24 January 2019
Introduction
While the focus remains on securing an orderly and agreed Brexit, the Government’s Contingency Action Plan recognises that a no deal Brexit would pose unique and unprecedented challenges for the UK, as well as for the EU, including Ireland. Brexit of any kind will mean change and managing a no deal Brexit would particularly be an exercise in damage limitation. It would be impossible in a no deal scenario to maintain the current seamless arrangements between the EU and UK across a full range of sectors, which is currently facilitated by our common EU membership.
As part of the overall no deal preparations, The Tánaiste and Minister for Foreign Affairs and Trade has obtained Government’s approval to the preparation of the Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019 (may also apply to new exit date on 31 December 2020)) Bill 2019. This single omnibus Bill is made up of 17 parts prepared by 9 Ministers. Each part will be commenced by the individual Minister at the appropriate time.
The Bill is intended to be consistent with and complementary to the steps currently underway at EU level to prepare for the UK’s withdrawal, notably as regards the implementation of the European Commission’s Contingency Action Plan and the associated legislative measures. The Bill and the Parts contained within it may be updated or adjusted further in light of ongoing developments, including in respect of EU legislative measures currently under consideration and any additional measures taken collectively by the EU27 Member States, including Ireland.
A no deal Brexit would mean that the UK, in addition to being outside the Single Market and
Customs Union, would no longer be part of the framework of EU law, becoming a ‘third country’. A number of proposed measures are focused on the need to address this legal change in the UK’s
status.
Protecting and maintaining the Common Travel Area (CTA) and the associated rights and benefits is a key part of our planning and preparations. This is vital in the context of the Good Friday Agreement and the Northern Ireland Peace Process, as well as broader UK-Ireland relations. Both the Irish and British Governments are committed to maintaining the CTA in all circumstances, and have committed to undertaking all the work necessary, including through legislative provision to ensure that the CTA rights and privileges are protected.
That commitment is reflected in measures proposed in the areas of Healthcare, Education, Justice and Social Protection in particular. A number of measures, in particular in the areas of Healthcare, Transport, Energy and Education, will support North-South cooperation arrangements. This cooperation brings tangible benefits to the daily lives of people in the border region and contributes to economic opportunity and development. It is also a very practical outworking of the peace process which allows for the normalisation of relationships between people across the island, to mutual benefit.
The legislative proposals have prioritised those areas that need to be addressed urgently and immediately through legislation. Many other issues can and are being addressed through policy and
economic responses, on an administrative basis and through targeted Brexit related resources.
Ireland’s Contingency Action Plan, published on 19 December, sets out the areas in which Ireland is taking action, including as part of a co-ordinated response at EU level, to mitigate the risks
associated with a no deal Brexit
Structure of Bill
The Bill focuses on the broad themes of protecting the citizen, and supporting the economy,
enterprise and jobs.
· Part 1 of the Bill deals provides for the Short Title of the Bill.
· The Minister for Health prepared Part 2 of the Bill to enable necessary healthcare arrangements to be maintained between Ireland and the UK in a no deal Brexit.
· The Minister for Business, Enterprise and Innovation prepared Part 3 of the Bill that will enable Enterprise Ireland to further support businesses through investment, loans and RD&I grants is part of the response to assist Irish businesses to remain competitive and extend their global footprint.
· The Minister for Climate, Energy and Communications prepared Part 4 of the Bill that provides for the modification of Single Electricity Market licences to ensure that the Commission for the Regulation of Utilities (CRU) has sufficient powers to ensure Ireland’s compliance with the EU energy regulatory framework and the ability to amend licences as is necessary.
· The Minister for Educations and Skills prepared Part 5 of the Bill that looks to clarify grant assistance for students who are studying in the UK and students studying in the State who
are UK nationals in further and higher education.
· The Minister for Finance has prepared Parts 6 to 8 of the Bill in order to ensure continuity
for business and citizens in relation to current access to certain taxation reliefs and
allowances, and the retention of a number of anti-avoidance provisions.
Legislative measures related to the Settlement Finality Directive are required to support the implementation of the Commission CSD equivalence decision and to extend the protections contained in the Settlement Finality Directive to Irish participants in relevant third country domiciled settlement systems. Part 8 of the Bill will address the issue of Insurance Contract
Continuity for Irish insurance policyholders through a temporary runoff facility for up to
three years.
· The Minister for Transport, Tourism and Sport prepared Parts 9-10 of the Bill to enable the
future continuation of cross-border rail and bus services.
· The Minister for Employment Affairs and Social Protection has prepared Parts 11-12 of the
Bill. Part 11 sets out proposed amendments to the Social Welfare (Consolidation) Act 2005
with regard to the continuation of a range of social welfare payments. These amendments
are being made in line with the Government commitment to maintaining the Common
Travel Area. Part 12 provides for amendments to the Protection of Employees (Employers’
Insolvency) Act 1984 which governs the insolvency payments scheme to ensure that
employees in Ireland whose employer becomes insolvent under the laws of the United
Kingdom continue to be covered by the scheme.
· The Taoiseach has prepared Part 13 of the Bill to amend the definition of the term “Member
State” as included in the Interpretation Act 2005, to address the position of the United
Kingdom for the duration of the transition period set down in the Withdrawal Agreement.
This is the only Part of the Bill which relates to an amendment required in the case of
ratification of the Withdrawal Agreement.
· The Minister for Justice and Equality prepared Parts 14-17 of the Bill to deal with a number of issues including extradition and the immigration process. The aim of the amendments is to ensure that there would be workable extradition arrangements in place between ourselves and the UK and to manage aspects of the immigration process, particularly datasharing on immigration in the context of the Common Travel Area.
Government will work very closely with all Opposition parties and Oireachtas members to seek their cooperation in ensuring that the necessary Brexit related legislation will pass through the Oireachtas in a timely manner. The Chief Whip will work with the Dáil Business Committee to agree the best procedural approach for progressing this unprecedented omnibus Bill which ranges across so many sectors.
Amendments to the Interpretation Act 2005
Department of the Taoiseach
Unlike the other Parts of the Bill which relate to a no-deal Brexit, this Part provides for a scenario in which the UK enters a transition period before leaving the EU.
It is a very short Part of the Bill, consisting of only three Heads, and will amend the definition of
“Member State” to include the UK for the duration of the transition period as set out in the Withdrawal Agreement. Under the Withdrawal Agreement the UK will remain subject to EU law for the transition period.
In the event that the UK leaves on 29 March without a deal, this part of the Bill will be removed
before enactment, or if enacted, it will not be commenced.
The insertion of the following “Member State” means, where the context so admits, a Member State
of the European Communities or of the European Union; and during the transition period [as set out in the Withdrawal Agreement between the United Kingdom and the European Union] [subject to further discussion with OPC/AGO it may be necessary to provide for the transition period to be
determined in an S.I.] when “Member State” means a Member State of the European Communities
or of the European Union and the United Kingdom?
Explanatory Note:
The two-Part Schedule to the Interpretation Act 2005 lists the Interpretation of Particular Words and Expressions. The definition of the term “Member State” is in Part 2 of the schedule which only concerns enactments which come into effect after the commencement of the Interpretation Act
2005. As there are likely many references to “Member State” in legislation predating the
Interpretation Act 2005 it is recommended that the definition of the term “Member State” should
appear and be interpreted in Part 1 of the Schedule so as to ensure that the term (wherever it
appears in the Statute Book) is properly understood to include the United Kingdom for the duration of the transition period as set out in the Withdrawal Agreement.
Head 3 – Commencement
Provide for the commencement of the Part on the lines of the following:
This Part shall come into operation on such day or days as the Taoiseach may by order or orders
appoint either generally or with reference to any particular purpose or provision and different days
may be so appointed for different purposes or provisions.
