Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I thank the Senator for this amendment, which also formed part of the debate on Committee Stage in the House. I appreciate that the Senator's intention is, primarily at least, to attempt to ensure that State funds are not invested by the NTMA in occupied territories, including the occupied Palestinian territories or Western Sahara and, where they are invested, that the NTMA would divest from such investments.

Further to the debate on Committee Stage, I raise a number of points in response to this amendment. The Senator's amendment proposes to define "occupied territory" within the meaning of the Fourth Geneva Convention. The Senator also proposes a second criterion, that the territory's status as an occupied territory be confirmed by the International Court of Justice, the International Criminal Court or any other international tribunal or be "designated as such for the purposes of this Act or any other enactment in a regulation made by the Minister" for Finance. The four Geneva conventions and their additional protocols set out a considerable amount of the core of international humanitarian law. The conventions are significant documents in themselves and I would not be able to replicate their detail here. On the proposed criteria, in developing and determining legislation, it is essential that any provisions are constitutional and can withstand challenge. I understand that the protocols have been adopted in domestic legislation. However, there is a distinction between adopting the protocols in national law and using the Fourth Geneva Convention as a basis for determining or defining an occupied territory as a basis for investment decisions by a State entity. Defining "occupied territory" would therefore need significant thought to ensure the definition was legally sound.

As the Senator will be aware, discussion is ongoing on the Illegal Israeli Settlements Divestment Bill 2023. When contributing to pre-legislative scrutiny, Department officials outlined a number of issues with the proposed Private Members' Bill. In particular, one of the issues identified was creating a reliance on a definition determined by an external legal instrument and including it in domestic law. In making law in the State, the Oireachtas has sole and exclusive authority under Article 15.2 of the Constitution. I point to the potential issue of providing an automatic legislative standing to a decision made outside the State, which has not been agreed by the Oireachtas and can be changed by such an external source without further consideration by the Oireachtas.

My final point relates to investment policy and strategies of each of the funds. The Bill introduces a new legislative requirement on the NTMA. In the management and investment of the resources of the two funds and the ISIF, the NTMA will be required to have regard to environmental, social and governance risks and this is given statutory recognition the Bill. The proposed framework will allow the flexibility to address investment or divestment in a way that primary legislation on individual environmental, social or governance issues does not. These can include issues such as an appropriate stance on human rights issues.

The Senator will be aware of the actions taken by the State in respect of the terrible scenes we are witnessing in Gaza at the moment, including the diplomatic efforts of the State and the recent recognition by the State of the State of Palestine. I note the Senator's intention in proposing the use of the Fourth Geneva Convention to define "occupied territory" and I welcome the suggestion. As I said, there are significant legal and policy challenges with adopting legislation on occupied territories in this manner. Further legal and policy work is needed. Therefore, I cannot accept this amendment this afternoon.