Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The purpose of this meeting is to meet with the Minister for Justice and Equality, Deputy Flanagan, and his officials for a briefing and discussion on the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019 and related matters. I welcome the Minister and his officials.

Before we begin I remind members that under the salient rulings of the Chair they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I ask members and the guests accompanying the Minister to put their mobile telephones on silent mode.

I invite the Minister to make his opening statement.

Charles Flanagan (Laois, Fine Gael)
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I thank the committee for the invitation to appear before it this morning to brief it on the current legislation. I am joined by my officials Mr. Jimmy Martin, assistant secretary, Ms Yvonne White, Mr. Brian Merriman, Mr. William O'Dwyer, Ms Regina Terry and Ms Eileen Devoy.

The Government remains firmly of the view that the best and only way to ensure an orderly UK withdrawal from the EU is to ratify the withdrawal agreement. Having said that and in view of the ongoing uncertainty in the UK, I and my Department have been intensively advancing preparations and planning for every scenario, but particularly for a no-deal or worst case scenario. If the UK becomes a third country on 29 March next, without having ratified the withdrawal agreement with the EU, then a very wide range of EU rules relating to justice and security will no longer apply to or in the UK. On the other hand, should the withdrawal agreement be ratified before 29 March, many of the preparations and contingency measures that I am about to detail will not be required, at least in the short term. The purpose of the legislation before the House is to offset some of the damage which may arise if the UK departs without a deal being in place. While there are a number of Brexit implications for the justice sector, key risks have been identified in two areas, namely, extradition and immigration. These two areas require primary legislation to be in place and are set out in Parts 13 and 14 of the Bill.

Turning to Part 13 in the first instance, the Bill provides for two amendments to the Extradition Act 1965. One of the key issues identified by the Department of Justice and Equality is to ensure that effective extradition arrangements are maintained between Ireland and the UK. In the event of a no-deal Brexit the provisions of the European arrest warrant would no longer apply to the UK and at 11 p.m. on 29 March persons detained on foot of European arrest warrants would be released. It is critical, therefore, that extradition provisions are in place immediately following the UK's exit from the EU. The optimal solution identified by my Department is to apply the 1957 European 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 by Part II of the Extradition Act 1965.

While the extradition procedure under the convention is not as effective or as efficient as that of the European arrest warrant, in the event of a no-deal Brexit it would provide a workable solution. The intention would then be to legislate for and move to an extradition arrangement with the UK similar to that which obtains in the European arrest warrant. 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 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.

The amendment to section 14 in respect of Irish citizens acknowledges the need to amend that Act to ensure that the current European arrest warrant arrangement relating to extradition of own citizens continues and that, in applying the provisions of the Council of Europe Convention on Extradition, 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. In this regard it should be noted that the United Kingdom has already indicated that it intends to continue to extradite its citizens post Brexit.

The second amendment relates to section 23 regarding requests for extradition. In this regard, the Act is being amended to alleviate the burdensome extradition procedure with receipt of requests to the Minister for Justice and Equality 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 and Equality where this has been arranged with a country by direct agreement.

I now turn to Part 14 of the Bill, which 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-refoulementin our law. I should point out that refoulementconsiderations 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.

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, 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.

In addition to the above amendments, some pieces of secondary legislation are required to be in place by 29 March 2019. These will cover issues such as facilitating the recognition of UK solicitors' qualifications in the State and, in the context of asylum claims, designating the UK as a safe third country. There are other important issues that my Department continues to address and to prepare for. However, I believe the two I have covered today are the most pressing. I thank members for their attention and I am happy to respond to any questions, observations or submissions they may have.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I thank the Minister for making himself available. The engagement is useful in the context of what will dominate these Houses for the next couple of weeks. I have a few questions about what is and is not in the Bill. I will start with what is in the Bill. The Minister spoke about non-refoulement. In respect of section 88 and the proposal to insert new section 3B into the Immigration Act 1999, it appears to clarify that these provisions will apply to the period commencing on 31 December 2016. My understanding is that this area seeks to clarify an area that was struck down by the High Court in 2018 in S.G. (Albania) v. The Minister for Justice and Equality. I am trying to understand the timeframe and how, if the case that saw the previous section struck down or rendered inoperable happened in 2018, we can confidently say that this section applies to the period between December 2016 and this legislation.

Charles Flanagan (Laois, Fine Gael)
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Part 14 of the Bill deals with the amendments to the Immigration Acts. In effect, that deals with a lacuna in the provisions relating to non-refoulement. The important aspect here is that sections 88 and 89 amend not only the Immigration Act 1999 but the Immigration Act 2003. That will have the effect of confirming that in considering the removal or deportation of a person from this State, immigration officers will, in line with international obligations, have the power to undertake the refoulementconsideration. Section 88 also includes a provision confirming that where in making an order of deportation since 31 December 2016, consideration was given to non-refoulementand the practice will continue. What we are doing in the amendment is providing a legislative basis to the consideration of refoulementmatters. This is in line with section 50 of the International Protection Act 2015 for all non-nationals being removed from the State. The amendment will have the effect of restoring references to non-refoulementin the Immigration Acts. It has remained both the policy and the practice to apply refoulementprinciples to all removals from the State. That should cover the point raised by the Deputy.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I am not quite clear. I have not read the full judgment but my understanding is that the 2018 judgment found a difficulty with Ireland's processes regarding non-refoulementconsiderations. I find it hard to understand how this legislation is saying that we are satisfied that non-refoulementconsiderations were undertaken and that deportations from December 2016 until the court case are considered valid even though the court decision had not been handed down. Is it the case that in practice, even if there was no legislative basis for it subsequently, non-refoulementconsiderations were given and that, therefore, even though the legislative basis did not exist, procedurally, all the people who received deportation orders did in fact get this consideration and that, therefore, they are covered and the deportations were valid? Am I understanding this correctly?

Charles Flanagan (Laois, Fine Gael)
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On the basis of the technical nature of the question, could I ask an official to respond?

Mr. William O'Dwyer:

The relevant court case was S.G. (Albania) v. The Minister for Justice and Equality. When the International Protection Act was implemented in 2015, it repealed the Refugee Act 1996, which, in section 5, had a provision onrefoulementthat applied not only to protection applications but also to all removals from the State regardless of whether or not they were protection-related. When the International Protection Act 2015 was implemented, it repealed the 1996 Act and inadvertently disapplied non-refoulementconsiderations to non-protection applicant removals, for example, deportation orders or general immigration cases.

It only came to light in the High Court case but the practice was always that non-refoulementconsiderations were considered in every removal case from State. Here, we are restoring the position where there is a legal basis to the non-refoulementconsideration for non-protection related cases which are dealt with under the Immigration Act 1999 and the Immigration Act 2003. Section 3B gives a retrospective legal basis to deportations that would have taken place from 31 December until the Bill is enacted. However, it is only where the non-refoulementconsideration has taken place. If a deportation order is the subject of court proceedings, for instance, that retrospective provision does not impact on it.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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On that section, the section relating to extradition and the legislation generally, it is currently the case that the UK is a signatory to the European Convention on Human Rights, ECHR. A significant and influential element in the Conservative Party has expressed a desire to renounce the ECHR. Is the position of the Minister and the Department that this legislation will require review and potentially revision if the UK does so?

Charles Flanagan (Laois, Fine Gael)
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We are dealing with what might be described as the worst case scenario in the event of a no-deal, crash out Brexit. We must ensure that arrangements are such that any adverse consequences would be mitigated. In the event of there being developments in the UK with particular reference to the future relationship arrangements, it is expected that over time, arrangements would be made along the lines which currently exist. Any new legislation will be reviewed against the background of any developments in the UK.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I return to things which are in the Bill before moving to those which are not. Section 90 on the taking of fingerprints was not in the heads of Bill. From what the Minister outlined, I understand that it applies to only one or two countries, India and China.

Charles Flanagan (Laois, Fine Gael)
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Yes, China and India.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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First, it was not in the heads of Bill, second, the taking of fingerprints seems somewhat overbearing. Is this a common feature of visa applications? Everyone wants this programme to continue if it is of value to the Irish economy and the individuals involved. However, is the provision on fingerprinting strictly necessary? I would question, if these were European countries, that the taking of fingerprints in this manner would be compliant with GDPR. As these are not European citizens, GDPR may not apply to them.

Charles Flanagan (Laois, Fine Gael)
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A key aspect of the current operation of the British-Irish visa scheme, which enables a short stay in Ireland by persons who also travel to the UK, without a need for a separate visa. There is a requirement that the biometric data be captured and checked against both the Irish and UK systems. I believe it is very important that that be continued. We must acknowledge that we are not members of the Schengen Agreement although we are engaged in Schengen information systems. It is important that the concerns on the matter of sharing the fingerprint data with the UK does provide an element of legal certainty and it is important, therefore, that that continues. It will be in compliance with human rights legislation.

To answer the earlier question, the British have already indicated that they will continue to operate within the European Convention on Human Rights after Brexit.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I will move to what is not in the Bill. On the process behind the preparation of this legislation, did the Minister engage with An Garda Síochána, the Director of Public Protections and the PSNI, to ask what they felt were the outstanding requirements in the legislation? Did any of those three agencies, or any other relevant justice agency, ask for anything that the Minister was not in a position to accommodate in this legislation? Is this being dealt with by other means?

Charles Flanagan (Laois, Fine Gael)
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We have ongoing contact with all the offices mentioned by the Deputy. With particular reference to the preparation of this legislation, there was specific contact with those agencies and with the Home Office and appropriate UK offices in order to ensure that we were in a position to formulate a schedule of laws and amendments and a regime that would mitigate against any adverse consequences. We should remember that all this is against the background of a contingency to prepare for a worst-case scenario.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I appreciate that but there was a second part to that question, namely, did those agencies make specific requests in relation to this legislation? Did the Minister have to respond that any of these were not possible or that they were possible, but not through this Bill, that they would be done elsewhere.

Charles Flanagan (Laois, Fine Gael)
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I will ask Mr. Jimmy Martin who was involved in the detail of the discussions with parties inside the jurisdiction and in the UK to respond to that.

Mr. Jimmy Martin:

It was a very intensive process. First, we went through every single EU instrument in the area of justice and home affairs - there were 700 different instruments - to see how they would be affected. There was a series of meetings with An Garda Síochána, the Director of Public Prosecutions, the Courts Service, the Prison Service and the Probation Service to see how they would be affected. Separately, we were in contact with the European Commission for its recommendations on issues that needed to be addressed. We have also been in contact with the Home Office on the issues it felt needed to be addressed.

What is in the legislation is matters that require primary legislation. There are several areas that do not require primary legislation. One of the biggest asks of the Garda related to its communications and data exchange with the PSNI. It exchanges about 60,000 to 70,000 pieces of information annually with UK law enforcement agencies, and the PSNI in particular. One of the effects of Brexit will be that the UK will become a third country for the purposes of data protection. There was great concern that we dealt with the data protection implications for information exchange. In consultation with those services and the Office of the Attorney General, we examined how this might be done in the context of the law enforcement directive on data protection.

We have consulted on the issue with the Garda Síochána, the Attorney General's office, the Director of Public Prosecutions and other services in this area. It can be done within the context of the EU instruments. It does not require primary legislation. The list of things that must be done in light of the many areas affected is long and it could take us the whole day to get through them all. We have tried to focus on the areas most substantively and instantaneously affected, such as extradition, the common travel area and data exchange for the purposes of police-to-police activity and for the purposes of running the common travel area. Within all of these areas, we have taken into account all of the services involved. The UK and the PSNI have set out what they regard as their priorities and we are able to match them. The Commission has also set out what areas member states should focus on as a priority for contingency preparedness. All of the work involves all of these areas coming together. Having gone through the exercise, there are only two areas that require primary legislation.

I should say there are certain things we cannot do. For example, the big ask of the UK in the police co-operation area was continued access to the Europol information system and the Schengen information system but as they are European IT systems, it is a matter for Europe to make that decision. There are areas that are outside of our competence. Within our competence, two areas are being addressed in the context of this legislation but secondary legislation and administrative arrangements will have to be made to cover all other areas.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I do not envy the officials who had to work through hundreds of European instruments. I am sure it was an arduous task. It would be helpful if, subsequent to this meeting, the officials could provide the committee with a summary of the required changes of secondary legislation and the implications of same. I am particularly interested in knowing if co-operation in the area of bail North-South and east-west will continue and whether there are any significant changes required in that regard.

Charles Flanagan (Laois, Fine Gael)
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We will provide the committee with the list of statutory instruments that will form the programme of secondary legislation, and a note in respect of each, in early course. I do not envisage any changes with the UK or Northern Ireland on the matter of bail arrangements.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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My question is not whether there will be any changes in the arrangements but whether changes will be required to secondary legislation to ensure that there is no change. Is it the Minister's understanding that no such changes will be required?

Charles Flanagan (Laois, Fine Gael)
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Not to my knowledge. In regard to the close relationship between the Garda Síochána and the PSNI, it is anticipated that it will continue irrespective of the deal or no-deal scenario.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I thank the Minister. Heads 16 and 17 relate to data and information in regard to immigration and the GDPR which did not make it to the final draft of the Bill. Will those issues be dealt with in secondary legislation and, if not, on what basis are these provisions no longer required?

Charles Flanagan (Laois, Fine Gael)
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In the initial stages it was envisaged that we would need primary legislation to cover the areas referenced. Following further consideration, the only issue requiring primary legislative consideration was finger-printing. The other areas in terms of data sharing are already covered under secondary legislation.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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My final question arises out of committee hearings which were held a number of weeks ago. The following is a passage from the opening statement of Mr. Brian Gormally of the Committee on the Administration of Justice on the citizenship rights of people in the North. While this matter has been discussed to a significant extent politically, legally there is still very little certainty around it. Mr. Gormally stated:

The citizenship issue is an example of how basic assumptions of the Good Friday Agreement have been undermined. It recognises the birthright of the people of Northern Ireland to hold Irish or British citizenship on the basis of equality. The basic breach of this principle of equality by Brexit would be that Irish citizens would remain EU citizens whereas British citizens would not. It amounts to a new focus of division between the two main communities. It has also become clear that Brexit could make the status of Irish citizens born in Northern Ireland constitutionally and practically insecure. If Brexit goes ahead, Irish citizens will be EU citizens living in a non-member state. What rights do they have to live, work, access health and social services and fully participate in social and political life in the state where they were born? There are several possible answers to that question. The first possibility is that the Home Office will regard Irish citizens as really British since UK nationality law decrees that most of those born in the UK have British citizenship. The second possibility is that the common travel area will sort all this out but, as the Human Rights Commission has suggested, common travel area rights are built on sand. The third possibility is that under the withdrawal agreement, EU citizens living in the UK can retain many of their current rights by applying for settled status. [I understand there was a fee attached to that at one stage.]

None of these options is appealing as they all involve the implication that those who choose Irish identity are in some way second-class citizens. Their rights as full participants in Northern Ireland life would depend on either a denial of their Irish nationality, as yet unknown bilateral agreements between the UK and Ireland about the common travel area or asking the Home Office to graciously allow them to leave to live in the land of their birth.

There are significant and weighty questions arising therefrom which we discussed at length on the day with Mr. Gormally, Mr. Harvey and several other witnesses. Prior to the referendum on Brexit, there was not much dispute in regard to these areas but following Brexit these areas of dispute are likely to increase significantly. Given the gravity of the implications of these changes and the need for legislative clarity here and in the UK to resolve this matter, why have we not sought to affirm the rights of Irish citizens living in the North post Brexit, particularly a hard Brexit, in this legislation?

Charles Flanagan (Laois, Fine Gael)
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The provisions of the common travel area will continue irrespective of the type of arrangement that will follow the withdrawal of the UK from the European Union, including a no-deal scenario. The British and Irish Governments have confirmed that neither Irish citizens in the UK nor British citizens in Ireland will be required to take any action to protect their status or rights associated with the current common travel regime. The issue the Deputy refers to relates to the de Souza case and citizenship rights. This is an issue that was the subject matter of discussions between myself and the British Home Secretary in recent times. The British Government is currently considering whether it will proceed by way of legislative provision to clarify matters following that judgment. I am happy to keep the committee informed of the developments. There is no certainty around it as yet but all of the arrangements that exist under the common travel arrangements will continue. This includes the guarantees under the Good Friday Agreement.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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As stated by Mr. Gormally, while common travel area rights are not the be-all and end-all, they are certainly not adequate for the needs of citizens in Northern Ireland. I have run out of time but I am sure some of my colleagues will follow up on this issue.

It is not just British legislation that is needed. All the academics say this jurisdiction needs legislation to address this issue.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Minister and his officials for coming in. One of the great successes of EU membership has been the European arrest warrant, EAW. One of the negative consequences of Brexit will be that we will not have an EAW system in place between Ireland and the United Kingdom. I note that the Minister said it is intended to operate the Council of Europe convention on extradition from 1957, which is a good idea. Obviously that is dependent on reciprocity between this country and the United Kingdom. We are in the process of introducing legislation that permits extradition of citizens. Has the United Kingdom enacted similar legislation permitting it? Does the Minister think it will be in place by 29 March? I do not mind who wanted it.

Charles Flanagan (Laois, Fine Gael)
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Yes. It is done.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is done in the UK; okay. Under the EAW system, obviously the courts are involved here. If an Irish citizen is to be extradited to the UK after Brexit, or vice versa, to what extent will the Irish courts be involved in that? Will they have any involvement or will it be a diplomatic process?

Charles Flanagan (Laois, Fine Gael)
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Yes. Again these issues have been discussed with the British Home Office. We have identified a number of issues. It is important to acknowledge that immediately after the withdrawal of the UK at 11 p.m. Irish time on 29 March, the UK will then submit requests under the extradition convention of 1957. That will involve a court process.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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This might be a difficult example. Irish passport holders living in Antrim or Down might travel down to this country. They are Irish citizens because of their Irish passport although they are not resident here. Would they be capable of being extradited under the European arrest warrant to other EU countries?

Charles Flanagan (Laois, Fine Gael)
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Yes.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Are they aware of that? They may not be aware of that, but it is one of the consequences of their Irish nationality.

Charles Flanagan (Laois, Fine Gael)
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They are travelling in the State and-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They are citizens.

Charles Flanagan (Laois, Fine Gael)
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-----like anybody, they are also citizens so they could be subject to an arrest depending on the circumstances, the charge or whatever.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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On immigration, obviously the Dublin Convention requires that someone applying for asylum must apply in their first port of call. If somebody has applied for asylum in the United Kingdom and they are refused or their process is still being considered, will they then be able to apply for asylum in this State again or will we have rules in place to say they have already applied in the UK?

Charles Flanagan (Laois, Fine Gael)
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As the UK will not be an EU country after 29 March, the Dublin Convention will be an issue. We will have a bilateral agreement with the UK in order to ensure the application cannot be made here as a consequence of a decision or otherwise in Britain.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Will that be in place by 29 March?

Charles Flanagan (Laois, Fine Gael)
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Yes.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Do the officials believe that applications for asylum in Ireland will increase after 29 March if the British leave because applying in Ireland gives them an opportunity to have access to the full European Union?

Charles Flanagan (Laois, Fine Gael)
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There is no evidence of that. However, we are giving it consideration. As I said earlier, our anxiety is to mitigate any adverse consequence that might give rise to a large number of applications. I will ask Mr. Merriman to elaborate on that.

Mr. Brian Merriman:

The number of applications is increasing, but it is steady. We had about a 30% increase in applications last year. When one looks at the situation that is evolving in the United Kingdom, I am not sure that there will be a particular advantage to coming here immediately in that they will need to put a lot of order on their new systems over there. I am not planning for a major difference, but there has been a steady upward curve for the last-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Why was there a 30% increase in applications last year?

Mr. Brian Merriman:

There is no resettlement and relocation programme operating, for example, in Europe, which in the previous two years had made an impact. Our main countries would be Georgia and Albania, which are not in the EU and are acknowledged conflict zones. That has been a continuing trend for the past year or so.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Two areas are not addressed and the Minister may not have any concerns about them. One relates to family law. At present, obviously, there is recognition of United Kingdom divorces. After 29 March what will be the status of recognition of divorces in the UK and, indeed, child abduction cases involving Ireland and the UK? At present I believe it is dealt with by regulation No. 2201/2003. Do we have concerns as to how that will develop? I asked a parliamentary question on that and got an answer on it, but-----

Charles Flanagan (Laois, Fine Gael)
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It is important to recognise that both Ireland and the UK are party to a number of international conventions negotiated in The Hague, in particular the 1980 child abduction convention and the 1996 protection of children convention. With those taken together we are satisfied that these conventions will apply a framework that can be regarded as satisfactory in the circumstances. That will be the basis of continued co-operation in that area.

On the matter of the recognition of divorces, members will be aware that the recognition in Ireland of divorces in the UK is governed by the EU. If that EU regulation fails to apply, we will then fall back on the older Domicile and Recognition of Foreign Divorces Act 1986. In the forthcoming referendum on divorce, it is proposed to amend Article 41.3.3° dealing with the recognition of foreign divorces. If the people give their assent to that change, I will update the recognition of foreign divorces. That would also encompass any negative impact that the withdrawal of the UK from the EU might have. Members will be aware of the uncertainty in some recognitions around the issue of domicile as against residence. Later in the year we will have the opportunity to update our laws if we get the approval of the people in that regard.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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On civil jurisdiction, at present an Irish citizen or any person in Ireland is able to sue a British citizen or company in the Irish courts under the terms of a Brussels regulation. Is there any proposal for reciprocal arrangements to permit that type of process to continue?

Charles Flanagan (Laois, Fine Gael)
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That is potentially challenging and it will depend on the circumstances of each case. The likelihood will be that the action may well have to be taken in the UK.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Minister.

Jack Chambers (Dublin West, Fianna Fail)
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Deputy O'Callaghan mentioned reciprocity and the importance of the bilateral agreements to underpin the general arrangement between Ireland and the UK if it crashes out. The Minister mentioned that the UK had moved on some of these reciprocal arrangements already.

What challenges will the Department face in the context of matters it has not moved upon and for which the Minister is trying to plan between now and the end of March? What will the Government be ahead of the curve on that is potentially challenging where the UK has not matched its side? Can the Minister provide an update in that regard?

Charles Flanagan (Laois, Fine Gael)
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The most pressing and challenging issues are those specified in the Bill, namely, extradition, immigration and international protection. I have to concede that in a no-deal, crash-out scenario, there will be a number of potential problems and the entire regime might be regarded as less than satisfactory. The object of the exercise on the part of Government is to ensure our contingencies are in place, in so far as they can be. Ultimately, the certainty will perhaps only be evident when agreement is reached between the EU and the UK in respect of the future relationship arrangements. While the EU has been the negotiating party, there were certain areas of our relationship with the UK that we needed to discuss and we were discussing. Arising out of these discussions, we have set forward the proposals in the legislation. Nonetheless, there have been and will continue to be instances where we have to fall back on older legislation that is less modern and potentially more challenging. What we are putting forward in the Bill deals with the urgent and important areas which are likely to prove immediately challenging. As time passes, we will continue our discussions under the umbrella of the EU. Our objectives and those of the UK are broadly similar, namely, ensuring the protection of our people and ensuring the legal framework that existed between our two countries across a range of issues, both criminal and civil, will continue, notwithstanding the potential withdrawal of the UK from any of the EU instruments which have proved very beneficial in terms of our relationship.

Jack Chambers (Dublin West, Fianna Fail)
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An example was given of, say, an Irish citizen who is in resident in the North and moves South. Let us say someone applied for asylum in the North and that person would have a separate process that would be subject to a new arrangement in the UK context. Obviously, we will have the maintenance of the free travel area so what will the bilateral arrangement be in that context between the UK and Ireland? Will there be an homogenous data-sharing process? What will be the bilateral relationship? How does the EU feel about a bilateral relationship superseding the integrity of its legal framework under its treaty law? How will that be dealt with without a deal? Obviously, a deal is the optimum scenario but how happy is the EU to allow a serious of bilateral arrangements to exist separate from treaty law? As we know, it is very reluctant to allow countries to operate outside of that basis. Can the Minister give other examples, perhaps from the eastern Europe, where separate legal frameworks have been allowed to develop separate to the treaty framework?

Charles Flanagan (Laois, Fine Gael)
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As members of the EU, any bilateral arrangements we enter into will be with the full knowledge of our EU colleagues. There are certain areas, however, which underline a unique relationship between the UK and Ireland, and, for example, the fact neither country is in Schengen resulted in a situation where bilateral arrangements were optimum. It is similar with regard to the workings of the common travel area and arrangements, where both the UK and Ireland joined the EU with the common travel framework in situ, and that continued. Again, it is important to stress that no matter what the nature of the deal is, the common travel area and arrangements will continue, and this is the desire of the UK Government and the Irish Government, and, indeed, the EU. I acknowledge that there will be circumstances and instances where we will have to further our bilateral arrangements and enter into agreements with the UK, but this will be done in the context of Ireland remaining a member of the EU and under the umbrella of the EU.

Jack Chambers (Dublin West, Fianna Fail)
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I want to ask about data protection and biometrics, in the context of which reference was made to third-party arrangements. What will be the data protection process within the UK? Obviously, we will be subject to EU law and our own Irish legislation. Will the Minister comment?

Charles Flanagan (Laois, Fine Gael)
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We will, along with our 26 EU colleagues, remain firmly wedded to the GDPR provisions. It could well transpire that, in the course of the future relationship between the UK and the EU, a similar type of arrangement will be adopted. What we are ensuring under this legislation is that we mitigate against any adverse consequences or any gaps that might arise in the sharing of information. It is important that we would continue, in so far as is possible and practicable, under the current regime.

Peter Fitzpatrick (Louth, Independent)
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I thank the Minister and his officials for attending. The thing that comes to my mind the whole time is the Good Friday Agreement. Since it came into operation, the peace this island has enjoyed has been unprecedented. Coming from the Border town of Dundalk, I, more than most, know the problems people had during the Troubles and I think it fantastic that this has happened.

The Chief Constable of the PSNI, George Hamilton, realises that there will be repercussions regardless of whether there is a Brexit deal and he has asked the UK Government for an additional 400 police officers to help man the Border. As the Minister knows, we are talking about a distance of some 310 miles and, at present, Northern Ireland has roughly 6,700 police officers and 79 police stations. What are the Minister's plans for 29 March? The PSNI is looking for extra police officers. The Minister cannot just click his fingers and get an extra 400 or 500 gardaí and deploy them to the Border. What are his plans for 29 March in the context of covering the Border area?

Charles Flanagan (Laois, Fine Gael)
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There is a high-level management team in An Garda Síochána that has been working for some time and that will deal with any organisational proposals or changes that might evolve in the context of Brexit. It is engaged in ongoing discussions with my Department. We meet with the Garda Commissioner on a regular basis and we did so specifically to discuss the issue of contingency planning for Brexit. However, notwithstanding that, we are not engaged in the making of arrangements for what has been described as a hard border. As Members will be aware from their discussions with him, the Garda Commissioner is solely responsible for the allocation of Garda resources.

He has indicated that he intends this year to recruit a further 600 trainees. The manner in which they are dispersed or allocated to stations is something he keeps under periodic review. I stress that there is no planning on the part of the Government for the return of a hard border on the island of Ireland. That said, Deputy Fitzpatrick, in particular, will be familiar with the Border area and Border policing. In any frontier or where a border between jurisdictions exists, a unique need for vigilance will arise having regard to the smuggling of property or people and the organised crime for which borders tend to hold an allure. The Garda Commissioner and his management team are very aware of that.

Peter Fitzpatrick (Louth, Independent)
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The Minister said in his opening statement that the two main areas on which there would be a focus were extradition and immigration, which are, to be fair, high risk areas. I have seen at first hand what happens in the Border area. I have seen at first hand gardaí pulling traffic from the main motorway to side roads. I commend the Government on the reopening of Templemore, which was a fantastic thing to do. However, I remain concerned because it is only in the last number of years that Garda numbers have started to rise again. The last thing I want to see is gardaí being pulled from all corners of the country to come up and man the Border. People are worried. One cannot just click a finger. I acknowledge that the Minister said 600 trainee gardaí are going through Templemore at the moment but 29 March is fast approaching. I speak to many gardaí in my area and they tell me there is talk now of gardaí being pulled from every unit and grouping nationally. People want to know what is happening. Should we not have a strategy or plan? Customs posts are being opened at airports and ports. I saw on television last night the huts being set up at Dublin Port. No one wants to see a backstop or to see the Border come back. I live close to the Border and have family and relations in the North and it is the last thing I want to see. We have had a fantastic 20 years and want that to continue. However, there is a great deal of fear that we are going to start going around the country to take gardaí from different units. I am sure the Minister and the Garda Commissioner have regular discussions on this and I understand the Chief Constable in Northern Ireland is in constant talks with the UK. Do we have 200, 300 or 400 surplus gardaí who will man the Border?

Charles Flanagan (Laois, Fine Gael)
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Ongoing recruitment to An Garda Síochána will allow the Garda Commissioner to ensure he has the resources necessary to deploy increasing numbers of gardaí to any part of the country he deems appropriate in all the circumstances. For example, in the Deputy's own area, the Garda's northern division has a strength of 1,406 gardaí, which is an increase of 9% since 31 December 2015. This year, the Garda Commissioner is ensuring there is recruitment of civilian staff to An Garda Síochána to facilitate the release of 500 trained gardaí from administrative to front-line duties. Members will agree that availability and visibility are the hallmarks of good policing and it is important that gardaí are freed to do the type of work for which they are best trained. In the event of a crash-out Brexit or no deal and if such a scenario gives rise to additional requirements in Border areas, I have no doubt that further resources can be provided through normal deployment. The Garda Commissioner and his management team are fully aware of that. These requirements are kept under ongoing review at all times.

Peter Fitzpatrick (Louth, Independent)
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I am delighted that the PSNI and An Garda Síochána have a fantastic relationship. I am sure their representatives meet on a regular basis. In fairness, the Garda Commissioner, Drew Harris, came to this committee two weeks ago and told us about his time in the PSNI and his relationship with MI5 and An Garda Síochána. He said it was a great relationship. It is important that we keep that going. I asked the Commissioner about a local murder, that of Tom Oliver. In October 2012, the Commissioner came before the Smithwick tribunal and gave evidence that he knew the person responsible for ordering the murder of Tom Oliver. He said he wrote the name down and gave it to-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I note to Deputy Fitzpatrick that we are here to address the legislation. Will Deputy Fitzpatrick explain the relevance of what he is now addressing to the matter we have convened this meeting to address?

Peter Fitzpatrick (Louth, Independent)
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I want to discuss the maintenance of the relationship we have with the PSNI. I am commending the Commissioner who was deputy chief constable at the time. I commend him on coming to the Smithwick tribunal and giving that evidence. It is important to keep that relationship going. I would appreciate the Chairman allowing me to finish and then he can ask me why I asked the question. I am the first person he interrupted this morning. In fairness, other members had a good chance to speak.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I do not interrupt. The Chair never interrupts nor does a ceann comhairle.

Peter Fitzpatrick (Louth, Independent)
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It is the second meeting at which the Chairman has interrupted me.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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No, I conduct the meeting and I have to be fair.

Peter Fitzpatrick (Louth, Independent)
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I feel the Chairman interrupted me twice. The last time-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Excuse me.

Peter Fitzpatrick (Louth, Independent)
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I will let you talk.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am in the Chair, let me assure the Deputy. I am saying to him that we all agree with the basic premise of what the Deputy suggests regarding the maintenance of relationships. He addressed the matter to the Garda Commissioner only a couple of weeks ago and I have asked him to explain the relevance of it in his address of it now to the Minister in the context of this particular issue, namely the miscellaneous provisions legislation before us. If the Deputy wishes to proceed, he should proceed, but I ask him to ensure his contribution is in the context of what the meeting is addressing. That is all I have done.

Peter Fitzpatrick (Louth, Independent)
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This is the second time I feel the Chairman has interrupted me. The last time, when the Garda Commissioner came before the committee, I was asking questions. In fairness, the Chairman made a complaint to me in private session that he was very disappointed in comments I made on local radio. I have nothing to hide here at the moment. I have an opportunity here to ask the Minister about the relationship with the PSNI.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Which I invite the Deputy to proceed with.

Peter Fitzpatrick (Louth, Independent)
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Which I am doing. I cannot understand why for some unknown reason and for the second time in a row the Chairman has come in. Every time I ask about the Tom Oliver situation, the Chairman interrupts me.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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No. I have mentioned to-----

Peter Fitzpatrick (Louth, Independent)
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I let the Chairman speak. Can I please finish?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Deputy Fitzpatrick, it is not you who will allow the Chair to speak. I am telling you it is not an interruption.

Peter Fitzpatrick (Louth, Independent)
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Every time I speak the Chairman seems to interrupt me. It is very unfair. The Minister has the opportunity to answer the question or not in the same way the Garda Commissioner had an opportunity.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is my-----

Peter Fitzpatrick (Louth, Independent)
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I am going to speak. Is the Chairman trying to-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is the responsibility of the chair of any committee to ensure the meeting is conducted appropriately and within the context of the issues under address. I am not in any way trying to curtail the Deputy. I did not the first time and I am not doing it now. I am asking him to ensure that what he contributes is in the context of what the meeting has been convened to address.

That is all I am asking him to do. I invite him to proceed.

Peter Fitzpatrick (Louth, Independent)
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I tried to proceed twice and the Chairman interrupted me. I feel as though I am not getting a fair crack of the whip. When I tried to ask the Garda Commissioner questions, the Chairman intervened. He was wrong to intervene. I am asking the Minister a few questions about the relationship between the PSNI and Garda Síochána and what will happen after 29 March. There is something seriously wrong. Why does the Chairman keep interrupting me when I am asking these questions?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am not going to repeat my reply in that regard. I have not interrupted the Deputy. That is not what a Chairman does. If the Deputy would like to proceed, he may do so.

Peter Fitzpatrick (Louth, Independent)
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The Minister has a fantastic relationship with the PSNI and Garda Síochána. I was delighted to see the Deputy Chief Constable of the PSNI come down and made a contribution. At the time, information was passed over to the Garda Síochána. When the PSNI and Garda Síochána work so closely together, it is important that something be done with any information that is obtained. In fairness, the Garda Commissioner informed me at our previous meeting that the information he gave to the Government at the time cannot really be carried forward because of his new role as Garda Commissioner. I want to make sure today that whatever information is passed between the PSNI and Garda Síochána is acted upon. This is important. On behalf of Tom Oliver's family, the Government has serious information. It knows who directed the murder of Tom Oliver. What will happen going forward from today?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I invite the Minister to respond to the Deputy.

Charles Flanagan (Laois, Fine Gael)
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I assure Deputy Fitzpatrick and the other members that a clear objective of the Government, the Garda Síochána and the PSNI is to have the very close, positive and constructive relationship between the respective police services continue after Brexit, irrespective of the form the latter takes. The Garda Commissioner and Chief Constable of the PSNI, who share responsibility for co-operation among the police services on the island, have repeatedly emphasised the importance of this relationship. There are a number of formal structures involved, including the joint agency task force. It is important that the cross-Border relationship between our respective security services continue. I am confident that it will do so through the sharing of information. With regard to daily contact, which amounted to almost 70,000 items of information shared last year, it is also important that this continues.

I want to inform the committee of an issue that might not be widely known about. It concerns one of the changes that may well be necessary in respect of eligibility for membership of An Garda Síochána. Currently, the Garda Síochána regulations provide that UK nationals are eligible to become members of An Garda Síochána or Garda reservists but this is on the basis of the UK being an EU member state. It is important that we continue to ensure that UK nationals continue to be eligible for membership of the Garda in the event of Brexit proceeding. That will involve an amendment to current regulations that will specifically include nationals of the United Kingdom. It is important that this be made at an early stage. It is one of the many changes we intend to make to facilitate persons from the United Kingdom who wish to join An Garda Síochána.

Peter Fitzpatrick (Louth, Independent)
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I thank the Minister. I realise the importance of the Garda and PSNI working very closely together. The Border extends for 310 miles. For the past 20 years, the Border area has been quite peaceful. It is no small achievement that the two policing organisations have worked together very closely.

I am very disappointed that the Chairman interrupted me on two occasions. He interrupted me when-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Deputy Fitzpatrick is very unfair to the Chair.

Peter Fitzpatrick (Louth, Independent)
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May I finish, please?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I have a job to do.

Peter Fitzpatrick (Louth, Independent)
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May I finish, please?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Deputy may.

Peter Fitzpatrick (Louth, Independent)
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When I asked the Garda Commissioner about the murder of Tom Oliver, he had no problem giving a response. When I asked the Minister for a response, he had no problem giving one. The only person whom I feel had a problem with me getting these two responses was the Chairman. I am very disappointed that every time I wish to speak about the murder of Tom Oliver, the Chairman interferes.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Let me assure the Deputy that the Chair does not interfere or interrupt. If he consults the record, the Deputy will see that the Chair conducted himself appropriately and as required in the circumstances. Again, I have endeavoured to do that today. That is the position. If we differ, so be it. I thank Deputy Fitzpatrick.

Peter Fitzpatrick (Louth, Independent)
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I felt the questions I asked the Garda Commissioner at the time were relevant, as were the questions I asked the Minister. I just believe there was no need for the Chairman to interrupt me on two occasions.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Deputy keeps indicating that. I asked him what questions he was asking of the Garda Commissioner. The record will show that he had not asked any questions but had put a statement on the record of the meeting. At that point, I asked the Deputy to pose a question. That is what the record shows.

I invite Senator Ó Donnghaile to contribute.

Niall Ó Donnghaile (Sinn Fein)
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I thank the Minister and his officials for the presentation this morning. Given the Minister's personal engagement on and interest in this issue, I wish to note the significant judgment handed down by the Supreme Court in London in the Pat Finucane case. I am sure it is a judgment the Minister, his officials and Government colleagues will want to study so I do not expect him to comment on it at all. I just wish to note its significance.

Let me return to a point raised by Deputy Ó Laoghaire. The Minister cited the De Souza case. One of the major concerns expressed in a recent presentation to this committee by legal and human rights organisations on the impact of Brexit related to the difference between citizenship rights and residency rights. Concerns were also raised about the common travel area rights being built on sand. I am glad that the Minister has discussed the issues with the British Home Secretary but, given the live nature of the pursuit of Emma De Souza through the courts, that does not necessarily fill us with confidence. Legislative action which realises fully the objectives of the Good Friday Agreement has to be taken by the British Government. As Deputy Ó Laoghaire and the contributors stated previously, we must also see legislative action taken in this jurisdiction that fully realises the citizenship rights aspect of the Good Friday Agreement. I understand that, on behalf of the committee, the Chairman is compiling a report on the contributions and presentations we have received. I am sure the Minister will be given a copy. Could he expand on what measures can be taken? I appreciate there is a tight timeframe and that we are in uncertain waters but, in the context of a timeframe that has only been shortened as a result of the Brexit deadline, we have to get to the point where we are legislating adequately for people's rights in the context and spirit of the Good Friday Agreement, regardless of whether there is a Brexit. Sin an méid.

Charles Flanagan (Laois, Fine Gael)
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I thank the Senator. These are issues of great importance.

As I note from reading the transcript of the committee's engagements, we are talking about fundamental rights.

My Department and I acknowledge that the Department of Foreign Affairs and Trade has primary responsibility for these issues. Of course, I would be happy to further engage with the Tánaiste in that regard. It is important to recognise that, as provided for under the Good Friday Agreement, the European Convention on Human Rights will remain much incorporated in law in Northern Ireland. The UK Government has confirmed its membership of the convention will continue. That should be acknowledged along with the importance of the common travel area arrangements. We need to be clear that those arrangements will be maintained in all circumstances. We are discussing the worst case scenario - a no-deal or crash-out Brexit - but it is important to recognise that the full gamut of common travel area practices allowing Irish and British citizens to access a range of similar rights in both jurisdictions will continue. I am keen to assure the committee that that will be the case. There are arrangements of a bilateral nature that we need to ensure will be in place, hence the importance of the legislation before us. On the longer-term issue, I would be very happy to further engage with the Tánaiste and the committee. These are areas of fundamental rights pertaining to the ongoing relationship North, South, east and west and of which we must be mindful. The exercise referred to was most useful.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Deputy O'Callaghan has a further question.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I should have raised it earlier. It concerns a small but vulnerable group of people, the non-EEA family members of UK citizens, of whom there are currently approximately 5,000 in Ireland. They are here under their EU treaty rights. What will happen to them after the UK leaves? Will they still be entitled to be resident here? Will they have an entitlement to a new visa?

Mr. William O'Dwyer:

Once the UK leaves, it will no longer exercise EU treaty rights. The matter is currently under consideration. However, in line with what is happening across member states, a general generous approach will be taken. On 29 March, those people will have status and will not become illegal in the country or anything of the sort. Arrangements will be put in place and will probably involve their being transferred onto a domestic arrangement. The intention is to recognise the fact that they have been resident here and that they would be facilitated under some kind of domestic arrangement given the change in circumstances in terms of their not exercising EU treaty rights.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is it likely that they will have to apply for a new visa or will their status be recognised as entitling them to stay and work?

Mr. William O'Dwyer:

It may be a combination of recognising current status and transitioning people into a new arrangement over time. They will not immediately be transferred out of one status and into another.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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They will not lose their status or right to be or work here.

Mr. William O'Dwyer:

They will not.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Is there anything further the Minister wishes to add?

Charles Flanagan (Laois, Fine Gael)
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I thank the committee for its engagement. These are contingency plans put in place by me and my Government colleagues. I acknowledge that there are challenges and I believe it is important that we continue to engage in order to ensure that we at all times mitigate the adverse consequences of Brexit in all of its forms. From our perspective, the withdrawal agreement appears to offer the best planning in respect of contingencies. Anything less than that will mean a no-deal situation which, as we have discussed for the past hour or more, will be challenging and problematic. As Minister for Justice and Equality, I wish to assure the committee that our objective is the protection of our citizens. We will ensure their safety by means of a legal framework that will mitigate against negative consequences, of which there will be some.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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On behalf of the committee, I thank the Minister and his officials for their participation.