The Supreme Court has agreed to hear Green Party TD Patrick Costello's appeal against the High Court's dismissal of his challenge over the constitutionality of aspects of the Ceta EU-Canada trade deal.
Last year Ms Justice Nuala Butler rejected the TD's arguments, in proceedings against the Government of Ireland, Ireland and the Attorney General, against the deal.
The Judge said she was satisfied Mr Costello had not established that ratification of the 2016 Ceta as proposed would be “clearly unconstitutional”.
Due to the issues involved Mr Costello had sought to have his appeal against that decision, 'leapfrogged' or heard directly by the Supreme Court, rather than the Court of Appeal. His application was not opposed by the respondents.
'Significant issues'
In a determination Supreme Court judges Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne and Mr Justice Gerard Hogan ruled that the significant issues raised in the action, including state sovereignty and the administration of justice should be determined directly by the Supreme Court.
The issues involved in the case could also have legal impact in several sectors, the Supreme Court added. The court accepted that these issues are of exceptional public importance that merited a direct appeal from the High Court.
The judges also agreed that the case should be given a priority hearing. The court also noted that Mr Costello contends that it is necessary to refer the case to the Court of Justice of the European Union.
The State respondents disagree with that contention, the Supreme Court added.
The Dublin South Central TD brought the case over concerns including about the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states.
He claimed the protections for Canadian investors in chapter 8 of Ceta usurped the law-making function of the legislature and the judicial competence of the Irish courts in the Constitution.
Compensation
It was argued there is no limit on the value of compensation which may be awarded under the investor tribunal system; that neither it, nor an appellate tribunal, will be composed of judges appointed under the Constitution and that ratification could adversely affect regulation here, particularly in the environmental sphere.
The State, he argued could be made liable for damages for loss suffered by a Canadian investor because of Irish environmental regulation. The State parties opposed the action.
Ruling against the TD Ms Justice Butler said in her judgement that Ceta is an international agreement operating only at the level of international law with the effect it cannot be understood as effecting a transfer of either the State's legislative or judicial power.
If ratified, it will bind the State as a matter of international law but “will not have a direct effect in Ireland and cannot be invoked before the Irish courts”, she said. Tribunals set up under Ceta will not have jurisdiction to declare any provision of Irish law or any act by an Irish authority to be invalid, she also said.
The judge accepted that the case raised issues of “clear public interest” and raised “novel” questions of constitutional law in respect of the State’s adherence to international treaties with binding tribunal mechanisms.
On that basis she ruled that the TD was entitled to half of his legal costs. The State has cross appeal that decision.
That issue the Supreme Court said in its determination would most appropriately be dealt with at a costs application at the conclusion of the appeal.
