure compliance not just with the Constitution, but also the international obligations which Ireland will assume on ratification of the relevant agreements. Therefore, I cannot agree to this amendment.

I move amendment No. 11:

In page 4, to delete lines 20 to 23.

I second the amendment.

Amendment No. 12 has been ruled out of order. It was previously rejected in a Committee of the whole Seanad.

Amendment No. 13 arises out of committee proceedings. Amendments Nos. 13 and 14 are related. Amendment No. 14 is a physical amendment to amendment No. 13. Amendments Nos. 13 and 14 may be discussed together. Is that agreed? Agreed.

I move amendment No. 13:

In page 4, to delete lines 24 to 38 and substitute the following:

“(5) Subject to subsection (6) and (8), the Minister for Foreign Affairs and Trade may, after consultation with the Minister for Finance and the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, prepare an order to prescribe an international agreement as an agreement to which this section applies where—

(a) the State is,or intends to become, a party to the agreement,

(b) the agreement is wholly or partly concerned with the protection of investment, and

(c) the agreement provides for the making of awards pursuant to its investment dispute resolution provisions.

(6) Before making any order under subsection (5) the Minister for Foreign Affairs and Trade shall—

(a) after consultation with the Minister, The Minister for Finance and the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, prepare a detailed estimate of potential claims against the State arising from the agreement proposed to be prescribed, including based on the extent to which the State or public bodies have encouraged investors to invest in the State, and an associated statement,

(b) provide a copy of the estimate and the statement prepared under paragraph (a) to each of the Oireachtas Committees for each of the Ministers referred to in paragraph (a), and the Committees shall undertake such scrutiny of the proposed order as they shall determine, including hearing evidence directly from each of the Ministers referred to in paragraph (a), and the Committees shall make recommendations on the order and estimates accordingly for each of the Ministers to consider,

(c) each of the Ministers shall consider any of the recommendations from Committees arising from the scrutiny performed under paragraph (b), and the Minister for Foreign Affairs and Trade shall again consult the Minister, the Minister for Finance and the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation in light of the recommendations of the Committees, and

(d) following the further consultation in paragraph (c), maintain the order and associated estimates as prepared under paragraph (a) or amend them accordingly on foot of the recommendations arising from paragraph (b) and the consultations under paragraph (b).

(7) If the Minister still wishes to proceed with the making of the order, he or she shall lay the order before both Houses of the Oireachtas, as prepared or as amended consequent on subsection (6)(c), together with his or her reasons for accepting or rejecting any recommendations of the Committee under paragraph (b) of that subsection.

(8) No order shall be made under this subsection, unless a resolution approving the order and the associated estimates has been passed by both Houses of the Oireachtas, further to a debate in each such house of a duration no less than 3 hours.”.

I second the amendment.

This again comes back to the public interest and the responsibility that we have to the public. The amendment is an attempt to at least put some democratic guardrails on the process. It would modify the procedure by which the provisions of the Bill could apply to additional agreements. It would require that the Minister prepare a detailed estimate and statement on the potential cost exposure of the State arising from the prescription of any agreement under the Bill and would specify that such prescription must be agreed to by the passage of a resolution by both Houses of the Oireachtas. It seeks a minimum time of at least three hours for debates on the resolution of both Houses. It would also require inter-ministerial consultations and consultations with an Oireachtas committee in the process.

The powers being given to the Minister under this subsection are unjustifiable and we completely oppose it. We hope this amendment will put some democratic guardrails on the process and at least ensure that the elected Houses of the Oireachtas have a chance to discuss and debate this before we are signed up to the new investor court. That is the least we can do as politicians. I do not think it is a big ask. This would ensure that the Minister needs to examine closely the impacts of such a change. The Minister of State said earlier that it is too late but I do not think it is. This amendment would be the bare minimum and I hope he can accept it.

I do not think I need to clarify this but when I spoke about it being too late I meant that if I agreed with the Opposition it would be too late to do what it wants to do. We would have done that earlier. I did not mean it was too late in the context of this legislation. Amendment No. 13 proposes to delete the order-making powers, as drafted, and introducing a new onerous system for making orders, including replacing the negative resolution requirements with a positive resolution requirement.

Senators have raised questions about the order-making power. It might be of help to clarify the process that would be in place in relation to the ratification of international agreements, which this Bill does not do by the way, after the legislation enters into force. When Ireland intends to enter into a new international agreement, including agreements pertaining to investor dispute resolution provisions, an assessment is made as to whether any steps, including legislative steps, are required in order for Ireland to be in a position to give effect to the international obligations contained in that agreement. Where such steps are identified, they are taken before the ratification proceeds. This process is separate from the constitutional requirement for Dáil approval of international agreements that give rise to a charge on public funds. Ultimately, CETA will not come into force unless and until the Dáil approves it.

In the context of any further international agreements, which include investment dispute resolution provisions, orders pursuant to the new section 25A will be made as part of the standard steps required prior to ratification of such agreements. Pursuant to the new section 25A(6), any order made under the new legislation must be laid before both Houses of the Oireachtas and each House will have an opportunity to pass a resolution annulling the order. The Seanad has a role there. If such a resolution annulling the order was passed by either by either the Dáil or the Seanad within 21 days, the order would be annulled. If the relevant agreement involves the charge on public funds, a Dáil motion would separately be required before ratification. It has already been determined that this would be the case in relation to CETA and the EU agreement with Chile, which are two agreements that are listed in the Bill. We expect that other similar agreements are also likely to require Dáil motions and thus provide further opportunity for scrutiny, including at the relevant committee.

With the help of the Attorney General, the Government has carefully considered the Supreme Court's findings and this legislation sets out our response, including what are standard negative resolution provisions. The Government is of the view that this approach achieves the correct balance of legislative efficiency and parliamentary scrutiny. Secondary legislation must be consistent with and based on legislation adopted by the Oireachtas. If not, it can be overturned by the courts. The detailed and prescriptive approach specified in amendment No. 13 would make the process for making orders pursuant to this legislation closer to and in some cases more onerous even than new primary legislation. Therefore, I cannot agree to the amendment.

Regarding amendment No. 14, as explained previously, the provisions of the order-making power have been drafted in close consultation with the Office of the Attorney General. Sustainable development policies and objectives have been mainstreamed into all EU policies in accordance with the UN 2030 agenda and its 17 sustainable development goals, the Paris Agreement on climate change and other multilateral agreements for the protection of the environment and labour standards. These multilateral agreements and conventions have become the global framework for international co-operation and action on sustainable development and serve as a compass for sustainable development commitments in EU trade agreements as well. All modern EU trade agreements already include trade and sustainable development chapters. These require parties to make continuous and sustained efforts towards the effective implementation of multilateral environmental agreements that they have ratified, including the Paris Agreement and the Convention on Biological Diversity. In 2022, the Commission identified policy priorities and key action points which further enhance the effectiveness of the engagement-based approach to trade and sustainable development, grounded in the international framework and standards with stronger implementation and enforcement. In particular, this enhanced approach includes the use of trade sanctions for breaches of core trade and sustainable development provisions.

In addition to these environmental protections already contained in modern EU trade agreements, including CETA, in March of this year the CETA joint committee adopted the CETA interpretation on investment to clarify elements of investment provisions under CETA, notably investment and climate change. The parties reaffirmed their right to regulate within their territories to achieve legitimate policy objectives to protect the environment as set out in Article 8.9(1) of the agreement, including by taking measures to mitigate or combat climate change or to address its present or future consequences. When interpreting the provisions of chapter 8 investment of the agreement, the tribunal shall give due consideration to the commitments of the parties under multilateral environment agreements, including the Paris Agreement. In particular, the parties' rights and obligations under chapter 8 investment of the agreement should be interpreted in a manner that supports the ability of the parties to give effect to their respective commitments to reduce greenhouse gas emissions by adopting and maintaining measures designed and applied to mitigate or combat climate change or address its present or future consequences.

The matter has been covered in an extremely detailed fashion in the agreements already but, again, the more I read out, the less some Members believe what is actually written down in front of us. That is the unfortunate reality. I respect what everybody saying but I cannot agree to accept amendment No. 14.

The Minister of State speaks about climate measures when we are not adhering to the Paris Agreement and are very happy to actually be charged fines for not reducing climate emissions so I do not think his comment holds up at all. That is what this is looking for. It is just looking for extra scrutiny - inter-ministerial scrutiny - and I do not think it is unreasonable to put those safeguards on it. Using our climate is definitely not the best argument because this Government in particular is doing nothing for it and is actually happy to have fines rather than meet our climate targets.

The Minister of State is reading at length again from text that is around how the parties might behave within CETA but the key-----

That is what I have to do. I cannot make things up. I have to read what is written down and what we are voting on.

The key thing is that the corporations do not have to necessarily have this. We have seen a huge dilution of climate laws. The Minister of State quoted from CETA, which my amendment did not even relate to. My amendment related to new and other agreements. For example, the US has left the Paris Agreement. Will Europe negotiate a new trade deal with the US and will Ireland become party to arbitration measures under that if the US remains outside the Paris Agreement - "Yes" or "No"? Is that going to be part of it? Is it going to be there? We do not know.

This is the key point. We do not know the countries with which agreements may be made and we do not know what conditions may be attached to them but we do know that we will not even have the opportunity to waive pre-legislative scrutiny the next time this comes around. It will simply be a vote of the Dáil and that is going to be the decision - a Minister's proposal and a whipped vote of the Dáil - in relation to any future potential trade agreement with any kind of future arbitration agreement measures attached to it. There is absolutely no guarantee as to what they will be besides the Minister of State's hope for what it might be. Sadly, we have already seen a huge dilution of climate action over the past couple of years, which is a very worrying signal. We have not seen a strong and robust push back against the US in terms of it leaving of the Paris Agreement. In fact, we have said we will buy its LNG. We will buy its LNG, which is one of the most damaging fuels to the environment, produced in a country that has said it will not abide by the Paris Agreement. I would not be so confident and that is why I was looking to put in that safeguard so that, at a minimum, we would ensure that unknown future trade deals with unknown arbitration measures attached that the Minister may look to tie up by a single Dáil vote will only be with countries that are part of the Paris Agreement.

I have been criticised for reading from text but our laws are text. I have to read from text to make my points. I cannot make things up. I have to read what is written down in black and white. I am speaking on behalf of the Government.

It is irrelevant.

The text is highly relevant because I am quoting from documentation and from what we are voting on. I cannot just come in here and not read from text. We have to be very precise about what we are voting on. I am sorry that the Seanad does not have a vote on agreements that involve a charge on the State. That is the way the Constitution is written - for good reason actually because the Dáil holds the purse strings. That is just the way it is but the Seanad has a role because it has the power of annulment. There is a power of annulment in our Bill if we were to designate other agreements. That is there and it does give the Seanad a role and the Seanad can speak about trade agreements. I will happily come in and defend trade agreements at any point if the leaders ask me to do so.

However, we cannot change the Constitution. I have been a Member of this House and have huge respect for it, but that is just the way it is. The Dáil has this say because it is a directly elected House. That is why it has the power of the purse string in this particular context. However, the Seanad still has the right to annul if it does not like the fact that we designate an agreement. If we are talking about climate change, the question here is on the impact of this legislation on our climate obligations. It is a separate debate from what has been coming from much of the Opposition.

It includes potential future other agreements and arbitration measures. The legislation is not a bounded set. It opens it up to a new set. We are simply trying to put in a provision in relation to other future agreements.

I move amendment No. 14:

In page 4, between lines 27 and 28, to insert the following:

"(b) all States that are party to the agreement are also party to the Paris Agreement,".

I second the amendment.

Amendment No. 15 has been ruled out of order.

I move amendment No. 16:

In page 4, between lines 31 and 32, to insert the following:

"(6) For the avoidance of doubt, the provisions of this section shall not apply in respect of any international agreement referenced in subsection (1) if the State is no longer party to that agreement, regardless of any provisions within the aforementioned agreement.".

I second the amendment.

With this amendment, we are effectively looking to ensure that the provisions of the section would not apply to an international agreement if the State is no longer party to that agreement regardless of any provisions in the aforementioned agreement. This is with regard to what we learned from the Energy Charter Treaty. Some countries were able to exit it immediately because they provisionally applied it for decades. That is an option. When others exited, they were faced with a 20-year exit clause. Ireland was one of the last countries to exit the Energy Charter Treaty, up to four to five years after there had been calls for that exit. Ireland delayed and delayed and said we wanted to wait until the European Union as a whole left, which it did, and then Ireland waited another two years. This is relevant because when we look to what we want to achieve on climate by 2030 and 2040, we would be a lot further down the way of being out of the influence of the Energy Charter Treaty if we had acted earlier when the first warnings about an exit were given. Those warnings were given by the Opposition and were disregarded by the Government. Will the Minister of State confirm that the Energy Charter Treaty can be enforced? Does it fall in here? It is one that we have exited. If we sign up to another agreement and we exit it, and during the period of a zombie clause attempts are made to enforce it, will our High Court still allow the enforcement of an agreement we have left? How long does the finger of this last?

In the case of CETA, we know it will be extremely difficult for us to leave. We can choose to give power to the investor courts but once we have done so, we cannot exit on our own from the investor court component or other components. This is the high-stakes game the Government is entering us into. We would require all EU countries to agree simultaneously to exit and there would be a zombie clause. That is just for CETA, which is one of the agreements we are talking about. There are other arbitration tribunal systems and the other trade agreements that may come in under this legislation.

If the Bill is about enforcement, will the Minister of State, by accepting our amendment, ensure that the High Court is empowered to deny enforcement and state that there will not be enforcement of any order that is made in relation to an agreement which we have left? Will we be tied to the zombie clauses? What is the Government's position and perspective in relation to this? Will the Minister of State comment explicitly on the Energy Charter Treaty in relation to enforcement of it, as well as on the question of future enforcement?

I can only comment on the amendment at hand. The amendment speaks about the avoidance of doubt but does not appear to reflect the current legal position in the Bill or in current law. The proposed amendment appears to be an attempt to circumvent the withdrawal provisions and any applicable sunset clauses included in a relevant international agreement through domestic law. The Bill has been drafted to ensure compliance with the Constitution and the international obligations Ireland would assume upon ratification of the relevant agreements. The inclusion of this amendment would not be inclined to those obligations and, therefore, we cannot agree to it.

Senator Higgins has argued that Ireland should not ratify CETA and other similar agreements because in her view the route for potential withdrawal from such agreements in future is not acceptable. In the first instance, I must stress that we have no intention of withdrawing from CETA. There have been ten great years for ordinary working people in this country whose incomes have increased and for businesses. We are working with the legislation to meet all of the domestic requirements in order to be in a position to allow us to go with a proposal to the Government and then to the Dáil to ratify the CETA agreement. In spite of this, it is the case that if the EU and EU member states, including Ireland, come to the conclusion that circumstances arise in the case of CETA or a similar agreement whereby they should withdraw for whatever reason, and it would be really bad news for Ireland if that happened, the agreements include provision for termination.

We have collectively agreed it through the democratic process at EU level. I see the Labour Party criticising this but it was in government when this was negotiated. I do not put any bad faith on them at that time.

We never supported the investor courts.

I know the way these things work. The Labour Party had a trade Ministry for a period of that Government, and trade Ministers would have been regularly informed by the Commission negotiators as to how the negotiations were going. This happens all the time in relation to trade agreements.

We never supported the investor courts.

I can say this for a fact. We are constantly updated. The Minister, Deputy McEntee, was on the phone yesterday with the Commissioner, Mr. Šefčovič, about the various trade agreements he was negotiating on our behalf, and this would absolutely have been the case when the Labour Party was in government when this was being negotiated.

We never supported investor courts.

The Minister of State without interruption.

We have agreed together at EU level to have a trade and investment agreement with Canada. Therefore, it makes absolute sense that it would be a collective decision to terminate it. I cannot envisage circumstances in which we would want to end the agreement. In the case of Ireland alone, we have seen bilateral trade in goods and services increase from €3.2 billion in 2016 to more than €12 billion in 2024. This supports thousands of jobs. I hear all of these allegations that there is going to be billions of euro worth of liability. Nobody talks about the billions, specifically €12 billion in 2024, in trade in goods and services; it is a case of that being grand and it just happens. It does not just happen, actually. It happens because of the entrepreneurial skills of Irish people and Canadians, and because politicians have negotiated trade agreements. All trade agreements and all international agreements involve some level of compromise. There is give and take but the point of that give and take is that everyone benefits in the end. I really believe this is the case with CETA and the other trade agreements the European Union has entered into and from which we get huge benefit.

The Minister of State did not answer my question on the Energy Charter Treaty.

I am not here to discuss that.

The Minister of State is, given the language in the Bill.

The Minister of State talks about ten great years. Those are the ten great years of provisional application, which we have already had, which we are already applying and which are currently being gambled by the addition of an investor court component. I say that just to be clear. The Minister of State talked a lot about all of those issues but in his Bill he is not talking about that. It is stated that the Minister may, after consultation, prescribe an international agreement as an agreement to which the section applies. This is the section which states:

For the avoidance of doubt, it is hereby declared that an award made by a body empowered to make awards pursuant to an international agreement to which this section applies is not, and never was, enforceable in the State if enforcing the award would compromise—

(a) the constitutional order of the State, or

(b) the autonomy of the legal order of the European Union.

The Minister of State was saying that awards are not and never were enforceable in the State if enforcing them would compromise the constitutional order of the State or the autonomy of the legal order of the European Union. He also allows for the widening of this to future agreements. I am just asking does that apply to the Energy Charter Treaty? Is it the case that awards in the Energy Charter Treaty were never enforceable if they compromised the Constitution or EU law? The experience we have of arbitration bodies is solely through the energy treaty. It is a very relevant example. Is it the case that there never was, or not? We know cases are being taken against Ireland on the Energy Charter Treaty. We know the Minister failed to deny the fact that the Energy Charter Treaty had influence and had been a factor when making and considering laws. I refer to that chilling effect we have talked about in the past. That is our experience. That is the relevant, happening-right-now experience Ireland has and I wish to know where that fits within this High Court piece. Does the High Court enforce or not enforce orders made under the Energy Charter Treaty, which Ireland has exited?

All I will say is that the experience with investment dispute resolutions to date has been raised. Our experience of the entirety of what the Opposition is talking about is extremely limited. We were previously party to one bilateral investment treaty, which was with Czechia. That lapsed when it joined the European Union. The Senator mentioned the Energy Charter Treaty. We deposited notice of withdrawal from the Energy Charter Treaty with the Energy Charter Secretariat. That is well known. Regarding this legislation, as required by CETA and the other new EU agreements, execution of awards will be governed by the laws concerning the execution of judgments or awards enforcing Ireland. The provisions of section 25A codify Irish law in that regard.

What the Minister of State said was "never". If he was saying it was never the case that an international agreement that was out of line with the Constitution or EU law could be enforceable, does that "was never" period apply to the Energy Charter Treaty or not?

I have let Senator Higgins in twice already-----

I just wanted that answer in relation to that specific issue.

We are codifying the law. In the Supreme Court it was said that if an enforcement was in breach of the constitutional order of the State then it would not be enforceable and therefore, with this legislation we are simply codifying that. That is what we want to achieve here.

Amendment No. 17 arises out of committee proceedings. Amendments Nos. 18 and 19 are physical alternatives to amendment No. 17. Amendment No. 19 a physical alternative to amendment No. 18. Amendments Nos. 17 to 19, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 17:

In page 4, to delete lines 32 to 38 and substitute the following:

“(6) An order made by the Minister for Foreign Affairs and Trade under subsection (5) shall only have legal effect once approved by resolutions of both Houses of the Oireachtas and either House of the Oireachtas may move a resolution to revoke such an order and such revocation shall take a place upon agreement of the other House of the Oireachtas by resolution.”.”.

I second it.

Amendment No. 17 seeks to delete section 25A(6) and replace it with a provision that every order made by the Minister for Foreign Affairs and Trade under subsection (5) shall only have legal effect following approval of both Houses of the Oireachtas. This provision would replace the option for the Oireachtas to scrutinise orders made with an active requirement that such scrutiny would take place. It is unacceptable that there would not be a proper debate and the provisions as currently worded give extraordinary power to any future Minister or any future Government to prescribe agreements. When this was raised in the other House, TDs were told that the Government provision is standard legislation. There is nothing standard about the power that Government is seeking to give itself here, and this is about whether the State will enforce potentially huge lawsuits against itself for seeking to regulate in the public interest.

I will speak to amendment No. 19 as well. Amendment No. 19 seeks to amend section 25A(6) to remove the time limit on the ability of the Oireachtas to annul an order made by the Minister for Foreign Affairs and Trade under subsection (5) to include a new international agreement within the scope of this Bill. Again, I fully expect the Minister of State to stand up here and say that this is standard practice but I reiterate that there is nothing standard about this legislation and the Oireachtas, in the absence of a positive requirement to scrutinise, should not be timebound in such scrutiny.

Does any other Member wish to comment? No.

Senator Andrews is ascribing this dramatic power to the Government that we can just sign up to an international agreement, it will destroy the country and mean we will be sued until we have no money left in this country, and that we can do this without going back to the Seanad. We cannot do that. I think the Senator knows that. Coming forward with these fantastical ideas that somehow, what we are trying to do is some secret way to bankrupt the country because of some agreement that we reach-----

That is what will happen, or could happen.

This legislation is very straightforward. There was a Supreme Court decision, which said ratification of CETA was unconstitutional. However, the Supreme Court said there was something that could be done if the Government wished to and that would make it constitutional. That is all we are doing here. That is exactly what we are doing. The legislation has been very carefully drafted with the assistance of the Attorney General based on the Supreme Court decision. The Opposition completely ignores the fact that totally separate to this legislation, which essentially classifies certain international agreements as being under the Arbitration Act, we cannot enter into any international agreement that causes a charge on public funds without going to the Dáil; the elected representatives of the people. We cannot do anything unless the Dáil agrees. There is this idea that somehow this can be all done and dusted and the Seanad does not have a role. That is the Constitution's fault and the fault of nobody else. The Constitution says the Dáil must decide whether the Government can enter into agreements or not. First of all, the EU will negotiate the agreement. We have to vote then at EU level, as does the European Parliament, to see this agreement come into operation. That is a democratic process. We saw that play out in the Mercosur agreement where we voted against the agreement. We can vote for or against these things. Then we have to put an order in here. The Dáil has the power to annul the order. The Seanad has the power to annul the order. We then have to go in to the Dáil and ask it to ratify this and agree to support this, if it requires national ratification, which this particular one does. They will not all need national ratification if they are done at EU level. There are so many steps along the way in the democratic process. The description Sinn Féin is giving it simply does not stand up to the facts. There are so many democratic steps on this way. All we are trying to do is add another one, which gives the Seanad the power to annul an order that we, the Government, would choose to make under this, in the same way it has powers to annul orders on all pieces of legislation.

Again, the Opposition seems to be making the point that this is somehow unique or dastardly on the Government's part but they are the exact same annulment provisions which, by the way, the Seanad never uses. I never see the Opposition putting forward a motion for annulment. Senator Mark Daly did so once and we almost were successful in that, but it never happens so it is hugely theoretical. We believe the approach we have adopted here achieves the correct balance of legislative efficiency and parliamentary scrutiny and therefore we cannot agree.

I have already set out the position on amendment No. 19. Introducing this amendment would mean any such order could be annulled at any time without thinking of the consequences that would affect the people and the consequences for our ratification of the agreement. There must be certainty regarding the commitments we enter into internationally, hence the need for a timebound annulment procedure, which is pretty standard. We therefore believe the standard negative resolution in the Bill achieves the correct balance.

Of course we want certainty with all of this. Of course we want certainty with CETA. Of course we want to ratify it and see the EU ratify it. Why? Because there are people the length and breadth of this country who are employed by companies that are trading with Canada or by Canadian companies operating here and they contribute to the €12 billion generated here by that trade. People get jobs and they get prosperity but the Opposition simply want to, I suggest, remove this because of unfounded fears about legislation and unfounded fears about international negotiations which go against the very text of the agreements. I have been criticised for quoting the text because it is uncomfortable for people to hear what is actually written in these agreements and in the interpretative statements because the text goes completely against the Opposition's arguments, which are simply fantastical.

We have benefited hugely from the trade agreement with Canada and we must continue to make the case for trade. Why are there 2.7 million people working in the country when there were 1 million people working in the economy in 1973 when we joined the EU? It is mostly down to trade. It is mostly down to the fact that we can sell to the world. We make way more products and services than we can possibly consume as a country. How then do we generate money to come into the country? We have to sell products, manufacture products, provide services and sell them to the world. You cannot do that unless you have trade agreements. It is really tricky because there are tariffs and there is uncertainty in some countries, which companies will not like to deal with because they do not know what will happen with their investments. That is what this is about. It is very simple. It is not the end of the world.

As I said, with CETA it has been ten excellent years. We have Prime Minister Carney coming this week and I am sure he will get a really good welcome. We need to tell people that this is a trade agreement between the democratic member states of the European Union, which have agreed this democratically, and Canada. These are two of the best allies and friends in the world. We have cousins, friendships and business connections. Why does the Opposition only see the bad in this? If we take the steps-----

We are discussing the relevant part, which is the investor courts, not the trade component.

If we take the steps-----

I am sorry, Senators. The Minister of State-----

I am just-----

But the point is-----

We are hearing a lecture about trade-----

But it all comes back to this.

-----when we are discussing arbitration.

It is about a trade agreement. That is why I am talking about trade.

But 90% of the trade agreement is happening already.

Senators, the Minister of State, please.

I know but it is just-----

If we do not ratify this trade agreement - this legislation is needed for us to ratify it - the thing collapses. That is in the regulatory impact assessment.

What about the nine other countries?

If the thing collapses, all those jobs - not just in Ireland but across the EU - that depend on trade with Canada could be lost. I am sorry it is not fashionable to talk about the fact that we need international agreements that have some elements of compromise and an element of sharing of sovereignty, but they bring huge benefits to us all. The EU itself is the classic example of all that.

The Supreme Court has given us guidance as to how to do this in a constitutional way. The Government is obliged to examine and take very seriously what the Supreme Court says and we have done that and done it really carefully. Anybody who reads the Supreme Court decision of Mr. Justice Hogan and then reads this legislation will see that the Government is trying to implement this constitutionally. That is all we are trying to do, because we have seen the benefits. I hope we will succeed. I hope the Seanad will support this and I hope the Dáil will support further trade agreements that require us to ratify them because we know that when we have trade agreements we benefit hugely from them. It is about time we started talking about the benefits of these trade agreements. That is how our employment is in this country. We have taxation coming in that is entirely dependent on international trade. There are not enough people on this island just to sell to ourselves and so we decided to branch out, first into the European Union and then around the world. Look at our factories. Eli Lilly in Kinsale produces the whole world's supply of Mounjaro. The botox factory in Westport produces the whole world's supply. We would not have enough people to use these products in Ireland so we are selling to the world. We cannot do that without trade agreements and this trade agreement does it with Canada. It has investor protection clauses in it and items the Opposition questions but the overall benefit is to the greater good of all the people of the country.

Trade is complicated. Negotiations are tricky. Legal texts have to be read and studied very carefully. I will not take criticism for quoting the text of the agreements we are signing up to, because that is what anyone would expect all of us to do. I was criticised for that because it did not conform to the established views of the Opposition, but the benefits-----

I think the established view is that that is hilarious.

No, the benefits are huge. I was criticised for reading the text.

I thank the Minister of State.

I welcome the guests of Deputy Callaghan. You very welcome and I hope you enjoy your visit to the Seanad. Also, from Herbert Road we have TCD law students who are guests of Senator McCarthy. You are also welcome. Enjoy your visit to the Seanad and Leinster House.

They could be like me. I am a graduate of the law school.

Yes. That is very exciting.

They probably would not want to be.

They would have to read texts too.

I move amendment No. 18:

In page 4, to delete lines 32 to 38.

I second the amendment.

I move amendment No. 19:

In page 4, lines 35 and 36, to delete “within the next 21 days on which that House sits after the order is laid before it”.

I second the amendment.

Amendments Nos. 20 and 21, in the names of Senators Andrews, Collins, McCormack, Murphy, Ryan and Tully, have been ruled out of order.

I move amendment No. 22:

In page 4, after line 38, to insert the following:

“Report on compliance with EU law and CETA

5. The Minister shall, within 12 months of the passing of this Act and in consultation with the Minister for Foreign Affairs and Trade, lay a report before both Houses of the Oireachtas evaluating this Act’s compliance with the Treaties of the European Union and CETA itself, and in particular shall examine—

(a) whether the provisions of section 25A of the Principal Act conflict with the duty of sincere cooperation in Article 4(3) of the Treaty on European Union; and

(b) whether the provisions of section 25A of the Principal Act conflict with CETA itself.”.

I second the amendment.

This amendment seeks to address the issues raised in a previous amendment regarding the legal compatibility of the Bill with the EU treaties, especially Article 4(3) of the Treaty on European Union, and with CETA itself. Has the Minister of State spoken to the Commission about this legislation? Has he spoken to Council colleagues from member states that have ratified CETA and would therefore be subject to an entirely different process than is envisaged in the agreement?

Every time we have had a referendum, Sinn Féin has campaigned against the very principle outlined in the treaties of the European Union so I do not understand why this has suddenly become a big issue. I have to question the good faith of this amendment. Everything we do is in accordance with the legal advice of the Attorney General, who is more conscious than most of our obligations under EU law. Again, those obligations are massively to our benefit, contrary to the line Sinn Féin has peddled over 50 years of opposition to the European Union.

The Minister of State did not answer the question I asked about whether he has spoken to the Commission about this legislation or to Council colleagues from member states that have already ratified CETA and would therefore be subject to an entirely different process. I ask him to answer that question now.

Enforcement is a matter for each member state and we are doing that here in our legislation.

So, the Minister of State has not spoken to them.

As it is now 8 p.m., I am required to put the following question in accordance with the Order of the Seanad of this day: "That amendment No. 22 is hereby negatived; Fourth Stage is hereby completed and the Bill is hereby received for final consideration and the Bill is hereby passed."

May I ask the Acting Leader when is it proposed to sit again?

Tomorrow at 10.30 a.m.

Is that agreed? Agreed.