Seanad Éireann díospóireacht -
Thursday, 18 Oct 2007

Vol. 187 No. 9

Treaty of Amsterdam: Motion.

Senator Martin Brady

I move:

That Seanad Éireann approves the exercise by the State of the option, provided by Article 3 of the fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:

proposal for a Council Regulation extending the provisions of Regulation (EC) 883/2004 and its implementing Regulation (Regulation (EC) No. [. . .]) to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality,

a copy of which proposed measure was laid before Seanad Éireann on 21 August 2007.

Minister for Social and Family Affairs (Deputy Martin Cullen)

I thank the Seanad for making time available to discuss the exercise by the State of the option under the Fourth Protocol to the Treaty of Amsterdam in respect of a proposal for a Council regulation extending the provisions of Regulation 883/2004, which will replace the existing EU social security co-ordination rules in Regulation 1408/71.

There is a three month time limit for notifying the President of the Council of our wish to take part in the adoption and application of any such measures and as this proposal was presented to the Council on 25 July 2007, if Ireland wishes to take part in the adoption and application of this instrument from the beginning it has until 24 October 2007 to inform Council of its intentions.

At its meeting on Tuesday this week the Government agreed that Ireland should exercise the option provided by Article 3 of the Fourth Protocol to the Treaty of Amsterdam to notify the President of the Council of the European Community that it wishes to take part in the negotiation of the proposed Council regulation on the extension of the provisions of Regulation 883/2004 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality. The exercise by the State of any such option is, under the Constitution, also subject to the approval of both Houses of the Oireachtas.

The social security rights of people living and working in the EU are governed by EU Regulations 1408/71 and 574/72. The regulations co-ordinate social security systems within the EU and are designed to remove obstacles to freedom of movement which would otherwise arise from loss or reduction of social security cover or entitlements when a person moves from one country to another.

Since the adoption of Regulation 859/2003, which was approved by the Government and the Oireachtas in March 2002 and came into force on 1 June 2003, third country nationals who have worked in two or more member states and their family members and survivors can rely on Regulation (EEC) No. 1408/71 on the same basis as EU nationals, provided they are legally resident in the territory of an EU member state.

Therefore a third country national, for example, who becomes unemployed having worked legally in the UK and Ireland, can rely on an aggregation of social insurance paid in both states to qualify for jobseeker's benefit.

This current Commission proposal aims to extend to third country nationals the provisions of Regulation (EC) No. 883/2004. This regulation will replace the existing Regulation 1408/71. However, the scope of Regulation (EC) No. 883/2004 is wider than Regulation (EEC) No. 1408/71 in that the former also covers persons who are not professionally active, not just workers as heretofore but all legally resident third country nationals.

There are a number of reasons the State should respond positively to this proposal. The conference which adopted the Amsterdam Treaty amendments took note of the declaration by Ireland that it intended to exercise its right under Article 3 of the Protocol on the position of the UK and Ireland to take part in the adoption of measures under Title IV of the treaty, establishing the European Community to the maximum extent compatible with the maintenance of the common travel area with the UK.

In addition, the proposal is also in keeping with the spirit of the conclusions of the 1999 Tampere European Council, in which heads of state stressed that member states must ensure fair treatment of non-EU nationals who reside legally on their territory. This includes better integration of third country nationals who are legally resident in the territory of a member state by giving them rights as close as possible to those enjoyed by EU citizens. This position was echoed by the Justice and Home Affairs Council in 2005. The extension of the EU regulations on social security to third country nationals is an important means of achieving these EU policy goals.

Ireland supported the extension of Regulation (EEC) No 1408/71 to third country nationals on the basis that this extension was fully in line with national policy. Therefore, to continue this policy we should support the current proposal from the Commission. Additionally, as there are no nationality conditions in Irish social security legislation, people legally resident here and who take up or are entitled to take up work in Ireland have the same social welfare entitlements as Irish nationals.

I also emphasise that these extended rules do not give any entitlement to third country nationals to enter, stay or reside in a member state or to have access to its labour markets. Third country nationals who are covered by these provisions must be legally resident on the territory of a member state and therefore must have a temporary or permanent right of residence. Movement to another member state must be in compliance with the second state's national legislation on entry and residence.

Although I am satisfied the purpose of the current proposal is to extend social security protection to non-active third country nationals on the same basis as non-active EU nationals, Ireland would be keen to partake in the discussions of this proposal to ensure Ireland's existing conditions for such payments would apply. It is important for Ireland to be in a position to influence the negotiations on the proposal.

Given that certain third country nationals already enjoy protection of social security rights it is considered that the fact that the scope of Regulation (EC) No. 883/2004 also covers people who are not professionally active will not have a significant impact on the burden borne by member states, as the number of persons who will be covered over and above the current situation will be quite low.

Like Ireland, the United Kingdom opted in to the extension of Regulation 1408/71 and 574/72 to third country nationals but it is not known at this stage what the United Kingdom intends to do in regard to the current proposal. Should it not opt in, it is considered this will not have any implications for the common travel area as both the UK and Ireland would continue to operate their existing immigration controls for third country nationals, and the proposal does not confer any new entitlement of residence.

For the reasons I have outlined I recommend the motion to the House.

Senator Frances Fitzgerald

When the Leader stated this morning that this motion was being introduced I made the point that this kind of regulation should have had serious discussion, preferably in a committee where details could have been given. A vote was called on the taking of the motion. It is unsatisfactory for it to arrive in such a format in the Dáil and Seanad today, with a very short debate and without significant detailed background information.

At a time when we face a referendum on Europe, it is very important we do everything we can to engage people in the European process and give them information, good news and bad news, on the reasons we are doing certain things. Taking this regulation as an example, it would be useful to have information such as the numbers of third country nationals involved and what kind of claims potentially could be made regarding pensions, health care and insurance. What is the potential cost to the Exchequer of the measures outlined under this regulation?

We saw an example none of us really expected when we introduced the child care supplement. There was application of this outside the country also, with subsequent cost. People were surprised at the implications which arose under that measure, from an EU perspective.

In a year coming up to a referendum, many of us want to get widespread support for European proposals, and it would have been important to use a committee to discuss the details of this. In other countries, such as the UK, there has been much discussion on the health-care aspects of this regulation and whether the UK would opt in with those.

This is part of the free movement of persons across the EU and we know this to be one of the fundamental rights and freedoms offered to EU citizens and some residents since the establishment of the European community. Permitting workers to avail of social security as they move from country to country is one of the barriers lifted by European law to allow workers to, for example, claim benefits in their country of origin while working in another EU member state. There otherwise would be little incentive for people to move across the Union. We have seen much evidence of movement of this kind in recent years as a result of our booming economy.

Regulation 1408/71, part of Union law, was designed to remove obstacles to free movement and it applies to all parts of social security, such as pensions, health insurance, unemployment and care insurance. Regulation 883/2004 was supposed to replace Regulation 1408/71 but it goes further in scope and includes non-economically active persons, such as women working in the home and legally-resident third country nationals. In that context, the Minister indicated that the number of people who fall into this category will probably not be very high. I would like him to indicate the evidence on which his assertion is based and to outline what will be the likely numbers. The regulation covers Americans, Australians, Canadians and a wide range of other nationalities. How many people are likely to claim under the change to the regulation? It would be good economics and good politics if we were to be informed of the facts.

Social security is not harmonised in the European Union, it is co-ordinated. The Commission has developed a proposal for a regulation by the Council with the desirable aims of extending the scope of free movement in respect of social security and simplifying, as well as modernising, actual practice. However, it has emerged that the simplification process is quite complex. This is evidenced by some of the matters raised by the Portuguese Presidency in recent months. The latter noted that the implementation of Regulation (EC) 883/2004 involved listing a wide range of long term benefits available in each member state; knowing of any benefits in kind; ascertaining the status of voluntary insurance; and obtaining the views of member states on particular aspects of social security. This proposal was discussed in the House of Lords in May and the UK has expressed a form of reservation, or reserved position, as to whether health care will be included for the UK or included only on a provisional basis.

The implementation process relating to this new social security-social protection proposal is taking place in Europe in a piecemeal fashion — on a chapter-by-chapter basis — which makes it difficult to obtain an overall view. The proposal will extend to all legally-resident third country nationals such as Australians, Americans and Canadians the protections and provisions of Regulation (EC) 883/2004. It is, therefore, of particular interest to the many non-EU nationals working for US corporations in Ireland, as well as non-EU construction workers and health care professionals. It applies to such persons and their families in so far as they are moving between two or three member states, that is, there is a cross-border dimension.

I note the points the Minister made in respect of the equity aspect of this matter in the context of EU and non-EU citizens. He also referred to the goal of EU policy that there should be as much harmonisation as possible, a development I would support. The Commission's proposed regulation appeared on the agenda of the meeting of 5 October of the permanent representatives in Brussels. However, it is not known what views were expressed on behalf of Ireland on that occasion. I would like information relating to what was stated at the 5 October meeting to be made available.

The Minister stated that this is an attempt to obtain agreement in order that he will be in a position to enter into negotiations. When replying, perhaps he might address some of the issues I have raised in the context of the format in which this matter will return to the Houses of the Oireachtas. Will he also indicate the type of information he expects to be able to supply to the Houses at that point?

I would have preferred to have received a comprehensive briefing from the Departments of Foreign Affairs and Social and Family Affairs regarding the implications of this proposed regulation. Having said that, however, my party will not oppose the motion.

Senator Martin Brady

I welcome the opportunity to speak on this motion on a European Council regulation relating to social security. Across the EU there has been a drift away from assisting those in need on the fringes of society. Regardless of Ireland's massive wealth, there are still pockets of serious social and educational disadvantage. When one considers the existing social security system, one realises it is appropriate that we are engaging in this debate.

The fact that many people are doing well in a vibrant economy does not mean that everyone's fortunes are improving. Every Member of the Oireachtas has a responsibility to ensure that those in the bottom 20% of society are given assistance in that regard. One of the most important strategies for achieving this is the use of social security policy. The regulations in this area co-ordinate social security systems within the EU and are designed to remove obstacles to freedom of movement which would otherwise arise from loss or reduction of social security cover or entitlements when a person moves from one country to another.

Since the adoption of Regulation 859/2003, third country nationals who have worked in two or more member states and their family members and survivors can rely on Regulation 1408/71 on the same basis as EU nationals, provided they are legally resident in the territory of an EU member state. A third country national who, for example, becomes unemployed having worked legally in the UK and Ireland can, therefore, rely on an aggregation of social insurance paid in both states to qualify for jobseeker's benefit. We must support those who are unemployed, not just Irish citizens but everyone who has contributed to the economy. Those countries in the west with strong economies have an international responsibility to distribute their wealth to poorer states.

This current Commission proposal aims to extend to third country nationals the provisions of Regulation 883/2004 and pursues the same objective as Regulation 859/2003. The scope of Regulation 883/2004 is wider than Regulation 1408/71 in that it also covers persons who are not active — not just workers but all legally-resident third country nationals. The legal basis for this regulation allows the Council to adopt a measure to uphold the rights and conditions of nationals of third countries who are legally resident in a member state to reside in other member states.

I welcome the motion, particularly because Members receive quite a number of queries from Irish people abroad who are affected by the matters to which it relates, and I commend it to the House. I thank the Minister for coming before the House to deal with it.

Senator Ivana Bacik

Like Senator Fitzgerald, I welcome and support the substance of the regulation. However, I share her concerns regarding the manner in which it has been introduced, particularly in the context of the absence of information concerning its substance.

We are being asked to debate this matter in the absence of any text, other than the Minister's script, which can outline for us the substance of the regulation. This is the first occasion on which an issue of this nature has been brought before the House since I was elected. On occasions when we debate legislation, I have become accustomed to reading copies of the relevant Bills — which are circulated to Members — in order that I might have notice of the substance of the proposals the House is to discuss. However, that was not done in this instance. The motion appeared rather suddenly on the Order Paper. It is not appropriate that important matters of legislative policy should be determined in this ill-informed manner.

This illustrates the problem that has arisen in terms of the lack of scrutiny and transparency regarding the implementation of EU laws. In the past, that fact has become a major issue in constitutional amendment campaigns relating to new EU treaties. It is likely to be a significant issue in next year's debate on the reform treaty. Ireland is the only EU country in which the latter will be put to a referendum. It is vital that we should be in a position to state that there is proper and adequate parliamentary scrutiny of matters referred to us at European level.

It would be appropriate for us to implement new rules and procedures so that decisions proposed by Irish Ministers and Cabinet members in Europe would be notified and discussed before they are made. It is a positive development that we are debating this but we need to look at how we debate these things so that we can debate them in a much more informed and better prepared manner in the future.

There is a model in other countries, especially Denmark which has a very active parliamentary committee which scrutinises decisions that will be made and positions that will be taken by Ministers at meetings in Brussels before any Danish Cabinet members go and take positions there. There are other models we could look to. Certainly the Seanad could play a very important role in scrutiny of European legislation and how it is to be implemented in this country.

Turning to the substance of this regulation, it is an important goal that we ensure fair treatment of non-EU nationals who reside legally in Ireland. I very much welcome this policy and am delighted that Ireland is supporting the extension of the regulation to third country nationals. I very much support the comments made by Senator Brady that it is important that we treat third country nationals — people from outside the EU — in the way we treat our own citizens in terms of these social security measures.

It is important that we send out a signal of welcome to people who have made their home in Ireland and have made an immense contribution to our economy and society and that we meet their needs if they find themselves unemployed or in need of social assistance and not fall short of other EU countries in doing so.

We have, perhaps, been less than generous in our assistance towards asylum seekers in the past. In that regard, we need to look again at the direct provision rules, which have caused a great deal of problems for asylum seekers and have left many children of asylum seekers in some conditions of poverty.

This regulation is very important and its substance is welcome. I just wish we had been given a little more information about it before the debate.

Senator Dan Boyle

The need for a common approach to social security and social insurance throughout the EU is necessitated by the principle of free movement of labour and it is the corollary to one of the cornerstones of the EU and its institutions. There are times when its application might have a negative effect and have a higher cost than had been anticipated but because it is based on the corollary principle, it is something we should be prepared to accept, given our support for a number of EU treaties.

The difficulty, as the Minister probably knows from Council meetings, is trying through these directives to marry the different types of social security systems that exist in the different countries, the different rates of payment that accrue to them and even the services that are provided as a result of social security. In her contribution earlier, Senator Fitzgerald spoke about reservations that arose when this issue was debated in the House of Lords in the UK about the British health system being applied to this directive. This is obviously because there is a national health system in Great Britain for which no direct equivalent exists in other EU countries.

We have had examples in this country, for example, the payment of child benefit to EU nationals to which they were entitled under previous regulations and directives. The corollary principle also applies to Irish citizens who find themselves in a similar situation in the countries concerned. The fact that, because of our rates of pay, Irish citizens would not achieve much monetarily is due to where we stand as an economy at the moment. We must also be conscious that when Ireland joined the EU in 1973, our gross domestic product was only 71% of the EU average. We are talking about a situation that might have a short-term effect but if many of the accession states experience the same economic effect as us, it should be something that works out in the medium and long term as regards the standardisation of the level of payments and services.

We should not be having a debate about whether we are ending up paying too much money or whether it is wrong for us to be a net contributor in this kind of situation. It is the principle about which we are talking and we have bought into it in terms of successive EU treaties.

I am glad that, despite the way the motion is being moved today, there will not be a division on it. To be fair, it was moved in the middle of our recess and the number of sittings of both Houses of the Oireachtas and the Cabinet since then meant that there was no other option except to deal with it in this way. We still have not set up particular Oireachtas committees.

It is an issue about which the Minister is all too aware and we will return to it regularly because of the problems mentioned by me at the start of my contribution. There is no standard EU model of social security and social insurance. In fact, our levels of social insurance payments are much lower than in many other EU countries. I do not see a demand from many in this Chamber or anyone else in public life to change this situation in terms of higher social insurance payments. Perhaps this is a debate we will have in future if we are talking about standardisation in the EU in terms of social security. Does that mean reaching some kind of agreement on how all EU workers are treated? Can that be done in economies that exist at different levels of success?

On those grounds, this motion should be accepted in its own right. The principle is something that is already underlined through many EU treaties. If we wish to be seen in the best light in terms of influencing this debate in the future, we have no option but to accept it as it is and entering whatever reservations we have in the context of trying to bring about improvements in the broader agreement that must be reached at EU level.

Senator Phil Prendergast

I thank the Minister for coming to the House this afternoon. My question merely relates to the fact that there is no qualitative indicator which makes it possible to estimate exactly how many people are affected by this proposal. I am aware that some third country nationals are already covered and if they are in this country legally and are not working, they are entitled to the same benefits as others. There may not be a huge cost to the Exchequer as a result of that. Anyone who comes to this country legally is entitled to the same benefits and I support the motion.

Minister for Social and Family Affairs (Deputy Martin Cullen)

I thank the Senators for their participation in the debate. Unfortunately, Senator Bacik has just left but I wish to inform Senators that an information note on this issue was submitted to the EU steering committee in August. The proposal itself was laid before both Houses in August.

We must bear in mind that the Government felt strongly that we should be part of the debate. This is not about the substance of what may or may not be agreed. It is simply a motion to allow Ireland to participate in the debate. It is a Commission proposal so it has not come before the Council yet and it probably will be some considerable time before that happens. Clearly, when we get into that and if things begin to emerge, it will obviously be dealt with by the Oireachtas Sub-Committee on European Scrutiny in the first instance. I am sure the sub-committee will forward it to the Oireachtas Committee on Social and Family Affairs when that committee is set up. Therefore, there will be ample time to debate the substance of what is emerging as we go forward but it is not expected for some time. On balance, it was the right decision that Ireland should be involved, not just to be positive but also to protect the kind of quality system we have in this country.

Another point I wish to make, which was made earlier, is that this is not harmonisation of social security, rather it is co-ordination between different social security systems. There is a fundamental difference between these two things. That is where we are at this stage. It is very early days. It is a Commission proposal and until we get into the debate and discussions, we will not know exactly what is going to emerge. Clearly, the Oireachtas Sub-Committee on European Scrutiny will be provided with and privy to documentation. It is fine if it wishes to forward this documentation to the Oireachtas Committee on Social and Family Affairs. I thank Senators for their support.

Question put and agreed to.

An Cathaoirleach

When is it proposed to sit again?

Senator Martin Brady

At 2.30 p.m. on Wednesday, 24 October 2007.