Alan Kelly (Tipperary North, Labour)

It is concerning how we got to this stage today where we are dealing with these motions in the manner in which we are dealing with them. Frankly, it is unacceptable that we are dealing with such important motions in this haphazard way. The fact one of the motions had to be withdrawn by the Minister at the last minute just goes to show how shoddily this issue is being dealt with. Why was this proposed to be dealt with here and then 48 hours later it was taken off? The Minister might explain that to the House.

The first of these motions would designate all EU candidate countries as safe countries of origin. This will include Albania, Bosnia and Herzegovina, Georgia, Moldova, Montenegro, North Macedonia, Serbia, Turkey and Ukraine. Outside of the EU, it will also designate Bangladesh, Columbia, Egypt, India, Kosovo, Morocco and Tunisia as safe countries of origin. I appreciate that Pride month is over now but bearing in mind that the International Protection Act requires protection be given where there is a risk of prosecution on grounds of sexual orientation, is it not relevant to a safe country designation that, for example, in Egypt same-sex activity is punishable by up to 17 years of imprisonment with hard labour, fines and deportation? Is that not relevant?

As regards European Union candidate countries, ILGA-Europe publishes an annual rainbow Europe review of the human rights situation in every European country. According to its recent review, Turkey comes third with a score of 5%, ahead of only Russia and Azerbaijan, etc. and Georgia is sixth last on 12%. I encourage the Minister to look at those statistics.

The second proposal would change the rules around safe third countries. This concept allows member states to decide that an application is inadmissible if the applicant cannot be returned to the country of origin but could receive effective protection in a third country that is considered safe for the applicant. Currently, the law requires there be some reasonable connection between the applicant and the third country concerned. You could not reasonably deport an Indian national to Kosovo just because they would be safe there. Is that reasonable? The EU wants to change this rule by proposing an amendment which provides that a connection between the applicant and the safe third country will no be longer mandatory. Transit through a safe third country before reaching the EU could be considered a sufficient link. The safe third country concept could be applied under an agreement or arrangement with a safe third country to ensure the examination of requests for effective protection in that country. This rings familiar in the context of the arrangement the UK had with Rwanda. It is the same thing.

The third proposal would broaden the category of countries to which we could return a failed IPA applicant to include not just the country of origin but also countries of former habitual residence; first countries of asylum; third countries where the individual has the right to reside on an interim basis; and third countries where there is a bilateral or EU-level agreement in place.

Finally, the last proposal states it is accepted that if the war in Ukraine continues in a protracted fashion, the temporary protection directive as we all know it must eventually end. A non-binding Council recommendation is proposed as an important tool to support and co-ordinate an EU-wide exit from temporary protection. To be honest with you, this strikes me as a form of EU nimbyism.

The withdrawal of the other motion, which I referred to earlier, is frankly disgraceful. The slipshod practice of the Department regarding these issues is something I had hoped would discontinue. We as legislators, on behalf of the people, need to deal with these serious issues in a much more considered way.

By way of background, we need to remind ourselves that Ireland is a sovereign state and that we required an amendment to the Constitution in 1972 in order to join the EEC, as it was then. This was required not just to vote in favour of the European project but because the EEC as a project is not, in a formal sense, compatible with our Constitution. The Constitution - this is important - is written on the basis that all laws come from here - the Oireachtas - and are interpreted by the Irish courts. The executive power belongs to the Government of which the Minister is a part. It is a Constitution that was enacted by and belongs to the people. When we joined the EEC, as it was then, we were required to create an exemption. We had to join up to a system which provides that when EEC treaties require us to apply EU law, the European law - and not Irish law - must be applied by an Irish court, even if it conflicts with Irish law or the very same Constitution. The Minister knows this. I do not necessarily have a problem with that; it is the basis on which the European Union was built. I also have no problem with the certainty that we need to be very vigilant in patrolling the borders between EU competence and our own domestic Irish competence. We have to be extremely vigilant on this.

Originally in 1972, we gave a constitutional override to any EEC measures that are necessitated by the obligations of our membership. As we know, at a later stage the EU developed. With regard to the UK and Ireland, an opt-in or opt-out approach to proposals it had in mind for justice, home affairs and Schengen applied. We again amended our Constitution. We are now enabled to opt in to proposals from Europe on justice and home affairs if, and only if, both Houses of the Oireachtas give their approval. That is what brings us to today. It is important to realise what this approval actually means. It means not only that law arrives in this State that is in some formal sense unconstitutional, given it has not originally been enacted by the Oireachtas, but also that the law, once enacted, cannot later be tested by the courts as to its compatibility with the Constitution on any grounds, including human rights grounds. It will escape constitutional scrutiny as EU law because the two Houses have on a day like today - a Thursday afternoon at the beginning of July in 2025 - opted into a proposal of EU law and opted out of the details of the Irish Constitution.

We need to remind ourselves that the UK was always suspicious of justice initiatives coming from Europe on immigration. As we have a common Border and a common travel area with the UK, we have historically largely went along with the UK's opt-in or opt-out decisions. Now, in light of Brexit, it is not so obvious how we will address the issues we are talking about today, particularly in the field of immigration. It seems we are getting more and more of these proposals from the Department of justice in this way.

As regards these motions coming from the Department, the record seems to show sometimes these were referred to a committee. There is no consistency in this; I have looked it up. They were referred to a committee for prior consideration and then other times like today they were not. The reality is that some of these motions are important. I will go as far as to say they are more important than many of the Bills which come from the Minister's Department. They have a bigger impact and remember, they are absolute; they cannot be challenged.

My point is that these motions deserve and require greater scrutiny. They need hearings, evidence, analysis and discussion, but all of that is bypassed if the Minister decides instead to bring the motion directly into the House without any prior examination in committee. I much prefer and propose that any opt-in motion coming from the Minister's Department should in future automatically 100% stand referred initially to the European affairs committee unless the Dáil orders otherwise.

3 o’clock

For some reason, the Minister may want that provision but it should go before the Committee on European Union Affairs first. I do not believe that what we are doing today is the way the Dáil ought to conduct its business, especially when it is important constitutional business.

We were told at the last minute that one of these motions had been withdrawn and we were down to three. The Minister's explanation is pretty terse and dismissive, and he says no more than that he might “reflect” on the discussion as to whether an opt-in under Article 4 instead of Article 3 of Protocol No. 21 would be preferable. There is no attempt from the Minister to offer even the basic courtesy of identifying the actual protocol to which he is referring. It is a pretty shambolic way of asking the Legislature to pass law. Protocol No. 21 is, in fact, referred to in Article 29 of the Constitution and we had to pass a referendum in order to accept Protocol No. 21.

Both Articles 3 and 4 of the protocol refer to the possibility of this State opting into measures adopted by other member states under Title V of Part 3 of the Treaty on the Functioning of the European Union. The only difference between the two articles, insofar as I can see, is that Article 3 is about signing up at an early stage, before the measure has been enacted, while Article 4 is about signing up later, after the matter has been passed. We are entitled to hear a lot more from the Government about this before we can be expected to make a decision. I think the Minister would appreciate that, and that he appreciates where I am going with this narrative.

We have an option. We can examine the proposal and decide to opt in or opt out. If we opt in, we are opting into a system of binding EU law that overrides our domestic law. This is an increasingly important decision that we must make. We cannot continue like this. It will be a disservice to our State, the people who put us in here and the people of the wider country if we continue to deal with all of these issues in the manner in which the Minister has begun to deal with them and the manner in which they were dealt with by the previous Government. This is becoming a real issue. We need to change the manner in which we deal with these motions and the way they are scrutinised. Their impacts are colossal. With respect, I urge the Minister to reflect on what I have said today.

See this speech in context