Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019

Second Stage Speech by Charlie Flanagan TD, Minister for Justice and Equality


Dáil Éireann

27 February 2019


I welcome the opportunity to address the House today on this critical legislation.  On 29 March 2017, the UK invoked article 50 of the Treaty setting in motion a chain of events that means that at 11pm GMT on 29 March 2019 the EU Treaties shall cease to apply to the UK - unless, that is, either the time period is unanimously extended - or - a withdrawal agreement is agreed.  It goes without saying that our strong belief and fervent hope is that the UK will not crash out of the EU in a month’s time.


It’s something of an understatement to say that the decision of 52% of UK voters to withdraw from the European Union is profoundly regretted.  However, we respect their decision and our focus now is on dealing with the outcome of their choice to depart from the Union. Preparations have been underway across Government, including in my Department, for Brexit for quite a long time now and an immense amount of work has been undertaken to mitigate the harm Brexit will cause.


As a former Minister for Foreign Affairs and Trade, I can speak with some authority on the intensive work that Ireland undertook right across the EU from the day of the referendum result, ensuring that our unique situation was well understood and taken account of.


Ministers and officials have worked hard in partnership with the Commission and our fellow Member States to progress negotiations towards the withdrawal agreement which, of course, is currently still being discussed in the British parliament.  EU partners and institutions continue to show strong solidarity and support for Ireland.


As has been previously stated, by the Tánaiste and other Ministers, our focus remains on the UK ratifying the Withdrawal Agreement, which was concluded following intensive negotiations between the UK and the EU.


At the same time, the EU will continue with its own processes to ratify the Withdrawal Agreement.  The Agreement is currently with the European Parliament, for its examination and consent. We expect this to be given at the start of March, to allow for the formal conclusions of the Withdrawal Agreement at the Council of the EU on 19 March. This would ensure it is in place ahead of Brexit day.


We remain firmly of the view that the best and only way to ensure an orderly withdrawal and to fully protect the Good Friday Agreement is to ratify the Withdrawal Agreement.


While we sincerely hope that the Agreement will be accepted by the UK, we must take steps to ensure that should discussions fail, Ireland is positioned to deal with the fall out from a no deal Brexit in as far as is possible.


While we are doing everything we can to avoid a no-deal scenario, we need to be prepared in case it does happen.  And, while we worked towards a deal, we were always conscious that we needed to prepare for all scenarios.


These preparations include working closely with other Government Departments and EU Member States, meeting and working with the European Commission, and participating in technical EU-level meetings.


Since the UK referendum, I have met with a huge number of my EU counterparts, accompanying several of them to the border region.  I have also engaged with Michel Barnier and other Commissioners.  As Minister for Justice and Equality, I regularly engage with my counterparts in the margins of the JHA Council.  I have also on a number of occasions, met with the UK Home Secretary and the UK Secretary of State for Justice. In recent weeks I again met with the Home Secretary and the  UK Minister for Migration.


A no deal scenario creates a broad set of justice issues which will need to be addressed in order to facilitate future relationships between Ireland and the UK.  Extradition and the future operation of the European Arrest Warrant is one of the most immediate concerns in this area. Other key instruments where continued cooperation with the UK on criminal justice matters is essential include Mutual Legal Assistance, EUROPOL, Prüm for checking fingerprints, DNA and car registration and the Passenger Name Record Directive.


In July 2013 the UK decided to opt out of all 130 Justice and Home Affairs measures and then later decided to opt back into 35 key measures. This meant that at the time, my Department had to assess the potential implications of the full opt out and then, when the UK decided to opt back in, we had to analyse what might happen if there was a gap between opting out and opting back in again.  Fortunately after a lot of work, a legally seamless opt out and opt back in was arranged, which happened on 1 December 2014.


Brexit obviously presents challenges on a much larger scale.  More than 700 EU instruments in the Justice area have been assessed to establish which might be affected and what the implications would be. 


The key priority areas identified by the officials in my Department include:

The Common Travel Area

Police and Judicial Co-operation in criminal matters

Data Protection. 

Asylum Policy and

Judicial Co-operation in Civil Matters.


The Common Travel Area is a key area and affects nearly everyone on this island.  A great deal of research was required to establish the clear  basis of the CTA and delineate the legal and administrative arrangements associated with it. Furthermore the legal implications of the reference to the Common Travel area in Protocol 20 to the European Union Treaties had to be explored.  Having clearly documented the origins and evolution of the Common Travel Area, my officials, as part of a team led by the Taoiseach’s Department and the Department of Foreign Affairs, were in a position to make the case to the Commission that the CTA was a valid pre-existing bilateral arrangement that did not conflict with EU law.  Fortunately, the UK from the outset made clear their intent to maintain the Common Travel Area and the Commission were conscious of its importance in the context of Northern Ireland. 


It is now accepted by both the UK and the EU that the Common Travel Area can remain whether or not there is a Withdrawal Agreement.  


Co-operation in the area of law enforcement particularly vis-à-vis Northern Ireland is at an all-time high and the Government is determined to maintain this.


Maintaining peace and security particularly in Northern Ireland has to be a priority.  From the outset we have identified the European Arrest Warrant (EAW) system as the most important EU instrument in the area of judicial cooperation in criminal matters.  From our perspective the EAW was not only a significant advance over pre-existing extradition type arrangements but it has proved fundamental in underpinning the high levels of trust and co-operation that now exist between the Garda Síochána and the Police Service of Northern Ireland - not to mention other police services in the UK.  Its importance was something we raised consistently with both the Commission Article 50 Task Force and UK side. The draft Withdrawal Agreement has special transitional provisions to avoid any cliff edge and we had reached the stage in negotiations that it looked like there would be a commitment to have an EU – UK EAW type system agreed for the future.


However, the spectre of a no deal Brexit has cast a shadow on the progress made in this area over the last two years.  We are now in the situation where we are preparing for the application of the 1957 Council of Europe Convention on Extradition.  It will provide a viable extradition system but it is a step back.  Some aspects of this are addressed in the legislation and I will address these in detail later.

There are many other EU instruments and agencies which support cooperation between member states including Europol but the effects may be less serious for Ireland because of the existing close links with the UK police.


On the question of close links, the new EU Data Protection Regime entered into force in May 2018 and for the first time applied to law enforcement.  The UK will become a Third Country when it leaves the EU and this has implications for sharing personal data even in the context of for example a criminal investigation.  The EU Commission has stated that they are not contemplating an adequacy decision in the context of a no deal Brexit.  An adequacy decision would in practice have overcome many of the difficulties associated with sharing data with agencies in a third country.  My officials have been working hard with the Gardaí and the Office of the Attorney General to establish how the problem of data sharing in a law enforcement context could be overcome within the framework of the EU Data Protection regime.  Progress has been made and I am confident that solutions have been found and can be implemented.


Turning now to the area of immigration.  We have only been able to maintain the Common Travel Area because we have remained outside the Schengen area.  In essence, the Common Travel Area can be seen as a “mini Schengen”.  Being separate to Schengen means that maintaining open borders to the UK for the movement of people does not threaten the integrity of the Schengen area.  As a result we do not participate in most EU immigration related instruments. The exception is in the area of asylum policy.  In particular we will be affected by the fact that the UK will be leaving the Dublin Regulation and Eurodac.  These instruments provided a mechanism for establishing in which EU country a person has first applied for international protection and for their return to that country.


Non-Refoulement is the practice of not returning a non-national  to a country in which they are liable to be subjected to persecution and while the provision on non refoulement is not directly related to Brexit, its implementation is made much more significant in the context of the UK being outside the EU asylum regime. 


A comprehensive range of EU instruments has built up over the last 45 years in matters such as judicial co-operation in civil matters, including family law as well as civil and commercial transactions.


It is important to state that there are a range of other international instruments that address many of these issues and will apply post Brexit while acknowledging that these are not always as effective, or user friendly, as the comparable EU instruments. Although the impact may not be immediately visible, in the absence of EU-wide solutions in family law matters, for example cross-border divorces or child custody cases may become more complicated.  It is likely to take some years for the EU to negotiate new arrangements with the UK.


My Department is working with legal representative bodies to ensure that their members and the wider public is informed about the changing environment and making preparations for it.


Turning now to legislation:


The purpose of the legislation now before the House, is to offset some of the damage which may arise if the UK depart without a deal being in place.


In a no deal scenario, my Department has identified two areas which require primary legislation to be in place and these are set out in Part 13 and 14 of the Bill.  Part 13 of the Bill deals with extradition and Part 14 deals with immigration matters.


Turning to Part 13, the Bill provides for two amendments to the Extradition Act 1965.


It is critical that extradition provisions are in place immediately following the UK’s exit from the EU.


Following examination of the options available for extradition arrangements between Ireland and the UK in the event of a no-deal Brexit, the fall-back solution would be to apply the 1957 Council of Europe Convention on Extradition, to which both Ireland and the UK are party, to extradition arrangements between Ireland and the UK. The provisions of the Convention are given effect to by Part II of the Extradition Act 1965.  While the extradition procedure under the Convention is not as effective as that of the EAW, in the event of a no-deal Brexit it would provide a workable solution.


However, the 1965 Act does not permit extradition of own nationals “unless the relevant extradition provisions otherwise provide” and transmission of extradition requests is via the diplomatic channel and in hard copy.


The Office of the Attorney General has advised that clear provision should be made in section 14 (Irish citizens) of the 1965 Act providing that the ban on extradition of own citizens should not apply in reciprocal circumstances where requesting states also extradite own citizens. 



Amendment to section 14 (Irish citizens)


Section 14 (Irish citizens) of the 1965 Act is, therefore, being amended in order to ensure that the current EAW arrangement in relation to extradition of own citizens continues and that, in applying the provisions of the Council of Europe Convention, extradition of an Irish citizen will be permitted on the basis of reciprocity – where the law of the requesting country does not prohibit the surrender of its citizens. The UK has already indicated that it intends to continue to extradite its citizens post Brexit.


Amendment to s.23 (Request for extradition)


The Act is also being amended to alleviate the burdensome extradition procedure with receipt of requests to the Minister for Justice via the diplomatic channel in hard copy. 


The amendment to section 23 provides for direct transmission of extradition requests to the Minister for Justice and Equality rather than via the diplomatic channel and for the transmission of such requests by modern means of communication – that is, by electronic means or otherwise. The amendment gives the Minister for Foreign Affairs and Trade an Order making power, following consultation with the Minister for Justice and Equality, to provide for requests for extradition to be made directly to the Minister for Justice where this has been arranged with a country by direct agreement.


It is proposed that an Order will be made providing for transmission of extradition requests from the UK directly to me, as Minister for Justice and Equality.


I now turn to Part 14 of the Bill.


The Bill in Part 14 contains a number of amendments to the Immigration Acts. The amendments in section 88 and 89 of the Bill are for the purposes of correcting a lacuna in the provisions relating to non-refoulement in our law. I should point out that refoulement considerations were in fact being undertaken at all times. This provision provides legal certainty in this area. The amendment is required as failure to introduce this amendment would expose us to the risk that removal would be unsuccessful and thus undermine arrangements to operate a Dublin Regulation style arrangement if needed.


The Dublin Regulation is an EU Instrument which enables persons claiming asylum in each other’s jurisdiction to be returned to the country that they first claimed asylum or had a presence in.


Section 90 of the Bill amends the Immigration Act 2004 to provide a legal basis for fingerprinting Irish visa and transit visa applicants. The taking and sharing of biometrics is key to the operation of the British Irish Visa scheme (BIVS) which enables a short stay visa issued by Ireland in respect of certain countries (currently China and India) to be used to also travel to the UK without the need for a separate visa.  This requires biometric data to be captured and checked against both Irish and UK systems.  The continuance of this scheme is considered very important to both the tourism and business sectors.   Accordingly, the Bill, at section 90, contains an amendment to the Immigration Act 2004 for this purpose.    


In addition to the above amendments, there are some pieces of secondary legislation required to be in place by the 29 March 2019. 


These will cover issues such as extending eligibility to apply for admission to An Garda Síochána to nationals of the UK, in the area of International Protection and Asylum, to designate the UK as a safe third country and to facilitate the recognition of UK Solicitors qualifications in the State.


I commend this section of the Bill to the House and hope that Deputies will support it.


Thank you.