Alice-Mary Higgins (Independent) | Oireachtas source

I thank the Cathaoirleach for selecting this issue and the Minister of State for attending to address the many concerns regarding the proposed Comprehensive Economic and Trade Agreement, CETA, between Canada and the EU. CETA will apply to an unprecedented number of public contracts, including at local level, which will have implications for the policy space in those contracts or services. The European regulatory council will have a mandate to privilege the least burdensome option in respect of regulation, which has the potential to undermine present and future regulations over, for example, environment, employment and employment issues. This concern has been highlighted by ICTU, environmental lobby groups, Trócaire and many health organisations. CETA was negotiated prior to Brexit and the removal of the UK's large market from the EU could see Canadian beef exports redirected into other countries like ours, which would have a serious economic impact.

However, my focus is on the Constitution. Will the Minister of State assure the House that, when he or another member of the Government attends the Council of Ministers meeting in October, the Government will not sign up to the provisional application of CETA and will instead uphold Article 29.5.2o of the Constitution, which reads: "The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann"?

Let us be clear in that CETA will involve a charge on public funds. It would bring into effect for the first time in Ireland investor-state dispute settlement courts, which could allow corporations to sue the State for the potential loss, not only of present profits, but of future ones. In other countries where such courts already operate, many of the settlements sought have run into billions in national currency. The ultimate blank cheque, it could speedily deplete the Government's proposed rainy day fund.

In response to parliamentary questions, the Minister has stated that such trade agreements are not part of domestic law, which is why separate adjudication arrangements are required. However, any law that is applied within our State must be tested for compatibility with our laws and to ensure that they are not repugnant to the Constitution. Has the Minister spoken with the Attorney General in this regard? Is the Minister comfortable with a situation in which Irish companies would work under Irish domestic law while international companies would have recourse to a new and different mechanism, which would be a particular advantage for them? The current position held by the EU Commission in this regard is somewhat contradictory. In recognition of the political situation, it has agreed to treat CETA as a mixed agreement that requires the approval of the European Parliament and national parliaments. At the same time, it wants signing and provisional application to go ahead in advance of the securing of political approval from the various parliaments. It has reserved the legal opinion that the EU Commission has exclusive competence and has said it will wait to see the outcome of a case being taken in respect of the EU-Singapore deal at present.

In the circumstances I have outlined, would it not be prudent for other member states and the Irish Government to wait to see the results of that court case, which are due next year, before any provisional application is signed? This has been recommended by many legal experts, including those from ClientEarth. Given that a court case on the constitutionality of CETA was recently launched in Germany, and in light of the widespread and growing calls for a case on the overall compatibility of investor-state dispute settlement mechanisms with EU law to be taken to the European Court of Justice, is it not inappropriate to move ahead when so many cases are pending?

This is not a case of trade as usual. The EU Commission has marked this as a milestone. It has been suggested that as the most ambitious trade agreement ever, this marks the beginning of a new generation of such agreements. If we are in a new and experimental space, in which we are trying out a new generation of trade agreements, does it not behove us to test them fully against our legal and parliamentary systems? What signal does it send to the EU population, at a time of growing and dangerous disillusionment with the rule of law and politics, if states and EU bodies choose to bypass the legal and parliamentary processes to short-circuit matters in respect of this particular trade agreement?