Green Party TD Patrick Costello has been awarded half his legal costs of his failed High Court challenge over the constitutionality of aspects of the Ceta EU-Canada trade deal.
Ms Justice Nuala Butler, who dismissed the challenge last month, said on Tuesday that she was making that costs order because the case was 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.
In an overall context, she was satisfied the issues were of significant constitutional weight and importance, the legal issues were complex and there was a clear public interest in having them ratified before the proposal to ratify Ceta (Comprehensive Economic Trade Agreement) comes back before Dáil Eireann.
She also accepted, “although with some hesitation”, Mr Costello had no personal interest in the outcome of the proceedings in the sense of his having any financial, property or beneficial interest at stake.
"However, in the case of a politician litigating issues in respect of which political decisions may also have to be taken, high profile litigation certainly associates that politician with those issues in the mid of the public and, regardless of the outcome, does potentially confer a political advantage and a consequent benefit to the individual concerned," she said.
Costs order
For those reasons, she made an order directing the State defendants – the Government, Ireland and the Attorney General - to pay half of the TD’s legal costs, including reserved costs.
The judge stressed she was not making that costs order on other grounds advanced by Mr Costello. She disagreed with his argument this was a “test” case.
In her main judgment last month, Ms Justice Butler said she was satisfied Mr Costello had not established that ratification of the 2016 Ceta as proposed would be “clearly unconstitutional”.
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.
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 as a result of Irish environmental regulation.
Ms Justice Butler ruled 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.
