Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The Government remains firmly of the view that the best and only way to ensure an orderly withdrawal and to fully protect the Good Friday Agreement is for the UK to ratify the withdrawal agreement. While we sincerely hope the agreement will be accepted by the UK, we must take steps to ensure that, should discussions fail, Ireland is positioned to deal with the fallout from a no-deal Brexit insofar as is possible. While we are doing everything we can to avoid a no-deal scenario, we need to be prepared in case it does happen.

A no-deal scenario creates a broad set of justice issues which must be addressed to facilitate future relationships between Ireland and the UK. Extradition and the future operation of the European arrest warrant is one of the most immediate concerns in this area. Other key instruments, where continued co-operation with the UK on criminal justice matters is essential, include mutual legal assistance, Europol, the Prüm decisions for checking fingerprints, DNA and car registration and the passenger name record directive. Brexit obviously presents challenges on a much larger scale. More than 700 EU instruments in the justice area have been assessed to establish which might be affected and what the implications would be. The key areas identified include the common travel area, police and judicial co-operation in criminal matters, data protection, asylum policy and judicial co-operation in civil matters.

The common travel area is a key area which affects nearly everyone on this island. Both the UK and the EU have confirmed the CTA can remain, whether or not there is a withdrawal agreement. Co-operation in the area of law enforcement, particularly vis-à-visNorthern Ireland, is at an all-time high. The Government is determined this is maintained. Maintaining peace and security, particularly in Northern Ireland, must be a priority.

We have identified the European arrest warrant system as the most important EU instrument in the area of judicial co-operation in criminal matters. Its importance was a point we raised consistently with the Commission, the Article 50 task force and UK side. However, the spectre of a no-deal Brexit has cast a shadow on the progress made in this area over the past two years. We are now in the situation where we are preparing for the application of the 1957 Council of Europe Convention on Extradition. It will provide a viable extradition system but it is a step back. Some aspects of this are addressed in the legislation.

In the area of immigration, we have only been able to maintain the CTA because we have remained outside the Schengen area. In essence, the CTA can be seen as a mini-Schengen. Being separate to Schengen means maintaining open borders to the UK for the movement of people does not threaten the integrity of the Schengen area. As a result, we do not participate in most EU immigration related instruments. The exception is in the area of asylum policy.

A comprehensive range of EU instruments has built up over the past 45 years in matters such as judicial co-operation in civil matters, including family law, as well as civil and commercial transactions. A range of other international instruments address many of these issues and will apply post Brexit, while acknowledging that these are not always as effective, or user friendly, as the comparable EU instruments. Although the impact may not be immediately visible, in the absence of EU-wide solutions in family law matters, for example, cross-border divorces or child custody cases may become more complicated. It is likely to take some time for the EU to negotiate new arrangements with the UK. My Department continues to prioritise this.

In a no-deal scenario, my Department has identified two areas requiring primary legislation to be in place, which are set out in Parts 13 and 14. Part 13 deals with extradition while Part 14 deals with immigration matters. The Extradition Act 1965 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. Amendment to section 14 of the 1965 Act deals with this. Amendment to section 23 of the 1965 Act deals with a request for extradition. It provides for direct transmission of extradition requests to the Minister for Justice and Equality rather than through the old cumbersome manner.

Part 14 contains several amendments to the Immigration Acts. The amendments in section 88 and 89 are for the purposes of correcting a lacuna in the provisions relating to non-refoulementin our law. I must point out that refoulementconsiderations are being undertaken at all times. This provision provides greater clarity and legal certainty in this area.

Section 90 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 important to both the tourism and business sectors. Accordingly, section 90 contains an amendment to the Immigration Act 2004 for this purpose.

In addition to these amendments, some secondary legislation will be required to be in place by 29 March 2019. These will cover issues such as extending eligibility to apply for admission to An Garda Síochána to nationals of the UK in the area of international protection and asylum, to designate the UK as a safe third country and to facilitate the recognition of UK solicitors’ qualifications in the State.

One of the most challenging areas will be extradition. The provisions of the 1957 Council of Europe Convention on Extradition are given effect to by Part II of the Extradition Act 1965. While the extradition procedure under the convention is not as effective as that of the European arrest warrant, in the event of a no-deal Brexit it would provide a workable solution.

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