Costello v The Government of Ireland, Ireland, and The Attorney General

JurisdictionIreland
JudgeMr. Justice O'Donnell,Mr. Justice John MacMenamin,Ms Justice Elizabeth Dunne,Mr Justice Peter Charleton,Ms. Justice Baker,Mr. Justice Gerard Hogan,Ms Justice Power
Judgment Date11 November 2022
Neutral Citation[2022] IESC 44
Year2022
CourtSupreme Court
Docket NumberS:AP:IE:2021:000124 High Court record number 2021/1282P [2021] IEHC 600 High Court Record No.: 2021/1282 P
Between/
Patrick Costello
Appellant
and
The Government Of Ireland, Ireland, and The Attorney General
Respondents

[2022] IESC 44

O'Donnell C.J.

MacMenamin J.

Dunne J.

Charleton J.

Baker J.

Hogan J.

Power J.

S:AP:IE:2021:000124

[RECORD NO.: S:AP:IE:2021:000154]

High Court record number 2021/1282P

[2021] IEHC 600

High Court Record No.: 2021/1282 P

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Constitutionality – Ratification – Comprehensive Economic Trade Agreement – Appellant challenging the ratification of a Comprehensive Economic Trade Agreement – Whether ratification of the Comprehensive Economic Trade Agreement is incompatible with the legislative sovereignty of the State

Facts: A Comprehensive Economic Trade Agreement (CETA) was entered into between Canada and the European Union on the 30th October 2016. The appellant, Mr Costello, a Teachta Dála, having been elected for the Green Party in the general election in February 2020, sought to prevent the ratification of CETA, contending that its terms had the effect of transferring important elements of sovereign power to the institutions created by the agreement. On 16th September 2021, Butler J ([2021] IEHC 600) refused the relief sought by Mr Costello and found that the ratification of CETA should take place in accordance with Article 29.5.2° of the Constitution. By a determination delivered on the 11th January 2021, the Supreme Court was satisfied that this was an appropriate case in which to grant leave to appeal to the Court directly from the High Court and considered that it raised important matters of domestic and EU law. In the course of the hearing, the issues before the Court crystallised into the following issues: (1) Is ratification of CETA necessitated by the obligations of membership of the EU for the purposes of Article 29.4.6° of the Constitution? (2) Is ratification of CETA incompatible with the legislative sovereignty of the State under Article 15.2? (3) Does the creation of the CETA Tribunal amount to the creation of a parallel jurisdiction or a subtraction from the jurisdiction of the courts in the State’s jurisdiction contrary to Article 34 of the Constitution? (4) Does the “automatic enforcement” of a CETA Tribunal award under the enforcement provisions of CETA together with the provisions of the Arbitration Act 2010 constitute a breach of Article 34? (5) What is the effect of the interpretive role of the Joint Committee created by CETA and does its role amount to a breach of Article 15.2 of the Constitution? (6) Would an amendment of the 2010 Act to alter the “automatic enforcement” of a CETA Tribunal award as proposed in Part XIII of the judgment delivered by Hogan J alter the position in relation to the ratification of CETA?

The Court, by a majority of 4-3, held that the ratification of CETA would breach the judicial sovereignty of the State, contrary to Article 34 the Constitution. By a majority of 6-1, the Court held that were the position in relation to automatic enforcement to be altered as envisaged by Hogan J, the position would be different, and in those circumstances, CETA could be ratified without the necessity for a referendum. The Court allowed the appeal.

O’Connell CJ, in a dissenting judgment, answered the questions posed as follows: (1) no; (2) no; (3) no; (4) no, CETA Tribunal awards are not “automatically enforceable” and the enforceability of such awards would not be a breach of Article 34; (5) the role of the Joint Committee does not constitute a breach of Article 15.2; (6) the enforcement provisions of CETA do not themselves constitute a breach of Article 34, and this proposition would only be strengthened if the 2010 Act were amended to make explicit the possibility of refusal of enforcement.

Appeal allowed.

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 11 th day of November, 2022.

Contents

I. Introduction

3

II. The Comprehensive Economic Trade Agreement (“CETA”)

8

A. Background

8

B. Preamble and Objectives

9

C. Chapter 8 and the Investment Provisions

11

D. Section F and the Dispute Resolution Process

15

E. Analysis of the Domestic Effects of CETA

17

F. CETA and International Investor-State Dispute Settlement

19

III. The Irish Authorities: Boland, Crotty and Pringle

21

A. Boland

22

B. Crotty

23

C. Pringle

25

IV. Sovereignty

27

A. The Constitutional Concept

27

B. The Separation of Powers

27

C. Legislative Sovereignty

28

D. Juridical Sovereignty

29

E. Waiver

30

F. History as a Guide

32

G. The European Convention on Human Rights as a Comparator

34

H. The European Perspective

41

V. Analysis

43

A. Does CETA impermissibly withdraw claims from the jurisdiction of the Irish courts?

43

B. Withdrawal from CETA and the duty of sincere cooperation

45

C. Is enforcement of CETA awards automatic?

46

D. Constitutional authorisation for the entry of other international agreements – Articles 29.7 and 29.9

48

E. What are the constraints implied by the Constitution on the Government's exercise of its treaty making powers?

50

F. The Constitutional role of Dáil Éireann

53

G. Is CETA unique?

54

H. If a bespoke agreement is permissible, is CETA?

56

I. Is the possibility of an award of damages pursuant to CETA in respect of a judicial decision in the Irish courts incompatible with the Constitution?

57

J. Is there a Constitutional principle that requires the State to be immune from claims for damages?

58

K. Is a determination of the CETA Tribunal a collateral attack on the validity of administrative measures?

59

L. Amendment of the Arbitration Act, 2010 to address constitutional frailty

60

M. Conclusion

64

I. Introduction
1

. This is a case whose novelty is surpassed only by its importance. It requires this Court to consider the extent and nature of the limitations that the Constitution imposes upon the conduct by the State of its external relations, which by Article 29.4.1° is an exercise of executive power, and thus is exercised in accordance with that Article and Article 28.2 by or on the authority of the Government.

2

. This is an issue which has come before the Court only rarely in the 85 years since Bunreacht na hÉireann came into force and effectively completed the task, commenced in 1922, of establishing the State as a sovereign, independent and democratic State (Article 5). The appellant says that the execution by the Government of the Comprehensive Economic Trade Agreement (“CETA”) and ratification of same by the Dáil pursuant to Article 29.5.2° impermissibly infringes the internal sovereignty of the State. In particular, the appellant contends that execution and ratification infringes the legislative sovereignty of the State established by Article 15.2, providing that the sole and exclusive power of making laws for the State is vested in the Oireachtas. Furthermore, the appellant contends that CETA also infringes the executive sovereignty of the State (Article 26.3) and the juridical sovereignty of the State contemplated by Article 34, which provides that justice shall be administered solely in courts established by legislation enacted by the Oireachtas, other than in cases contemplated by Article 37 (and which in my view does not arise here).

3

. Although much of the argument on behalf of the appellant sought to contend that the execution of CETA involved a direct breach of the provisions of the Constitution (and moreover, the legislative sovereignty of the State protected by Article 15, the executive sovereignty of the State provided for in Articles 28 and 29, and as already mentioned, the juridical sovereignty of the State under Article 34, in the sense that it was argued that the provisions of CETA constitute ‘law’ and the decisions of the CETA Tribunal constitute the administration of justice) it will, I think, become clear that, at least at the level of formal analysis, the provisions of CETA do not infringe either the internal or external sovereignty of the State, whether executive, legislative or judicial. Simply put, the provisions of CETA operate at the level of international law, and while they may have practical effects within this jurisdiction, in any case where they can be said to lead to outcomes which have legal effect within the national legal order, they do so not by their own force, but rather by the force and effect of Irish law duly enacted in accordance with Article 15. The question, therefore, at least in my view, becomes whether the execution of CETA, in the exercise of the external sovereignty of the State, would, in substance or effect, impermissibly trench upon, cede, transfer, or abdicate the internal sovereignty of the State, whether executive, legislative, or judicial.

4

. It is also the case, at least in my view, that the impugned provisions of CETA do not infringe any of the express limitations which the Constitution places upon the exercise by the Government of the executive power of the State in relation to external or foreign relations. The issue is, therefore, whether the impugned provisions of CETA contravene limitations which must necessarily be implied upon the conduct by the Government of the external relations of the State.

5

. While it will be necessary to discuss these matters in much greater detail, I think it is possible to set out a series of propositions which encapsulate, in my view, the reasons why, on true analysis of the provisions of the agreement and Irish law, that the execution of CETA by the Government and its ratification or approval by the Dáil do not infringe the Constitution, but rather is completely consistent with it:-

(i) The 1937 Constitution brought to conclusion the process, commenced and largely achieved in 1922, of establishing Ireland as...

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