Micheál Martin (Cork South Central, Fianna Fail)
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That is essentially what you have asked me to do. I moved it on Second Stage. However, substantive changes are always made to Bills on Committee Stage or changes can be made. I cannot ram a Bill through that is unconstitutional. There is an obligation on us all, if we are serious about this, because this will be challenged. This could go right to the European courts, and the least we could do is produce a Bill that would be robust enough to navigate such a potential journey. That is the point. Therefore, we do have to amend it. We have to take due care to amend it.

I have already mentioned the constitutional issue in terms of the power of the Minister to make regulations. That can be amended. I am not saying it cannot be amended, but it has to be amended, because it is incompatible with the Constitution at the moment. Regulation-making powers in legislation must be framed by principles and policies set down in the Act itself. In that way, a Minister, in making regulations, is merely giving effect to the principles and policies established by the Oireachtas and not making law himself or herself. The Bill has to be changed to accommodate that. While it may be possible to develop principles and policies for this regulation-making power in the Bill, the creation of such a power would amount to the exercise of an exclusive Union competence and so on in the field of trade, and would be contrary to EU law, even if it might otherwise be consistent with the Constitution.

There are a lot of issues we have to go through here, namely, the definitions in section 2 of the Bill, the offences created by sections 6 to 9, inclusive, and the corresponding defences in section 11. They all need careful review. In their present form, these provisions are imprecise and lack the necessary legal certainty, a view that was also reached by the select committee's detailed scrutiny of the Bill. Additionally, significant legal and practical issues arising from the proposed extraterritorial application of the Bill will require careful consideration. It can be done. We are satisfied, we are going to do it and we will progress this, but it is not something that can be done in a short space of time because it will involve advices. The advice is not from my Department. The advice in terms of all legislation, as the Deputy knows, is the Attorney General's advice. The Government of the day has to be bound by the advices of the Attorney General. The Attorney General has not changed the advice. It is important to make that point. The Attorney General's advice on exclusive competence over trade policy by the EU stays as per the previous advices from previous Attorneys General. The advice on the unconstitutional elements of the Bill is still consistent. The issue is that the ICJ advisory opinion opens up a pathway. We need to strengthen the Bill and make it more robust to deal with any potential challenges that may come its way, potentially from the European Commission itself or from an EU member state that may want to challenge it.

Some commentary was made in respect of Europe. Europe is not unanimous on the question of the Middle East. There are many historic reasons that is the case. Deputy Carthy made this point.