Ciarán Cannon (Galway East, Fine Gael) | Oireachtas source

The Tánaiste and Minister for Foreign Affairs and Trade has made clear in numerous Seanad debates that the Government respects absolutely the motives and the intentions of the proponents and supporters of the Bill. We reject attempts made in other jurisdictions to demonise people who sincerely support this political approach and we will continue to do so.

There are few foreign policy matters on which Ireland has been more consistently active than the Israel-Palestine conflict, and I share the major frustration expressed today because of the absence of movement to end the occupation of the Palestinian territory. Settlements and the unjust and destructive policies associated with them are at the centre of this matter, and the Government is absolutely seized of the issue. We know we are most effective when we work with others to maximise our impact rather than going it alone. We have been active and instrumental in achieving EU policies to differentiate settlements from Israel and, nationally, Ireland has highlighted Israeli settlement policies, including in the Tánaiste's address to the United Nations General Assembly last September and the United Nations Human Rights Council.

On a practical level we provide support to Israeli, Palestinian and international non-governmental organisations, NGOs, that defend Palestinian communities under threat from settlements. Irish and European Union representatives have visited communities under threat and have attended court hearings of their cases. During his first visit to the region as Minister for Foreign Affairs and Trade 18 months ago, the Tánaiste signed Ireland up to the West Bank Protection Consortium, a group of countries working together to defend Palestinians under pressure in area C. The Government remains very focused on the settlement issue. However, the Government cannot support this Bill and must oppose it for the reasons set out in detail by the Tánaiste.

The crucial overriding argument is the incompatibility with EU law. It is our clear legal advice, in line with the view held by successive Ministers and Governments on precisely this matter, that Ireland would be in breach of EU law if it enacted the type of measures contained in the Bill. The Tánaiste has set out why Ireland would be exposed to legal challenge not only from the European Commission but also from secular interests or injured parties like traders in another EU member state who hold settlement goods legitimately present inside the EU market and who wish to sell them here.

As the Tánaiste briefly alluded to, in addition to the EU aspect, the Attorney General has identified other legal difficulties with the Bill, including the use of ministerial regulations to extend the scope of the Bill by designating further occupied territories without recourse to the Oireachtas, which is contrary to Article 15.2 of the Constitution. The Bill provides for extra-territorial application, and as a matter of international and constitutional law, there are limits on the extent to which extraterritorial jurisdiction can be exercised. There are difficulties in how the criminal offences are structured and defined, and this may give rise to constitutional difficulties with respect to legal certainty and capability of enforcement. For example, the definition of "settlement services" is very unclear and may be unenforceable. The essential problem with EU law is, however, fundamental to the purpose of the Bill, and even if solutions could be found to the constitutional issues we have flagged, that central matter would remain.

I will respond to a number of points raised by Deputies in the debate. Deputy Crowe asked if we would consider publishing the Government's legal advice from the Attorney General. That advice is very clear and it has been summarised by the Tánaiste. All Deputies know it is a general principle of Government in aspects wider than this issue that the Attorney General's advice would not be published, and we cannot get into an argument of competing lawyers. The Government takes the advice of its legal adviser, the Attorney General. Many Deputies referred to private legal opinions, arguing there are provisions in international or EU law under which we are entitled to enact this Bill. It is not for me or the Tánaiste to engage in detailed legal arguments today, but I am clear that the Government has seen but is not convinced by these opinions. The proponents of this Bill have, understandably, set out to build the test case that they can for their policy objective, which in this case is a ban on settlement goods. On the other hand, the Government must weigh the legal arguments on both sides and determine the expected outcome. Previous case law of the European Court of Justice has demonstrated that it will not allow the term "public policy" to be interpreted broadly. Consequently, this exception could not be relied on to defend the Bill.

Deputies Howlin and Eamon Ryan asked why we would not give this a try and lead the way. They asked why, if there is at least an argument to be made that the Bill is compatible with EU law, would it not be attempted to see what happens. That is the language of protest and not government. No Government would choose to adopt a policy that it considers in breach of EU law. It would not only expose Ireland to legal challenge, significant financial penalty and humiliating reversal-----

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