Wednesday, 13 March 2019
Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019: Committee and Remaining Stages
I move amendment No. 2:
In page 9, between lines 14 and 15, to insert the following:“(j) Section 99shall come into operation on such day or days as the Minister for Agriculture, Food, and the Marine may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.”.
I will address the amendment in the absence of my colleague, Senator Conway-Walsh, who leads on this issue. As I indicated yesterday, we will work expeditiously with the Minister of State and co-operate with colleagues. We have a number of amendments tabled on the Bill. Some were deemed out of order by the Cathaoirleach and we are disappointed in that regard. That has been expressed by the group leader to the Cathaoirleach and the House. Amendment No. 2 relates to reciprocal arrangements for agriculture in the North and South, which is of great importance at the moment and critical to the economy and welfare of the island in its entirety. We know the significance of the agricultural industry and sector. That is why we will push anything that goes to harmonise further and mitigates against the dangers of Brexit as strongly as we can.
I thank Senator Ó Donnghaile for speaking and Senator Conway-Walsh for the amendment.We will, of course, co-operate with all Senators. Our priority and objective throughout the negotiations have been to try to ensure the status quowill continue. Everything we do is to that effect. That applies to industry and other sectors, in particular, the one that is most likely to be impacted on more than any other in the North and the South - agriculture. Any reciprocal arrangement in that sector between this state and Northern Ireland stems from the Good Friday Agreement and EU law. The UK Government has always indicated that it will try and will honour its obligations under the Good Friday Agreement. We expect it to do so, irrespective of whether there is a deal, and the arrangements under the agreement to continue post Brexit. However, if we consider the arrangements facilitated by EU law, in as much as possible and to the greatest extent possible, they will continue post Brexit. In the event that Northern Ireland changes its law post Brexit, it might not be necessary or possible to continue the existing arrangements, particularly if the new arrangements contravene EU law. In that instance, neither the Tánaiste and Minister for Foreign Affairs and Trade nor any other Minister would be able to introduce orders that would contravene EU law or breach our obligations.
In the circumstances the proposed amendments should be withdrawn on the basis that accepting them could serve to confuse or mislead people outside the House and make them believe the Government would be able to act outside EU law. If and when the United Kingdom leaves the European Union, the Department of Foreign Affairs and Trade will try to work closely with its counterpart in the United Kingdom, but the best and only way we see to address all of these concerns is by ratifying the withdrawal agreement to ensure an orderly withdrawal and that we will have the closest possible relationship, similar to the one we now have.
I appreciate what the Minister of State is saying, but the intention of the amendments does not run contrary to anything she said. Our position is that they would enhance the legislation. As a result, we may consider pushing this amendment to a vote, given its significance. I will defer to our group leader on that matter.
Ivana Bacik, Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Gerard Craughwell, Mark Daly, Frank Feighan, Maura Hopkins, Anthony Lawlor, Terry Leyden, Ian Marshall, Michael McDowell, Gabrielle McFadden, Michelle Mulherin, Rónán Mullen, Jennifer Murnane O'Connor, Gerald Nash, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, Pádraig Ó Céidigh, James Reilly, Neale Richmond, Keith Swanick, Diarmuid Wilson.
I move amendment No. 11:
In page 12, between lines 22 and 23, to insert the following:"Review of the effectiveness of health services
75C.The Minister shall publish a review into the effectiveness of the health services covered under section 75A and 75B of this Act one year after the United Kingdom has left the European Union.".
I second the amendment. This is a straightforward amendment. Regardless of the sort of Brexit that happens - we are coming close to the end - services and arrangements will continue to be delivered in the aftermath of Brexit. This Bill will give the Ministers for Health and Finance the power to continue with whatever services they choose. We hope that means all cross-Border services will be continued, but the nature of this legislation means such decisions will be in the hands of the Ministers and indeed the hands of the Ministers of State, Deputies Jim Daly and Helen McEntee. Britain has to offer reciprocal arrangements for people in England, Scotland and Wales. We do not yet know whether that will be delivered on. The continued smooth operation of cross-Border health services must be an integral part of our approach to this matter. It is important that we have proper evidence and facts on which to base our assessment of the delivery of services. If we do not know what is happening and how effective it is, how can we decide to continue doing what we are doing or to make changes as necessary? With that in mind, I am seeking "a review into the effectiveness of the health services covered under [this legislation] one year after the United Kingdom has left the European Union". This would benefit policymakers, health services and medical and healthcare professionals.
The arrangements provided for in this Bill are contingency steps that are being taken to minimise any disruption to the current healthcare arrangements between Ireland and the UK. The effect of amendment No. 11 would be to impose an obligation on the Minister to publish "a review into the effectiveness of the health services .... one year after the United Kingdom has left the European Union". It is unclear how "the effectiveness of the health services" could be determined. With regard to the review that has been proposed, I can confirm that the Minister would be willing to attend a meeting of the health committee, or to arrange for the relevant officials to attend such a meeting, to report as necessary on the progress being made on the matters referred to by the Senator. The effect of amendment No. 12 would be impose an obligation on the Minister. Are we dealing with this amendment now, or should I confine my remarks to amendment No. 11?
Okay. Amendment No. 12 would impose an obligation on the Minister to "report to the Oireachtas within one month of the passing of this Act on .... existing Service Level Agreements, Memorandums of Understanding, and partnerships; provisions made to ensure that all Irish citizens have access to a European Health Insurance Card and the benefits which that entails; provisions made to ensure the recognition of professional qualifications in respect of medical professionals and healthcare workers from the United Kingdom where education and training standards are equivalent". The Bill does not contain provisions relating to future recognition of health professional qualifications. However, given its critical importance to the health sector, a number of measures are being advanced to address this. In particular, the UK recently published its draft European qualifications. This UK legislation will enable Irish qualifications to be recognised in the UK. Each of the Irish health professional regulators has third-country recognition routes which apply to qualifications obtained in countries other than Ireland or any other EEA member state. These third-country recognition routes have been considered with the objective of ensuring efficient routes for the recognition of UK qualifications, while ensuring this is done in an objective and non-discriminatory way. The Irish regulators are satisfied that they can continue to recognise UK qualifications within approximately the same timeframes and with approximately the same applications fees, but under a different legal base. A separate Bill - the Regulated Professions (Health and Social Care) (Amendment) Bill 2019, which is included in the Brexit legislative programme - will provide for the use by the Irish regulators of disciplinary information received from third countries, including the UK and EEA member states.
With regard to the maintenance of service level agreements, the Irish and UK Governments are fully committed to continuing existing cross-Border service arrangements. Cross-Border health services such as the cardiology and cancer treatments in Derry and the paediatric cardiology and associated maternity services in Dublin are managed by service level agreements and do not require legislative changes in the event of a no-deal Brexit. Even in a scenario in which the UK leaves the EU without a deal, services like these can be expected to continue. It is important to note that these services are aimed at addressing the particular needs of groups of patients in facilitating geographical access to services and achieving sufficient volumes of activity in the interests of patient safety. The Government is aware and conscious of the concerns of Irish citizens living in Northern Ireland who are likely to lose their entitlement to the European health insurance card, EHIC, after the UK withdraws form the EU. Under the relevant EU regulations, an individual applies for an EHIC in his or her competent member state. The competent member state must state where that person works, makes a social insurance contribution or receives a contributory pension. We are exploring whether it may be possible to establish a route by which the EHIC benefit could be maintained for people living in Northern Ireland. However, this is not necessarily a straightforward matter. The regulation that gives eligibility for an EHIC is an EU regulation. An alternative legal mechanism to enable people living in Northern Ireland to have an EHIC would need to be developed. I expect that it would likely to need the agreement of other member states. The other amendments in this group - Nos. 12 to 14, inclusive - are technical amendments, which would be needed to take account of the renumbering required on foot of amendments Nos. 11 and 12. For the reasons I have outlined, and taking account of the urgent emergency nature of this legislation and the extremely limited timeframe for its enactment, I must decline to accept the amendments in this group.
I would like to speak to amendment No. 12 now. This is another straightforward amendment. It seeks to require the Minister to produce reports on the operating costs of cross-Border service level agreements, memorandums of understanding and partnerships. There are at least 130 service level agreements.
Great. We have worked hard over the year to set these agreements, memorandums and partnerships in motion to avoid duplication of services on this small island. Amendment No. 12 refers to the "European Health Insurance Card" and the "recognition of professional qualifications", both of which are important. I suppose I am speaking for nursing staff who find it difficult to know where they will be in this scenario. The NHS was set up and underpinned by hundreds of thousands of Irish nurses. We are trying to attract Irish nurses and indigenous English-trained nurses to come to Ireland. The "Bring them Home" campaign did not prove to be attractive. The barriers that will go up because of the red tape associated with Brexit will make it much less attractive to try to get nurses back to their country of origin. This amendment refers to the EHIC, which is known as the E11 card. Irish citizens in the North and in Britain are concerned about this issue. The Taoiseach and others have said that Irish citizens in the North will never again be left behind by an Irish Government. In the interests of such citizens, I ask that the situation with regard to the E11 card be assessed in the aftermath of Brexit. We need to know what impact Brexit will have on services in its aftermath. I hope the Minister of State will give a commitment to completing a review. I will not push amendments Nos. 11 or 12. I take the Minister of State at his word when he says that a review will take place within the confines of the health committee of these Houses. I appreciate that. I will withdraw amendments Nos. 11 and 12. I will also withdraw amendments Nos. 13 and 14, which are smaller technical amendments.
I thank the Senator. I appreciate the spirit in which she is co-operating with us on this emergency legislation, which we want to get through. She has made some valid points. I think I have addressed them. Although they are relevant, this legislation involves maintaining the status quo. I thank the Senator. We appreciate her co-operation.
I move amendment No. 12:
In page 12, between lines 22 and 23, to insert the following:"Report on health service arrangements
75C.The Minister for Health shall report to the Oireachtas within one month of the passing of this Act on health service arrangements agreed between Ireland and the north of Ireland under currently existing Service Level Agreements, Memorandums of Understanding, and partnerships; provisions made to ensure that all Irish citizens have access to a European Health Insurance Card and the benefits which that entails; provisions made to ensure the recognition of professional qualifications in respect of medical professionals and healthcare workers from the United Kingdom where education and training standards are equivalent.”.
I move amendment No. 15:
In page 17, after line 37, to insert the following:“Review of Brexit Business Supports
9.(1) The Minister for Business, Enterprise and Innovation may undertake a review of the current Brexit business supports, including but not limited to:(a) the Brexit Loan Scheme;(2) This review will include, but not be limited to; examining why there has been such a low uptake of these Brexit business supports to date, identify barriers for businesses accessing these supports and offer solutions on how to make it easier for businesses to benefit from these supports.
(b) the Enterprise Ireland Market Discovery Fund;
(c) the Enterprise Ireland Be Prepared Grant;
(d) the Enterprise Ireland Brexit Act On Initiative;
(e) the Enterprise Ireland Agile Innovation Fund; and
(f) the InterTradeIreland Brexit Start to Plan Voucher schemes.
(3) The Minister will send the findings of this review to the Oireachtas Joint Committee on Business, Enterprise and Innovation within two months of the enactment of this Act.”.
These amendments are to encourage the State to examine using the treaty exceptions for state aid to allow for more investment in certain sectors and industries where necessary. It means arguing for the globalisation fund to be recalibrated to fight off the shock of Brexit in industries such as the mushroom sector before and not just after those industries are hit. The fiscal rules and their inbuilt austerity logic must be challenged now more than ever. The EU cannot say it will protect Ireland in its words and then tell us that we cannot protect ourselves through these rules. There are other areas such as Structural Funds where we need to make a case for more flexibility, for example, greater co-financing. We should be saying that we need to be pushed to the front of the queue for the EU transport and infrastructure projects. That is what fighting for Ireland would look like. The issue of the green card for motor insurance is probably the most visible and worrying aspect of what life might look like for those living near the Border in a no-deal Brexit situation. Under Article 8(2) of the EU motor insurance directive, the EU can give a waiver to Britain and the North to ensure there is no need for insurance green cards. It did that for other countries, including Serbia in 2011.
The Minister, Deputy Ross, should have been pushing this at EU level. Instead, he washed his hands of it and no arrangement is in place. My colleague, Deputy Munster, was blue in the face questioning him at the Committee on Transport, Tourism and Sport and on the floor of the Dáil and he had very little information on it. He could not tell what interventions he had made with the EU and Britain to ensure that there was an agreement in place ahead of Brexit. This should have been done and dusted by now if he had bothered to do his job. He simply does not understand the sensitivities of the issue for people on the Border, including people going to work every day, farmers accessing their own land, families visiting one another and tourists. Many people will not accept that they will have to carry a green card for these purposes. Others are completely confused as to the situation. On an issue as important as this, the Minister, Deputy Ross, saw fit to abuse and insult a colleague of mine in the other House. That was unacceptable. The Minister, Deputy Ross, needs to do his job. If he still refuses to do so, then this amendment, if agreed to, mandates the Government to ensure that the necessary work is done. Sinn Féin is clear that something concrete needs to be done. It is up to the Minister, Deputy Coveney, to accept our amendment or else explain to the hundreds of thousands of people who will be affected by this why he allowed a Cabinet colleague to sit on his hands and allow a mess like this to happen. It is the Minister's choice.
I am not sure how the review of Brexit business supports ties into the actions of the Minister for Transport, Tourism and Sport in the Dáil. There are a couple of things in amendments Nos. 15 and 28 which are slightly ideological in nature, which was reflected in the tone of Senator Conway-Walsh, but I appreciate where she is coming from and that we ultimately have different approaches to ideology. That is not a bad thing and not a point of disagreement, just one of fact. Subsection (2) of amendment No. 15 refers to "examining why there has been such a low uptake of these Brexit business supports". That is a little unfair and plays down the remarkable work that has been done by State agencies as opposed to the Government, especially Enterprise Ireland, Bord Bia, Bord Iascaigh Mhara, Tourism Ireland and many others, particularly those that have reported the substantial take-up and engagement, especially since December, as we have lurched ever closer to Brexit day.To glibly include that undoes the remarkable work that is being done by our civil servants and State agencies, including the IDA, which I should have mentioned. In respect of amendment No. 28, which provides for a report to the Oireachtas within one month, I think it is very premature. God forbid but if we enter into a crash-out scenario, it will not help to have such a strict timeline for those discussions. They are not easy discussions. In most of the reports on Brexit that Sinn Féin has published heretofore, there have been a couple of very consistent trends. While I commend their consistency, I disagree with them. I refer first and foremost to flexibility on state aid, the call for a Border poll, which is not being discussed in this section, and many others. When we look at EU state aid and financial flexibility within the European Union, timing is everything. Calling for this from the outset, 18 months ago, undermines whatever potential discussions may lay ahead. I refer to potential discussions because I still very much hope that we never have to have them. As with everything in respect of this legislation, I hope we pass it but I truly hope it is never enacted.
I echo Senator Richmond's comments and remind the House of the Minister of State's speech last night, in which she pointed out that €900 million has been made available across various sections to help deal with Brexit and its fallout. There have been numerous meetings and supports put in place for business, as Senator Richmond has said, through the local enterprise offices, LEOs, Enterprise Ireland, the IDA and so on. Our committee had a lot of input from small and medium enterprises, the Small Firms Association, ISME and many others, as well as people from the other side, namely, the employee side and the unions. A lot of work has been done but clearly there always will be more to be done, particularly if we have the misfortune of Britain crashing out, which nobody wants to see. We hope common sense will prevail but we have to be prepared. I believe this Bill is preparing us but nobody is pretending things cannot be looked at subsequently if, for example, there is an issue about low uptake or people's ability to access what is available for them.
I echo the point made by Senator Richmond. The amendment could lose sight of the work that has been done on preparedness for Brexit and the most difficult scenario. While always hoping for the best, all our officials and our Government have been preparing for the worst at all stages. In the context of discussing business preparedness, I pay tribute to my constituency colleague, the Minister, Deputy Humphreys, who has spearheaded preparedness in this area and with her information sessions all over the country to make people Brexit-ready. They have been attended by some 2,500 people. I was at one of them and it was very informative and did a very good job. Enterprise Ireland is to be commended on its input, as are the local enterprise offices. There was particular awareness on the part of the Minister, Deputy Humphreys, which was reflected in the organised events, of how precarious things were on the Border and in the Border region, of the degree to which everything was particularly difficult there and that there was a particular need for support. All of this was supported by a large injection of at least €78 million in budget 2019. There has been a real effort across Departments and a very specific effort in the business sphere. I commend the agencies, Enterprise Ireland, the LEOs and my constituency colleague, the Minister, Deputy Humphreys.
I compliment the Tánaiste and Minister for Foreign Affairs and Trade on the job he has done and on keeping his temper in the light of the rather abusive comments from some of his British colleagues. I support this amendment. Nobody is saying that nothing is being done. I have heard the advertisements from the Brexit loan scheme, Enterprise Ireland and so on and they are very good. They are on the radio quite frequently and they do attract attention. However, I understand that the uptake, particularly in small and medium enterprises, is quite slow. I think that is worrying. Maybe it is because people feel there might be expense involved and they cannot cope with this. The proposed section 9(2) states "This review will include, but not be limited to; examining why there has been such a low uptake of these Brexit business supports to date, identify barriers for businesses accessing these supports and offer solutions on how to make it easier". I can only see that as being constructive and I welcome it.
I am not quite sure about the language of the Sinn Féin amendment, which provides that the "Minister for Business, Enterprise and Innovation may undertake a review". It is not "shall". It goes on to provide that this review "will" include such and such. It will not include anything if the Minister decides not to do it, and "may" leaves that open. Perhaps Sinn Féin is considering resubmitting the amendment on Report Stage if it does not pass. It might consider that slight grammatical change.
First, I am very glad to have an opportunity to address this legislation in the Seanad today. I will be back to deal with some of the other sectoral issues in respect of transport and justice issues.
We will have an opportunity to address some of the concerns I have heard outlined, which are linked to these amendments even though they are not in them, in respect of the ability to drive across the Border and so on.
In respect of amendment No. 15, the Minister for Business, Enterprise and Innovation already commissioned a wide-ranging review by the OECD on SME and entrepreneurship policies in March of last year. Part of this extensive review is an examination of the provision of supports for indigenous businesses and how they are assisted by Departments and Government agencies. The report will examine the strategic framework and delivery system for SME and entrepreneurship policy in Ireland. It will be published in the third quarter of this year and we will await its findings and recommendations with interest.
The Brexit loan scheme was launched in 2018 and I am pleased to say there has been a steady stream of applications so far. The Strategic Banking Corporation of Ireland, SBCI, received 462 applications under the scheme up until 22 February, of which 413 have been deemed eligible for a loan under the scheme. Of those, 81 have been progressed to sanction at finance provider level, to a total value of over €17 million. It is important to remember that this is not a loan scheme for businesses to carry on as usual. We are asking businesses to carefully consider what they need to do to successfully address their Brexit challenge through innovating, changing or adapting their business model in some capacity. These responses may include strengthening their product offering, developing new markets to diversify their trade footprint, changing their organisational structure or developing new capabilities. There are some very good examples of companies that are doing that with the support of Enterprise Ireland. Carbery Group is probably the best example of that. A number of weeks ago, a very significant grant was given to it to help it diversify away from an over-reliance on the British market as regards cheese.
Work continues on the longer-term future growth loan scheme, which will help eligible businesses invest strategically in a post-Brexit environment.The scheme was announced as part of the budget 2019 package and is expected to be launched early this year. In 2018, Enterprise Ireland provided approval for funding of €74 million to 535 Brexit-exposed companies across a range of Brexit financial supports. In addition, there were interventions with more than 1,000 companies that have significant exports to the UK. In excess of 1,000 companies have attended Brexit advisory clinics throughout the country, 4,400 companies have completed the Brexit SME score card, while almost 1,000 have completed the Enterprise Ireland online customs insights programme since December. Visits to the Prepare for Brexit website, which contains information on a range of Enterprise Ireland, local enterprise office, LEO, and other agency supports, have increased tenfold over the past 12 weeks. We have reached 90% of the SME audience with our Brexit support communications. As one would expect, as Brexit gets closer, there has been a dramatic increase in the engagement and interest from businesses. As they realise that this is actually happening, they are reaching out for the necessary supports and advice. Of course, we do not know how Brexit is going to happen, but we are doing everything we can to ensure that we do not face the challenges of a no-deal Brexit and instead have a managed, predictable Brexit that moves us into a transition period for the next two to four years and allows time and space for adaptation to the new reality.
The Department of Business, Enterprise and Innovation has also allocated an additional €8 million for Brexit staffing and supports across enterprise and regulatory agencies, including the roll-out of new customs training through the LEOs and Enterprise Ireland, an Enterprise Ireland guide to best practice on managing currency volatility, and an addition €1 million for InterTradeIreland which has used that money very well, particularly for cross-Border companies.
I do not propose to support the amendment because I am not sure it is good legislative practice to include a requirement for a review mechanism when a review is under way. Of course, this House or the Dáil can bring in the Minister at any given time and demand accountability, information on uptake and so on. What is being provided for in this amendment is already happening. Accountability to this House and to the Dáil will be very clear.
On amendment No. 28, reporting on engagement with the EU is a separate matter not related to this very focused and streamlined legislation which is about putting the necessary arrangements in place for maintaining continuity for citizens and businesses in a no-deal Brexit scenario. However, I assure Senators that the Government will continue to make the case for support in a most robust manner at EU level and that Ministers will be regularly updating the Oireachtas on their Department's engagement at EU level in their areas of responsibility. Today, as we speak, a team from the Department of Agriculture, Food and the Marine is meeting its counterparts in the European Commission. They are trying to scope out and plan the appropriate response for a no-deal Brexit scenario. This work is already happening in a very serious way and has been for many weeks now. Of course, Ministers like me have to come into this House and be constantly questioned and tested on our responses but we do not need to add to this legislation a requirement for a reporting mechanism a month after Britain leaves the EU. We will be going way beyond that in terms of accountability for the decisions and actions we are taking and for the funding that may be required to back them up. Supporting vulnerable sectors like agrifood and farming in the context of a no-deal Brexit that may involve tariffs will require a very significant amount of money.
I thank the Minister for his reply but I am a little concerned because he said that an OECD report was commissioned last March, which is a year ago. It will not be published until the third quarter or the autumn of this year. That is a long time, especially in an emergency situation. The report will take more than a year and a half but the Sinn Féin amendment refers to a report within two months of the enactment of this legislation. One presumes that this legislation will pass in the next few days, so that is very much sooner than the OECD report. The OECD is an outside body and an Irish body would have a more nuanced approach to this. I am happy to support the amendment and note that it is part of a suite of amendments, including the final one, which call for reports from a series of Ministers, if not the whole Government. I support this amendment.
Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Martin Conway, Gerard Craughwell, Frank Feighan, Joan Freeman, Maura Hopkins, Anthony Lawlor, Ian Marshall, Michael McDowell, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, Pádraig Ó Céidigh, Brian Ó Domhnaill, James Reilly, Neale Richmond, Keith Swanick, Diarmuid Wilson.
I move amendment No. 16:
In page 19, between lines 4 and 5, to insert the following:
“Amendment of Schedule 1A to Electricity Regulation Act 1999
10. Schedule 1A to the Electricity Regulation Act 1999 is amended by the insertion of the following new paragraph after paragraph 17:“18. The SEM Committee will be cognisant of ensuring regulatory alignment to protect the single electricity market and will report to the Minister on actions taken with relevant bodies in other jurisdictions and aim to maintain the single electricity market.”.”.
The amendment relates to the single electricity market, which is the only truly all-island thing mentioned in the Bill. The single electricity market, under the amended Electricity Regulation Act 1999, has demonstrated the direct benefits of an all-island economy., which is why it must be maintained post Brexit if we are to continue to benefit householders, businesses and the environment, North and South. I thank Deputy Stanley and, in particular, Martina Anderson MEP, who have done much work on the matter. As we are aware, Martina Anderson, who has been an MEP since 2012, will more than likely no longer be because, unfortunately, the two seats in the North will be retained in the so-called Twenty-six Counties, that is, the South, even though legal advice has shown that it would be possible and better if they were to remain in the Six Counties to allow the people of those areas be represented, but sin scéal eile.
The amendment seeks to amend the Electricity Regulation Act 1999. The all-island body, which has representatives from the regulator in Belfast and the regulator in Dublin, oversees the functioning of an all-island electricity market, which has been in place for more than a decade. The amendment will provide that, in the event of a hard Brexit, the single electricity market committee, whose members are appointed by the Minister, will address new regulatory circumstances, and that the committee will attempt to ensure regulatory alignment on the island. The new market rules for the single electricity market were launched last year and it has been reported that they could cut energy bills for businesses and householders by up to €200 million per year. The amendment is important in ensuring that we will retain the single electricity market and all the benefits it has brought to the people north, south, east and west.
There is a problem with the amendment insofar as it seeks to impose regulations on the North of Ireland, which is outside of our jurisdiction, but I will be advised by the Minister for Communications, Climate Action and Environment in that regard.
The single electricity market is important and the electricity interconnector plays a vital role in feeding electricity back and forth across the Border and keeping industry going. Will the Minister enlighten us as to whether provisions have been made in other legislation to protect the market, given that it does not appear to be protected in the Bill? If the matter is covered somewhere else, that is fine, but otherwise the amendment seems perfectly logical to ensure the consistency of electricity supply on the island.
I thank Senators for raising the issue. There is no doubt that the single electricity market is an important asset, North and South, which allows us to share generation, reducing the need for expensive standby generation in each jurisdiction. It is the only fully integrated single electricity market in the European Union, which to some degree is why we do not need to do anything as there is legislation North and South that establishes it. The regulators have all the powers they need to ensure regulatory alignment and they sit jointly and maintain the fully fledged operation of the market. The sufficient powers are provided for in Part II of the Electricity Regulation Act 1999, in case Senators wish to examine it. The single electricity market is overseen by a committee comprising the regulator in the South and the regulator in the North, which jointly oversee the operation of the market, and it will not be disturbed by the British decision to exit the European Union. It is based on legislation North and South and will not be influenced in any way. It operates as a single market and, therefore, there is no question of cross-Border trading between North and South, although there are no tariffs on electricity in any event. It is a single market and operates as such.
Apart from it not being necessary to provide these powers because the regulators already have them, it would not be in accordance with the independence of regulators if the Oireachtas sought to impose an obligation upon them to report to a Minister. It is an important principle of regulators, overseen by European law, that they are independent of Ministers. The idea that they would be required to report to a Minister would be seen as encroaching on their independence. The Commission for Regulation of Utilities, CRU, reports to the Oireachtas through the Oireachtas Joint Committee on Communications, Climate Action and Environment. If Senators, therefore, at any point wish to cross-examine the CRU on the operation of the single electricity market, it is open to them to call the regulator to the committee, which it will be only too happy to attend. Independence of the regulator from the Minister is an important principle of regulation.
The final reason I do not believe the amendment is appropriate is the one raised by Senator Reilly. The single electricity market was developed under legislation enacted jointly North and South, and its committee has legislation North and South underpinning it. It would not be appropriate for the Oireachtas to seek to bind a committee that has separate legislative underpinning in the North. We have always approached the market by attempting to develop it jointly, but the amendment would be a departure from that important and established approach. I am happy to assure the House that there will be no disruption to the operation of the single electricity market North and South due to the British decision. While there may be disruptions to the market from east to west, that is, on the electricity interconnector, because much of the trade on the interconnector is based on a European platform, there is no fear of any immediate disruption because intra-day trading and security trading can continue. In the longer term, however, if Britain exits, we will have to establish a new basis for the east-west trade.This can be done in the longer term and we are satisfied that, in the short term, trade can continue on the Ireland-UK interconnector without disruption by the British decision. Energy is one of the areas where we have pretty strong security, from a trade point of view, in a hard exit situation. In subsequent sections, we are taking certain reserve powers to make doubly sure.
I am largely satisfied by the Minister's response. My concern was that electricity supply would be directly affected in a crash-out in which Britain left the Single Market and all the rest of the apparatus but it seems he is saying this is a special kind of single market that will not be adversely affected. As he has put that fact on the record, I am satisfied with his response.
This has come from a successful single market established on this island. It takes into account security of supply and there are benefits for the people of Ireland. The Brexiteers were not careful about what they wished for, especially as regards this island but also in respect of their own people in Britain.
I take the Minister's assurances but we cannot be 100% assured of anything. We still do not know where we are and the British do not know either. It is chaotic and we are in uncharted waters. This amendment sought additional security and to pin the issue down a bit more. This emergency legislation is for a crash-out, no-deal Brexit but if that happens, all bets are off.
If the Minister says they are accountable to the Oireachtas and can be called before the committee, I accept that and withdraw the amendment.
I move amendment No. 17:
In page 25, between lines 2 and 3, to insert the following:"(5) That the Minister may establish a specific section within the student support scheme of SUSI to address all potential post Brexit queries from students.".".
This is a simple amendment. We have tabled it because there are 10,000 students from the Republic of Ireland in Britain and 2,426 students from Britain here. Not all of them receive SUSI grants but approximately 1,700 do. There is significant concern over fees, which has been raised with the Minister in committee. There is a lack of understanding as to why we cannot simply give a solid guarantee to students from the North that the fees will continue to be completely aligned with those of the Republic. We are anticipating a large number of queries following Brexit, particularly - God forbid - if there is a no-deal Brexit, and we need to be prepared.
In the past, SUSI has had difficulties in responding to peaks in demand, despite the wonderful staff who work there. Most people would agree there will be a demand related to issues such as eligibility from people studying in Britain and some of the British studying here who receive SUSI support. Rather than walk into another minefield where leads to a crisis in the response to students, it would be prudent, moderate and just good common sense to set up a specific section to deal with it. I hope the Minister will not be a captive of his Department on the issue and will work with us to support the amendment.
As a former academic, I am interested in the amendment. In the old days, Trinity College Dublin attracted many students from the North of Ireland, some of whom received grants. The number has, however, declined considerably in recent years, partly because of the dates for the receipt of applications. The system is a bit of a mess and needs to be looked into. I would like us to continue to encourage students from the North of Ireland to come to southern institutions like Trinity College, and anything that assists in that would be a very good thing. For that reason, I look favourably on the amendment, at least for the moment.
I welcome my fellow Ulsterman, the Minister, Deputy McHugh, to the House. There can hardly be a Minister who is more aware of the awful implications of Brexit than him and anyone from the Border are will have an acute consciousness of the issue and significant concern about it.
I understand what Senator Gavan is trying to achieve and nobody would object to the underlying principle of the amendment. Nobody would object to bringing as many students south as possible, as suggested by Senator Norris.Before I make my substantive contribution I want to make a small point about my experience of SUSI. It is not an issue and I know that Senator Gavan is not suggesting that there is an issue but while we are here it is worth acknowledging the wonderful work of SUSI. The agency is extraordinarily responsive to my office and to constituency queries. I can tell the Minister that I find SUSI to be performing at a very high level. We hope it continues.
I put it to Senator Gavan that fundamentally the apparatus is already in place. SUSI is already in place and working at full capacity. It is considerably resourced. It deals with this kind of scenario on a day-to-day basis with students from Northern Ireland and the UK and it does so very effectively. It is my contention that processes are already there, and I assume the Minister, Deputy McHugh - who will speak for himself quite adequately - will be happy to say that were things to change and were more resources needed, they would be forthcoming. While the objective of the amendment might be good, it has already been achieved and there is no need for a particular amendment to say what is already in place.
I appreciate the opportunity to speak on this issue. Ar dtús, gabhaim buíochas leis na Seanadóirí uilig fá choinne an tseans labhairt leo inniu agus fá choinne an chomhrá, atá de dhíth, faoi thoradh na díospóireachta Brexit a bhí ann inné agus faoin mhéid a tharlóidh amach anseo. Aithním go mbeidh tiomantas i gceist go fóill.
I thank the Senators for the time they have given to this important Bill. I will give Senators some context on the organisational aspects of SUSI. The Senators have been specific in referring to SUSI with regard to the amendment and, as I said in the Dáil, I take the spirit of the amendment very seriously. I want to ensure that while we are still not sure as to what the Brexit outcome will be, there will be equality of access for people, be they living in Bangor, Ballaghaderreen or Bandon. I am aware that all Senators are very conscious of this.
The City of Dublin Education and Training Board, CDETB, was designated as an awarding authority for student grants by way of a ministerial order in May 2012. As such, SUSI is not a corporate entity and it would, therefore, be inappropriate to include a provision in primary legislation that refers to a business unit as opposed to a corporate entity. There is a management framework agreement in place between my Department and the CDETB that defines and forms prescribed rules for the administration of student grants. This agreement also defines the governance structures and functioning mechanisms with a view to ensuring the development, delivery and effective administration of student grants. The service levels agreed are intended to act as a key performance metric as to how the City of Dublin ETB provides these services. These indicators include system availability, functionality and development, communications, the payment process, the appeals process and, more importantly, customer service. In addition, SUSI's staffing model provides a certain degree of flexibility with regard to the recruitment of temporary staff to meet peak demands during the grant processing season. Should the need arise it will be open to SUSI management to reallocate resources to meet its operational needs. This answer's Senator O'Reilly's point about resources. That certainly would not be a question as far as I am concerned. If people want access on a timely basis it should be required, irrespective of being in this or other jurisdictions.
There is already a provision within the Student Support Act 2011 to outsource certain functions by SUSI.In this regard the CDETB has engaged the services of an outsourced provider called Abtran. This company provides a call centre and document management service for SUSI. Should the need arise it is possible to increase the resources provided by this company to meet any potential peak in demand.
It is estimated that SUSI processes some 100,000 applications for SUSI grants and less than 2% of these are from outside the Republic of Ireland. It is also noticeable that as all applicants become more familiar with the SUSI processes it has led to greater efficiencies in its service delivery. This is a tribute not only to greater clarity and communications from SUSI, but also to the valuable role played by careers guidance counsellors in our schools and to the people in this House and the Dáil in 2012 during the time of when the ETB got this service level agreement contract. There were a lot of teething problems and complications but the fact that SUSI is not raised on the floor of the House or in parliamentary questions is testament to the great work it has been doing.
I appreciate that the objective of the amendment is to ensure there are resources in place to deliver a very clear message for all applicants for SUSI supports, and specifically to those seeking to study in the UK, those UK citizens looking to study in Ireland, or students from the North. I agree fully with this. I am particularly conscious that any changes in the area of student finance can bring uncertainty. Clearly, I want to avoid that. My Department will continue to consult with SUSI to ensure that adequate resources are in place to deal effectively with the level of queries that may arise. As I said earlier, the option remains to adjust resources if that is required.
The Government is very committed to clear and precise communications on all aspects of Brexit impacts. The Department of Foreign Affairs and Trade recently updated its content on Brexit and more specifically the common travel area. In addition to using its own social media and communications my Department will be updating material on this site on specific education issues as they arise.
In seeking to assure all Senators I want to communicate very clearly that Irish students will continue to be eligible for SUSI supports while they study in the UK and in the North, and that the Northern Ireland and UK students will continue to be eligible for the SUSI grants while they study in higher education institutions in Ireland.
Since my appointment as Minister my goal has been to protect the valuable and rich co-operation that takes place between education institutions on a North-South and an east-west basis. There are examples of this co-operation at all levels. The north-west strategic partnership, for example, is the Letterkenny Institute of Technology and Donegal ETB working closely with the University of Ulster and the North West Regional College from the North to ensure further and higher education provision are closely aligned with the skills and industrial needs of the region.
In many senses the Border does not figure as these education institutions seek to develop a shared education and skills strategy. On a personal footnote with regard to the Border, on Monday I crossed the Border eight times in one day. It is a very fluid border and if one was to ask me if I knew I was crossing it on those eight times I would not. It was not just because my head was in the phone - while I was in the passenger seat - but it is because we know how fluid the Border is, and we want to keep it that way.
It is important to acknowledge the commitment of all the educators at all levels who have built collaborations across the Border. They deserve commendation and our appreciation. The foundations they built must be protected and strengthened. There has been a shared education ecosystem between Ireland and the United Kingdom since the foundation of the State, and even before that. It is very important that we protect and preserve that collaboration into the future in the interests of our young people and the next generation.
The common travel area will mitigate many of the Brexit impacts within the education sector. This includes the SUSI grants and maintaining the current EU fees system for Northern Irish and UK students. Agreement on these principles between my Department and the Department for Education in the UK, as well as on wider policy issues on other levels of education, has been reached and discussions are now focused on framing these within the memorandum of understanding. This will protect much of the valuable and rich co-operation that takes place in education on a North-South and an east-west basis.
The Minister of State with responsibility for higher education, Deputy Mitchell O'Connor, and I both view Part 5 of the Bill - which is the focus of today's engagement - as one of the key responses from my Department to the challenges of Brexit. It will facilitate the student mobility between the South, the North and the wider UK, and it will enable me to meet education obligations under the common travel area.
I am confident that SUSI will be able to adjust its capacity to deal with possible increases in calls and demands for information. I acknowledge the motivation and concern of Sinn Féin in this regard, but unfortunately I cannot accept the amendment as outlined. I note that amendment No. 36 seeks that a review is undertaken not later than 12 months after the commencement of Part 5 of the Bill. I am aware that my colleague, the Minister for Foreign Affairs and Trade, Deputy Coveney, intends to address this more comprehensively later on.I assure the Seanad that I am committed to working with the Joint Committee on Education and Skills to ensure the impact of the Part 5 is communicated in an open and objective manner. Many have spoken of this Bill as one which everyone hopes will not be enacted. Hopefully, that will be the case. As a public representative from Donegal, I am very conscious of the impact of a disorderly Brexit on citizens North and South. A no-deal outcome is in nobody's interest. It is now for the UK to set out what it intends to do next. Let us hope that clarity comes shortly and that we can remove the political uncertainty for both North-South and east-west.
I acknowledge Senator Norris's contribution on the decline in the movement of students from the North over the years. That is something of which I am very conscious. There are factors which have led to that situation but that is not an excuse in itself not to do something about it. He was correct in saying that there are communications and timeframe issues in terms of applications. That is something of which we can take control, but I am certainly of the belief that we should plough ahead with that continued engagement on a North-South basis. I thank the Senator for raising that issue. I sat in this House with the Senator back in 2002-----
-----and we have travelled a few roads in that time. I know that in the 20 years since the peace process, so much has been gained. Education has been the shining light in ensuring that engagement and enlightenment and in terms of the work on reconciliation and understanding. That is something I know Senators hold dearly so that we do not deviate from that path.
I welcome the Minister and thank him for this outline on education. Having listened to him, I know he is passionate about it. Living on the Border, he has given him a great insight into the issues that are faced. I commend on the fact there will not be a change in the current co-operation in terms of students crossing the Border and travelling to the UK to college. Many of our students went abroad, came back and are in employment. It is important that status quois to be kept in place. The Minister's outline was very positive and I commend him and the officials in the Department on that. I received many calls from people who have family members in college in the UK or in the North and they were very concerned about fees so I commend the Minister in that regard.
The Minister has given a very full reply. We have put our concerns about Student Universal Support Ireland, SUSI, in the record. By way of being constructive, I am minded to withdraw our amendment at this point rather than to push it. I ask the Minister to clarify one point which he referred to. Is the Minister in a position to give a guarantee that the same fees will apply to students from the North as apply to those in the Republic in the future?
To provide clarity on that and to ensure we are clear, I moved in January to ensure that the €3,000 paid by students in Dublin and the €3,000 that would be incurred by students in Belfast would continue for September of this year and for the duration of their course. As a result of the work being carried out at the moment on the common travel area, I am confident that when we complete this memorandum of understanding that it will become a permanent feature in the subsequent years. As of now, if a student from Derry or Coleraine is thinking about going to university, for example, to Trinity College, or to the IT in Tralee in Kerry, we guarantee that he or she will be subject to the same fees arrangement as somebody in the South.
I am a little concerned about this section which states:
Section 472B(1) of the Act of 1997 is amended by the substitution of the following definition for the definition of “sea-going ship”:
“ ‘sea-going ship’ means a ship which-(a) is registered-(i) in a Member State’s Register, or...
There is nothing about its seaworthiness. It is in a member state's register and used solely for the trade of carrying sea passengers or cargo but does not include a fishing vessel. There is nothing to say that it is not going to sink.
Section 32, is about tax and how tax applies. It is about the seafarers' allowance. This is exclusively on tax. The current structures in place remain for a temporary period so that people are not discommoded by a no-deal Brexit.
I wish to ask a generic question in the finance area. One part relates to VAT. I am particularly interested in VAT for SMEs. At the moment if a company registered for VAT in Ireland acquires a service or goods from the UK, no VAT is charged coming or going. My understanding from the proposed legislation - I am glad Senator Norris raised this - is that now there is a VAT liability on companies in Ireland that acquire services or goods from VAT-rateable companies in the UK, which adds a significant tax burden for them. Is the Minister of State in a position to clarify that?
The second issue relates to Part 10, section 72, and the Road Transport Act. We all have difficulty with the intricacies of the legislation and its technical aspect. It would take weeks to get through it and understand it because it refers back to sections and subsections of various other Acts, making it very difficult for us in a short timeframe. Having said that, I have nothing but praise from the Minister of State, his Government colleagues and the civil servants who spent ages working on getting this legislation to its present state. It is a significant compliment to the Minister of State and his Government colleagues.
My first question was on VAT. Part 10, section 72 deals with the Road Transport Act 1978. We have a big issue here and this legislation could make it worse. A private bus company is outside the VAT net and cannot claim back VAT on parts, spares, maintenance, etc. However, a UK company, including one based in Northern Ireland, can claim back VAT on various expenses. If the bus company is - I am subject to correction on this terminology - wholly and exclusively for the purpose of tourism, it can claim back the VAT. We need to try to ensure that in a worst-case scenario small bus companies and other small businesses that are importing from the UK are not more disadvantaged than at present.
I will respond to both. Everything we are doing - I am only speaking about finance - is to try to ensure that in the scenario of a no-deal Brexit involving a crash out without anything in place, we are able to continue as far as possible in a similar vein without impacting on all types of taxes - income, corporation, capital gains, VAT, stamp duty, CAT, excise and settlement finality - and insurance also. We are not saying we have everything here, but this is our best estimate of the areas that we can try and impact in order to smooth the road for companies and individuals as best we can.
We are also highlighting that there are potential areas we may not have covered. We may need to deal with those as they arise. I accept the Senator's concern that we rattled through it and perhaps I was being a little glib about the Senators' efficiency. We had the same conversation in the Dáil. This is our best estimate. Some people like to use the term "guesstimate"; I do not. These are what we know we have to do in the case of a no-deal Brexit.
Senator Ó Céidigh asked about VAT and importers and exporters. Again we discussed this with Revenue. In a no-deal Brexit, VAT would be automatically chargeable. We have tried to continue the same structure, trying to be as helpful as we can be so that the current structures still arise and people can pay the VAT for the period, which is normally quarterly for businesses, so that it will not impact on cashflow.
The Senator's other point about VAT on transport is not a Brexit issue. It is a separate issue that has existed in the Border area for some time.
We have only had this Bill for a day or two. Due to its nature, it refers to a considerable number of other Acts. In order to effectively go through this whole thing we would need to have a whole rake of legislation with us. I was somewhat concerned because I was hoping that the experts in different areas would come and attend in the House. They do not seem to have been here in very great numbers. I refer to people, for example, who are versed in finance, agriculture, foreign affairs and so on. They should read the Bill in those areas which would be of relevance and so on.
I am sure it is. I pay tribute to the civil servants who are excellent. We are very lucky with them - sometimes, not always. When they are dealing in a malicious way with our income and conditions of work, they are particularly obnoxious.
I will not stray into that area.
I just wanted to highlight the concern because so many principal Acts are invoked in every section that it is extremely difficult in a short space of time to get up-to-date with them. I just hope that most of the relevant questions will be asked.
This section, which is designed to amend section 113A of the Social Welfare Consolidation Act 2005, provides that "Where a person in receipt of invalidity pension under Chapter 17 of this Part attains pensionable age and becomes entitled to a pension under this section and to a pension from the United Kingdom, the weekly rate of pension payable shall be the greater of ... the amount of pension payable, calculated in accordance with the arrangement made with the UK". Does this mean that if a person is entitled to a pension in the UK and another in Ireland, and the one in the UK is greater, he or she will get to keep the UK pension?
The amendments that are specifically inserted into the 2005 Act by this section refer to the UK so that the rules which currently apply to all EU member states will continue to apply to the UK after 29 March. The convention that was signed by the UK and Irish Governments on 1 February will ensure exactly what is done today will continue to be done after 29 March. A person who is entitled to a pension in both jurisdictions currently has the ability to take both pensions. If one built up some contributions when one worked in the UK, as well as building up contributions during one's working life in Ireland, one can join both and take both pensions. If one is applying for something like disability allowance on the basis of an entitlement in both jurisdictions, one will obviously take it in the jurisdiction with the bigger payment. That is the current system and that is the system we will employ after 29 March. I think our payments are more generous than those in the UK.
This section deals with the insolvency of companies. When a company becomes insolvent, there may be remaining pension obligations. There have been some horrible cases, including those relating to Waterford Crystal and Irish Shipping. In the disgraceful case of Clerys department store, which was in the middle of O'Connell Street, a ghastly woman who was rescued by NAMA went in to kick people out and defraud them of their pensions. It was a horrible situation. I wonder whether anything in this section of the Bill will deal with such cases.
The purpose of this section of the Bill is to assist Irish employees in companies that are owned by organisations outside of Ireland. In this case, we are inserting a provision into the law so that the UK is included. Current practice means that when an organisation with Irish employees gets into trouble in Ireland, the State looks after the payment of redundancy for those Irish employees through the insolvency Act. Any company from an EU member state, including a British, French or German company, is covered. As things stand, companies from the UK will not be covered after 29 March. Therefore, we are providing in this legislation for the UK to be treated as a third country and to be included in this practice. As the Senator knows, there are many Scotland, Northern Irish, Welsh and English companies in Ireland. They give great employment to Irish citizens. If - God forbid - anything should happen after 29 March, we will continue to look after those Irish citizens on the basis of the contributions that those companies would have made to the State through their Irish citizens. The exact provisions we have today under the European convention will apply to the UK after 29 March under this legislation. The situations described by the Senator were not covered by legislation that relates specifically to companies outside the jurisdiction of Ireland.
I thank the Minister. I recognise that I am on a slight tangent here. The Minister was very gracious in her reply. I urge her to look again at the shocking situation in which Irish companies with substantial assets can defraud their employees of their pensions. It might not be directly covered within the legislation. I understand from the Minister's very clear explanation that it is not. I ask her to keep it in mind for revision. It is shocking that this should be allowed.
I have a brief question about the common travel area. Is the fingerprinting requirement there already? Is it something new that has been brought in? How is it relevant to the whole area of Brexit? I cannot get the connection between the fingerprinting requirement and Brexit. This Bill provides that the "Minister or an immigration officer, where he or she considers it necessary for the purpose of ensuring the integrity of the immigration system ... relating to the Common Travel Area, may take or cause to be taken the fingerprints of a person for the purpose of the person’s application for an Irish visa or an Irish transit visa". I just want to understand this provision. Does a fingerprinting opportunity or facility already exist ? Is this something new? How has it been triggered by Brexit?
I am sorry that the second of the amendments has been ruled out of order. Section 93(2) states:
The provisions of this Act shall provide for extradition, where a country is in adherence to democratic principles, human rights and fundamental freedoms, as defined in particular in the UN Universal Declaration of Human Rights, and in the instance of European countries, the European Convention on Human Rights and Fundamental Freedoms and its Protocols.
This provision is vitally important as this country had an appalling record in the past of returning people to countries such as Iraq and Iran. On one occasion the person responsible for returning somebody said the person concerned would travel to a different part of Iraq. He said they would not be sent to a dangerous part of the country, but there is no safe part of Iraq. It is very important, therefore, that this country stick to its principles and not extradite somebody to a country where human rights are not observed and the standards of treatment of human beings are below those which are acceptable in a civilised country.
Senator Norris has outlined the political reasons the amendment is so important. I adhere to and respect the ruling of the Chair, but I cannot understand why amendments Nos. 18 and 19 were ruled out of order. Perhaps, as father of the House, Senator Norris could advise me on why this happened. I understand Standing Order 154 which deals with this issue, but the criteria are that amendments be relevant to the subject matter of the Bill. I argue that the amendments are entirely relevant and that we should at least have had a worthwhile debate on them and put them to the House.
Amendments Nos. 18 and 19, in the names of Senators Conway-Walsh, Warfield, Ó Donnghaile, Gavan, Mac Lochlainn and Devine, seek to amend section 86 of the Bill that provides for amendments to the Extradition Act 1965 in the context of the application of the provisions of the European Convention on Extradition of 1957 to extradition arrangements between Ireland and the United Kingdom when the provisions of the European arrest warrant no longer apply. The proposal does not appear to relate at all to Brexit but appears to be an attempt to more generally provide for the protection of persons who might be extradited in circumstances where the requesting country is not fully compliant with human rights standards. The amendments do not relate specifically to the extradition arrangements between Ireland and the United Kingdom in the event of a withdrawal and, consequently, are not relevant to the subject matter of the Bill. They must be ruled out of order in accordance with Standing Order 154.
I respect the ruling of the Chair and acknowledge that the Government and Ministers have no role in deciding whether amendments are discussed. In this legislation we are trying to protect and maintain the arrangements in place. This is emergency legislation to try to protect the status quo, where possible, whether it is for students, buses, ports, pilotage or anything else. It is not about trying to introduce a new policy direction. It is a perfectly legitimate issue on which to have a debate, but it should not add new considerations to extradition. That is an issue on which the Minister for Justice and Equality can be questioned and, if he wants to introduce or propose that we introduce changes in that area at EU level, it would be legitimate to debate the proposals. In other sections people have tried to tag on things about which they feel strongly or where they want to enhance a certain policy approach, but the amendments have consistently been ruled out of order, both in the Dáil and the Seanad. This legislation tries to protect existing arrangements or keep things as close as possible to them. Extradition between the United Kingdom and Ireland is covered by the fact that we both have EU membership and the European arrest warrant applies, but as the latter will no longer apply after Brexit, we are trying to replicate the current arrangements as closely as possible. It is not about the extradition of somebody to Iraq, Iran or some part of the world where we have concerns about the particular region.
I accept that this is not the Minister's particular area of expertise, although he has very good advisers in the background. He spoke about maintaining the status quo, but what is the status quoin the context of extradition law? Do we have protection against the extradition of persons to third countries which do not meet human rights standards? It would be very worrying if we did not.
I appreciate what the Minister said and accept that he has no role in deciding whether amendments are discussed. However, 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 the convention, to which the State is also a party. The section of the Bill which amends the Act ensures the provision will apply to Britain post Brexit and takes account of more efficient and up-to-date electronic means for processing applications.
The amendments sought to ensure the legislation would remain up to date in the context of changes in compliance with human rights provisions in other European jurisdictions. They are important in the light of the threat posed by Brexit and the view held by the current and previous British Governments on the European Charter of Fundamental Rights. All continental European countries, with the exception of Belarus, are signatories to the European Convention on Human Rights 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. We know the British Government's view on the charter.That is why, appreciating and acknowledging what the Minister said, the amendments sought within the context of emergency legislation to embolden and empower the Government to amend it, where necessary, to ensure it would be fully human rights compliant and compliant with the charter.
God knows, I am not anti-British. I am half English, albeit my father died when I was five years old and I hardly knew him. As such, I was not greatly influenced by the English genetic disposition part of my character. However, I would hate to think the Guildford Four and Birmingham Six would have been extradited to England during the period in which they were subject to a gross injustice and the most appalling police malpractice. We have to be very careful in dealing with extradition law that we do not extradite people in situations where their human rights might be threatened, regardless of whether the countries concerned are signatories to the European Convention on Human Rights.
The Act provides for further safeguards, with a number of mandatory grounds for refusal. As the House knows, each and every extradition request is dealt with by the High Court on a case by case basis. All aspects of a request are considered carefully before an extradition order is either granted or refused. As part of that consideration, the court will consider human rights and fundamental freedoms. It has jurisdiction to release a person sought for extradition if it believes he or she would not face a fair trial or his or her human or fundamental rights would not be respected if extradited. Ultimately, it is the Irish courts which are the most effective protector of human and fundamental rights, as has been proved on numerous occasions when requests for extradition orders have been refused. In the event that a country decides to leave the convention, that development would have to be taken into account by the court in considering an extradition request from that country. I think that answers the question. Ultimately, the High Court will judge whether the extradition request could, if granted, result in a person returning to inappropriate circumstances.
On his way in the Minister said he might have the opportunity to answer the question I asked the previous Minister who was here about the common travel area and the taking of fingerprints, but I do not know if he is in a position to answer. I thank a young man from Gweedore, Fredericó Quintanilha, which by any measure is not a Donegal name. He has come from Brazil to live here and been of tremendous help to me in conducting research during the last week. It is great to have young people here who actually give 110% to the Dáil and the Seanad. Please God, more will come here.
I have a general question for the Minister to which a reply would be useful to me and others. This legislation is something we will enact. Are there parts of it that will depend on a bilateral relationship with the United Kingdom? Can we engage in a bilateral arrangement with the United Kingdom, given that Ireland is part of the European Union which is negotiating on our behalf? It is a general question but one I have been asked. To be honest, I have not had an answer to it.
I have not met Fredericó yet, but it sounds like that he is a real addition to Ireland and the Houses.
I will have to come back to the Senator on the fingerprint question. I did not fully hear the question to the other Minister, but I will ensure the Senator receives a briefing note on it.
The Bill is linked with a memorandum of understanding we have with the United Kingdom in protecting the common travel area. The Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, has signed an agreement with her UK counterpart to guarantee the continuation of 21 social welfare payments to Irish people living in the United Kingdom, whether in Northern Ireland or Great Britain. It will ensure people can continue to receive their pension, child benefit and many other welfare support payments, on which they rely for their weekly income. Likewise, tens of thousands of British people living in Ireland receive pension and other financial support payments from the United Kingdom in Ireland. The continuing and seamless facilitation of these payments through a Brexit process requires a bilateral agreement. The same applies to students. We have to provide for the facilitation of our students in the United Kingdom. The legislation will allow us to continue to give them grant aid to study there. If the United Kingdom does not consider them to be in the category of the common travel area, they will become foreign students paying foreign student fees and so on.
This legislation is about a bilateral agreement provided for in law or a memorandum of understanding since the 1920s, long before the European Union or the EEC were even thought of, following Irish Independence when Britain and Ireland recognised each other's citizens in each other's country and facilitated free movement of students and workers. Joining the European Union and sharing the Single Market and the customs union reinforced it. However, we did not have to have a legal basis for a lot of it as it was catered for under EU rules. Now that the United Kingdom is leaving the European Union, we have to have a legal basis for some of this stuff. That is what a lot of this legislation is about. I hope that puts in context what we are trying to do. There are some things for which we cannot prepare with legislation in no-deal or contingency planning because it an EU competence. However, there are many areas in which we can legislate to put a legal basis in place to protect the status quo. That is why seven Ministers are dealing with this legislation across multiple areas. It is to prepare as best we can for a no-deal scenario and protect Irish citizens in what would be a very difficult and challenging period.
Amendments Nos. 20 to 22, inclusive, in the names of Senators Conway-Walsh, Warfield, Ó Donnghaile, Gavan, Mac Lochlainn and Devine, have been ruled out of order. Amendment No. 20 would impose a potential charge on Revenue, as would amendment No. 21, while amendment No. 22 is not relevant to the subject matter of the Bill. It would also impose a potential charge on Revenue.
I move amendment No. 23:
In page 71, line 21, to delete "3A. A person" and substitute "3A. (1) A person".
I alert the Minister and colleagues to the fact that I am likely to push this amendment to a vote.
Amendments Nos. 23 and 24 take a further set of grounds into consideration, in addition to those set out, to include inhuman and degrading treatment. The amendments are necessary and in line with developments in the past seven or eight years in the major conventions, including 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 statements by the United Nations. These matters were not previously necessarily part of standard jurisprudence. They are emerging areas, with which I am not sure domestic legislation has kept pace. We should, therefore, make the amendments. That is the rationale for pressing them.
Amendment No. 25 proposes heightened consideration. We already give heightened consideration to people in different circumstances. We inserted a provision providing for heightened consideration for children into the Constitution. In many respects, we give heightened consideration to people in vulnerable circumstances, including people with disabilities. We apply that standard, depending on people's particular and individual circumstances and it is entirely appropriate that we do so. If we are to send a child out of Ireland who has not qualified under the non-refoulementtest, it is entirely appropriate to give heightened consideration to the case and consider it very seriously before sending the child back to what may be an extremely hostile environment. There is nothing unreasonable or inconsistent about requiring heightened consideration where a child is involved based on his or her best interests.
I welcome the Tánaiste to the House and, as I indicated on Second Stage, Labour Party Senators will continue to support the Bill's speedy and efficient passage through the House. We all bring that constructive spirit of co-operation to the debate, which is helpful.
In respect of the provisions on immigration in the section, I will be happy to support the Sinn Féin amendments. While I acknowledge that amendment No. 23 is technical, amendments Nos. 24 and 25 will insert important human rights considerations and, therefore, I will be happy to support them. More broadly on the section and the issues it raises, I am sure I am not alone in having had many people raise with me concerns as to how a no-deal Brexit will specifically affect immigration matters and the right of British and Irish citizens to continue to travel between the two states. The common travel area will continue to exist, as the Tánaiste has made clear, but it would be useful for that to be reiterated because there is significant fear about it, particularly as the awful prospect of no deal seems to loom even larger in the past 24 hours.
Another point which has been raised with me is how a no-deal Brexit would affect the rights of non-EEA family members of British citizens currently resident in this jurisdiction. The Minister for Justice and Equality has stated such individuals would be granted residency rights, but the question is how sure we can be about that. I seek reassurance from the Tánaiste as to the status of such family members, such as persons who are in partnership with or married to British citizens resident in Ireland but who are from outside the EEA. An individual raised that specific question with me and I indicated on Second Stage that I would raise it on Committee Stage. People seek a reassurance about the impact that a no-deal Brexit will have on their status and that of those closest to them after 29 March. Notwithstanding whatever assurances have been given that the common travel area will continue to exist in respect of travel arrangements for Irish and British citizens, fear remains among persons who may be in relationships with those who are not British, Irish or even EU or EEA citizens over how they will be affected by a no-deal Brexit.
I have quite a long response, which, while technical, I will read into the record because it is important that Senators receive a full response. I will not support amendments Nos. 23 to 25, inclusive, but I will explain why.
The provisions in sections 95 and 96 are inserted for the purpose of correcting a legislative lacuna in the legal basis for non-refoulementconsiderations. Non-refoulementis the practice of not returning a non-national to a country in which he or she is liable to be subjected to persecution or where the life or freedom of the person would be put at risk. Under section 5 of the Refugee Act 1996, this applied not only to persons subject to that Act but also to persons removed from the State under the Immigration Act 1999 and section 5 of the Immigration Act 2003, that is, it applies regardless of whether the person is a refugee or asylum seeker.
The introduction of the International Protection Act 2015, which repealed the Act of 1996, inadvertently removed the legal basis providing for non-refoulementwithin the Acts of 1999 and 2003. In S.G. (Albania) v. the Minister for Justice and Equality, the High Court identified administrative issues with the enactment of the International Protection Bill 2015, the transitional provisions relating to the Refugee Act 1996 and the domestic legal basis for the 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 that these issues had existed since 31 December 2016. The significance of that date is that it was the date on which the inadvertent lacuna arose when the International Protection Act 2015 was commenced and as a consequence, the Refugee Act 1996, including the refoulementprovision of section 5 of the Act of 1996, was repealed. Its legal base was inadvertently removed and, therefore, was no longer in law.
Regardless of these administrative issues, it has remained the policy and practice of the Minister for Justice and Equality to apply non-refoulementprinciples to all removals from the State, in conformity with our constitutional and international obligations. The Minister is nonetheless satisfied that legal certainty is required in the area, that the lacuna needs to be corrected as a priority, and that we should use this legislation to do so, the reason for which I will explain. The purpose of sections 95 and 96 is to restore the position whereby there is a legal base to the non-refoulement consideration for all persons being removed from the State, not just in the protection area but including all deportations and persons refused permission to enter the State.
I cannot accept the proposed amendments. Amendment No. 24 is not consistent with the definition of non-refoulementapplied under section 50 of the International Protection Act 2015, which states:
(1) A person shall not be expelled or returned in any manner whatsoever to the frontier of a territory where, in the opinion of the Minister—(a) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or
(b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
The definition is based on principles of international law and encompasses serious forms of sexual and gender-based violence, female genital mutilation and the best interests of the child, which are fully considered in this context. On the basis of advice that the Minister for Justice and Equality has received from the Office of the Attorney General, it is not necessary expressly to include forms of sexual and gender-based violence or female genital mutilation, which are covered by inhumane or degrading treatment or punishment. As for the proposal to include "flagrant denial of a fair trial" within the definition, this comes within the scope of refoulement, as held by the European Court of Human Rights in Othman (Abu Qatada) v. United Kingdom. As Ireland is bound by the European Convention on Human Rights, it accepts that the flagrant denial of a fair trial falls under the definition of inhumane or degrading treatment or punishment. It is not an appropriate test to include in the legislation.
The definition in the Bill is in line with that used in other countries and, accordingly, there is a risk in seeking to create a new definition at a time consistency is essential, particularly for the individual who may be at risk. The prohibition of refoulementunder international human rights law applies to any form of removal or transfer of persons, regardless of their status. As an inherent element of the prohibition of torture and other forms of ill treatment, the principle of non-refoulementis characterised by its absolute nature, without any exception. It is not a judgment call in which one can apply an increased level of concern towards children. Rather, it is a black and white issue; it either applies or it does not. There is no need, therefore, to make exceptions for certain categories of person, whether it is a child, adult or somebody who may be a victim of persecution, have a certain sexual preference or whatever.The prohibition applies to all persons irrespective of their citizenship, nationality, statelessness, age, gender or migration status and it applies wherever a State exercises jurisdiction or effective control. For the reasons I have set out, I am not in a position to accept the amendments, mainly because I believe they would weaken the provisions. Obviously, that is not the Senator's intention. I understand what he is seeking to achieve, which is to focus the spotlight on the vulnerability of children or other areas but that is catered for in a pretty clear way in the note I outlined to him. I ask the Senator to take that into account when I propose that we do not accept these amendments.
I wish to query a simple point. I had to absent myself to take a telephone call and this point may have been covered by the Minister, in which case I apologise. In a case where a parent or a guardian of a child is extradited, if that parent gave permission for another relative to look after the well-being and interest of the child, could the child not be given further protection in that case and not subject to being returned to whatever country it was?
In all cases, whether it is for children or adults, the test is the potential threats to them of returning them back to a state, either from where they came or to where it is being proposed to return them. If the non-refoulementtest is not passed, which is pretty comprehensive as I have outlined, regardless of whether the person is an adult or a child or in any other category, the point is that this is an absolute test in terms of text; it does not give the Minister an option to use judgment or flexibility. That is why separating children from adults, even though all of us would naturally do that because children are more vulnerable, is not relevant in this case because of the absolute nature of the non-refoulementlaw.
Regarding Senator Bacik's question, non-EEA family members of UK citizens who are exercising free movement currently will have their residency rights protected post 29 March in a no-deal scenario by being transferred into a domestic scheme, which will see them retain similar rights to free movement, including access to the labour market. We can perhaps confirm that in writing to the Senator if there is a particular case she wants to test but that is certainly the intention.
I thank the Minister for that specific and clear response. I am grateful for it and I will communicate perhaps directly with him or his officials in respect of the particular case that was communicated to me but it is helpful to have that clarification put on the record.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Mark Daly, Frank Feighan, Maura Hopkins, Gerry Horkan, Anthony Lawlor, Terry Leyden, Tim Lombard, Ian Marshall, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, Pádraig Ó Céidigh, James Reilly, Neale Richmond, Diarmuid Wilson.
Clerk to the Seanad:
I have to inform the House that the Cathaoirleach and Leas-Chathaoirleach are absent from this sitting. It will be necessary, therefore, to elect a Member to perform the duties devolving upon and exercise the authority conferred upon the Cathaoirleach by the Standing Orders for the period of the absence of both. Can I have a proposal for the election of a Member?
I move amendment No. 25:
In page 71, 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.”.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Frank Feighan, Maura Hopkins, Gerry Horkan, Anthony Lawlor, Terry Leyden, Tim Lombard, Ian Marshall, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, James Reilly, Neale Richmond.
The time permitted for this debate having expired, I am required to put the following question in accordance with the order of the Seanad of 12 March 2019: "That in respect of each of the sections of Parts 13 and 14 undisposed of, the sections are hereby agreed to."
I move amendment No. 28:
In page 73, after line 35, to insert the following:
“Report on EU economic and social supports for the State
99. The Minister for Finance shall report to the Oireachtas within one month of the passing of this Act on his discussions with the European Union regarding economic and social supports for the State following Brexit, including but not limited to flexibilities in State Aid rules and the fiscal rules and the possible use of structural funds or other sources of funding to mitigate against the impact of Brexit.”.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Lorraine Clifford Lee, Paudie Coffey, Martin Conway, Frank Feighan, Maura Hopkins, Gerry Horkan, Anthony Lawlor, Terry Leyden, Tim Lombard, Ian Marshall, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, Marie Louise O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, James Reilly, Neale Richmond.
I move amendment No. 29:
In page 73, after line 35, to insert the following:"Ministerial orders in relation to motor vehicle insurance and licenses
99.The Minister may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, make such order or orders as he or she considers necessary to continue in being or carry out any reciprocal or other arrangements in relation to motor vehicle insurance and licences to drive a mechanically propelled vehicle of a specified category which were in operation between the State and the United Kingdom immediately before the withdrawal of the United Kingdom from membership of the European Union.".
This amendment proposes to insert a new section into the Bill. At a briefing in the audiovisual room last week, a representative of Border Communities Against Brexit spoke about the immediate impact that a green card would have, including the differential that would result if reciprocal arrangements were not put in place in respect of issues like insurance. The Tánaiste touched on this the last time he appeared before the Joint Committee on the Implementation of the Good Friday Agreement. The representative of Border Communities Against Brexit spoke about the immediate impact that a green card would have on a range of businesses, not least the haulage business. He referred to a haulier with a fleet of 80 lorries, all of which will need an individual green card at a cost of between €25 and €50 per card. He said that his colleagues in the haulage business are angry that this situation has come about. He asked what would happen to his business if he refused to purchase the necessary paperwork, or to comply with filling it in. He wondered whether his goods would be impounded in such circumstances. This creates a significant degree of uncertainty for him and his business. During a meeting with representatives of O'Neill's Sportswear in Belfast earlier this week, I was informed that when one of the company's lorries is bringing gear to Dublin from its plant in Strabane, it has to cross the Border 18 times before it reaches Dublin. That is the reality of the madness we are facing. I know the Tánaiste is all too well aware of it. Amendment No. 29 is concise and clear in what it tries to do. Rather than prolonging the agony for Members, I will let the amendment speak for itself.
I have a long written note here, but I do not need to read it all. We have discussed these issues. As a country, we would like to be able to do something on this unilaterally, but we cannot do so. This is an EU competence, which is covered by an EU directive. If there is to be some accommodation here to prevent the need for proof of international motor insurance, which can be provided for by having a green card on the dashboard and which is simply proof of valid insurance outside the jurisdiction of the EU, that can only be solved by the EU facilitating the UK on that, which it could do in the context of contingency planning. We have spoken to the UK about that. That will continue to be an active conversation if we continue to move towards a no-deal Brexit. We hope it will not become a likelihood rather than a possibility. I hope we will move away from that likelihood tonight. The Senator is asking me to do something that legally cannot be done. We cannot introduce this kind of law here because we do not have the legal competence to overrule a European directive.
I understand the issue. I understand the annoyance among drivers who cross the Border on a daily basis, or even just once a year. I can understand why it grates on people that it has been called a green card, of all names. The insurance industry had to act. It had to do something to put contingency in place for itself and its clients and customers to ensure people could continue to drive back and forth. There is a mechanism which allows for that in the context of this green card system. It is a fallback position. It is a contingency. It is not something we wanted in place. It is certainly much better than not being able to drive into Northern Ireland and not being able to provide proof of insurance on an international basis.
I give the House a commitment that we will continue to talk to the European Commission about trying to resolve this issue in the context of contingency planning. If we move towards a no-deal as a likelihood, there will need to be a great deal of interaction between the Irish and British Governments and the Commission. The three groups in the room will need to look at how an all-island economy will function. The idea that the UK can unilaterally do something along the lines of what it published this morning, and that Ireland and the EU will unilaterally do something else, is not conducive to a functioning system of trade and movement on the island of Ireland. From my perspective, if a no-deal moves over the next 48 hours from a possibility to a strong likelihood, we will be in a different space and we will have to try to negotiate a lot of contingency work. This is one of many issues that would be part of such a discussion. We will continue to raise it. In the meantime, the industry is right to make progress with this as a solution. As I have said, it is not something that people want. I can understand why it frustrates and annoys people. This is a less than perfect contingency. That is the way people should see it.
I cannot accommodate the amendment that the Senator is advocating for. If I could have done this, it would have been in the Bill as a means of trying to protect the status quo. There are some things that we simply do not have the legal competence to do, and I am afraid this is one of them. I know the Senator needs to push certain amendments, but I ask him to bear in mind what I am saying because it is factually true.
I am not trying to be alarmist. I am not in any way trying to give the Tánaiste any further headaches at a time that is particularly challenging for all of us. The Tánaiste is correct when he says that this potentially small sticker in a windscreen goes right to the heart of the issues with which we are all familiar. I have referred to the case of a lorry that crosses the Border 18 times during a single journey from Strabane to Dublin. I could have mentioned the people from Belfast who will want to take their kids to Dublin Zoo over the Easter break. Even if no one ever had to cross the Border, the very notion that in this day and age, 21 years after the Good Friday Agreement, a green card might be required to travel on this island annoys people fundamentally and at a primal level.
We have rehearsed the raft of problematic issues associated with Brexit. I do not need to rehearse them once more. While I appreciate what the Tánaiste has said about what the Government can and cannot do, that is not to say that the Commission could not have taken action regarding a potential waiver around some of these issues. There is a precedent for that. A waiver was put in place in Serbia in 2011. I hear what the Tánaiste is saying. I ask him to understand and accept that we have come to this in a spirit of collaboration. Throughout the rest of this process, we will continue to work co-operatively with the Government. However, there is a real and fundamental expectation that this issue will be pushed as far as it can. I am conscious of what way it will probably go in the Seanad. I understand what the Tánaiste is saying and what he hopes to do going forward on this issue. I take him at his word in that regard. However, it would be expected of me and of us to take this amendment, and the issue, as far as we can today.
I take that point and I understand the politics of it. Even were this amendment to be pushed and passed, I would need to bring it back to the Dáil and take it out again because I cannot have an item of legislation that is directly contradictory to a European directive. There is a way of potentially solving this issue. I will give a commitment to the House that we will speak to the Commission about this. If we are interested in getting something done here, the only way we can get something done between now and 29 March is to speak to the Commission and see whether it would consider factoring this issue into contingency planning, should it come to that. If it is helpful, I can certainly commit to raising that issue with the Commission again. However, let us be honest with each other, serious things are going on at the moment on which we have to make decisions. It is totally up to the Senator but if we are serious about trying to solve this green card issue, the only way to do it is to talk to the Commission and see if it can factor it into its contingency planning. I do not believe it will be accepted but as for pressing amendments we all understand cannot be facilitated in the legislation, I accept so doing makes a point, and the Senator has to make a point here and I can understand that, I am happy to give him an assurance that we will try to take this forward in a way that can change something for the better. If he is willing to take my assurance on that, I would appreciate it, but it is up to the Senator as to what he wants to do.
Upon reflection and having spoken to colleagues, I hear what the Minister is saying. I certainly have made the political point. I know the Tánaiste understands it. I cannot stress it enough. On the basis of the assurance he has given the House - and it is the House and not just Sinn Féin - to go back to the Commission, I will withdraw amendment No. 29.
Amendment No. 30 is in the names of Senators Conway-Walsh, Warfield, Ó Donnghaile, Gavan, Mac Lochlainn and Devine is a proposed new section. It has already been discussed with amendment No. 2 on which a vote was called.
I move amendment No. 30:
In page 73, after line 35, to insert the following:
“Arrangements in relation to agriculture
99. The Minister for Agriculture, Food and the Marine may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, make such order or orders as he or she considers necessary to continue in being or carry out any reciprocal or other arrangements in relation to agriculture which were in operation between the State and Northern Ireland immediately before the withdrawal of the United Kingdom from membership of the European Union.”.
I will press the amendment.
Amendments Nos. 31 to 34, inclusive, are out of order. Amendment No. 31 is out of order as it is not relevant to the subject matter of the Bill and it poses a potential charge on the Exchequer. Amendments Nos. 32 and 33 are out of order as they are not relevant to the subject matter of the Bill. Amendment No. 34 is out of order as it poses a potential charge to the Exchequer.
I move amendment No. 35:
In page 73, after line 35, to insert the following:“PART 16Report on Brexit Stabilisation Fund
BREXIT STABILIZATION FUND
99. The Minister for Finance shall report to the Oireachtas within one month of the passing of this Act on the establishment of a Brexit Stabilisation Fund intended to provide economic and social supports to communities, workers and sectors most at risk as a result of Brexit.”.
The amendment speaks for itself in terms of the importance of a stabilisation fund.
The previous amendment, which was ruled out of order as it posed a charge on the Exchequer, effectively required the Government to set up a Brexit stabilisation fund. This amendment asks that the Minister for Finance would report back to the Oireachtas within one month of the passing of this legislation on the establishment of a Brexit stabilisation fund. This is about reporting on something that was not previously required. The Senator's colleague, Deputy Cullinane, raised the issue of a stabilisation fund in the Dáil today. I told him that the Minister, Deputy Donohoe, at the start of this week outlined in quite a degree of detail the financial consequences for the State of a no-deal Brexit in terms of the impact that would have on the Exchequer, the responsibility that his Department would have to work with other Departments to protect vulnerable sectors such as agrifood, farming, the beef and dairy industries, the pigmeat and poultry sectors and so on. The Government is under no illusions that if we face the challenges of a no-deal Brexit, clearly we will have to set money aside that otherwise would not be set aside to support sectors to survive the dramatic change in trading circumstances that may result from a no-deal Brexit and tariff trade barriers. However, what we will not do is create a fund of X hundred million or X billion euro first and then decide how it will get divvied up. Instead, for many weeks we have had Departments that are responsible for managing certain sectors, such as the Department of Agriculture, Food and the Marine, working with the Department of Public Expenditure and Reform and with the European Commission to examine how we can use all the tools and the necessary financial resources available to us to try to protect these sectors in that transition. In this context, "transition" is the wrong word to use because we will not be in a transition period but in a dramatic cliff-edge change overnight. The Minister, Deputy Donohoe, has said, for example, and it is a serious thing to have to say, that having spent the past ten years trying to bring the country back into surplus in terms of the budget, a no-deal Brexit may well drive this country back into a deficit because we would have to borrow money to protect and support certain sectors. I can assure the House there has been much discussion and planning around this issue.
I believe I said earlier that the Department of Agriculture, Food and the Marine has a team in Brussels today talking to the Commission about no-deal Brexit planning in terms of the available tools and precedent from which the European Commission may be able to learn in the context of the kinds of supports we would need to put in place. It is not as simple as just setting up a Brexit stabilisation fund. Instead, there is the challenge and the response to that challenge needs to be designed first, and then we need a funding mechanism that can respond to that. We have a rainy day fund and it is quite a considerable amount of money. I am glad to say we have the capacity to borrow because we have a very strong economy again that certainly can do that at a very low funding cost.
We will be doing something much more comprehensive than simply reporting back in a month or a year's time on a stabilisation fund. We will be providing both Houses, I suspect, with detailed support plans for different sectors that are vulnerable and we will be looking for cross-party support and constructive suggestions in terms of how best to do that. In that context, I hope the Senator might consider whether she should press this amendment.
I appreciate what the Minister said. The big concern I have is that there will be an interim period and during that time, before things are set up and a fund becomes available, many businesses and jobs will fall through the system.
First, many of the support packages for businesses to adapt to Brexit are already in place and are already being drawn down. For example, there was a very significant support package from Enterprise Ireland to help the Carbery Group diversify away from an over-reliance on the UK market for cheese to adapt to be able to focus on other markets for a portion of its output. If the Senator notes what the Commission has already said regarding the de minimisrules around state aid supports for farmers, the ceilings have been increased significantly from €15,000 to €25,000. This is already in train. We are already spending tens, if not hundreds, of millions of euro of taxpayers' money on Brexit preparation and on no-deal Brexit preparation.We will know a lot more in the next 48 hours. If no deal becomes likely, rather than just a possibility, we will advance these preparations in order to ensure they can kick in quickly, as opposed to starting real discussions after 29 March. The political system will have to respond to what will effectively be an emergency management situation if it appears that Britain will crash out of the European Union without the benefits of the certainty that a deal and a withdrawal agreement can bring.
Colm Burke, Paddy Burke, Ray Butler, Jerry Buttimer, Maria Byrne, Paudie Coffey, Frank Feighan, Maura Hopkins, Gerry Horkan, Anthony Lawlor, Terry Leyden, Tim Lombard, Ian Marshall, Gabrielle McFadden, Michelle Mulherin, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Ned O'Sullivan, James Reilly, Neale Richmond.
I move amendment No. 36:
In page 73, after line 35, to insert the following:“Review of operation of Act
99. (1) (a) The Minister for Foreign Affairs and Trade shall, not later than 12 months after the commencement of any part of this Act, carry out a review of the operation of this Act.(b) The Minister for Health shall, not later than 12 months after the coming into operation of any section of Part 2, carry out a review of the operation of that Part.(2) The Minister for Foreign Affairs and Trade shall, not later than 6 months after the commencement of the review carried out in accordance with subsection (1)(a), make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.
(c) The Minister for Business, Enterprise and Innovation shall not later than 12 months after the coming into operation of any section of Part 3, carry out a review of the operation of that Part.
(d) The Minister for Communications, Climate Action and Environment shall, not later than 12 months after the coming into operation of any section of Part 4, carry out a review of the operation of that Part.
(e) The Minister for Education and Skills shall, not later than 12 months after the coming into operation of any section of Part 5, carry out a review of the operation of that Part.
(f) The Minister for Finance shall, not later than 12 months after the coming into operation of any section of Parts 6, 7 or 8, carry out a review of the operation of that Part.
(g) The Minister for Transport, Tourism and Sport shall, not later than 12 months after the coming into operation of any section of Parts 9 or 10, carry out a review of the operation of that Part.
(h) The Minister for Employment Affairs and Social Protection shall, not later than 12 months after the coming into operation of any section of Parts 11 or 12, carry out a review of the operation of that Part.
(i) The Minister for Justice and Equality shall, not later than 12 months after the coming into operation of any section of Parts 13 or 14, carry out a review of the operation of that Part.
(3) The Ministers referred to in paragraphs (b) to (i) of subsection (1) shall, not later than 6 months after the commencement of the review, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.”.
I thank the Tánaiste for being in the Chamber today. I recognise the diplomatic efforts he and his Department are undertaking as the Brexit process draws to a conclusion, if that is even the case. It is hard to see any conclusion emerging but we are doing our bit. The Tánaiste's leadership has been very much in evidence. I thank him for his work, which is very much appreciated by all Senators.
The comprehensive and extensive nature of the legislation before us today reflects the seriousness with which our preparations for a potential no-deal Brexit have been taken by Government. I lived in the UK for 17 years and I look on in horror and despair at what is happening there. I hope some sense returns to the body politic in Westminster where so much good work was done in the time I lived in Britain. That is not, however, what we are dealing with today.
I thank the Tánaiste for his engagement on this important amendment, in particular with my colleague, Senator Higgins, who is abroad on business and for whom I am a very poor substitute today. The Tánaiste recognises that this is extraordinary emergency legislation preparing for a major geopolitical event outside of our control and one which will have a wide-ranging impact on the lives of a great many people in this country, potentially for generations. Its substantial 98 sections amend a total of 37 other Acts across a wide range of policy areas and the remits of nine different Ministers and Departments.
In addition to the amendments to primary legislation, a number of the provisions of the Bill give wide-ranging powers to Ministers - this is at the heart of this amendment - to issue regulations and statutory instruments to respond to a potentially chaotic no-deal Brexit in which quick and decisive action may need to be taken and for which statutory flexibility may be required to respond dynamically to the consequences of such an exit as they arise. Owing to the wide-ranging number of policy areas in which the European Union has competency over member states’ affairs, it is not surprising that such substantial amendments and regulatory powers have been included in the Bill. We believe, however, that the significant changes that will arise as a result of the Bill will need to be subject to a higher than usual level of parliamentary scrutiny and review. This is the motivation for tabling amendment No. 36. The amendment requires that within 12 months of the enactment of the legislation, the Minister for Foreign Affairs and Trade would conduct a review of the Act as a whole and that each Minister with competency for provisions of this omnibus Bill would review the provisions relating to his or her remit. The results of these reviews and conclusions drawn from them would then be laid before the Oireachtas within six months. We need to ensure the provisions of the Bill are working as intended and Ministers are using appropriately the regulatory powers extended to them if the Bill is enacted.
While I recognise that Dáil and Seanad Standing Orders already provide for post-enactment scrutiny reports, we want to ensure the post-enactment process for this legislation is as comprehensive and robust as the scrutiny its provisions have received since publication. I welcome that most relevant Oireachtas committees have met specifically to interrogate the Bill's provisions in light of the tight time constraints. We want the post-enactment process to be just as detailed and conducted sector by sector and Department by Department, rather than by a single Minister. While the legislation may be led by the Department of Foreign Affairs and Trade, the Minister may not be able to give a proper account of how, for example, the student grant arrangements in Part 5 of the Bill are working out, or if the social welfare or insolvency provisions in Parts 11 and 12 are working. This is the main motivation for the amendment.
The amendment would simply place on a statutory footing the requirement to have a sector by sector review conducted by the most appropriate Minister. It would put in place clear time constraints and oversight mechanisms for the wide-ranging provisions of this crucial legislation and the resulting secondary legislation and statutory instruments. It is a reasonable request, one that is fair and proportionate to the extraordinary nature of this emergency legislation. I hope the Tánaiste can accept the amendment.
None of us wishes to see the passage of the Bill being delayed and all of us who spoke on Second Stage yesterday expressed the hope that this legislation will not be necessary. Since last night's vote in Westminster, however, things are looking more bleak in terms of the prospects of a no-deal Brexit.However, I will use this opportunity now that we are discussing the issue of the review and ministerial powers to raise with the Tánaiste a point I raised on Second Stage and which my party leader, Deputy Howlin, raised in the Dáil, which is the issue of delegated powers and concerns that, in some respects, the Bill may go a little too far in providing Ministers with power to effectively make primary legislation. I will not go over the argument I made on Second Stage, but case law here requires that where policies are being changed, that is done through primary legislation. I will not press the point with the Tánaiste but it is one about which we raised concerns in the Dáil and I just wanted to reiterate it. It seems a sensible idea that one would scrutinise, in particular, what Ministers have done under the auspices of the statute that seems to go beyond the normal empowerment of providing delegated legislation which simply puts into effect principles that are contained in primary legislation through statutory instruments. This is a concern we had but the position of the Labour Party has been that we will facilitate the passage of the Bill and not seek to obstruct it anyway. I wanted to put that point again on the record.
Before I address the amendment, I will address that point because Deputy Howlin raised it with me on Second and Committee Stages. We asked the hard questions on that. This comes back to what this legislation is doing. It is not about empowering Ministers to introduce new legislation in new areas of policy. It is about effectively protecting existing arrangements and rights. As a result of that, this is not giving a delegated power to a Minister to introduce legislation in new areas without recourse to the Oireachtas. Instead, it is about giving a Minister power - in the case of health, for example, where there are a lot of delegated powers - to maintain the existing level of services, whether this is cross-Border healthcare or whatever. Deputy Howlin was correct to raise those issues and to test them legally. They are issues the Attorney General gave us advice on and we are comfortable legally with that.
On the amendment itself, I thank Senators Kelleher, Ruane, Dolan, Black, Grace O'Sullivan and, in particular, Senator Higgins, to whom I have spoken about this amendment and her concerns around it, for their constructive engagement on a post-enactment scrutiny both today and throughout the legislative process, more broadly. Although I am not in a position to support the amendment as tabled, I agree with the purpose of the amendment and the motivation behind it. We fully agree that given the emergency nature of the legislation, a period for reflection and review of the legislation, if enacted and commenced, would be appropriate and useful. However, rather than a specific legislative measure, such as the amendment as tabled, it is our intention to provide the review mechanisms under Dáil Standing Order 164A and Seanad Standing Order 168, which read as follows: "Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library." It is envisaged that it would be the Joint Committee on Foreign Affairs and Trade, and Defence that would consider the post-enactment report on the Bill.
In addition, each of my Cabinet colleagues is committed to ongoing engagement on the nuts and bolts impacts of the measures of their Parts of the Bill, with their respective committees. This would, therefore, provide the opportunity to identify and address any teething problems with and-or any unforeseen effects of the Bill. In other words, because this is emergency legislation, we have to be extra cautious afterwards that we follow through on ensuring that what we are trying to do here is what has resulted from the effect of the Bill itself. We may have to amend the legislation if we have missed something. It is unusual because of the number of Ministers and Government Departments who are all involved in one Bill. On the commencement orders for those individual Parts, it is up to the individual Ministers to commence different Parts of the Bill, once it is approved by the President, and becomes law.
For all of those reasons and while I accept the spirit of the amendment to which we are responding quite comprehensively - we have given Senator Higgins quite a lot of detail in response to her concerns, which I believe she accepts - I cannot accept it.
I thank the Minister. I am assured and satisfied that the spirit of the amendment, as he stated, has been understood and respected. I appreciate that we are in unusual circumstances and that the omnibus nature of the Bill is unusual also.