EU-UK Trade and Cooperation Agreement: Motion

Minister of State at the Department of Transport (Deputy Hildegarde Naughton)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Council Decision on the position to be taken on behalf of the European Union in the Partnership Council established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the interim period referred to in Article 552(11) of that Agreement during which the United Kingdom may derogate from the obligation to delete Passenger Name Record data of passengers after their departure from the United Kingdom,

a copy of which was laid before Dáil Éireann on 2nd December, 2021.

I am speaking on behalf of the Minister for Justice on a motion referring to a draft proposal by the Council of the European Union to facilitate exchange of passenger name records, PNR, data under the EU-UK Trade and Cooperation Agreement, TCA, with the United Kingdom. PNR data is information provided by passengers during the reservation and booking of tickets and when checking in on flights. The content of PNR data varies depending on the information given by the passenger and may include, for example, dates of travel, travel itinerary and contact details such as address and phone number. The exchange of this information is to assist in the prevention, detection, investigation and prosecution of terrorist offences and serious crime. The exchange of this data is an essential tool for law enforcement, including countering terrorist threats across the EU and, of course, is of particular value to law enforcement co-operation between Ireland and the UK.

Deputies will be aware that if Ireland wishes to take part in an EU measure with a legal basis that falls under Title V of the Treaty on the Functioning of the EU, TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required. The Council intends to adopt this measure by 20 December 2021 at the latest, therefore, it is necessary to secure Oireachtas approval as a matter of urgency and, in light of this, I ask Deputies to pass this motion without a vote. The proposal provides for an extension of the special arrangements currently in place in the TCA to allow the continued sharing of PNR data with the UK, which in the absence of a decision to extend will expire at the end of this year, that is, on 31 December 2021.

The extension will allow the existing special arrangements to continue to run until the end of 2022. It is worth noting that this measure makes no policy changes in this area. As the extension needs to be in place by the end of the year, the latest it can be adopted at the EU Council is 20 December 2021. Regretfully, this has put us under pressure to complete the opt-in process as soon as possible. However, as I mentioned, I assure Deputies that the measure is purely technical in nature and does not introduce or amend any policy matters. In essence, it provides for a continuation of existing arrangements until the end of 2022. The Government sincerely regrets the lack of time given to the Houses of the Oireachtas to consider this matter, which was not within the Government's control. Unfortunately, the European Commission was unable to produce the draft proposal earlier than 26 November due to the requirement for internal consultations. I trust that Deputies understand the urgency and necessity of this motion passing today.

The Trade and Cooperation Agreement between the EU and the UK includes arrangements for exchanges of PNR and the protection of such data shared by EU airline carriers to the UK. An essential precondition for the arrangements as set out in the TCA is that the UK applies data protection standards essentially equivalent to those set out in the EU's standards and complies with specific additional data protection standards. While EU member states can retain PNR data for a period of five years, the TCA imposes a requirement on the UK to delete PNR data after one year. This is due to the change in the UK's status from EU member state to a third country.

The UK's PNR data processing systems were originally configured to comply with the requirements of EU law. As such, their technical systems, including for the deletion of PNR data, operate in exactly the same way as the systems operated by EU member states. However, the UK currently has no mechanism to operate an automated risk assessment process or to delete PNR data automatically other than upon expiry of a period of five years beginning with the date of transfer. As such, the UK's system for processing PNR data remains configured as it was prior to the UK leaving the European Union. However, intensive work is ongoing by the UK to ensure the necessary technical adjustments are being made to guarantee its compliance with the requirements of the TCA.

In the meantime, the UK is operating additional interim period safeguards manually. This includes operating a manual risk assessment process and manually logging and putting beyond use PNR data that should be considered as deleted. Due to these circumstances, Article 552 of the TCA provides for a derogation to this requirement to enable the UK to adapt its systems to ensure compliance. This derogation ends in December 2021. The TCA allows for two such yearly extensions until the end of 2023. The UK has informed the Commission that work is continuing on their systems to facilitate this. It is now in the process of redeveloping its technical systems for processing PNR data to meet the requirements of the TCA and it has requested an extension to the derogation. Consequently, the Commission has published this proposal in order to facilitate an extension of this special arrangement up to 31 December 2022, thus allowing the continued sharing of PNR data with the UK.

It should be noted that Article 552(11) of the TCA sets out additional safeguards the UK must follow during the derogation period. In conjunction with the request from the UK, the UK's Information Commissioner's Office carried out an independent review of the safeguards provided for in Article 552(11) of the TCA and confirmed that it is satisfied that the safeguards are in place and are operating as set out in the UK report.

Without the extension of the derogation period, PNR data will cease to be shared between the EU and the UK from midnight on 31 December 2021. As Deputies will understand, if this were to happen it is something that could potentially have serious repercussions in the fight against terrorism and could impact on the investigation and prosecution of criminal cases. As mentioned earlier, the proposal presented by the Commission includes the use of the legal bases of Article 87(2)(a), making this a measure under Title V of the TFEU. Thus, Protocol 21 applies and Oireachtas approval under Article 29.4.7° of the Constitution is required for Ireland to opt into the measure. The views of the Office of the Attorney General were sought and the legal advice received has confirmed that Oireachtas approval under Article 29.4.7° of the Constitution is required.

To conclude, I emphasise that effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority and Ireland will play its full part in that. Ireland's role in the EU has changed in recent times and will continue to evolve in the coming years. Full implementation of the TCA is necessary for us not only to play our part as an EU member state, but to ensure that our post-Brexit relationship with the UK continues to grow and develop. Part of this relationship is ensuring that the safety and security of our citizens is protected and this measure is necessary to do that. I trust that the House can support the exercise of Ireland's opt-in in respect of this measure. Ongoing exchange of PNR information with the UK is something that is entirely within Ireland's strategic interest. I thank Deputies for their consideration of this important matter.

Deputy Ruairí Ó Murchú

I accept what the Minister of State said that this is a technical necessity and just a continuation of the status quo. We all accept that it makes absolute sense that passenger name records information is maintained for a certain period. We all know that we need all the tools that are required to deal with international crime, which is utterly cross-border and, in some cases, technically more proficient than traditional states or even the likes of the European Union.

We have to get ourselves into the game.

It hardly comes as a shock that Brexit, the TCA and whatever else have thrown up many anomalies. People could nearly be persuaded to say that Brexit was not necessarily a great idea, but we are where we are. Obviously, we want continuity. What is envisaged when we get beyond this interim period is that PNR information will be maintained for 12 months rather than five years. The stipulation in this regard is laid down in the TCA between the European Union and the British Government. I am not sure that this is necessarily a great idea in the sense that when we are dealing with issues relating to international crime and multiple jurisdictions, it can be incredibly complicated and take a huge amount of time. In that context, information needs to be retained and databases need to be maintained. We know the difficulties and complications we have in dealing with the financial and banking sector. All of the complications in question meant that time is needed. Whether the outworkings of this are a good idea, I am not sure. However, this extension needs to be agreed here and now.

We are dealing with a British Government that is looking for this extension because it does not have its systems up to date to allow it to do what it said it would under the TCA. So be it, but it is very difficult to be dealing with this when the mood music is not great. I heard a commentator in the past while talk about the feeling in Government circles being that there is a 50-50 chance of Article 16 being triggered. Nobody believes it will be triggered before Christmas. That is the saving grace. Obviously, the behaviour of the British Government has been utterly ridiculous. I would like to say it has been out of character, but my view of British Governments over many years is that even when you think you have a deal, you do not and the British will go back and try to renegotiate parts of it. Someone who would have known far better than me about dealing with the British Government over many years had the idea that even if it is willing to go from point A to point B, it will take the most circuitous route possible, and that will give rise to a huge amount of pain for you rather than them. That is where we are.

Obviously, this also gives succour to certain elements of political unionism that are, let us be clear, probably in fear of the ongoing discussion in respect of Irish unity. A huge number of people who would have probably previously fallen into that bracket of being unionists are at least having a discussion. The thing for an awful lot of people is Irish unity is a means of staying within the European Union and not being allied or wedded to the union with Britain and the madness of dealing with this Tory Government or whatever other Government might be thrown up by the British electorate. That is where we are in respect of this matter.

We have had multiple statements and declarations by David Frost and Boris Johnson. You are not always sure what you are dealing with - whether it is an actual negotiation, a gambit or somebody who is just playing to the home crowd and who will eventually come up with a sensible solution. The fact is that you do not know. It provides a certain succour to a type of political unionism that does not want to deal with anything and that has got some way worked up about the sea border when the reality is that, from a business perspective, multiple studies and research work and any of our interactions or those of the Government with business, agriculture and various representatives show that there are definite benefits for the North of staying within the Single Market. Obviously, there are also benefits to remaining connected with the British market at the same time. There is an argument that political unionism could be cutting off its nose to spite its face.

The fact is that many others do see the benefits in this regard. Commissioner Šefčovič and the European Commission have tried to come up with solutions, whether in the form of the pledge of an 80% reduction in sanitary and phytosanitary, SPS, checks or the possible 50% reduction in customs checks. All of this can be worked through. I get that there will still be multiple issues for a long time. That is the fact of Brexit. It is fair to say that the Irish protocol was put in place to be a mitigation and to protect conditions on the island of Ireland, where it is no way acceptable for there to be a return of a hard border. I live in Dundalk, not very far from the Border. We all know the history that goes with that and nobody can accept going backwards.

We will eventually see where the British Government stands, but the games it is playing are of no benefit to anybody. We have to engage robustly with it, on that basis. There is no choice. We always have to work from the point of view of maintaining dialogue and attempting to get the best result. The best result would be that these Frost-Šefčovič talks come up with a solution and that there will be no further threats and, certainly, no triggering of Article 16 or anything else beyond that. That solution will provide huge benefits for businesses, those in agriculture and others in the North.

We will also have to deal with the issue of the democratic deficit in the context of the North having to operate under European rules, without having representation. However, there are multiple methods of doing so, whether it is observer status, certain groupings operating within the European Union and ensuring there is engagement, especially at an Executive and assembly level. We need to make sure that all of this happens. It is absolutely necessary. I get that the mood music is not especially great and we have ongoing threats, such as those from political unionism. The latter is probably down to the fact that it is under severe pressure, electorally, both to the left and to the right. It thinks it can play the trick it has always played of wrapping the Union Jack around it and calling people out onto the streets. That may work to some degree at election time, but it is certainly not working at present. It is also not beneficial to a huge number of people. We want to see definite solutions.

We also need to look at our solutions here. I will put it quite clearly. We are 100 years on from the treaty. In historical terms, it was a failure of the republican movement at that time not to have a cohesive organisation and leadership or a well-enough worked out strategy to deal with the treaty negotiations. It was a lost opportunity that ended in many tragedies, one of the biggest being partition. We have all had to deal with the outworkings of that.

Until we finish that connection with Britain and with British Governments, we will still have to deal with this madness. I welcome what has happened, particularly a number of the moves in respect of the shared island unit, whether those be cross-Border infrastructural projects such as that relating to the Narrow Water bridge and the commitments in respect of them, the studies, reports and modelling being considered in the context of the North and the South and how Departments work, educational attainment, economies or whatever other issues we are dealing with or the shared island dialogue being expanded properly. Those who will be offended are going to be offended. We need a citizens' assembly. We need to have a full conversation with everyone who is willing to have that conversation. Irish unity is coming, and it will be an absolute disaster if we do not plan for it.

Deputy Catherine Murphy

There is no doubt that the exchange of passenger data is critically important to the UK, to Ireland and to the wider EU law enforcement communities. So far, the exchange of data has been largely unaffected by Brexit, which was a significant win for the UK. As a third country, the UK must be held to higher standards than it was previously.

In this case, the EU has ruled that the UK data protection system is in line with the GDPR and that the exchange of this kind of data can go ahead. However, we are aware of the rhetoric that has come from Downing Street over the past couple of years. It shows a desire to break with GDPR rules and this will have to be kept under constant review. It could be empty rhetoric but we need to watch it closely. No one wants the UK's national security to be at risk. It is our nearest neighbour. Is there a person in the House that does not have some connection to the UK in terms of family members? However, that does not mean we can accept anything other than the highest degree of compliance with the standards set by the GDPR.

The Commission made a point of excluding data transfers for the purpose of UK immigration control from the adequacy decisions it adopted in November. This is due to the ruling in the UK courts that the Home Office practice of denying people their personal data was out of line with the GDPR. That seems to affect about 60% of people seeking access. I think it is to do with denying people access to their data. It is a high number of cases. Do the transfers of PNR data for the purposes of immigration control continue despite that court ruling or are they on hold until the UK remedies the situation?

The transfer of PNR data relating to international flights has been common practice worldwide since the 9/11 attack. The EU has many agreements with third party countries as a consequence. Recent judgments by the European Court of Justice have shown that the EU is enforcing increasingly high standards for privacy protections, which is welcome and is needed, especially for agreements formed prior to the GDPR coming into effect. Passenger name records include names, addresses, phone numbers, credit card information and meal preferences, a detail that can indicate ethnicity, religious belief or political affiliation. Strong safeguards need to be in place for the exchange and use of the information. There could be an obvious risk of profiling, for example.

It is obvious that this needs our approval and to go ahead, but I would like to hear a response to the point on the UK courts and the non-provision of information which those courts identified.

Deputy Cathal Berry

Good afternoon, Minister of State. While I welcome the opportunity to speak on this important motion, I wish it was not necessary. I wish the UK had not left the European Union but, unfortunately, that train has left the station. Perhaps the UK will rejoin in due course.

I had read the motion and am happy to support it for three primary reasons. First, it has already been agreed at European Council level. The Council has done due diligence and its strong assessment is that this is the best way to proceed in light of the less than ideal circumstances. I agree with that recommendation.

Second, it makes sense for like-minded countries, particularly neighbours, regardless of which political bloc they align themselves with, to exchange information from a passenger name record point of view. That is for a number of reasons, including the fact that is in our interest to ensure there is good order in the skies and so that, if there is a tragedy or catastrophe, there is no ambiguity about who is on the aircraft and next of kin can be informed. As the Minister of State alluded to, the most important reason is from a law enforcement perspective. It is so that we are in a position to prevent, investigate and prosecute serious crimes by terrorist organisations and organised crime.

Third, I recognise and appreciate that we are here today because of a failure on the British side to implement IT systems and get structures in place. It is a recurring theme that they did not plan properly for Brexit but there is no point in punishing our nearest neighbour because it is in Ireland's interest that, on 31 December, there will not be mayhem in the skies and that Irish and European Union passengers will be able to travel freely.

The other reason I am in favour of this is because the current arrangements are superior to those proposed by the UK Government. On that basis, I am happy that we roll the existing arrangements over. I wish the motion was not necessary but if past performance is an indicator of future behaviour, I suspect we will be back here in 12 months' time, rolling over the same motion until the sunset clause kicks in at the end of 2023.

Minister of State at the Department of Transport (Deputy Hildegarde Naughton)

I thank Deputies for their contributions. I will have the Minister come back to Deputy Catherine Murphy on the question she posed. As I mentioned earlier, this measure is essential to ensure continued close law enforcement co-operation between the EU and the UK. It is vital we meet the highest standards possible when it comes to the investigation and prosecution of crimes, and the ongoing transfer of PNR data helps to ensure that. This extension of the special arrangements in place in the TCA will allow the continued sharing of such data with the UK which, in the absence of a decision to extend, will expire at the end of 2021. The extension will run until the end of 2022. The continuation of these special arrangements to facilitate ongoing exchange of PNR information with the UK is the key to co-operation between the EU and the UK on law enforcement. I commend this motion to the House. On behalf of the Minister for Justice, I thank all Deputies for attending today.

Question put and agreed to.

Dáil Éireann díospóireacht - Tuesday, 7 Dec 2021