THREE WEEKS AGO, the Dáil passed an opposition motion calling on the government to enact its own version of the Occupied Territories Bill (OTB), including a ban on Israeli settlement-linked services, by the end of the year. The motion was passed after the government opted not to oppose it or even to amend any of its text.

The following week, however, Minister for Foreign Affairs Helen McEntee stated in the Dáil that there is “considerable legal uncertainty” and that she is awaiting the advice of the Attorney General (AG) on the issue.

It is now over five months since the government first indicated that it had sought further advice from the AG on this issue. This delay is inexcusable given that it is almost a year and a half since the International Court of Justice (ICJ) delivered its July 2024 Advisory Opinion which concluded that States are under an international law obligation to prevent all trade and investment linked to the illegal Israeli settlements.

There is, however, a more fundamental question raised by this delay: why should the response to this request for advice take any length of time at all when the AG – as the recent Dáil motion notes explicitly – has already advised that the ICJ’s Advisory Opinion provides a basis under EU law for Ireland to adopt a ban on settlement-linked services?

A long saga

The current AG gave his original advice on the OTB following the ICJ’s delivery of its 2024 Advisory Opinion. The question that advice addressed was whether EU law would allow Ireland to enact the OTB on the ground of “public policy”, which provides a narrow exception to the EU’s exclusive competence in the area of trade. The relevant paragraph of the advice, which was published online, is worth quoting in full. It states:

“[T]he public policy exception under [EU law] has been interpreted very narrowly with public policy succeeding as a standalone defence only once in a very different context. That said, it may be open to the State to argue that the proposed offences under the [OTB] are necessary to uphold respect for the rule of law, the universality and indivisibility of human rights and fundamental freedoms and respect for human dignity. It can also be argued that the ICJ Opinion represents an authoritative statement that Israel’s occupation of the OPT is unlawful and a breach of international law and that the offences proposed to be created by the [OTB] represent the fulfilment by the State of the obligations referred to in the ICJ Opinion.”

As the recent Dáil motion notes, this paragraph twice refers to the “offences” – plural – in the OTB. The OTB contains separate offences for trading in both settlement-linked goods and services.

It is on this basis that Green Party leader Roderic O’Gorman, a recipient of the original AG advice as a minister in the last government, stated in the Dáil last week that “there was absolutely no reference within [the advice] to a need to make a distinction between goods and services”.

Therefore, unless the AG has changed his opinion on services – which would raise major questions in itself – it is difficult to understand why it has taken five months and counting to answer a question he has already answered.

Is the government using the purported delay by the AG as cover for its own stalling of progress on this legislation? Indeed, why else would the government have made a request for advice that it has already been given in the first place?

The credibility of its continued claim of “considerable legal uncertainty” around the issue of services is further undermined by the fact that two leading experts in EU law have outlined in a detailed legal opinion for the Oireachtas Committee on Foreign Affairs and Trade that a ban on trade in Israeli settlement services is perfectly compatible with EU law. Indeed, the AG cited a previous opinion on the OTB by the same two experts in his original advice on this Bill.

Constitutional law experts and others have long criticised the ability of governments to hide behind AG advice as a pretext for inaction, and have therefore called for greater transparency around the delivery of such advice more generally.

It is telling that, just two weeks after the government requested further AG advice on banning settlement services specifically, it voted down a private members’ bill which sought to bring about greater transparency in relation to AG advice.

What the government does not seem to appreciate, however, is that its attempt to cloak the issue of services in legal uncertainty is itself entirely transparent. The legal position is as simple as it is clear: Ireland is obligated by international law to ban all trade – in both goods and services – with the illegal Israeli settlements, and in no way does EU law stand in the way of member states complying with this obligation. Indeed, the Spanish government has already enacted a ban on the marketing of both settlement goods and services.

The Irish government must follow suit. There is absolutely no excuse for further delay.

Gerry Liston is a lawyer with the Global Legal Action Network (GLAN) and Sadaka – the Ireland Palestine Alliance, and he is a practising solicitor.