At a national level intensive work has been undertaken across Government to screen all Irish legislation currently in force to identify areas where legislative amendments will or may be required in the context of a no deal Brexit. A committee of senior officials is drawing up proposals for the drafting and enactment of the necessary emergency legislation with the involvement of the Office of the Parliamentary Counsel and Advisory Counsel attending along with the Cabinet Secretariat and Parliamentary Liaison Unit in the Department of the Taoiseach.
The specific areas requiring legislation have been identified by the relevant line Departments. It is proposed that legislation across different sectors be grouped into a small number of omnibus Bills in order to assist with the speed of their transition through the Houses. The Bills will be focused around
the broad themes of protecting the citizen, and supporting the economy, enterprise and jobs. Amendments to the Interpretation Act 2005, which would be required in the event of an orderly Brexit with a transition period,will also be prepared.
These will be considered by the Government early in the New Year before being presented to the Dáil. The Government will work very closely with allOpposition parties and Oireachtas members in this regard.
The Spring Legislation Programme is being prepared for presentation to the Dáil in January in the usual way. However, if it is judged that a no deal Brexit is likely, it will probably be necessary to use all available parliamentary legislation time to deal with the necessary legislation. The Government Chief
Whip has therefore also asked all Ministers to identify their non-Brexit legislation that is absolutely essential for enactment before the end of March 2019 so that the parliamentary schedule can be planned accordingly.
The work on primary legislation will be complemented by responses in secondary legislation through the adoption of a range of Statutory Instruments.
Primary legislation is likely to be required in the following areas:
Sea-Fisheries and Maritime Jurisdiction
European Investment Fund Agreement
Single Electricity Market
Finance and Financial Services matters
European Parliament Elections
European Communities (Environmental Assessment of Certain Plansand Programmes)
Public Transport Regulation
Protection of Employees (Employers’ Insolvency)
Copyright and Related Rights
Secondary legislation is likely to be required in the following areas:
Medicinal Products and related matters
Sea-Fisheries and Maritime Jurisdiction
Advance Notification Requirement for Imports
General Export Authorisation Regulations
Safety, Health and Welfare at Work (Construction) Regulations
Single Electricity Market
EU Fluorinated Greenhouse Gases
Recognition of UK Qualifications
Justice and Security
Regulation of Railways
Train Driver Certification
Road Traffic Driving Licences
Road Vehicles Type-approval
Ship Inspection and Survey Organisations
Copyright and Related Rights
t the EU level the European Commission has screened all of the existing rules under EU law to determine which rules must be adapted in any Brexit scenario and which measures will have to be put in place only in the case of a no deal scenario. As a result of this screening, the Commission has tabled
fourteen legislative preparedness proposals for measures that must be adopted irrespective of whether the UK’s withdrawal is orderly or otherwise.
Examples include adjustments to the rules of approval of automotive vehicles or in relation to ship inspections, and the apportionment between the UK and the EU27 of tariff rate quotas included in the goods schedule ofthe EU at the World Trade Organisation.
As part of the Government’s no deal preparations, the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019 (‘Brexit Omnibus Act’) was published on 22 February 2019. It completed all stages in the Oireachtas on 14 March 2019 and was signed into law by the President on March 17 2019.
The Brexit Omnibus Act is made up of 15 Parts relating to matters within the remits of nine Ministers as set out in Table 2.
Parts of the Withdrawal of the UK from the EU (Consequential Provisions) Act 2019
Part 1 – Preliminary and General
Provides for the commencement of the different Parts of the Bill by the relevant Ministers on such day and time as is appropriate.
Part 2 – Arrangements in relation to Health Services
Provides for legislative mechanisms to enable essential Common Travel Area healthcare arrangements, including reimbursement arrangements, to be maintained between Ireland and the UK.
Part 3 – Amendment to Industrial Development Act 1986 to 2014
Part 3 is designed to limit the negative effects Brexit could have on vulnerable enterprises by giving Enterprise Ireland extra powers to further support businesses through investment, loans and RD&I grants.
Part 4 – Arrangements in relation to Electricity and Fluorinated Greenhouse Gases
The purpose of Part 4 is to allow the Commission for the Regulation of Utilities (CRU) to quickly modify licences of Irish-based participants in the wholesale electricity market on a temporary basis in the event of a no deal Brexit and in order to ensure that any issues of non-compliance with EU law can be addressed. Part 4 also provides for an equivalence certification regime for individuals and companies with UK certificates working in the fluorinated greenhouse gas industry.
Part 5 – Amendment of Student Support Act 2011
Eligible students studying in the UK and UK nationals studying in Ireland currently qualify for SUSI grants by virtue of the fact that the UK is a Member State of the EU. The purpose of Part 5 is to make sure that, even after the UK leaves the EU, these arrangements can continue to apply to eligible Irish students studying in the UK, as well as to ensure payment of SUSI grants to UK students in Irish higher education institutions.
Part 6: Taxation
Provides for the modification of Income Tax, Capital Tax, Corporation Tax and Stamp Duty legislation to ensure continuity for businesses and citizens in relation to their current access to certain taxation measures, including reliefs and allowances.
Part 7: Financial Services: Settlement Finality
The purpose of Part 7 is to introduce legislative amendments to support the implementation of the European Commission’s equivalence decision under the Central Securities Depositories (CSD) Regulation and to extend the protections contained in the Settlement Finality Directive to Irish participants in relevant third country domiciled settlement systems.
Part 8 – Financial Services: Amendment to the European Union (Insurance and Reinsurance) Regulations 2015 and the European Union (Insurance Distribution) Regulations 2018
Provides for a temporary run-off regime, which, subject to a number of conditions, will enable UK insurance undertakings and intermediaries to continue to fulfil contractual obligations to their Irish customers for a period of three years after the date of the withdrawal of the UK from the EU.
Part 9 – Amendment of Harbours Act 1996
Part 9 provides for an extension of the period of validity of Pilot Exemption Certificates issued by Harbour companies to relevant seafarers, e.g., to Ships’ Masters on ferries, from the existing maximum one-year period to a maximum of three years. It will also allow for existing holders of Pilot Exemption Certificates to apply for new certificates in the period leading up to the UK’s withdrawal from the EU, even if their existing Exemption Certificate may not have expired.
Part 10 – Third Country Bus Services
Part 10 provides, on a precautionary basis, for a regulatory regime in relation to bus and coach passenger services between Ireland and a country that is not part of the EU.
Part 11 – Amendments to the Social Welfare Consolidation Act 2005
Part 11 enables the Minister for Employment Affairs and Social Protection to make orders with regard to social welfare arrangements with other states. On 1 February 2019, the Irish and British Governments signed a Convention on Social Security. Under the terms of the Convention all existing arrangements with regard to the recognition of, and access to, social insurance entitlements will be maintained in both jurisdictions.
Part 12 – Amendments to the Protection of Employees (Employers’ Insolvency) Act 1984
In a no deal scenario, once the UK leaves the EU and becomes a third country, employers in a state of insolvency under the laws of the UK would no longer fall within the scope of the Protection of Employees (Employers’ Insolvency) Act unless it is amended. The purpose of this Part is to ensure that, in the event of an employer becoming insolvent under the laws of the UK, their employees who work and pay PRSI in Ireland will continue to be covered by the protections set out in the Act.
Part 13 – Extradition Act 1965
In the event of a no deal Brexit, the European Arrest Warrant system will cease to apply to the UK. This Part provides for the maintenance of arrangements in relation to extradition of citizens between Ireland and the UK under the 1957 Council of Europe Convention on Extradition.
Part 14 – Immigration
Amends the Immigration Act 1999 and 2003 to confirm that immigration officers, in considering removing or deporting a person from the State, have, in line with EU and international obligations, the power to undertake refoulement consideration. It also provides a legal basis for taking fingerprints of Irish visa and Irish transit visa applicants to enable the continuance of the
British-Irish Visa Scheme, pursuant to Common Travel Area arrangements.
Part 15 – Miscellaneous
Part 15 provides that the term ‘Member State’ where used in any enactment shall be interpreted as including the UK for the duration of any transition period, in the context of the Withdrawal Agreement between the UK and the EU being ratified by the UK.
On 26 June 2019, the Tánaiste commenced Part 1 of the Act in order to facilitate the commencement of Part 14 which provides for certain issues and aspects of the immigration process that have relevance in all Brexit scenarios.
Various Government Ministers have also enacted eight pieces of secondary legislation that are applicable in all Brexit scenarios, such as the Medicinal Products (Control of Placing on the Market (Amendment) Regulations amending SI 540/2007, which provides for certain measures to help ensure continuity of supply of medicinal products.
A coordinated plan is in place to commence the remaining Parts of the Act by the relevant Ministers as and when they are required.
The Government has prepared approximately 40 pieces of additional relevant secondary legislation, which will also be commenced as and when they are required over the coming months.
The Government will continue to screen for any additional emerging issues that may require a legislative response.