Charles Flanagan (Laois-Offaly, Fine Gael)
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Having regard to the time constraints and the fact that, since the debate on the Finance Bill is under way in the Dáil in plenary session, a vote can be expected at any stage, which would frustrate our work, I call on the Tánaiste, if he is ready, to give a briefing on the occupied territories Bill.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank the Tánaiste and call Mr. Smyth.

Mr. Declan Smyth:

I thank the Cathaoirleach very much. As the Tánaiste outlined, there are substantive EU and constitutional law issues with the Bill. These have been outlined already. Other amendments are required to be made to the Bill, particularly in respect of the definition of "offences", the use of certain terms defined in the interpretation section of the Bill and the defences available to persons charged with offences under the Bill. All these aspects will require consideration and amendment following discussions with relevant Departments, the Office of the Director of Public Prosecutions and the Office of the Attorney General. Those amendments will be prepared in co-operation with the Office of the Parliamentary Counsel.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. Smyth. I welcome Senator Black. Although the Senator is not a member of this committee, she has an important role in the context of our discussion. I thank her for attending. Does she wish to make a statement following what the Tánaiste said and before we open the floor to Deputy Carthy and other members? If she does, she is more than welcome to make that statement now.

Frances Black (Independent)
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I thank the Cathaoirleach. I was hoping to have my legal team with me in case any questions might be asked on the legal aspects of the Bill. Is that okay?

Charles Flanagan (Laois-Offaly, Fine Gael)
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I am sure that is okay. Is that agreed? Agreed. That is fine.

Frances Black (Independent)
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Go raibh míle maith agat. I appreciate it. I thank the Cathaoirleach very much.

I thank the Chair and the members of the committee for the opportunity to speak. I will try to be as brief as I possibly can because I want to leave time for a discussion and questions. I am joined by Gerry Liston from Sadaka and the Global Legal Action Network, and Conor O'Neill, who is the head of policy at Christian Aid Ireland. Mr. Liston and Mr. O'Neill have worked closely with me on the drafting of the Control of Economic Activity (Occupied Territories) Bill 2018, along with people from a wide range of brilliant civil society organisations and activists. They have helped to move this proposed legislation forward so brilliantly. Mr. Liston and Mr. O'Neill are here to provide input regarding amendments and for any legal or technical questions.

I will speak first about where we are with the Bill, the progress we have made and the work we still have to do. As we meet this afternoon in the safety of this committee room, I cannot help but think of the situation in Palestine right now. I must emphasise this point. It is the backdrop to this discussion. What is happening on the other side of the world but being broadcast to us in real time is an absolutely horrific genocide. That is what it is. Every day, I see the images, the horror and the devastation being inflicted on innocent people and children in Gaza and right across the West Bank. It is really hard to describe the despair and the anger this causes me to feel. Honestly, I just cannot believe how the world can look on and do so little. I just cannot believe it is possible. It is really beyond belief.

I firmly believe that we have a responsibility to break this trend and to ensure there are finally some real consequences for Israel's flagrant and repeated violations of international law and the theft of Palestinian land. I must say that words of condemnation are not enough any more. That is why I tabled this legislation six years ago and it is why I am back before the committee today.

As members will know, the Bill has a long history. It has already been passed in full by the Seanad, and the Dáil also voted overwhelmingly in favour of it. The committee undertook detailed scrutiny of the Bill in 2019 and also voted in favour. Unfortunately, despite expressing support in principle, successive Governments, at least up to now, have been unwilling to pass it based on legal advice that my team and I have long argued was wrong.

I do not want to redo those legal arguments of the past six years because, to be honest, the key thing now is to ensure we can finally move on from those arguments. We have shared detailed legal opinions from some of the most eminent experts in the world setting out that Ireland can do this. We built a movement of people across Ireland demanding action and, finally, in July, the ruling of the International Court of Justice put the matter beyond any reasonable doubt. The highest court in the world made it clear that not only is banning trade with Israel's illegal settlements the right thing to do, but that it is actually a firm legal obligation for all states, including Ireland. I am happy to say that the Tánaiste, Deputy Martin, and the Taoiseach, Deputy Harris, are making this exact case now too here in Ireland and at EU level and that the Attorney General's advice has finally changed. It should not have taken this long and it is unfortunate the change has come about so late in the life of this Dáil. The ICJ ruling, however, was of great significance. If this is what can finally unlock things, then I truly welcome it.

For the first time, we can truly say that all political parties have pledged to pass this legislation, alongside an incredible network of activists around the country. We have worked extremely hard to build political support and it is now unanimous. The people marching out on the streets are right. Passing this Bill was the right thing to do when I introduced it in 2018 and it is absolutely the right thing to do now. We should not waste any more time. We must focus on getting this legislation passed as soon as humanly possible with support from all sides of this House. I thank Sinn Féin, the Social Democrats, the Labour Party and People Before Profit for offering their Dail time up to try to get the Bill through its final Stages and into law this week. I still firmly believe that this is the right thing to do.

As the Tánaiste said, I met with him at length on this issue and with his officials regarding amendments, which Mr. Liston and Mr. O'Neill can discuss in more detail. The key thing for me, though, is that we are talking about small technical changes to strengthen the Bill and protect it from legal challenge. I have no issue with that. We should get them done as soon as possible. If this does not happen before an election is called, then my message is clear. We will keep going. All parties have now pledged to do this and I refuse to let it be something that is promised before an election and not delivered on afterwards. I know the incredible activists and campaigners across the country will be holding every candidate, TD and party to their promises to ensure, whether it is this week or immediately as soon as new Dail convenes, that we make any final changes needed and pass this Bill into law.

I take this opportunity to commend the amazing activists and NGOs for their dedication to the Palestinian cause, as well as the councillors the length and breadth of this country who have shown that local government has been to the fore in supporting the passing of this Bill. Councillors from all parties and none have not used this Bill as a political football and have unanimously passed motions in support of it.

After decades of theft, dispossession and displacement, and in the context of an ongoing genocide in Gaza, this Bill is the absolute least we can do.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Thank you. On behalf of the committee, I offer a strong acknowledgement of the work Senator Black has done, albeit a number of years ago. It is particularly pleasing that she is back here on what is the last week of this legislative session. I am not sure of the extent to which we can advance matters here but I am grateful for the Tánaiste's statement. We had some legal issues referred to by Mr. Smyth and we had the submission and presentation by the author of the Bill, Senator Black, whose legal team, Mr. O'Neill and Mr. Liston, are here. I will open the meeting to the floor to see what issues can be pursued further with the Tánaiste and, if appropriate, with Senator Black. I call Deputy Carthy.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I had hoped there would be something in the Tánaiste's opening statement today that would in some way justify what I believe is, in the highest order, an unacceptable decision by his Government to further delay and frustrate the passage of the occupied territories Bill. This Bill was passed by the Dáil in January 2019. All of the arguments that the Tánaiste has outlined today in respect of the Bill were put by the then Government. The Opposition had a majority at that stage and the mover of the Bill was the Tánaiste's party; in 2019, it was a Deputy from his party who moved the Bill in the Dáil. He assured the Dáil, on behalf of Fianna Fáil, that the Bill was not taken lightly or without due consideration. I presumed that due consideration would have taken cognisance of legal advice that contradicted the position of the Department of Foreign Affairs at that point, which is the same as what the Department is outlining today.

The Deputy who moved the Bill, Deputy Niall Collins, went on to say, rightly, in my view: "No condemnation has been strong enough to change Israel's approach, and it would appear that the Israeli authorities have become accustomed to tuning out criticism." He then said: "... if this is not the time to act, when will that time come?" When, indeed? When the Tánaiste considers what we have witnessed over the past year, he should be ashamed of his party's actions in this regard. What is worse, apart from the fact the Tánaiste has refused to progress this Bill over his term in government, when he, more than any other individual, both as Taoiseach and then as Minister for Foreign Affairs, could have progressed it, but he then accuses others who are trying to progress the Bill of political games. To me, that is cynical in the extreme.

It is important that people understand what the Tánaiste said before this committee today. He told us that substantive amendment needs to be made to most, if not all, of the provisions of the Bill. In fact, he directly contradicted Senator Black, who said the requirements are technical changes. He outlined to the committee that it is not technical changes that are required and that it is much more substantive than that. The Tánaiste needs to be clear what those substantive changes are and what they would mean for the occupied territories Bill. We all know that any legislation is subject to substantive amendment to most, if not all, of its provisions, and what we end up with is a Bill that is different in every respect, other than the name, from the original that was adopted by the House.

I have some questions. When did the Tánaiste’s party move on this Bill? As a Minister, when did he seek that the Department would prepare the amendments necessary to overcome whatever legal issues arise? The Tánaiste said the review of the legislation was sought on the basis of the ruling of the International Court of Justice regarding the illegality of the settlements, but the Tánaiste already knew the answer to the question that was being asked of the ICJ in respect of the illegality of the Israeli settlements. He knew the answer because he sent the Attorney General to the ICJ to set out very clearly that it was Ireland's position that the settlements were illegal. It was the clear position of the Irish Government that these constituted illegal settlements.

Let me ask the Tánaiste this. The ICJ, in its advisory opinion, stated clearly that states have an obligation to prevent trade with and investment in the illegal settlements. That was in July. What single act has Ireland taken in order to be in compliance with that? We have spoken about the occupied territories Bill over the past six years. We know the answer to all of this. Fine Gael did not want the occupied territories Bill and it opposed the Bill tooth and nail in this Dáil. It was beaten in the Dáil and it then introduced a money message to block it. Then, when they went into programme for government negotiations, the Tánaiste's party and the Greens gave up on the occupied territories Bill in order to secure their places at Cabinet. Throughout this term of Government, they basically just sat there and hid behind legal advice that said this was an EU competence. If this was a matter of EU law being paramount, the Government would have initiated infringement proceedings against the European Commission for not acting in respect of the EU-Israel association agreement under Article 265 of the treaty. It could have done that. Instead, it wrote a letter to the European Commission in respect of the EU-Israel association agreement, which, as far as I know, is still unanswered. Lest anyone forget, the EU-Israel association agreement was renewed again during this term of office. Therefore, Israel, rather than being penalised for its blatant disregard of international law, enjoys the most preferential trading relationship with every European Union state that it is possible to have outside of the continent of Europe.

The Tánaiste says that substantive amendment to most, if not all, of the provisions of the Bill will be required. I ask him to outline precisely what that means, whether he intends that the final Bill will include services, as well as goods, in respect of banned activities and whether he will outline clearly to the electorate what particular changes he intends to make to the occupied territories Bill should he be returned to Government. That is a question the Irish people deserve an answer to.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Before going to the Tánaiste for a reply, I call Deputy Gannon.

Gary Gannon (Dublin Central, Social Democrats)
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I also have some questions for Senator Black and her legal team, if they could stay beyond 4.45 p.m., after the Tánaiste answers. I ask that we would extend the meeting for a couple of minutes.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Yes.

Gary Gannon (Dublin Central, Social Democrats)
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The Tánaiste said in his opening statement that substantive amendments were to be made to the Bill and that the ICJ case in July was a game-changer when it came to the Bill. At what point did his staff start working on the amendments? How long have they been in train? When did the Tánaiste recognise that amendments to the Bill were needed? We are now in November, so it has been four months or so. How long have staff been working on this? What is the timeline for when the amendments will be completed, Taoiseach? I am sorry, I should have said “Tánaiste”.

Gary Gannon (Dublin Central, Social Democrats)
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We can play that game should the outcome of the election go that way.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I ask Deputy Gannon to address his remarks through the Chair.

Gary Gannon (Dublin Central, Social Democrats)
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Is it the plan that if the Government is re-elected, this would come back to the table straightaway? The timelines for this are very important.

It has been reported today in The Ditch that some influence has been placed on the Tánaiste in terms of consequences should this Bill be furthered. I would like the Tánaiste to comment on that because it is very important that clarity is brought to it. This followed on from other reporting a couple of months ago that another Minister had previously given assurances to the Israeli Government.

Gary Gannon (Dublin Central, Social Democrats)
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The Ditch said today that you gave a commitment to the US ambassador, Claire Cronin, who said that if the Bill was to be progressed, there would be consequences, and she offered to link in the Attorney General.

Gary Gannon (Dublin Central, Social Democrats)
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The very clear report on October-----

Gary Gannon (Dublin Central, Social Democrats)
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It was stated that the Tánaiste had a conversation with the ambassador on 22 October and that the commitment had been given.

Gary Gannon (Dublin Central, Social Democrats)
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The Tánaiste should have a look at what has been published as it is quite a serious allegation.

Gary Gannon (Dublin Central, Social Democrats)
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I will go back to the amendments and the timelines. The ICJ case happened in July. Where did the Government work from there? How long will it be until can we expect it?

Charles Flanagan (Laois-Offaly, Fine Gael)
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I ask the Tánaiste to reply to Deputies Carthy and Gannon insofar as he can. I will then call Deputies Devlin, Cronin and Berry.

Gary Gannon (Dublin Central, Social Democrats)
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Cathaoirleach, we have ten minutes.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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For ten years.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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That is bullshit, and you know it. Answer the questions that have been put to you.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Answer the questions that have been put to you.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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It is not true.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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It is not true. You do this all the time rather than answer the questions and charges we put to you. You try to deflect.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Deputy Carthy, please. We have to have order. We do not have much time.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Please answer the questions that have been put to you.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Chair, can you please direct the witness to answer the question?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Answer the questions then, Minister, with due respect.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Will you please answer the question through the Chair?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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It took ten years to do it. I am asking you in respect of the Occupied Territories Bill. How many more years is that going to take?

Charles Flanagan (Laois-Offaly, Fine Gael)
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Will Deputy Carthy let the Tánaiste answer the questions, please?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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You moved the Bill.

Gary Gannon (Dublin Central, Social Democrats)
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I know, but I have asked a simple question and there are six minutes left. The ICJ advisory opinion was issued in July. We are now in November. When can we expect it?

Gary Gannon (Dublin Central, Social Democrats)
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How many people are presently working on the amendments to the Bill?

Gary Gannon (Dublin Central, Social Democrats)
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Can the Tánaiste give me a ballpark figure? How many people are working on this Bill at the minute to give us a sense of the urgency?

Charles Flanagan (Laois-Offaly, Fine Gael)
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It is important to address the context of how these issues are progressed, particularly this Bill. The Tánaiste has received fresh advice from the Attorney General. He referred to that advice. We have not seen that advice. Under current conventions, we will never see that advice, on the basis that the Attorney General advises Government and Government advises Parliament, as the Tánaiste is doing and indeed as Mr. Smyth is doing. This is not for today and it will not be for this committee but I believe it is imperative, having regard to the discussion here, that some mechanism is found to furnish this committee with the advice of the Attorney General. We will never have the full advice and will never be able to adjudicate on all matters unless and until we are in a position to comment on the advice of the Attorney General. It is not for today but it is an issue for the future. The Tánaiste talked about exceptional circumstances. The provision of the advice of the Attorney General to Members of the Legislature is important, notwithstanding the role of the Attorney General to advise the Executive.

Charles Flanagan (Laois-Offaly, Fine Gael)
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There is no suggestion that because it is comprehensive, it cannot be dealt with by this committee.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The Tánaiste has said that a couple of times. Of many conversations which I have had, I have never had a single one with a US politician or representative in which the issue of Palestine was not raised. I know that is the case for many others. I put this to the Tánaiste once again because we put this to him in other weeks. We are ready right now.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Bring your amendments to the committee right now and let us go through each of them one by one. Let us get through Committee Stage today and bring it to the Dáil tomorrow. If the Tánaiste is to be trusted on any of this, he would be moving heaven and earth to make sure that we got to pass the Bill this week. The fact that he has not says to me that he cannot be trusted on this because his Government has not brought forward a single sanction against Israel despite multiple opportunities brought by the Opposition in which he could have taken some meaningful action, which he has not done. That is not to say we do not commend those actions which have been taken, because we have commended them when they have been taken. I have congratulated and thanked the Tánaiste when he has done the right thing. The problem is that every time he has done the right thing, it has taken years to bring him to that place and he has not done what we all know is required to force Israel to stop doing what it is doing, which is to make it pay a price with sanctions. That needs to happen.

Charles Flanagan (Laois-Offaly, Fine Gael)
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The Deputy is well aware that there is a process, procedure and practice involved. We do not have the amendments. The Tánaiste has said it is impossible to bring the amendments for the reasons he has set out, because of the complexity of the issue. I will take a final question from Deputy Gannon for the Tánaiste, because I am keen to bring in Deputies Devlin and Stanton.

Gary Gannon (Dublin Central, Social Democrats)
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It is important to say to the Tánaiste that we cannot wash away or wish away our obligations under the Genocide Convention. That is what we are dealing with here, which is why the urgency is so great. I am not offering the Social Democrats' Private Members' time on Thursday just to be collaborative, but because of the urgency to act. Only consequences will bring this to an end. The occupied territories Bill has taken a long time. If the amendments are done with some urgency, this could be a significant act from this Parliament before it falls. The urgency is great.

Charles Flanagan (Laois-Offaly, Fine Gael)
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We cannot do it for a number of reasons, not least the fact that the Bill has not been referred to us by the Dáil, which is a prerequisite to any discussion.

Gary Gannon (Dublin Central, Social Democrats)
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Which is what the-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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What the Tánaiste and his officials have said here today is very helpful in the context of the progress of Senator Black's Bill.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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Today's discussion at this committee is extremely important and timely. The Tánaiste has answered some of the questions about the advisory opinion issued by the International Court of Justice in July and where we are today. I welcome those comments and the timeline given. Speaking of timelines, if it is in fact the next Dáil that deals with this Bill, with the EU and constitutional issues have been raised as a result of the Attorney General's legal advice, given the extent of the required changes to the Bill, is a timeline associated with that? Is there an estimated timeline to deal with those kinds of amendments? On the public policy exemption, I note from the Tánaiste's opening remarks that these grounds have never been used by a member state before in similar circumstances. Can the Tánaiste give any example of where these grounds have been used to give context to that? There is considerable public interest in this and, given the discussion here today and before I was a member of this committee, this Bill has been discussed at length. I would welcome the Tánaiste's comments on that.

Réada Cronin (Kildare North, Sinn Fein)
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That suggests that they wanted a ceasefire.

Réada Cronin (Kildare North, Sinn Fein)
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By supplying arms to Israel?

Gary Gannon (Dublin Central, Social Democrats)
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Israel is acting without consequences.

Réada Cronin (Kildare North, Sinn Fein)
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I thank the Tánaiste for staying at least ten minutes longer than he expected. I appreciate that wherever he was meant to be is not as important as this discussion. I remember that when the first hospital was bombed in Gaza, Israel said it would look into it because even the Israelis would never bomb a hospital. Since then, they have been deliberately targeting healthcare workers and journalists. We know they were deliberately targeting women and children, and men - I do not know why men are always left out of the equation. The Palestinian men I see on my television screen are rising life and limb to save children from bombarded buildings, or are healthcare workers or are driving ambulances. They are doing their damned best to save as many lives as they can. Israel is still in violation of international law. There has been no sanction against Israel, as such. There is a feeling that this is very late in the day, that if the Government really wanted to move the occupied territories Bill forward and was really concerned about amendments, it would have brought it forward quicker. The Tánaiste met the Senator a couple of weeks ago and I will have a question for her afterwards. We are on the cusp of an election now and there will be talk about outside interference and everybody will be saying to look at Russia. At lunchtime today, The Ditch released a statement that the American ambassador wrote to the Tánaiste 90 minutes before he issued a statement committing to only a review rather than the enactment of this legislation. The Tánaiste should make a statement on this because I find it hard to believe that he is pretending now that he did not know about it.

Charles Flanagan (Laois-Offaly, Fine Gael)
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The Tánaiste dealt with that issue earlier in the meeting. I am not sure what has changed since.

Réada Cronin (Kildare North, Sinn Fein)
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There is a question of trust here.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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It has not actually progressed the Bill.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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It is not before the committee today.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Where is it, then?

Réada Cronin (Kildare North, Sinn Fein)
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There is a question of trust here because it seems very lastminute.com.

Réada Cronin (Kildare North, Sinn Fein)
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I hope the Tánaiste will be honest. I congratulated him when he recognised the State of Palestine and when he spoke up on UNRWA. I have been honest and have said when I have felt the Tánaiste has been doing the right thing, so do not make smart alec remarks towards me, please.

Réada Cronin (Kildare North, Sinn Fein)
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Warning of consequences.

Réada Cronin (Kildare North, Sinn Fein)
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That is what The Ditch has reported.

Réada Cronin (Kildare North, Sinn Fein)
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I know the Tánaiste is under time constraints. I believe we have highly intelligent legal people who could work on amendments. We in Sinn Féin have offered our time tomorrow and the Social Democrats the day after. This committee will sit tonight, tomorrow and early on Thursday morning to go through this and to pass the Bill because I cannot help but believe that the Government will put this on the long finger and the Bill will never be moved because of Fianna Fáil's bedfellows in Fine Gael. We know about Paschal Donohoe and the communications he had with the Israeli ambassador. We know Fine Gael is not favour of this and they are the partners in Government.

Charles Flanagan (Laois-Offaly, Fine Gael)
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That is an unfair comment.

Réada Cronin (Kildare North, Sinn Fein)
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There is a touch of the "Lord, make me chaste but not yet" to all of this being so last minute.

Charles Flanagan (Laois-Offaly, Fine Gael)
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We are obviously in full election campaign mode if The Ditch is being quoted here as loosely as it has been in the past hour. Reference has been made to the Minister, Deputy Donohoe who is not here. I recall a categorical statement he made in response to an unfounded allegation that was made against him in that publication. I cannot take it any further than that and I do not believe the Tánaiste or anyone in this committee can take it any further either. If the Deputy has a question for the Tánaiste, put it to him and then I will move on to Deputy Stanton, who has not been in yet.

Réada Cronin (Kildare North, Sinn Fein)
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Is the Tánaiste prepared to bring forward these amendments so that we can pass this Bill before the Dáil is dissolved?

I also have a question for the witness, Senator Black. Was she under the impression a couple of weeks ago-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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We will leave those for the moment. We will deal with questions to the Tánaiste in this instance because we are coming up near the appointed time for adjournment. I will take questions to the Tánaiste and then we will come back to Senator Black, if that is okay.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Can I ask for clarification?

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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I would be interested to hear the analogy of the grounds-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I ask for clarification on a point the Tánaiste has just mentioned. He mentioned the-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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Briefly, please.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Perhaps the Tánaiste can clarify whether I have this wrong. The case involving France that he mentioned is actually technically the exact opposite of this. This relates to France engaging with an occupier. It was struck down because it treated an occupied territory as part of Morocco. Therefore, is it not the case it is the flip side of this?

Mr. Declan Smyth:

There was a case recently decided by the Court of Justice regarding the import of fruit and vegetables from western Sahara, which were improperly labelled as products of Morocco. In that case, the French Government tried to prohibit the import of those goods on grounds of public policy and the court determined that the reliance on public policy is exceptional and that in this case the appropriate narrow remedy was, in fact, to ensure the imported fruit and vegetables from Western Sahara were properly labelled, not prohibited. It is not a very helpful case from the perspective of this Bill.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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The use of the public policy element of it is what Mr. Smyth is highlighting.

Mr. Declan Smyth:

Yes. The public policy grounds provide some basis on which a state may take measures domestically in the field, for instance, of trade in an area of exclusive competence of the European Union, but it is very narrow. Generally, it has been relied on to address specific public policy issues that arise in a particular member state and that cannot be dealt with across the Union. In this case, the public policy will be respect for international law, and that, of course, applies to the whole Union. Therefore, the use of public policy in this case will be somewhat unique.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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I thank Mr. Smyth for that information.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I call Deputy Stanton.

David Stanton (Cork East, Fine Gael)
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I welcome the Tánaiste and his officials. Since the Bill was published, I know things have got infinitely worse in that part of the world. What is happening down there is way beyond what any of us could imagine in our worse nightmare. We see it every day and every night on our screens, as with other conflicts, like in Sudan, that we mentioned previously, and obviously Ukraine, where things have gone off the charts at the moment. That is not going well either. There is terrible suffering going on there. I commend the Tánaiste on the work he has been doing to try to bring about a ceasefire, which is probably the most important thing and where we should be putting all our energies now and using every avenue we can to bring about a ceasefire as soon as possible. I would like to know what is happening at European level with other governments to put pressure on to bring about a complete ceasefire and the cessation of killing and violence on all sides. That should be our number one target.

I read somewhere that the Bill involves about €1 million worth of goods. We can clarify that. I welcome the fact it is being progressed. I know from being in Ministries before that you have to be very careful with amendments and you have to make sure they are correct because if you get them wrong, you will be in serious trouble and you will be back where you started or even worse. I encourage that the amendments be brought forward as soon as possible and that they would be passed by all. I just want to ensure we do not lose sight of the bigger picture, which is a complete and total ceasefire and the stopping of the killing and the slaughter of men, women and children on all sides. The release of hostages, as was said earlier, has to happen. Let us get humanitarian aid in there as quickly as possible. There are people starving in those countries at the moment. We are talking about €1 million worth of goods coming into Europe. We should be trying to find ways of stopping people from starving in Gaza and now in Lebanon. I dealt with the Syrian issue, as did the Cathaoirleach. Syrians had to leave and now we will probably see Lebanese having to leave and Lebanese refugees. This is another catastrophe facing us. This is extraordinarily serious. The far bigger picture here is to get a ceasefire as soon as possible. We should all unite on this straight away. I will not be here for too long more with an election in a couple of days but every time I look at this I think it is just shocking and appalling on all sides.

Let this Bill go through. As the Senator said, it will not stop the war or do a whole lot. It is symbolic, it is political and so on. We should not get totally tied up in this and lose sight of the bigger picture, which has escalated, in all due respect to the Senator. She brought forward the Bill at a time when things were far less fraught - infinitely less - than they are now. Things were not good but what is happening there now is apocalyptic. It is just shocking. The whole of Gaza has been levelled, as was said. South Lebanon is facing the same thing, a most beautiful part of the world which should be booming with tourism and so on. Many of us have been there and have see, this happen. It is ghastly. It is biblical, virtually. That is where we should be putting our energies. Let us stop the squabbling and the point scoring. This is far too serious for point scoring from any side. That is what I want to say on this matter.

I commend the Tánaiste on the work he is doing and encourage him to keep at it to get a full and complete ceasefire as soon as possible. In any discussions he has with anybody, be they ambassadors, presidents or ministers anywhere, that should be the message from Ireland. We want a complete ceasefire now. Let us get aid to those children, women and men who are starving at the moment and then try to rebuild and go for the two-state solution or whatever it might be for a permanent complete peace out there. That is not going to be easy.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank the Deputy and take that as an important submission rather than a question. Deputy Cronin has a final question for the Tánaiste, as does Deputy Gannon.

Réada Cronin (Kildare North, Sinn Fein)
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In the absence of this legislation passing, will the Government make a decision not to go ahead with purchasing drones from Israel?

Réada Cronin (Kildare North, Sinn Fein)
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The Government is not going to.

Réada Cronin (Kildare North, Sinn Fein)
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Okay, good. I thank the Tánaiste.

Charles Flanagan (Laois-Offaly, Fine Gael)
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A final question to the Tánaiste from Deputy Gannon.

Gary Gannon (Dublin Central, Social Democrats)
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Just to clear up something the Tánaiste said previously, I do not think anybody around the committee believes amendments could be brought today and passed over two days. That was not the suggestion. The suggestion was, and the frustration stems from the fact that, the Department had time previous to this where it could have been developing the amendments and it did not. It seems like the departmental staff now has a good handle on what sort of amendments could be brought forward. If there is still time, it is important. I presume the Tánaiste has been working on this since October. We have had the intervention in the ICJ since July. I do not believe for a second that two days would have been enough allocated to this but I have confidence in the Department officials that they have given this the regard it deserves. With the good framing the Tánaiste has outlined, perhaps there is still the opportunity to bring the amendments to some parts so that we could advance the Bill before the Dáil folds. That is really important. I do not think anyone gave the impression that this would stop not the war but the annihilation that is being inflicted upon the people of Gaza. What it does do and where it is important is that it demonstrates consequence, and that is something that would take action.

Charles Flanagan (Laois-Offaly, Fine Gael)
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A number of questions have been suggested, if not yet posed, for Senator Black and her team. I am very grateful that Mr. O'Neill and Mr. Liston are here. Before I ask Deputies Gannon and Cronin to put their questions, I remind Mr. O'Neill and Mr. Liston of the long-standing parliamentary practice to the effect that we should not comment on, criticise or make charges against any person outside the House or any official, either by name or otherwise, as to make him or her in any way identifiable. Did Deputy Carthy have a question?

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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The Cathaoirleach can let the others in first, but I have another question as well.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Deputies Cronin and Gannon, to Senator Black's team.

Gary Gannon (Dublin Central, Social Democrats)
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My question is about getting their perspective on what they felt was-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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What is your question?

Gary Gannon (Dublin Central, Social Democrats)
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What is the perspective of Senator Black's team on what has just been given to us?

Charles Flanagan (Laois-Offaly, Fine Gael)
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That is fine. We will do that.

Réada Cronin (Kildare North, Sinn Fein)
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My question is to Senator Black. What impression was she under after her meeting with the Tánaiste a fortnight ago? Did she feel a serious attempt was going to be made to have this legislation passed before the dissolution of the Dáil?

I have one other question for the Tánaiste. In the absence of the legislation, a policy decision has been made not to purchase drones. Will the Government make a policy decision not to make any further purchases from any area of the occupied territories or Israel?

Charles Flanagan (Laois-Offaly, Fine Gael)
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I do not know whether Mr. O'Neill or Mr. Liston will start. Will Senator Black introduce-----

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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My question might be an add-on to Deputy Cronin's. Maybe I will ask that now and allow the three witnesses to-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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We are clear on that.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thought as much but-----

Réada Cronin (Kildare North, Sinn Fein)
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Or weapons that are tested on children.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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I will ask this of Senator Black and her advisers. The Tánaiste said that those responsible for illegal settlements must be held to account. Obviously, nobody will disagree with that. The difficulty is where we lay the responsibility because any sanctions that have been applied have been applied on individual settlers, and rightly so. However, it is not individual settlers who are responsible for the illegal settlements; it is the Israeli state that facilitates them. Therefore, in line with the ICJ opinion that stated that all states must prevent both trade and investment in the illegal settlements, are our guests of the view that Ireland has done anything to meet our obligations in that respect? Are there things including but also beyond the occupied territories Bill that we would need to do in order to be in compliance with that?

I am conscious that when we discuss the occupied territories Bill, other legislation is stalled in the House, namely, the Illegal Israel Settlements Divestment Bill. No legal reason has been provided and no constitutional rationale has been given for stalling that. A political decision has stalled that. It is things like that which make me sceptical about the bona fides of the Government parties to progress this Bill, should they be returned to Government.

In respect of the obligations that the ICJ advisory opinion places on states, how close are we to being in compliance? What should we be doing in order to be in a better position to say that we are?

Frances Black (Independent)
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I will hand over to my legal team to answer that.

Mr. Conor O'Neill:

I extend a sincere and genuine thanks to the Chair, the committee and the Tánaiste for facilitating what may be a slightly unusual session. It is a very good opportunity, from our perspective, if an election is called in a couple of days, to try to set the record as straight as we can possibly get it at this point. This is so that in the context of an election campaign, some of the issues that have been raised can be put on the parliamentary record and discussed, and we can try to bring as much clarity as we can. We are very grateful for the opportunity to be here. I also sincerely thank Senator Black. A big, wide and vibrant network of academics, activists and civil society organisations have supported and contributed to the Bill. Mr. Liston and I are glad to get the opportunity to speak to some of the more technical or legal points that have been raised.

I will talk about three things specifically: the question of the amendments; the provisions of the Bill that deal with services; and the prospect of a legal challenge and what that might mean. On the question of amendments, and Deputy Gannon raised this, it is important to say that many of the questions that have been raised are not new. They were in fact identified and raised by the very helpful and detailed pre-legislative scrutiny that the committee did in 2019. Mr. Liston and I, and a broad range of academics and lawyers from a number of Irish universities, disagree on the fundamental EU law question. That has been very well ventilated over a number of years. We engaged with some of the issues raised in good faith and took a lot of time to try to begin work on potential amendments that could strengthen those provisions and protect the Bill from legal challenge. We very much recognise that.

We never got a chance to advance any of that draft text or amendments because the money message was not provided and the Bill did not come to the committee.

On some of the issues being raised today, it is important to say work has been done. The officials in the Department and political parties have been aware of them since at least 2019. In that respect, many of the amendments that have been discussed here and previously are not enormously challenging. It is a question of trying to put in the necessary time. We do not want to rush to get wording that the various Government Departments, the sponsoring Senators, the Government and the officials are happy with.

One of the issues raised is the scope of the Bill. When we worked with Senators initially on the research for and drafting of the Bill, we did it deliberately so that it could potentially be universal in its application and could apply to any occupied territory anywhere in the world, if there were support from within the Oireachtas and clarity from international courts or other legal bodies. We still believe that that principle is correct and important because, whether it is the parts of Ukraine that are occupied by Russia, which we have already implemented measures like this in relation to, and rightly so, or Western Sahara, which the Tánaiste mentioned, we believe that the same standard should apply. We set out in detail previously why we believe that such a ban would be permissible under EU law. Having said that, we have heard the presentation from the Government and the legal officials. I agree with the remarks of the Chair about the Attorney General's advice.

In the course of the debate on this Bill, we have published or shared formal legal opinion or advice from Professor Panos Koutrakos and Professor Takis Tridimas, two experts in legal law, Senator Michael McDowell, a former Attorney General, the late Professor James Crawford, a former judge of the ICJ, Mr. Michael Lynn, a senior counsel in Ireland, Dr. John Reynolds, an academic in Maynooth University, and another academic who works with Dr. Reynolds across EU level. We have been doing that a little bit in the dark, trying to set forward our position on the EU law question without having sight of the specifics of the Attorney General's opinion. Any work that could be done to put the new advice and information in front of this committee and in the public realm would be really welcome.

In setting those advices out, we are cognisant of the fact that what has been raised is that it seems the new advice hinges primarily and the ICJ advisory opinion delivered in July. If the Government's intention is to as closely as possible give effect to the ICJ advisory opinion, then the intention would be to redraft the scope of the Bill to apply specifically to the occupied Palestinian territories as was done regarding Russian imports previously. If that was done, the main constitutional arguments that have also been raised would by default cease to apply. For example, one of the most significant constitutional questions raised in 2019 and again today relates to sections 3 and 4 of the Bill and the delegation of power by the Oireachtas to a Minister or an international court, which is necessary under the Bill as drafted to designate a territory as occupied for the purposes of the Act and the limits that are set by Article 15.2 of the Constitution. For the avoidance of doubt, we believe the Bill as drafted is consistent with the approach to the non-delegation doctrine set out by the Supreme Court. However, the relevant definitions and the delegation of power would not be necessary if the Bill is redrafted as the Government has suggested to apply specifically to the OPT. Some of the other constitutional questions that have been raised, for example, the precision in the offences, the addition of extra defences in section 11 or 12 are really a question of an important but limited amount of legal work across Departments to land on appropriate language. I am encouraged to hear that is progressing.

We would have a direct ask, in good faith, of every member of this committee and of the Government. The Parliament will empty over the next few weeks, over the month of November, for the election. Perhaps in December, we will be talking about negotiating a new programme for Government. That gives us two months to do that work, so that when the new Dáil is formed and a new Government takes office in January, we have a set of primarily technical amendments that can strengthen and improve the Bill that could be handed to a new Government and then obviously it is its prerogative to accept and table them in conjunction with the sponsoring Senators. That is the first and primary ask we have and it is encouraging to hear there is agreement on it.

My second point is in relation to services, which is a question Deputy Carthy raised and it is crucially important. When we look at what the ICJ said in the advisory opinion of 19 July, when the ICJ talks about trade that means trade in physical goods and services. That is how trade is always understood within this Parliament and basically every facet of the Irish system. When the CSO, for example, sets out Ireland’s annual trade statistics or our trade balance with another country, that is the value of all physical goods and services imported or exported over a particular period. That should not be controversial in the slightest but we want to put it on the record and it might just be a case of loose language at various times but any suggestion that giving effect to our obligations, as clarified by the ICJ, would involve just a ban on physical goods and not on services would be completely wrong. The ICJ was clear that states are obliged to prohibit trade. Any distinction between physical goods on the one hand and services on the other would be arbitrary both politically and legally. That was the approach rightly taken on the prohibition of certain economic activity, both trade in goods and services and investment as regards to the Ukrainian territory occupied by Russia. Mr. Liston will speak more about the question of investment.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. O'Neill. That was very helpful.

Mr. Gerry Liston:

I will pick up on Deputy Carthy's question which I understand to mean the occupied territories Bill and the illegal Israeli divestment Bill taken together sufficient to give effect to the obligation set out by the International Court of Justice. It is important to recall the language the court used in defining those obligations – first, to abstain from entering into economic or trade dealings with the settlements and, second, to take steps to prevent trade or investment relations that assist the maintenance of illegal occupation. There was a report published in October of this year by the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel which gave a legal interpretation of the ICJ advisory opinion and essentially it interprets these obligations to mean that states most cease all financial trade, investment and economic relations with Israel that maintain the unlawful occupation or contribute to maintaining it.

If Ireland is to comply with the obligation outlined by the ICJ, the Government and the Oireachtas will have to address investment links to the Israeli settlements in addition to trade in goods and services as mentioned by Mr. O’Neill. We are aware of the illegal Israeli settlements divestment Bill and the important work that has been done on that but it is important to note that that Bill only addresses public investment in companies operating in the settlements, in particular investment by the Ireland Strategic Investment Fund. However, it is clear the obligations set out by the ICJ are concerned with the prevention of public and private investment. This is, as Mr. Liston touched on, entirely consistent with how Ireland and other EU member states have acted in relation to Russian occupied territory in Ukraine. For example, the relevant EU regulations which have been implemented into Irish law by statutory instrument prevent financial or other investment services linked to entities operating in the relevant territories such as Crimea. It is really important the committee considers this when it reconvenes to look at this Bill and the illegal Israeli settlements divestment Bill.

To answer Deputy Gannon's question, and building on that, are we satisfied? We are very happy with the opportunity to work with officials in the Department of Foreign Affairs on the amendments and to hear that the purpose of those amendments will be to give full effect to the obligations set out by the International Court of Justice. However, as I said, we will look at trade, services and investments to ensure that the full gamut of obligations, as identified by the ICJ, are implemented by those amendments.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank Mr. Liston. That too was very helpful. I think the questions have been answered. Now that we are heading, because of the parliamentary cycle, into a situation where there will be an election campaign and a new Government, the Tánaiste has quite helpfully stated that it is his intention that the amendments would be ready for the new Government. In the meantime, is there any scope for dialogue between Senator Black, your officials and yourself? It was referred to earlier-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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I am going to bring matters to a conclusion on the positive note that the amendments will be ready for the new Government. It is obviously a matter for the new Government to order its priorities and for Parliament to refer the matter to this committee. One thing is for sure; I will not be here and others may not be either. That brings me to a concluding comment. I thank Senator Black, Mr. O'Neill and Mr. Liston. All of the commentary will be on the record, which is important for future committee. I thank the Tánaiste for his work and time. I also thank his officials, in particular Mr. Smyth, for coming in and outlining to us not only the nature of the issue, but the manner in which solutions will be forged. I accept the legal team in the Department of Foreign Affairs has been working on this for quite some time. I am sure even Deputy Carthy will acknowledge the complexities involved in order to ensure that anything that is presented is done in such a way as to be robust.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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To be honest, six years was plenty of time to get it over-----

Charles Flanagan (Laois-Offaly, Fine Gael)
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There was an important court decision that was of much more recent origin, which we all acknowledge.

Charles Flanagan (Laois-Offaly, Fine Gael)
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I thank the Tánaiste. On behalf of all members, I would like to thank our hard working clerk, Mr. Paul Stephens, and the team of Ms Vanessa Farry, Ms Alicia Yeates and Ms Emma McCarron who is not here today. I wish them all a reasonable rest over the next three weeks. They will probably be the only ones resting. I look forward to this committee continuing many of the important issues we have been debating over the past number of years. The priority will obviously be Senator Black's Bill from a legislative point of view. thank her for attending today and for dealing with the issues in the manner in which she and her team have done.