Seats and CETA: the Irish Government’s Supreme headache

Patrick Costello’s win means we now know what the Government can’t do. But we don’t know: what will it do now?

In politics we talk so much about ‘the constitution’ that we often overlook what that word means - and thinking more deeply about it forces us to think about what a constitution actually does.

The Irish word ‘bunreacht’ gives a better essence of what a constitution really does: it offers a foundation. The simple explanation is that a constitution establishes a State. People and nations exist in nature, and are moulded by each other, but the legal idea of a ‘country’ exists only if there’s some document that makes clear that a country has been constituted. Ireland, the country, is established by the Constitution, drafted on behalf of - and then accepted at referendum by - the people of Ireland.

If you think of it through that lens, we ought to hold the Constitution in a little more reverence than we do - and that we should treat referendums as a national question not just of how the country should run, but who we are ourselves. If the State is a reflection of its people, then a referendum to amend the Constitution is a chance to redefine ourselves; to make a loud declaration about who we are and what we stand for. That feeling might be apparent if you’re standing in the courtyard of Dublin Castle in May 2015, or May 2018, but it’s not one we feel much otherwise.

All of which is to say that, given what we now know about the events of December 2020, we ought to be concerned that we came within an hour of that constitution being fundamentally ignored - and that we should be grateful to Patrick Costello TD for securing the verdict of the Supreme Court that it would have been unconstitutional for the Dáil to ratify CETA, the EU-Canada trade deal, as it currently stands.

The Cabinet signed off on that deal in November 2020 (though, as you’ll come to see, even the meaning of ‘sign off’ is contested - did it mean asking the Dáil to ratify it, or did it mean executive endorsement?) and was originally planned to be rushed through the Dáil and Seanad in the weeks before Christmas 2020.

Contentiously, though, the Government only planned to schedule 50 minutes of debate before proposing to get Dáil sign-off - and it was only the concerns about this rushed job that saw the Government agree to send the deal for more scrutiny in the Oireachtas’ Foreign Affairs Committee.

If the alarm bells had not already been ringing by that point, the committee should have sounded them. As with all Oireachtas committees, the Foreign Affairs Committee has a government majority - what a government wants, a government gets. But when it came to signing off on its report on CETA, the 14-member committee  was deadlocked at 7-7. Frances Noel Duffy TD was content to approve the treaty; Senator Vincent P Martin (his own brother-in-law) was not.

Deadlock was possible there because the government whip didn’t apply - a government won’t collapse simply because an Oireachtas committee is unable to issue a report. But the split among the Green members was an illustration of the division within that party. There is, frankly, no universal understanding of what the Greens’ policy actually is.

The Government’s policy is a little easier to distill. The Programme for Government makes clear that the coalition will support new EU trade deals. But what is a ‘new’ deal? The trade elements of CETA have been in place since 2017, so is CETA ‘new’?

The Greens’ official stance is even harder to establish. In 2016 party members adopted a motion committing to rejecting CETA outright because of its “Investment Court System” (ICS). They feared that creating an investor court would give Canadian investors the right to sue Ireland if it introduced any new law which impaired their ability to do business.

But in 2017 the EU and Canada signed a ‘joint interpretative instrument’ (yes, I know this terminology is tough going, bear with me) clarifying their common understanding that nothing in the deal should stop either jurisdiction legislating in the common good, “such as the protection and promotion of public health, social services, public education, safety, the environment, public morals, social or consumer protection, privacy and data protection and the promotion and protection of cultural diversity”. Based on that, European courts said there’s no threat to the likes of Ireland.

Some pro-CETA-leaning Greens believe this renders the 2016 policy moot. Even if it didn’t, there’s also an argument that CETA wasn’t mentioned in the Greens’ 2020 manifesto, and an inference that the party policy is superseded by the Programme for Government anyway.

Anyway. We now know, thanks to a 4-3 majority at the Supreme Court, that it would be unconstitutional for the deal to be ratified as it stands. It’s definitely a curiosity that the Court also believes the deal could go through without a constitutional amendment (6-1; Peter Charleton in dissent) but that’s one for legal scholars to mull over. The boiled-down version of the ruling is that ratifying the deal today would be an intolerable infringement on the freedom of our court system, but amendments to the Arbitration Act of 2010 might be an adequate workaround.

Patrick Costello and his wife Hazel Chu review the Supreme Court’s ruling outside the Four Courts last Friday.

What will be fascinating now is the internal moods inside the coalition, a month out from the rotation of power to Leo Varadkar - a move which simultaneously puts him in supreme command of the government, yet also removes him from the enterprise role most affected by CETA’s provisions.

Varadkar curiously told the Fine Gael PP last night that Ireland would have to “consult colleagues and international partners” about whether a change to the Arbitration Act would “work for them as well as us”. Micheál Martin - who back in 2020 portrayed the Costello case as an inconvenience which would be swiftly dismissed - told Fianna Fáil colleagues the Supreme Court had offered some welcome “clarity”.

Costello himself has spent a few days mulling over the rulings and has questioned whether an amendment could even be legal at all. He points to the minority decision of Charleton, who believes that the necessary amendments to the Arbitration Act might themselves be unconstitutional.

And as for the Green Party? Where the other parties say they still hope to ratify CETA anyway, a Green spokesperson has been kicking for touch, saying the government should now take its time ‘to reflect on the ruling’. Too right: not alone is there 500 pages of jurisprudence to wade through, but there’s the realpolitik of making sure the coalition is buffeted by the return of Costello and his ally Neasa Hourigan to the parliamentary ranks. Their six-month suspension is due to lapse tomorrow.

So much has happened in the last six months that it might be worth remembering exactly why they were suspended in the first place: they believed that the new National Maternity Hospital may still be under religious influence, despite all parties to the deal (publicly) claiming the legalities state otherwise. The fact that they agree right now is not enough, Costello told me on radio; it was possible someone in the future could take a different interpretation of the wording. Ironically the cerebral row that saw Costello leave the fold is the same sort of row now brewing as he returns.

The readmission of that Prodigal pairing does matter. The coalition has been a minority government for the last four months; though it has survived the Budget and a motion of no confidence in the meantime, it still faces a parliamentary test to reappoint Varadkar in a month. All governments can expect to lose members over their lifetimes, so anything that augments the numbers for now is not to be sniffed at.

The Supreme Court sits again tomorrow to make its final ruling on the costs associated with the case. The usual rule is that the costs follow the winner, meaning the state (as the defeated party) is left to pick up the tab. It would be unusually vindictive for Costello’s own government to make a late bid to the contrary - not least when those costs are so high. Costello has been tight-lipped about the financial consequences of a loss but, suffice to say, the combined costs of full High and Supreme Court hearings would be enough to warrant remortgaging a home. He hasn’t just bet his own seat on the case: he has, almost literally, bet the house.

With his own house now secure, and the arithmetic in Leinster House much less so, it would be foolhardy for the government to charge headfirst too quickly.