Mr. Conor O'Neill:

I extend a sincere and genuine thanks to the Chair, the committee and the Tánaiste for facilitating what may be a slightly unusual session. It is a very good opportunity, from our perspective, if an election is called in a couple of days, to try to set the record as straight as we can possibly get it at this point. This is so that in the context of an election campaign, some of the issues that have been raised can be put on the parliamentary record and discussed, and we can try to bring as much clarity as we can. We are very grateful for the opportunity to be here. I also sincerely thank Senator Black. A big, wide and vibrant network of academics, activists and civil society organisations have supported and contributed to the Bill. Mr. Liston and I are glad to get the opportunity to speak to some of the more technical or legal points that have been raised.

I will talk about three things specifically: the question of the amendments; the provisions of the Bill that deal with services; and the prospect of a legal challenge and what that might mean. On the question of amendments, and Deputy Gannon raised this, it is important to say that many of the questions that have been raised are not new. They were in fact identified and raised by the very helpful and detailed pre-legislative scrutiny that the committee did in 2019. Mr. Liston and I, and a broad range of academics and lawyers from a number of Irish universities, disagree on the fundamental EU law question. That has been very well ventilated over a number of years. We engaged with some of the issues raised in good faith and took a lot of time to try to begin work on potential amendments that could strengthen those provisions and protect the Bill from legal challenge. We very much recognise that.

We never got a chance to advance any of that draft text or amendments because the money message was not provided and the Bill did not come to the committee.

On some of the issues being raised today, it is important to say work has been done. We, along with the officials in the Department and the political parties, have been aware of them since at least 2019. In that respect, many of the amendments that have been discussed here and previously are not enormously challenging. It is a question of trying to put in the necessary time. We absolutely do not want to rush to get wording that the various Government Departments, the sponsoring Senators, the Government and the officials are happy with.

One of the issues raised is the scope of the Bill. When we worked with Senators initially on the research for and the drafting of the Bill, we did it deliberately so that it could potentially be universal in its application and could apply to any occupied territory anywhere in the world, if there were support from within the Oireachtas and clarity from international courts or other legal bodies. We still believe that that principle is correct and important because, whether it is the parts of Ukraine that are occupied by Russia, which we have already implemented measures like this in relation to, and rightly so, or Western Sahara, which the Tánaiste mentioned, we believe that the same standard should apply. We set out in detail previously why we believe that such a ban would be permissible under EU law. Having said that, we have heard the presentation from the Government and the legal officials. I agree with the remarks of the Chair about the Attorney General's advice.

In the course of the debate on this Bill, we have published or shared formal legal opinion or advice from Professor Panos Koutrakos and Professor Takis Tridimas, two experts in legal law, Senator Michael McDowell, a former Attorney General, the late Professor James Crawford, a former judge of the ICJ, Mr. Michael Lynn, a senior counsel in Ireland, Dr. John Reynolds, an academic in Maynooth University, and Dr. Tom Moerenhout, an academic who works with Dr. Reynolds across EU level. We have been doing that a little bit in the dark, trying to set forward our position on the EU law question without having sight of the specifics of the Attorney General's opinion. Any work that could be done to put the new advice and information in front of this committee and in the public realm would be really welcome.

In setting those advices out, we are cognisant of the fact that what has been raised is that it seems the new advice hinges primarily and the ICJ advisory opinion delivered in July. If the Government's intention is to as closely as possible give effect to the ICJ advisory opinion, then the intention would be to redraft the scope of the Bill to apply specifically to the occupied Palestinian territories as was done regarding Russian imports previously. If that was done, the main constitutional arguments that have also been raised would, by default, cease to apply. For example, one of the most significant constitutional questions raised in 2019 and again today relates to sections 3 and 4 of the Bill and the delegation of power by the Oireachtas to a Minister or an international court, which is necessary under the Bill as drafted to designate a territory as occupied for the purposes of the Act and the limits that are set by Article 15.2 of the Constitution. For the avoidance of doubt, we believe the Bill as drafted is consistent with the approach to the non-delegation doctrine set out by the Supreme Court in Cityview Press. However, the relevant definitions and the delegation of power would not be necessary if the Bill is redrafted as the Government has suggested to apply specifically to the OPT. Some of the other constitutional questions that have been raised, for example, the precision in the offences and the addition of extra defences in section 11 or 12, are really a question of an important but limited amount of legal work across Departments to land on appropriate language. I am encouraged to hear that is progressing.

We would have a direct ask, in good faith, of every member of this committee and of the Government. The Parliament will empty over the next few weeks, over the month of November, for the election. Perhaps in December, we will be talking about negotiating a new programme for Government. That gives us two months to do that work, so that when a new Dáil is formed and a new Government takes office in January, we have a set of primarily technical amendments that can strengthen and improve the Bill that could be handed to a new Government and then obviously it is its prerogative to accept and table them in conjunction with the sponsoring Senators. That is the first and primary ask we have and it is encouraging to hear there seems to be agreement on it.

My second point is in relation to services, which is a question Deputy Carthy raised and it is crucially important. When we look at what the ICJ said in the advisory opinion of 19 July, when the ICJ talks about trade that means trade in physical goods and services. That is how trade is always understood within this Parliament and basically every facet of the Irish system. When the CSO, for example, sets out Ireland’s annual trade statistics, or our trade balance with another country, that is the value of all physical goods and services imported or exported over a particular period. That should not be controversial in the slightest but we want to put it on the record and it might just be a case of loose language at various times but any suggestion that giving effect to our obligations, as clarified by the ICJ, would involve just a ban on physical goods and not on services would be completely wrong. The ICJ was clear that states are obliged to prohibit trade. Any distinction between physical goods on the one hand and services on the other would be arbitrary both politically and legally. That was the approach rightly taken on the prohibition of certain economic activity, both trade in goods and services and investment as regards to the Ukrainian territory occupied by Russia. Mr. Liston will speak more about the question of investment.