Green TD: Legal advice suggests Ceta is unconstitutional

Patrick Costello said he has taken the action as an individual citizen and it is a personal action. Picture: Gareth Chaney/Collins

The Green Party TD who lodged a High Court challenge against the Government says there is legal opinion that the Comprehensive Economic Trade Agreement (Ceta) is unconstitutional.

Dublin South Central TD Patrick Costello lodged the proceedings on Monday over whether a referendum would be needed on the controversial trade deal.

The below explains why I (as an individual) lodged proceedings to seek clarification on who gets to ratify #CETA. It is essential we as TDs understand if our votes are constitutional if we were to ratify the treaty in the Dáil. Only the courts can give a definitive answer. pic.twitter.com/6FK5EKtlx4

— Patrick Costello TD (@Costellop) March 3, 2021

Climate campaigners say Ceta would hamper efforts to tackle the climate emergency because a mechanism within the deal, the Investor Court System (ICS) allows for multinational companies to sue a state for damages if it introduces new laws or policies that the company thinks will reduce its future profits.

In a statement released to the Irish Examiner on Wednesday, Mr Costello said: "I had sought the opinion of counsel on the ratification process, in particular the Investor Court System (ICS) element of Ceta which will come into effect if ratified.

"The ICS involves a transfer of sovereignty and of judicial power incompatible with the Constitution.

"It is the opinion of counsel that there is a good statable case that the ratification of Ceta, and in particular the ratification of the ICS without a referendum, would be contrary to Article 15 and Article 34 of the Constitution.

Only the courts can give us complete certainty on that question.

He said he has taken the action as an individual citizen and it is a personal action.

"Investor courts as seen in other jurisdictions are hugely problematic since they allow for the governments to be directly sued by companies outside of existing legal systems.

"While there might be different views on this question of does Ceta need a referendum, the only place we can get a definitive answer is the courts."

It is understood Mr Costello told his parliamentary party, including the leadership, on Monday evening, who were said to be "realistic" about the news as "it was already a done deal," one source said, but reportedly thanked Mr Costello for telling them. 

It's understood party leader Eamon Ryan told the Taoiseach on Monday shortly after he found out. Green Party members received a statement from Mr Costello on Wednesday morning.

The Ceta deal has been a bone of contention within the Green Party for months, with TDs Neasa Hourigan and Mr Costello steadfast that they would not be voting for the deal, against which the Green Party had previously campaigned.

The Green Party parliamentary party met last night to discuss the issue and it's understood there is frustration from some TDs and senators about the legal challenge and quiet support from others, including senator Vincent Martin, who congratulated Mr Costello on the move.

Sources say that an argument began at the parliamentary party meeting that Fine Gael may now not support the climate bill and fixed carbon targets because of the court challenge, which others disputed.

Sources add the party is now "trying to distance itself" from Mr Costello's action and may prevent him from updating members on it.

The note says: "It is the right of any individual to take such a case.

"The Green Party has sought to deal with this issue through the political system. The matter has been referred to an Oireachtas Committee."

The vote on the deal has already been postponed once from its initial date in 2020 when it became clear that Green Party leader Eamon Ryan would not be able to get all of his TDs to pass the Bill.

Those in favour of passing Ceta note there is a commitment in the programme for government to support trade deals, and there is an expectation that Ceta should be ratified within that remit.