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Dáil Éireann debate -
Tuesday, 5 Apr 2022

Vol. 1020 No. 5

European Union Regulation: 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 Regulation of the European Parliament and of the Council establishing a collaboration platform to support the functioning of Joint Investigation Teams and amending Regulation (EU) 2018/1726,

a copy of which was laid before Dáil Éireann on 22nd December, 2021.

I thank the House for facilitating this motion this afternoon. The Government today approved my Department's request to seek the approval of both Houses of the Oireachtas to opt in to this European Commission proposal. The proposal seeks to establish a collaboration platform to facilitate exchanges and co-operation within the joint investigation team, JIT, framework. As joint investigation teams have proven to be one of the most successful tools for cross-border investigations and prosecutions, I am delighted to have the opportunity to present this motion to the House today.

Joint investigation teams, JITs, are set up by two or more states for the purpose of specific criminal investigations with a cross-border impact and for a limited time. This framework allows the competent judicial and law enforcement authorities involved to organise and co-ordinate their actions jointly, and to investigate efficiently, even in very complex cases such as organised crime activities. An Garda Síochána currently participates in joint investigation teams and supports this initiative.

Although joint investigation teams have proven to be one of the most successful tools for cross-border investigations and prosecutions in the European Union, practice shows they have been facing several technical difficulties preventing them from gaining the highest possible efficiency. The joint investigation team collaboration platform proposed in this regulation aims to solve these problems and deliver the technical support that has been missing thus far.

The proposal will establish a highly secure collaboration platform, provide technological support to participants and ensure that information and evidence can more be shared more effectively and safely. The main objective of the proposal is to provide technological support to those involved in joint investigation teams to increase the efficiency and effectiveness of their cross-border investigations and prosecutions. To meet these objectives and to tackle the underlying difficulties, a dedicated IT platform is proposed. The platform will be accessible to all actors involved in JIT proceedings, including specific member states' representatives, representatives of third countries invited to co-operate in the context of a given investigative team, and the competent Union bodies, offices and agencies such as Eurojust, Europol and the European Public Prosecutor’s Office. The proposed collaboration platform will solve the technical problems and provide the technical support that has been missing from joint investigations to date.

The regulation itself is more technical than legal in nature and applies to the processing of information, including personal data, within the context of a joint investigation team. That includes the exchange and storage of operational information and evidence as well as non-operational information. This regulation applies to the operational and post-operational phases of a JIT, starting from the moment the relevant joint investigation agreement is signed by its members. The regulation does not amend or otherwise affect the existing legal provisions on the establishment, conduct or evaluation of joint investigation teams.

The legal basis for setting up a joint investigation team is Article 13 of the European Union Convention on Mutual Assistance in Criminal Matters, and a Council framework decision of 13 June 2002 on joint investigation teams.

The Criminal Justice (Joint Investigation Teams) Act 2004 provides for the measures necessary to give effect to EU Council decision on joint investigation teams and provides for the terms under which joint investigation teams can be established. The Criminal Justice (International Cooperation) Act 2019 made further provision in this regard to better facilitate the participation of members of An Garda Síochána in joint investigation teams.

To provide broader context, this proposal is one of a package of measures announced by the Commission on the digitalisation of justice in the EU as part of a larger initiative to enable the secure electronic communication and exchange of information and documents between courts, national authorities, and justice and home affairs agencies. This is a stand-alone proposal, apart from the other measures in the digitisation package. Ireland intends to opt in at a later date to other such proposals when the preparatory work is undertaken.

For member states, no technical costs are considered because the platform will be developed and hosted by the EU centrally and accessed remotely using a browser-based system. There will be a one-off EU development cost of about €10 million incurred centrally. There will also be an EU central recurring cost for technical matters, maintenance and operation of the platform of approximately €3 million per annum. For member states, the platform will not require any adaptions of the national technical infrastructure and access will be web-based.

The joint investigation teams framework has been pivotal in recent years in tackling serious, organised and transnational crime. Ireland currently participates in joint investigation teams and we certainly see the value in continuing to do so and in supporting this proposal.

Following the discovery of 39 individuals in Essex in the United Kingdom in October 2019, authorities in the United Kingdom, as well as Irish, Belgian and French authorities carried out initial actions, and subsequently conducted investigations and searches in regard these tragic events, which led to the formation of a joint investigation team. The effective liaison by An Garda Síochána with the other participating forces in this joint investigation team, with colleagues in the PSNI and various other police agencies, meant a number of suspects were apprehended and sentenced to significant periods of detention following conviction by various courts in several jurisdictions.

This is a practical example of a joint investigation team. The experience gained in respect of multi-jurisdictional operations and the available support from various European statutory agencies such as Eurojust and Europol cannot be underestimated from an operational and learning perspective and will be built on and utilised by An Garda Síochána.

Only yesterday, the EU announced that it is setting up a joint investigation team with Ukraine to collect evidence and to investigate war crimes and crimes against humanity in Ukraine. In a statement following a phone call with President Zelenskyy regarding the atrocities in Bucha, the European Commission President Ursula von der Leyen stated: "The EU is ready to reinforce this effort by sending investigation teams on the ground to support the Ukrainian Prosecution Services. Eurojust and Europol are ready to assist." President von der Leyen proceeded to state: "A global response is necessary. There are ongoing talks between Eurojust and the International Criminal Court to join forces and for the Court to be part of the Joint Investigation Team." This is a further demonstration of this framework in action.

Ireland, together with its EU partners, is committed to tackling serious, organised, cross-border and transnational crime. Our continued engagement and commitment to joint cross-border investigations is central to that. The current proposal will improve the efficiency and effectiveness of such investigations. As a result, the Government has no hesitation in commending the proposal that we opt in to the House. The Office of the Attorney General has advised that opting into the proposed decision will not create any constitutional or legal issues for the State. Doing so now under an Article 3 opt-in will ensure that we are at the table with our European partners and that we are involved fully in the detailed discussions on the negotiation of the regulation. It will also indicate our continuing commitment to tackling serious cross-border and transnational crime. I commend the motion to the House.

This proposal is worthy and worthwhile. It will move us in the right direction. Joint investigation teams have been working for many years on a multinational format to tackle organised crime, particularly the drug gangs, etc., that plague our communities. Every community in every part of Ireland can recognise the impact that they have on young people, who become addicted to drugs and who then fall into criminality and all that goes with it. All of this begins with these international tycoons of criminality who cross borders, not just across the EU but also in jurisdictions elsewhere. The Minister of State’s point in regard to the investigation into the tragic incident in Essex is well worth remembering. That happened when Britain was to some extent tied to the European Union. That is no longer the case following Brexit. Will the Minister of State elaborate on what impact that will have on this proposal? Will Britain still be involved in the joint investigation teams?

They have been very successful cross-border tools, as the Minister of State mentioned. It seems that we have had issues in the past with technical difficulties. This proposed measure is designed to deal with that and to try and resolve matters. The main objective, as has been stated, is to establish a collaboration platform under the regulation and to solve the problems so that they can deliver the technical support that has been missing thus far. That is necessary. We recognise that unless these things are done centrally, there is an issue. I was glad to hear the Minister of State indicate that it will be done centrally from within the European Union. Which member state will be the source of that? Will it be coming from Brussels? Will it be France or Germany? In what member state will that happen? It would be good to know that information.

This is a collaboration on a digital platform. We heard this morning from the European Court of Justice, which has made it clear that there is an issue regarding how data has been collected from mobile phones in Ireland. This will have an impact. That is also a transnational issue. Every country in Europe will be looking at that. While all that is happening, we must also recognise that there has been a victim of a crime here in Ireland. I refer to Elaine O’Hara. There is also the family of the victim. The family will possibly have to cope with going back to court, sitting through another appeal and so on. We have to recognise the tragedy of all of that.

Since 2014, we have had an issue here in respect of this matter. I hope that the Government will be in a position to do something about it. In that context, it is crucial that the Government takes a lead on this. This particular case has been taken from the Irish jurisdiction to the European Court of Justice. It has exposed this issue, which will impact on law enforcement agencies across Europe. It is important that we lead in trying to correct the huge mess that will be created. It is important that we recognise people's privacy rights. We all recognise those rights, but they have to be balanced with the rights of people to be safe and with their rights to not be the victims of serious crime. This case was brought to the highest court in Europe. Certainly, it is the view of most rational people that the offender has been protected more than the people who are the victims. That needs to be acknowledged.

There is an issue with the indiscriminate long-term storage of data. That is the problem. We need to deal with it. In particular, the traffic that goes to mobile phones and the location data of the mobile phones has been collected indiscriminately. We may have a role to play here in Ireland in amending the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 around that. However, I come back to the fact that the European Union has erred on the side of privacy, in this case, to the detriment of the victims of crime and of the common good. That needs to be acknowledged and recognised. There is much work to be done on that. It ties in, as it happens, with the regulation with which we are dealing today.

Joint investigation teams will require access to data, to information on people’s movements and to data about who is in communication with whom in various jurisdictions across Europe and wider the world. It is necessary that these issues are resolved and that the case in respect of which this revelation emerged this morning is dealt with in an appropriate manner.

To go back to the joint investigation teams, this move was first supposed to be put in place in, I think, 2004. The Minister of State mentioned that Ireland will not be the first country to take these issues on and to move forward in respect of them. Unfortunately, in history, Ireland is usually last. That is another issue we need to deal with. Nearly every time we come in here to discuss the transposing of EU directives, we find that a deadline or issue is looming. That is bad policy, and it needs to be reviewed. In fairness, I think the Minister of State would acknowledge that. We have had a history of dealing with this in an inappropriate way up to now. We need to be much more effective and efficient around that.

The work we are doing here today is worthy and worthwhile. We must do anything that will get law enforcement agencies to work closer together to ensure that we can get prosecutions, convictions and deliver for the ordinary public and for the common good. In that context, I recognise that we need to make sure that the regulation to which the motion relates moves forward as quickly as possible. I hope that when the relevant legislation emerges, it will move speedily through the Houses and will be dealt with in the near term.

The reality is that many people look at this and they do not understand how it will make any difference. However, the case the Minister of State mentioned - the Essex case - is one example of where it would. There are many other examples of excellent work done in co-operation across Europe and the world by various law enforcement agencies. These have delivered arrests, as well as the seizures of large quantities of drugs and of arms of various kinds. These have been for the protection of people and of commerce. They have helped to ensure that we have a firm rule of law, which we need to have, across the entire European Union.

While this regulation, like many of them, is coming a little late to the House, it is welcome. Certainly, we will be supporting it and we will be moving the debate on it forward. However, we need to get answers in respect of the particular case which the European Court of Justice ruled on earlier today. It is necessary that the Minister of State and the Government step up to the mark and ensure that we take the actions that are required to correct that situation. It is inappropriate and wrong when offenders find that they have a loophole they can use to get out of things or to escape detection. That needs to be dealt with as quickly as possible.

Níl aon duine sa Dáil ó na páirtithe eile agus bogfaimid ar aghaidh, mar sin, go dtí an Rural Independent Group.

The Competition (Amendment) Bill 2022 will give more powers to the Competition and Consumer Protection Commission and the Commission for Communications Regulation. These new powers could mean that rogue operators could face a fine of €10 million-----

That is the wrong business.

The Deputy has mixed it up with the motion.

I am sorry. Am I in the wrong?

That is okay; you are.

I am on the wrong track. I will withdraw my contribution.

Does anybody else wish to speak on this?

I am sorry; for clarity, which one is this?

This is the motion regarding the proposal for a regulation of the European Parliament and of the Council establishing a collaboration platform to support the functioning of joint investigation teams.

Can I have one minute on that?

The Deputy has five minutes.

I will just take a couple of minutes. I will share time. This is very important because it branches into, and this has already been very well spoken about in the Chamber, the case that has been going on today and the far-reaching implications of that. The fact is that law enforcement persons in Ireland, throughout Europe and across the world are watching this situation very closely because the retention of data and how it is used in criminal investigations it is so important.

One thing we must be very careful about here is that we get what we wish for and the implications of that. While this is very important to protect people's information and all that, it is, of course, paramount and goes beyond everything else to be able to investigate a wrongdoing and get to the bottom of a crime, whether that is a financial or physical crime, and not shield wrongdoers by means of what I would call bureaucracy. We must be very careful. It is very hard to legislate for that. It is very hard to put measures in place that will protect society from people using them as a shield to carry out or get away with wrongdoing.

One thing I must touch on in discussing this is the whole issue of the general data protection regulation, GDPR. Sometimes, especially when one, as a politician, hears so much about the GDPR, one would have to say that it is probably one of the greatest excuses for people doing and answering nothing and getting away with everything. It seems to be case of people saying they cannot deal with something now because of the GDPR. Again, I do not want the protection of people's privacy to be used or put as an obstacle in the way of people getting work done or achieving things and completing jobs they are supposed to do. I also wanted to make that point.

It is definitely a case that we have to be very careful of how we proceed with this, however, especially in light of the very important review and referral of that court decision, which was being dealt with this morning. That is of paramount importance, not just for the family of a person whose life was taken, for which I have the nothing but the utmost respect, of course, but also in the context of the wrongdoing that could be covered up by using those types of situations.

The joint investigation teams are set up for specific criminal investigations between two or more countries within the EU but can also involve countries outside the Union. The joint investigation teams have technical difficulties that prevent them from doing their proper investigation work. They need to make the system secure, particularly for large files. They need to be able to have secure systems to work and share information with bodies like Europol, Eurojust and so on.

A joint investigation team is led by a member from the country in which the investigation team is based, and the law of that country governs the team's activities in showing the big picture, identifying links between related cases and investigations and supporting the secure exchange of information. It probably gives us the security that we can sleep in our beds at night knowing a bigger force is out there looking after us. As part of Europe, we can be comfortable in the knowledge that we will be protected within these proposals when enacted.

The bottom line is that we are protected. The bottom line here is the sharing of sensitive information to make sure this information can get from one system to another without impeding the information going to others. We need to tread carefully with this but I believe it is an important Bill to bring through the House.

I thank the Deputies for their contributions. I will address a number of matters.

With regard to Deputy Martin Kenny's points on the UK, obviously, it is now a third country. Provision is made within the protocols and the regulations for third-country co-operation, however, so I expect that will continue, albeit in a slightly different format in the sense that it will be a third country but nonetheless, it will be able to continue.

I note the Deputy's comments with regard to transposition. One of the reasons we have transposed so much legislation is that, obviously, there are deadlines, but I have also made it my business to make sure that legislation is cleared through the Houses. We have that backlog now almost completely dealt with. There are only two more items of legislation currently before the Houses to finish and a couple of regulations. We should have all those on top. I certainly aim to ensure that we do not have any issue around transposing legislation thereafter.

With regard to a number of other issues, the digitisation of existing data exchanges will not introduce any new personal categories compared with what is already exchanged today nor will it affect existing data processing arrangements. It is what is already there, if you like, and tidying up how we deal with the data that exists under current legislation. In terms of concerns raised, this new secure platform aims to mitigate the risk of security of individual data. It is an improvement compared to present exchanges, which at the moment actually use paper and email. A person's data will be protected to a greater extent under this new system whereby we will have the data centre and secure communications via digitisation rather than the current paper and email formats.

As regards the decision earlier today by the Court of Justice of the European Union, obviously, I cannot - and it would be totally inappropriate to - comment on any case that is currently before the courts. This matter will now revert to the Supreme Court. My Department and the Attorney General will consider the judgment of the Supreme Court when it is finalised, which will inform the legislation going forward.

The Government today approved my Department's request to seek the approval of both Houses of the Oireachtas to opt into this European Commission proposal, which seeks to establish a collaboration platform to facilitate exchanges and co-operation within the joint investigation team framework. I thank all the Deputies for their contributions to the debate. I welcome the support across the Houses in respect of the motion. It is very welcome and important. Ireland recognises the importance of international co-operation with our international partners, particularly in the context of combating cross-border crime. As Deputies will be aware, Ireland, through An Garda Síochána, already participates in joint investigation teams and sees the value in continuing to do so. Joint investigation teams have proven to be one of the most successful methods for cross-border investigations and prosecutions. As such, the collaborative platform proposed in this regulation will contribute to supporting and improving the efficiency and effectiveness of joint investigation teams.

The platform will be accessible to all actors involved in joint investigation teams' proceedings, including specific member states' representatives and representatives of third countries, who will be invited to co-operate in the context of a given investigation, as will competent European Union bodies, offices and agencies such as Eurojust, Europol and the European Public Prosecutor's Office.

The proposed collaboration platform will solve the technical problems and provide the technical support that has limited the potential of joint investigations to date. As outlined earlier, the regulation itself is more technical than legal in nature and applies to the processing of information, including personal data. It takes into consideration the exchange and storage of operational information and evidence as well as non-operational information. This regulation will apply to all phases of a joint investigation team starting from the time members sign up to collaborate in this way. This regulation does not amend or otherwise affect the existing legal provisions on the establishment, conduct or valuation of joint investigation teams.

Rather, it will simply enhance the capability of the teams to work more speedily and more effectively. Our experience of participating in and contributing to joint investigation teams, through An Garda Síochána, has shown how successful and effective they can be for cross-border investigations or prosecutions. The technical difficulties preventing them from gaining the highest possible efficiency that have arisen in practice can be overcome. The joint investigation teams collaboration platform proposed in this regulation will solve these problems and deliver the technical support that has been missing so far.

In case we needed any further evidence of the centrality and importance of joint investigation teams to tackle the most serious cross-border and transnational crime, we can see it in yesterday's news regarding the EU's setting up a joint investigation team with Ukraine to collect evidence and investigate war crimes and crimes against humanity in respect of the atrocities in Bucha. We are committed to tackling serious organised, cross-border and transnational crime and our continued engagement in and commitment to joint investigation teams is central to that. By doing this now, under an Article 3 opt-in, we will ensure we are at the table with our European partners and can be fully involved in the detailed negotiations on the proposal.

I again commend the motion to the House.

Question put and agreed to.
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