Seán Fleming (Laois-Offaly, Fianna Fail)
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I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: Proposal for a Council Decision on the position to be taken on behalf of the European Union in the Partnership Council established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the interim period referred to in Article 552(11) of that Agreement during which the United Kingdom may derogate from the obligation to delete Passenger Name Record data of passengers after their departure from the United Kingdom, a copy of which was laid before Dáil Éireann on 21st November, 2022.

I am speaking today on behalf of the Minister for Justice on a motion referring to a draft proposal by the Council of the European Union to facilitate continued exchange of passenger name records, PNR, data under the EU-UK Trade and Cooperation Agreement, TCA, with the United Kingdom. PNR data is information provided by passengers during the reservation and booking of tickets and when checking in on flights. The content of PNR data varies depending on the information given by the passenger and may include, for example, dates of travel, travel itinerary and contact details such as address and phone number.

The exchange of this information is to assist in the prevention, detection, investigation and prosecution of terrorist offences and serious crime. The exchange of these data is an essential tool for law enforcement, including countering terrorist threats across the EU and, of course, is of particular value to law enforcement co-operation between Ireland and the UK.

Deputies will be aware that if Ireland wishes to take part in an EU measure with a legal basis that falls under Title 5 of the Treaty on the Functioning of the European Union, TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required. As the Council intends to adopt this measure by 19 December 2022 at the latest, it is therefore necessary to secure Oireachtas approval as a matter of urgency and, in light of this, I would ask Deputies to pass this motion without a vote.

The proposal provides for an extension of the special arrangements currently in place in the TCA, to allow the continued sharing of PNR data with the UK, which in the absence of a decision to extend, will expire at the end of this year on 31 December 2022. The extension will allow the existing special arrangements to continue to run until the end of 2023. This measure is purely technical and makes no policy changes in this area.

As the extension needs to be in place by the end of the year, the latest it can be adopted at an EU Council is 19 December 2022. Regrettably, this has put us under pressure to complete the opt-in process as soon as possible. However, as I mentioned, I can assure the Deputies that the measure is purely technical in nature and does not introduce or amend any policy matters. In essence, it provides for a continuation of the existing arrangements until the end of 2023.

The Government sincerely regrets the lack of time given to the Houses of the Oireachtas to consider this matter, which was not within the Government's control. Unfortunately, the European Commission was unable to produce the draft proposal earlier than 21 November due to the requirement for internal consultations. I trust that Deputies understand the urgency and necessity of passing this motion today.

The TCA between the EU and the UK includes arrangements for exchanges of passenger name records and the protection of such data shared by EU airline carriers to the UK. An essential precondition for the arrangements, as set out in the TCA, is that the UK applies data protection standards essentially equivalent to those set out in the EU's standards and complies with specific additional data protection standards.

While EU member states may retain PNR data for a period of five years, the TCA imposes a requirement on the UK to delete PNR data after one year. This is due to the change in the UK's status from EU member state to a third country. The UK's PNR data processing systems were originally configured to comply with the requirements of EU law. Since its departure from the EU, substantial progress has been made on the UK's system. However, further work is required to complete the necessary technical adjustments required to guarantee compliance with the requirements of the TCA.

In the meantime, the UK continues to operate additional interim-period safeguards manually. This includes operating a manual risk assessment process, and manually logging and putting beyond use PNR data that should be considered as deleted. The UK Information Commissioner's Office has confirmed that it is satisfied that the safeguards are in place.

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

Without the extension to the derogation period, PNR data would cease to be shared between the EU and the UK from midnight on 31 December 2022. As Deputies will understand, if this were to happen it could potentially have serious repercussions in the fight against terrorism, and could impact on the investigation and prosecution of criminal cases.

As mentioned earlier, the proposal presented by the Commission uses the legal basis of Article 87(2)(a), making this a measure under Title 5 of the TFEU. Thus Protocol 21 applies and Oireachtas approval under Article 29.4.7° of the Constitution is required for Ireland to opt into the measure. The views of the Office of the Attorney General were sought and the legal advice received has confirmed that Oireachtas approval under Article 29.4.7° of the Constitution is required.

The effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority and Ireland will play our full part in that. Ireland's role in the EU has changed in recent times and will continue to evolve in the coming years. Full implementation of the TCA is necessary for us to not only play our part as an EU member state but also to ensure that our post-Brexit relationship with the UK continues to grow and develop. Part of this relationship is ensuring that the safety and security of our citizens is protected and this measure is necessary to do that.

I trust that the House can support the exercise of Ireland's opt-in in respect of this measure. Ongoing exchange of PNR information with the UK is entirely within Ireland's strategic interest. I thank Deputies for their consideration of this important matter.

Ruairi Ó Murchú (Louth, Sinn Fein)
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I accept that the Government was not responsible for the timeline. We obviously support this absolutely necessary proposal on PNR data. Once more we are dealing with the outworkings of the TCA between Britain and the European Union and the outworkings of what has been a disastrous Brexit. I am hardly the first person to say that on the floor of this Chamber.

Exercising our parliamentary sovereignty is key part of our powers here and surrendering in any area of co-operation, even one like this which we all support, should be something we do reluctantly. A debate like this is still very welcome. I would like to debate this motion in the context of recent developments with the collapse of the so-called European super-cartel.

Many of these matters are subject to ongoing court proceedings and, therefore, we cannot deal with specifics here but myself and my colleagues have argued that criminals are increasingly co-operating on a cross-border and international basis, with a significant level of sophistication we have not seen previously. Law enforcement, accordingly, needs to become just as sophisticated. Whatever tools and powers are necessary in this regard, we will support.

This appears to be very much what is happening now following a number of key arrests across Europe, and the co-operation of officials in the US as well. It seemed one particular group of organisations were thumbing their nose at the law to a degree that they were biting off more than they could chew. That is no longer the case and action has been taken. Like many of these cases, when we are dealing with the issue of drug dealing, a significant part of what needs to be done is to ensure international co-operation in criminal justice matters, and all the sophisticated tools that are necessary. A wider issue needs to be dealt with and many Members are supportive of the citizens' assembly on drugs use and would like that to be in place as quickly as possible.

We need to be mindful, however, of the potential effects of a power vacuum emerging within the market for illicit drugs. We have all seen that wherever an entity, organisation or gang has been taken out of operation, it has been replaced very quickly. As many people who work in addiction services have said previously, they have yet to have an addict come in to talk about the difficulty they have had in being able to obtain cocaine. That is the reality of the world we live in and is why the citizens' assembly is vital. A power vacuum could emerge within that market and we are all aware that there have been a number of shootings this week, which has raised concerns. The fear always is that further violence is on the way. I hope that the Minister for Justice is liaising with the Garda Commissioner on this.

We also need to take time to assess the success of policies targeting organised crime to ensure a new generation does not emerge. In dealing with the issue of organised crime, it is difficult not to deal with the wider issues relating to drug addiction, embedded poverty and all the multi-agency supports that we have failed to put in place in previous times, and that we are paying for now. We have to set the correct framework in train so that we can avoid some of this into the future. There will always be a need to ensure that we have those necessary tools from a criminal justice point of view.

This is especially the case in respect of Britain, given the unique position we are in. The disastrous Tory Brexit must not be allowed to create a scenario where Britain becomes a safe haven for organised crime. Myself and other colleagues have pointed out before that Britain was among the most frequent users of these databases. However, this is just one more consequence the British Government has had to deal with resulting from its absolutely disastrous actions. It is right and proper that co-operation continues ahead of any final status agreement.

The motion amounts to a derogation from certain requirements and a sunset clause will kick in at the end of 2023. True to form, throughout the Brexit process we will have to see if the British Government will have its own arrangements in place by then. I do not believe that anyone would accept to wager a great deal of money on such a bet.

Finally, we need to be mindful of civil liberties concerns. The information contained in these databases is expansive and sensitive. There are a number of issues with the operation of bodies such as Frontex, Europol, and Eurodoc. That is not to say that co-operation is not the right thing to do but it must be ensured that we have correct level of accountability and due diligence because this must be a part of any criminal justice initiative. We support this opt-in but, as I said earlier, this is us dealing with extra homework on the basis of the disastrous Brexit.

For the day that is in it, I will also put on the record that as much as we have had better mood music with Rishi Sunak in place, we have not exactly seen the sort of movement we would like to see in the sorting out of the wider issue of the Irish protocol. The British Government is still threatening on some level with the protocol Bill, the Nationality and Borders Act and the disastrous amnesty legislation, which is very much about Britain not having to deal with any questions in respect of its role in the North and, basically, its dirty war in Ireland.

All of us support any streamlining that is required in respect of the protocol. Everybody wants sensible solutions. The European Commission, and Vice-President Maroš Šefčovič, have bent over backwards. I have no doubt that that will be done into the future. Hopefully, the British Government will be in a place where it wants to do a deal.

We may have a change in respect of the Taoiseach's office in the near future, but I would also like to think that we will have a change in the very near future in the moves we need to take. Whether people think this is a good idea, the constitutional question is out in the open at this point in time. We are 100 years on from a lost opportunity. We are all remembering events that happened during a disastrous Civil War. Liam, Ruairí, Dick and Joe were executed 100 years ago today. There was a great amount of hurt and pain and a failure across what had been the leadership of the republican movement. We now have an opportunity to build something better and to build a new Ireland. First, we need to ensure that the Irish protocol is bedded down. Second, we also need to ensure that the DUP is left in no doubt that there is only one road in play, which is to deliver an Executive, get a working Assembly up and running and to deal with the politics of the cost-of-living crisis and the many other crises that we are also dealing with here. The Government needs to establish a citizens' assembly or some sort of forum, which can be as expansive as necessary, so that we can have the conversations as to what this new Ireland will look like. That is a vital piece of work that needs to be done.

I call it a citizens' assembly but I have no major difficulty if we expand the shared island dialogue into something that it is not at the minute to deal with those particular issues and, beyond that, do all of those necessary preparatory pieces in planning for Irish unity so that we do not have a disastrous Brexit-type referendum.

I may have gone off on a tangent, but I believe the Minister of State may not disagree with everything I have said, and that he might be quite agreeable with quite a lot of it. Hopefully, we will see those changes in the near future.

We support the motion but, unfortunately, we are dealing with just one of the many outworkings of what has been a disastrous Brexit.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I thank the Deputy for his contribution, to which I have carefully listened, particularly his comments on the motion, the broader issue and the historical context. I am one of those people who understands where we have come from in the past 100 years but I am equally as interested in the future generation. Any time I speak about these issues, I like to talk about where we are and how we want to make Ireland a better place for the future generations, notwithstanding the fact that every one of our families had a deep involvement in the issues that happened 100 years ago.

As I mentioned in my opening remarks, this measure is essential to ensure continued close law enforcement co-operation between the EU and the UK. It is vital that we meet the highest standards possible when it comes to the investigation and prosecution of crimes and the ongoing transferring of PNR data helps to ensure that. This extension of the special arrangements currently in place in the TCA will allow the continued sharing of PNR data with the UK, which, in the absence of a decision to extend, will expire at the end of this year. The extension will run until the end of 2023.

It is expected that by then that the UK will have finalised - I take the Deputy's word of caution and we will have to wait and see on that point - all technical adjustments necessary to enable its PNR processing systems to delete PNR data in accordance with Article 552(4) of the TCA.

I acknowledge the Deputy's comment on the need to deal with criminal justice matters at an EU level. Organised crime does not stop at our borders and it is important that we have these measures in place right across the EU and with the assistance of the UK.

The Deputy also mentioned the citizens' assembly on drug use and the fact that citizens' rights must be protected in all of these measures as well. I concur with him on that. To a great extent, in the first instance the drugs issue is a health issue, but that can ultimately lead to criminal justice issues. However, at its core, it is a health issue and we must all look at it in that format. The continuation of these special arrangements, which will facilitate ongoing exchange of PNR information with the UK, is key to co-operation between the EU and the UK on law enforcement. I commend this motion to the House.Once again, on behalf of the Minister for Justice, I thank the Deputy for his contribution.