Wednesday, 6 March 2019
Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019: Committee Stage (Resumed) and Remaining Stages
I had explained why I was not accepting the amendment, but I also received some queries. Deputy Brady spoke about fuel allowances. Simply, the overlapping provisions included in the convention replicate the current arrangements and reflect the general rule that a person should not receive two payments in two jurisdictions. That issue needed to be addressed in the legislation. There is no provision in the convention or the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill which will change the existing practices in the making of fuel allowance or other payments. All of the current arrangements will stand. I think the Deputy was under the impression that somehow we had changed something. I confirm that all existing payments and the current arrangements will continue.
In respect of the Department of Work and Pensions' winter fuel repayment, it is an annual tax repayment made to eligible people to help towards meeting their winter heating costs. In most cases it is a lump sum payment of between £100 and £300 and paid automatically in November and December. Since the winter of 2012-13, people living in the EEA or Switzerland who have a genuine and sufficient link with the United Kingdom have potentially been eligible to receive the winter fuel payment, regardless of whether they previously had an entitlement to receive it. Obviously, that still stands.
Deputy O'Dea asked why the draft heads, as published, were different. They were intended to provide the power to make regulations to deal with a range of issues such as the treatment of events or facts occurring in the United Kingdom; the taking into account of social insurance contributions paid in the United Kingdom; the habitual residence condition; the avoidance of multiple payments; arrangements regarding absence from the state; arrangements for frontier workers where the frontier crossed will be between the United Kingdom and Ireland; the exchange of information; and the arrangements to ensure the maintenance of current payments vis-à-visthe United Kingdom and where the current arrangements governed by EU regulations are more expansive than the existing bilateral arrangements between Ireland and the United Kingdom.
As the drafting process progressed, the construction of the amendments changed significantly, although the overall aim and ambition remained exactly the same. In particular, a more streamlined approach was adopted based on the strong advice of the Office of the Attorney General which will effectively allow me to treat the agreement we signed on 1 February as if ratification had occurred in the event that ratification has not been completed by the United Kingdom by 29 March. An order has also been drafted to give effect to this provision, if required. This is an unusual provision, but it is possible to make it because the agreements have been signed and the United Kingdom has retained the provisions of the relevant European regulations in its domestic legislation. As a result, most of the provisions originally envisaged and as set out in the heads of the Bill are not required, but we will all achieve the same aims. Obviously, regulations will need to be placed before the House. The Deputy asked me if the same was true of the order. The order will only give effect to the convention which has been approved by the House.
The Deputy also asked me about our interactions with other EU member states. All other EU member states are covered by the EU Regulation No. 883 which will continue to apply.
The Deputy asked if pensioners in Ireland would continue to receive their UK pension payments into their bank accounts. We make payments to pensioners who reside outside the European Union and the EEA into their bank accounts and will continue to do so. The United Kingdom is currently part of the geographical scope of the single euro payments area, SEPA, scheme owing to its EU membership. It facilitates the payment of UK pensions into Irish bank accounts and that will continue. As the geographical scope of the SEPA scheme already extends beyond the European Union and the EEA, including to several third countries and territories, the option remains that the United Kingdom will continue to be included in the scope of the SEPA scheme, provided it fulfils the eligibility criteria. I genuinely expect it to continue to operate under the SEPA scheme.
Deputy O'Dea asked me for a list of schemes that will fall under the reciprocal arrangements. They are the contributory State pension; carer's benefit; health and safety benefit; illness benefit; treatment benefits; adoptive benefit; maternity benefit; paternity benefit; invalidity pension; partial capacity benefit; widow's, widower's or surviving civil partner's contributory pension; contributory guardian's payment; occupational injuries benefit; widow's or surviving civil partner's grant; jobseeker's benefit; child benefit; the back-to-work family dividend; non-contributory guardian's payment; domiciliary care allowance; one-parent family payment; and working family payment. For every scheme available in both countries today, our ambition is to provide for continuity after 29 March.
Before the debate was adjourned this morning, I asked a question that the Minister has not answered. Last week I sent her correspondence, to which I am still awaiting a response. I have also raised the issue on Committee Stage. There is no clarity on what will happen with the winter fuel payments and fuel allowance, even though there is grave concern. More than 31,000 people receive the winter fuel payment from Britain. They need to know what will happen post Brexit. There are a number of scenarios. What will happen for a person living in the State who is in receipt of the winter fuel payment but not the fuel allowance? Will he or she still be entitled to receive the winter fuel payment? We need clarity on that issue. I am sorry to have to ask the question again, but I will keep asking it until I receive an answer. Will the Minister provide clarity for the more than 31,000 people in receipt of the payment who are genuinely concerned?
I did not hear a lot of the Minister's earlier reply because there were conversations going on here in the Chamber before we adjourned. Do I take it that she expects the convention to be ratified on the UK side on 19 March? The Minister seemed to suggest that people could make submissions from the UK side in between time. The convention therefore could change from what we have discussed in committee. If the convention changes, will this House have any opportunity to debate the changed convention? We have already debated the original convention. If it does change, we will not have an opportunity to debate the changed product.
I note the Minister's reply to Deputy Brady's amendment. My understanding is that this is a belt and braces situation whereby if the convention does not come into existence, this new subsection is added on to allow the Minister to continue with the present arrangement for social insurance. The Minister is saying that because this may not actually happen, she may not have to do that and therefore the word "shall" would be inappropriate. I tend to agree with that. What about the second part of the amendment? It is a two-part amendment, as I understand it. It reads "shall with the assent of" both Houses of the Oireachtas. Is there some compelling reason she is not disposed to accepting that part of the amendment?
The reason I was smiling when the Deputy asked the question for the second time was because I answered it and he was not here. I am quite happy to read out again in its entirety what I read five minutes ago, or the Deputy can check the blacks, because I did answer the question in full. A letter went in the post to the Deputy yesterday in reply to the his letter of last week. To put him out of his misery, there will be absolutely no change to the current arrangements and therefore no jeopardy or peril to anybody as to their entitlements today.
In further reply to Deputy O'Dea, the Privy Council - I have learned a lot about Westminster standing orders and practices in recent months which I would not have been aware of before - is sitting to allow people, as we did last week in the Joint Committee on Employment Affairs and Social Protection, to have a conversation, ask questions, find out and clarify more about the convention. The convention is not open for amendment. It is open to being either ratified or rejected. If it is rejected, then obviously the legislation we are discussing will kick in for the security of Irish pensioners living in the UK and all of those other recipients to ensure that the arrangements will continue to function. From the various and copious meetings and discussions that we have had over the past 18 months with UK Department for Work and Pensions officials, their teams and their Minister - indeed this is the second Minister in that office - we want to maintain what we have always had. There is no doubt in anybody's minds that what we have agreed has been agreed by both sides. The Privy Council will sit this week and next week to allow people to express observations and make comments and statements on this matter, in the same way that we would do here. The only thing that is open to Westminster Parliament is either to accept it or to reject it. It is hoped it will accept it.
In answer to Deputy O'Dea's final question, the only amendment is to substitute the word "may" for "shall". The rest of the wording is as the Bill is at the moment.
I do not want to delay the debate, although it has to be said we are making very good progress. I understand that this Bill is not the place to address in some respects the issue that I am raising, but it does have a relationship with the Bill because there is an issue in relation to tactical insolvencies which have happened in the State before. There is a relationship between companies that are based in Ireland but also have subsidiaries in America or in Britain or different parts of the world. Tactical insolvencies are a problem. We had it with Clerys where a company was broken up into an operations department and an assets department, the assets were sold off, and the workers were left high and dry.
All of these provisions and sections are ensuring that the status quoremains. We have moved a Bill on this issue of tactical insolvencies, and there is an interjurisdictional issue involved in the overall issue of tactical insolvencies. What are the Government's plans to deal with the reports that came from Clerys dispute? The Minister will remember that a number of reports were commissioned by the Government which highlighted that there was a problem. Is there legislation in the pipeline or has the Minister anything in progress at the moment that will address that issue of tactical insolvencies?
The only thing I can say is that the question is not relevant to this particular Bill. Maybe I can have a sideline conversation with the Deputy with regard to his request or maybe he can table a parliamentary question.
Is the Minister in a position to tell us if there is anything in the pipeline? Is the Government looking at a Bill? It has implications for the relationship between companies based in Ireland that also have subsidiaries in the UK or even the North. Given that this has happened before and workers have been left high and dry, and while I accept that this Bill is about maintaining the status quo, we should look at strengthening areas where we can and we should take the opportunity to do so. It is not good enough to say it is not directly relevant to this Bill. It is a question I have asked the Minister. What is the Government looking in relation to tactical insolvencies?
I do not propose to accept this amendment either. Members will appreciate that the regulations under this section will only be required in the event of a no-deal Brexit. As is clear in section 83, the power to make such regulations is already subject to the circumstances as and when the transfer of data is required, and crucially only when the circumstances set out in that section arise. I can also assure Members that any regulations, should they be made, will comply with the requirements of our general data protection regulation, GDPR. The provisions of this Bill on this matter have been carefully drafted after extensive legal advice to ensure that we have absolute certainty about the making of social welfare payments in the event of a no-deal Brexit.
Amendment No. 50 introduces a number of legal concerns and ambiguities around the process of making these regulations. It makes it unclear as to how the amendment would operate and what the obligations of the Minister might be in the light of what the Dáil itself would be required to do. My concern is that this would leave the process vulnerable to challenge and, in doing so, would create unnecessary risks around the operation of the provisions and compliance with our GDPR regulations.
The section, to which there are no amendments. I am disappointed that my amendment has been ruled out of order. I believed it was perfectly reasonable and related to the section and purpose of the Bill. I will outline it when I seek further clarification on the decision made.
Extradition plays an important role in east-west and North-South policing and the justice area and there must be provision for it if the European arrest warrant will no longer apply in the context of a hard Brexit. It is right and proper that there be further integration and co-operation in dealing with justice and security matters now than ever before. Some of it is based on international conventions, but the majority is based on EU infrastructure. Unfortunately, it may be eroded substantially and we saw an example this morning. In the event that there is a hard Brexit, the Brussels II agreement on the mutual recognition of family law arrangements will no longer apply. I understand a number of other conventions, including the Hague convention, will cover that situation, but there is the possibility of divergence further down the line. This concern needs to be addressed as a wide number of areas will be affected. The Minister has stated he will deal with some of them by way of statutory instruments, but in this area primary legislation will be required.
Even though it is not yet in force, we could have benefited from mutual recognition of probation judgments and decisions on probation and community service. Unfortunately, the new EU proposal which we are transposing into Irish law will not benefit those who are convicted and given a sentence that involves probation in the North, for example. They will not be able to serve their sentence in the South if resident here. It also applies east-west. It will not be possible to apply that proposal because it is not law, but will the Minister seek bilateral arrangements with Britain for mutual recognition once it becomes law in order that such provisions will apply?
This section relates to the Extradition Act 1965 which was based on a 1957 Council of Europe convention. Section 8 of the Act can apply where the State has made an agreement with a country that is a signatory to a convention to which the State is also a party, for example, the 1957 convention. This section of the Bill which amends the Act will ensure that provision applies to Britain post Brexit and takes account of more efficient and up-to-date electronic means for processing applications. We will not oppose it. However, our amendments sought to ensure this legislation would remain up-to-date in the context of any change in compliance with human rights provisions in other European jurisdictions. All continental European countries, with the exception of Belarus, are signatories to the European Convention on Human Rights, ECHR, which has been defined as a key value of Europe and is frequently referenced in EU literature, even though it is a Council of Europe document. The British Government's current position is to rule out withdrawal from the ECHR, but that has not always been the position of the Conservative Party. Many of its members would have Britain renounce and exit from the convention. We need to take this into consideration, provide for it and ensure Irish legislation will be robust enough to be revised if what I have described happens and the standards of human rights protections in the United Kingdom or any other European country recede because of a desire to reduce such protections. The same concern extends to every area in which there is mutual co-operation, including refoulement. If there is a departure from the ECHR, it will have profound implications for Ireland, particularly on a North-South basis, in compliance with the highest human rights standards.
For the moment the British Government has dropped what was the clearly stated policy of the Conservative Party, to repeal the Human Rights Act 1998, replace it with a British Bill of Rights and eventually withdraw from the ECHR. Repeal of the 1998 Act under which the ECHR was transposed into UK law and requires British judges to take decisions of the European Court of Human Rights into account has been a stated aim of the Conservative Party for over a decade. It was clear in the party's manifesto in 2010, as was its commitment to withdraw from the European Union. In 2014 the party published its proposals for a British Bill of Rights to replace the Act. After the 2015 general election, the then Secretary of State for Justice, Mr. Michael Gove, promised proposals in that regard. At one stage the Prime Minister, Mrs. Theresa May, favoured renouncing the ECHR, as did Mr. Gove and several other senior Conservative leaders. It is not the current position of the British Government, as I am sure the Minister will say, but we cannot say that will remain the case. In that context, we must be willing to review Irish legislation on and procedures for co-operating with the United Kingdom and ensure they will be kept up to date.
I am disappointed that our amendments have been ruled out of order. Amendment No. 52 reads: "Where a European Country, notifies the Secretary General of the Council of Europe, under article 58 of the European Convention on Human Rights [under which it is required to give six months' notice] ... the Minister shall immediately initiate a review of this legislation, which shall be concluded within 4 months". That would have provided an additional window to take urgent legislative action. Obviously, the amendment will not be moved, but I hope the Seanad will be able to discuss an amended version. This is an important matter and in this and other respects we must watch Britain's compliance with the ECHR.
I acknowledge the points raised by Deputy Ó Laoghaire and advise the House that in this Bill we are dealing with a no-deal scenario which would be the worst outcome of Brexit. We are dealing with what I describe as a catastrophic no-deal Brexit across a range of areas. As has been said numerous times, all sides of the House hope this legislation will not need to be relied on. It is in that context that I acknowledge Deputy Ó Laoghaire's remarks. I note the Deputy's references to various Conservative Party manifestoes under different leaders while in opposition and in government. It would not be helpful to speculate further, but I am satisfied that there is no imminent plan on the part of the British Government to depart from the European Convention on Human Rights.
It is important for us to deal with the possibility of a no-deal scenario rather than entering into the realm of speculation. That said, I listened carefully to what Deputy Ó Laoghaire said and of course, in the event of there being a sudden change, this House would be happy to have an appropriate engagement. At that stage, I would welcome, as always, the contribution of Deputy Ó Laoghaire but dealing with the here and now, the pre-29 March situation, I acknowledge the hope that agreement will be reached between the European Union and the United Kingdom.
One of the key issues identified is to ensure that there are effective extradition arrangements between Ireland and the UK in the event of a no-deal scenario. The European arrest warrant will no longer apply to the UK and at 11 p.m. on 29 March, persons detained on foot of such a warrant would be released. It is critical, therefore, that extradition provisions are in place immediately following the UK's departure from the EU, at 11.01 p.m. or as soon as possible thereafter. Following detailed examination of the options available for extradition arrangements in the event of a no-deal Brexit, the optimum solution is to apply the 1957 Council of Europe convention on extradition to which both Ireland and the UK are parties. While I readily accept that the extradition procedure under the convention is neither as effective nor as efficient as that under the European arrest warrant, as I am sure Deputies will agree, the convention is the best means by which we can provide a workable solution. The intention would be to legislate for and move towards an extradition arrangement with the UK that is similar to the European arrest warrant. I acknowledge that there are differences between the surrender procedures under the European arrest warrant and the extradition procedure under the convention. The 1965 Act, for example, does not permit extradition of own nationals unless the relevant extradition provisions otherwise provide. The Attorney General has advised that clear provision should be made in section 14 of that Act so that the ban on extradition of own nationals should not apply to Irish citizens in reciprocal circumstances where requesting states also extradite their own citizens. Section 14 of the 1965 Act is being amended here to ensure that the current European arrest warrant arrangement in relation to extradition of own citizens continues and that, in applying the provisions of the convention, extradition of an Irish citizen will be permitted on the basis of there being a reciprocal arrangement, where the law of the requesting country does not prohibit the surrender of its citizens. The UK has already indicated that it intends to continue to extradite its citizens after Brexit and while I acknowledge the points made by Deputy Ó Laoghaire, I would suggest that they are best dealt with when the circumstances as outlined by the Deputy arise in the future, although I do not envisage that happening.
The Government's proposed amendment of section 14 of the 1965 Act is appropriate and regrettably, necessary in the context of us facing a no-deal Brexit. One of the great achievements of the EU has been the European arrest warrant, which enables countries to apply for the extradition of persons from other countries in order that they can be held accountable for criminal acts that they committed in the requesting country. It has worked very effectively throughout the EU, particularly in the United Kingdom. One of the big losses to the United Kingdom when Brexit happens, particularly a no-deal Brexit, is that it will be outside the European arrest warrant system. This reveals the artificiality of Brexit because no doubt, when it comes to negotiation with the EU on the future relationship, the United Kingdom will insist on being part of or having a relationship with the European Union which is similar in effect and substance to the current European arrest warrant system. There is no reason for the UK to want anything less and no reason to think that it would benefit from seeking anything less. We are going to go through this artificial scenario whereby the United Kingdom announces that it is out of the European Union but in fact, it wants to avail of many of the successes of that Union. Had the political leaders in the UK made an effort to praise the achievements of the European Union, such as the European arrest warrant, the people of the United Kingdom might not be as blinded to the benefits of membership of the EU.
If there is a crash-out Brexit, the 1965 Act will be amended. One of the principles of extradition is that there must be reciprocity, that is, the requesting country must be able to extradite its own citizens. I was informed by the Minister at a committee meeting last week that this has happened already in the UK. The law there has been changed and citizens of the UK can be extradited to the European Union, including to Ireland, in the event of a no-deal Brexit. Since that arrangement is in place, it is appropriate that we should amend section 14 of the 1965 Act in accordance with what the Government is proposing. It is also a requirement in respect of extradition that the offence for which the request is being made is also an offence in the country from which extradition is being sought. That is a fundamental principle which is also set out in the 1957 convention. It will apply here too. In general, criminal offences in Ireland are similar to the criminal offences that are on the Statute Book in the UK. There are some differences but ultimately when a request for extradition is made, it is clearly in respect of an offence that is an offence in Ireland, even though it may have been committed in the UK. The section is appropriate but hopefully we will not have a crash-out Brexit.
I note what Deputy Ó Laoghaire said in respect of the European Convention on Human Rights and I agree with him that there is a strong strain of political thought within the British Conservative Party that wants to get Britain out of the European Convention on Human Rights. In fact, in advance of the referendum in 2016, although the current Prime Minister of the UK was in favour of remaining in the EU, she did suggest that it would be appropriate for the UK to opt out of the aforementioned convention. Many of the people in England who object to the European Court and its influence on British politics are actually confusing the European Court of Justice, ECJ, with the European Court of Human Rights. If one were to ask, just after the referendum, whether the UK would be anxious to opt out of the European Convention on Human Rights, the answer would probably have been "Yes". However, now that the reality of what Brexit involves is becoming clearer to those who advocated leaving, there is a recognition that there is much more to this process than simply getting Britain out of European agreements. Brexit has consequences for the UK, as we can see in respect of the European arrest warrant.
I move amendment No. 56:
In page 68, line 21, to delete “3A. A person” and substitute “3A. (1) A person”.
I will deal with the amendment first and then make some more general points on the section. These amendments relate to an issue that was discussed at both the committee briefing and in the Chamber on Second Stage, namely, the changes that are required to the non-refoulementconsideration.
That followed on from a case in 2018 that required a more formal provision to be put into the legislation and a statement that all deportations since December 2016 had been subject to a non-refoulement consideration.
In many jurisdictions the courts with international human rights mechanisms have given a much more expansive interpretation of what should be involved in the prohibition on refoulement than has been considered in this Bill or legislation to date here. Other jurisdictions, for example, have required considerations of other serious human rights violations such as in the following: the flagrant denial to a fair trial, as in the European Court of Human Rights case of Othman (Abu Qatada) v. United Kingdom; serious forms of sexual and gender-based violence such as in the Convention Against Torture, Njamba and Balikosa v. Sweden, 2010; the United Nations Convention on the Elimination of all Forms of Discrimination Against Women general recommendation No. 32, paragraph 23; and female genital mutilation as provided for by the Human Rights Committee in Kaba v. Canada, 2010, and as recognised in the Convention on the Elimination of Discrimination Against Women, general recommendation No. 32. The Office of the United Nations High Commissioner for Human Rights noted that heightened consideration must be given to children in the context of non-refoulement, whereby actions of the state must be taken in accordance with the best interests of the child. The commission states: “In particular, a child should not be returned if such return would result in the violation of their fundamental human rights, including if there is a risk of insufficient provision of food or health services."
Incorporating this provision into this section of the Bill would make the legislation more human rights compliant. It would not act as a prevention to deportations but it could be a further set of considerations of potential very serious breaches of a person's human rights before his or her deportation. That is the purpose of this set of amendments and the reason we have tabled them. It is a very reasonable ask. I refer to potentially very serious human rights breaches that the State should take into serious consideration before it deports anyone. It is correct that heightened consideration should be given to children in this context.
Sinn Féin had tabled amendments Nos. 53 to 56, inclusive, in this section 88. These amendments related to the legislative uncertainty that cannot be solved only in this House but which can be partially solved here around the citizenship rights of those who are born on this island but are resident in the Six Counties in the North. There is a lack of legislative clarity in this regard. On Second Stage I quoted Mr. Gormally from the Committee on the Administration of Justice:
Legislation is needed both in the UK and Ireland to recognise the particular status of Irish citizens born in Northern Ireland and their unequivocal right to participate fully in that region and as fully as feasible in Irish society and full equality in the rights the two categories can access. A treaty enshrining these provisions in international law would repair the damage done to the principle of the Agreement.
This issue has been well flagged and the Government should reflect on it and should have considered amendments in this regard. I hope the Government will consider quite seriously some of the amendments we have put forward. It is a clear view, shared by many academics, that a change is needed not only in British legislation but also in Irish legislation.
The Sinn Féin amendments would have amended section 62 of the Irish Nationality and Citizenship Act to guarantee full citizenship rights for those who fall under that section, the citizens to whom we refer. There would also be a need for a review to make recommendations as the legislative changes that are required to give full and equal citizenship for the Irish citizens in the North. There are issues around naturalisation and seeking visas, for example when people are related to or a spouse of an Irish citizen but are not themselves an Irish citizen, where that Irish citizen is resident in the North. When a partner who lives in another jurisdiction wants to come to Ireland and a visa is sought for him or her, the Department of Foreign Affairs and Trade will not give that visa. The Department will send the person to the British system. This needs to be rectified. These are rights that Irish citizens should enjoy wherever they reside.
At the heart of this debate in recent weeks we have had most notable contributions on this. For some time we have seen all stripes of political opinion doing their best to show their interest in this and a desire to be open to and take into consideration the rights of citizens in the North. We see Fine Gael looking to run Mark Durkan in the EU. We see Fianna Fáil and its partnership with the SDLP. We see increased commentary from the Labour Party on politics in the North. This is all absolutely welcome.
The Minister can elaborate on that. I think I was making quite a reasonable point. I believe the Tánaiste agrees that I am making quite a reasonable point. I put it to the Minister, Deputy Flanagan, that at the heart of the debate around Brexit - the Minister appears amused and he is entitled to be but this is serious stuff-----
At the heart of the philosophy that has underpinned the Government's strategy is that the rights of citizens who live in the North must be safeguarded. It is the heart of the approach that has been taken by these Houses. These are no small matters and Sinn Féin sought to table amendments to address these. There are clear deficiencies in legislation with regard to the citizenship rights of those in the North, the rights to Irish nationality of those who live in the North, and where it relates to the Irish Nationality and Citizenship Act 1956. These deficiencies have been identified, not just by Sinn Féin but also by the Committee on the Administration of Justice, by Queen's University Belfast academics, by academics in the South, and by a whole plethora of people. This needs to be resolved. I do not believe it needs to be a matter of dispute but clearly there is a view that there is an absence that this Bill has not addressed. It will not be addressed unless the Minister tables amendments. My amendments are not able to get through the system so I appeal to the Minister to give this further consideration before it goes to the Seanad, and to table amendments.
There are two issues I wish to develop. The first is on the amendments before us and the second is that Deputy Ó Laoghaire spent more time in his contribution addressing the amendments that were disallowed rather than on the others, but I am anxious to reassure the Deputy.
The provisions in sections 88 and 89 are inserted for the purposes of correcting what has been something of a lacuna in non-refoulementconsiderations. It is the practice of not returning a non-national to a country in which the person is liable to be subjected to persecution or where the life, liberty or freedom of the person is at risk under section 5 of the Refugee Act 1996. It applies to persons subject to that Act and to persons removed from the State under the Immigration Acts 1999 and 2003. The introduction of the International Protection Act 2015, which repealed the Refugee Act 1996, somewhat inadvertently removed the legal basis providing for refoulementin the Acts of 1999 and 2003. As was brought to my attention recently by Deputy Ó Laoghaire, the High Court case S.G. (Albania) v. the Minister for Justice and Equality identified issues of an administrative nature.
These relate to the enactment of the 2015 legislation, the transitory provisions relating to the 1996 Act and the domestic legal basis for consideration by the Minister of the principle against refoulement. The court identified that the Minister's reference to the legal basis for the prohibition of refoulementwas incorrect and these issues have existed since 31 December 2016. The importance of that date is that it was the day on which the lacuna inadvertently arose on the commencement of the 2015 Act, a consequence of which was the repeal of the 1996 Act, including the non-refoulementposition of section 5 of that Act. I wish it to be clear to the House that it has remained policy and practice to apply the principles of non-refoulementto all removals from the State in conformity with our constitutional position and our international obligations. Nonetheless, I accept that, of course, legal certainty is required in this area. If there is a lacuna, it must be recognised, admitted and corrected as a matter of priority. The purpose of sections 88 and 89 is, therefore, to restore the position that there is a certain legal basis for the non-refoulementconsideration for all persons being removed from the State, not only in the protection area, but in respect of all deportations and refusals of permission to enter the State.
I listened carefully to Deputy Ó Laoghaire on the matter of his amendments and have noted them. I am concerned that what they propose is inconsistent with the definition of non-refoulementapplied under section 50 of the International Protection Act 2015. That definition was carefully considered and debated in the House when the legislation was before it. It is based on the principles of international law and encompasses very serious issues, including some of those referred to by the Deputy. Having regard to that definition and in view of the fact that advice was sought from the Attorney General, it is unnecessary to include forms of sexual and gender-based violence or female genital mutilation, as these matters are already covered by the prohibition on inhuman and degrading treatment or punishment. As for the proposal to go further and include in the definition the flagrant denial of a fair trial, I assure the Deputy that this already comes within the scope of the definitions as interpreted by the European Court of Human Rights. It is, therefore, neither a necessary or appropriate test. For these reasons, I am not in a position to accept the amendments.
I accept the importance of the citizenship issues raised by Deputy Ó Laoghaire in respect of amendments which are not being considered by the House. I assure the Deputy that the Government is conscious of the issues and is working to maintain full access to EU rights, opportunities and benefits for Irish and, therefore, European Union citizens in Northern Ireland. That has been clear from the outset of the Article 50 negotiations under the Minister for Foreign Affairs and Trade. I stress, importantly, that Irish citizens living in Northern Ireland will continue to be citizens of the European Union and enjoy the right to move freely and reside throughout the Union. They will, of course, benefit from the important right not to be discriminated against on grounds of nationality while so doing. I assure Deputy Ó Laoghaire that we will engage actively to ensure people in Northern Ireland enjoy continued access to European Union rights, opportunities and benefits into the future. There is also an onus on the UK Government to protect fully the Good Friday Agreement in all of its parts. Deputy Ó Laoghaire recalled some of the commitments which have been made in that regard.
Amendments Nos. 56 to 58, inclusive, are unnecessary. Sometimes adding more words to a statutory provision has the effect of narrowing the meaning of that provision. There is a general assumption that the more words one uses, the broader the definition becomes whereas, in fact, it can become narrower. I am concerned that were we to add to section 3A the words suggested by Deputy Ó Laoghaire, it could narrow the provision. In any event, the amendments are unnecessary as they replicate what is there already. Deputy Ó Laoghaire wants to include at the end of section 3A(b) the words "flagrant denial of a fair trial, serious forms of sexual and gender-based violence and/or female genital mutilation". Serious forms of sexual and gender-based violence and female genital mutilation are recognised by all of us as torture or inhuman or degrading treatment or punishment and, as such, they are already covered. The flagrant denial of a fair trial is covered by the proposed section 3A(a) which refers to threats to the life or freedom of a person. As such, there is no necessity to amend section 88 as suggested in amendment No. 57.
Amendment No. 58 seeks to provide that the "Minister shall give heightened consideration to children in the context of non-refoulement, whereby actions of the State must be taken in accordance with the best interests of the child". I am concerned about including in legislation a requirement for a Minister to give heightened consideration to a particular aspect of it. That implies that there are different levels of consideration to be given by a Minister. The Minister, Deputy Flanagan, might be asked how different his consideration of a particular application was to the heightened consideration he was required to give it. It does not create a reality. When the Minister is carrying out his statutory functions, he should give consideration to matters. I assume that every Minister required by statute to give a matter consideration gives that matter serious, or what could be termed "heightened", consideration. If we include in the Statute Book requirements that Ministers undertake different levels of consideration, we will get into significant trouble because of provisions it will be claimed require Ministers to give slight consideration to certain matters. That would probably become the defence of the Executive in due course. I understand what Deputy Ó Laoghaire is trying to do but it is not necessary. For that reason, I do not support the three amendments being put forward by Sinn Féin.
Deputy Ó Laoghaire raises a very important point about the status of Irish citizens living in Northern Ireland. We had a very good hearing at the justice committee recently on that particular issue. It is a matter of very serious concern and it underpins the agreement reached some 21 years ago in Belfast when it was recognised that people in Northern Ireland who saw themselves as having an allegiance to a unified Ireland or, indeed, the Southern State, were entitled to do so. That was recognised in the establishment of new institutions as well as by way of a recognition that those people could achieve their self-determination if the majority of people in Northern Ireland wished to do so. Similarly, an arrangement was made whereby the unionist population of Northern Ireland saw the Southern State withdraw its territorial claim. At the same time, unionists in Northern Ireland recognised that if the majority of people there wished to join a unified island, they could do so. All of that was premised on a recognition by both sides that they were members of the European Union and shared the great benefits of that membership. In fact, the European Union brought people on this island together to a greater extent than any other entity on the island since we gained independence.
It was a major success in bringing people together on the island.
Although Irish citizens in Northern Ireland have the benefit of their EU citizenship through their Irish citizenship, there is a difference between residing and not residing in a European Union country. When Irish citizens from Northern Ireland travel abroad within Europe on an Irish passport they have all the benefits of European Union membership in the same way as somebody from the South who travels abroad, but it is different for them when they live in Northern Ireland. We have been unable to tease out the real consequences for Irish citizens living in Northern Ireland. The justice committee recommended that a forum be established to examine the rights of Irish citizens in Northern Ireland and how their EU rights will necessarily be affected. Obviously we should do as much as possible to ensure that Irish citizens living outside the European Union in Northern Ireland have the full benefits of membership of the EU.
It is also important to point out that a significant number of people living in Northern Ireland who do not have Irish citizenship and carry British passports also wish to retain the benefits of membership of the European Union. The failure to remain in membership of the EU will have a transformative effect on the politics of Northern Ireland. All of us should try to get away from viewing the North of Ireland in terms of green and orange. As is the case in other parts of the world, politics in Northern Ireland is changing. Old tribal loyalties are not retained and people are becoming much more cosmopolitan in their political choices. As Northern Ireland experiences the downside of no longer being part of the European Union, people's political choices in Northern Ireland are going to change. We should allow that to evolve while at the same time trying to ensure that Irish citizens there have their rights fully respected.
There are several strands to the issue of rights, but two primary strands. One is the rights that people stand to lose in the context of a hard Brexit or, indeed, any Brexit. The second is the rights in which there currently are deficiencies even in advance of Brexit. I have given two examples of that in respect of naturalisation and visas, but other absences have been clearly identified. There is a view that a bill of rights would be of significant assistance in that regard, but it requires legislative change in the South as well. We will consider if there is any way we can table amendments in the Seanad. However, there was a commitment in the context of Brexit not to leave northern citizens behind again. To be true to that, the Government must accept, and I hope the Minister will accept, that there is a need for legislative change to validate and affirm the rights of citizens living in the North. I hope that will be progressed in short order, and I ask the Minister to do that. It is what is required to be consistent with the commitment not to leave northern citizens behind.
Regarding the responses to the amendments, I will respond first on the additional considerations. I do not believe they are restrictive by any means. They take a further set of grounds into consideration as well as the others that exist, including inhuman and degrading treatment, as Deputy O'Callaghan outlined. They are necessary and are in line with developments in the last seven or eight years in the major conventions, such as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Elimination of All Forms of Discrimination Against Women, and with what the UN is saying. These would not have necessarily been part of standard jurisprudence before that. They are emerging areas and I am not sure Irish legislation has kept up to date with that. I believe we should and I will press the amendment.
With regard to heightened consideration, we already give heightened consideration to people in different circumstances. We put a heightened consideration for children into the Constitution. In many respects we give heightened consideration to people in vulnerable circumstances, people who might have a disability and so forth. We regularly give heightened consideration to people depending on their circumstances, and it is entirely appropriate. If we are going to send a child out of Ireland because the child did not qualify under the non-refoulementtest that currently exists, it is entirely appropriate to say that we wish to take a heightened look at the case and to consider it very seriously before sending the child back to what might be an extremely hostile environment. There is nothing unreasonable or inconsistent in requiring a heightened consideration where a child is involved, based on the child's best interests.
I stress to Deputy Ó Laoghaire that we are dealing with this legislation solely in respect of the consequences of a crash out or a no-deal Brexit. We are looking at putting together a comprehensive contingency plan for that scenario. From the outset of the contingency planning, the need to ensure the protection of the citizenship provisions of the Good Friday Agreement was clear to the Government throughout the process. Indeed, that was not just a priority objective of the Irish Government but also an objective of the European Union as a whole. It is important to acknowledge that.
I am not sure of the extent to which amending Irish citizenship laws can have the desired effect that Deputy Ó Laoghaire believes is possible. I am not sure of the extent to which we can legislate in respect of part of the United Kingdom. I would prefer to continue the process of dialogue, North-South and east-west, that has been expressly arranged under the Good Friday Agreement and to continue the engagement between the European Union and the United Kingdom to ensure that access to all the rights and benefits of the European Union will be preserved for the people of Northern Ireland. That is a far more positive means of achieving that objective than by attempting to legislate or changing our legislation. It is an almost unique position for the European Union to have a body of people who will be EU citizens not living within the European Union. Perhaps there is a similar situation in parts of Moldova as far as Romania is concerned. In any event, the Government is particularly conscious of this matter, and whether it is a no-deal, hard-deal or soft Brexit, Irish citizens living in Northern Ireland will continue to be European Union citizens.
I will not accept the amendments for the reasons stated earlier. I would be happy to pursue the important issues raised regarding citizenship, but they are not particularly relevant to this legislation nor can they be dealt with satisfactorily in this legislation. However, they certainly can be dealt with through the process already arranged in the Good Friday Agreement and consequent agreements. Regardless of what happens regarding the form and scope of the withdrawal of the UK from the European Union, we will continue to engage in a way that is fully protective of our citizens.
I move amendment No. 57:
In page 68, line 28, after “punishment” to insert the following:“, flagrant denial of a fair trial, serious forms of sexual and gender-based violence and/or female genital mutilation”.
I move amendment No. 58:
In page 68, between lines 28 and 29, to insert the following:
"(2) The Minister shall give heightened consideration to children in the context of non-refoulement, whereby actions of the State must be taken in accordance with the best interests of the child, a child should not be returned if such return would result in the violation of their fundamental human rights.".
Richard Boyd Barrett, John Brady, Tommy Broughan, Pat Buckley, Joan Burton, David Cullinane, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Brendan Howlin, Alan Kelly, Gino Kenny, Martin Kenny, Catherine Martin, Denise Mitchell, Imelda Munster, Catherine Murphy, Jonathan O'Brien, Louise O'Reilly, Jan O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Willie Penrose, Thomas Pringle, Maurice Quinlivan, Brendan Ryan, Eamon Ryan, Seán Sherlock, Róisín Shortall, Bríd Smith, Brian Stanley, Mick Wallace.
Bobby Aylward, Maria Bailey, Seán Barrett, John Brassil, Declan Breathnach, Pat Breen, Colm Brophy, James Browne, Richard Bruton, Peter Burke, Mary Butler, Catherine Byrne, Jackie Cahill, Dara Calleary, Ciarán Cannon, Joe Carey, Pat Casey, Shane Cassells, Jack Chambers, Lisa Chambers, Michael Collins, Niall Collins, Marcella Corcoran Kennedy, Simon Coveney, Barry Cowen, Michael D'Arcy, Jim Daly, John Deasy, Regina Doherty, Stephen Donnelly, Paschal Donohoe, Timmy Dooley, Andrew Doyle, Bernard Durkan, Alan Farrell, Frances Fitzgerald, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Noel Grealish, Simon Harris, Seán Haughey, Michael Healy-Rae, Martin Heydon, Heather Humphreys, Paul Kehoe, Billy Kelleher, Seán Kyne, John Lahart, Micheál Martin, Charlie McConalogue, Helen McEntee, Finian McGrath, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Aindrias Moynihan, Michael Moynihan, Margaret Murphy O'Mahony, Eoghan Murphy, Eugene Murphy, Hildegarde Naughton, Tom Neville, Darragh O'Brien, Jim O'Callaghan, Kate O'Connell, Patrick O'Donovan, Fergus O'Dowd, Kevin O'Keeffe, Frank O'Rourke, John Paul Phelan, Anne Rabbitte, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, Brendan Smith, David Stanton, Robert Troy, Leo Varadkar, Katherine Zappone.
I signalled to the Tánaiste that I would raise these issues and he accepted.
I accept that the amendment proposed to insert a new section and the Leas-Cheann Comhairle's ruling in that regard. I wish only to make a short intervention about important issues that we sought to include in the Bill by amending and strengthening it. We had a number of engagements with the Tánaiste and his officials. Deputies across the House have been supportive of the passage of the Bill, as demonstrated by the fact that we have almost finished. Nobody has sought to delay the Bill in any way.
The Bills Office grouped the amendments into this new section 92. That was not our doing. The amendments deal with substantial issues that go to the heart of many of the difficulties which will impact on Ireland in the event of a hard crash. They impact deeply for the people that we represent, North and South, especially in the North but also in the Border counties. We tabled an amendment that would put a responsibility on the Irish Government to establish an all-island forum on preparing for Irish unity and that that forum would sit for a period prescribed by the Minister with people appointed by the Minister. That body would report to the Dáil and allow the Dáil to formulate a White Paper on Irish unity.
A comment was made by the leader of the SDLP, who said there would be a cold place in hell for people who call for a Border poll but do not have any idea of what that united Ireland would look like. That was disingenuous, given that we have been screaming from the rooftops at successive Irish Governments for years to plan for Irish unity. We called for the establishment of an Oireachtas committee to deal with it. We now call for this forum and we have called on the Government to bring forward a White Paper. The purpose of the White Paper is to do precisely that. It is to outline the steps necessary to bring about Irish unity in a Border poll.
All of this is in the context of a hard crash. If there is a hard crash out of the European Union by Britain, that means the North coming out of the European Union as was acknowledged earlier. That raises serious questions about their rights as European citizens but it also raises serious issues for the Border. We would have a European frontier on the island of Ireland, with the North out of the customs union and Single Market, yet there are no provisions in this Bill and we do not expect this Bill to deal with these issues. Of course it could not. There is no provision even to deal with the most logical outcome to make sure that we avoid any hardening of the Border, that is to end the Border and partition once and for all. All of the opinion polls in the North and the South show that, in the context of a hard Brexit, a majority of people in the North and South would vote for a united Ireland. I appeal to the Minister to be cognisant of that and to understand where people in the North are coming from.
Another amendment which was ruled out of order and which is important to people in the North is that, while they will have certain protections afforded to them as a consequence of the common travel area and from this omnibus Bill, they will not have political representation. It is no good for Fine Gael to say that it will put forward a candidate from the North and that that person will represent people in the North.
With respect, we have not filibustered or taken up any additional time that is not warranted. I feel it is important for me to put these issues on the record because they are important to the people who we represent. They will be without political representation in the European Parliament. That includes unionists as much as nationalists. A majority of people in the North voted to stay in the European Union and it was a dereliction of duty and responsibility by the Irish Government not to make any attempt to provide for the political rights of citizens in the North. They will end up in a situation where even if the withdrawal agreement goes through, as we hope, and the backstop comes into play, they will be in the customs union and Single Market for all intents and purposes, but they will not have any ability to impact those rules. We believe that is unfair.
In the spirit of how this legislation has progressed, I would like to respond to the issues outlined. There is a difference of approach in the context of calls for a Border poll between the Government and a number of parties in this House, and the approach that Sinn Féin has taken. We need to recognise that people's aspirations for the future, for this island, for relationships North and South and for constitutional change are all legitimate. That is politics and it is catered for comprehensively in the Good Friday Agreement with regard to how decisions may be made in the future and the process that would trigger that.
I have spoken on many occasions, as have the Minister of State, Deputy McEntee, the Taoiseach, and others, about the enormity of the issues we are trying to deal with and that we are trying to protect and maintain the status quoas well as we can with regard to rebuilding institutions linked to the Good Friday Agreement, functioning devolved government and functioning North-South co-operation. Brexit has had an extraordinary polarising effect on political parties and communities in Northern Ireland. I attended a reconciliation conference in the national convention centre yesterday and we were reminded of that. To put the setting up of a forum on national unity into the mix at this time as a response to Brexit moves us away from where we need to be, which is to try to find accommodation of each other and to reassure people of all backgrounds and identity in Northern Ireland that what we are trying to do through Brexit is to protect the peace agreement and what has been hard-won over the last 21 years, and to find a way to get functioning government and political decision-making in Northern Ireland. That is not to dismiss people's legitimate aspirations for the future, whether unionists, nationalists or something else.
I do not think introducing a legal requirement for the Government to set up an all-Ireland forum to prepare for Irish unity in the context of the challenges we are facing this week, next week and for the next number of months is either helpful or sensible. While this amendment has been ruled out, which is nothing to do with me, if it had not been ruled out, I could not have recommended accepting it.
With regard to representation in the European Parliament, one reason why my party has asked Mark Durkan to stand for us is to try to ensure that there is a perspective from Northern Ireland in the European Parliament.
It is all out of order but I said I would respond briefly to it. We have looked at ways in which we could potentially think about representation in the European Parliament. When a country is an accession country, in the lead-in to joining the European Union, it often has observer status in the European Parliament. We have looked at that issue. I have raised it at Cabinet and elsewhere. There are real practical difficulties in doing what the Deputy is proposing, which is to set up a constituency for Northern Ireland, because Northern Ireland will be outside of the European Union. Whether one attaches voting rights to EU citizens, that is Irish citizens, and not British citizens, is something that the Deputy would have to think about very carefully with regard to consistency with the Good Friday Agreement and the principles of non-discrimination and so on in it. This is not an easy issue to resolve and we should not pretend that it is. I do not think that this legislation is the place for it.
While I am on my feet, I will say that this all relates to Part 15 of the Bill. Part 15 is very different to the rest of the Bill. The other 14 Parts are essentially about triggering a legislative response to a no-deal Brexit, should that happen. Part 15 is the opposite. It is about ensuring that if there is a withdrawal agreement, Part 15 would be commenced, which would effectively consider the United Kingdom as a member state for all intents and purposes for the transition period in the withdrawal agreement.
It will initially be a two-year period, unless the United Kingdom asks for an extension of one or two years, should it be needed. It is important to maintain the status quothrough the transition period to effectively consider the United Kingdom as a member state in terms of its treatment and consistency with EU directives, rules and regulations, for everything from trade to standards and so many other areas. That is what Part 15 does. It is the only section of the Bill that will actually take effect and be commenced if there is a deal. If there is no deal, the rest of the Bill will apply. There are no amendments to Part 15 that are in order.
I am not going to allow a debate on amendments that are not in order. On Fifth Stage I will be more than happy to hear a contribution from anyone who wants to contribute. Amendments Nos. 68 to 74, inclusive, have been ruled out of order.
The process has moved more quickly than we had anticipated, which shows the strong co-operation across the House, including from Fianna Fáil. We have been constructive and reasonable the entire way through, but I remain critical of the time allocated for the process. We would have liked to have had more time to consider the Bill in advance of the process beginning. It has put pressure on to have amendments made quickly because there are just 24 days to go to Brexit.
The Bill does not cover every issue that needs to be covered. I appreciate that not everything can be legislated for and that some issues will be dealt with through statutory instruments. We await more details of what will be done through secondary legislation.
In the wider context of Brexit it was disappointing to hear yesterday that there had been no breakthrough in Brussels between the UK team and Michel Barnier and his team. My understanding is much will hinge on the advice the UK Attorney General, Mr. Geoffrey Cox, may give to Parliament in the coming days. He has made it clear that he will not change his advice of last November that the withdrawal treaty, as drafted, will trap the United Kingdom in the backstop. That is not the intention, but nonetheless that was his advice which he was forced to publish. If he does amend it, I understand it will be published. If it is published and amended to the extent that the backstop is temporary, we will have to react to and assess it when it happens. The phrase about the need for t he sun, moon and stars to line up comes to mind when we see the task ahead of the British Prime Minister in that there appears to be a reliance on the Attorney General's advice changing to a significant degree that will allow the backstop to be seen to be temporary. That will allow some hardline Brexiteers to come on board, with perhaps the Democratic Unionist Party and some Labour Party members, which together might facilitate the passage and ratification of the withdrawal treaty which they negotiated.
We, on this side of the House, want to see a deal done. We are very concerned that there are just 24 days to go and a deal has not been ratified. The legislation passing through the House will go before the Seanad next week is positive. That is because of all the work done across the House by every political party, with the exception of Solidarity and People Before Profit. Every other party and Independent Member has done what it, he or she can to get the legislation through and should be commended on the work done in that regard. I commend all of the civil servants and the Minister's team, including those in the Department of Foreign Affairs and Trade, who have worked extremely hard to bring the Bill to this point. If there is a crash-out Brexit and no deal on 30 March, we are not prepared for it. The situation will be calamitous and there will be a direct hit on business, farming, supply chains, the price of sterling and peace and stability on the island. There is a lot of work to be done. The Bill is only one of many elements in the preparations the Minister who is leading for the Government on this issue needs to do to prepare the country for the worst possible impact of Brexit. There will be no shortage of support on this side of the House for whatever the country needs to do to get ready for it.
Our minds are on the negotiations in Brussels. We await the legal advice that may come from the United Kingdom with anticipation to see what the additional offerings from the European Union may look like and what status they may be given. In that regard, my party will assess developments as and when they occur. I thank the Ceann Comhairle for giving me the opportunity to address the House at this important juncture of the Brexit process. It is only the beginning of what we need to do. I urge the Minister to step up preparations, particularly for business and farming, because we are not as prepared as we should be.
I commend the Minister and officials in a range of Departments on the various briefings they provided for Oireachtas Members. They were very helpful in enabling us to speak to the Bill and in progressing it through the Dáil.
I want to register with the Ceann Comhairle our disappointment at the fact that many of our amendments were ruled out of order. Many of my colleagues have expressed that dissatisfaction to the Ceann Comhairle and we will take up the matter further with his office. We believed some of the amendments were in order. I know that it is the Ceann Comhairle's ruling, but this is the place where we record our views on the matter.
We look forward to furnishing the Ceann Comhairle with that information.
We are 24 days from D-Day. Two years ago when the negotiations started, nobody expected us to be signing off on emergency legislation that we hope will never come into effect. I still think a crash-out Brexit is the least likely outcome, but it is a possibility that would have devastating consequences for the island of Ireland. I hope there will be something better and that we can arrive at an arrangement with Britain under which it can stay as much as possible in the customs union and the Single Market. We have always said that is the best way to resolve the issues for Ireland. It would prevent a land border and a border in the Irish Sea. That is the best way to protect the interests of people in Britain and Ireland, but that is now a matter for the British Prime Minister in considering her red lines.
We sought to strengthen the Bill, but many of our amendments were ruled out of order. I do not believe enough has been done to support businesses. While many of the provisions in this Bill are necessary, they do not go far enough. Much more needs to be done. The EU needs to do more to ease state aid rules. Bespoke solutions are needed. The EU should make additional funding available to address the real and unique challenges the Irish economy will face as a consequence of Brexit.
It is not unreasonable to plan for a united Ireland at any time. It is reasonable to plan for it and to set about the challenges and opportunities it presents. I dispute the Tánaiste's assertion that it is unreasonable at any time to plan for Irish unity. I agree that dealing with the issue of political representation for people in the North in the European Parliament is complicated. Brexit is complicated as well. It has presented challenges which have been overcome. The negotiation of the withdrawal agreement was complicated. All of these issues are complicated, but they can be worked out and resolved if the political will exists. It strikes me that the political will to deal satisfactorily with the political rights of citizens in the North does not exist within the Irish Government.
We have supported the passage of this Bill. It will move into the Seanad. We will co-operate in the same way in the Seanad that we have done in this House. This legislation represents no more than the bare bones of what is necessary. Let us hope that this Bill never has to come into effect, and let us hope we get a better solution that leads to a softer Brexit, which would be better for the people of Ireland and, I would argue, better for the people of Britain.
I welcome the opportunity to say a few words on Fifth Stage. Most of us expected Fifth Stage to be reached much later in the evening, if it was reached at all today. That it has been reached now underscores the extent of co-operation and preparation in advance of the presentation of this Bill. We hope this legislation is comprehensive. I love the acronym "BOB" that has been coined to describe the Brexit omnibus Bill. We hope that as an omnibus Bill, it captures all the issues that might arise in the event of a hard Brexit. We all hope there will not be a need to face the implications for the nation, and indeed for the island of Ireland and the EU as a whole, of a disorderly UK departure.
For more than four decades, the UK's relationship with the EU has bound it intrinsically into the legal structure of the Union. During the referendum, people advocated the notion that it would be simple to bring this relationship to an end, as if it were like leaving some sort of club. We have not yet foreseen all of the extraordinary difficulties that will, regardless of the eventual outcome of this process, ultimately be caused by the UK's decision to extricate itself from everything that has been completely integrated for more than four decades, including trade, business, finance, laws and environmental controls. I have no doubt that we will have to revisit issues that we thought we had agreed on and dealt with. Equally, I have no doubt that issues which have not yet occurred to us will arise and need to be addressed.
As the Tánaiste will be aware, I raised two broad issues in the course of the debate on this Bill. The Labour Party did not table any amendments on Committee Stage because, in essence, it did not want to bolt anything onto the Bill. There was nothing fatal in the Bill that, in our judgment, needed to be amended. The first issue I would like to return to is the constitutionality of vesting powers in the Minister for Health to change primary legislation. The Minister has given me very strong assurances, reinforced by the views of the Attorney General, that the idea of this provision is simply to preserve the status quo. It is not new. We will see. I hope it is robust.
I will return briefly to a second issue. I have yet to comprehend fully how we will deal with the UK differently in relation to the General Agreement on Trade in Services without being required to give exactly the same treatment to every other non-EU member state that is bound by the same general agreement. As I have said, these things will play out if and when they need to be played out.
I would like to reinforce some questions I put to the Taoiseach this week. I genuinely believe we are now in the endgame of finding the solution that is going to be found to provide for the type of withdrawal from the EU that the UK will have. I do not want to sound alarmist when I say this is a point of heightened peril for us. It is unfortunate, if perhaps inevitable, that the backstop is the issue that is presented as causing the final and insurmountable obstacle to a majority in the House of Commons supporting the negotiated withdrawal agreement. The Attorney General for England and Wales is in Brussels again this week to find a legally binding way of changing his advices. I do not believe he will compromise himself by giving advices he does not believe. If he is to change his advices, it is self-evident that he will need to have something that he can convince his colleagues in the House of Commons marks a fundamental change. It seems to me that this could be arrived at in a number of ways, most of which have already been ruled out. My understanding is that everybody, including the British, agrees and understands that there can be no change in the withdrawal agreement itself. That is a closed shop. I had thought there might be some amendment to the political declaration, but I now understand that is not the way. Perhaps the Tánaiste can advise us on that.
What other means are there? There was speculation yesterday that there could be a new arbitration system. If Britain determines at some stage after the triggering of the backstop agreement that it wants to withdraw, is it envisaged that some third party arbitration will take place? If so, I do not understand the impact it would have. Would it diminish the bulletproof guarantees we currently have?
The final way of doing this would be the way we dealt with the post-Lisbon treaty situation, when a declaration was made by the Council of Ministers and the legal services of the Council determined that the declaration had legal validity. In our case, it was subsequently added as a protocol to the Lisbon treaty. Obviously, that had legal certainty. If the avenue that is sought is a legally binding declaration, without question it will undermine the robustness of our guarantee. I have not yet got my mind around how Mr. Cox is to be satisfied without weakening the guarantee that cannot be weakened. I would welcome an answer to that question. I understand that the Tánaiste probably does not know the full answer to it. Perhaps he will give his understanding of where the negotiations are at. I read yesterday that they have returned to the tunnel, which is always a worry. There is a code of silence around these discussions. It is too important, sensitive and critical to our well-being and that of our people on the island of Ireland for it to remain in some Brussels tunnel. I would like to hear more on this.
The Bill we have been dealing with in recent days is a legislative response, insofar as such a response can be crafted, to a disorderly withdrawal of the UK from the EU. As every other Member of the House has strongly underscored, the legislative response is just one arm of the comprehensive response we need to give. I am still very concerned about the level of investment in ports, for example. I have visited Rosslare and I know about the congestion that will be caused there. I am looking at the impact of the minor work to rule that is going on in France today. If the UK landbridge fundamentally breaks down and is so slow as to be unusable for some types of goods, there will be a lack of robust connectivity between Ireland and the Continent. There is an unquestionable concentration of dependency on Dublin Port, through which 90% of the imports and exports of this State are now channelled. All of these things cause me concern, as do other issues like supports to small and medium-sized enterprises and the agriculture sector. I will raise those matters at a different time.
I look forward to the speedy passage of the legislation and our further debates as we move towards whatever will happen by the end of the month.
It does not surprise me that the legislation has moved through the House as quickly as it has. The main purpose of the Bill is not controversial; it is to maintain as fully as possible the status quoin the common travel area to avoid disruption. No sane or sensible person in this Chamber would want to cause unnecessary disturbance or massively disrupt the status quo, particularly in the areas covered by the Bill such as electricity supply, health, transport and education services, education programmes for students and so on. Who would want to see such disruption? That is why I find Deputy Lisa Chambers' little barb utterly bizarre. As much as anybody else in this House, we want to avoid disruption and unnecessary arguments. We put forward a few amendments where we thought the legislation could be strengthened, but most of them were ruled out of order. We made a point about our disappointment about this, but we have not slowed the passage of the Bill. It was unnecessary politicking for no good reason. It was disappointing but perhaps not terribly surprising.
I was surprised, as was Deputy Cullinane, about the ruling out of order of some of our amendments. I conveyed our disappointment to the Office of the Ceann Comhairle. The objective of the Bill is to avoid disruption in the event that there is a no-deal Brexit. Our amendments sought to include a firm statement and an assurance that if things were to unravel and there was a no-deal Brexit, something we hope will not happen, we would set down a clear statement that there would be no hard border and that we would not entertain one. In a no-deal scenario we will not entertain pressure from anybody, whether in Britain or the European Union, to erect a border. I still think that amendment should be included. While these are all important issues to be dealt with to maintain the status quo, everybody knows that the discussion in the next few weeks will all turn on what will happen if there is no deal and whether there will be a hard border. I am not saying the other matters do not affect people; they are important.
I commend the civil servants and staff of Ministers. Even if the Bill is not politically controversial, it is technically difficult. There was a lot of work put into it and I commend those who did that technical but important work. However, the big issue confronting us is what will happen if there is no deal. We all hope there will be one. In the House and private conversation the Minister has said there will have to be hard conversations. There certainly will. Perhaps he sees it as a necessary tactical negotiating position not to get into that matter too much at this point. However, there are certain things that he needs to say. Pressure will be exerted if that is what transpires eventually. We have to say we are not submitting to that pressure. In the end it is other people's problem if that happens. Whatever issues they may think are important - the Single Market or anything else - they are not as important as peace on this island. It needs to be stated clearly that under no circumstances will we risk that danger.
On the crazy politics that is driving the Tory right and the Brexiteers, the little Englander nationalism, we are very much focused on its English manifestation because it is impacting directly on us. However, we should not imagine that it is a uniquely English phenomenon.
There is very dangerous growth of that type of politics all across Europe, including within the European Union, and we cannot lay the blame for it on Britain. It is a failing of politics generally in the western world. We have also seen it in the United States. While we have to deal with a very immediate problem and the consequences of Brexit, we should not imagine, whether it resolves itself for the better or worse, that the threat posed by dangerous xenophobic right-wing nationalist politics is going to go away. It is not. It is a serious threat and we need to think about from where it is coming. We must ask what has failed in politics that has led to that type of politics in the first place. I welcome the decision I believe Fine Gael has made to call for Mr. Orbán to be expelled from the European People's Party. We have been advocating this for quite some time. Beyond that, this type of politics is very dangerous and we need to think about from where it is coming. It is not good enough just to condemn it; we also have to ask to what problems is it giving rise.
I do not understand why a couple of things are not being done in the Bill. I do not see why we would not deal with the issue of UK driving licences being accepted here. That was the subject of one of our amendments which were ruled out of order.
I think most Members of this House would say they were in favour of a united Ireland, although they would differ on how we would achieve it and when. We are in favour of a Border poll. It is possible to make a purely democratic argument for it, given the possibility that there could be a hard border and how it could change minds. However, it is our view that we will never achieve a united Ireland through a sectarian head count. That is the kind of politics that leads people into entrenchment. Where we can win is by putting forward our common interests, the things that unite people and undercut sectarian division. That is why, in the aftermath of the overwhelming popular power in favour of repeal which was a youth and women-led movement and which, like the movement in favour of marriage equality, has spilt massively into the North, we have proposed that there be a new basis to unite people across the sectarian divisions in the North and the South and elsewhere. Lots of young people from the North came here to canvass for repeal. After the referendum, lots of people from the South were in the North to march for a woman's right to choose. That is why we said it would have been a good idea for the Government to make provision in the Bill or state elsewhere that abortion services provided free in the South would also be provided free for everybody in the North. That would have been a massive gesture in showing real solidarity that could begin to lay the ground for unity. That is part of the bigger political debate on the future of politics on the island.
I welcome the passage of the Bill, but the big questions remain unresolved. It is critical that we say to Britain, the European Union, the World Trade Organisation and anybody else that a hard border will not be tolerated because peace on this island is far too important.
As a Border Deputy and a newcomer in this House, little did I think in February 2016 that we would be debating an omnibus Bill on the issue of any country exiting the European Union. It is the catalyst for dramatic change on these islands.
I thought it would be important that I contribute to the closing of this debate. I will start where Deputy Lisa Chambers left off, in that I am sure that quite a number of issues have not been debated. I raised particular concerns during the week, but I have no doubt that those concerns will be dealt with by various statutory instruments. People in my constituency are asking questions on this and that point and I encourage the Government to participate in as many bilateral meetings as possible, if necessary before exit day. If further legislation is required I am sure it will come before this House.
I commend not only the preparatory work undertaken by officials and others, and the co-operation of political parties in this House in terms of the delivery of this omnibus Bill, but indeed the whole process itself. Regardless of what political party one is involved with or what involvement people had through the process, whether involvement in the civil dialogue or the break-out sessions, we did not take our hands from the tiller. We might criticise the level of preparedness or the level of debate or engagement but we did not lose track, unlike many others who thought that this issue was going to go away. Whether there will be a D-day, decision day, exit day or May day, I still say we should beware the Ides of March. The public are fed up listening to us talking about Brexit. They do not realise we might end up with two different time zones, as has been mentioned in recent days. There could be a 4% to 6% reduction in GDP, together with an increase in consumer prices of up to 30%. The public will know then why we have spent so much time talking about Brexit.
We have been engaged in a game of who will blink first, or Russian roulette. I am reminded of the Kenny Rogers song, as some people are "on a train bound for nowhere", and there comes a time when people need to know when to fold and to hold. These islands will be on a backwards trajectory unless people come to their senses. In my view, the natives of the Border area are growing restless, and many of the reports in recent days suggest we could go back to the bad old days.
There has been a lot of debate about the green card. I am old enough to remember that this was not just about having car insurance. People talk about the common travel area but I remember when it was not a case of one's car being insured but was a question of whether one would be able to bring one's car or lorry back, where one had to have one's vehicle bonded upon leaving the jurisdiction. I am too long in the tooth and I remember what it was like in the bad old days for our economy - I am not referring to the Troubles - and it is time that people come to the realisation in all Houses, be they North, South, east or west, that these islands need to work collaboratively and to take a step back from that ultimate brink.
We should not have spent the last two years talking about "no deal preparation", or NDP, but rather about the NDP that is the national development plan and how it will have an impact in this country into the future. While we may not have wasted two and a half years, we certainly have not been debating the issues that the people believe are more important than the Brexit debates we have had. These debates have not got down into the nitty-gritty involved, and probably will not until we reach the cliff edge.
We did not seek this legislation but we have to enact it. Like other speakers I congratulate all the Members of this House who made a solid contribution to the united stance the Irish Government took on this issue. We did not waver once or change tack. We stuck to the issue; there was no alternative. Once alternatives are created one begins to lose ground, and once that ground is lost, more concessions are inevitable, until one is in a place one does not want to be. I congratulate the Taoiseach, the Tánaiste, the Ministers of State and the officials involved, as well as the leaders and members of the opposition parties.
This is a sad event, which cannot improve the situation that prevailed heretofore. Deputy Boyd Barrett referred to a failure of politics. Politics has not failed. People get impatient with it, as they get impatient with democracy. This is not the first time this has happened. For 30 years we heard that politics had failed in Northern Ireland. It failed because it had been pushed to one side and different methods were introduced that were not beneficial to the country, democracy or peace. The same happens elsewhere in the world. This is not the first time we have seen swings to the hard right or the hard left. Both sides have come together in common cause, and it did not benefit the world at large either. Whenever that happens, there is always a cause. In the past it has happened as a result of economic unrest, when people wish to point the finger of blame at someone. The most recent occasion on which that happened was the Second World War. Free-thinking, decent, honest and constructive people turned around and pointed the finger of blame at their neighbours, blamed them for what was happening and decided to punish them. It was done in such a dramatic way that the world will never forget it. We should always remember that 70 million people were annihilated as a result of those antics. When it was all over, from the ashes the European leaders of the time vowed that it would never happen again, and set about creating the European Coal and Steel Community, the European Economic Community, and the European Union. Those leaders did well; to do so in that environment at that particular time took a great deal of hope and perseverance and required a great deal of confidence in the future. Those leaders are well known, and we remember them. They put in place the foundations for modern Europe, and did it extremely well.
New people have come along and said that they disagree with how things are. They have decided they want to go back to the old days. I asked recently what old days they are talking about. I presume they are referring to the first half of the 20th century, which was marked by those infamous wars. Is that something we should aspire to return to? The common cause that people reached at that time was to kill one another. I do not think we should go there, I do not think we will and I sincerely hope we do not.
Nigel Farage has been a major architect of this debate since the very beginning. He sneaked in after the Battle of Agincourt, and I believe he changed sides. He has been working steadily since. Britain, Europe and Ireland have inherited something from that man that is not in any way constructive or useful. We certainly cannot build the future of Europe on it, or the future of Ireland.
Like the Tánaiste I am strongly of the opinion that now is not the time to have a debate about a united Ireland. Deputy Boyd Barrett touched on this briefly. We cannot coerce people to unite. An island cannot be coerced into uniting.
If the people themselves, of their own volition, as it says in the Good Friday Agreement, come to that conclusion we must strongly support it. We all will. I understand where Deputy Cullinane is coming from, but I do not agree with it.
For the past 20 years we had, in effect, a people who were united in spirit and in common cause. The people North and South on this island could travel any way they wanted - across the water or North and South. They could do business any way they wanted and did so to the benefit of the island North and South in a way that has never been known to happen since 1798, which was about the last time that happened.
We should have learned a great lesson from that. As my colleague across the way would say, there is a time when one has to hold it and fold it. Sometimes one has to walk away, but in this case we are not going to run.
From the experiences of our history and the dialogue that has been ongoing for the past two years, along with the work carried out by the Ministers and by the leaders of the Opposition, a new foundation has been laid. In a difficult time a recognition has been set down among the people of this island North and South that dialogue is better than confrontation. I have no doubt it will eventually prevail with the co-operation, help, support and confidence of all the people of this island. That is particularly important to the business sector, North and South. Over recent years the two parts of this island have become to a great extent dependent on each other. Any intervention in that area will not make it easy for populations on both sides. It will not make it easy for the economic performance on either side.
I hope that the British people will come to the conclusion that what we had for the past 60 years or so in terms of European unity with peace and harmony is a hell of a lot better than anything that will be achieved otherwise. I hope they will have an opportunity to vote again. The previous referendum was non-binding, but the degree to which the result has been adhered to in the meantime, one would think it was binding. However, it was a non-binding referendum, as referendums there are.
Obviously the politicians who supported that position at the time - I will not go back to my friend, Nigel Farage, again - do not want to have a second referendum because unless they got the same decision a second time, they will look very poor in light of things that are unfolding. If a second referendum is held, I see nothing that would convince me other than that the decision would be reversed. Many business people, investors and people whose jobs are in jeopardy are now talking in a way they did not previously. They have information they did not have at the time of the original referendum. I hope that happens and the European people can travel in the same direction in the firm belief that nothing strange will happen to upset the harmony that has been developed in very difficult circumstances over a long number of years.
There was virtually a 30-year war on this island. The Good Friday Agreement brought that to a conclusion. It took a considerable amount of time and effort on the part of many people to come to the conclusion that was then signed up to by the international community, the British Government, the United States, the EU, the UN and every other body of consequence on the globe. To walk away from something like that and to pretend it never happened would be a colossal mistake.
Before calling on the Minister of State, Deputy McEntee, to make her closing remarks, I wish to respond very briefly to the points made by Deputies Cullinane and Boyd Barrett in respect of the amendments that were ruled out of order. The amendments that were ruled out - in excess of 30 - were considered carefully, as all amendments to all legislation are considered in the context of the constraints placed on us by the Constitution and the Standing Orders of this House. They were considered at the highest level of this organisation. If either of the Deputies continues to have a concern about any one of those amendments, I ask him to write to me setting out those concerns pointing out where we were wrong in ruling them out of order.
I am grateful for the opportunity to comment on the Final Stage of the Bill. Unfortunately, I was not here last week when it was introduced and went through Second Stage. So much of what we have achieved in these negotiations has been due to the absolute support of our member state colleagues in the European Union. I therefore did not think it was appropriate to cancel my visit to meet foreign and European ministers in Lithuania and Latvia. I reassure colleagues that support from the Nordic, Baltic and all member states is as strong as it was two and a half years ago when this process started.
I regret that we are here discussing this legislation. In saying that, I thank all the Deputies, as have the Tánaiste and many others, for their support and co-operation. We have clearly shown as a Parliament that while we might have our political differences in outlooks and opinions, we can come together to represent the people on this island and ensure that their rights, businesses and livelihoods and the peace on this island can be and will be protected. We have shown that clearly through the passage of this legislation as quickly as we have. I have no doubt it will go through the Seanad just as quickly.
I thank the officials from our Department and all the Departments. This has entailed a colossal amount of work. Despite comments that we did not introduce this and work on it as soon as we should have, this has been a body of work in the making for more than two years, involving a considerable amount of outreach in our Department engaging with State agencies and also with individuals and sectors across the board. A large amount of work has gone into this for some time. It would have been premature to introduce it before this stage because our primary focus has always been to ensure we had an orderly withdrawal of the UK from the European Union, and that remains our focus.
As the Tánaiste rightly said when introducing this legislation, we hope it will sit on the shelf and never need to be used. Irrespective of that, irrespective of the outcome of the next couple of weeks, and irrespective of whether we have a deal, which we hope we will, Brexit means change. The UK will become a third country in terms of trade, customs or otherwise. It is incumbent on everybody to look at how it how it might impact on their lives, their businesses, their livelihoods and their industries. For those who have not engaged at this stage I again reassure them that the support, information and funding are available and the Government will continue to work with them to ensure they are impacted as little as possible irrespective of the outcome.
I thank the Opposition parties in particular for their co-operation and assistance, not just in the past couple of days but since early January when we carried out briefings on the heads of the Bill. People have been very receptive and have shown willingness at an early stage to work with me, the Minister of State, Deputy McEntee, and others to get this done on time. I am sure we will have similar co-operation next week.
People will rightly ask the hard questions and seek explanations as to why we are taking the approach we are. All parties regardless of background or political perspective have recognised that this is an important safety net for Irish people in the context of something we do not expect will happen but for which we must prepare just in case.
We will know much more this time next week. There will be a meaningful vote in the British House of Commons on Tuesday. It is too early to be in any way optimistic yet. The negotiations have been difficult and have not gone especially well in Brussels yet, but I suspect there will be pretty intensive negotiations through the weekend - I certainly hope so - to try to put together a package that can be persuasive in Westminster but at the same time not undermine the core meaning of the withdrawal agreement, particularly from an Irish perspective given the Irish protocol and the backstop. The Government's and the EU's perspective on that is very clear on the parameters within which reassurance and clarification can be provided.
I also thank the Ceann Comhairle and his team. We have put everybody under pressure with the pace at which this legislation needs to move through the House.
Most importantly, I want to thank our own team, and Ms. Alma Ní Choigligh and Ms. Aingeal O'Donoghue in particular, who have led on this. They have co-ordinated with many other Departments, which also have been hugely helpful. I think the political system in this House, and indeed in the Seanad, has shown that when there is an issue of national import, we can come together to get something substantive done. That is what we are doing this week and will do again next week.
Deputy Howlin mentioned the term that is used in Brussels now when they want to hunker down and keep the media and others out of this conversation, which is that they go into a tunnel. I believe we probably will see a version of a tunnel in the next few days. I think that is necessary, incidentally, as this issue will not be resolved through a debate in the media. This issue will be resolved by professional negotiating teams finding a sensible way forward that both sides can live with, that does not undermine the deal that is already on the table but which at the same time provides reassurance and clarification for which many in Westminster are looking. I hope that can be done but it is too early to be optimistic. The message I would give to those outside of this House is that the Government is preparing, and is in fact accelerating, its preparations for a no-deal, just in case. Everybody else should be doing the same.
The assumption that all will be okay next week is not an assumption that I believe should be a basis for moving away from trying to be as prepared as we can be over the next 23 days, should the unthinkable happen and Britain crash out without a deal. I think it is unlikely that this will happen but it is possible. While it is possible, we need to be alert to the preparations that are needed to protect Irish people and Irish businesses in that context. I thank everybody and I look forward to being in the Seanad next week to finish the job of finalising the passage of this legislation through the Houses.