The withdrawal of the United Kingdom from the European Union is not in our interest and no matter what arrangements are made or agreements reached, the situation after their departure will simply be not as good as if the UK had stayed in the European Union.
However we have to respect the wishes of the UK electorate and their Government and our focus now has to be on establishing a close and beneficial relationship for the future.
There can be no bilateral negotiations between individual member states and the UK on their withdrawal or on matters that fall with the sole competence of the European Union. Ireland has a voice and the ability to influence matters. There is already widespread recognition among our partners and the EU institutions that Ireland will be more affected by the departure of the UK than any other member state.
Prime Minister May has now invoked the provisions of article 50 of the Treaty of the European Union. Turning to her letter of 29 March 2017, I want to draw attention to two issues that are of particular interest to me as Minister for Justice.
First of all she makes clear that the UK want to agree a deep and special partnership with the European that takes in both economic and security cooperation. Security cooperation therefore will be a key issue.
Secondly she referred to the UK’s unique relationship with Ireland, the importance of the peace process in Northern Ireland and the Common Travel Area.
These are issues which I wish to explore further in my contribution to this debate and I will start with the issue of security cooperation. The question of border controls, police cooperation, and judicial cooperation in criminal matters only entered into the mainstream of the European Union legal framework with the Lisbon treaty in 2009. Despite this, the legal framework for police and judicial criminal cooperation in criminal matters is now almost entirely based on EU instruments.
Key instruments include the European Arrest Warrant for extradition, Mutual Legal Assistance, EUROPOL and the Europol information system, the police aspects of the Schengen Information System, Prum for checking fingerprints, DNA and car registration and ECRIS for criminal records.
Entering into force in May 2018 before the withdrawal of the United Kingdom we have the Passenger Name record (PNR) for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.
This just gives a taste of the network of instruments joining all the member states in their fight against crime. For us, the UK is a vital partner in security cooperation. This is not only in addressing dissidents in the context of Northern Ireland but also because of its size and geographical proximity, we have more interaction with the UK criminal justice system than any other jurisdiction.
Of particular importance for us is the European Arrest Warrant. I cannot overstate the importance of the European Arrest Warrant in improving the arrangements for the extradition of wanted persons within the European Union. It addressed all the failings associated with the 1957 Council of Europe Convention on Extradition and means extradition is a relatively straightforward procedure that now takes months rather than years and avoids political issues.
I would be very concerned if the UK were not to continue their participation in the European Arrest Warrant system as it would have significant and serious implications for security cooperation. For that reason I am heartened by the consistent statements of the UK Government reinforced by the emphasis given to it in Prime Minister May’s letter of 29 March that security cooperation is one of her top priorities.
However I am still concerned about the lack of detail on how the UK intend to reconcile maintaining such high levels of security cooperation with their plans to withdraw from the European Union. Negotiating new instruments for police and judicial cooperation can be a lengthy and complex process. I note that Prime Minister May in her letter refers to the need to avoid cliff-edges and refers to implementation periods to adjust in a smooth and orderly way to new arrangements. Maintaining this co-operation is in everyone’s interest, and keeps everyone safer. We of course have a special interest in ensuring that the closest possible cooperation takes place. And in the context of the EU - UK negotiations we will be pressing that the UK exit should not result in any let up in our work to tackle serious crime and terrorist threats.
Common Travel Area arrangements
Turning now to the close links between Ireland and the United Kingdom and to border issues and Northern Ireland, I want to refer to the Common Travel Area arrangements which are bilateral arrangements between the two states that predate our accession to the European Union and which I believe are compatible with EU law.
The Common Travel Area Arrangements derive from reciprocity of rights accorded to the citizens concerned. Up to 1948 Irish citizens were, in UK law, British subjects with the same rights in the UK as British citizens. This special status was continued to a large degree even after Ireland left the commonwealth by the Ireland Act 1949 and was maintained in subsequent UK immigration laws. Irish citizens have a right of residence in the UK, the right to vote in Parliamentary elections, access to various services and never required work permits etc. Similar arrangements exist for UK citizens in this State. They were never subject to immigration controls, have a right to reside here, access various services and never required work permits etc.
Part of these arrangements was the decision that there should be no border control obligations on people travelling within the Common Travel Area. To facilitate this, there are various arrangements in place to protect the interests of both the UK and Ireland while allowing the free movement of persons across our mutual borders.
These arrangements are recognised in EU law and in particular in Protocols 19 and 20 to the European Treaties. Ireland and the UK were specifically excluded from the obligation to participate in the Schengen arrangements and allowed “to make arrangements between themselves relating to the movement of persons between their territories (‘the Common Travel Area’)”.
It is our intention to remain outside the Schengen area and to continue to avail of Protocols 19 and 20 to maintain the Common Travel Area arrangements with the UK.
The UK Government have consistently said that they too wish to maintain the the Common Travel Area arrangements and this is repeated in the letter of 29 March.
Maintaining the Common Travel Area arrangements is particularly important in the context of the peace process in Northern Ireland. It should mean no hard border for the movement of persons and reinforces the entitlement of all those in Northern Ireland who wish to exercise their right to choose a particular identity.
I have touched on specific issues raised in the article 50 letter issued by Prime Minister May. However her letter is not exhaustive.
My own Department has gone through every EU instrument falling within our remit, which amounted to well over 700 instruments. As part of our preparations for this day, each was examined and the implications of a UK withdrawal assessed. As part of this process we have identified the key priorities for the forthcoming negotiation and considered what alternative measures may be relevant.
However we can only progress our preparations so far in the absence of an indication of what position the UK will take. I want to briefly touch on issues not raised yet by the UK.
Those living on the Border are probably more conscious of the practical day to day advantages brought about by the European Union than most. Within the remit of my Department, there are many EU instruments dealing with the cross border aspects of the recognition and enforcement of judgments, family law and recovery of maintenance payments. These areas have not been highlighted by the UK and there has been no indication to date what their plans are in this regard.
This also applies to asylum policy. At the moment we have a very coordinated approach, but there is no indication what the UK thinking is for the future. Any change could have significant effects on us because of our proximity to the UK and the Common Travel Area.
From 27 April 2018 a new data protection regime will apply within the EU and will also apply to the area of law enforcement (Regulation 2016/679 and Directive 2016/680). This is not just a “justice” issue, it has implications over a wide range of services including banking, insurance, payrolls etc. The exchange of data with UK based bodies will be severely curtailed if the UK do not maintain a data protection regime that is equivalent to that in the EU. The new EU regime will apply before the UK leave and one presumes that they will maintain it on departure but it is something that will have to be watched very closely.
While my contribution has focused on issues relating to my own Department, the Government as a whole will shortly be publishing a consolidated paper providing more detail on our four main priorities: (i) minimising impact on trade and the economy, (ii) protecting the Northern Ireland Peace Process, (iii) maintaining the Common Travel Area and (iv) influencing the future of the European Union.
We have prepared very comprehensively for the invocation of article 50 by the United Kingdom and it is positive that the UK have emphasised their desire for close cooperation with the European Union on security matters. However the detail of what the UK are going to be looking for in the Justice and Home Affairs area has yet to be set out. The sooner UK proposals are made known in this area, the sooner we can make progress.