Brendan Howlin (Wexford, Labour) | Oireachtas source

This is important technical legislation necessary to ensure our laws are not punched full of holes as a result of the United Kingdom changing status to become a third country outside the European Union. I am not sure I can ever recall debating a Bill, introduced by the Government, that everybody in the House wants to ensure never actually comes into effect. We are all hoping for an alternative outcome. This underscores the unique and bizarre situation that has come to pass since the people of the United Kingdom voted to leave the European Union.

We need to address many issues that are non-legislative. Some of those have been touched upon by other speakers. We will have to address those matters outside of the scope of this legislation. The Bill, however, does cover many areas. I want to focus on the economic side of the legislation. The major concern of this Bill is to allow the continuation of trade with the United Kingdom as smoothly as possible. Clearly, however, as we all recognise, it will never be as smooth as with countries that are actually full members of the European Union. That underlines a central truth missing in recent years from the debate on the European Union in the United Kingdom.

Modern trade is managed, regulated and organised through international agreements and legislation. It is a point that is worth stressing. Diehard supporters of Brexit in the UK seem to entertain a fantasy of unregulated trade. Whether it relates to the type of free trade deal they wish to have with the EU or to trading under WTO rules, they apparently assume that trade agreements are simply about opening up markets, as opposed to regulating the flow of goods and services entering markets and regulating ongoing economic activity.

Trade policy with respect to the UK has been a settled matter since the Anglo-Irish Free Trade Agreement of 1965, followed eight years later by our entry into the European Economic Community. The 1965 agreement expanded on the 1938 Anglo-Irish Trade Agreement. This historical perspective is important to remind us that if and when the UK leaves the EU without a trade deal it will bring about a situation we have not had to deal with in decades. Hopefully, it will not happen now and the EU and UK will conclude a comprehensive trade agreement whereby something close to free trade with the UK will continue. In fact, we can be clear that our preference would be for the British people to be allowed to reconsider if this is what they want in light of all the new information that is now available. We hope the UK could yet remain in the Union.

However, the legislation we are examining is designed, in part, to prepare for a no-deal outcome. If that happens, we have to be ready for a period of time – hopefully, a short one – in which we do not have a trade agreement with the UK for the first time in decades and have to rely on WTO rules. The WTO's multilateral trading system is founded on five basic principles, namely, trade without discrimination, gradually freer trade through negotiation, predictability, promoting fair competition, and encouraging development and economic reform. Built on those foundations, WTO trade agreements are complex documents, covering a wide range of detail relevant to each and every sector of the economy. Crucially for our purposes today, the Bill must be consistent with WTO rules. We cannot legislate for post-Brexit trade with the UK in a way that contradicts our own commitments, as well as British commitments, under the WTO agreements.

Trade without discrimination is one of those WTO principles. That means that Ireland and the UK - indeed the entire EU and the UK - cannot alter the basic rules of trade that we offer any other country trading under WTO rules. These are important principles. In the absence of a formal trade deal with the UK, Ireland cannot have more favourable trading arrangements with the UK than with any other WTO member state. In future, the EU can, and hopefully will, have a comprehensive trade agreement with the UK. If the withdrawal agreement currently before the UK Parliament is passed, we will continue to have free trade as part of the agreed transition period. However if there is a hard Brexit on 29 March, or if the UK enters a transition period but fails to conclude a trade deal with the EU, we will find ourselves trading under WTO rules.

The Government’s legislation seems to prepare for this for the most part but I question Part 6. I hope the Tánaiste will deal with this in his response. Under Article 2 of the WTO's General Agreement on Trade in Services, GATS, each member must immediately and unconditionally give other members treatment that is "no less favourable than that it accords to like services and service suppliers of any other country". Part 6 treats the UK as a member of the EU, the European Economic Area, EEA or the European Free Trade Association, EFTA, for most, if not all, tax purposes. British companies, shares, trusts, insurers, residents, ships, colleges and so on will all benefit from this status. This is presumably done to preserve the status quo in trade insofar as it gives rise to taxable consequences here. However, other third countries and their companies, insurers, residents, ships and so on do not get these benefits. The Bill proposes to give them exclusively to the UK.

This appears to be preferential tax treatment extended to just one so-called "third country" and not available to others. I am sure the answer to my question to the Tánaiste has been comprehensively teased out. Is this compatible with our obligations under the GATS treaty? If not, what is the alternative? It would be much easier for Irish businesses if we could proceed as outlined in Part 6, as this would mean less disruption, but it is our job as legislators to stress-test this legislation. As others have said, we only got sight of it last Friday, despite the fact that it is a comprehensive Bill with such important ramifications. There will be some teasing out to be done as we read, re-read and get advice on the various component parts. It would cause even more disruption to business if Part 6 was ruled to be in breach of our obligations under the GATS treaty and subsequently needed to be changed. I look forward to hearing the Tánaiste's explanation of how he and the Attorney General believe Part 6 is compatible with the WTO rules I have outlined to the House.

On a different issue, I wish to raise a matter of constitutional concern in the Bill. Brexit legislation in Westminster has relied heavily on what are euphemistically called "Henry VIII clauses". These clauses confer a delegated power under which a Minister may amend primary legislation by secondary legislation. A ministerial order, therefore, can amend a British Act of Parliament. The British Government can do that under the UK's constitutional arrangements. This reverses the usual rule that legislative power is vested in the legislature. These clauses have been controversial in the UK, but in our own context such clauses would be unconstitutional. They are constitutionally prohibited except where necessitated by EU membership. In such cases they already been permitted by referendum.

The Department of Health is seeking to create a Henry VIII clause in the Bill. Whether or not it has drawn inspiration from the UK's legislation, the Government will need to rethink this section of the Bill. Under Part 2, the Government has proposed to give the Minister for Health power to make "such adaptations and modifications to the Health Acts 1947 to 2019 or any regulations made under those Acts as the Minister considers necessary for the purpose of bringing those Acts or regulations into conformity with this Part".

This would clearly involve the Minister for Health amending primary legislation without bringing it back for determination in the Dáil.

The specific section where the power is described is section 4, which proposes to insert section 75B(2)(c) into the Health Act 1970. I believe this to be unconstitutional. Under Article 15 of the Constitution, the "sole and exclusive" law-making power of the State is vested in the Oireachtas. As a result, regulations that modify primary legislation are necessarily beyond the authority of Ministers.

In a 1999 legal case, Laurentiu v.Minister for Justice, Equality and Law Reform, counsel for the State conceded that power to amend primary legislation could not be delegated by the Oireachtas to any other body. Specifically, the Oireachtas "is constitutionally prohibited from abdicating its own power" and "in accordance with the democratic basis of the Constitution, it is the people’s representatives who make the law, who determine the principles and policies".

Chief Justice Murray gave a relevant judgment in 2004, in the case of Mulcreevy v.Minister for Environment, Heritage and Local Government. In that judgment he stated:

It is well established that the exclusive role assigned to the Oireachtas in the making of laws by [Article 15] does not preclude the Oireachtas from empowering Ministers or other bodies to make regulations for the purpose of carrying into effect the principles and policies of the parent legislation. [...] But it is also clear [this is the important point] that such delegated legislation cannot make, repeal or amend any law and that, to the extent that the parent Act purports to confer such a power, it will be invalid having regard to the provisions of the Constitution.

The sole exception to this rule is in the European Communities Act 1972, which enables a Minister by regulations to amend an EU directive. The power to make regulations under that Act has been held to be necessitated by the obligations of membership of the European Union and therefore immune from constitutional challenge.

I have raised what might be regarded as two technical matters. This is largely technical legislation but they are both issues of major consequence to the robustness of the Bill and the importance of the transposition and carrying on of health matters in one case and of other matters in the second case I have mentioned. They pose serious questions about whether the Government’s legislation has been sufficiently considered before it was presented to the Dáil.

I agree with the points made by other speakers that it is very late in the day for us to have sight of such monumental legislation with such far-reaching import. For all of us to have a mere weekend to read it, and get our legal advisers to read it, is very short notice. To have then literally a week to debate it on Second Stage in principle and to have questions and queries responded to before we go into committee week is a tight deadline.

I want to come back to the substantive issue of the overall Bill. This Bill is designed to prepare our Statute Book for a disorderly exit of the UK from the EU. It is equally designed to prepare us for the possibility that the UK and the EU will be unable to conclude a comprehensive free trade agreement in the time available even if the existing withdrawal agreement is passed.

I will quote the then Taoiseach in the debate on the trade agreement that ended the six-year Anglo-Irish trade war in 1938. Éamon de Valera stated: "One of the things, then, that makes this Agreement possible is that you have at this moment in England a Conservative Government that can, in Parliament, make its will effective." Our problem today is that the withdrawal agreement, including the Ireland-Northern Ireland protocol known as the backstop, has been paralysed by a British Parliament that is deeply and hopelessly divided on the issue of the European Union. Prime Minister May's Conservative Party Government is internally divided. Even if it was not, it is incapable of making its will effective in Westminster in the way referenced by the then Taoiseach, Éamon de Valera, in 1938.

The net result is that we have to be careful not to assume that we can make sensible or purely technical administrative agreements with the UK once it has left the Union. I know that is at the back of much of what the Tánaiste has aimed to do. It is likely to be the case that if the UK leaves the Union without a deal, there will be serious economic consequences for it, which will quickly will lead to a sour political atmosphere there, even sourer than the one that currently prevails, and, whatever we feel about it, it is likely that Ireland will be blamed, especially by those Brexiteers who have lied to the British people about the EU for years and who have lied about the fantasy of unregulated open trade with everybody and anybody after Brexit.

If we need to use this legislation, due to the UK leaving the EU without a deal, we are also likely to be in a situation that is unfriendly, if not actively hostile, to the development of bilateral agreements on administrative matters. I applaud the efforts of Deputies who said they would all hold hands and have a Nordic council but I fear that in a disorderly Brexit there will be great animosity. These administrative matters will be hugely important. They are important to Irish patients in British hospitals who need to access health care without incurring significant personal costs. They are equally important to British patients who avail of the Irish healthcare system. These administrative matters will affect Irish students in British universities. They will affect commuters crossing the Border on buses and trains. People do not expect to have to think about all of the background law and regulations that allow them to get on with normal living. It is important that we get our legislation in order so that the level of disruption to people's lives can be minimised.

I want to conclude by inviting the Government to explain how it intends to deal with the issues and problems I have set out but also with other issues that have yet to emerge and that have not been anticipated. Even the complexity of this Bill is nothing compared to the complexity of Brexit itself. What processes will be put in place to allow for a rapid response when gaps in laws and regulations are identified that have not been thought of by any of us when this law is enacted? Presumably, a permanent Brexit unit will need to be established to keep all of these issues under constant review as we move into the unknown waters of Brexit.

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