EU-UK Trade and Cooperation Agreement: Motion

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Council Decision on the position to be taken on behalf of the European Union in the Specialised Committee on Law Enforcement and Judicial Cooperation established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the period referred to in Article 540(3) of the EU UK Trade and Cooperation Agreement (Prüm) during which DNA-profiles and fingerprints can be exchanged with the United Kingdom,

a copy of which was laid before Dáil Éireann on 13th September, 2021.

I am speaking on behalf of the Minister for Justice on a motion referring to a draft proposal by the Council of the European Union on the extension of the period defined in the EU-UK Trade and Cooperation Agreement, to allow the continued sharing of DNA profiles, fingerprints and vehicle registration data, also known as "Prüm" data, with the United Kingdom. This is an essential tool for law enforcement across the EU and, of course, is of particular value to law enforcement co-operation between Ireland the UK. Deputies will be aware that if Ireland wishes to take part in an EU measure with a legal basis that falls under Title V of the Treaty on the Functioning of the European Union, TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required.

The Council intends to adopt this measure on 24 September 2021. Therefore, it is necessary to secure Oireachtas approval, as a matter of urgency. In light of this, I ask Deputies to pass this motion without a vote. It is worth noting that this measure provides for the continuation of existing arrangements for a period of nine months, from 1 October 2021, until 30 June 2022, of the time period set out in the trade and co-operation agreement, TCA, to share Prüm data. I trust that Deputies understand the urgency and necessity of this motion passing today.

It is anticipated that the European Commission will have completed an evaluation of the UK by 30 June 2022 and a mechanism will be the subject of a separate decision, which will come before the Houses in advance of that date. My Department has provided a short note for the attention of the Business Committee, which Deputies will have seen and it provides some background information on this draft Council proposal. I will now give some additional information, which underpins why it is necessary for Ireland to opt into this measure. The EU-UK Trade and Cooperation Agreement stipulates that member states may continue to supply Prüm data to the United Kingdom, pending the outcome of evaluations required by the TCA, until 30 September 2021. This interim period can be extended once, until 30 June 2022, by the specialised committee on law enforcement and judicial co-operation.

An evaluation of the UK by the European Commission, to permit ongoing sharing of Prüm data will not be concluded by the end of September. Consequently, the Commission has published this proposal, in order to facilitate the extension of the period to ensure the continued exchange of Prüm-related data. Without the extension to the interim period, as set out in the TCA, Prüm data will cease to be shared between the EU and the UK from midnight, 30 September 2021. As Deputies will understand, if this were to happen, it could potentially have serious repercussions in the investigation and prosecution of criminal cases. The views of the Office of the Attorney General were sought and the legal advice received has confirmed that Oireachtas approval, under Article 29.4.7° of the Constitution, is required.

I emphasise that the effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority and Ireland will play its full part in that. I have previously mentioned that this is a necessary measure to ensure there is no break in the sharing of Prüm data between Ireland and the UK, which is vital for law enforcement. Ireland's role in the EU has changed in recent times and will continue to evolve in the coming years. Full implementation of the TCA is necessary for us, not only to play our part as an EU member state but to ensure that our post-Brexit relationship with the UK continues to grow and develop. Part of this relationship is ensuring that the safety and security of our citizens is protected and this measure is necessary to do that.

I trust that the House can support the exercise of Ireland's opt-in in respect of this measure.

We will be supporting this opt-in. We understand where it is coming from and the necessity around all of that. It is one of the more unforeseen impacts of Brexit. Last week, we had the Bill on mutual recognition of sentences, which is further Brexit-related legislation. Many of these legislative reforms on which we now have to embark are due to what happened with Brexit and it shines a light on the huge body of work across Europe and the huge co-operation across so many jurisdictions across the Continent on criminal justice and how all of that had been evolved and developed over a number of decades. Now we find, with our nearest neighbour pulling out, that it puts us in a very difficult position.

We all understand we have to try to get these arrangements in place as quickly as possible but I am disappointed we are coming to this one at such a late hour. This legislation has to be enacted before 30 September and it is disappointing it has not been moved on faster.

The Irish Human Rights and Equality Commission pointed out in its 2019 paper, Evolving Justice Arrangements Post-Brexit, that this was an issue that needed to be dealt with back then so it is remiss of the Department not to have spotted this and done something about it an awful lot sooner. That said, there is a lot of work going on dealing with various jurisdictions across Europe with regard to criminal justice. It is quite ironic that the UK was the largest user of some of the crime databases administered by the EU and now finds itself outside of that. I hope it is time for pause and reflection on the part of the people in the British Administration who have brought us to this unfortunate situation. Brexit has torn up so many good and worthy pieces of legislation which were about trying to ensure we protected our citizens and keeping people safe across very fluid borders. Those very fluid borders will still be there, or we hope they will, particularly the one on this island. We hope we will not return to anything like border posts or checkpoints because of the situation that the Tories in Britain have brought us to.

That said, there are still issues regarding co-operation across European states with various police and criminal justice authorities. I have come across situations where families of loved ones who had incidents abroad have found it very difficult to get information from the other authorities, particularly in Spain, Portugal and other countries like that where incidents occur. They have found it very difficult to get information across. They have been working with the Garda, which does its best as well, but the anecdotal reports coming back indicate that the Garda also finds it difficult in some situations. Some jurisdictions in Europe are magnificent and others are not. That is something that needs to be dealt with. Perhaps it cannot be dealt with in this arena but it must be dealt with somewhere to ensure that citizens of Europe who are victims of crime and who may have experienced a tragedy can have access to information from the countries where those crime investigations are being undertaken. So far, that is not happening to the extent that it needs to. It would be very disappointing if we had a situation in which DNA profiles, fingerprints or any of that kind of basic data that is required were somehow refused to be shared or were not put in the domain of criminal justice investigations trying to link things together. I am thinking, in particular, of the huge drug gangs that now operate across Europe and the world, how they have continued to operate, the work they continue to do and how difficult it is to track them because of the various borders, jurisdictions and laws that are in place. We need to make sure we can keep on top of all of that.

This legislation is very worthy and must be brought forward as quickly as possible, as the Minister of State has said. However, I suggest that in her closing remarks she indicate why we are coming to it so late in the day. Why has this not been dealt with sooner? It is quite alarming that we are trying to deal with this in the 59th minute of the eleventh hour. That should not be the case. It should be dealt with. This should have been brought before the House last spring and dealt with and got out of the way, rather than coming here in September and having to deal with this on such a short deadline.

As has been said already, this is part of the continued outworking of Brexit. It was supposed to be a very simple extraction of a country from an economic union but after 40 years of integration at every level of activity, we can see how fundamentally difficult that extraction of one country has been. The resolution before us, that the Minister of State has proposed, is to opt in to a Council decision to extend the time period for exchanging important issues, DNA profiles, fingerprints and vehicle registration data, and to continue to allow for the European Union to do that with the UK. It is extremely important that this happens, and the facility to continue that is extraordinarily important. That is why we in this House will support the extension of the deadline.

The deadline is there because there is an evaluation ongoing of the trade and co-operation agreement we signed at the end of last year. I am not quite clear on what evaluation needs to be done in order for us to copper-fasten, in legal terms, the continued sharing of this vital data. The Minister of State might explain that. What in the TCA is required to copper-fasten this? One would imagine that would be upfront and clear. It is a cause of concern that this deadline can only be extended once. Once this resolution is passed in all the member states and the committee resolves to make the extension, we have until 30 June next to finalise matters because it will not be possible to roll over again. Whatever evaluation needs to be done and whatever conclusions there are from that evaluation must be very clear. The Minister of State has said she will bring such proposals back to the House.

As we said in respect of the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021 last week, it took ten years for a 2009 directive to be transposed into Irish law. The alacrity with which these matters, that is, the transposition of EU regulations and directives, are dealt with, particularly in the Department of Justice, would not fill one with complete confidence. Of course, of much greater importance than the roll-over of an interim arrangement is knowing that a permanent arrangement will be in place, because above all member states Ireland needs an assurance that this level of judicial and police co-operation between the United Kingdom and our jurisdiction will continue. It would undermine proper policing and the detection of crime if there was any impediment to the sharing of profiles, fingerprints and vehicle data with the United Kingdom. I hope the Minister of State will be able to give us those very clear assurances.

The Minister of State will recall that last year we dealt with two omnibus Bills dealing with bilateral issues between Ireland and the United Kingdom across the board. Again, that was the outworking of Brexit. One would have thought that issues like this would have emerged during those debates. Of course, this Bill deals with the sharing of data with the United Kingdom across the European Union, not simply Ireland, but in the event of there being any delay in finalising the evaluation, as the Minister of State has called it, of the TCA between now and June and the agreement of a permanent measure to ensure that this level of co-operation we have enjoyed for some time continues into the future, that should be our priority. I would like to hear in very clear and unambiguous terms from the Minister of State that her proposals will be presented to this House well in advance of that deadline next June.

I appreciate the opportunity to speak on this important motion and to commend it to the House. I thank the Minister of State for her introductory remarks and the work that is being done by her and her ministerial colleagues in the Department of Justice on this vitally important area. As has been alluded to by other speakers, despite the assertions of some politicians, Brexit is very much not done. We are going to be constantly seeing over the next decade, and possibly for an entire generation, little bits and pieces of how things were done previously having to be updated to recognise the fact that the United Kingdom, sadly, has made the decision to leave the European Union. It comes with great consequences in every aspect of life, particularly for those of us on this island, but this particular motion and the decision of the European Council show the importance it has in terms of our crime prevention, crime detection and the protection of our society. Crime does not know any borders. It certainly does not recognise the border on this island, let alone anywhere across the European Union.

In recent years, we have seen countless examples, be it in dealing with the most violent and vicious organised crime gangs or dissident terrorists, of the vital co-operation between An Garda Síochána, the PSNI and police authorities across the UK and the Europe Union. Those efforts have seen people brought to justice and convicted. There are people currently serving lengthy sentences in prisons in Portlaoise, England and across the Continent for crimes that were committed in this jurisdiction and in the European Union and that had serious impact on every single person in the Union. It is very disappointing that we have lost the UK's involvement in European arrest warrants, a process which saw 11,000 criminals extradited from the UK to the rest of the EU between 2000 and 2019. That is why it is important this motion is accepted by the House, that we send out a message to the rest of our European partners and that we provide the resources to State agencies and An Garda Síochána to maintain that level of co-operation. We talk about cracking encrypted telephone networks and the vital need for increased funding for the ICT systems of An Garda Síochána. This all has to be done on an EU-wide basis and with the greatest levels of co-operation with partners in the United Kingdom.

In the context of the rising threat of dissident terrorism in this State, there have been a number of arrests in recent days relating to a violent dissident terrorist group based across our island. We have seen significant work done by An Garda Síochána with the PSNI to breakdown the army council of the New IRA over the past 12 months. This is all excellent work but it needs a continued level of co-operation. In the context of this motion and the work achieved at European level in sharing vital data - fingerprints, palm prints and vehicle licence plates - there is an opportunity for Ireland to take a leading role within the EU. How can this be extended beyond the sphere of the EU? What agreements can the EU enter into with other jurisdictions across the world, such as the United States or the United Arab Emirates, where a number of known Irish criminals are languishing, on the run and hiding out from the justice they must face in this State?

I encourage the Minister of State, while ensuring that the motion before the House goes through in the appropriate and timely manner, to be expansive and perhaps look at the wider options in this field that can be taken by the State, with its European partners and those around the globe, in order to make the citizens of this country safer and to bring the criminals who prey on the vulnerable here to absolute justice.

Everybody is in agreement about the necessity of ensuring we deal with these issues, particularly in regard to the sharing of vital information - fingerprints, DNA and vehicle registration data. In the world we live in, there is an absolute necessity to ensure we have not only the legislation but also the technological capacity, etc., required to allow us to share information when dealing with crime. We all know how connected criminality is in this day and age. To some degree, criminals are miles ahead of those of us in this House. As a result, we need to be up to the task. A significant amount of legislation has been passed in recent times, particularly in respect of IT and cyber witnesses. As stated, we need to ensure that we have both the legislation and the technological capacity required. Much of this involves the transposition of European laws and directives. In some instances, we are late to the game.

I welcome the fact that this is happening. I add my voice in support of Deputy Martin Kenny in that this should have happened sooner. I ask that we be given some detail to allow us to ensure that we have our i's dotted and t's crossed and that all the necessary due diligence is done.

I accept that what we are discussing is due to the outworkings of the madness that is Brexit, the madness which we will be dealing with on this island for some time. It goes without saying that everyone in this House is of the opinion that we need to ensure there is no rowing back from the political point at which we are and that there will be no chance of making the Border in Ireland any harder than it already is. We hope there will be a point in the near future when it no longer exists. Until then, we do not need to add to the difficulties. We know conversations are ongoing in relation to dealing with some issues relating to the Irish protocol. I welcome what Commissioner Gentiloni and others have said recently, including Maroš Šefčovič. I refer to the idea that the Irish protocol is here to stay. We need to solve the problems that exist for businesses, farmers and others throughout this island, and particularly for those in the North. When people have conversations away from politics in respect of that matter, most of them are just interested in getting it done.

On this motion, Sinn Féin supports the extension. It is necessary. We just need to ensure that a complete audit is carried out in the context of our ability to fight organised crime and drug gangs, that we have the technical capacity required, that whatever relationships are needed are built up and that information is shared. I reiterate what Deputy Martin Kenny said. We also need to ensure that our approach is victim-centred and that we allow a scenario in which the information necessary to assist people who find themselves in terrible situations and who are the victims of crime is, insofar as is possible, facilitated in crossing borders.

Iarraim ar an gcéad Ó Murchú eile, Deputy Catherine Murphy.

It is Ní Mhurchú, probably.

The deadline relating to this is this Friday, 24 September. We have been informed that there should not be vote in this House because of that deadline. I do not believe anyone will disagree with the passing of this motion. I do not anticipate that people will call for a vote. As a number of previous speakers indicated, however, this is not the way to do things.

There is no doubt the exchange of this data is critically important to the UK, Ireland and the wider EU law enforcement communities. Thus far, the exchange of data has been largely unaffected by Brexit, which is a significant win for the UK. While the latter has lost access to major live data exchanges, such as the Schengen information system, British security experts have identified Prüm data of near equal importance. This database provides quick access to DNA data from 11 countries. The UK National Crime Agency credits the data set with more than 89,000 DNA matches between July 2019 and September 2020, which is significant. With this database, UK police can obtain DNA or fingerprint information from other EU states within 15 minutes. It used to take the Metropolitan Police up to four months to receive the same information. It is, therefore, a significant exchange of information.

On data exchange with the EU, the UK has the most favourable terms of any third country, although those terms are subject to an evaluation of the UK's data-handling procedures. This evaluation is still in the early stages and must be allowed to reach a conclusion. The draft proposal provided makes a point of noting that the UK passed a previous EU Commission evaluation in 2018. Simply because the UK passed a previous evaluation, we should not assume it will do so again or take it for granted. Hopefully, it will pass that evaluation. As a third country, the UK must be held to higher standards than it was previously. There have been problems in the past with data protection. No one wants the UK's national security to be at risk. As our nearest neighbour and a country that shares our island, it is all the more important for us in that context. If the UK is incapable of reaching the standards to be met in that evaluation, we cannot simply throw our hands up and assume that the data of millions of EU citizens should be provided in the context of national security.

A higher standard is required because the UK is now a third country.

Having said that, it is really important that we have a good relationship between police forces across jurisdictions. That is nowhere more important than with our nearest neighbour. Last year, a leaked 2018 EU report showed that the UK had deliberately and repeatedly abused access to the Schengen Information System, SIS. This is something I expect will come up as part of the evaluation. It is important that there be a two-way process given that the UK is no longer part of the EU. It was shown that British border authorities were acting on alerts the UK deemed to be important to itself but not giving the same weight to requests from other member states. There was a frequent pattern of the UK not taking action when a country wanted an arrest warrant for a person leaving the UK for another EU country. There will be significant issues in terms of making sure this is very much a two-way process and that there is equality in it even though the UK is no longer a member of the EU.

Will the Minister of State confirm whether the data protection evaluation will also go in front of the European Parliament, as it had to do on the previous occasion?

This interim measure to approve the sharing of data is a topic on which many people will have mixed feelings. The withdrawal of the UK from the European Union has been chaotic and is now proving to be a mess across a range of areas. The Government and the EU have got many things right. The sharing of data as part of the Prüm Convention may not be as high profile as other issues but it is nonetheless important. This is for the simple reason that criminal gangs are becoming increasingly organised. They are getting larger and they are starting to collaborate. The model is changing for these groups. They are subject to the same business or capitalist forces as everybody else and an oligopoly is now emerging among gangs in Europe. A transnational response is necessary and requires data sharing to continue. For this reason, I support, with reservations, the extension of these measures.

Ironically, the UK was one of the most frequent users of the measures and other databases. However, as in many other areas, the UK Government talked tough on Brexit and crime but then cut itself off from the resources to tackle it. As ever, there is a danger of overreach in the use of newer technologies in fighting crime. We must be vigilant in that regard. The EU is creating a database called Eurodac that will store details of migrants, including children, coming into Europe. In the aftermath of the Snowden revelations about National Security Agency, NSA, surveillance in the US, we need to be increasingly careful about the retention of data. In this instance, the data are distinguished by the fact they are stored by police only after individuals come into contact with the force as part of criminal law processes, rather than their being maintained for all persons as part of the normal course of events. However, not everyone who comes into contact with police is guilty of any offence.

These databases should be strictly supervised. We can all agree that the Garda PULSE system was not strictly supervised for a long time. It should have had regular audits and been accessed only in accordance with the law. We also need to remain conscious of developments within other EU member states as the law is frequently used in ways with which we may not agree. In the case of Catalan political activists or LGBTQ activists arrested in Poland, for example, will their details be on this database and, if so, is that in line with the European values that underpin the Union? We must not be afraid to be critical and vigilant with regard to national and transnational co-operation on crime, even as we accept the necessity for its existence.

I thank the Minister of State for coming to the Chamber to propose this motion on extending the interim period of co-operation between the EU and UK on the exchange of data of an evidential nature. I have no difficulty with the motion. It is very prudent and sensible and I look forward to supporting its passage through the Dáil.

I support it for three reasons primarily. First, we all acknowledge the transnational nature of crime at this time, particularly when it comes to the movement of drugs, weapons and vulnerable people. Unfortunately, while freedom of movement applies to European citizens, it also applies to European criminals. It is very important that responsible, mature nation states like ours have the structures in place to clamp down on this type of illegal activity. The bad guys are talking and co-operating, so it is important that the good guys do the same. Exchanging information, particularly the three metrics of DNA profiling, fingerprint data and vehicle registrations, is very prudent, sensible and proportionate.

The second point I want to raise relates to Brexit. I do not think there is a single Deputy in the House who is in favour of Brexit. We are totally against it but, notwithstanding that, we recognise and respect the sovereign right of the British people to have voted, by a very slim majority, to leave the EU. That was, of course, their prerogative. At the same time, we must have the structures and measures in place to limit disruption and mitigate any difficulties that may be caused downstream. The continued exchange of Prüm data makes perfect sense in that context.

The third reason I am supporting the motion is that it is merely a technical arrangement for continuing an existing practice. It is an existing practice for a reason, namely, that it is really important. To break that continuity of exchange of data from an evidential point of view would be a very dangerous thing to do. That is why it is very important that the motion should go through.

I have just one concern, which was alluded to by a number of other speakers, namely, that we can only extend this arrangement once. We have decided to do so now. It can only be extended for a nine-month period up to 30 June next year. I am reassured by what the Minister of State said in her opening remarks about trying to negotiate a mechanism after 30 June for how this arrangement can continue. Do we have a plan B to fall back on if we cannot negotiate an arrangement with the UK and EU for continuing this exchange after 30 June 2022? I would not like to see the arrangement coming to a close.

I very much look forward to supporting this motion. I have no difficulty with it at all but I would be grateful for the clarification requested.

I welcome the opportunity to speak on this important issue of international co-operation between law enforcement agencies. The so-called Prüm decisions and various other European Council decisions establish a framework for cross-border police co-operation to support the prevention and investigation of crime. As the EU, among others, has noted, one of the main benefits of the Prüm Convention for law enforcement is the ability to compare DNA and fingerprints found at a crime scene in one member state with data held in other member states to see whether there is a match. Information revealing the identity of a possible suspect can only be exchanged once a match has been confirmed. That is to be welcomed.

On a related matter, we saw only last week how the Garda was able to apprehend a person wanted in France for financing Islamic terrorism who has been living in Ireland undetected for almost a decade. That person's arrest only happened as a direct result of Ireland having joined the EU's Schengen Information System last March. This is the kind of data-sharing exercise that brings about real results in terms of public safety, once the usual caveats around data protection and verifiability are in place.

There are issues that still need addressing nationally in terms of data sharing. We saw, for instance, the terrible failures in the Shane O'Farrell case, where information was not shared about the warrants out for the man who would go on to kill Shane.

If we had more effective data sharing, Shane's death might have been avoided, as his killer would have been locked up and his mother's broken heart might still be in one piece. Crime has no respect for borders. It is only just and right then that we utilise all the resources of country-by-country co-operation to do all that we can to bring those guilty of crimes to justice.

I thank the Deputies for their contributions on this motion. A number of specific questions were raised, which I want to address. First, regarding the timing of this proposal, the Commission published its proposal on 27 August, so detailed discussions took place in recent weeks on technical aspects of the proposal. The Department moved as soon as the proposal was published to obtain legal advice and then sought to obtain Government approval.

Regarding the evaluation process, the Commission carries out an evaluation of the arrangements the UK has put in place to connect to the Prüm system and that involves an evaluation by the Commission of technical connection, training, security and data protection steps that the UK has put in place. The Commission carries out the evaluation, not the Department. As the UK has already participated in Prüm before Brexit, it is expected that the evaluation will be positive and on time for next June.

In relation to our technical capacity, no further preparations are required in Ireland for us to participate, so once the extension is granted, we can continue to exchange and, equally, once the permanent evaluation is completed and agreed, we can take part.

Regarding data protection, the Prüm measures include specific and bespoke data protections and in addition, the Commission has adopted an adequacy decision, including strong safeguards for law enforcement data exchange with the UK. This has been subject to consultation with the Parliament. This includes a sunset clause of four years. Prüm is limited to fingerprints, DNA and vehicles.

As I mentioned in my opening remarks, these measures are essential to ensure the continued close law enforcement co-operation that Ireland shares with the United Kingdom and it is vital that we meet the highest standards possible when it comes to the investigation and the prosecution of crimes and the ongoing transfer of Prüm data, which will help to ensure that we can do that.

This extension allows until 30 June 2022 for the European Commission to complete its evaluation and any further measures will come before the House in advance of that date. On behalf of the Minister for Justice, I thank all Members for attending today.

Question put and agreed to.