Hildegarde Naughton (Galway West, Fine Gael) | Oireachtas source

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: Proposal for a Council Decision on the position to be taken on behalf of the European Union in the Partnership Council established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the interim period referred to in Article 552(11) of that Agreement during which the United Kingdom may derogate from the obligation to delete Passenger Name Record data of passengers after their departure from the United Kingdom, a copy of which was laid before Dáil Éireann on 2nd December, 2021."

I am speaking on behalf of the Minister for Justice on a motion referring to a draft proposal by the Council of the European Union to facilitate exchange of passenger name records, PNR, data under the EU-UK Trade and Cooperation Agreement, TCA, with the United Kingdom. PNR data is information provided by passengers during the reservation and booking of tickets and when checking in on flights. The content of PNR data varies depending on the information given by the passenger and may include, for example, dates of travel, travel itinerary and contact details such as address and phone number. The exchange of this information is to assist in the prevention, detection, investigation and prosecution of terrorist offences and serious crime. The exchange of this data is an essential tool for law enforcement, including countering terrorist threats across the EU and, of course, is of particular value to law enforcement co-operation between Ireland and the UK.

Deputies will be aware that if Ireland wishes to take part in an EU measure with a legal basis that falls under Title V of the Treaty on the Functioning of the EU, TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required. The Council intends to adopt this measure by 20 December 2021 at the latest, therefore, it is necessary to secure Oireachtas approval as a matter of urgency and, in light of this, I ask Deputies to pass this motion without a vote. The proposal provides for an extension of the special arrangements currently in place in the TCA to allow the continued sharing of PNR data with the UK, which in the absence of a decision to extend will expire at the end of this year, that is, on 31 December 2021.

The extension will allow the existing special arrangements to continue to run until the end of 2022. It is worth noting that this measure makes no policy changes in this area. As the extension needs to be in place by the end of the year, the latest it can be adopted at the EU Council is 20 December 2021. Regretfully, this has put us under pressure to complete the opt-in process as soon as possible. However, as I mentioned, I assure Deputies that the measure is purely technical in nature and does not introduce or amend any policy matters. In essence, it provides for a continuation of existing arrangements until the end of 2022. The Government sincerely regrets the lack of time given to the Houses of the Oireachtas to consider this matter, which was not within the Government's control. Unfortunately, the European Commission was unable to produce the draft proposal earlier than 26 November due to the requirement for internal consultations. I trust that Deputies understand the urgency and necessity of this motion passing today.

The Trade and Cooperation Agreement between the EU and the UK includes arrangements for exchanges of PNR and the protection of such data shared by EU airline carriers to the UK. An essential precondition for the arrangements as set out in the TCA is that the UK applies data protection standards essentially equivalent to those set out in the EU's standards and complies with specific additional data protection standards. While EU member states can retain PNR data for a period of five years, the TCA imposes a requirement on the UK to delete PNR data after one year. This is due to the change in the UK's status from EU member state to a third country.

The UK's PNR data processing systems were originally configured to comply with the requirements of EU law. As such, their technical systems, including for the deletion of PNR data, operate in exactly the same way as the systems operated by EU member states. However, the UK currently has no mechanism to operate an automated risk assessment process or to delete PNR data automatically other than upon expiry of a period of five years beginning with the date of transfer. As such, the UK's system for processing PNR data remains configured as it was prior to the UK leaving the European Union. However, intensive work is ongoing by the UK to ensure the necessary technical adjustments are being made to guarantee its compliance with the requirements of the TCA.

In the meantime, the UK is operating additional interim period safeguards manually. This includes operating a manual risk assessment process and manually logging and putting beyond use PNR data that should be considered as deleted. Due to these circumstances, Article 552 of the TCA provides for a derogation to this requirement to enable the UK to adapt its systems to ensure compliance. This derogation ends in December 2021. The TCA allows for two such yearly extensions until the end of 2023. The UK has informed the Commission that work is continuing on their systems to facilitate this. It is now in the process of redeveloping its technical systems for processing PNR data to meet the requirements of the TCA and it has requested an extension to the derogation. Consequently, the Commission has published this proposal in order to facilitate an extension of this special arrangement up to 31 December 2022, thus allowing the continued sharing of PNR data with the UK.

It should be noted that Article 552(11) of the TCA sets out additional safeguards the UK must follow during the derogation period. In conjunction with the request from the UK, the UK's Information Commissioner's Office carried out an independent review of the safeguards provided for in Article 552(11) of the TCA and confirmed that it is satisfied that the safeguards are in place and are operating as set out in the UK report.

Without the extension of the derogation period, PNR data will cease to be shared between the EU and the UK from midnight on 31 December 2021. As Deputies will understand, if this were to happen it is something that could potentially have serious repercussions in the fight against terrorism and could impact on the investigation and prosecution of criminal cases. As mentioned earlier, the proposal presented by the Commission includes the use of the legal bases of Article 87(2)(a), making this a measure under Title V of the TFEU. Thus, Protocol 21 applies and Oireachtas approval under Article 29.4.7° of the Constitution is required for Ireland to opt into the measure. The views of the Office of the Attorney General were sought and the legal advice received has confirmed that Oireachtas approval under Article 29.4.7° of the Constitution is required.

To conclude, I emphasise that effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority and Ireland will play its full part in that. Ireland's role in the EU has changed in recent times and will continue to evolve in the coming years. Full implementation of the TCA is necessary for us not only to play our part as an EU member state, but to ensure that our post-Brexit relationship with the UK continues to grow and develop. Part of this relationship is ensuring that the safety and security of our citizens is protected and this measure is necessary to do that. I trust that the House can support the exercise of Ireland's opt-in in respect of this measure. Ongoing exchange of PNR information with the UK is something that is entirely within Ireland's strategic interest. I thank Deputies for their consideration of this important matter.

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