Oireachtas Joint and Select Committees
Wednesday, 20 February 2019
Joint Oireachtas Committee on Social Protection
Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Bill 2019: Minister for Employment Affairs and Social Protection
I welcome the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, and her officials. I will invite the Minister to make her opening statement in a moment, after which I am sure members will have a number of questions for her.
I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise, or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. Once again, I ask that mobile phones be turned off.
I thank the committee for the invitation to talk about the miscellaneous provisions (withdrawal of the United Kingdom from the European Union on 29 March 2019) Bill 2019. Parts 11 and 12 of the Bill fall within the remit of my Department. I appreciate the time and engagement of the committee as we bring forward this Bill with the hope of addressing a range of critical issues that may arise in the context of a no-deal Brexit.
There are only five weeks remaining until 29 March. The Government and the European Union remain committed to securing a negotiated Brexit outcome. My Department and I have been planning for many scenarios for a very long time. In light of the uncertainties in London and the Brexit deadline of 29 March, the Government decided at our meeting of 11 December last that immediate priority must be given to preparations for a no-deal Brexit and that Government Departments and State agencies should urgently take forward work on that basis. That is what we have been doing.
This is a very wide-ranging Bill but, given its emergency nature, the Government took the decision that progressing it through the Houses as an omnibus Bill is the most sensible way to ensure that we have the necessary legislation enacted before 29 March. The Bill covers the issues in primary legislation that need to be addressed immediately in the event of a no-deal Brexit. Measures relevant in the case of a no-deal Brexit were identified following a detailed examination by all Departments of legislation currently in force. The Government published the general scheme of the omnibus Bill on 24 January. The draft Bill contains 16 Parts, addressing primary legislative issues which would require immediate attention in a no-deal scenario.
Since the publication of the general scheme of the omnibus Bill, intensive work has been carried out between Departments and the Office of the Attorney General. On the basis of this work. there have been some updates and amendments to parts of the draft Bill. The Government discussed this proposed legislation during our meetings in January and February. Its provisions were also the subject of intensive and daily engagements between Departments and the Parliamentary Counsel. The Bill will underpin the common travel area, CTA, and ensures that the associated rights and entitlements of Irish and British citizens under this long-standing arrangement will continue in any circumstance. This is one of the Government’s four key Brexit priorities.
I will outline the purpose of Parts 11 and 12 of the Bill in turn. Part 11 sets out amendments to the Social Welfare (Consolidation) Act 2005 in order to maintain the status quoin the common travel area. My key area of concern, which is one shared by this committee, is the impact of Brexit on current reciprocal arrangements for social insurance, which includes our pensions; social assistance, referring to our means-tested schemes linked to residency rights; and child benefit between Ireland and the UK, including Northern Ireland.
There are approximately 132,000 people in receipt of a UK state pension living in this country and approximately 1,000 customers receiving child benefit payments from the UK for children residing in Ireland. There are 28,760 people residing in the UK who are in receipt of a contributory state pension from Ireland. Some 840 people residing in the UK are in receipt of full-rate child benefit payments from my Department. These payments are in respect of 1,830 children, 95% of whom reside in Northern Ireland. A further 920 people residing in the UK are in receipt of child benefit supplement payments from my Department in respect of 2,010 children, 97% of whom reside in Northern Ireland. We want to ensure the continuation of these payments and that is what we are doing with this legislation.
My objective is to ensure that the reciprocity of social welfare rights and entitlements which currently exists for Irish and UK citizens moving within the common travel area is safeguarded and maintained. Ireland and the UK share a long history of co-operation and reciprocity in social security matters. The principle of reciprocity has been reinforced in bilateral agreements and arrangements on social security between the two countries since 1924. That reciprocity is underpinned by the principle of equal treatment so that Irish citizens enjoy the same benefits as UK citizens and vice versa. These rules are designed to protect people moving and working between each State and to minimise any disadvantages they might experience. From a social welfare perspective, maintenance of this status quothrough safeguarding and preserving that very reciprocity is of critical importance to me and the Government.
Owing to the unique nature of the common travel area and the associated rights and privileges which it will continue to provide for Irish and British citizens in each others' countries, it was agreed that Ireland and the UK would formalise the pre-existing common travel area social protection arrangements in a legally binding agreement. That agreement was signed on 1 February and is now subject to ratification processes in both Ireland and the UK. Under the terms of the agreement, all existing arrangements with regard to recognition of, and access to, social insurance entitlements will be maintained in both of our jurisdictions. This means that the rights of Irish citizens living in Ireland to benefit from social insurance contributions made when working in the UK and to access social insurance payments if resident in the UK are protected and vice versa.As part of the ratification process, the agreement was laid before the Houses on 7 and 8 February and it was the subject of a motion in the Dáil on 12 February.I will discuss it with the Chair and my colleagues at the Select Committee on Employment Affairs and Social Protection tomorrow, 21 February. The ratification process in the UK is also under way.
While I am confident that the ratification will be completed in both jurisdictions before 29 March, I want to be absolutely certain that export and payment of benefits between Ireland and the United Kingdom and vice versacan continue, even if all the necessary steps in the ratification process are not completed by that date. That is the overall purpose of the amendments in Part 11 of the Bill.
The draft heads as published in the general scheme were intended to provide the Minister for Employment Affairs and Social Protection with power to make regulations relating to a range of issues such as the treatment of events of facts occurring in the UK; the taking account of social insurance contributions paid in the UK; the habitual residence condition; the avoidance of multiple payments; arrangements in relation to the absence from the State provisions; arrangements regarding frontier workers, where the frontier crossed is that between Ireland and the UK; the exchange of information; and arrangements to ensure maintenance of the current arrangements vis-à-visthe UK as the current arrangements governed by the EU regulations are more expansive than the existing bilateral arrangements with the UK.
There have been a number of changes made to Part 11 as the drafting process progressed, although it is important to note that the overall aims and outcomes remain unchanged. During the drafting process, a more streamlined approach emerged which effectively allows the Minister - in this case, me - to make an order to provide for the implementation of a signed agreement which has not yet been ratified where he or she is satisfied that the other party is in the process of ratifying it. An order has also been drafted to give this effect if required. As a result, most of the provisions initially envisaged are not required as they were intended to achieve the same ends. As such, the Bill as published will look quite different from the general scheme in this regard. In addition, the regulations which were envisaged by the initial draft heads should not now be required.
Other amendments insert specific references to the UK into a number of sections of the Social Welfare Consolidation Act so that the same rules will be applied with regard to the treatment of the UK under these provisions when the UK is no longer covered by existing references to member states in those provisions. These amendments will ensure maintenance of the status quowith regard to social welfare payments in the event of no-deal Brexit.
Part 12 amends the Protection of Employees (Employers’ Insolvency) Act 1984, which provides for the insolvency payments scheme. The scheme covers wage-related entitlements of employees who are employed in Ireland by an employer who has become insolvent in Ireland or another EU member state, which currently includes the UK. Once the UK leaves the EU, employers in a state of insolvency under the laws of the UK will not fall within the scope of the Act. That means employees of those employers who work and pay their insurance in Ireland would no longer be covered by the protections set out in the Act unless the amendments set out in this Part are made.
The purpose of the amendments in this Part is to ensure that those employees will continue to be covered by the scheme, after a no-deal Brexit. To achieve this, the amendments in this Part provide for updates to existing definitions of terms such as “competent authority” and “relevant officer”; for employees who are employed or habitually employed in Ireland whose employers are made insolvent under the laws of the UK to continue to be covered by the scheme; that the date an employer is made insolvent under the laws of the UK will continue to be the date an employer will be regarded as having become insolvent for the purposes of the scheme; that amounts certified by an actuary or a person performing a similar task in respect of employers made insolvent in the UK, where the employees are habitually employed in Ireland, will continue to be covered by the scheme; and that information can be exchanged, in line with the provisions of the general data protection regulation, with a relevant officer appointed to an employer which is in a state of insolvency under the laws of the United Kingdom.
In the economic uncertainties which may prevail in a no-deal scenario, it is vital that we continue to provide this kind of protection to workers in Ireland and that is why I am introducing these amendments.
The timetable for the Bill is that we expect to publish the full omnibus Bill on Friday, 22 February. It is our intention that it will go before the Dáil for Second Stage from 26 to 28 February, inclusive, and will go through Committee and Report Stages in the Dáil from 4 to 8 March, inclusive. It will then go to the Seanad for Second Stage between 11 and 12 March, inclusive, followed by Committee and Report Stages in the Seanad on 13 and 14 March.
This legislation is an essential part of our whole-of-Government preparations for Brexit and I genuinely appreciate the co-operation of this committee, and the entire Dáil and Seanad to ensure that this Bill will get past all the relevant Stages between now and the dreaded date of 29 March.
I thank the Chairman and members of the committee for allowing me to outline the legislative details and processes so far and I thank members for their attention. I will be happy to hear their comments and to take any questions they may have.
I have just one general question. The Minister set out the timeline and this obviously has to be done before 29 March. The Minister has indicated that this legislation will be finishing in the Seanad on 13 and 14 March. If there are amendments made in the Seanad-----
On that point, I note what the Minister has said in her statement that the Department has been working on this for a long time. My understanding is that we are one of the last countries in Europe to be discussing this type of legislation. I do not understand why this was not done much sooner. Basically, what we are asked to do here is pass legislation in the hope that there may not be a no-deal Brexit, and there may not be any reason for ever implementing that legislation.
The way we are doing it now is rushed. It is a last-minute job. We will come right up against the date of 29 March, as outlined by the Minister in her reply to the Chairman. I think that is regrettable.
The Minister has also mentioned that the social welfare section of the omnibus Bill will underpin the present legal arrangements for the common travel area. The Minister will be aware that doubts have been expressed about the legal foundations that presently exist for the common travel area. Is this agreement, which the Minister has signed with the British Government, designed to deal with those doubts which were quite legitimately raised?
It is regrettable that we should be here today legislating in this way and staring a no-deal Brexit in the face because of the fact that a campaign was conducted in another country which was utterly misleading; because we have a Parliament in another country which has become the laughing stock of the world; and in view of the fact that we have a Prime Minister in another country who is more interested in keeping her own party together than in the welfare of the people. It is very regrettable that we are staring in the face of the possibility of a hard border, tariffs which will wipe out our agrifood industry and general disruption. That is where we are so I presume we have to get on with it. We will not, of course, be opposing the Bill, but I regret that we do not have more time to consider it.
The main questions I will be asking concern the amendments to the Social Welfare Consolidation Act 2005 and whether the Minister covered every possible angle there. I notice that in the definition of the Act referred to, the 2005 Act, the definition of social assistance does not include, for example, domiciliary care allowance. Maybe there is a good reason for that.
The other question I wish to ask the Minister is how long will it take to produce those regulations? As far as the 2005 Act is concerned, the Minister is giving herself the power to produce regulations. How long will it take to produce those regulations? Will these regulations amend existing regulations and if so, could she indicate which regulations they are amending so that we can have a look at them? On the assumption that the UK is going to crash out of the EU without a deal on 29 March, what is the position as regards reciprocal arrangements for social welfare if the regulations have not been put in place at that stage? What happens in the interim period?
I also want to ask the Minister about statements that were issued yesterday by a number of leading pension providers, namely, financial institutions who pay pensions in the UK that have expressed the opinion that Irish people in receipt of those pensions will no longer be able to receive the payment into their own bank accounts. Presumably, these payments are coming into their Irish bank accounts at present. The view of these - one of which deals with a major part of these payment of private pensions to Irish citizens - indicates that people may have to open a sterling account in the UK, which will be quite unacceptable. The suggested solution to that particular conundrum was some sort of a banking agreement or arrangement to be agreed between the two countries at some time in the future, presumably before 29 March.
I presume we can go into the details of the heads of the Bill later, on which I have a few questions, but these are general questions to which I seek responses now.
As I definitely would, I thank the Chairman and appreciate that.
I am not sure why the Deputy thinks that we are very late to the day with regard to this, given that I have described in detail the amount of work has been done by the Department with regard to the convention that started at the beginning of 2018. I have said a number of times on the record that I travelled to London last year to meet my then counterpart, a lovely lady called Esther McVey. We both had similar intentions, which was that after what hopefully would have been a deal, that is, an exit of the United Kingdom from the European Union with a ratified agreement, we were going to have as part of Protocol 20 a bilateral arrangement as regards the reciprocity of both of our social security arrangements. That deal was signed on 1 February and comes into play once it is ratified here, hopefully on Thursday, with regard to the Irish contingency. It is currently in a 21-day resting period in the United Kingdom. When that deal is ratified by the UK Parliament and Irish Parliament, which will most likely happen on 19 or 20 March, there will be no need for this legislation because the commitments that we made to each other as the United Kingdom and Republic of Ireland will come into legally binding force. I am preparing this legislation on the basis that, maybe, something will happen in the United Kingdom which will not allow it to ratify that deal within the 21-day period. I believe we are being incredibly prudent.
I have also discovered since drafting this particular section 11 of this Bill, that I really do not need to draft the legislation to ratify that because I have within our gift currently a regulation that we could sign on the basis that the United Kingdom is in the process of ratifying the Bill or the bilateral agreement, as both it and we are currently doing. We could extend the legal arrangements that we currently have until that Bill is ratified. This legislation is really in the case of absolutely everything else and throwing the bucket and the kitchen sink at it going wrong. The intention for many months of both the United Kingdom's Parliament - I am now working with the second Secretary of State for Work and Pensions, a lovely lady called Amber Rudd - and our own Department and Government has been that we will do absolutely everything to ensure that the reciprocal arrangements that Irish people and British people have enjoyed in each other's nations for donkey's years will continue on and after 29 March and that is what we are going to ensure.
The Deputy mentioned that there were some doubts legally. I am unsure from where he got that information.
Questions have been raised about the legal underpinning of the common travel area. There have been suggestions that the legal underpinning is pretty shaky and that it would need more comprehensive legislation.
There have been a number of academic papers and a certain amount of public discussion on this.
I think that may have been true insofar as when we tried to find a legal definition of and legal arrangements for the common travel area, which has been enjoyed for many decades, there probably was not a very sound legal basis. However, we now have a bilateral agreement between Ireland and the United Kingdom on the reciprocity of all our social insurance and social security arrangements, so there is absolutely no doubt but that it has a legally binding underpinning in both legislation as a convention in Ireland and now as a convention in England, once both conventions are ratified by both parliaments.
Again, as I suggested to Deputy O'Dea, the regulations will not need to be drafted if and when the convention is passed in both the Irish Parliament and the UK Parliament. Again, I cannot be sure the kitchen sink will not be thrown at something. The Parliamentary Counsel is drafting regulations for all the Departments involved in the miscellaneous Bill, and we will be well within the 29 March deadline. As I said to the Deputy, I am very positive, as is Amber Rudd, that both our conventions will be signed, will be legally binding and will be ratified by our Parliament and that of the UK long before 29 March. When I say "long before", it might only be seven days before, but seven days is a long time in politics around here these days.
I thank the Minister and commend the multi-strand approach that has been taken, which is prudent and appropriate. The primary concern, as she herself said, is to ensure continuity for those who are very much reliant on their social protection payments and that whatever the concerns might be or if it is the case that we end up having a hard Brexit, we try to bridge that scenario. That will be important. The Department of Employment Affairs and Social Protection is probably the Department that shows more than others that people will continue to have histories, families and relationships and everything else that spans across both territories. Some of the measures we are proposing to put in place here will ensure that those families, which are the basis of our relationship with our neighbour, are supported.
I have a few specific questions and concerns which the Minister might address. I note she is looking to make regulations, and the habitual residency condition is mentioned. It is very loosely worded here. This is an issue in respect of which a number of other issues are pending on the habitual residency condition that have been raised in the past - for example, the extent of its relationship with child benefit and so forth. Is there perhaps scope within those regulations, even if not now, to address some of these issues? That is one issue. The issue of ensuring we have that comprehensive cover was already raised. I refer to all assistance payments and entitlements.
The Minister might address the issue of paternity, maternity and parental leave. I am conscious that we have parental leave legislation that may almost dovetail with the entitlements, so it is a matter of ensuring compatibility between those allowances. We are moving out of the simple area of payments and into the area of payments and rights and entitlements. Perhaps the Minister could say whether those issues have been addressed.
This brings me to the fact, which she rightly pointed out, that there has been a long history of social co-operation on these areas since the 1920s. We also have the Good Friday Agreement and the rights pillar within it. Social welfare payments in respect of disability and certain other areas are in a way part of the way in which we vindicate that rights component.
There are a number of areas where we are giving regulations in respect of third countries. Perhaps it is a question of how this fits with the UK versus other third-country parties and how we balance that.
Data protection concerns are addressed somewhat under head 7, which concerns the exchange of information. It notes that it will be compatible with the GDPR, but perhaps the Minister might expand on this a little. She knows we have discussed this issue in the past. I am keen that we have a system that functions but how can we ensure there is clarity on the purposes for which the information is exchanged to ensure that the Bill is robust under the GDPR, particularly in respect of EU citizens based in Ireland? While every Irish person is an EU citizen, I refer to citizens of other EU countries and so forth. I am just conscious that we must plan to address the issue of people who may effectively have triple-part pensions. There may be those who have a pension from Germany, the UK and Ireland, for example.
Regarding head 12, under which the area of employment is dealt with, I recognise and I think it is positive that there are measures regarding frontier workers, how they are defined and the question of the employment rights in the case of any decision. However, what wider provision is made in this regard? This relates not only to this Bill, but also to what we all hope will happen, which is an agreed Brexit, and employment standards, which are within the Minister's remit. These are two very specific, small employment issues that are addressed, but there are a number of other employment issues - for example, situations in which British companies are contracted under public procurement and may have contracts with the State. How do we ensure that employment standards are maintained and that anyone who has been paid by the Irish State - in a five-year contract, for example - does not see any diminishment of employment standards?
I know I flew through the statement, but the heads of the Bill will be slightly different from the actual published Bill on Friday insofar as we have changed the Bill. We no longer need the regulations on habitual residency. They are already in the reciprocal convention we have with the United Kingdom. In order to assure the Senator, and I know she has issues with habitual residency and that is-----
I will try to be as clear as I can. Notwithstanding the anomalies the Senator thinks exist, the way in which habitual residency stands and is operated today, warts and all, is exactly how it will operate on 30 March. We have not changed it or deviated. What we have done is literally mirror exactly every single operation that occurs between Ireland and the United Kingdom and between the United Kingdom and Ireland today in the convention. Therefore, nothing will change in the way in which we administer the habitual residency clause, both in Ireland and the United Kingdom. It will be exactly the same. We have gone through every single scheme. I acknowledge I have probably continually focused on our pensioners and recipients of children's allowance because they are the largest numbers of people but there are other people on different schemes, which again will be exact mirror images. Whoever is entitled to be on a scheme today, whether one is in receipt of a payment in Ireland or in the United Kingdom, because of transfers of data between our countries and work practices and residency, the position on 30 March will be exactly as it has been, and that includes paternity and maternity benefits.
Parental leave is not on our Statute Book, and we cannot have a convention for something we might do in the future because I have no idea whether we will ever get around to passing legislation on parental leave, given the precariousness of matters at present. However, if and when the parental leave Bill is passed - please God, at the end of this year - we will then discuss extending the bilateral arrangements with the United Kingdom on that basis.
Again, the whole aim and our initial wish from many months ago is for the United Kingdom and Ireland to have an agreement that reflects the practices of the common travel arrangements that have been in place for donkey's years in our future relationship. That is what is in the convention. We will not effectively treat the United Kingdom as a third country because it is now a part of the new bilateral convention.
As for the GDPR, it is already stated in the convention that we will continue to share data. Both Ireland and the United Kingdom are adhering to the GDPR of the European Union to which both of us must adhere. That will not change on 30 March. What will also not change on 30 March is what Senator Higgins referred to when she spoke about employment standards. Ireland's laws will be Ireland's laws; the United Kingdom's laws will be the United Kingdom's laws. English companies coming over and working contractually in Ireland will continue to be obliged to work under our laws and, vice versa, if Irish companies go to the United Kingdom for contracts, they will continue to work under the United Kingdom's laws. In the main, our laws are exactly the same at present. We are probably about to adhere to and adopt Regulation 883/2004 on Friday, and the United Kingdom will still be very much a member of the European Union on Friday. When the United Kingdom leaves, therefore, both our regulations and our laws will be exactly the same. Someone would need to make a change to them for us to start deviating. I am not proposing in this legislation or in the convention to try to impose new regulations from an employment perspective on the United Kingdom's companies other than what already exists on the Statue Book in Ireland.
Given all the areas that are being addressed by this Bill and the speed with which it must be passed, should a review clause be built into the Bill to ensure that in, say, one year's time we are in a position to interrogate if it is working?
There is nothing to stop anybody reviewing any legislation, and that is true of this Bill too. As I said earlier, I am hopeful that even if we do pass this legislation I will never have to commence the provisions in regard to the Department of Employment Affairs and Social Protection, in particular section 11. Section 12 is different in that it is outside the scope of the convention.
I thank the Chairman for organising this meeting. It is important we had an opportunity to discuss this Bill with the Minister, Deputy Regina Doherty, who I thank for her attendance and her presentation. It is regrettable that we are here at all. I say that with reference to what Deputy O'Dea said. However, we have to deal with the hand that is being played. I compliment the Minister and her officials on the work they have done in this area, in particular the Minister's work with her counterpart in the UK. There is a great deal of concern among people in regard to the security of their entitlements. I welcome that the Bill underpins the common travel area and ensures that the associated rights and entitlements of Irish and British citizens under this long-standing arrangement will continue in any circumstance.
Will the Minister outline what payments are covered by the agreement signed on 1 February 2019? Will she also confirm that pensioners in Ireland will continue to receive their UK pensions into their bank accounts and that the all-Ireland free travel scheme will not be impacted by Brexit?
On my own behalf and on behalf of my staff, I thank Deputy Carey for his compliments. The payments covered include the State pension (contributory), carer's benefit, health and safety benefit, illness benefit, treatment benefit, adoptive benefit, maternity benefit, paternity benefit, invalidity pension, partial capacity benefit, widow's, widower's and surviving civil partner's contributory pension, guardian's payment contributory, occupational injury benefit, widowed or surviving civil partner grant, jobseeker's benefit and family benefits, including the back-to-work family dividend, child benefit, guardian's payment non-contributory, domiciliary care allowance, one-parent family payment and working family payment. The corresponding UK payments are reciprocal to Irish citizens.
With regard to the free travel scheme, the all-Ireland free travel scheme was introduced in April 2007 through the programme for Government based on agreement with the Irish Government and the Northern Ireland Assembly. It is not subject to EU legislation and, therefore, it will continue to operate unchanged after Brexit. We are currently reviewing the contractual arrangements with Translink, the company contracted to supply the senior smartpass card which is based in the UK, in Belfast and Hull, to ensure that we have full compliance with the data protection obligations under GDPR. This work is well advanced and necessary and it will be completed before B-day.
On the pensions question, the manner in which people currently receive their payments will continue on and after 29 March. There will be no change.
In regard to Deputy O'Dea's earlier reference to the article in this morning's edition of theIrish Independent, that relates to private pensions, which has nothing to do with my Department. I am aware that there are negotiations taking place between the private pension companies and the Central Bank with regard to a banking licence, which, again, has nothing to do with my Department. Irish people in receipt of an Irish pension and living in the UK and UK people in receipt of a UK pension and living in Ireland will continue to be paid in the same manner. There is no reason to change banks or to worry in any way.
I am pleased the opportunity is being taken to anchor the common travel area arrangements in law because, as we all know, these arrangements have grown organically since the 1920s. It is important that these reciprocal rights are reflected in law and bilateral agreements. They must be enshrined and anchored in primary law to ensure that everybody's entitlements are protected. It is unfortunate that Brexit has precipitated this move but it is probably a good idea anyway to enshrine these rights and entitlements in law. I am assuming that Brexit of some description will happen, unfortunately, but in any event we are proceeding with legislation to ensure that the reciprocal rights are enshrined. It is probably a good idea to take a belt-and-braces approach to enshrining these rights in legislation. This probably should have happened many decades ago. As I said, Brexit has precipitated this move. When can we expect this to happen?
This approach recommends itself. There is great merit to it.
On employment rights, we can all be satisfied that the protections that Irish laws provides to workers will be afforded to British people working here. They will enjoy the same rights and entitlements and protections as any other posted worker under the principles of the posted worker directive. This is very positive and provides people with reassurance.
I ask the Minister to elaborate on the arrangements regarding frontier workers. I am assuming that arrangements regarding frontier workers relate to residents living on one side of the Border or the other and working across the Border and so on. There are several thousand people who are so affected. Many people I represent in north Louth have concerns in this regard. Crossing the Border a number of times a day is taken for granted by people living in Dundalk and working in Newry or living in Drogheda and working in Newry. The Minister is well aware of the issue. This Bill gives legislative expression to those protections that are already enjoyed. I ask the Minister to elaborate on the issues she has encountered in this area and the protections that will be reflected in the legislation.
I welcome the move by the Department of Employment Affairs and Social Protection and the Minister to amend the Protection of Employees (Employers' Insolvency) Act 1984. Insolvencies occur all too frequently and given the activities of British business here and that of related companies such as parent companies and so on, this is very important. People will be reassured that those protections that are currently enjoyed around insolvency legislation will be applied to anybody who is made redundant in an insolvency situation, if employed by a UK parent company.
The Senator is correct that we took a lot for granted over many years in terms of the common travel area arrangements. It is not until one seeks out the legal underpinning for this area that one realises it came up short. We have signed the convention and, hopefully, it will be ratified here in the next couple of days. I will briefly outline what happens in the UK. We both signed the convention on the same day. The UK has a 21-day cooling period, which we do not have. We have both laid the convention before the respective Houses. I think it was laid before the Dáil last week, with the motion to come to committee tomorrow morning. The United Kingdom is slightly different. It has a 21-parliamentary-sitting-day cooling period, during which parliamentarians in the UK can make observations or suggestions on the convention. They do this through a privy committee, which is due to sit on 13 March. The cooling-off period ends on 19 March. I genuinely hope that by 20 March, the Parliament in Westminster and the Parliament here will have ratified the convention on behalf of both nations. We were instructed in December to draft this miscellaneous Bill in preparation for a no-deal Brexit to replicate everything from my Department's perspective that is in the convention.
The convention was part of the withdrawal agreement, protocol 20. In the event of it not being ratified we were going to ratify the legislation on how we will protect Irish citizens and all the payments that are made to them. However, we discovered during drafting it that once the convention had been signed and the intent and goodwill of both parliaments were ongoing, which they are, we did not necessarily need to pass the legislation and that we could pass a regulation to continue doing what we have always done on the basis that the goodwill exists for both parliaments to pass and ratify the protocols. That is true of section 11 of the Bill but not of section 12 because it is not included in the convention.
I will continue to pursue section 11 of the Bill because nobody knows what can happen on any day. However, because of the interactions and the intentions of both of the Secretaries of State for Work and Pensions I have had the pleasure of working with over the last 18 months, I am very positively disposed that the convention will be signed and that what we have enjoyed, from a security perspective, in the common travel arrangements for many years will become subject to a bilateral agreement and then will be subject to law.
With regard to frontier workers, the common travel arrangement is a long-standing arrangement and it means that most Irish citizens can move freely to live, work and study in the UK on the same basis on which UK citizens come here. The rights and entitlements include access to employment, healthcare, education, social benefits and the right to vote. Frontier workers, being persons who pursue an employment activity in one state and reside in another, returning there daily and at least once a week, are provided for in the agreement signed on 1 February in the same manner as they were under European Union rules of social security co-ordination, as provided for in Regulation EC 883/2004. The arrangements we have enjoyed under that directive that we all signed in the European Union in 2004 are enshrined in the bilateral convention. Again, with fingers and toes crossed that all goes well on 20 March, frontier workers will continue to work with the same rights, privileges and responsibilities they have always enjoyed since the European directive was established in 2004. It means people who are employed in Ireland but living in the UK and people who are employed in the UK but living in Ireland will have access to all family benefits that are available to people in Ireland for family members who are residing in the UK as if they were residing here. It will not matter where one lives and works as long as one lives and works within the two countries.
In addition, the existing arrangements for frontier workers who become unemployed will remain. If a frontier worker becomes wholly employed the person's contribution record in the state of the employment, for the sake of argument people from Louth who are working in Newry, will remain recognised by Ireland as it is today. There will be no change. That will be ratified within the convention on whatever date it is in March. However, I will pursue the legislation in section 11 of the miscellaneous Bill just in case.
I thank the Minister for attending. Many of the questions I had intended to ask have been asked. I welcome the anchoring of the common travel area. I congratulate the Minister on the huge amount of work her Department has done, given the huge concerns among the public. When one considers the figures for pensions and child benefit, a huge amount of work has been done. Will there be any delay on payments if there is no deal? Will there be paperwork on both sides for pensioners or those in receipt of child benefit if there is no deal? What about the provision of information to citizens? Much of the time no information comes to them and they are left in the dark at the last minute. Does the Minister expect an increase in unemployment as a result of Brexit, especially in Border areas?
We are going into the unknown here and the Government and the Department have done a good job over the last three months. Unfortunately, we might see Britain go over the cliff on 29 March, which will be very sad. I am worried that Britain has introduced legislation, which not many people know about, providing that when skilled workers come to Britain from other European countries after Brexit they will be allowed to stay for five years while unskilled workers will be allowed to stay for three years. That has been passed by the British Parliament. I cannot understand why there has not been uproar throughout Europe about it. It is in place. However, that is a matter for another day.
I will decline to comment on the last matter because it is not my business to comment on what laws are passed in the United Kingdom regarding its sovereignty. However, those laws do not relate to Irish people.
Perhaps that is why it has not given much cause for concern over here. We have the convention of the bilateral arrangement.
Regarding the concerns people might have about delay and paperwork, the ambition is that Irish people living in Britain and who are in receipt of an Irish contributory pension or child benefit payment will not notice that it is 30 March at all and that there will be no changes whatsoever. The same will be true if one is a British citizen living in Ireland or Northern Ireland and receiving any contribution towards a payment under the schemes I listed earlier. One will notice no difference. I can say that comfortably for two reasons. Either the ratification of the convention we signed on 1 February will have taken place and will become a legal binding international bilateral convention that is recognised and becomes law or, in the event of that not happening, with the co-operation of the Dáil and the Seanad we will pass this lengthy miscellaneous Bill, which will allow me to continue to make the payments that we are currently arranging. There will be no delay or exchanges of paperwork other than the information that flows between the UK agencies and Irish agencies with regard to social security that happens now.
The Senator is correct that we probably have not yet told citizens exactly what will happen. If I were to absolutely guarantee today that people do not have to worry about anything and everything will be fine, as sure as eggs are eggs something will happen next Tuesday and I will not be able to guarantee. However, our intention and the intention of the two Secretaries of State for Work and Pensions I have worked with over the last 18 months is that when somebody wakes up the day after the United Kingdom leaves, whenever that may be and it might not be 29 March, the arrangements for social security and all the schemes I outlined earlier will be exactly as they were the day before. In addition, the common travel arrangements we have had with regard to education, healthcare, work and social security will be exactly as they were for many generations.
On the Senator's last question, there is no such thing as a good Brexit. I believe I heard a Deputy earlier this week call it a stable Brexit. I do not agree. I do not believe there is anything that could be called a stable Brexit. This will not be good for any section of Irish society or, in my opinion, for society in the UK. Given the impact it will have on businesses throughout this country I have no doubt that it will have an impact on the live register figures. We have started analysis and we will be starting detailed preparations as to what we can expect and how to provide supports for the people who will be impacted negatively arising from what may happen in the next few weeks. Our contingency plans are to ensure that we minimise as much as possible for the Republic and that we have activation measures and supports for industry in place to ensure the least worst Brexit outcome that is possible for Irish citizens.
I wish to make a comment. You saw the paper today which referred to the fact that legislation would be introduced to ensure people would receive their payments and so forth. It is important that you and the Department have a communications strategy in place. You might say it is premature now because neither the convention nor the legislation has been passed, but people are still concerned. Many people have no concern because they have never left the country and their payments will remain, but people who have been abroad for a number of years have concerns. The Department must ensure it has a satisfactory communications strategy in place before something happens rather than afterwards.
Perhaps I misunderstood what the Minister said about the convention. If the convention is ratified by both parliaments it will make section 11 unnecessary, but she going ahead to pass section 11 anyway.
In what way will this be radically different from the heads of the Bill?
It is not going to look any different. It will look exactly the same. We should not have all our eggs in one basket. In an ideal world, where people have common sense, the ratification of the convention that was signed on 1 February would be something we could guarantee will pass. We obviously want it to be ratified. The UK parliament will go through its normal process, involving a 21 day cooling period and applications being made to the privy committee before it is passed. With respect, however, to Members of the British Parliament, I cannot find myself in a position, on 29 March, where this is not passed in Westminster. I have an obligation to the 132,000 pensioners and the thousands of other people I mentioned earlier, which is why we will pass the legislation that empowers me, from a legal perspective, to continue making those payments. If it transpires that we do not need to commence the legislation, because the convention has been ratified, that will-----
I understand that. I was referring to the Minister's statement on page 8, which reads, "As a result, most of the provisions initially envisaged are not required as they were intended to achieve the same ends, so the Bill as published will look quite different to the general scheme in this regard".
The reason the draft legislation and the legislation published on Friday will look slightly different is that when we were drafting from the heads we discovered that, because the ratification process has been started by other parliaments - it was begun long before we received the heads on 1 February, and we have been developing and detailing the drafts over the past couple of months - I can extend the regulations we currently use to pay all the social security payments between Ireland and the United Kingdom.
Yes. We can extend that until ratification occurs. I expect the UK to have ratified this by 20 March, but for argument's sake - I hate saying things out loud because sometimes they come true - if it does not happen because, for example, everyone gets bird flu and is off for two weeks, and ratification cannot occur until 9 April, this legislation gives me the ability to pass, draft or sign a regulation which would allow us to continue to pay what we are currently paying until 9 April or whatever date it is passed. The intention of the Minister at the Department of Work and Pensions in the UK, and indeed our intention, is to continue to do what we set out to do a year and a half ago and pass this convention before 29 March.
I have made many different points, but I wanted an answer to the question on a three country issue, for example, where there may be a reciprocal issue for people who have a partial contribution from the contributions in Germany-----
I will describe it, in case I have misunderstood the Senator. Take, for example, an Irish gentleman who has worked for some time in Ireland, in London and in Berlin. When he retires his pension contributions will be an amalgamation of the contributions made in three countries. The Irish system will pay him, and the information will be shared through the social security arrangements we have. The UK will continue to give us the details it holds on the contributions the man made in London, and the Berlin social security system will give us the details of the contributions he made in Berlin. We will then determine what the pension is and pay it accordingly.
On insolvency and the question of access to assets, we all remember what happened when Thomas Cook pulled out of Ireland and the concern for workers that arose from that. Can the Minister provide clarity around the arrangements in place to ensure that workers based in Ireland have access to assets?
I recognise that all legislation is subject to review, and suggest that it would provide assurance, given the speed with which an omnibus Bill may have to pass through the Houses, if there was a scheduled review built into the Bill, particularly because there may be a number of areas in which the right to make regulations may be given to the Minister. We do not want a situation where regulations are made on the basis of the omnibus Bill and we do not have a sense of when they will be reviewed or when the nuanced work we would ideally like to do will be carried out.
My last point is related to the legislation, and concerns exceptional needs payments. They are likely to be separate payments, but a number of persons will become vulnerable post-Brexit. Are there plans in place within the Department to look at allocating more resources to exceptional needs payments, or for a potential review of the issues that might arise in that area?
This miscellaneous Bill is needed because we may potentially be heading towards a no-deal Brexit. Nobody wants a no-deal Brexit, so we are still working incredibly hard to avoid it. If we get a deal, whether on 29 March or some other date later, this particular Bill becomes redundant. A large body of work has been done in this area, but one would almost be saying a novena in the hope it becomes redundant.
On the question of assets, the law is as it is today. I am ensuring that the law, if the UK becomes a third country, would not relate to employees. I do not want to be disrespectful to employers from the UK, but the only people I am concerned about are the employees, who would most likely be Irish resident employees of UK companies. The scheme currently does not pay out where there are assets. It only kicks in where there are no assets. Other legislation relates to the governance of the particular issues the Senator mentioned. The current legislation governing insolvency arrangement is with the Department of Business, Enterprise and Innovation.
This particular Bill only kicks in terms of social protection, where somebody becomes insolvent and there is no money available from which to pay any creditors. The State refuses to leave employees with nothing. If we did nothing, the United Kingdom would become a third country and would not be subject to this Bill, and the Irish employees in UK companies would not be protected. We are extending the provisions in the Bill to ensure that the UK, if it becomes a third country, will be subject to the Bill. It is a safety net, and we hope that it will be used relatively rarely.
There is no extra provision in our exceptional needs budget because it is entirely driven by demand. I may look for a supplementary budget, as could happen any year, but it is the same as disability provisions and jobseeker's allowance. If anything happens to upscuttle the budgets we agreed we will have another conversation at a later point. We certainly will not be turning anyone away.
I have not answered the Chairman's question. I apologise. We have a Getting Ireland Brexit Readywebsite, on which the information is detailed, but the Chair has made a very good suggestion. Given that we know who will be affected we should perhaps not put the willies up everybody and should deal directly with the 130,000 people involved. It is a very good point, and I have taken a note of it.
The select committee is meeting at 9 a.m. tomorrow in committee room three to deal with the convention. Unlike Westminster, our remit is to refer it back to the Dáil no later than 5 March. We will be doing that tomorrow. I thank the Minister and her officials for their attendance today.