Vol. 316 No. 1
I welcome the guests of Senator Eileen Flynn, Deputy Catherine Callaghan, Deputy Cormac Devlin, Senator Fiona O'Loughlin and Deputy Ken O'Flynn.
I welcome the Minister, Deputy McEntee, to the House.
Amendments Nos. 1, 4, 7 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1:
. In page 3, between lines 25 and 26, to insert the following:
“ “Israeli settlement” means any residential area, outpost, or economic zone established, supported, protected or otherwise administered by Israel, in violation of international law, in the Occupied Palestinian Territory (including East Jerusalem) that was brought under Israeli administration since June 1967;”.
There are many issues to be dealt with today, as we all know, including the most substantial one of trade in services, which we will get to in good time. The first set of amendments are more technical but are very important. The aim is to ensure that no Palestinian goods are accidentally captured by this legislation. I fully accept that this is not the intention of the Government. I listened closely to the debates on this point on Committee Stage in the Dáil, but it is important to deal with it on the record of this House also. The Government Bill relies on a postcode system managed at EU level to identify illegal Israeli settlements. The postcode list is updated regularly and there is a clear logic to using it. However, as the Government has accepted, it is not perfect.
About 90% of the postcodes map directly onto an illegal Israeli settlement, but about 10% do not. They may include some Palestinian communities, particularly in East Jerusalem. That is the concern. Everyone here today agrees these Palestinian communities, who have seen their homes encircled by illegal settlements and who face displacement nearly every day, should not be covered by this ban. That is not the intention of the legislation set out in its Long Title and is not what the Government intends, but what is written in the legislation really does matter.
How do we prevent this? That is the question we must ask. To ensure Palestinian goods are not accidentally captured, we would prefer the legislation to make clear that it bans goods that meet two criteria instead of just one: first, that they are from a listed postcode and, second, that they are produced in an Israeli settlement. This is preferable to using the postcode system alone, which is a blunt tool. It is why my original occupied territories Bill was drafted differently and with great care. I give credit to Gerry Liston from GLAN and Sadaka for all their work on those elements, not forgetting my friend and colleague, Conor O'Neill, who has done phenomenal work on this issue.
On Dáil Committee Stage, the Government responded to these concerns by stating this is not necessary because, for administrative reasons, Palestinian goods will simply be allowed through regardless of whether they are from a banned postcode. That is a concerning way of going about this and I will explain why. The logic is Israeli exporters trade under the EU-Israel Association Agreement, which governs trade with Israel, but Palestinian exporters trade under the EU-Palestinian Authority trade agreement, which governs trade with Palestine. The latter agreement uses different administrative arrangements and does not require Palestinian exporters to list the illegal settlement postcodes in the same way. The Government has stated customs officials will not seize the products because they will not have a banned postcode printed on the important document on the box. I accept this is likely in practice but it is still basically ignoring rather than applying the law. Regardless of whether the customs officials seize the goods or not, by a literal reading of the Bill, those Palestinian products would be banned by statute. That is what the Bill states clearly. Section 5 states: "the importation of goods originating in a postal code to which this Act applies is prohibited." There is no distinction made. It does not matter what trade deal you export them under, what is printed on the box or where the community is from. The statute says any goods originating in a specific geographic area, that is, the postcodes, are banned. Effectively, we would be banning all goods from these postal codes but working on the basis that Palestinian goods will slip through the net because they will not be marked with the relevant code on the box and thus will not be seized. They will still, by statute, be banned.
I am not trying to be pedantic. This is genuinely concerning. I have spoken to the Minister personally. We have precedent in other jurisdictions for what can happen. Would anyone be surprised if opponents of Palestinian rights tried to make use of this ambiguity in the law? That is the question. Imagine if a scarf or a bottle of olive oil from a Palestinian community in one of these postcodes is allowed to enter Ireland. As the Minister says, it will not be seized by officials. It is then placed for sale in a shop here. What is stopping any individual from asking that it be removed from the shelf on the basis that, under section 5 of this Bill and under the Customs Act, as amended, it is banned. Does the Minister accept they would have at least a plausible case under a literal reading of the law?
We must remember the Bill amends the Customs Act 2015. It therefore bans not just the import of goods but also possession, custody, transport, deposit or otherwise dealing with any banned goods. As such, it, like the original occupied territories Bill, bans their importation but also their handling or sale. It will be an offence to sell that bottle of Palestinian olive oil if it comes from a listed postcode, regardless of how it arrives into the country or what is printed on the box. We therefore propose a straightforward, workable amendment that would leave no doubt and solve the issue based on the precedent in proposed Government legislation in the Netherlands and Belgium of applying a two-test section on the goods before banning them, instead of using postal codes alone. I do not see any good reason we would not do this, rather than leaving a clear ambiguity in the law.
I will reiterate a little bit of what Senator Black said. The intended purpose of the Bill is to ensure companies involved in the occupied Palestinian territories are not profiting from their involvement on illegally stolen land, but there is a risk. I read the transcript of the debate on Report and Final Stages in the Dáil so I understand the Minister's perspective on this. There are Palestinians living within Israeli communities, particularly in East Jerusalem, given the way the occupation has taken place there with Israelis moving into Palestinian land. It is really about avoiding unintended consequences. I know the Minister agrees we would not want any Palestinians negatively impacted by this or facing any economic impact should they try to trade. Crucially, we are referring to the 1967 territory, since significant swathes of land have been stolen up to this point.
Despite what the Minister outlined on Report Stage in the Dáil, there are still concerns that the Bill states goods cannot be imported if they come from specific postcodes - "the importation of goods originating in a postal code to which this Act applies is prohibited." I know it is not the intention of the Minister or the Department but we believe there is a risk. The amendments in this grouping are designed to provide a safeguard and a definition for the postcodes, and to ensure there is no risk of Palestinian goods being impacted by this legislation. As Senator Black said, similar language is being used in Belgium and the Netherlands. The assurance the Minister tried to give on Report Stage, that the DPP will know whether a good originates from a Palestinian trader, is not very clear. It is certainly not legally clear in the Bill as written.
The issues have been spelled out well by others and I will not reiterate them. I do not believe it is an intentional consequence but it is an example of how the tools need consideration. The failure to make proper distinctions in this is somewhat reminiscent of the issue relating to Morocco and Western Sahara, where the European Commission's measures that were supposedly for the population of Western Sahara ended up indirectly benefiting settlers. We have a kind of reversal of that now, where measures intended to target goods from settlements and settlers may indirectly target Palestinians.
We should bear in mind this is not really the core purpose of the Bill. It is not around a particular good; it is around what the purchase of the good facilitates. The key purpose of the Bill is to take steps to prevent trade relations that contribute to the maintenance of Israeli settlements in the illegally occupied territories. We need to keep that in mind. It is not about targeting the geographic origin of goods. The actual purpose is explicitly in relation to settlements. You could argue that targeting the goods of Palestinians in those territories could compound the situation by narrowing the market for them. It is almost working against the purpose of the Bill. I will not expand further on that, as others have done so.
I will speak to two other amendments I have in this grouping. One of them tackles a number of issues and may be a way to address this. It is an amendment in respect of the postcode system. It asks that there would be a review. This is amendment No. 17. It asks for a review and a report on postal codes and whether they are working as an appropriate mechanism for delivering on the purpose of the Bill. Within six months, there would be an examination of the extent to which the EU postal codes accurately capture illegal Israeli settlements. I say this in a number of contexts. One is the astonishing - perhaps it is not astonishing given the signals the world has sent Israel - and shocking expansion of Israeli settlements, including expansion into territories where there have never been settlements before and zones, such as the EEZ, which are core to the possibility of a two-state solution. The expansion of settlements needs to be monitored. There is also the question of potential future settlements in Gaza. I would like to be clear. Will we be waiting for the EU to assign postcodes in respect of settlements in Gaza? How will we be tackling the core issue of illegal settlements and illegal occupation in Gaza? These are issues that need to be monitored along with those that have been highlighted by others. Even if the Minister cannot accept the amendment, I suggest she commit to report on this anyway so that we can be confident as to how this mechanism is working out and that illegal Israeli settlements on occupied Palestinian land are not traded with, having failed to be brought into the net of this Bill because of a technicality of the European postcode documentation.
I will highlight another matter because I am concerned that the postcode mechanism may prove inadequate in the ways I have signalled. The intent is clearly there. I am speaking purely about the effective operation of the provisions of the Minister's Bill. In amendment No. 4, I have suggested that, in addition to the question of the postcodes set out by the customs union, the phrase "corresponds to an illegal Israeli settlement in an occupied territory" be included. I have worded that in a particular way, and not only because I think it could address those issues of illegal Israeli settlements in occupied territories that have not been captured by the European Union's postcode system as a result of expansion in the West Bank or the appalling carve-up we are seeing in Gaza at the moment. It was disappointing to see Ursula von der Leyen tweeting about a meeting she attended about reconstruction plans in which Jared Kushner took part via a phone call. There are people involved who have been absolutely clear on their plans for the colonial exploitation as Gaza. They have been as transparent as they can be.
I have worded the amendment in that context but also because we sadly need to recognise the fact that Israel has not limited its interest in illegal occupation to the occupied Palestinian territories. Israel is currently illegally occupying large parts of Syria. It has stated that it intends to stay there for an unlimited time. These parts of Syria contain towns. Just like individuals in occupied Palestine, individuals in these towns are now effectively subject to Israeli occupation. I am referring to towns like Abdin. I could list many other towns. Israel has also been very clear about its intention not to withdraw from southern Lebanon. The minister, Israel Katz, has spoken about this. It has been clear that the 200,000 people it has displaced will not be allowed to return. That is what its minister is saying. On the 1.2 million displaced in Lebanon, Israel has been clear on its absolute intention to occupy Lebanon as far as the Litani river and to demolish the towns and villages in those areas of occupation. That is why I am suggesting that it might be worth slightly expanding the frame in order to capture illegal Israeli settlements in any occupied territories.
These are important questions and the same principles and points of international law must apply. We must not be in any way complicit in colonial expansion and exploitation by the Israeli state and the breaches of human rights that accompany them. I ask the Minister to give strong consideration to these amendments. If she cannot accept them at this point, I would like an indication of how she intends to tackle these issues.
I welcome the Palestinian ambassador to the Chamber. It is an important day for Palestinians and for the ambassador, who has put in a huge amount of work advocating for Palestine over the years. I acknowledge the work and determination of Senator Frances Black on the occupied territories Bill over the better part of the last decade. I am pleased that the Opposition is unified in supporting and co-signing her amendments to this legislation. I also acknowledge Conor O'Neill from Christian Aid, Eoin Hamill from Trócaire, and Sadaka. I also acknowledge the work and commitment of the general public in campaigning for and supporting the occupied territories Bill and supporting people in Gaza and the West Bank. Without that pressure, we would not even have the watered down legislation the Government is proposing. Very few Bills from Independent Senators make as lasting an impact on the public as the occupied territories Bill. It is a testament to Senator Black's commitment to this cause and to the Irish people's strength of feeling when it comes to Palestine. This issue has been prominent since the Bill was introduced in 2018. Back then, Fianna Fáil was happy for the Bill to pass through the Seanad, only for it to be stopped by Fine Gael in the Dáil.
In 2018, the occupied territories Bill was hugely important in the context of blatantly illegal Israeli settlements in the West Bank and the clear attempt by the Israeli state and Netanyahu's Government to undermine any potential for an independent and viable state. Since then, the need for legislation imposing sanctions on these illegal settlements has become all the more urgent. Israel is doing everything in its power to wipe Palestine and Palestinians off the map. It has slaughtered tens of thousands in Gaza and displaced, starved and tortured hundreds of thousands more. In the West Bank, Israel is accelerating its settlement policy, with settlers acting with sickening impunity, killing and maiming any Palestinians they wish to without any fear of legal repercussions. It is pure state-sponsored terrorism on the part of Israel and the international community has done next to nothing to condemn or punish it for its breaches of international law. Ireland should be stepping up and showing leadership at an international level, taking real action to oppose Israel's crimes and showing that some countries are willing to stand up for what is right. Ireland has decided not to do that, however.
The vast majority of Irish people want the Government to take action to hold Israel to account. There has been huge frustration over the many years during which the Government has sought to delay, if not outright oppose, the occupied territories Bill. We should remember that the Government parties gave a commitment before the last election to enact the occupied territories Bill, no doubt taking into account the level of support for Palestine among the electorate. It is enormously disappointing that Fianna Fáil and Fine Gael have backtracked on this commitment and are instead pursuing a critically weakened version of Senator Black's Bill. I will speak to this point later on but the choice to exclude services from this legislation is clearly its most serious flaw. This was discussed extensively in the Dáil and in the foreign affairs committee but I do not see a strong legal argument to exclude services. There is certainly no moral argument to do so. Instead, I see a political argument, designed to put the Government on the path of least resistance. We are all united in wanting to ensure that those involved in illegal occupation and illegal settlements in Palestine are not profiting in Ireland and that these settlements are not sustained and facilitated by illegal commercial practices. With this in mind, I hope the Minister will keep an open mind during today's debate to ensure this Bill is as effective as possible.
Amendment No. 1, as has been referred to by previous speakers, seeks to address the potential flaw with the Bill in that Palestinians who are living in a postal code shared with illegal settlements could be denied the opportunity to trade. The postcode labelling is flawed. Clearly, the EU updates it and it is a moving process. There needs to be a double safety net to ensure that the occupied territories Bill that Europe is opposing is effective. Clearly, Palestinians who want to export their goods and services to Ireland should be facilitated in doing so. For this reason, I believe it is important to define "illegal settlement" to allow for more precision in the measures proposed by this Bill and to ensure that the legislation does not have an inverse effect than that intended by discouraging trade with Palestinians suffering from occupation and apartheid.
Both Senator Black and I talked about The Netherlands and Belgium. I would add that Spain's language is that Israeli settlements in the occupied Palestinian territory is what it is banning trade with, and obviously the ban of advertising and services. In Norway, they use the language that it is forbidden to import goods originating in the Israeli settlements within Palestine. In The Netherland's legislation, they say that it is unlawful settlement in the Israeli occupied territories listed in the EU postcode list. Therefore, the other countries in Europe which are introducing similar legislation have this safeguard in place and they specifically recognise that there are Israeli settlements on stolen Palestinian land and putting the safeguards in place for that. These are existing examples that this Bill would be greatly strengthened by, if we chose any of them and, therefore, had that safeguard to ensure that Palestinian goods can move freely.
I thank all the Senators for being here and, indeed, for the points that they have raised. I also acknowledge the Palestinian ambassador, who is present.
Maybe to start with that last point, I appreciate when you look at the different translations they all form a different form of words. In looking at our own legislation and our own wording, we have engaged with those countries. We have engaged with other member states. What we have set out here is very clear in our intention and what they have set out is very clear in their intention that they would comply with and that their language would adhere to the EU-Israel Association Agreement. That is what we want to align with because that is where we know we are using the same language, we are using the same postcodes, and we are not establishing something new where there can be any confusion or where we are then different to other member states or other countries. On the translation of theirs, when you speak to them they are clear that their language is so that they are complying with the association agreement, that they are complying with the postal codes used through the association agreement and then the technical agreement so that we are all applying it in the same way. I am confident that the language that we have allows for that and our intention and objective here, from all of us, is the exact same. The association agreement refers to Israeli settlements in the occupied Palestinian territory because it means any Israeli settlement is illegal. Under the International Court of Justice, ICJ, ruling of 2024, any Israeli settlement is illegal so we do not need to differentiate between what is legal and what is illegal. Anything under the ICJ ruling that is in the occupied Palestinian territory is illegal.
To create our own definition of an Israeli settlement would, in itself, pose its own challenges and risks. I am not sure it would add to the Bill. Goods from settlements in designated postcodes would remain prohibited and the mechanism for providing limited exemptions would remain the same as well.
In terms of the existing process, the association agreement but namely, the EU-Israel Technical Arrangement, which is based on the list of postal codes referenced, the other European countries are also taking action by using this list of postal codes. We are very much aligned. We are engaging with those countries as they are progressing theirs, although ours is the only Government that is bringing it forward via primary legislation and ours is somewhat more comprehensive in that way.
The list itself is comprehensive. It is regularly updated. I brought this with me to the committee, but there is a clear list published on the European Commission website. Once this Bill is enacted, it will be clear for people to see on our own website as well.
The list is fluid in the context of the fact that there are persistent settlements. It is consistent. The Israeli Government has been clear that it intends that there be more. This is not going to stop. That is why we want to make sure that our legislation aligns with the EU and the Commission.
I believe that the EU and the Commission have been faithful in identifying those settlements. I would not suggest that they are not making sure that every new settlement is put in this list. I believe that they are because they are bound as well by the technical agreement. While we might not agree with it at present, it is essentially the case that, because Israel gets preferential trade treatment under the association agreement, in order to differentiate between the occupied territories and Israel, the technical agreement is there to make sure that no trade coming from the occupied territories gets that preferential treatment. They have to comply with that as well. This is an EU technical arrangement. They have to make sure that they are very specific, as we are, in identifying where the illegal occupied territories are and we do not want to deviate from this system.
On amendment No. 17, as to a report on postal codes, we will be updating every time there is an update on new settlements. Essentially, it is a new report every time there is an update. As for having one in six months' time, there may or may not be new settlements. Either way, they will be updated on our website. They will be updated on the Commission website. They will be there for people to see.
Senator Black touched on the postal codes and part 1 and part 2. I probably did not get into this in the same detail on Committee Stage in the Dáil. Approximately 90%, as the Senator says, of the postal codes listed are part 1 postal codes and these are directly correspondent to Israeli settlements. Less than 10% of the codes are part 2 postal codes and these are essentially the locations that fall on both sides of the green line - the pre-1967 Israel-Palestine border. In practice, it means we are still talking about Israeli settlements, but it is in Israel and in the occupied territories or in the Israeli settlement postal codes. In part 2, the operators are advised to contact the customs authority but this is specifically to state whether they get preferential treatment or otherwise. The part 2 element of it is to identify whether the Israeli settlements are on the Israel-proper side of the line or whether they are on the settlement side so that they do or do not get preferential trade treatment.
What Senator Black is talking about is within that, if you have a Palestinian exporter that may be part of the part 2 postal code. I would say it is a very small category of individuals, if they do, because Palestinians are not living in settlements. They would not be trading under the association agreement or the technical agreement. They would be trading under the EU-Palestinian Authority trade and co-operation agreement. To the Senator's point, if there is a good that has come from a Palestinian trader, they will not have a marking that has the association agreement on it. If it gets to Ireland, there would be very clearly a marking that would be specific to the EU-Palestinian Authority trade and co-operation agreement and there would be no need for them to have to have it taken off the shelf. For them to get that, they have to get approval from the Palestinian Authority and you would not have somebody from an Israeli settlement getting approval from the Palestinian Authority to have that particular route. They rely on the preferential tariff-free access. They do not require the different postal codes. They just have to get that approval from the Palestinian Authority and we are able to differentiate on that basis. To introduce something new or something different, I suppose you are not making it more straightforward. You are potentially creating challenges in that regard.
In terms of the postal code, this would not come up as an Israeli postal code because they would have to go through the EU-Palestinian Authority trade and co-operation agreement.
I completely understand and appreciate that the amendments are intended to make absolutely certain that nobody from the Palestinian community will be captured by this. I believe that, based on the fact that you have the association agreement, the technical agreement and, separately, the Palestinian Authority trade and co-operation agreement, there is a clear delineation as to where the products are coming from or where the communities are coming from, but it is important that the Customs is checking that and that they are complying with this. That applies to all member states individually. To be honest, this is a debate. While we are having other discussions at a European level around banning trade, there are some member states raising the question around how do we make sure that what we have there now is fully compliant, that the technical arrangement is being applied appropriately and that requires each member state to make sure that its customs service is checking that it is compliant with its own obligations as well. No matter what we do here, we have to make sure at home that the Customs is clear as to what it needs to check for, what is allowed and what is not. Every member state has to do that, but also you have the Customs on the ground as well that is asked to check which area it is coming from.
It is for those reasons that I will not be accepting the amendment, but I believe our overall objective is exactly the same here and we want to achieve the same outcome. I am satisfied that what is here and the rules that are currently in place are in line with what other member states will be progressing. It makes sure that those who might be in that very small minority within subsection (2) of the postal code section will be protected under this.
Will the Minister comment very briefly on my concerns in relation to what the plans will be for a six-month review of postcodes and on other illegally occupied territories in the Israeli settlements?
I referenced the reports. The report would be on the postal codes but the postal codes will be updated as they are applied. They are already on the Commission website here, but they will also be posted as they are added to the website. They will be there. There may be something we can do to review at some stage. It is something I am open to doing. On the approach that is being taken by the EU, while there may be differences of opinions within member states as to how far we should go, there is a very clear view that these are, under ICJ law, illegal territories and, therefore, the EU has an obligation to make sure that each occupied territory is noted and that the postal codes are there for people to see. In the legislation itself, the scope is very clearly on the occupied Palestinian territories. I appreciate what the Senator is saying about going beyond that, but I wanted to make sure this legislation is specific to what we are trying to achieve. The complexity of this alone is very clear. To start including others would obviously add an extra layer to what we are talking about here because it would be outside the occupied Palestinian territory.
This will be my last time to come in on this, but it is important to specify it is particularly in relation to Gaza, which is an occupied Palestinian territory, but in terms of what postcodes are going to look like in relation to that and the question of illegal settlements. That is why I am asking the Minister to review. I understand her rationale for saying she wants to use this mechanism that is in place. Just for context I will make this sole point, which will relate very heavily to the debate we are going to have shortly on services. The very fact of these being labelled and there being a marking when things are coming from illegal settlements and settlements was not something the European Union or the Commission just did. They did it because they were forced to do it by individual countries taking action. That was really important. It was the UK then which was part of it. It was Denmark and, I believe, Belgium. In a row, each country started labelling the postcodes in terms of illegal settlements. The fact that they acted then created a situation where a case was taken about their actions, and that case being taken set the precedent that forced the EU as a whole to act. It is a really important example, in terms of the discussion we are going to have later, that this postcode system, which we will rely very heavily on here, was only brought in by the pressure of individual states giving leadership and acting beyond what the European Union was doing or claimed it had to do. That is what created these codes as a starting point. That is why it is appropriate that we not simply be complacent on how these postcodes and so forth will operate but that we have a strong monitoring role in relation to them and we bear in mind that they are something the European Commission was forced to introduce. In that context, it is very appropriate that there would be a review as to the operation. I know the Minister mentioned a review. Explicitly, whether or not the Minister wished to take in Syria, Lebanon and so forth, the key point on Gaza is that we monitor how that system within the European Union is going to accurately reflect the illegal settlements that are certainly planned and, indeed, extractive colonies that are explicitly planned for Gaza, including by some of those who have been participating in EU discussions about the future of Gaza. It is in that context that I am asking the Minister to keep track of it. This is not an infallible mechanism and it is not one which was done as part of due diligence. It was done when forced to be done by individual states giving leadership, as Ireland should be giving leadership in relation to this question of trade at all.
I would say that we are showing leadership through this legislation. I appreciate we will debate the view that we are not going far enough, but this is against the view of much of our friends in the EU. We are going further here. I fully accept what the Senator is saying. There is obviously a huge concern in the fact that there is an ambition now that 70% of Gaza would be occupied and the Israeli Government has said that very clearly, even though the second stage of the peace agreement is that it would start to withdraw as Hamas starts to disarm and that there would be a rebuilding. The Senator is right. That was the discussion we had in the donor group the other evening. It is very difficult to talk about rebuilding when people are focused on surviving. The main tenor of my discussion with the Prime Minister that evening was how we make sure we support people in the here and now so that they can quite literally survive, and then look beyond rebuilding. We cannot rebuild if 70% of Gaza is occupied by the IDF. There is still a way to go before we concede that this is not going to change.
I cannot, and I do not think we should, concede that this is where they are and they are there to stay. That is absolutely unacceptable and completely contrary to international law. However, at the moment we have had no movement. We have to continue to advocate for the peace process to move on to stage two where we start to see a withdrawal from Gaza and an ability for more aid to get in. From a rebuilding perspective we need to focus on more humanitarian aid getting in because there is not enough. That is the plan. That is what has been agreed. We can all see that the attention is somewhat elsewhere at the moment. We absolutely need an agreement in Iran. We know the conflict and the impact that is having on the wider region. The more there is a focus on Iran and on Ukraine, the less ability we have to move forward the second stage of the peace plan, which is essential if we are going to ensure the Israel Defense Forces pull back from Gaza and that there is an opportunity for people on the ground to rebuild their lives.
I fully agree with the Senator and this is something that will be constantly kept under review and monitored. This will be an agenda point for every single meeting we have during the European Presidency, and even in between our meetings. We need to make sure every single effort is made to progress the peace plan. It might be imperfect. It is wholly imperfect. It is not operating as it should, even at the first stage, but it is has to be something we can work towards and try to achieve because at the moment there is nothing else there for us to be able to progress. It is wholly imperfect but we have to make sure that that in itself, coupled with what we are doing here, makes progress. If we make no progress on the West Bank, the overall objective of that two-state solution and self-determination is gone. This is also where we have to focus, as well as making sure the next stage of the peace process can be progressed. It is difficult at the moment. I was at the meeting, as was said, when Jared Kushner spoke. Whether we agree or disagree with what was said, there were a lot more people in the room who were of the same mind and the same vein as us in terms of what we want to achieve. What I took from that meeting is that the vast majority of countries from around the world have the very same views as us and that is why we are focused on what we were focused on in that meeting in particular, which is supporting people immediately.
Amendments Nos. 2 and 10 to 12, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 4, between lines 4 and 5, to insert the following:
“ “settlement service” means a service provided in whole or in part within a postal code or relevant occupied territory to which this Act applies;”.
Regarding the comment the Minister made a few minutes ago when she said people would feel the Bill is not going far enough, that is an understatement because clearly, and by the Minister's own admission previously, we are not complying with the ICJ judgement or with international law. We are here because you would imagine we would be trying to comply with international law. We should be complying with it, not trying to. We have an opportunity to comply with international law. As this occupied territories Bill has been watered down, it is not going to comply with international law and the ICJ judgment. We are also here because of the brutal treatment of Palestinians by the Israel occupying force, IOF.
One person who probably represents the horror that Palestinians are facing is Dr. Hussam Abu Safiya, a paediatric doctor, who was kidnapped by the Israeli authorities. He had no charges and he has been beaten and tortured daily. His legal team has stated that he believes, with good reason, that he is going to be killed. It seems to be only a matter of time before he will be murdered by the Israelis unless there is some sort of intervention by governments. I ask that the Irish Government intervenes and makes it known that the treatment of Dr. Abu Safiya is completely unacceptable. He is a man of huge humanity. He stayed when many would have left. He has huge humanity, which is something that is lacking from the Israeli Government and the IOF. Dr. Abu Safiya served the sick and the dying and he dedicated himself to his people, the Palestinian people. He was beaten in detention and there are serious fears for his life. For many Palestinians, their life means nothing to the Israelis. The Government needs to add its voice to the condemnation of the treatment of Dr. Hussam Abu Safiya. It is really important this happens.
In relation to these amendments and amendment No. 2, the vast majority of trade between Ireland and the occupied Palestinian territories takes the form of services. To purposely exclude this trade from the Bill undermines the spirit and purpose of the Government's effort here. This is the fundamental issue with the legislation. It is disappointing that the Government chose to ignore the conclusion of the foreign affairs committee when it conducted pre-legislative scrutiny on this topic. Amendment No. 2 defines "settlement service" as "a service provided in whole or in part within a postal code or relevant occupied territory to which this Act applies". Likewise, the other amendments in this group relate to reinserting a ban on trade and services into this legislation, as was proposed in Senator Black's occupied territories Bill, and introducing a ban on the advertising of services originating in the occupied territories. From the Dáil debates on these points, I fail to see any compelling, legal, political or moral reason for services not to be included within the scope of this Bill. Services make up 70% of the trade with these illegally occupied territories and settlements. The Government needs to go beyond merely tokenistic gestures when it comes to sanctioning occupation and illegal settlements.
If the purpose of this legislation is to have Ireland lead by example and build momentum on an international level by taking a strong stand against these illegal settlements, then diluting the Bill by excluding services can only cripple the leadership the Government claims to want to show. Ireland can be a leader when it comes to sanctioning these settlements but not when we back down at the slightest whiff of opposition. Likewise, if the purpose is to inflict a real economic penalty, then excluding the vast majority of economic activity from the sanctions makes this legislation practically useless.
I fully accept the need for this legislation to be legally sound and able to withstand a challenge within the courts. I also fully accept that trade with the Israeli West Bank settlements is illegal under customary international law, including trade in both goods and services. The Minister for foreign affairs has also stated that she accepts this ruling, yet by choosing to exclude services from this legislation she puts us further away from compliance with this ruling. The Government has stated that in an ideal world it wants to be in compliance with the legal ruling but that it is not allowed to take action at a domestic level solely because the Attorney General advised it that this is the case. Unlike the Minister, I do not take the word of the Attorney General as gospel. Experts in EU law have told us that Article 62 of the Treaty on the Functioning of the European Union enables Ireland to take this action and that there are notable examples of member states taking actions to restrict illegal external trade. Some of the most esteemed and recognised experts in European law say that Ireland is well within its rights to restrict trade and services within our borders, yet the Government chooses to put its head in the sand. To me this seems to be another example of the Attorney General's advice being used as a get out of jail card by Ministers looking to backtrack on their election promises.
The Minister will know that the big substantial issue I have with this legislation is the decision to exclude services, which has been core to the debate on the occupied territories Bill. I would like to use this opportunity to address it. I will not make a big long statement or speech but there are a few specific points I would like to put on the record of this House to justify these amendments, which seek to reinsert a ban on services into this Bill. Before I start, I welcome the Palestinian ambassador. It has been an honour to work with her over the last few years.
I will be absolutely clear. International law requires a full ban on all trade with the illegal Israeli settlements, both goods and services, full stop and no ifs or buts. In July 2024, the International Court of Justice held that the Israeli occupation of Palestinian land is illegal and the settlements built on that occupied land are illegal and therefore all countries, including Ireland, are obliged at a minimum not to trade with the settlements. In paragraph 278 of its advisory opinion, the ICJ held that all states are under an obligation "to abstain from entering into economic or trade dealings" and "to prevent trade or investment relations" with the settlements. Effectively, international law requires that all economic support for the settlements must end. Indeed, as Blinne Ní Ghrálaigh has stated, Ireland needs a much fuller audit of our economic relations with Israel. Some of the most eminent legal experts in the world have told the Dáil foreign affairs committee that international law makes no distinction between trade in physical goods like fruit and vegetables on the one hand and trade in services like tech and IT on the other.
A euro of support is a euro of support. The ICJ was clear that all must end. Crucially, the Government agrees. It has stated: "considering the 2024 [ICJ] advisory opinion in the wider context of international law ... the only reasonable reading of the Opinion is that a complete prohibition on trade with Israeli settlements is required." During the Dáil Committee Stage debate in the select committee on 23 June, the Minister accepted that the international legal obligation on Ireland to end trade with illegal Israeli settlements "includes services and goods." The Minister stated that a full ban on both goods and services is required to be "fully compliant with the ICJ ruling". This Bill, however, will bring us into partial compliance only. Therefore, this Bill does not comply with our obligations under international law. The Government is knowingly passing legislation that will leave us in breach of our international legal obligations by choice. It is intended to stay like that up until such point that a full ban is agreed at EU level, which as we know may never arrive. My colleague, Senator Higgins, will speak more on this aspect later.
These obligations regarding services existed long before the ICJ advisory opinion in 2024. There has been a narrative from the Government that having opposed my occupied territories Bill for several years, everything changed because of the ICJ ruling in 2024 and that now we can do it, or at least some version of it. It is important that we are clear this is not the case. The ICJ in its advisory opinion of July 2024 did not make new law. Instead, it clarified existing international law that was already binding on states since long before. My colleagues and I made this argument back in 2018, as did several legal experts, including Dr. John Reynolds and Dr. Tom Moerenhout.
Crucially, however, that was also the Government's position. On 22 February 2024, five months before the ruling, Attorney General Rossa Fanning represented Ireland at the ICJ proceedings that led to the historic advisory opinion. He set out very clearly not only the serious breaches of international law related to the occupation and the settlements but also what this means for the rest of us - in light of these breaches, what must we do? At paragraph 37 of his intervention, the Attorney General said:
In Ireland's view, these obligations require all States, as well as international organisations with external trade competence (in Ireland's case, the EU), ... to take steps to prevent trade that assists in the maintenance of the situation created by the settlement activity, or that implicitly recognises or serves to entrench or legitimise Israel's settlement or annexation of that territory.
The Irish Government deserves credit for this intervention. It helped to bring about the advisory opinion, which, let there be no doubt, has been very important. Ireland went to the ICJ five months before the ruling and stated very clearly that international law already required a ban on trade with illegal settlements. It stated that this obligation applies to the EU, yes, but the cumulative language of "as well as" makes clear that it is additional - the obligation also applied then to Ireland as an individual State.
We should be clear, then: the law did not change in July 2024. It was already the legal position of the Government of Ireland that we must ban trade with settlements. Of course, nothing changed in this period in EU law either. The EU treaties are unchanged. The "public policy exemption" under EU law that the Government now relies on to pass this Bill is exactly the same public policy exemption my colleagues and I set out in this Chamber in 2018.
What has actually happened is politics. A genocide has taken place in Gaza, the public marching on the streets demanded action and the ICJ advisory opinion, as authoritative as it is, gave the Government an opportunity to change course. I am glad the Government took it, but we should be clear that it was a political decision. I truly regret that we did not arrive at this position eight years ago. We did not need to wait for a genocide to act on this.
Third, if services are to be included through these amendments, how does the EU public policy exemption apply? Having told us for six years that the public policy exemption does not apply whatsoever, for the Government to now say it applies for goods only and not services is simply not credible. Some of the world's most eminent legal experts have made absolutely clear, in the Dáil committee last year and in several detailed legal opinions published in 2018, 2024 and again in 2025, that it applies to both goods and services. There is just no clear reason we cannot ban both.
We should not wrongly characterise this as a case of "external experts say A but the Attorney General says B and, therefore, our hands are tied". The advice from the AG, which has leaked and is in the public domain, is qualified. Of course it is, given the strong legal arguments made by those experts that we can include services.
As my colleague Senator McDowell, who is here in the House, himself a former Attorney General, made clear on Second Stage, what to do with this advice is ultimately a political decision. The AG will outline to the Government a series of legal arguments that can defend a ban on services based on public policy, as well as his view on potential challenges. There is absolutely no doubt whatsoever, given the views of so many eminent legal experts, that we have a strong case in either direction. We could include services and defend that full ban on the basis of what the Government itself recognises is a binding obligation under international law, and I have no doubt that we would win. If we lost, however, under the European Communities Act 1973 we could simply repeal that aspect of the legislation and maintain the goods ban, so there is absolutely nothing to lose and everything to gain.
This is the approach Spain has taken. Spain's legislation is not perfect and does not ban all services outright but it does ban the advertisement of certain services. The effect is that online tourism companies like Airbnb can no longer list illegal Israeli settlement properties. That is financial support no longer flowing to the settlers. It has been cut off in Madrid and it should be cut off in Dublin too. For the purposes of EU law, Spain's ban is undeniably over the line. Spain took the step and is ready to defend it. Spain restricted trade in those services, and nearly a year later what has been the response? Absolutely nothing. The EU has not initiated infringement proceedings or any challenge. Spain has not even needed to go to the EU courts. The relevant companies have largely complied and delisted the properties. Crucially, and this is the real crux of this matter, the economic sky has not caved in. US companies continue to operate and trade in Spain as normal. Of course they do, because they did not move there because they loved Spain's foreign policy but because they want to do their business and turn a profit, which they can easily still do. I really regret that services have ultimately been removed from this legislation because of fearmongering about the United States and economic threats that have no real basis in evidence.
Lastly, we have been told that a ban on services is just too complicated to implement. Frankly, of all the excuses given, that is the most risible. What we are asking for here is not new. We have done it before - in 2014, when Russia occupied Ukrainian territory, and rightly so. We saw a ban on the importation of goods but also investment and the provision of certain services in those territories. That ban has been in place for over a decade. IBEC told the Dáil foreign affairs committee that its members complied with the law. If Irish businesses can be required by law to stop providing services to the Russian companies tearing up Ukraine, why can they not be asked to do likewise with the Israeli companies tearing apart the West Bank? The Government has given us absolutely no answer to that.
Ultimately, services are where the money is. About 70% of Ireland's external trade is in services. By exempting these flows from the Bill, the Government is implementing a trade ban that deliberately omits the vast majority of Irish trade. It is consciously letting large companies providing tech, IT and other service-based trade off the hook. To me, that is a tragedy. If we are serious about opposing the settlements, an absolute minimum measure, we should do it right. In fact, we should be doing so much more.
I urge the Government to be brave, to accept these amendments and to ban trade in services, as international law requires. We cannot just wait on an EU ban that may never come. If we are not successful today, I will a hundred per cent be back in this House in September to move legislation to extend the ban to include services. We will keep going as long as we need to - until both our moral and our legal obligations are met.
Well said.
I welcome the Minister here. I fully accept that the Government in general terms follows the advice of the Attorney General. I also fully accept the proposition that, in general terms, the advice given to the Government by the Attorney General is first of all confidential and, second, generally not published. I have no problem with those propositions. However, I fully agree with every single word Senator Black has just spoken, and the reason I want to intervene at this point is as follows.
First, I want the Minister to tell the House, has any EU institution communicated to Ireland in any way that Ireland, as a member state, is prohibited as a matter of EU law from prohibiting trade in services emanating from or provided by entities in the occupied territories?
Has anybody in Europe ever said we may not do this? I would like a clear yes-no answer to that. If we have been told we cannot do it, that is one thing, because the Attorney General would then have to say that we are facing a challenge from the EU. The issue then moves from being one in which it is possible to hold bona fide views on either side of the question. The real question is this. Has any EU institution communicated to Ireland in any way that members states are prohibited as a matter of EU law from prohibiting trade and services emanating from, or provided by entities in, the occupied territories? If so, we would like to hear about it, and we are entitled to hear about it. That is not a secret. It is not confidential. If somebody in Europe says we cannot do this and may not do it as a matter of EU law, then the Irish people are entitled to know that is what the European institutions have said. That is the first thing.
Turning to the Attorney General, has the Attorney General categorically advised the Government that any member state that bans trade in services emanating from, or provided by entities in, the occupied territories would be in breach of EU law? Has he said that in his view, as a matter of European law, no member state can do this? Has he said that categorically, or has he said there are two views on this and that he favours one view rather than another? It is possible the European Court of Justice would take one view rather than another. However, if I were asked by the Government to argue the case, I would be happy to argue that no member state can lawfully ban trade in services with entities in the occupied territories.
The litmus test is the third point I would like clarification on. Senator Black described how Spain has limited the advertisement by companies like Airbnb of residential services in the occupied territories. If a member state like Spain were brought up before and challenged by the Court of Justice of the European Union for breaching EU law on that account - the issue arose in the Court of Justice of the European Union in Luxembourg as to whether that was lawful - would Ireland go in there and say that our view is that Spain cannot do this, and urge the court to tell Spain it is acting unlawfully? Would the Attorney General, who has gone to the Court of Justice of the European Union, say that? Would he say that he wants to tog out, so to speak, against Spain on this issue and represent it as Ireland's view that Spain may not take even the limited steps it has taken in relation to services? That is the question. Would Ireland intervene in those proceedings to say that no member state can do this as a matter of European law and that we invite the European Court of Justice to rule that Spain is acting in violation of European law. If we would not do that, why is that the case? If we say it is so important that Ireland cannot do it but that it is not so important that any other member state can even take modest steps in this regard, then what is the explanation for Ireland's attitude? For instance, has the Attorney General said that it would be unlawful by law to do in Ireland what the Spanish have done, which is to prohibit advertisement of Airbnb-type services where they are located in illegally occupied territories? Are we to believe that Ireland's position is a rigid position? Or are we to believe, which I think is more likely, that it is an on-balance view of the Attorney General one way rather than another, but that either outcome is arguable if the matter were challenged in European law? I would love to see what the Attorney General would say, in his professional advice to the Government, is the likely outcome of such a challenge at this stage. I think we are entitled to know if we are going to have the Attorney General's advice given to us as a reason for not dealing with a ban on trade. We are entitled to have a clear view as to the strength, force and determination of Ireland to adhere to this position if the matter becomes the subject of a dispute between the Commission and, for example, Spain in the European Court of Justice.
There is another question I would like the answer to. This legislation has passed all Stages in Dáil Éireann and come to us for consideration. Did the Taoiseach, pursuant to the Constitution, provide a money message in respect of this Bill? We were told at one stage that was a reason it could not even get going in the Dáil. I would like to know if there is a money message for this legislation. Has the Taoiseach said that this involves a potential charge or appropriation on the people and that the risk of some kind of fine or whatever coming from the European Union is such that he is recommending it for the purposes of the particular article of the Constitution? The absence of such a message was clearly identified as a reason Senator Black's Bill could not go anywhere in the past. We have to remember, as I said on Second Stage, that the Fianna Fáil Party supported Senator Black's Bill then. The Government was in a minority in Dáil Éireann. The fig leaf it resorted to, to prevent the Fianna Fáil members doing in the Dáil what they had done here, was to signal that the legislation as proposed by Senator Black would require a money message and that such would not be forthcoming from the Government. I would like to know if that has happened on this occasion.
The American ambassador to Ireland has described even this legislation as a stunt. It is not normal behaviour for any diplomat to say to a sovereign parliament that it is engaging in a stunt, or to accuse a government, even in respect of goods, to be engaging in a stunt. Services can be easily relocated as to their origin. If I live in Ranelagh and I provide an opinion as a barrister, it could be provided in the Four Courts or it could be provided in my house. It could be provided in my holiday home if I want. Services are so mobile, except for the kinds of services the Spanish are prohibiting.
If you are talking about the difficulty and impracticality of deciding where services are originating from, what is the realistic, truthful political justification for saying we cannot ban trade in them as emanating from one part of the Middle East, namely, the unlawfully occupied territories, rather than the rest of Israel, which would not be caught by it? I do not know. I do not want to belittle anything but if you are talking about tokenism, that cuts both ways. If the Minister is saying it is difficult to police, that cuts both ways in relation to services because the simple fact, as I read it, is that virtually any service can be provided anywhere, even if the people who have actually done the work are located somewhere else. Working from home is one thing; working from an illegally occupied settlement is another thing. Proving where the service actually emanates in the great majority of professional services is virtually impossible, unless the person providing the service is blatantly stamping it all over their contractual documents or whatever that it emanated from one place or another. If this is as the American ambassador so unfortunately, rudely and disrespectfully refers to as a stunt as regards goods, the suggestion that somehow its extension to services would present special difficulties cuts both ways. We can say, along with the Spaniards, that something that is clearly identifiable as the provision of a service is to be prohibited as regards its provision in the State for reward, but surely, in practical terms, being honest and truthful, it would be so easily evaded if it was applied to services and that including services is highly unlikely to have any significant practical effect.
There are a lot of people who went public - some of them to my gravest disappointment; I think they were cowardly – and said if we keep on with this Bill, even in respect of goods, the consequences will be terrible for Ireland. They have not been, and they will not be. We will not be the subject of retaliatory this or that. America, because of the situation that now exists there, is a different place from the place it was even a year ago. The notion that Ireland will be punished by tariffs or anything else or that a non-investment will take place in Ireland because of a view that we take about whether this Bill should or should not apply to services is fanciful in the extreme. The point that annoyed me about the Chicken Littles who said the sky was going to fall if we proceeded with this legislation is they have now gone silent because the Government has decided to proceed with it as regards goods. We should be courageous enough to extend it to services because the sky ain't going to fall on that account either.
I also acknowledge the Palestinian ambassador for joining us, Senator Black and her team and Conor O'Neill for the incredible for the incredible work they have done for the last eight years, and all the activists because they are the people who have actually got us to this stage. Without the continued political pressure from everyday people in Ireland, I do not believe we would be here.
The Minister said last week and again today that there is a view that we are not going far enough. As I said last week, it is not that there is a view that we are not going far enough, it is that we are just not compliant with international law. We are not meeting our obligations under international law. I cannot believe we are passing legislation which is knowingly non-compliant with international law. Mark Rubio recently said the ICC was waging a war with the US through international law. We have a situation where international law on every corner is being utterly undermined globally and we participate in that by passing legislation that does not meet that threshold or standard. By the Minister and her Department acknowledging that we are only partially compliant, we are actually contributing to the erosion of international law. We are on the precipice of a changing world order, where people in the US, like Marco Rubio, say that the institutions that uphold international law, such as the ICC, are wrong and are waging a war on the US. Up is down and left is right. It is absolute chaos. The norms that we rely on are being undermined and we are contributing to that erosion. There are no two ways about it.
We are pushing the weakest form of the Bill. I remind the Minister, as she well knows, that the occupied territories Bill with services was an election promise.
That was not in our programme.
It was not in the programme for Government but when asked and pushed that it be with services, it was included.
No. It was not.
The legal justification for not including services is empty and weak. Technical arguments are given for why implementation will not work but we had 18 hours of pre-legislative scrutiny in the foreign affairs committee, in which the legal pathway and the implementability of services was made crystal clear. I cannot fathom that we are moving ahead with this course, while acknowledging that we are in breach of our obligations under international law. It is quite extraordinary.
Briefly, on the ceasefire and peace plan that we are moving forward with, the IDF has killed four people per day, on average, in Gaza since the so-called ceasefire was put in place. That is why we need to hold Israel accountable for its ongoing impunity.
We often hear about a two-pronged approach. We are told we will not pursue services because we prefer collective action by the EU. Collective action at EU level would be everybody's preference. It would have a bigger impact, of course, but it is unclear if the two-pronged approach to bring us into compliance with international law will have any significant bearing or bear fruit because we know the realities in EU member states. We have heard Germany talk about blocking action on Palestine. We know the attitude of many member states on this. The question is how long we will wait for the two-pronged approach to work. Will the Minister make a commitment today that in six months, at the end of the Irish Presidency during which we will probably have the most influence or impact, she will revisit the inclusion of services? Will we wait 18 months or two years before we decide that if collective action by the EU does indeed fail, we will have to take action?
We hear often that the question around services is not legally robust. Again, we have lots of evidence that the public policy derogation of the EU extends to all trade. In fact, there is no distinction in international law between trade. As I said last week, we are tying ourselves in knots to make up a fake distinction between services and goods. Trade is trade under international law; there is no distinction between those two things.
The Minister has talked a lot about supporting a two-state solution. We are running out of time in relation to the two states. The lines agreed during the Oslo Accord are breached daily. The West Bank is becoming smaller and smaller. Gaza has become smaller and smaller. The idea of a two-state solution is crumbling before us. While recognition was important and crucial, it has not changed the facts on the ground for people in Gaza or the West Bank.
The Minister has spoken of huge challenges with the effective implementation and enforcement of restrictions on trade in services. She said that services are in many cases digital, intangible and subject to a number of different regulatory regimes. We have heard before of the Crimea example. Are companies that say they have banned trade in goods and services in Crimea not doing it? Is that what we are saying? Are these companies are not doing it? Are we saying they do not know where their services are generated and they are not mapping it, meaning services from Crimea are going ahead?
I do not think that is the case. We heard from IBEC when it was at the foreign affairs committee that its members were able to actively implement a ban on services and follow the law. It can be done in the case of Palestine too. I know the retort to this will be that Crimea was collective action at the EU level. I understand that will be the retort but regardless of that, it is a question of whether it can be implemented. Can a company identify where a service is generated? It might be someone sitting in a bedsit, working for a consultancy, billing headquarters and having his or her address in a settlement. It could be an organised service like Airbnb, Expedia or Booking.com. They are services which are generated in specific places. It is implementable.
The fact that it has been implemented by businesses operating in Ireland with regard to Crimea shows that a ban on services is implementable and that it is not intangible. Services actually are something tangible. We know where a service is generated. We know where there is a staff member generating that service, if he or she is physically in a location, or where a service is being provided. Companies definitely know that. We have this narrative that a services ban is not implementable. I do not think that has been demonstrated by the Department or the Government, and it certainly was not demonstrated in the foreign affairs committee. Companies are able to track, monitor and record the services in Crimea, and they can do the same in the occupied Palestinian territory. Under the EU-Israel Association Agreement, as the Minister knows, companies are obliged to make that distinction between goods and services made or generated in occupied Palestine.
Companies are already tracking these things under existing rules. They are already tracking where services are generated geographically. It would be very easy to implement a ban on goods and services, and also legally necessary. We are perpetuating the two-tier response on Palestine. We are basically saying that Palestinian lives matter less. I know that is not what the Minister feels, but that is the outcome of this type of legislation.
How do we deter companies from generating a service in illegally occupied territory in illegally occupied Palestine? There is the idea that they will just do it and not notify us that they are doing it, but we will have criminal sanctions and penalties like we have in Crimea if the company does that. Most companies do not really want criminal penalties and sanctions. That will be the effective deterrent.
Regarding collective action, international law does not say we only expect countries to act if they act in unison. It would be more suitable if we acted together, but at least 73,000 deaths later, we have not achieved unison or collective action. It is time to move forward with our own action. I know this Bill does it to an extent but we are setting a limit or a cap. The EU Commission will be putting forward proposals on an EU-wide ban on trade with the occupied Palestinian territory but in reality, I believe what we are going to see from that is an EU-wide ban on goods, instead of an EU-wide ban on goods and services, because Ireland - a country which I recognise that EU member states look to - chose to only go with goods. It chose the least ambitious, least aspirational version of the legislation. We could include services and then the EU would follow suit but I do not believe, at this stage, that the EU will go for more ambitious legislation when we have effectively set a ceiling on that ambition and how far this legislation could go. I have no doubt it would be a difficult conversation in Brussels but I believe in the Minister and the Department's diplomatic ability to put services over the line in those negotiations in Brussels. I think Ireland could do that.
My sincere, genuine worry is how we can be defenders of international law when we are knowingly not implementing it. The retort would be to get your own house in order first if we were trying to bandy around claims to other countries that they should be compliant with international law. They could say we have not, because we had a debate in both Houses of the Oireachtas and acknowledged that we had not. We lose our ability to be moral voices on the international stage, a voice that we claim to hold.
I have not been presented, in the committee last year, when I read all the Dáil debates, or throughout this Bill moving through the Seanad, with any argument put forward by the Government that holds weight as to why we would not include services. I know it is not the norm but there has been precedent for sharing the Attorney General's advice. Senator McDowell alluded to the fact that this is such important legislation with such public interest that, while there has been precedent to share the Attorney General's advice, rare though it is, it is within the Government's gift. I know it is the Government's private legal advice but it is within the Government's gift to share it, should it like to quell the concerns that so many of us have that this Bill is both implementable and legally sound with services.
The legal experts before the foreign affairs committee agreed that the only way to test the legal question would be to pass the Bill with goods and services and defend it at EU level. Ireland can do this. It was also agreed by the legal experts that Ireland would be entitled to do this in good faith without any real prospect of fines or penalties. In the face of genocide, would the Commission take infringement proceedings against us? It has not taken infringement proceedings against Spain. We know that with regard to the ban on advertising and services. Do we expect the Commission would take infringement proceedings against Ireland for meeting its international law obligations? It is unlikely. Deputy Roderic O'Gorman, when he was in Cabinet, talked about the Attorney General advice that he saw. That advice once again made no distinction between goods and services and basically alluded to the fact that it was a political choice whether to test the public policy derogation or not.
It is important to note that we have previously heard that the Government was only able to act and move forward on this legislation because of the ICJ advisory opinion, which gave us a legal foundation on which to move forward. Senator Black has mentioned that it did not change the law, of course. It only clarified the legal position for countries to take action. We are acting, which is great, albeit many years later, but we have the legal clarity from the ICJ's advisory opinion, but we are again knowingly not implementing the ICJ's advisory opinion to the full extent.
I know that the original leaked Attorney General's advice said there were concerns around Ireland unilaterally defining what an occupied territory is. However, of course, the EU recognises the 1967 borders, as does the EU-Israel Association Agreement. The EU has repeatedly said that it does not recognise illegal settlements in occupied Palestine and that they are illegal under international law. That would not be an issue in unilaterally defining what an occupied territory is.
Senator Black has alluded to this point already. In February 2024, the Attorney General, five months before the ICJ advisory opinion, said that obligations require all states to review their trading relationships with settlements in occupied Palestine. It requires them to take steps to prevent trade and assist in the maintenance of the situation created by settlement activity. We are literally still assisting in the maintenance of the situation in Palestine with illegal settlements if we do not ban services. It is just such a contradiction, yet the ICJ opinion is not legally binding, but it is a very clear statement on what is happening and our own obligations under that. We should be abstaining from entering into economic or trade dealings with Israel concerning occupied Palestine or doing anything that may entrench its unlawful presence in the territory. To trade in services does indeed entrench the unlawful presence of Israel in Palestine. We should not be rendering any aid or assistance in maintaining the situation created by Israel's illegal presence in Palestine. We would literally be assisting in maintaining the situation when we include goods.
The Attorney General also said that unilateral member state action in an area exclusive to EU competence can only be justified in the most exceptional and narrow of circumstances. What could be more exceptional than more than 73,000 people being killed, thousands displaced from their communities and the UN independent inquiry providing horrific detail of the violence and murder of children, and not just murder but the violence done to their corpses in the most horrific circumstances? What could be more exceptional than genocide?
The Attorney General referred to legal difficulties in passing the Bill with services but never said that it was illegal. To respond to Senator McDowell's point, there has been no evidence that any of that would be illegal. Maybe there would be legal difficulties but Ireland could be the country that challenges it in the courts, brings it forward and sets a precedent for other countries. Blinne Ni Ghrálaigh, an amazing, eminent human rights lawyer, said Israel's violation creates obligations on all states and international organisations to ensure compliance, such is their foundational importance to the international legal order and the international community. She said that Ireland is thus duly obligated not to recognise as legal the situation arising from Israel's unlawful presence in the occupied Palestinian territory nor to render aid assistance in maintaining that situation.
It is also important to touch on the potential breach to our own Constitution that this watered-down version of the Bill might represent. I mentioned this last week but I would like to get the Minister's opinion on this in her response, in particular on Article 29.3 of the Constitution, which commits Ireland to respecting international law as its rule of conduct in its relations with other states. Are we doing that when we are knowingly passing legislation that does not meet our obligations under international law? I have mentioned previously that at a time when international law is under such threat, rather than championing it in its entirety, we are undermining and eroding it.
On the question of the public policy derogation, I mentioned last week that EU courts and case law have been clear that EU law must be interpreted in a way that allows individual EU member states to uphold their obligations under international law. This was made very clear by the two professors who spoke at the committee. It is almost obvious that, of course, EU law cannot prevent a member state from doing this. Case law makes it clear that an EU member state cannot be prevented from meeting its obligations under EU law. It would be astounding if that were permitted. As Professor Koutrakos and Professor Tridimas mentioned, and I said this last week but I would like to repeat it, the public policy derogation provides a derogation not only from the free movement of goods but also the freedom to provide services. In fact, the EU is subject to public policy exemptions, which we find in Article 62 of the Treaty on the Functioning of the EU in conjunction with Article 52 of the Treaty on the Functioning of the EU. Trading goods within the EU and with third countries is also subject to a public policy exception and that is crucial. It would be very odd if EU law were interpreted to mean that the power of member states to restrict trade in services with third countries was significantly more curtailed than the power to restrict trade in goods and capital.
One of the considerations that is important to any government is the impact on jobs and, of course, as legislators we should always consider the impact of what we do domestically as well as internationally. However, the Government has consistently failed to provide any evidence of the economic impact this Bill will have. The foreign affairs committee asked the Government to make an assessment of this but we have not seen it. We have seen letters from US politicians suggesting they will be very unhappy with Ireland's position if we pass this legislation, in any form but definitely with the inclusion of services, but that is not a sufficient reason not to pursue services. Upsetting a few Congress people in the US is not a good enough reason not to uphold our obligations under international law. IBEC told the committee it is not of the view that the companies in question would pull out of Ireland if services were included. Further to that, during pre-legislative scrutiny IBEC acknowledged that very few of its member companies would have any involvement in the illegal settlements.
I do not understand why we are setting the lowest possible precedent and creating the least ambitious pathway. We should be asserting our values as a member of the EU on international law on human rights. We should be leading with ambition and creating not a ceiling but a floor that the EU Commission can follow with even greater provisions to hold Israel accountable for its genocide in Gaza. Hundreds of listings have been banned in Spain since December. It is cutting off crucial revenue for companies operating in Palestine. Effectively it is a ban on services. The ban on advertising is effectively a ban on services. Spain has set a bar that we are aiming to go lower than. Revenue streams from stolen land have been shut down. How positive that is. Why would we not be doing the same? Critically, no infringement proceedings have been taken against Spain and the sky has not fallen in.
A comment was made on Second Stage by the Minister of State, Deputy Richmond, that Ireland will be the only parliament in the EU to pass legislation such as this. That is great but the Spanish Parliament did vote on it. While it may have been voted through by royal decree, the Spanish Parliament still took a vote. The question of how Spain introduced a ban on services is neither here nor there. I do not think it has a bearing. The fact that it has done it and that it has it in legislation is what is crucial.
We hear the Government has advice from the Attorney General but we do not know what that advice is because the Government has chosen not to share it. We have advice from a plethora of highly respected legal advisers who have made it clear that there is a pathway for the inclusion of services. Sometimes the Government says the Palestinian people are very happy with what we have done and with this ban on goods alone. I am sure it is true that the Palestinian people appreciate the solidarity but I also speak to a lot of Palestinian people who want more and who do not think Palestinian statehood recognition or a ban on goods is going to change the facts on the ground. It will not cause change them being dragged out of their homes in the middle of the night, displaced and taken away from their livelihoods and farming land. I was in Palestine last September and I heard that from people. Everyone in Palestine is deeply aware of this Bill. It is an exciting piece of legislation. However, the people I spoke in to the communities I went to could not fathom why we would not meet our obligations under international law.
I know the Bill will have an impact worldwide and will send a message but that is why I cannot understand why we are not going with the most ambitious version of it and why we are potentially reducing the message by only having goods. I really worry that we are just sending a message to the Palestinian people that international law is not black and white but grey and that we are going to interpret it as it suits us. Communities have been crying out for decades for support but the international legal systems are failing them. Al-Haq, the Palestinian Centre for Human Rights and Al Mezan Centre for Human Rights, organisations that we support through Irish Aid and that have been sanctioned by the US, are finding it difficult to operate. The International Criminal Court has been sanctioned by the US and is being handcuffed in doing its work in documenting human rights violations.
International law is under attack. The way to protect the world is under attack. The systems and frameworks that we developed after the horrors of the Second World War are failing but international law cannot fail because it is written down. It is text we have signed up to. The member states that have signed up to international law are the ones that are failing. Failing to implement international law is the issue, not the law itself. We participate in that by knowingly passing legislation that does not meet those obligations. Maybe it is over for international law. Maybe might makes right and whoever has the most guns or the most economic power is going to win, but for the Palestinian people that is an absolutely terrifying thought. To truly stand in solidarity with them, we would at least meet the bare minimum obligations we have under international law. It is the bare minimum that we could and should be doing.
The Government regularly talks about the services element not being implementable, saying restricting trade in services is not implementable. In my view, that is misleading. Last December, the Spanish authorities wrote to seven online tourism platforms ordering them to remove hundreds of advertisements for tourism accommodation in illegal settlements.
As of today, six of those seven companies have complied. Ireland is effectively proposing to let similar companies based here, like Airbnb, off the hook. Will the Minister explain because I still cannot figure it out how Spain can do it and Ireland cannot? It comes down to a political decision taken by the Government to try to not offend anybody and at the same time, in doing so, offend everybody. Why not do it right and include services? Will the Minister explain why Spain can write to companies like Airbnb, stop them from advertising and we cannot? I still do not fully understand that.
I agree with colleagues on the points around services. I want to put on the record again today that we believe services should have been included in this Bill. We are very clear in our later amendments in relation to that. Services make up 70% of overall trade with the occupied territories. That trade, including financial services, tourism, tech and booking platforms, is a huge boon to the illegal Israeli settlements there and it must be tackled. It is hard to fathom that we would pass a Bill we know is not fully compliant with international law. We are either compliant with international law or we are not. I would like to hear from the Minister how she intends for us to become fully compliant after today. I welcome the Palestinian ambassador. I commend her on her work representing Palestine in Ireland and globally. She is very welcome.
It is not just disappointing but extremely disheartening. This has been going on for so many years since Senator Black first brought forward her legislation. I commend her team and Conor O'Neill on their work on that and for getting us to this point. I do not believe we would even be at this point today if it was not for Senator Black. We would not even have this watered-down legislation if it was not for Senator Black; I think we would have nothing. It is disappointing. It does not represent the will or the feeling of the Irish people. I do not believe that is what this proposed Bill represents. It represents a highly watered-down version. We had an opportunity to be the leader on this issue within Europe - not just a leader but the leader. We often talk about politicians in the past and might say that person was ahead of their time on that issue, but we can only ever be of our time. We cannot be ahead or before our time. We only get one life and unfortunately for many of those in Palestine and the West Bank, their lives were cut short because of genocide and the State of Israel, aided and abetted by the US in what it has done. We have stood by. We have had a lot of statements but have not taken enough action as a country. Given our history of being under colonial rule, it is disheartening. It does not do us justice as a people that we have allowed this to be watered down to this point.
Of course, this legislation is not without meaning, as I said. There is meaning in the goods piece but services have a much bigger impact and would have hit them a lot harder financially. Unfortunately, we have succumbed to pressure and hearsay in relation to whether people will lose their jobs or whether companies stay in Ireland, but the humanity of the Irish people can never be bought or sold. We either uphold international law or we do not. After this Bill fully goes through the Houses, we need to understand from this Government and the Minister how we will become fully compliant and pressure other countries to do the same. It is important. There are marches every week in Ireland for this cause. In Cork, we erected a plaque a number of weeks ago in the middle of the city where the march meets every Saturday. People are crying out for more action. I would have been extremely proud of our Government and the first to say it if services had been included as part of this Bill. It would have been such a proud moment. It is such a disappointment that we did not have enough courage to include services.
It would still be great to see the view of the Attorney General published in terms of the legal advice to get the depth and breadth of the advice given, and to be able to compare that with other legal experts who have said we could have included services as part of this Bill. The Bill is not without meaning but it is so disappointing that it has been watered down. Whatever about us as Senators or elected representatives, at the end of the day, it is the people of Palestine who are suffering because of this. We cannot allow the State of Israel and other rogue nations to go unchecked when it comes to upholding international law. International law has been made a mockery of over the past few years. We are allowing dictators and authoritarian governments to undermine international law whereas we here in a democracy have a responsibility to uphold international law and to be compliant. God forbid, we do not know in Ireland in future generations what will happen in the world. We may be calling on other countries to uphold international law to protect us. We cannot predict the future. We needed people to protect us in the past when we were under colonial rule. We cannot be hypocritical either about our own past. Ultimately, services should have been included. We need to see further action after this Bill to ensure we are compliant without delay with international law.
I will not reiterate a huge amount of what has been said. We have been saying for almost a decade that international law obliges us. This is not a lovely gesture or taking a stand in an abstract way, or a gesture of solidarity or even a sanction or boycott; it is compliance with international law. The Minister will be aware of the deep crisis international law is facing at the moment. I think Arundhati Roy described the western liberal order as sitting beneath the rubble in Gaza. International law has been in the firing line in what we have seen in recent years. International law's strength is in its implementation.
It is in countries acting and taking it seriously. Ireland has championed international law and said it will be a centrepiece of our values as we enter the EU Presidency, but there is a misalignment between the Minister's understanding of international law, as she has set it out and as the Attorney General has set it out, and what she is actually doing here.
The International Court of Justice paragraph 278 is crystal-clear that all states are under an obligation to abstain from entering into economic, trade or investment relations which contribute to the maintenance of the illegal settlements in the occupied Palestinian territories. That is clear. That is the Minister's comment on the advisory opinion. The advisory opinion is only the highest authority in the world telling us what the law already was. We said that was the case in 2017, and we were correct. The advisory opinion confirmed an interpretation the Government of that time had resisted. The then Government participated in the historical case that led to the ICJ advisory opinion. Its Attorney General argued in favour of the prohibition of trade and the Minister's comment is, considering the ICJ advisory opinion in the wider context of international law, the only reasonable reading of the opinion is that a complete prohibition on trade with Israeli settlements is required.
In relation to being compliant with the ICJ, the Minister said she believed more needs to be done. She has said we are moving towards compliance. The Bill is to provide for compliance by the State with an international legal obligation. That is the first line in the Bill, yet the Minister said, I think, on Committee Stage in the Dáil that this would be partial compliance. There is a real question about knowingly putting forward legislation that is only partially compliant. It is really ambiguous. Others have mentioned constitutionality. It is a problem from a legal perspective, potentially, but certainly from the perspective of commitment to international law.
When the Minister spoke on Second Stage, the rationale she gave did not stand up. I will come back to the two-pronged approach. The Minister said the reasons for this approach were that she wanted it to be legally defensible and practically enforceable, and that she was mindful of Ireland's wider economic interests. Where does that sit under international law? Where is the carve-out under international law that says you only do the bits that serve your economic interests? If we have an à la carte approach to international law and say it is okay not to do something because of wider economic interests, what signal does that send to everybody else who has an economic interest that might be suited by breaching, ignoring breaches or being complicit with breaches of international law?
It is not acceptable under the law and is not acceptable to the public, who do not want to see bodies on the ground or the many cases we do not have time to go into. I was looking at one case just the last day of a three-month-old whose father begged the Israeli forces to shoot him if they needed to shoot somebody, when they were denying his three-month-old access to an ambulance. On the same day his birth certificate was authorised, he died. That is what is happening in these places we are going to buy services from. If you want to set up a business on that land you have taken and you want to sell services, we are all part of pretending that is okay by some logic. It does not matter if a big company is part of it - it is never okay.
The Minister referred to the two-pronged approach to compliance. I will bring amendments later in respect of a timeline for that approach. The problem is when you lower the bar. This is something Blinne Ní Ghrálaigh spoke about eloquently to the committee. The committee heard, as to the practical implementation of it, that the Government can do it and that it is doing it to Russia. Legal experts told us clearly it is legally defensible and, not only that, but it would be useful to legally defend it. That is the point I made earlier. It was useful that countries acted individually and that there were legal cases taken. That forced the EU to act. It is useful when countries take the lead and that gets challenged because it forces the EU to come into compliance. That is also a two-pronged approach, if you want to take leading action that demands a response from the European Union. This is Blinne Ní Ghrálaigh's point. Precedent can be good or bad. Blinne Ní Ghrálaigh talked about the value of precedent by ambitious implementation and ambitious action. She also talked of the danger when you lower the bar in terms of ambition. This is a concern.
Ireland is clear on what it wants. It wants services in there. The Government chose to only tackle goods. Of course it contributes to a lowering of the collective ambition at European level if the supposed leaders and champions, who are holding on so tightly to their name as leaders and champions, are saying goods are enough. The Minister told me in the committee that she believes Europe should be banning goods and services. By saying she believes Europe should do that and then setting an example for Europe of only tackling goods, it kind of weakens the message.
Can we stop congratulating ourselves on being the first Parliament? We are technically getting around the fact Spain did it by another mechanism. The point is that Spain did it. Senator Black, Conor O'Neill and I, hosted by Lynn Boylan, met with many Spanish parliamentarians a year ago. They listened and they acted. They did it very quickly. It did not take a decade. Spain has acted and has included the advertisement of services, which means it goes beyond goods. The principle of going beyond goods has already been established by Spain and we are rolling it back a bit. There is an amendment in this grouping to at least step up to where Spain is, which takes the important step of breaching the idea that it is goods only. It is a first and important step. We called on other countries to leap forward and do this. Spain put its head above the parapet and then we ducked our heads down a little. That is not good enough. A ban on goods is not good enough. A ban on goods is not compliant, is not strong enough in scale and is not the leadership we should be providing. I will come back later in the discussion to the two-pronged approach because there is a timeline on that if the Minister is serious about compliance and about Ireland's role.
I understand there was a money message from the Taoiseach when the Bill was going through the Dáil.
It is interesting to note what that message stated, "to authorise such payments out of moneys provided by the Oireachtas as are necessary to give effect to any Act of the present session to provide for compliance by the State with its international legal obligation, as identified by the International Court of Justice in its advisory opinion of 19 July 2024". In fact, the money message states that any money that has to be paid out of public money in respect of this is authorised out of moneys provided by the Oireachtas. I want to say this in relation to the Standing Orders of this House. The original argument about money messages was all about whether something was a potential charge on the people, which is not the authorisation of moneys in the manner covered by the money message.
Senator Stephenson mentioned something and I should have mentioned it earlier. Between the Second Stage debate on this Bill and today, the Secretary of State of the United States, Marco Rubio, has gone public. He has stated that they are now deploying a strategy internationally to dismantle the International Criminal Court. I ask the Minister, as Ireland's Minister for foreign affairs, to take this opportunity to roundly condemn this campaign which has been announced by the Secretary of State of the United States of America to bring about the dismantling of the International Criminal Court. The reason I think this is the opportunity to do it is that Ambassador Walsh is in the Phoenix Park announcing that this legislation is a stunt. That is insulting to Ireland. It is far worse than that. His boss, so to speak, in the American Administration is calling upon the 125 signatories of the Rome Statute to dismantle the International Criminal Court. I will not use any further example except to say that while 70,000 people and more, including 25,000 children, nearly all of whom are entirely innocent of anything, have been killed in Gaza without any condemnation from the United States of America, there was a time when Serbian generals sorted out over 7,000 Muslim men having overrun the UN-protected enclave in Srebrenica. They took them out and machine-gunned them into mass graves. The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretary of State Rubio is now attempting to do, which is to dismantle the only instrument of international justice and the international rule of law that dealt with that without any objection from the Americans at the time - they were quite happy to see these men condemned - the only conclusion you can draw is that America proposes that war crimes of that kind go unpunished unless somebody in Washington does a snatch squad job on whoever it may be in Venezuela or fires a missile at whoever they may want to obliterate in Iran and that is to be international law and the rule of law internationally from now on. I am asking the Minister in this debate to take the opportunity to talk about what Secretary of State Rubio said about the ICC, which is mentioned in the title of this legislation and something Ireland supports, and that we condemn utterly and without reservation a plan by the Trump Administration articulated by Secretary of State Rubio to dismantle that court and, worse still, he said to use all economic pressure they can on states to secede from the Rome Statute.
It is happy that the Hungarian change of regime in Budapest has stopped the proposed rejection of the International Criminal Court suggested by Viktor Orbán. It is not an exaggeration to say that this is a battle between good and evil. It is not just some lawyer's argument. If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombardment and 25,000 children dead in the slaughter, they are quite happy to say now that the institution which has condemned that as genocide and called on all member states to cut off trade relations with the illegal occupation should itself be swept aside because it is inconvenient for American foreign policy, and if we are not capable of making a clear statement in public to Ambassador Walsh to bring back to Secretary of State Rubio and President Trump that Ireland utterly rejects that campaign, condemns it and stands by the International Criminal Court, we are a flaccid, weak democracy.
I thank the Senators. I will try to cover all of the different points. While I appreciate we are speaking to one or two amendments, a lot of different issues have been raised. To be honest, I have avoided touching on this point in any of the debates because, as far as I am concerned, it is somewhat irrelevant, but it has been said a number of times in this debate that the Government is rowing back on commitments what we have made. The programme for Government changes and whatever we set or agree can be changed or adapted. We have always given a commitment that we would progress this legislation on goods. I am only saying this because it has been said a number of times in this House and the other House that, as a Government, we are rowing back on commitments we made during or after an election. That is not the case. Again, it is an aside to the debate because the relevance and importance of what we are discussing is important. It is to put it on the record of the House. We have been very clear in what we would progress. We have also been very clear coming straight into Government that we would seek legal advice on the basis that a committee had made recommendations and this is something we wanted to explore as to whether we could and should move forward with services.
We are discussing our own obligations here to adhere to international law. Nobody is disagreeing, so we are completely at one when it comes to the ICJ ruling and what it is that we need to do. Our own regulatory impact assessment states that the only reasonable reading of the opinion is that a complete prohibition on trade with Israeli settlements is required. I have said that and will say it again. That is absolutely clear. That is what we need to do. We are pursuing the two-pronged approach for the reason I outlined now. It has been said that this is only partial compliance and Senators have implied that this would leave us in breach of our international legal obligations identified by the court. I remind Senators that we are subject to other international law as well. We signed our Treaty of Accession in 1972 to what is now the EU, and we are now equally bound by our international legal obligations as set out in the European treaties.
I said this very clearly in the committee. While we have a two-pronged approach with a legal element and implementation, I also said very clearly that we have to comply with our European obligations as well. The Senators will appreciate the difficulties with the argument that we should interpret one rule of international law as requiring us to breach another rule of international law to be compliant with international law. The treaties we have signed up to as part of the European Union require us and set international legal obligations. In bringing forward this legislation, we are trying to make sure that we are compliant. I fully accept that we are going towards it and have said that very clearly, but by making sure at a European level that we then move on services, that will allow us to respond to this. Any suggestion that the Government is not being proactive, or that we are not a Government or a country that takes our legal obligations seriously, is simply not borne out by facts. I have to stress that.
On the actual legal basis, I have been very clear on what the Attorney General has said, and indeed the Senator has said that it is a decision for Government to take based on the advice. It is not that we have received something from the Attorney General that says we absolutely cannot and must not. The advice is very clear also that the legal basis for moving in goods is different from what applies in respect of services. There have been a number of different articles referenced. The public policy exemption we are focused on here in respect of goods is Article 24.2 of the regulation of 2015 on the importation of goods. There is no equivalent for services. Articles 52 and 62, which were referenced here today and in the committee, deal with the freedom of movement of persons, services and capital within the EU Single Market. That is the Internal Market. We are talking about external goods and services that are coming from outside the EU. Absolutely, as the Senator said on Second Stage, any legislation is open to challenge. I am sure legislation I have introduced in this House before has been challenged. To knowingly introduce legislation, as a Minister, that does not have a strong legal basis is not something that Government tends to do. We want other countries to follow suit, to set a precedent and show there can be movement at EU level, as we are seeing now in respect of the Netherlands. I know Slovenia has moved back but had been moving forward. There is Belgium and Norway, and other countries are now talking to us about legislation that have not said it publicly. Others are looking to move to introduce legislation. Doing so knowing the legal basis is not strong is not the approach that Government tends to take and I do not think it would encourage others to move forward.
On how it is implemented, people said that I would say it is like Crimea and that this is an EU-wide response, but there is a difference in all member states moving forward to implement and to ban services and what that means for companies and individual member states as opposed to one country moving on its own. That is not the sole reason but there is a challenge. People say we should do it anyway and it is just sending a message, but they also say that what we are doing here now is not good enough and it only sends a message. Yes, we want to send a message, but I also want to introduce legislation that we can implement, that is legally sound and is not going to be open to challenge, and that sends a very clear message that we as a Government do not support the actions of the Israeli Government. I cannot be any clearer than that. Some Senators have said that this is about courage and having the gumption to bring it forward, and that we are afraid of others. I do not accept that for a second. The Government and I as Minister have been in this House bringing forward legislation that was not supported, that perhaps did not have the support of the House. Sometimes you are successful and sometimes you are not, but you do it for the right reason. That is exactly why the Government is bringing forward this legislation, because it is the right thing to do. What I am also doing at EU level is advocating that we move at that level as well, so that we can be fully compliant and Europe is fully compliant.
On that basis, there has been movement. We are not where we want to be yet. We just had a Foreign Affairs Council on Monday. What we have seen and what I have seen since coming into this role in November was, at the outset, a handful of countries that supported any movement against Israel. I have said this before, but it was maybe three or four countries - ourselves, Spain and Slovenia - at the time. Now we have quite a significant number of countries that are advocating for change. They are advocating for a ban on services, goods, and trade. Some are advocating, as we are, for the suspension of the EU-Israel Association Agreement. It is very clear that there is not consensus or an overall majority to vote for the suspension of the EU-Israel Association Agreement. That is why we have advocated through the common commercial policy, which would allow qualified majority voting, QMV, that we would vote on a ban on trade. The paper the Commission presented to us had three options, and this is what we discussed at the Council on Monday. The first is a tightening of what is currently in place through the technical agreement I referred to earlier. This is preferential and non-preferential treatment of Israeli settlements depending on where they were. The second focuses essentially on higher tariffs for goods that are already coming in, and the third is a ban on goods. Obviously the first two, as far as I am concerned, legitimise trade in the occupied territories so we made very clear going for them is not an option. The third option is something I have advocated would be put forward as a formal proposal by the Commission and that we would move on this. Again, it does not go far enough. That is why we need to continue to advocate at EU level so that we do ensure we are fully compliant. This is not a matter of picking and choosing or saying we are only going to do so much because that is all we feel we can do. We have an obligation. We have signed our treaties of accession. There are international legal obligations set out in those treaties. It is about how we square that circle and make sure we are compliant with international law, as we always strive to be, achieve our objectives while at the same time adhering to our own legal parameters.
In response to some of the specific questions, both the EU institutions and individual member states deal with the law as it is. That is how we interpret it and the position that we find ourselves in now. It is not as we would like it to be but as the law is. This is how we are interpreting it. The Senator might correct me but my understanding in respect of the money message previously was that it was based on the previous Bill and on the basis that we would be breaching our obligations and that there could be fines. That was where the money message was at the time. This is our Government Bill that has been introduced, and the view is that it is now legally compliant for the reasons I have just outlined. Again I will just get clarity that this is my interpretation in terms of the previous element.
On international law being under attack, one of the reasons we chose values as one of our three priorities for our Presidency is that we as a country feel that it is absolutely essential, now more than ever when institutions are being attacked and when money is being taken away from those who are providing support to those need it most, including UNRWA and Irish organisations on the ground in Gaza, the West Bank and beyond, to show that our European values are the very basis of everything we do. We have to stand up for those European values of protecting basic human rights, human dignity, the rule of law, respect for international bodies, and respect for the multilateral rules-based system that favours everybody, particularly small member states like Ireland. That is why it is one of our three priorities. We will always stand up for international law. We will always stand up for the International Criminal Court. It is the most important international and independent body that we have. We will stand up for it no matter what. I believe that, when these types of things have come to the fore, when challenges have been put forward, be it by the US or others, the EU as a whole has actually been stronger than it has ever been. I have seen that over the last number of years, where the EU has been absolutely united in responding to make sure that these types of institutions are protected. We will have to do that again if this is the route that is being taken, and have no doubt as to where Ireland lies when it comes to the ICC more broadly.
On the potential implications here, I stressed in the committee that this was a factor. It is not the sole factor, to be honest, but as a Government we do have to take into consideration implications for people at home. That has to be the case, no matter what we do. We have to support people and take them into consideration. The US ambassador was clear that any legislation would not be welcomed by the US. If we were simply listening to the US, we would not be bringing forward any legislation and we would not be doing anything in this regard at all. I fully understand the depth of feeling here and I agree with the Senator. We all want to do more, we all want to change the actions of the Israeli Government. I believe the tide is turning. I do believe genuinely that, in other countries, including the US, public opinion has shifted, and that can only be welcomed. It is a good thing. I also believe we need to make sure we can effect and bring about change. Where we have moved collectively with other member states in the past, it has helped create a domino effect. I do not say "we" to take credit as a Government. This is Ireland Inc. This is the Government, Opposition, Government parties and public opinion moving together, whether it is recognising Palestine or bringing forward this legislation. I acknowledge Senator Black and those who have worked on this, and the ambassador.
Whether it is the work we do in providing for humanitarian support on the ground, advocating for the support of agencies on the ground or advocating for a consensus at a European level, we do all of this because it is the right thing to do, people need our support and assistance and we want to effect change. While we are a small country, I believe we have an opportunity to do that here. At the same time, we have to balance all these different obligations and implications, which is why we are bringing forward this Bill.
I thank Senators for the points they made and I appreciate that there may be a difference of views and opinions on this issue. However, we want to achieve the same objective and goal here, which is to effect change and, most importantly, to support the Palestinian people and those who need us most.
As embarrassing as it would be, I would prefer if we were just honest about the lack of courage. What the Minister outlined is actually a disservice in terms of international law. It would be better to say we lack courage than to put forward wrong arguments at a time when an understanding of international law is so crucial.
It is profoundly incorrect to say that there is a balancing between international law and European law, or that there is a tension there. Let us think what it means to suggest that there is a tension between European law and international law. What an irresponsible thing that is, frankly, to be saying at a time like this in the world. The fact is that European law sits within international law. In fact, a number of mechanisms have been put into European law to ensure there is compliance with international law. This idea that we balance one obligation against another obligation, this kind of creation of an artificial separation between European and international law, is unhelpful from a country which is supposedly leading discussions on international law for the next few months. I urge the Minister to rethink this, just for pure accuracy, because it may be a useful thing to say right now but it is not useful or correct.
Professor Panos Tridimas and Professor Takis Koutrakos, two of the most eminent experts in EU law, have stated in respect of this clash that the understanding of public policy in EU law follows also in this regard. This is about the public policy exemption, and it is not like a minor technical thing around customs. It is a key principle. It is an objective within EU law, the EU legal structure and the treaty to avoid a situation where interpretation of EU law would make it impossible for member states to fulfil their international legal commitments. The intention is that member states can abide by international law. There is nothing in the treaty that says European law should be prioritised over international law. It is the absolute contrary. Measures and principles, like the public policy exemption, are put into European law to ensure member states can meet their international obligations.
There is an obligation under international law to ban trade in services and it is not correct to say otherwise. In the hearings we had in the foreign affairs committee, we had two of the world's leading experts in. When we looked at this as an obligation originally, in 2017, we published our advice that was clear around the public policy exemption. We made it very clear how it could be used. The Government, on the legal advice it had then, denied it. In 2024, the Government finally accepted that the public policy exemption does offer a narrow pathway to ban trade with settlements at the national level. A distinction was not being made at that time between trade in goods and trade in services. The Minister has said that trade is trade and that includes goods and services under international law.
In the foreign affairs committee, Professor Koutrakos and Professor Tridimas explicitly stated that public policy provides a derogation, not only from the free movement of goods but also from the freedom to provide services. For the reasons explained, they said, the prohibition of settlement goods and services, to the extent that they fall within the scope of EU law, is also justified by public policy. They saw no objective reason services might be differentiated from goods. They continued: "We take the view that a ban such as that provided for in the Bill, and which could be extended to services, would be justified on grounds of public policy". That is the evidence the committee heard and no one contradicted it. Even one of those who came in with the contrary perspective on the occupied territories Bill, Professor Graham Butler, said, "I am in total agreement with what Professor Koutrakos said about the existence of the exception even if it is not explicit for services in the same way as it is for goods".
The public policy exemption is there as the tool. We are not asking the Minister to break EU law, and it is disingenuous and dangerous to suggest that is what is being requested. We are asking that the public policy exemption be interpreted in the way all these legal experts have said can be done. No legal experts have credibly come forward to say this cannot be done. The committee as a whole stated that we believed the right thing to do was to move ahead, take that action as a public policy exemption and say that these were our grounds.
By the way, what would happen if a case was taken? The committee was absolutely confident that such a case would set a useful precedent and would force EU action not only in respect of goods and services. Rather than the long path to persuasion that we have been taking for a decade while everything has got worse followed by another long path to persuade others on services, it would actually require action. There was value in a case potentially being taken. Even in the worst-case scenario, if Ireland somehow did lose such a case, we would then simply have to adjust the law. There is no other penalty or consequence. There is no downside to taking the ambitious step.
I regret that the Minister has come into the House with arguments that undermine other countries that might have the courage to take action in relation to services and take a narrow interpretation of public policy which is in conflict with every legal expert. If the Minister were to say that she wishes to wait and so forth, that would be one thing. To come up with something that is not backed by anything we have heard in the public domain - that the public policy exemption cannot apply to services - is unacceptable and, frankly, irresponsible.
I will hand over to others. We are keen to move forward. We have a number of amendments to get to.
I want to come in on that point, but first, both the Tánaiste and Taoiseach were asked during Leaders Questions if they would pass the occupied territories Bill. The only legislation which existed at that time was Senator Frances Black's occupied territories Bill, which did include services. It is disingenuous to say that that is not what the electorate believed and understood from that contribution. Only Senator Black's Bill was in existence, so there was no Bill with anything else in it. The Taoiseach and Tánaiste were asked if they would pass the occupied territories Bill, which was Senator Black's Bill.
I mentioned in my first contribution that EU law and international law do not clash. The EU courts and EU case law make it incredibly clear that member states must be able to comply with international law first and foremost, as Senator Higgins outlined. The idea that international law would not take precedence over EU law and that we would have to follow an EU law which would be of a lower standing is ridiculous. It is also not what the experts told us in the committee. We do not even know that services would breach EU law. The only way to know that is if we test it by implementing it, as Spain has done and it has not faced infringement proceedings. These are the nuts and bolts of the situation. Spain has introduced a ban on advertising services and it has not faced infringement proceedings. It is actually testing the idea that there is indeed a public policy derogation for a ban on services. Of course there is, because there is no such thing as goods and services being distinct in international law. Trade is trade.
It is a red herring argument. As Senator Higgins said, it is a dangerous precedent to set to suggest that there is any distinction between goods and services, and also that EU law takes precedence over international law somehow, so that if we choose to follow international law, we will be facing some sort of infringement proceedings from the EU. How could we be a member state within a union that would not let us be in compliance with international law which we have also signed up to? That is just not how the treaties of the European Union work. It is not how the case law of the European Union works.
I mentioned in my last contribution, and I missed it in the Minister's answer, that Spain wrote to seven online tourism platforms and got them to block advertisements of settlement properties, yet we allow it. How can Spain do that? What is the process? What are the legal reasons Spain can do it and we cannot? We let the likes of Airbnb off the hook. As I said the last time, I still do not know why Spain can do something like that and we in Ireland cannot.
I find it incredible that people say the programme for Government says this. I have it in my office. I can bring it down and show it to the Senators. At no point does it say that it would be Senator Black's Bill that would be introduced. I cannot remember how many times the Taoiseach and Tánaiste said at the time that the Bill was not workable and that it needed to be looked at and changed. That was said numerous times. The programme for Government said the Government would bring forward an occupied territories Bill on goods.
I find it incredible for people to talk about a lack of courage. I do not know whether the Senator has read, listened to or seen any of the comments by American politicians about Ireland because of what we are looking to introduce. Ireland has been called antisemitic and everything under the sun, which is totally unfair. In fairness, Senator McDowell has mentioned it a few times. Those are awful things to say about a State and its people.
It is incredible to suggest we lack courage, when, knowing the implications it could have on our relationship with America in a political sense and possibly an economic sense, we still have the will to do what it right. It is amazing the Senator talks about a lack of courage. I am just back from the UN in New York where I met representatives and we will talk about it in the committee the Senator and others in this House are on. They thanked us for our courage. They did not talk about lack of courage. They thanked us for our courage and for standing up. Everyone welcomed the ambassador here today. She has thanked us for our courage, not our lack of courage. It is an incredible thing to say.
The Senator asks that we stop patting ourselves on the back and not to talk about being the first Parliament to introduce it. That is significant. It is not just done by the Government. All of us in this House are introducing it. That is important. Rather than asking us to stop thanking ourselves, I ask the Senators to stop talking about Spain. When the Opposition does so, it is as though Spain has introduced everything entirely. If the Senators on that side of the House were on the opposition side of the Spanish Parliament, they would be accusing the Spanish Government of a watered down Bill and a lack of courage. Do not paint Spain as though it has done absolutely everything, because it has not.
The Minister has outlined strongly what she wants to do. The Opposition's problem is with how she does it but we are all in alignment in that we want to do the right thing. We want a full ban but how we get there is important. The Minister has been doing that for the past 18 months. She has been almost on her own doing it. She started with just one or two countries supporting her and now has 17 countries. The Opposition criticises her and says she is not doing enough when 17 of the 27 EU member states have come on board.
We have difficulties with some. Rather than putting their energy into criticising the Minister, I ask some of the Opposition Senators to put energy into influencing their sister parties in countries that do not support it and call them out for a lack of courage, as opposed to the Minister here. That is what they should be doing. This is a significant day for this House and for the people of Palestine. That is why the ambassador is here.
Senators can give their views. I have no issue with that. We did so during the committee meetings, but they should not throw out phrases like "watered down", "lack of courage" and "no vision". There is no minister in Europe who has pushed harder to try to be a voice for the people of Palestine. All I heard yesterday at the UN was that Ireland is the country that can be trusted to stand up for values and international law.
Before I call the Minister, I welcome Senator Casey to the Distinguished Visitors Gallery. He is there because he has a large delegation with him, including family members John, Thomas, Peter and Helena, Councillor Pat Kennedy, Ann and Jim Lehane and the legendary Sonia. She has been a great friend to us in Leinster House. I thank her for being here and I thank Senator Casey for bringing them all. They are here to mark the anniversary of the passing of Senator Casey's mother. We remember her fondly too.
I will come back on two points. In terms of our obligations, I am not saying one takes precedence over the other. The international court made it clear that there is a legal obligation on Europe to comply. However, under European treaties, we have legal obligations and international legal obligations within them.
The Union has exclusive competence in external trade. For the reasons I have outlined, we have to comply with that. It is appropriate we comply with our international legal obligations under the International Court of Justice, but at the same time, within our international legal obligations as set out in the European treaties, which we also signed up to. It is clear that the exclusive competence for external trade rests with the Union. We have the public policy exemption in respect of goods. I have set this out. It is Article 24(2) of the 2015 regulation. There is no equivalent for services and, where there have been references to Articles 52 and 62, they are specific to the freedom of movement of persons, services and capital within the EU's Single Market, which is the internal market. We are talking about external services and trade more broadly. For this reason, we are taking a two-pronged approach. It is not that I am saying we have finished and this is all we want to do, that we are happy with being partially compliant and only going a certain way. I am saying clearly that, for all the reasons I have outlined, we are taking this two-pronged approach.
It is not straightforward and it is not easy. I wish the EU were doing more. I echo the sentiments of Senator Ahearn that we all need to make sure we are engaging with our colleagues at a European level. That includes my party colleagues, among whom there are different views for different reasons, historical or otherwise. We must continue to advocate and have the difficult conversations. Even the countries that are clearly choosing a different path and voting in different ways all fully agree with us that what is happening is wrong, that it is not compliant with international law and that the ICJ ruling applies to every illegal settlement in the occupied territories. That is why it is frustrating being at the European Council where there is not full agreement. Although we all agree the settlements are illegal and that the actions by the Israeli Government are not appropriate and we all want to work towards a two-state solution - that is the objective of everyone in the European Parliament - we are not able to reach a consensus. We have to work and build a consensus. This will assist. There are countries that have not said so publicly but are looking to make progress on legislation and to see how we can move together on that.
Spain has specifically introduced a targeted amendment to its consumer protection law to prohibit the advertisement in Spain of services provided in the illegal settlements. It is specific to one company in how it is being applied. We have to see whether it will go further, but it is specific to one company and one piece of legislation. When we talk about services more broadly, as I referenced previously, we are talking about a number of different sectors of services and global trade. There are 12 separate sectors and 150 sub-sectors and there is the World Trade Organization's agreement. There is far more than what was implemented in Spain. However, we want to be ambitious and at the same time compliant.
While we are on the subject, I take Senator Ahearn's point. We cannot make the best the enemy of the good.
On the question of services, I do not agree that there is a significant difference. As a matter of international law, "trade" covers both.
I thank the Minister for her remarks about the International Criminal Court. We hold the Presidency of the EU. The American Government is sanctioning judges of the International Criminal Court and making their lives impossible by telling the likes of Visa, Mastercard and banks that they may not deal with these people. They are threatened with criminal prosecution in the United States if they do so. It is easy for me to say this but I think the European Union should stand up clearly against those sanctions and impose counter-sanctions on any company that obeys American law in this respect. It should make adequate provision for the people who are the subject of these sanctions. It should stand up for them and make sure they are not driven into poverty, isolation and incapacity to function as ordinary people in a complex society as the result of bullying from Washington. I do not know how the Minister could do so but, as we now hold the Presidency, if we really do believe in the ICC, we have to collectively stand up and say to the American Administration, even if Visa and Mastercard are frightened of American sanctions, that they will be sanctioned in Europe for undermining the ICC. We should tell Washington that and see how it goes down. We in Europe are very naive. I am not suggesting the Minister or the Irish Government is in any way lacking in this respect but the whole of Europe has to say that we believe in the ICC, that any attack on it is contrary to the European Union's fundamental values and that we will take steps against any company that co-operates with American sanctions against the judges, prosecutors and staff of the ICC with a view to damaging that institution or, to use Secretary of State Rubio's phrase, dismantling it and causing countries to abandon it.
I remind Senators that we are nearly at 7 p.m. and we are still on section 1. I am allowing a lot of latitude. It is up to the Senators themselves but we will not get next or near a lot of amendments.
Amendments Nos. 3 and 23 to 25, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 4, line 14, to delete “may,” and substitute “shall, within 3 months of the commencement of this section, and may thereafter”.
As mentioned earlier, this legislation's ban on the import of settlement goods depends on the designation of specific postcodes by the Minister. These postcodes are drawn from two lists managed at EU level and periodically updated by EU authorities. However, the Bill as drafted leaves it entirely up to the Minister's discretion when or if to make these designations. I do not doubt the Minister's intention to do this but I am concerned that the door is still open and that if things change politically or if some administrative roadblock is erected, there will be no firm obligation under the legislation to put that ban in place. When this Bill is passed by these Houses today and signed into law by an tUachtarán Connolly, it will not actually ban trade with settlement goods. Instead, it gives the Minister the power to do so. She will have the power, with the stroke of a pen, to designate postal codes and put a ban in place. In my view, it would be far better to ensure that any Minister would be clearly mandated and obliged by statute to make such a designation so that the ban can come into effect within a reasonable timeframe. I believe six months is appropriate.
On Dáil Committee Stage, the Minister argued that simply substituting "may" for "shall" could potentially be read as only allowing the Minister to make the designation of postcodes once when, in reality, they will need to be updated periodically at EU level, and perhaps domestically as well, as the geographic reality changes on the ground. The amendment has therefore been changed to allow for this. If the intention is to make designations and put this ban into effect quickly, I do not see any reason for the Government not to accept these amendments.
I fully appreciate amendment No. 3, with which the Senator has responded to the discussion and debate we had in the committee, where I outlined that the amendment saying "shall, within 3 months" potentially meant that any changes could not be included after those three months. The words "and may thereafter" has now been included to counter that issue. This may leave us back where we started. The legislation states: "The Minister may, by order, designate as a postal code". This allows for the Minister to include additional postal codes at any time without the constraint of a certain time period. The amendment adds "shall, within 3 months" but, to prevent that becoming a cut-off point, also adds "may thereafter", again leaving it open-ended. We are kind of cancelling each other out in the legislation. We are trying to enact this before the summer and the amendment essentially brings the Bill back to its original state. It just counters the initial amendment that said this must be done within three months.
I move amendment No. 4:
In page 4, line 22, to delete “customs union.” and substitute the following:
“customs union;
or
(c) corresponds to an illegal Israeli settlement in an occupied territory.”.
I move amendment No. 5:
In page 4, after line 35, to insert the following:
“Agreements for importation of certain services
5. (1) An agreement for the reception by a person in the State of a service from a supplier established in a postal code to which this Act applies, where the place of supply of the service is the State, is void and unenforceable.
(2) A court shall not recognise —
(a) a judgment or order of the court of another state, or
(b) an award made by an arbitral tribunal under an arbitration agreement, for the enforcement of an agreement to which subsection (1) applies, on the ground that enforcement of such an agreement is contrary to public policy.
(3) In this section —
(a) “service” and “supplier” have the meanings assigned to them by the Value-Added Tax Consolidation Act 2010, and
(b) the question whether the place of supply of the service is the State shall be determined in accordance with section 34 (a) of that Act.”.
This amendment aims to effectively ban - we have gone through all of that and I am not going to go over it again - the import into the State of services from a postcode related to an illegal settlement. It would do so by making the relevant contracts completely void and unenforceable in Irish law. The courts would not recognise commercial agreements or any rights or obligations they created. Through its courts, the State would be demonstrably shunning economic and trade dealings that support or entrench Israel's unlawful presence in the occupied territories. This approach would match the ICJ jurisprudence.
We have discussed at length how disappointed we are that services are not included. This amendment puts forward an easily enforceable and actionable way to bring services within the scope of the Bill. I hope the Minister will consider the amendment.
Without opening up the previous debate, while it is not a full ban on trade in services, it is obviously partial. For the reasons I have outlined in the previous debate, we will not accept the amendment.
I move amendment No. 6:
In page 5, line 2, to delete “originating” and substitute “produced in whole or in part”.
This amendment is designed to ensure that any goods produced in illegal Israeli settlements, even in part, are captured by the ban. We have seen similar language to capture goods wholly or partially obtained or produced in the settlements in the draft legislation from the Dutch and Belgian Governments so we would not be alone in this. It is there in the texts they have published, just as the Irish Government has published this Bill. On Dáil Committee Stage, the Government responded that there are existing EU customs rules to determine the economic nationality of certain goods, for example, where a product is produced across two or more jurisdictions.
Article 60.2 of the European Union customs code states:
Goods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture.
This means that goods that are produced to a significant extent in the illegal Israeli settlements but then undergo final substantial economically justified processing in Israel itself will fall outside the ban implemented by this Bill. Such goods, regardless of whether they are deemed to originate under EU customs rules, clearly assist in the maintenance of Israel's illegal occupation of Palestine which is what the ICJ said must end. In paragraph 278 of its advisory opinion, the ICJ held that states must "prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory". This is the obligation that the Government says it is seeking to meet. So, the confinement of the ban in the Bill in this way is therefore also clearly contrary to the obligations identified in the 2024 advisory opinion, as well as the stated purpose of the Bill. To comply with our obligations under international law, any goods coming even partly from the settlements should be banned.
Under current EU rules, the norm is a 55% origin threshold for products. If less than 55% of a product is made up of materials from a particular area, it is not considered as originating from that area. We need a much broader definition under this Bill because we cannot contribute in any way to the continuation of the settlements. Any good that has any part coming from the illegally occupied settlements must be considered, for the definition of the Bill, to have the whole scope of it. We cannot to be participating in anything that entrenches those settlements. That is why the amendment is really important. Rather than "originating", we talk about "produced in whole or in part".
I will give a very clear example of this. There is a question about parts and components. In the technology area and so forth, part of something may be produced in the occupied Palestinian territories and then that component goes into a final product. We are still contributing to the maintenance of the illegal situation if we allow components, whether 20%, 10%, 15%, 30% or 45%, to be purchased. We are contributing to the economic viability and profitability of businesses operating in illegally occupied territory by illegal settlers. It is doing that job. At a very blunt level, if we look again to goods, there is a concern with the originating thing. The last meaningful processing of a good can be where it is determined. If olives are taken from stolen land and then processed by being pickled or stuffed with almonds or pimentos down the line in Israeli territory, will that get captured or not? Maybe it will fall through, and that is the danger. Particularly with natural products like olives, there is a danger whereby processing may occur and that could fall outside this definition. That is the kind of concern. It is just a very practical concern.
Unfortunately, we are seeing the complete destruction of many of the olive trees across the occupied territories but I fully appreciate what the Senators are saying about the objective of the Bill. From a legal perspective, it is important for us to make sure that the Bill aligns with the association agreement so that we can implement it. Again, it comes back to making sure that we have a Bill that we can implement, that is legally enforceable. The decision based on the location of the origin of a given good is a strict legal term and is a benchmark for ascertaining the economic nationality of goods for the purpose of international trade agreements globally. Rules of origin are requirements that are carefully devised between parties to a trade agreement and agreed to in that trade agreement. The concept of origin and rules of origin for the purpose of the EU-Israel trading relationship are laid down in protocol 4 of the EU-Israel Association Agreement. To depart from the rules of origin within the association agreement which we are complying with here would render the Bill legally unworkable.
This point was raised at the last committee hearing. We have engaged with other colleagues, in the Netherlands most recently, and they are very clear with us that the rules of origin they are setting out are in line with the association agreement. It is to make sure that we are working to the same agreement. Set out in that, there is a certain percentage and that has to be complied with in terms of where the components, ingredients or items have come from.
It is important to come back to the fact that this now has to be implemented. Customs have to implement this and there have to be strict oversight mechanisms. That is within the EU but also within Customs and Excise here as well. Beyond this legislation, we need to make sure that we are doing everything in our power to ensure the rules of origin are applied appropriately. Where we can, and where checks and balances need to be improved, we should do that as well.
Before putting the question, I welcome Senator Aubrey McCarthy to the Gallery. He is not in the Chamber because he is with some guests, Ann Thompson, Ann Lane, Mary Kennedy, Tracy Piggott and Liz O'Donnell. I thank them for being here. Mary gave great joy to many people down through the years through her work with RTÉ and her work with charities and community organisations. I thank her for being here. Tracy Piggott also gives great joy to people and a lot of great tips. I thank her for being here and for her work with the horse racing industry. Liz O'Donnell did great work behind the scenes and in front of the scenes during the negotiation of the Good Friday Agreement. I thank her for work in the Department of Foreign Affairs at a pivotal moment in Irish history.
I move amendment No. 7:
In page 5, line 2, after “in” to insert “an Isreali settlement in”.
Amendment No. 8 has been ruled out of order and cannot be moved.
Amendment No. 9 has been ruled out of order and cannot be moved.
I move amendment No. 10:
In page 5, between lines 36 and 37, to insert the following:
“Prohibition of trade in State of certain services
7. (1) The sale or offer for sale to a person in the State of a service provided, or to be provided, in an illegal settlement in a postal code to which this Act applies shall constitute an offence.
(2) “illegal settlement” in this section means any residential area, outpost, or economic zone established, supported, protected or otherwise administered by Israel, in violation of international law, in the Occupied Palestinian Territory (including East Jerusalem) that was brought under Israeli administration since June 1967.
(3) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, and
(b) on conviction on indictment to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or to both.
(4) Where an offence referred to in subsection (1) has been committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, is guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(5) Where the affairs of a body corporate are managed by its members, subsection (4) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.”.
I move amendment No. 11
In page 5, between lines 36 and 37, to insert the following:
“Prohibition on the sale or offer for sale in the State of certain services
7. (1) It shall be an offence to sell or offer for sale to a person in the State a service provided, or to be provided, in an Israeli settlement in a postal code to which this Act applies.
(2) A person who commits an offence under this section is liable—
(a) on summary conviction, to a fine of €5,000 or imprisonment for a term not exceeding 12 months or both,
(b) on conviction on indictment, to a fine not exceeding—
(i) €125,000, or
(ii) where the value of the service concerned, including the duty and tax payable on them, is greater than €250,000, three times that value,
or imprisonment for a term not exceeding 5 years or both.”.
I move amendment No. 12:
In page 5, between lines 36 and 37, to insert the following:
“Prohibition on offer for sale in the State of certain services
7. (1) It shall be an offence to offer for sale to a person in the State a service provided, or to be provided, in an Israeli settlement in a postal code to which this Act applies.
(2) A person who commits an offence under this section is liable—
(a) on summary conviction, to a fine of €5,000 or imprisonment for a term not exceeding 12 months or both,
(b) on conviction on indictment, to a fine not exceeding—
(i) €125,000, or
(ii) where the value of the service concerned, including the duty and tax payable on them, is greater than €250,000, three times that value, or imprisonment for a term not exceeding 5 years or both.”
I move amendment No. 13:
In page 6, between lines 12 and 13, to insert the following:
“Penalties
8. (1) A person who has been found guilty of an offence under section 14 of the Customs Act 2015, shall, for the purposes of this Act, be liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, and
(b) on conviction on indictment to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or to both.
(2) Where an offence referred to in subsection (1) has been committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, is guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(3) Where the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.”.
Amendment No. 13 would clarify that a corporate actor or an individual acting as a director or related position in that corporate actor can be found guilty of an offence for violating this legislation.
The relevant penalties for this Bill are already set out in the Customs Act. They are on the Statute Book. The amendment proposes the creation of separate penalties, because there are a number of elements to this, only applicable to the Bill which would be different to the penalties already existing under the Customs Act. It is important we adhere to the Customs Act already on the Statute Book.
For the avoidance of doubt, section 21 of the Customs Act also provides for proceedings to be brought against a body corporate and-or a director or other officer of a body corporate where there was such consent or conveyance to an offence committed under the Customs Act. Therefore what the amendment seeks to achieve is under the Customs Act already.
I welcome Deputy Carroll MacNeill and family members of some of her staff. Thank you for being here.
Is the Senator pressing the amendment?
I move amendment No. 14:
In page 7, between lines 25 and 26, to insert the following:
“Annual report
11. The Minister shall, within the first six months of the year, lay before both Houses of the Oireachtas a report outlining the application of this Act, providing an update on—
(a) how many successful actions were brought under section 14 of the Customs Act 2015 relating to the offences listed in this Act,
(b) how many attempted actions were undertaken,
(c) the monetary value of such attempted forms of trade,
(d) the persons engaged in such trade and/or the bodies corporate who have engaged in such trade, and
(e) any other the matter the Minister considers relevant or necessary.”.
Amendment No.14 would compel the Minister to lay a report before the Oireachtas detailing the implementation of the Act and the listed figures and information. It is vitally important that this legislation is successful in preventing illegal occupation and illegal settlements of Palestine from profiting in Ireland and that these settlements are not sustained and facilitated by illegal commercial practices. The Government should be transparent in its level of success.
There are standing orders in relation to post-enactment reporting which will, of course, be complied with. Standing Order 204 of the Dáil states:
Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library.
The amendment would add new and expansive reporting requirements but also requirements that are there for Revenue and the authorities. The authorities will be providing any relevant statistics that can be shared with Senators in relation to the implementation of the Bill.
This might be on the second amendment relating to advertising, but there is already relevant information from this Bill on our website at the moment and Revenue will also have to put that information on its website. Therefore, the information will be there and will be accessible. Beyond the normal reporting of a Bill what we are focused on is implementing it and making sure its focus is on implementing it and making sure the resources are there. There will be information that is required. If it is sought through the authorities it can be provided to the Senators or anyone who seeks it. For that reason, I will not accept the amendment.
I move amendment No. 15:
In page 7, between lines 25 and 26, to insert the following:
“Advertisement of prohibition
11.(1) The Minister for Finance shall ensure that the prohibition on trade in goods, or in services, and in the extraction of resources, with the postal codes to which this Act applies and to relevant occupied territories, is advertised on the website of the Department of Finance, and of the Revenue Commission, and wherever else he or she deems necessary.
(2) The Minister for Foreign Affairs and Trade shall ensure that the prohibition on trade in goods, or in services, and in the extraction of resources, with the postal codes to which this Act applies and to relevant occupied territories, is advertised on the website of the Department of Foreign Affairs and Trade.”
Similarly to amendment No. 14, amendment No. 15 seeks to require a degree of transparency regarding the implementation of this legislation. The amendment would compel the Ministers for Finance and Foreign Affairs and Trade to publish information on their Department websites about any ban adopted regardless of its content.
Apologies, I spoke to this on the previous amendment. It is the case already that any of the documents relating to this are on the Department’s website. Once the legislation is enacted all the details will be there for people to see but also will be on the Revenue website. With the passage of the legislation, it can be certain that it will be known that it has passed so, through our website and the Revenue website, people will be able to see the details of the Bill. Most importantly, work has already started on the details needed for implementation. Once the legislation has been signed by the President, I intend we will enact it immediately and that detail will be posted on our website as well. How Revenue intends to implement it will also be posted. Those details will be there, which is the ambition of the amendment.
Amendments Nos. 16, 18 and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 16:
In page 7, between lines 25 and 26, to insert the following:
“Report on EU policy relevant to compliance
11.The Minister shall, within 6 months of the passing of this Act, lay before both Houses of the Oireachtas a report outlining the application of the Act, any relevant EU-level proposals regarding trade with illegal Israeli settlements to ensure compliance with its international legal obligation, as identified by the International Court of Justice in its advisory opinion of 19 July 2024, and detailing any further steps Ireland may take to ensure compliance through the implementation of national policy.”.
The amendment looks at the core idea of the two-pronged approach the Minister has spoken of at such length. It outlines that within six months of the passing of this Act she would lay before Houses of the Oireachtas a report outlining the application of the Act, any relevant EU-level proposals regarding trade with illegal Israeli settlements has taken place. The Minister’s position is we will do partial compliance on the goods bit and that compliance with the services part, which she has acknowledged is actually a requirement for compliance in terms of the International Court of Justice ruling, will be done through the work and co-operation at European level and that those changes will be made. Where we are now is that after tens of thousands of deaths of children, families and in a situation which has got worse and worse, we still have not had action from the European Union.
We are only now seeing an option for limitation in trade and goods and a prohibition of trade and goods from illegally occupied territories. This is only coming now. I do want to commend Ireland and others who have made it very clear and who are legally correct that this is a qualified majority vote issue, but we are even seeing attempts to knock the process back and push the decisions on that to an unanimity requirement. We do not have much time and we have a number of amendments to get through so I cannot go into great detail here. Here is the thing. The Minister has absolutely confirmed that compliance with the International Court of Justice advisory opinion requires prohibition of the trade in both goods and services. She has said she plans to deliver that prohibition on the trade in services through co-operation at European level. My question is on what happens if that is not done. Then it goes back to national responsibility, although it is a national responsibility anyway.
I really feel the public is frustrated with anything that looks like further passing of the buck and further stalling. Ireland has the Presidency of the European Union for the next six months. Ireland, during a Presidency of the European Union, will have the huge weight of evidence, the European Union's own evidence which it has presented to the Council of Minister saying that there are breaches in human rights and telling what is happening. It will have the weight of the world's guidance and opinions, of the genocide case there and all of these other cases, as well as the statements that Israel is making weekly - daily - in relation to its intentions to breach international law. If, in that context, the Council of the European Union does not take action to ban the trade and services after that six months and if the Minister cannot deliver that in the next six months during our Presidency, then we have to say that delivery of this measure through persuasion alone does not look likely, and it certainly does not look likely within a timeline that represents justice. What I want in that report is that in six months' time, the Minister will come back as our next step, and tell us what has happened at EU level. I genuinely wish her the absolute best and we will support her in pressing for these things, but either she comes back telling us that the EU is now delivering its part of the two prongs and that it has agreed to ban trade in goods and services from illegal Israeli settlements in occupied Palestinian land, or she comes forward with steps and processes that Ireland may take, and can take as has been clarified again and again under public policy grounds, to ensure compliance through the implementation of national policy. What this is saying is that there is a six-month limit on how long we should be waiting to see if we can persuade people to move. I say that because back in 2017 and 2018 when Senator Black and I and others brought the Bill forward again, we listened for far too long to Simon Coveney and to everybody else to the speeches he gave about bringing people with us and how we were slowly making progress. I do not think anybody is going to pretend that the Israeli position has been progressing in a constructive way now. That is not what happened. Years and years were lost when the international law was clear and action was not taken. If Ireland had pushed forward then in something like this prohibition on illegal goods, if Israel had had to fight it out in terms of international law and actually had to defend its position in relation to international law at that time, rather than being able to act and continue in a culture of impunity expanding indefinitely, which has now become so rampant, it would have been good. It would have been good if we had actually shown leadership then rather than relying on persuasion and it is really important that we show leadership now. Will the Minister come back in six months? If it does not deliver at EU level, what is going to happen next? What is Ireland going to do?
The other two amendments are very simple. Amendment No. 18, looks for, within 6 months of the passing of this Act, "a report on equivalent international legal obligations to prevent trade that assist in the maintenance of illegal occupation." Our time is limited so I will come to-----
As it is now 7.45 p.m.-----
We thought it was 8 p.m.
As it is now 7.45 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 16 is hereby negatived in Committee; section 11 is hereby agreed to in Committee; in respect of each of the sections undisposed of, the section is hereby agreed to in Committee; the Title is hereby agreed to in Committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed and the Bill is hereby received for final consideration; and the Bill is hereby passed."
Would the Minister or Senator Black like to say a few words?
I will take a minute, if that is okay. I know everybody is anxious to see the match but I feel it is imperative I thank the people I have been working with for the last eight years who have stood by me. First, I thank my CEG colleagues, Senators Ruane, Higgins and Flynn, but particularly Senator Higgins, who has been an unbelievable support. I also thank some of my colleagues who are here in the Chamber. From Sadaka, I thank Éamonn Meehan and Val Roche who are here, and Marie Crawley who could not be here; from Trócaire, Eoin Hamill, Selina Donnelly, Sinéad Loughran and Sibéal Devilly. I also thank Garry Walsh who was with Trócaire and is now with Oxfam Ireland, and Fiona Ryan. These are all people with whom I have worked so closely. I also thank Karol Balfe from Action Aid Ireland and the Palestinian ambassador. It has been an unbelievable journey. Of course, I am not forgetting Conor O'Neill and Gerry Liston who are the drafters of the original Bill and then my own PA, Emma Quearney, who has been my rock. All of those people have been so important to me over the last eight years. It has been an incredible journey. I know we have not got services. I thank the Minister because she has always been straight up with me. She has never promised me something she could not deliver. Being honest, I cannot say that about all of the Ministers I have met. She has always been straight up. She never made any promises. I also know she is passionate about what is going on in Palestine and I believe she is doing her very best in Europe. I am going to fight tooth and nail for services when I get back. I hope to continue the negotiations with the Minister in September. We have had many meetings this year and I will continue to have those meetings with her. I really believe we will get services at some point. I have said that to the Minister many times. I really want to thank the activists and all the people who have been out marching for the past - I do not know how many - years and have supported this. I have travelled the length and breadth of this country to have public meetings. I said to the Minister when we had our last meeting that I was in Kerry up a mountain not too long ago where we spoke to a packed meeting about the occupied territories Bill and everybody wanted to know about services. It is incredible how people have taken such an interest in this Bill. I could not do any of it without all of those people I mentioned - I hope I have not forgotten somebody. My husband who is here has also been my rock, as has my family. It is the activists but it is also the Palestinian people who we are all here for. We cannot stop this work. We have to keep going. We have to never give up. I have said to the Minister that we need full sanctions. We absolutely need full sanctions and we need to do what we did back in 1984 around South Africa. I will continue to keep going and I will get there as long as I am still in this Chamber. As long as I am still a politician I will never ever give up. None of us should ever give up. I finished on this last week when I spoke and I really mean it: none of us are free until the Palestinian people are free.
It represents what is happening in the world. It is absolutely outrageous. That young woman asked why the international community has given up on them, while I sitting around a conference table in Gaza with all of the NGO groups. I do not know if they are dead or alive. I do not know who is alive or dead at this point, and I am sure that little community hall is gone. She asked why the international community has given up on them, but I really believe the Irish people have not given up on the Palestinian people. We just need to keep going and never, ever give up on them because, honestly, their freedom is absolutely key on the world stage.
Gabhaim buíochas leis an Aire for coming to the Chamber and I also thank her team. I look forward to our meetings in September when I will bring in the legislation on services. I thank everybody here tonight.
Hear, hear.
Does the Minister wish to respond?
No. I think it is appropriate to leave the last word to Senator Black. I thank everybody here.
