Tánaiste Leo Varadkar has signaled that he expects Green Party TD Patrick Costello to pay at least some of the costs of his High Court action against the Government over a trade deal with Canada if he is unsuccessful.
Mr Varadkar said it’s “the decent thing to do” rather than “asking the hard-pressed taxpayer to do it”.
He made the remarks as the Oireachtas Committee on European Affairs continues to consider the Comprehensive Economic and Trade Agreement (Ceta) between the EU and Canada.
Irish ratification of the deal was delayed when concerns were raised by the Green Party last December and it was agreed to scrutinise it further at committee.
There are concerns among the Greens and Opposition politicians in relation to the planned dispute resolution mechanism in the deal, the Investor Courts System (ICS) where companies from the EU and Canada can bring cases if they feel their profits have been hit by discriminatory regulations on either side.
The argument put forward by those opposed to the ICS is it will have a ‘chilling effect’ on lawmaking in the areas of environmental standards and workers’ rights.
Mr Varadkar dismissed such concerns saying that companies can, and already do, take legal actions against the State through the courts.
Mr Costello has taken a High Court action against the Government challenging the constitutionality of parts of the CETA deal.
If the investor court system is brought into force without being sanctioned by a referendum, that would be contrary to Articles 15 and 34 of the Constitution, he claims.
At the committee Fianna Fáil TD Seán Haughey asked Mr Varadkar about the case and whether he considers it relevant or if the State should proceed with full ratification of the CETA.
Mr Varadkar said he would have liked to have seen the deal ratified already but “our partners in government wanted to take a bit more time to allow committees such as this to scrutinise it and we were happy to concede to that.
He said he would like to see a Dáil vote before the summer and certainly no later than this year.
Mr Varadkar said he did not want to go into detail on any court case but said: “I would find it very surprising if the courts said that this was unconstitutional.”
He added: “People have the right to go to court but I just hope that they don’t impose on the Irish taxpayer the cost of these court cases. I just think that would be wrong that the Government would have to pick up the bill for a lot of legal fees if they’re defeated.
“I think the decent thing to do would be for them to cover the cost of that themselves or least to contribute to the cost of it rather than asking the hard-pressed taxpayer to do it, for money to be taken away from services which would be the effect unfortunately.”
Sinn Féin Senator Lynn Boylan later said she viewed Mr Varadkar's remarks as a "threat that the State is going to actually pursue the costs".
Mr Varadkar replied: “I wouldn’t question the right of any citizen to take a case to court whether they’re a deputy or not” but he said that if a person takes a case that is “unnecessary or unsuccessful” then “they shouldn’t burden the tax payer and the Irish citizen with the full cost of that”.
“Just out of a point of decency they should be willing to accept some of the costs of that themselves,”he said.
Sinn Féin TD Ruairí Ó Murchú said there is a fear of getting sued by companies through the ICS and he asked why the State would “leave ourselves open to a chilling effect?” and “why we would rush into this”.
Mr Varadkar said the ICS form of dispute resolution is “as good as any other” and better than some.
He said: "The truth is this isn't going to be renegotiated. This has already been ratified by most EU member states… I certainly wouldn't like Ireland to be the country that holds this up."
He said “Governments can always be sued” adding: “Often the cases I hear people citing in their opposition to CETA have nothing to do with CETA.”
Rushed
He denied ratification of the deal is being rushed saying “This agreement is around for about 10 years… This is happening really slowly.”
Labour Party TD Brendan Howlin was a minister in the Government that first signed off on CETA and he said "I certainly was strongly of the view that CETA was in Ireland's interest".
However, he said he does have difficulty with the ICS system arguing that such mechanisms may be necessary in trade deals with countries like China but the EU and Canada have confidence in the fairness of each other's court systems.
He asked if it would be possible to have the deal without the ICS saying his experience from European meetings was that clever legal solutions can be found to intractable issues.
Mr Varadkar said the Canadians may not have concerns about the domestic court system in Ireland but “I’m not sure that’s necessarily the case forevery EU country.
“There are some EU countries unfortunately that don’t uphold the kind of legal standards or independence of the courts as we do and we need to bear that in mind.”
On Mr Howlin’s suggestion that the EU could find a way to resolve the issue over the dispute resolution mechanism Mr Varadkar said: “that’s already been done”. He said a proposed investor-state dispute settlement system was changed to an ICS.
Green PartyTD Francis Noel Duffy said he agreed with Mr Howlin and also remarked: "It appears that this trade agreement and its benefits to our society outweigh our right to defend ourselves via our national courts which I believe is a difficult position for many considering some fought very hard for our independence to actually defend ourselves."
He asked Minister for Enterprise Mr Varadkar if his department had carried out an analysis of the benefits of CETA - estimated at €200 million in tax revenue - compared to potential litigation against the state.
Mr Varadkar said it is not possible to estimate the potential cost of such cases as it would involve imagining scenarios where companies would be successful in proving discrimination that caused harm.
He said his view is the risk is “minimal or zero”.
