Immense
He commented that an immense amount of work had been done to mitigate the harm that Brexit would cause, but the Government’s main focus remained on the Britain ratifying the Withdrawal Agreement, but always being conscious of the need to prepare for all scenarios.
“These preparations include working closely with other Government departments and EU Member States, meeting and working with the European Commission, and participating in technical EU-level meetings,” he said.
Extradition and the future operation of the European Arrest Warrant were of the most immediate concern, the minister said.
Other key instruments where continued cooperation with Britain on criminal justice matters is essential include: Mutual Legal Assistance, EUROPOL, Prüm (for fingerprint checking), DNA, car registration, and the Passenger Name Record Directive.
“In July 2013, the UK decided to opt out of all 130 Justice and Home Affairs measures, and then later decided to opt back into 35 key measures,” the minister said.
“This meant that, at the time, my department had to assess the potential implications of the full opt-out and then, when the UK decided to opt back in, we had to analyse what might happen if there was a gap between opting out and opting back in again. Fortunately, after a lot of work, a legally seamless opt-out and opt back in was arranged, which happened on 1 December 2014.
Challenges
“Brexit obviously presents challenges on a much larger scale. More than 700 EU instruments in the justice area have been assessed to establish which might be affected, and what the implications would be,” he said.
The key priority areas are:
- The Common Travel Area,
- Police and judicial co-operation in criminal matters,
- Data protection,
- Asylum policy and,
- Judicial co-operation in civil matters.
“The Common Travel Area is a key area and affects nearly everyone on this island. A great deal of research was required to establish the clear basis of the CTA and delineate the legal and administrative arrangements associated with it,” the minister said.
“Furthermore, the legal implications of the reference to the Common Travel area in Protocol 20 to the European Union Treaties had to be explored. Having clearly documented the origins and evolution of the Common Travel Area, my officials, as part of a team led by the Taoiseach’s Department and the Department of Foreign Affairs, were in a position to make the case to the Commission that the CTA was a valid pre-existing bilateral arrangement that did not conflict with EU law.
“Fortunately, the UK from the outset made clear their intent to maintain the Common Travel Area, and the Commission were conscious of its importance in the context of Northern Ireland.
“It is now accepted, by both the UK and the EU, that the Common Travel Area can remain, whether or not there is a Withdrawal Agreement,” he said.
The minister added that maintaining peace and security in the North had to be a priority.
“From the outset, we have identified the European Arrest Warrant (EAW) system as the most important EU instrument in the area of judicial cooperation in criminal matters.
Significant
“From our perspective, the EAW was not only a significant advance over pre-existing extradition type arrangements, but it has proved fundamental in underpinning the high levels of trust and co-operation that now exist between the Garda Síochána and the Police Service of Northern Ireland – not to mention other police services in the UK.
“Its importance was something we raised consistently, with both the Commission’s Article 50 Task Force and UK side. The draft Withdrawal Agreement has special transitional provisions to avoid any cliff-edge, and we had reached the stage in negotiations that it looked like there would be a commitment to have an EU/UK EAW-type system agreed for the future.
“However, the spectre of a no-deal Brexit has cast a shadow on the progress made in this area over the last two years. We are now in the situation where we are preparing for the application of the 1957 Council of Europe Convention on Extradition. It will provide a viable extradition system, but it is a step back.”
The minister said that Britain would become a third country when it left the EU, and this had implications for sharing personal data in the context of a criminal investigation.
“The EU Commission has stated that they are not contemplating an adequacy decision in the context of a no-deal Brexit. An adequacy decision would, in practice, have overcome many of the difficulties associated with sharing data with agencies in a third country.
“My officials have been working hard with the Gardaí and the Office of the Attorney General to establish how the problem of data-sharing in a law-enforcement context could be overcome within the framework of the EU data protection regime,” Minister Flanagan said.
Finally, on immigration, the minister added that Ireland had only been able to maintain the Common Travel Area because it remained outside the Schengen area.
“In essence, the Common Travel Area can be seen as a “mini Schengen”. Being separate to Schengen means that maintaining open borders to the UK for the movement of people does not threaten the integrity of the Schengen area.
Instruments
“As a result, we do not participate in most EU immigration-related instruments. The exception is in the area of asylum policy. In particular we will be affected by the fact that the UK will be leaving the Dublin Regulation and Eurodac. These instruments provided a mechanism for establishing in which EU country a person has first applied for international protection, and for their return to that country.”
Non refoulement is the practice of not returning a non-national to a country in which they are liable to be subjected to persecution, and while the provision on non refoulement is not directly related to Brexit, its implementation is made much more significant in the context of Britain being outside the EU asylum regime, the minister said.
He pointed out that a comprehensive range of EU instruments had been built up over the last 45 years in matters such as judicial co-operation in civil matters, family law, as well as civil and commercial transactions.
While a range of other international instruments may address many of these issues, these are not always as effective, or user friendly, as the comparable EU instruments, he said.
“Although the impact may not be immediately visible, in the absence of EU-wide solutions in family law matters, for example, cross-border divorces or child-custody cases may become more complicated. It is likely to take some years for the EU to negotiate new arrangements with the UK,” he continued.
'Critical'
Part 13 of the Brexit Bill provides for two “critical” amendments to the Extradition Act 1965.
“Following examination of the options available for extradition arrangements between Ireland and the UK in the event of a no-deal Brexit, the fall-back solution would be to apply the 1957 Council of Europe Convention on Extradition, to which both Ireland and the UK are party, to extradition arrangements between Ireland and the UK. The provisions of the convention are given effect to by Part II of the Extradition Act 1965. While the extradition procedure under the convention is not as effective as that of the EAW, in the event of a no-deal Brexit, it would provide a workable solution,” the minister said.
However, the 1965 act does not permit extradition of own nationals “unless the relevant extradition provisions otherwise provide”, and transmission of extradition requests is via the diplomatic channel and in hard copy.
The minister told the Dáil that the Attorney General had advised that clear provision should be made in section 14 (Irish citizens) of the 1965 act, providing that the ban on extradition of own citizens should not apply in reciprocal circumstances where requesting states also extradite own citizens.
Extradition of own citizens
“Section 14 (Irish citizens) of the 1965 act is, therefore, being amended in order to ensure that the current EAW arrangement in relation to extradition of own citizens continues and that, in applying the provisions of the Council of Europe Convention, extradition of an Irish citizen will be permitted on the basis of reciprocity – where the law of the requesting country does not prohibit the surrender of its citizens. The UK has already indicated that it intends to continue to extradite its citizens post Brexit,” Minister Flanagan said.
Request for extradition
“The act is also being amended to alleviate the burdensome extradition procedure with receipt of requests to the Minister for Justice, via the diplomatic channel, in hard copy.
“The amendment to section 23 provides for direct transmission of extradition requests to the Minister for Justice and Equality, rather than via the diplomatic channel, and for the transmission of such requests by modern means of communication – that is, by electronic means or otherwise. The amendment gives the Minister for Foreign Affairs and Trade an order-making power, following consultation with the Minister for Justice and Equality, to provide for requests for extradition to be made directly to the Minister for Justice where this has been arranged with a country by direct agreement,” he said.
Extradition
It is proposed that an order will be made providing for transmission of extradition requests from Britain directly to the Minister for Justice and Equality.
Part 14 contains a number of amendments to the Immigration Acts, the minister said.
“The amendments in section 88 and 89 of the bill are for the purposes of correcting a lacuna in the provisions relating to non refoulement in our law. I should point out that refoulement considerations were, in fact, being undertaken at all times. This provision provides legal certainty in this area. The amendment is required, as failure to introduce this amendment would expose us to the risk that removal would be unsuccessful, and thus undermine arrangements to operate a Dublin Regulation-style arrangement, if needed.
“The Dublin Regulation is an EU instrument which enables persons claiming asylum in each other’s jurisdiction to be returned to the country that they first claimed asylum, or had a presence in.
Legal basis
“Section 90 of the bill amends the Immigration Act 2004 to provide a legal basis for fingerprinting Irish-visa and transit-visa applicants. The taking and sharing of biometrics is key to the operation of the British Irish Visa Scheme (BIVS), which enables a short-stay visa issued by Ireland in respect of certain countries (currently China and India) to be used to also travel to the UK without the need for a separate visa.
“This requires biometric data to be captured and checked against both Irish and UK systems. The continuance of this scheme is considered very important to both the tourism and business sectors.
“Accordingly, the bill, at section 90, contains an amendment to the Immigration Act 2004 for this purpose,” the minister concluded.