Ratification of EU-Canada trade deal is unconstitutional, Supreme Court rules
Patrick Costello's case centred on the provision of investor protection and the establishment of an investment court system. File photo: Gareth Chaney/Collins
The Irish Constitution precludes the Government and Dáil Éireann from ratifying the EU-Canada Comprehensive Economic and Trade Agreement (Ceta) deal, the majority of the Supreme Court has ruled.
Seven Supreme Court judges issued individual judgments in the appeal, which was livestreamed on Friday, with many diverging findings regarding elements of the appeal brought by Green Party TD Patrick Costello.
It will set aside the order of the High Court, which had dismissed Mr Costello’s case against the Government of Ireland, Ireland and the Attorney General.
A four-to-three majority of judges held that the Constitution precludes ratification as Irish law now stands. A six-to-one majority held that certain amendments of the Arbitration Act, 2010, would, if effected, permit ratification without breaching the Constitution.
The court was told during the March hearing that “sovereignty” was at the heart of the appeal, with the Dublin South Central TD expressing concerns about the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states.
It was submitted the State cannot authorise the treaty “without the mandate of the people”, by way of a referendum.
Last year, Ms Justice Nuala Butler dismissed the Dublin South Central TD’s case, satisfied he had not proved the ratification of the 2016 Ceta deal in the manner proposed would be “clearly unconstitutional”.
Mr Costello’s case focused on Chapter 8 of Ceta, which provides for investor protection and the establishment of an investment court system aimed at resolving disputes between investors and EU member states.
If ratified, a code of rules will come into force under which Ireland will be bound by restrictions relating to the establishment of investments by Canadian investors here.
He claimed the capacity of these tribunals in deciding complaints by Canadians who invest in Ireland involves an unconstitutional transfer of sovereignty and national judicial power.
During the hearing, his counsel, John Rogers SC with Eileen Barrington SC, instructed by FP Logue LLP, said this was the “most important” case the court would hear this year regarding the constitutional rule of law in the State.
The State parties argued Ceta was an international treaty governed by international law and does not constitute the making of law by this State.
Ceta is primarily a trade treaty designed to reduce tariffs and increase trade between the EU and Canada. It came into force provisionally in 2017, but all national parliaments in EU countries need to ratify the deal before it can take full effect.
The judgments were delivered by the Chief Justice Donal O’Donnell, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Marie Baker, Mr Justice Gerard Hogan and Ms Justice Ann Power.
Mr Costello called it "a significant moment in protecting the integrity of our courts system and our constitution".
He said: “This has been an extremely lengthy process which began last year when Cabinet signalled their intention to ratify Ceta by way of an Oireachtas vote. Since then, we have had a High Court ruling and this appeal to the Supreme Court. I want to thank my legal team for representing me so ably, my family for their encouragement and my supporters for their well wishes.”
Reflecting on the result he continued: “This is an extremely important ruling. We were required to have a referendum to establish the Court of Appeal, to sign up for the International Criminal Court and will need one to establish a new patent court. Today’s ruling states that such a process would be required to establish the Investor Court System which is provided for under Ceta”.
“Now that the Supreme Court has decided a referendum is required to ratify Ceta it is up to the Cabinet to decide the timing of when such a referendum will be. I look forward to a vigorous campaign”.
Reacting to the Supreme Court decision, Social Democrats TD Jennifer Whitmore said the result is an indictment of the government’s attempt to ram the deal through the Dáil after a 55-minute debate.
Speaking on Friday, she said: “I welcome the decision of the Supreme Court today that ratification of CETA would be unconstitutional. This is a hugely significant decision - and a vindication for those who had serious concerns about the government’s attempts to ram ratification of this deal through the Dáil.
"It is worth recalling that the Government previously attempted to rush through ratification of this hugely complex deal after just a 55-minute Dáil debate in December 2020. That cynical effort only failed because it prompted such a huge public outcry, she said.
“I hope this important decision will prompt some reflection on the government benches and a re-examination of the long-term consequences of introducing ICS as part of this deal,” Ms Whitmore added.
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