Gerald Nash (Louth, Labour) | Oireachtas source

I am glad we are finally getting around to having a debate on this topic. At the outset, I state that the Labour Party supports withdrawing from the ECT. This is one of those rare instances in which the Government and the Opposition are, broadly speaking, in agreement, though we may disagree on the mechanics, so to speak, regarding how we get there. We in the Labour Party have numerous concerns regarding the ECT. Our environmental concerns are perhaps the most straightforward.

Put simply, as others have done, the ECT, as the Minister said himself, is incompatible with our climate goals. It is incompatible with the Paris Agreement. How can we expect to reach our targets and make real progress on dealing with the climate emergency if we, effectively, hand fossil fuel companies a gun to place at our heads if we take actions, as we should be doing, that might affect their investments? Of course, that is what the ISDS mechanism provided for in the treaty is and does. It is a weapon these companies can and do use to protect their corporate commercial interests to the detriment of everybody else.

We have seen a German company sue the Netherlands for €1.4 billion because of that country's decision to phase out coal by 2030. Slovenia has been hit with a €500 million lawsuit by a fracking company after banning the practice. Italy, the first country to withdraw from the ECT in 2015, has been taken to the tune of €240 million by a British oil and gas company, thanks to the treaty’s sunset clause, after it banned offshore oil drilling. All these measures taken by those states were the correct decisions. They were good steps towards meeting the ambitions of the Paris accords. There were also democratic steps. Yet these countries have been punished for taking them because the ECT, by definition, places fossil fuel investor protection above climate protection. The treaty, as the Minister outlined earlier regarding its history and context did deal with the needs of the day, but it is now in direct conflict with the needs of our day and our tomorrow; that is, the urgent need for us to take drastic action on climate change. We cannot have companies that profit off climate destruction using the ISDS-style provisions contained in the ECT to threaten countries from taking the vital actions we need. Indeed, we have already had the pleasure of being on the receiving end of one of those threats from an oil and gas company after the Minister, correctly I might add, refused to allow further exploration at the Barryroe oil field.

As the Minister outlined as well, I know the Government's position has been to work in tandem with the EU on a co-ordinated withdrawal of member states, and it is welcome that the EU has announced its intention to, effectively, do that. However, I fail to see the logic in the Government’s position, even in the terms in which the Minister set it out today. It seems to me we are seeing another example of the Government waiting and seeing. This has been a common trend. I refer to the Government divesting itself of responsibility and effectively subcontracting decisions to the EU that could just as easily be made domestically.

I do not see the point in waiting for the EU to move when the end result is going to be exactly the same. It is just a case of kicking the can down the road. Germany, France, Slovenia, the Netherlands, Luxembourg, Spain and Poland have already announced their intention to withdraw unilaterally. Italy, as I have mentioned, withdrew years ago. There is nothing to stop us from doing the same, outside of the political will.

That brings me to my second point, namely, the legal aspect of all of this. I am uncomfortable, to say the least, with the idea of a company being able to sue a state via a court that lacks democratic oversight. These are effectively private tribunals that operate beyond the reach of ordinary domestic or European law. We thankfully have a functioning and, crucially, independent domestic courts system and the separation of powers that we cherish ensures that. There is also, of course, the European Court of Justice. We have strong, well-established, fair and equitable judicial and courts systems in this country. Why would we side-line our own legal system in the interest of protecting the fossil fuel industry? It is effectively diminishing the powers of those courts.

It is worth noting that the ISDS mechanism allows for claims to be made by companies either through arbitration or through the host state’s courts. Most companies choose arbitration through private tribunal. That is quite telling. It is also telling that the ECJ has ruled that the treaty cannot be used in intra-EU disputes because the process undermines the role of EU courts. Of course, the Washington Convention provides that the investor court decisions are enforceable in any country where the state has assets. To my mind, that simply underscores the need for us to remove ourselves from this treaty sooner rather than later.

Ultimately, there is an anti-democratic element to this that should be of concern to all of us. Not only does the ISDS mechanism undermine the rule of law, as I have already said, but it undermines the legislative process. To think a company should be compensated for the State acting progressively and for the common good, in other words, operating under our democratic mandate, is objectively ludicrous. We need to be able to produce legislation that will deal with the climate crisis unimpeded. Indeed, all countries do. We need to be able to continue to do that. We cannot afford to have governments watering down positive climate action out of fear of being sued by private interests - interests that are doing direct damage to our environment.

I am going to quote the Minister. Earlier this year, he said, "The Government continues to reserve the option of supporting a co-ordinated withdrawal from the treaty if it is not modernised to align with the Paris Agreement, does not address our concerns, or does not support the international effort to decarbonise electricity systems and promote more renewable energy." That is still his position. Negotiations to modernise the treaty have failed and on the points that have been the subject of negotiations, where we are at at the moment, the conditions the Minister has set out have not been addressed. I urge the Minister and the Government to push forward on what the Labour Party proposes, and on which there is a general consensus here, at least on the Opposition benches, which is to push forward on a unilateral withdrawal from the ECT. Others have done it. I do not believe there is any point in waiting.

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