Pressure builds on CETA trade agreement - serious concerns expressed at Council of Europe, in German Constitutional Court and on floors of Dáil and Seanad.

Yesterday, the Committee of Social Affairs, Health and Sustainable Development at the Parliamentary Assembly of the Council of Europe decided to issue a statement expressing serious concern at the lack of adequate debate and scrutiny around CETA and calling for “postponement” of plans for ‘provisional application’, currently due for signing at the Council of Ministers meeting next Tuesday October 18th.

Senator Alice-Mary Higgins, attended and spoke at the Committee, where parliamentarians from across Europe and across the political spectrum, discussed the implications of CETA for areas such as labour, environmental, health and agriculture. The Committee also heard from expert witnesses, such as Sam Fowles, lecturer in Trade Law at University of London, who highlighted the highly unusual use of a “negative list” to determine what is covered by CETA.

International trade agreements normally use a ‘positive list’ which indicates the sectors, areas, industries, services and products on which they wish to trade. The negative list approach, on the other hand, means that everything not explicitly taken off the table is assumed to be covered by the treaty. Mr. Fowles outlined as examples how emerging areas of public policy such as artificial intelligence would automatically be bound by the agreement, regardless of the policy approach desired by future governments.

Senator Higgins emphasised that “the negative list approach represents an extraordinary hostage to fortune which threatens to seriously reduce the policy space for future governments to best serve the public good. I am also very concerned that CETA would introduce, for the very first time, special investor courts, allowing companies to sue Ireland for vast amounts if a new regulation is deemed to impact on their future profits. We have, as yet, no guarantee that such courts will not come in under provisional application.

Speaking at the Committee, Mr. Fowles also highlighted “the lack of legal certainty’ around what ‘provisional application’ would actually cover, particularly in light of a case currently underway at the European Court of Justice (ECJ) and due to rule in early 2017 in which the European Commission is seeking the right to introduce investor courts without member state ratification. Senator Higgins noted the Irish Government’s acknowledgement that the ECJ ruling “will impact on the scope of provisional application” and stated that “proceeding with provisional application with such a case still pending could be reckless unless explicit legal assurance from the European Commission itself is demanded and received”.

That demand may be strengthened by a significant ruling yesterday in the German Constitutional Court, which specified that for Germany to go ahead with provisional application, the text being signed by Ministers on October 18^th must explicitly exclude key areas such as investment courts. Responding, Senator Higgins said “It would be a small but important victory for public and parliamentary pressure if these changes were reflected in the final text being signed on Tuesday. I, like others across Europe, will certainly be watching closely.”

Unfortunately, the Irish Government has not substantially or publicly engaged with these issues, despite growing pressure from both houses of the Oireachtas, with Deputy Catherine Connolly using Leaders Questions to call for urgent debate and Senators from many parties calling for an appropriate response to last weeks’ motion.

Instead, Minister for Jobs, Enterprise and Innovation Mary Mitchell-O’Connor, simply reiterated yesterday in the Seanad her intention to disregard the motion and sign up to provisional application of CETA on Tuesday.

Speaking about the decision of the Minister, Senator Higgins said, “The government have demonstrated a disappointing disregard for democratic process in their approach to this trade agreement. In the face of valid questions about the scope of provisional application and expert concerns about the implications for environmental, labour and health standards, they have chosen to avoid discussion until after signing and ignore the outcomes of the Seanad debate, the only parliamentary scrutiny this agreement has yet seen.”

The statement from the Council of Europe committee, proposed by UK MP Geraint Davies and supported by other committee members, is, Senator Higgins concluded, “yet another reminder that parliamentarians are keen to engage properly on this issue and represent the concerns of citizens across Europe”

This public concern has also been seen in Ireland with a recent Red C poll showing 81% of farmers ‘feeling concerned’ about these agreements. The Irish Food Writers Guild has stated that “CETA will have a detrimental effect on our food sovereignty, our agricultural sector and the future nutritional health of the nation” while the Irish Congress of Trade Unions have come out strongly in opposition to the agreement and environmental and social justice organisations Friends of the Earth and Comhlámh have campaigned against it.