Green Party TD gets half of legal costs of failed trade deal challenge

Green Party TD Patrick Costello has been awarded half his legal costs relating to his failed High Court challenge over the constitutionality of aspects of the Comprehensive Economic Trade Agreement (Ceta) EU-Canada trade deal.

Ms Justice Nuala Butler, who dismissed the challenge last month, said on Tuesday 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.

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, she said a politician involved in high profile litigation associated that politician with those issues in the mind of the public and did potentially confer a political advantage on the individual concerned.

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”.

‘Investor courts’

The Dublin South Central TD brought the case over concerns about a number of issues including 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 eight of Ceta usurped the law-making function of the legislature and the judicial competence of the Irish courts in the Constitution.

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 effected 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.