Irish Parliament completes legislative preparations for a no-deal Brexit

On 13 March 2019, a landmark piece of legislation, the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019, also known as the Brexit Omnibus Bill, completed its passage through the Irish Parliament (Oireachtas). It is one of the largest and most wide-ranging pieces of legislation in the history of the Irish state. Irish President Michael D. Higgins signed the Bill into law on 17 March.

The various provisions and parts of what is now the Act will only come into operation on a day or days appointed by order of the relevant government minister.

The Oireachtas Foreign Affairs Committee will have responsibility for scrutinising the operation of the legislation.

What does the legislation do?

The Brexit Omnibus Bill prepares for the possibility of the UK leaving the EU without a deal. This eventuality would place the UK outside the framework of EU law and would be a major shock for the Irish economy and its citizens. The Bill seeks to mitigate against some of the worst effects of such a scenario.

The legislation engages the remit of nine government ministers, comprises 15 parts, amends almost 60 pieces of legislation across a swathe of policy areas, and has dominated the current legislative agenda.

Central to the Irish government’s Brexit planning is the protection and maintenance of the Common Travel Area with the UK and the associated rights and privileges. For UK citizens, the Bill makes provision for continued access to healthcare, social security protection, student support and protection of consumers. It also allows for the ongoing operation of the all-island single electricity market, and there are provisions to ensure continuity for businesses and citizens in relation to their current access to certain taxation measures. Enterprise Ireland, a state agency, is empowered to provide additional support to business, and the legislation also facilitates ongoing immigration cooperation arrangements with the UK in the event of a no-deal Brexit.

Genesis and passage of the Bill: no-deal planning

The Brexit Omnibus Bill was a response to the European Commission’s November 2018 Contingency Action Plan, which called on EU Member States to enact legislation that would mitigate certain identified risks associated with a no-deal Brexit.

The Irish government’s Contingency Action Plan was published shortly afterwards, on 19 December 2018. It set out an approach to dealing with a no-deal Brexit, and included a commitment to enact the necessary legislation at speed.

The government considered introducing a number of Brexit-related bills, rather than a single piece of legislation, but ultimately decided that one standalone bill containing a number of parts would be the most efficient and effective way of preparing for a no-deal Brexit.

Given the urgency of the issue, the Business Committee suspended Standing Orders by agreement, to allow the Oireachtas to focus on Brexit-related legislation to the near-exclusion of all other.

The general scheme of the Bill was published on 24 January 2019, and the legislation moved swiftly to its second stage - essentially equivalent to second reading at Westminster - following the Business Committee’s decision to waive pre-legislative scrutiny.

In the period between the publication of the general scheme and the second stage, nine government ministers appeared before their relevant parliamentary committees to discuss the contents of the Bill.

The second stage of the Bill was introduced in Dáil Éireann (the lower House) by the Deputy Prime Minister (Tánaiste) and Minister for Foreign Affairs and Trade, Simon Coveney, on 26 February 2019. The three-day debate included contributions from the Prime Minister (Taoiseach), Leo Varadkar; all relevant government ministers; several ministers of state; opposition parties and government backbenchers.

All parties and members were broadly supportive of the legislation, although some opposition politicians criticised the government for not introducing it sooner, and expressed concerns about the speed with which it was being pushed through the House. The debate was nevertheless predominantly characterised by strong cross-party cooperation and consensus.

During the debate, the opposition Fianna Fáil spokesperson, Lisa Chambers, noted that: “The Oireachtas has shown incredible political maturity in uniting to navigate Brexit together and ensuring that we do all we can to protect Ireland’s interests”. Minister Coveney echoed these sentiments when he stated: “I would like again to take the opportunity to state that the unity and common purpose of all of the parties here in the Dáil to deal with this common challenge has been invaluable”.

The third stage of the Bill (committee stage) was debated on the floor of Dáil Éireann on 5 and 6 March 2019. Seventy-four amendments were tabled during this stage, but only a small number were supported.

The Bill then moved to Ireland’s second House, Seanad Éireann (Senate), where it was introduced by the Minister of State at the Department of Foreign Affairs and Trade, Helen McEntee. The two-day debate commenced on 12 March 2019 and included contributions from a number of government ministers and senators.

Although there was broad cross-party support for the Bill here too, there was some apprehension among senators about the powers which the Bill confers on ministers. The Labour Party’s Seanad leader, Ivana Bacik, highlighted her party’s concern “that in some respects the Bill may go a little too far in providing ministers with power to effectively make primary legislation”.

Of the 36 amendments tabled in the Seanad, none was successful. Had there been amendments to the Bill, the legislation would have had to return to the Dáil, and the timescale for completing the passage of the Bill would have been exceptionally tight.

On 13 March 2019, the Bill was reported without amendment in Seanad Éireann, received for final consideration and passed without a vote.

Built-in redundancy hopes

The Brexit Omnibus Bill is not only an extraordinary piece of Irish legislation; its relatively unhindered and un-acrimonious passage through the Oireachtas is similarly remarkable, especially given that Ireland’s government is currently a minority administration.

The irony is that for those who debated and passed the legislation, it is their express hope that it will never be brought into force. Minister Coveney summed up the general feeling when he moved the Bill’s second reading on 26 February: “… when the Government published this no-deal Brexit legislation, I remarked that, as an Oireachtas Member for 21 years, I found myself having the curious feeling of hoping this was one law which would do no more than sit on the shelf”.

Events in Westminster will determine whether or not this hope is realised.

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