I move: "That the Bill be now read a Second Time."
This is an enabling Bill to give the force of law to two EU conventions and three related instruments prior to this country adopting them at EU level. The two conventions relate to various aspects of co-operation and sharing of information between the EU customs administrations in the prevention, investigation and prosecution of customs offences. They update existing provisions which have proved to be very effective over the years and allow for new forms of special co-operation in certain circumstances.
It is a stark reality that international crime is indeed big business. Unfortunately, there is increasing evidence of linkages between drug trafficking and other forms of international organised criminal activity. No country can be immune to the full effects of highly organised and sophisticated crime, and Ireland is no exception. It is only through effective international co-operation that the activities of the multinational criminals can be tackled. This co-operation must involve the sharing of information and intelligence with other countries to the benefit of all.
The evil trade in illicit drugs causes untold mis ery, sometimes even to our young people. In order to protect the community from the ravages of drug abuse, Customs is one of the main agencies responsible for preventing the drugs from reaching their intended users. This has been achieved by seizing drug shipments and disrupting the supply network at borders. The main customs area of expertise lies in exercising controls over the movement of goods and persons into and out of a country. Drug shipments, drug couriers and the traffickers themselves are at their most vulnerable when moving across borders. Similar principles apply to the smuggling of fiscal goods such as tobacco and alcohol where there also has been a rapidly increasing involvement by the international criminal fraternity.
Through the use of intelligence, profiling and risk analysis techniques, customs administrations have remained effective in seizing drugs and other smuggled products in the face of rapidly expanding international trade, travel and transportation. To be fully effective, law enforcement agencies generally, both at domestic and international levels, need an integrated approach to tackle all of the dimensions to trans-national crime.
In Ireland, with the advent of the Single Market, the Customs National Drugs Team, CNDT, was set up within the Office of the Revenue Commissioners in December 1992. Dedicated to drugs work only, the CNDT comprises 85 staff and consists of a head office located in Dublin and intelligence units, operational units, maritime units and drug detector dog units which are strategically placed at coastal locations nationwide. The CNDT is backed up by some 640 outfield customs officials who are also responsible for the detection and prevention of drugs smuggling as part of their normal duties.
A Memorandum of Understanding – MOU – was signed on 12 January 1996, between An Garda Síochána and the Revenue Commissioners, which provides a framework to facilitate greater co-operation and allow for operational and liaison structures including a joint task force. The function of the joint task force, which has representation from the Naval Service, is to deal with intelligence-driven drug operations and controlled deliveries of drugs, with each participant agency bringing its individual expertise and competence into play. There have been a number of joint task force controlled deliveries which have resulted in the seizure of a substantial quantity of drugs and the arrest of suspects.
The CNDT has had continual liaison with the Criminal Assets Bureau since its inception. Formal exchange of information and intelligence by both agencies is governed by the Criminal Assets Bureau Act, 1996 and the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996. Intelligence and information exchanged has included details of drug and cash seizures made from individuals and the property of individuals involved in, or suspected to be involved in drug smuggling. Assistance has also been given in a number of instances to monitor the movements of certain individuals into and out of the country. I am particularly pleased that intelligence and information provided by CNDT has assisted in some of the CAB's major successes.
One other important matter is the Memoranda of Understanding Programme. This is a national initiative through which the co-operation and assistance of trade associations as well as individual companies involved in the movement of goods and persons has been enlisted by the Customs Service to deal with the drugs problem. Since the signing of the first Memorandum of Understanding in June 1993, some 41 agreements have been successfully concluded, encompassing almost 6,000 diverse companies. This list is steadily increasing. A number of MOUs are currently under active negotiation with major trade interests. MOUs are aimed at heightening the awareness of employees of airlines, shipping companies, freight forwarders and others engaged in international trade and carriage, to the dangers of drugs smuggling and provide them with ready channels of communications with the CNDT. I pay tribute to those traders and their staff who are actively involved in the programme and assure them that their contribution is a very valued one.
The Bill proposes to give the force of law in Ireland to two international conventions concerning co-operation and sharing of information relating to customs issues, prior to this country adopting them at European Union level. The member states of the Union are required to adopt these conventions in accordance with their respective constitutional requirements. It is also proposed to give a number of related instruments the force of law. The Bill itself, therefore, is comparatively short. For ease of reference, the conventions and related instruments are appended to the Bill in both English and Irish, the texts being equally authentic in both languages. Before turning to the detail of the individual sections, I propose to give the background to the two conventions and related instruments.
The Convention on the use of Information Technology for Customs Purposes – the CIS Convention – was signed by all EU member states on 26 July 1995. This convention provides for the establishment of a "Customs Information System". Put simply, this is a computerised central database, with terminals in each member state linked to the central database, allowing for the rapid dissemination of information and intelligence about illegal movements over internal frontiers so that effective action can be taken by customs administrations to combat smuggling, including drugs smuggling. As this database will be used to disseminate information in all areas of customs concern, a dual legal basis is necessary. To the extent that the database covers information about possible breaches of Community law, it is underpinned by Council Regulation (EC) No. 515/97. In so far as it deals with information concerning goods such as drugs – an area not within Community competence – the legal basis is the CIS Convention. The database will carry information on commodities, means of transport, businesses, persons, fraud trends and availability of expertise. Customs administrations may use the database to pass on information about suspect movements, to carry out discreet surveillance or specific checks and to report the results to the other customs administrations concerned.
The CIS Convention generally limits access to and use of data on the database to nominated national authorities and obliges them to take the necessary measures to protect the security of the data. Member states are required to have national law in place giving a level of protection to data which is at least equal to that in the 1981 Council of Europe Convention on Data Protection. The 1988 Data Protection Act gave effect to that convention in this country. The CIS Convention contains specific limits to the data which may be included on the database and individuals have the right to access data about themselves, to have data checked, corrected or deleted and to have their rights vindicated in the courts. The CIS Convention also provides for independent supervision of data to protect the rights of individuals. Each member state is responsible in accordance with its national law for any injury caused through the use of the database in its territory, including injury arising from inaccurate data supplied by another member state or data supplied by another member state, which should not have been included on the database. Where injury is caused as a result of data provided by another member state, the apportionment of liability will be subject to agreement between the states concerned. The CIS Convention also lays down an elaborate framework for the management and supervision of the database. I will deal with this point in more detail when speaking about specific sections of the Bill.
In addition to the CIS Convention, there are three related instruments to which this Bill gives legal effect. These are the Agreement on Provisional Application of the Convention and two protocols. The Agreement on Provisional Application allows the CIS Convention to be applied by some but not all the member states in an interim period until such time as all are in a position to adopt it. It was signed by the same date as the convention itself. This arrangement recognised that certain member states would have to introduce legislation to give effect to certain provisions in the CIS convention before they could adopt it.
The current position is that eight member states have adopted the agreement and it is due to come into operation for those countries in December 2000. The CIS Convention confers jurisdiction on the European Court of Justice to rule on disputes between member states and between member states and the Commission, regarding the application of the convention. However, at the time the CIS Convention was signed, there was no agreement between member states on what role, if any, the European Court should have relating to interpretation of the convention.
A compromise was worked out subsequently, resulting in a protocol to the CIS Convention being drawn up which enabled each member state to accept a role for the European Court on an opt-in basis. Ireland signed the protocol subject to adoption on 29 November 1996. The protocol confers jurisdiction on the European Court to interpret the convention but makes its application by national court conditional on the declaration to be made at the time of signature or at any time thereafter to the effect that the member states will accept the European Court's jurisdiction to give preliminary rulings on the interpretation of the convention. Member states which are prepared to accept the European Court's jurisdiction may specify, in relation to the application of the CIS convention, whether courts or tribunals against whose decisions there is no judicial remedy under their national law, or all their national courts or tribunals, will be in a position to ask the European Court for preliminary rulings.
In view of the serious difficulties that could arise under our legal system if criminal trials had to be suspended for lengthy periods while rulings were obtained from the European Court, Ireland made a declaration at the time of signing the Protocol to the effect that it would agree to give only those courts or tribunals against whose decisions there is no judicial remedy under national law the right to request a preliminary ruling from the European Court on the interpretation of the CIS Convention. This reflected Ireland's position on similar jurisdiction provisions in other EU Conventions such as the Europol Convention. The practical effect of this will be that only cases before the Supreme Court will be forwarded to the European Court for preliminary ruling.
On 12 March 1999 a Second Protocol to the CIS Convention was signed, subject to adoption, which remedied two deficiencies that had been identified in that convention. The first related to the items of information which could be placed on the database. Member states' customs administrations could not include on the database the registration number of the means of transport of smuggled goods even though this additional data element could be very useful. The second deficiency related to the information which could be placed on the database in connection with money laundering. While the CIS Convention provided for an exchange of information on money laundering in connection with illicit international drug trafficking, it did not provide for exchanges of information on money laundering which was related to other types of infringements of Community and national customs laws. In the interests of ensuring a comprehensive response to all types of smuggling, the Protocol extended the circumstances in which information on money laundering could be exchanged using the database.
The Bill is also concerned with the Convention on Mutual Assistance and Co-operation between customs administrations, known more simply as the Customs Co-operation Convention, which was signed by all member states on 18 December 1997, subject to adoption. On its accession to the EEC in 1973, Ireland became a party to the 1967 Naples Convention. That convention has been for over 30 years the principal legal instrument available for the provision of mutual assistance allowing customs administrations to exchange useful information and intelligence along with assisting in the investigation of breaches of customs law including smuggling of, for example, prohibited goods such as drugs, arms and ammunition. By the early 1990s member states decided that the Naples Convention was in need of revision so that customs administrations would have the means to tackle cross-border smuggling activities effectively in the context of a Single Market without internal frontiers. As a result, the updated Customs Co-operation Convention was concluded under Article K.3 of the Treaty on European Union. The Customs Co-operation Convention updates provisions in the Naples Convention but also extends its scope, in particular in provides for special forms of co-operation between customs administrations not existing heretofore.
Customs administrations, in applying the provisions of the Customs Co-operation Convention, must act in accordance with their national legislative powers. Formal requests for assistance must be channelled through a specific contact point in each member state. In providing assistance in response to requests, which normally must be in writing, the requested administration must act as if the request had emanated from within its own country. In certain circumstances, officials from the applicant administration may visit the offices of the requested member state to obtain further information. The requested administration can be asked to carry out surveillance on suspect persons and on means of transport, goods and places. A representative of the applicant administration may be present when action is carried out by the requested administration, provided both administrations agree.
Information received under the convention must be treated as confidential and used only for the purposes specified in the convention. It can also be used as evidence in the receiving member state in accordance with national law. Data protection provisions in the convention are similar to those in the CIS Convention.
As regards the special forms of co-operation provided for in the convention, these provisions enable customs administrations to engage in special forms of co-operation in respect of certain types of infringements such as cases involving illicit traffic in drugs, weapons, munitions and serious cases of smuggling taxable goods. These special forms of co-operation are hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams. These provisions would allow customs officers of one State to enter another State to carry out or continue their activities.
However, the convention allows member states to opt out of applying some of these provisions, that is, hot pursuit, cross-border surveillance and covert investigations. The other provisions are mandatory. The Government proposes to avail of the opt out provision and will make a declaration to this effect when Ireland lodges its instruments of adoption of the convention. Other member states, including the United Kingdom, are also availing of the opt out provisions. If the considerations which led the Government to take this approach should alter in the future, the Bill provides that the Government may, by order, opt in to some or all of the provisions.
The Customs Co-operation Convention confers jurisdiction on the European Court of Justice to rule on disputes regarding its application between member states and between members states and the Commission. In common with the Protocol to the CIS Convention, it also confers jurisdiction on the court to interpret the convention but makes the application of this provision by the courts in each member state conditional on a declaration to be made at the time of signature, or any time thereafter, to the effect that the member state will accept the court's jurisdiction to give preliminary rulings on the interpretation of the convention. Ireland will make a similar declaration on this matter as for the CIS Convention, for the same reasons that I outlined earlier.
An important point is that a request for assistance under the convention may be refused where it is considered to be prejudicial to public policy or other essential interests and rights of the member state concerned, particularly in the field of data protection or where the action requested is disproportionate to the gravity of the presumed offence. Reasons must be given for any such refusal.
Both conventions are to enter into force 90 days after the last of the member states has adopted them. The agreement to provisionally apply the CIS Convention is to enter into force 90 days after the eighth member state has adopted it. Adoption of this agreement by those eight States will allow the CIS Convention to be applied provisionally subject to certain conditions specified in the agreement. The position is that eight member states have adopted the agreement and it is due to come into operation for those countries in December. Both the Protocol dealing with the role of the European Court of Justice and the Second Protocol dealing with deficiencies in the CIS Convention are also to enter into force 90 days after the last of the member states has adopted them but cannot be implemented during the period of provisional application of the CIS Convention.
I do not propose to spend an inordinate amount of time dealing with the provisions of the Bill since the Explanatory Memorandum, which was circulated with it, contains quite a detailed commentary on the individual sections and their provisions in the conventions and related instruments. As I have already mentioned, the purpose of the Bill is to give the conventions and related instruments the force of law in the State. Section 2 contains this core provision.
Section 3 designates the Revenue Commissioners as the national authority for the purposes of certain articles of the CIS Convention. This means that, in Ireland, direct access to the database will be exercised by the Revenue Commissioners. The infrastructure for this system is already available with 20 terminals based at, among other locations, customs offices in ports and airports around the country.
Section 4 designates the Revenue Commissioners as the competent customs administration for the purposes of Article 10 of the CIS Convention. That article requires each member state to designate a competent customs administration to take responsibility for the correct operation of the database within the member state and to ensure compliance with the provisions of the convention.
Sections 5, 6 and 9 are concerned with data protection. The main purpose of section 5 is to apply the Data Protection Act, 1988, to relevant provisions in the conventions and related instruments, subject to modification where necessary. As I have already mentioned, the 1988 Act gave effect to the principles contained in the 1981 Council of Europe Convention on Data Protection which is the standard of protection laid down in respect of automated data in both of the conventions to which the Bill is giving legal effect.
Section 6 designates the Data Protection Commissioner for the purposes of the conventions, so that he will be empowered to monitor implementation of the data protection provisions in respect of automated data.
Section 9 creates an offence under the 1988 Act for the improper use of data on the database. Penalties for such offences are to be the same as those set out in section 31 of the 1988 Act, namely a fine not exceeding £1,000 or 1,270 euro on summary conviction, or a fine not exceeding £50,000 or 63,487 euro on conviction on indictment.
I would point out that all of these sections deal only with automated data, that is, data which is processed automatically. I will deal later with the question of protecting non-automated or manual data.
Section 7 deals with the special forms of co-operation set out in the Customs Co-operation Convention. The convention provides for five special forms of co-operation. I have mentioned already that while two of these forms of co-operation are mandatory, member states may decide to opt out of the others. Therefore, while this Act will give the force of law to the convention, it is necessary to specify in the Act itself that this country shall not be bound by those provisions from which the opt-out is being exercised.
If those considerations giving rise to Ireland opting out were to change at any point in the future and it was desired to avail of these provisions, this would require legislation to amend subsection 1 of this section. However, by providing in subsection 2 for possible opt-in later by way of Government order, the necessity of having to enact amending legislation is avoided. A draft of any such order would have to be laid before each House of the Oireachtas and could not be made until a resolution approving of such draft had been passed by each such House in accordance with the provisions of section 10 of the Bill.
Sections 8 and 11 contain provisions for the making of ministerial regulations, which may appear to be necessary and expedient for carrying out the purposes of the Bill and for these to be laid before both Houses of the Oireachtas. While the Bill does not specifically require the making of regulations in relation to any particular aspect of its provisions, it may be necessary at a later stage to consider the making of regulations if it emerges that there is a need to give effect to protection of personal data exchanged by non-automated means. Therefore, I am making specific provision for that purpose since, as I mentioned earlier, the existing national data protection legislation only applies to automated exchanges of data. Other than in the case of that specific issue, the purpose of these sections is merely to enable incidental requirements to be met from time to time.
Section 10 provides for the interpretation of both the CIS and customs co-operation conventions by the European Court of Justice by way of preliminary rulings and for judicial notice to be taken of such rulings.
I have outlined already how both the 1996 protocol to the CIS convention and the Customs Co-operation Convention provide that member states may, by way of declaration, accept the jurisdiction of the European Court of Justice to give preliminary rulings on the interpretation of the conventions. As a further measure, those member states that accept the court's jurisdiction must declare whether they will allow all of their national courts, or only those from whose decision there is no avenue of appeal, to seek such preliminary rulings. At the time of signature of both instruments, Ireland decided on the latter option in both cases so as to ensure there will be as little disruption as possible to the progress of a criminal trial once it has commenced.
I should like to conclude by saying that the measures being introduced by this Bill are very sensible. The two conventions and related instruments represent a comprehensive package of measures to enhance the present co-operation arrangements to assist customs administrations in preventing serious smuggling, illegal cross-frontier movement of illicit substances and products and generally in improving controls. There is a very solid foundation going back over 30 years on which we are now building and I am confident these measures will also stand the test of time. The value of international co-operation between customs administrations has been well illustrated over the years.
I believe this Bill will be found acceptable by all sides of the House. Of course, I shall give careful consideration to the points which Deputies may make and to any suggestions for amendment that may be made in the course of the debate. I commend the Bill to the House.
