Skip to main content
Normal View

JOINT COMMITTEE ON EUROPEAN SCRUTINY debate -
Thursday, 13 Dec 2007

Draft Council Decision: Discussion with Department of Justice, Equality and Law Reform.

No. 8 is scrutiny of a European Union Council legislative proposal for a draft Council decision on the implementation of Decision 2007/JHA on the stepping up of cross-border co-operation, particularly in combating terrorism and cross-border crime, 11045/2007. On behalf of the joint committee, I welcome Mr. Martin Power, Mr. Michael Kirrane and Mr. Fergus O'Callaghan of the Department of Justice, Equality and Law Reform to discuss the proposal.

Before we commence, I draw witnesses' attention to the fact that while members of the committee have absolute privilege, this privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, by name or in such a way as to make him or her identifiable. We will have a 15 minute presentation followed by a question and answer session.

Mr. Martin Power

I assure members that I will not take 15 minutes to complete this part of the presentation. I am a principal officer and head of the Department's security and Northern Ireland division. I am accompanied by Mr. Michael Kirrane, a principal officer in the Department's Garda division, and Mr. Fergus O'Callaghan, a principal officer in the international policy division.

Members of the joint committee will be aware that this draft Council decision is an implementing decision of an earlier Council decision. It will be helpful, therefore, to briefly outline the background and contents of the earlier decision. The threats posed by terrorism and organised crime must be tackled in a comprehensive manner by the competent authorities in all member states, working together in a collaborative manner. It is well recognised that terrorists and organised crime groups do not respect borders and it is often said that they exploit borders to their advantage. Against this background, it is the law enforcement authorities who appear to be hampered by the existence of international borders.

European Union measures to enhance police co-operation are aimed at eliminating barriers to effective police measures against terrorists and organised criminals. Police co-operation has long been a feature of the efforts of the Garda Síochána in its fight against terrorism and organised crime. Against this background, the EU is endeavouring to fill the gaps in police co-operation and information exchange. It is a multi-layered approach involving greater co-operation and exchange of information between different competent authorities, including judicial and law enforcement authorities. In January 2007, a proposal was made for a Council decision to improve cross-border police co-operation in preventing and investigating crime. A central element of this decision was the exchange of certain information between law enforcement authorities. The decision received political approval in June 2007 and currently awaits implementation.

This Council decision requires EU member states to increase co-operation in preventing or investigating cross-border crime or terrorism through a series of measures, including that member states should: maintain a national DNA database and share information from it with other member states; provide legal assistance in collecting and examining samples of DNA in connection with a criminal investigation or with criminal proceedings; maintain and share data relating to fingerprints; and share information relating to vehicle registrations.

The Council decision contains other measures to improve police co-operation, including provisions requiring member states to share information for the purpose of maintaining public order and security in connection with major events which have a cross-border dimension and to share information for the purposes of preventing terrorist offences. Other measures in the decision relate to improved police co-operation in the use of joint patrols and joint operations with officers from another member state. These particular provisions are not mandatory in the decision. A member state may decide it does not wish to participate in or host joint patrols or joint operations.

The Council decision also contains provision for one member state to afford another member state mutual assistance in connection with the policing of mass gatherings, disasters and serious accidents. Such assistance will be provided in accordance with member states' national law governing the provision of mutual assistance. As the decision is primarily concerned with the exchange of data, there are provisions relating to the protection of personal data and ensuring that data are processed only for the purpose for which they are supplied under the Council decision. Other data protection provisions deal with such matters as ensuring that data are accurate, are retained only for as long as necessary for the purpose for which they were supplied and that personal data are properly protected. They also provide that the data subject's rights are protected and that damages will be available where these rights are violated.

Finally, the Council decision contains a provision that requires the Council to adopt measures necessary for its effective implementation. The draft Council decision, which is the subject of the committee's proceedings, meets this latter requirement. It sets out a number of principles for the technical and administrative implementation of the earlier decision that I have just outlined. To achieve this, it provides for common technical specifications governing the request for information and the provision of that information in response. In addition, member states will be required to exchange information electronically via a common communications network.

Accordingly, the draft Council decision contains the following provisions. There should be common technical specifications for queries and answers concerning searches and comparisons related to DNA profiles, fingerprints and vehicle registrations. Electronic exchange of data is to take place through a secure network. Member states will be expected to maintain 24 hour, seven-day capability for automated search of data. A request for search and comparison of DNA must contain certain specific information and a response to such a request must also contain standard information.

Regarding fingerprints, there are provisions relating to their quality and that requests should be processed within 24 hours. Vehicle registration data exchange will take place using the European vehicle and driving licence information system. Furthermore, an annexe to the draft Council decision contains the detailed technical specifications.

The possible implications for Ireland in this regard revolve around the following matters. Given that Ireland has yet to develop its own DNA database, it will be possible to incorporate the relevant specifications in its development. The forensic science laboratory has confirmed that the system of profiling used by the laboratory incorporates the standards as specified in the draft Council decision.

The Garda Síochána is currently in the process of implementing a new and upgraded automated fingerprint identification system, known as AFIS. The Garda confirms that the database is compatible with the standard specified in the annexe to the draft Council decision.

The sharing of vehicle registration data will take place through the European car and driver licence information system, known as EUCARIS. Ireland is not currently a full member of EUCARIS. However, plans are in place to ensure compatibility with the system envisaged in this draft Council decision.

The annexe is the subject of discussions in a working group consisting of experts in these areas. A Council working group will also decide on a mechanism to evaluate the administrative, technical, operational and financial application of the draft Council decision. In terms of implementation of the draft Council decision, the Attorney General has advised that the approval of the Oireachtas will be necessary for the adoption of the decision. In addition, he advises that it will probably be necessary to enact primary legislation to implement the decision here.

The voting method in the Council for this decision is qualified majority voting. In summary, therefore, the draft Council decision is one more element of a comprehensive scheme to facilitate the law enforcement authorities in all the member states of the European Union in the fight against terrorism and organised crime. That concludes my presentation. If the members of the committee have any questions, I and my colleagues will endeavour to answer them.

I thank Mr. Power. How does he envisage this measure will deal with organised crime in Ireland in terms of drug trafficking, the importation of cars and the issue of false documents? Does he consider it will make an impact? In recent weeks drug importation has featured in the media. Will this measure enhance law enforcement by the Garda and help detect those who are illegally importing drugs or deal with any other illegal activities that occur outside Ireland that impact on us?

Mr. Martin Power

This decision is one of a number of EU measures that will be implemented in some way or other. It is intended to assist in the fight against international organised crime. For example, the sharing of fingerprint information may well be useful in detecting the movement of drugs or other contraband around the European Union which are being imported into Ireland.

The sharing of vehicle registration data may well assist in any scheme which is intended to avoid the payment of proper dues in regard to taxes, customs or whatever. These measures can assist in defeating or countering those actions.

The importation of cars appears to be highly organised. Main car dealerships are facilitating this and the occurrence of the problem appears to be widespread. Forgery also appears to be common and these crimes have a significant impact on the Exchequer. It is clear that legal documentation must have been provided also. Is this a case of white collar crime which is being operated at the highest level by corporate entities?

Mr. Martin Power

It could well be. The searches on vehicle registration data can include searches based on the chassis number and the sharing of information on matters of this nature can assist the relevant authorities to detect the movement of these cars and whether it is being done illegally.

The trafficking of drugs is at epidemic proportions. Cross-border co-operation with other police authorities and the sharing of information on DNA and fingerprints on known criminals such as drug barons is important. That information will become more available once the agreement in principle is in place with other European police authorities.

Mr. Martin Power

It should do because it will provide for an electronic transmission of data on fingerprints and DNA for comparison purposes and it should enable the authorities to better compare information and know whether they are dealing with the same individuals at various times.

It will also aid in tracking the movement of known criminals from country to country. Will the traceability system involve working with passport control?

Mr. Martin Power

Passport control is not part of this system but the sharing of information between law enforcement authorities goes on independently of this measure. I presume law enforcement authorities share information on the movement of people who might be of interest to them.

I welcome the delegation and thank Mr. Power for his presentation. It is great to see the improvement in co-operation between the South and the North. What about waterways in terms of illegal drug smuggling activity? Boats can travel on the Shannon-Erne waterway from the South to the North and the same is true between Derry and Donegal and Louth and Down. Is the progress of these boats logged when travelling from one jurisdiction to another, given that it could facilitate the smuggling of drugs from one jurisdiction to another?

Mr. Martin Power

The kind of measures the Senator is thinking of are already in place between the Garda and the PSNI. My understanding is that there is excellent co-operation between those two forces on various levels, not just on terrorism but on ordinary crime. The Border is porous and people move freely back and forth. In order to defeat criminality as best they can, the Garda shares information with PSNI colleagues and vice versa about people who may be involved in moving contraband from this jurisdiction to the North. It is not just a question of drugs, other types of contraband are involved as well. My understanding is that co-operation between the Garda and the PSNI is excellent and this is an important factor in the fight against crime generally.

I welcome the witnesses and thank Mr. Power for his presentation. From where does this draft Council resolution emanate? Did any country in particular promote it? Is it largely directed towards combating terrorism or cross-border crime per se? In this country we have a particular perception of what constitutes cross-border crime, which is the importation of drugs, weapons and engagement in certain fraudulent activities. This approach seems to be different from that followed in the rest of Europe in that we have different requirements. Senator Burke asked about waterways but we should note that the biggest waterway of all is the sea surrounding Ireland. This serves as a resource in combating cross-border crime in that it serves as a boundary. The largest drug haul ever in this country was discovered by pure chance owing to a storm off the south-west coast. Over €100 million worth of drugs was seized. However, we do not have the means to patrol the coastline; therefore, there is cross-border crime because of a lack of resources.

The position on airports is similar. A number of airports are not properly policed or do not have excise officers. Shipping ports have the same problems. These issues are not addressed by the Council decision. What input has Ireland had to deal with its specific requirements in combating drug trafficking?

Where will the databases containing personal information be located? Will they be in central police headquarters, Europol, or elsewhere? Will the content be exchanged directly between member states? For how long will data be retained? DNA and fingerprints provide important personal information, as do vehicle registrations. Who will supervise the system and how will they do so? Will there be accountability? What auditing mechanism will be in place?

Mr. Martin Power

As I mentioned, this is one of a suite of instruments being put together to improve effective co-operation between police forces to try to counter various crimes, including terrorism. The measure emanated from a police co-operation agreement between a number of member states and included matters beyond the scope of justice and home affairs. The German Presidency considered it would be useful if all member states were in a position to sign up to an agreement containing the elements of the earlier treaty dealing with police co-operation in fighting crime and terrorism. It extracted the elements specific to justice and home affairs and the fight against crime and terrorism and on that basis brought forward the Council decision. However, the decision required a number of implementing provisions, one of which is before us.

In sharing DNA information for analysis and sharing fingerprint information it is necessary that all member states have a system in place that will allow them to have common standards for the collection, sharing and analysis of data. The decision is designed to ensure this. The agreement states data will be used only for the purpose for which they are provided and will be retained only for as long as is necessary. There are provisions stipulating data can be retained for five years, but I will check this. This is set out in the Council decision which outlines the minimum level of protection afforded to data subjects by way of the Council of Europe convention on data protection. Member states can provide for greater protection if they wish. Irish data protection legislation implements the provisions of the convention.

Mr. Michael Kirrane

On the question of where data will be stored and how they will be transferred, the mechanism for transfer is bilateral between countries. There will be no central database. As my colleague outlined, the aim of the annexe to the decision is to work out the practical and technical solutions in order that the exchange can take place between the various member states which may have different systems. A common standard is being developed in order that the exchange of information can take place.

The fingerprint database is located in Garda headquarters. In all cases we are talking about the national system. The DNA database will be a matter for the forensic science laboratory when it comes on board and the Garda will be involved in the collection of fingerprints. Vehicle registration details are a matter for the Department of the Environment, Heritage and Local Government and the Department of Transport which hold vehicle registration and licensing details for everybody in the State. The location of each database is determined by the responsible agency in each country. A bilateral exchange of information is involved. The decision sets out the standards according to which it will take place.

I welcome the delegation and thank it for its presentation. The proposal is very interesting and timely. We have a very good working relationship with the PSNI in Northern Ireland. In this regard, do we have good co-operation with other member states, including France? I ask this in the light of a number of issues that arose recently, including human trafficking, in respect of which the Bulgarian authorities claimed people were being trafficked into Ireland through Rosslare. Are we working from a central base already or is there a haphazard approach, whereby, if an issue arose in France or Germany, we would then contact its police force? Have the delegates knowledge of the resources required to ensure delivery of the three databases? Has a system of common standards been identified? If so, is it up and running?

Mr. Martin Power

There is a high degree of co-operation between the Garda and police forces in other member states. We have seconded staff to The Hague. Part of the role of Europol is the provision and analysis of intelligence for member states, in addition to putting together the information it receives from all its sources. In addition, the Garda has a number of liaison gardaí posted in Irish embassies abroad. There is one in Paris and at least one in London. Their role, in part, is to liaise with their counterparts to ensure matters that might impinge on both jurisdictions or more member states are brought to the attention of the appropriate authorities. It is appropriate to have as much advance warning as possible to ensure one can act against organised criminals who might be transporting people or contraband. We liaise with Interpol and there are frequent conferences and seminars between police forces in the European Union, in which the Garda participates. The level of co-operation is high.

I have a number of questions. Anybody would welcome greater co-operation if it was to deal effectively with drug importation and crime which go hand in hand with importation of weapons. A range of high-powered weapons has come in with many of the drug shipments seized recently which indicates the scale of the problems, as do the recent drug-related deaths.

Why is Ireland not part of the European Car and Driver Licence Information System, EUCARIS? Would it require legislation for us to sign up to it? The Attorney General advises that it would probably be necessary to enact the primary legislation to implement the draft Council decision. Does this apply to the whole decision and if not, to which parts does it apply? Do some of our recent legislative changes cover the exchange of data?

I have criticised our rush in recent years to pass legislation in this area because the data protection standards in other countries are not as high as they are here. There has been no harmonisation upwards of the data protection aspect of this and we hear scare stories such as the loss of personal data of 24 million households in England. Some officials here have made criminal use of data to which they have access. What standard will apply to the national DNA database when it is set up? Is there a set standard for storage of DNA that is immediately transferable because systems vary from one country to another? The same applies to fingerprints. Someone sent me an article from The Guardian about how a Japanese mathematician was able to recreate fingerprints from a passport. It was said this could not be done because of the way the information was stored. That raises the problem of people having access to that kind of information without proper controls, resulting in large scale identity theft.

Other countries have security services but we have the Garda Síochána. By their nature secret services are secretive and love nothing better than to have access to as many databases as possible worldwide. In this case the data will be retained only for as long as necessary for the purpose for which it is supplied. How do we ensure that happens because once it is transferred it is out of our jurisdiction? Given the nature of, and the relationships between, security services and police services in other states, how can we be sure there is no trawl, transfer or duplication of data that we have supplied for a specific criminal investigation? Secret services deal with political and economic espionage as well as criminal activity.

How secure is the information exchanged electronically between member states via common communications networks and how will it be securely maintained?

Mr. Michael Kirrane

The European Commission has developed a private network incorporating the highest level of end-to-end encryption. It operates only between member states so is not as open as the Internet.

Schoolchildren can bypass the highest level of encryption. There was a project on that in the Young Scientist exhibition.

Mr. Michael Kirrane

Technology, including encryption levels, is constantly updated such that what was suitable five years ago is not suitable today.

Mr. Martin Power

Chapter 6 of the original decision sets out data protection to be implemented, including the Council of Europe standard. Article 25.2 states that the supply of personal data provided for under the decision will not take place until the provisions of the data protection chapter have been implemented in the national law of the territories of the member states involved in such supply. Before then the Commission will conduct an evaluation to ensure member states can comply with that before any exchange takes place.

I asked also which pieces require legislative changes, according to the Attorney General's advice.

Mr. Martin Power

The Attorney General's advice has been general, based on an overview of the two decisions, to the effect that they will most likely require primary legislation, the detail of which we do not know.

I asked how far we had advanced in setting up the DNA and fingerprinting databases.

Mr. Michael Kirrane

The fingerprinting database is up and running and was recently upgraded so that the standards exceed those required under this decision. The DNA database will be developed over the next year or so in line with the accompanying legislation. Planning is under way.

What is the position on the numberplate database?

Mr. Michael Kirrane

No development is needed for this because the existing databases of vehicle registration and driving licences will be used. The work is to connect those databases with other member states as the need arises.

Why are we not signed up to EUCARIS? Who ensures that data is retained only as long as necessary? Will the data protection officer in each state be responsible or will a separate data protection officer be appointed to oversee this activity?

Mr. Fergus O’Callaghan

On the data protection issues, it will be a matter for each member state to provide the appropriate arrangements. In our case, it will be the Data Protection Commissioner. There is also a mechanism whereby the data protection supervisors in each member state co-ordinate on this area. They will be aware of this proposal and are taking appropriate steps to ensure it is properly implemented.

The briefing states Ireland is not a full member of EUCARIS.

Mr. Martin Power

That is really a Revenue issue but we can inquire as to why this is the case.

Mr. Power mentioned the decision was taken in Council by qualified majority voting, QMV.

Mr. Martin Power

The voting method is QMV.

Has a decision already been taken? What procedures have taken place so far?

Mr. Martin Power

A Council decision was agreed last June on the broad parameters. The current one has yet to be adopted in the Council.

Are we operating on the basis of an opt-in or opt-out clause?

Mr. Martin Power

Regarding the original decision, there is a chapter that allows us to opt in or out of some elements. I am not aware that we are exercising any option to say we will not participate in certain aspects of this draft agreement.

We have not stated our intention to go ahead?

Mr. Fergus O’Callaghan

This is a follow-up or implementing measure. There is provision in the relevant EU treaty for such measures and instruments to be dealt with by QMV. The idea is that the original proposal is already adopted. This is a technical application of what already has been agreed by unanimity, hence, the specific arrangement for QMV. The main instrument in justice and home affairs and police co-operation would be dealt with by unanimity. However, this measure is already in place as Mr. Power has explained. It was agreed by the Council in the middle of the year. This is a set of technical and follow-up measures which can be agreed by QMV. The question of an opt-in or opt-out does not arise.

It is strange to have QMV after there has been an unanimous decision.

Mr. Fergus O’Callaghan

There are two separate instruments.

All 27 member states would have signed up to the original draft decision. What elements require QMV and why?

Mr. Fergus O’Callaghan

The new draft Council decision deals with the settling of the technical standards and arrangements to be made for implementing the main provision. To a certain extent, it is housekeeping within that framework. The main concerns and principles are covered by and catered for in the original Council decision.

In terms of the implementation, Mr. Power has advised the approval of the Oireachtas will be necessary for the adoption of the decision. That is a good development.

How much funding has been allocated to the data centre measure by the Accounting Officer?

Mr. Michael Kirrane

We must distinguish between the costs of setting up our national database, which will be done in any event, and the extra costs involved in the sharing of this information. In our analysis, the extra costs are not large in comparison to the overall costs of such projects.

What estimate has been put in place for the initial cost?

Mr. Michael Kirrane

Part of the system for fingerprinting has been implemented. The total investment will be approximately €17 million. A final figure has not been assigned to the DNA database because it depends on the extent of DNA profiling required on a national level which is determined by legislation.

Will there be a difficulty in practice in implementing this?

Mr. Michael Kirrane

I do not believe there will be. It is already in the plan to implement a national DNA database.

Deputy Ó Snodaigh referred to the problems recently experienced in the UK with data security. This is a major change. What arrangements are in place for data security?

Mr. Michael Kirrane

There is an automatic checking of individual databases. The information transmitted does not contain any personal information for the automatic checking that takes place. No personal information is assigned to the actual record in the first instance. It is only in the event of a hit that separately there is an exchange of information between the contract authorities.

Has the State an option to use PPS numbers in any of its inquires?

Mr. Michael Kirrane

No, it would not be proposed to use PPS numbers. The information collected through fingerprinting is linked do the Garda PULSE system which does not use PPS numbers. It uses its own identifiers. There are no plans to change that at this stage.

In the Committee of Public Accounts there was much debate on the introduction of the PULSE system and its lack of effectiveness. What standard is the PULSE system at?

Mr. Michael Kirrane

The PULSE system is extremely good. In the past two years, a large investment has been made to stabilise the system, extend it to other Garda stations and improve its functionality. Information collection using civilian personnel in Castlebar, County Mayo, has been established. Gardaí can telephone in information which is inputted by the civilian staff, who also quality assure the information coming onto the system.

Is that inputting done from visual report sheets?

Mr. Michael Kirrane

It is done by telephone in the first instance and then followed up. The rationale is that gardaí do not have to return to their stations to spend time filling in paperwork. It can be done from the scene of an incident, allowing more time for operational policing.

Issues such as alcohol testing on roads are obviously integrated into the whole system. Is that correct?

Mr. Michael Kirrane

Yes.

Does Mr. Power expect that the UK will opt for this new proposal?

Mr. Martin Power

Current indications are that the UK will also be part of this system.

That would be critical from an Irish viewpoint. Would Mr. Power agree that if the UK were to opt out, that would minimise the benefits?

Mr. Martin Power

The initial agreement has the support of all 27 member states. This implementing agreement merely introduces the practicalities through which it may be achieved. In the technical negotiations they will certainly agree the technical standards required so that all 27 countries can operate between themselves.

Has there been much public debate on this matter, given that it is imminent? Are there concerns about the sharing of information?

Mr. Martin Power

The sharing of information will always be of concern to people unless they can be assured that it is being shared within certain boundaries, for a particular purpose and used for that only — and that data protection as it exists under domestic and European legislation is effectively being implemented, so that they may be assured information is not being passed around for any purpose other than that for which it is intended.

How are DNA samples obtained?

Mr. Martin Power

Such data would be governed by domestic law about the taking of what are called intimate or non-intimate samples. Some DNA samples can be obtained through non-intimate, non-invasive procedures. It is a question of the more appropriate manner in which the DNA sample should be obtained.

Will legislation be required or has the Garda Síochána sufficient powers?

Mr. Martin Power

There are currently powers in existence for the taking of DNA and blood samples from individuals.

That covers the ground comprehensively. I want to thank Mr. Power, Mr. O'Callaghan and Mr. Kirrane for coming before the committee today, for their presentation and for answering the questions. They have been very informative and this will certainly help the committee in its finalisation of the scrutiny report. If they have any further information on issues that might be relevant, we should be obliged if they would kindly forward it to the committee. Today's discussion has been very beneficial and again I thank the witnesses.

The joint committee went into private session at 12.04 p.m. and resumed in public session at 12.08 p.m.

Top
Share