Oireachtas Joint and Select Committees
Thursday, 21 February 2019
Select Committee on Social Protection
Convention on Social Security between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland
Before I commence, I remind members that if they have mobile phones, they should turn them off.
The Minister and her colleagues are very welcome. The purpose of the meeting is to consider the following proposal:
That Dáil Éireann approves the terms of the Convention on social security between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, done at Dublin on 1st February, 2019, a copy of which was laid before Dáil Éireann on 7th February, 2019.
The proposal was referred by the Dáil to the select committee on 12 February with a requirement to send a message to the Dáil in the manner prescribed in Standing Order 90 no later than 5 March. We had the Minister in attendance yesterday so we have a good understanding of what is in this convention but we will start with her opening statement.
I thank the committee for the invitation to discuss our convention on social security signed recently between the Government of Ireland and the Government of the United Kingdom.
In the context of Brexit, 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. This has been the aim since immediately after the referendum in the UK on 23 June 2016. This is in line with the Government’s overall commitment to maintain the common travel area, which is one of our four Brexit priorities.
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 our two countries since 1924 and, subsequently, in EU co-ordination regulations. That reciprocity is underpinned by the principle of equal treatment so that Irish citizens in the UK 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 the status quothrough safeguarding and preserving that very reciprocity is of crucial importance to me, my Department officials and our Government.
Because of the unique nature of the common travel area and the associated rights and privileges which it provides, and will continue to provide for Irish and British citizens in each other’s 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.
Last year, I met with the then UK Secretary of State for Work and Pensions and we agreed the objective of ensuring that the reciprocity of social welfare rights and entitlements, which currently exist for Irish and UK citizens moving between Ireland and the United Kingdom under the common travel area, are safeguarded and maintained.
Since then, there has been intensive work at official level to develop and finalise the agreement to underpin these arrangements. That agreement was signed on 1 February and is now subject to the ratification process in both Ireland and the UK and is the reason we are here today.
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 jurisdictions. This means that the rights of Irish citizens living in Ireland to benefit from social insurance contributions made while working in the UK and to access social insurance payments if resident in the UK are protected and vice versa.
There are approximately 132,000 people in receipt of a UK State pension living in this country and approximately 1,000 people receiving child benefit payments from the United Kingdom for children residing in Ireland.
There are 28,760 people residing in the UK who are in receipt of a State pension (contributory) 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 live in Northern Ireland. A further 920 people residing in the United Kingdom 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 the purpose of the bilateral agreement.
The agreement means there will be no change to social welfare payments, which will continue to be made as usual. Where payments are made from Ireland to the United Kingdom or from the United Kingdom to Ireland, these arrangements will also continue. It means our citizens can be absolutely sure that their social welfare benefits and entitlements remain as they were, and are, before Brexit.
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 Dáil motion on 12 February as a result of which we are here today. As the Chairman expressed, the motion has a return date of 5 March. Once the parliamentary procedures are completed, letters of exchange will be arranged. The convention will be brought into effect by way of ministerial order.
The ratification process in the UK is also under way and it is also expected to be completed by 29 March. If there is a no-deal Brexit then the convention will be required to come into effect immediately. If there is a deal, which we all still hope there will be, the convention need not take effect until the end of all of the associated transition periods.
While I am confident that the ratification process will be completed in both jurisdictions before 29 March, we need to be sure that export and payment of benefits between Ireland and the United Kingdom and vice versacan continue in the event of a no-deal Brexit even if all the necessary steps in the ratification process are not completed on that date. Therefore, it is prudent to proceed with Part 11 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019, which we discussed here yesterday. These amendments to the Social Welfare (Consolidation) Act 2005 are also designed to maintain thestatus quoin the common travel area with respect to social welfare arrangements.
I have also included amendments to 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, including 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 we make the amendments to section 12 of the miscellaneous Bill. The purpose of the amendments in this part of the Bill is to ensure that those employees will continue to be covered by the scheme in the event of a no-deal Brexit. Given the economic uncertainties that may prevail in a no-deal scenario, it is vital that we continue to provide this protection to workers in Ireland and that is why I am introducing these amendments in the Bill.
The Government has discussed this proposed legislation throughout our meetings in January and February. Its provisions were also the subject of intensive and daily engagements between Departments and the Parliamentary Counsel. As outlined yesterday, the Government expects to publish the full omnibus Bill on 22 February. It is our intention that it would go before the Dáil for Second Stage from 26 to 28 February, it would go through Committee and Report Stages from 4 to 8 March and it would then go to the Seanad for Second Stage on 11 and 12 March to be followed by Committee and Report Stages on 13 and 14 March. It will come back to the Dáil if amendments are required.
This convention is an essential element in the maintenance of the status quoin the common travel arrangements we have enjoyed for many years. It brings certainty to an area that affects many Irish and British citizens. I genuinely appreciate the support of this committee and its co-operation and efforts and hope that they will help ensure that our Parliament will ratify this convention and pass the miscellaneous legislation in the next number of weeks. I am happy to respond to any questions members may have.
The Minister gave a very thorough overview of the legislation and convention yesterday so I will not dwell on too many points. The figures given by the Minister today and yesterday show how important it is that there is certainty and a seamless transition through very uncertain times for everyone.
I will home in on one area, namely, the provision relating to overlapping. I have some concerns that I hope the Minister will be able to allay. She would be aware that in 2012, a European Court of Justice ruling allowed people who had worked in the UK to avail of the winter fuel payment. I think approximately 132,000 people are eligible to apply for the British winter fuel payment, which can range from £100 up to £300. Certainly it is a very important payment for those people. That ruling did not stop people also qualifying for the Irish fuel allowance. I am seeking clarity regarding this overlapping. I read through the document and there is no specific mention anywhere of the winter fuel payment. Can the Minister clarify whether overlapping will do away with that so that people will only be able to qualify for one payment, be it the Irish fuel allowance or the British winter fuel payment? A bit of clarity would be helpful.
The drafts of the Bill, which is the miscellaneous Bill and not the convention, include a head that includes the avoidance of overlapping of benefits. What we are doing is maintaining the current rights. Obviously, what we want to do is to try to avoid the situation we had a while ago. That ambiguity arose because there was no legislation that prescribed anything in law. One of the heads of the Bill that will be published tomorrow will detail how we intend to avoid it but that does not mean that it necessarily will not be open to challenge. We are prepared and we hope that we will be able to prescribe in law that someone cannot avail of something in both scenarios. Obviously, we want to maintain what we have in this instance and, in essence, this is about trying to perfect what we thought we had before it was undermined by the European Court of Justice ruling regarding jurisdiction rights of people in the UK and Ireland to apply for each other's fuel payments a number of years ago. The draft head will include a motion of avoidance of overlapping benefits but we will maintain the current arrangements and are not changing the rules for anything else.
So the Minister is saying that she will be seeking to change things so that people will not be able to avail of both payments. That will be really concerning for many people. We will wait and see what is in the legislation once it is published tomorrow but I would have concerns. We will wait and have a look but it would be of grave concern to the 132,000 Irish people who worked in the UK. In respect of being told there will be no changes, that is a significant change for many people. Many people are not aware that they could qualify for the winter fuel payment in the UK. I know a large number of people do qualify in accordance with the ruling by the European Court of Justice in 2012. We will look at the legislation tomorrow but I would have concerns in that regard.
I apologise for not being able to attend the meeting yesterday. This is all part of the transition in respect of a deal or no deal. The dates are very tight. Committee and Report Stages will take place in the Seanad on 13 and 14 March. The Bill will go back to the Dáil before 29 March. In her speech, the Minister said there might be a problem in the event of no deal. Could we get clarity on that? What is in place in terms of future changes after 29 March? Is there agreement that if a problem between the UK and Ireland regarding social security comes up, there is an arrangement to deal with it?
When we met last March when I went to the UK to meet the then Minister, Esther McVey, the principle we agreed would be set out in the convention was that we wanted to continue doing exactly what we have been doing for donkey's years. Officials from my Department and her department finessed that agreement and finalised it towards the end of December. That agreement was signed on 1 February. The agreement was part of the withdrawal agreement so it was detailed in protocol 20 that we were to do this and we had the blessing of everybody so that in the event of a deal, there would be an orderly transition on continuing to legally do what we have always done with each other's citizens for a long time. In December, when things looked a bit ropey and it looked like there might not be an orderly Brexit, the Government decided that we needed to put in contingency plans regarding the common travel area we want to continue to enjoy after a no-deal Brexit. That is where this piece of legislation came from.
We started to draft the heads of the Bill to replicate everything that was in the convention, which is to have exactly the same status quoon March 30 as we have on March 29. We started that in December so that in the event of a no-deal Brexit this new legislation would give me the legal basis to continue to pay what we have been paying. Since we started drafting that Bill the convention was completed and signed off on 1 February. We have now discovered that since the convention processes have started in this Parliament and in the UK Parliament I actually do not need section 11 of the Bill. Because the ratification process had started in both parliaments, and because there is the goodwill and intention to complete it even if it is not completed by the Irish or the UK parliaments before 29 March, I can by regulation legally instruct my Department to continue paying as can the new Minister in the UK, Amber Rudd, legally continue to pay, because we are in the process of ratifying. In essence, because we have started the ratification process I do not need the double surety of the legislation I thought I needed. We will finish the ratification process today and the committee will send a message back to the Dáil. That is our part done.
The process in the United Kingdom is slightly different in that they must lay their convention before the Houses for a 21 day cooling off period. This is to allow their MPs to make submissions, objections or enhancements, or just comment on it, to the Privy Council. The Privy Council is meeting on 13 March and the cooling off period finishes on 19 March. If there are no changes to be made they will ratify their convention on 19 March or thereafter. If all of that happens then we do not need to worry about anything. If it does not happen, then I and the Secretary of State for Work and Pensions in the United Kingdom, Amber Rudd, will both have to sign a regulation to say that given that we are in the middle of this ratification process, which has not yet been completed, we will sign regulations to allow us to continue paying what we have always paid until the ratification process is legally binding - because we know it will happen within a matter of days or weeks of the exit date of 29 March. It is most likely that while I will go ahead with section 11 of the Bill it will not be needed to commence, but I will have to go ahead with section 12 with regard to the insolvency requirements and securities that are needed around that. I am aware that it is a little odd, but the situation we are in is very odd. Either way, I want to guarantee that on 30 March and thereafter people will have the securities and the rights exactly as they had on 29 March, regardless of which mechanism we use to ensure those rights are continued on 30 March.
It is a bilateral agreement. Obviously it can be changed and adapted at any stage. Yesterday we talked about this - I believe it was Senator Higgins who had asked about it. The Parental Leave (Amendment) Bill is currently not on our Statute Book, but if it was it would be included in the list of schemes in the current bilateral. At some point in the future if parents take paid parental leave and they live in the United Kingdom but work in Ireland we will adapt it. We want to continue to enjoy the friendly relations and securities we have with each other, between Irish people living in Britain and British people living in Ireland, for many years to come please God.
Our ratification process is in our hands. The UK process is not in our hands and we have to assume it will happen. The Minister made the interesting point that if the ratification is not complete payments will continue because the Minister can issue a regulation while the ratification is in process. How long can the Minister work under that regulation? Is it time specific or is it open ended?
I think it is open ended but it is not going to be open ended forever. The principle is that so long as the goodwill and intention of both parliaments exists, and as long as the intention that has been laid out by Esther McVey, Amber Rudd and the UK Government that it wants to do this does not change, then one would expect the process to continue. We will know very quickly if there is a problem with the process. I do not expect-----
It might seem futile but it is the double lock. I know that we will pass it, that it is no different from what is in the convention and that it may never be commenced, but I need to have it in the back pocket.
The way the current situation works is there is no overlapping because all the schemes that are based in the Bill have a legislative basis and we share data. I will use the Deputy as an example for argument's sake. He cannot work in Ireland and in the UK subscribing a contribution in the same week. There is no overlap around anything else that requires a contribution. The winter fuel allowance in Ireland or the UK does not require a contribution: it is an additional add-on and does not have a legislative basis. This is why there was an anomaly and why we are moving to secure no overlap in the future. I do not believe there was ever an intention of the Irish Government or the British Government to have rights and entitlements that would overlap in the first instance. We are going to ensure in the regulations that this anomaly does not occur again.
Everything else requires a contribution but the winter fuel allowance is not a contributory payment. It is an allowance that is given towards alleviating fuel poverty. It is slightly different in that there is no legislative underpinning.
I thank the Minister and her officials for their attendance today. I also thank the Minister for her comment yesterday that she would notify those who we know to be affected. Brexit has become very real all of a sudden to a lot of people. Where there is uncertainty the Minister has a role to play with regard to the people who are known to be affected and to clarify the proactive steps she is taking to ensure their payments continue.