Seán Fleming (Laois-Offaly, Fianna Fail) | 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 21st November, 2022.

I am speaking today on behalf of the Minister for Justice on a motion referring to a draft proposal by the Council of the European Union to facilitate continued 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 these 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 5 of the Treaty on the Functioning of the European Union, TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required. As the Council intends to adopt this measure by 19 December 2022 at the latest, it is therefore necessary to secure Oireachtas approval as a matter of urgency and, in light of this, I would 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 on 31 December 2022. The extension will allow the existing special arrangements to continue to run until the end of 2023. This measure is purely technical and 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 an EU Council is 19 December 2022. Regrettably, this has put us under pressure to complete the opt-in process as soon as possible. However, as I mentioned, I can assure the 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 the existing arrangements until the end of 2023.

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 21 November due to the requirement for internal consultations. I trust that Deputies understand the urgency and necessity of passing this motion today.

The TCA between the EU and the UK includes arrangements for exchanges of passenger name records 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 may 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. Since its departure from the EU, substantial progress has been made on the UK's system. However, further work is required to complete the necessary technical adjustments required to guarantee compliance with the requirements of the TCA.

In the meantime, the UK continues to operate 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. The UK Information Commissioner's Office has confirmed that it is satisfied that the safeguards are in place.

Because of these circumstances, Article 552 of the TCA provides for a derogation from this requirement to enable the UK to adapt its systems to ensure compliance. The TCA allows for two such yearly extensions until the end of 2023. A Council decision, adopted in December 2021 extended the special arrangements until the end of December 2022. Ireland exercised its option under Protocol No. 21 to take part in the adoption and application of that measure. As this derogation ends in December 2022, the Commission has published this proposal in order to facilitate a further extension of this special arrangement up to 31 December 2023, thus allowing the continued sharing of PNR data with the UK. It is expected that by 31 December 2023 the United Kingdom will have finalised all technical adjustments necessary to enable its PNR processing systems to delete PNR data in accordance with Article 552(4) of the TCA.

Without the extension to the derogation period, PNR data would cease to be shared between the EU and the UK from midnight on 31 December 2022. As Deputies will understand, if this were to happen it 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 uses the legal basis of Article 87(2)(a), making this a measure under Title 5 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.

The effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority and Ireland will play our 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 to not only play our part as an EU member state but also 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 entirely within Ireland's strategic interest. I thank Deputies for their consideration of this important matter.

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