Joint Committee on Justice debate -
Tuesday, 11 Oct 2022

European Council Rule of Law Report 2022 and Rule of Law Situation in Ireland: Engagement with Ms Věra Jourová

Acting Chairman (Deputy Pa Daly)

The purpose of today's meeting is to have a discussion with Ms Vra Jourová, Vice-President of the European Commission for Values and Transparency. We are joined by a member of the Joint Committee on European Union Affairs, Deputy Ó Murchú, who is very welcome. All participants are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name in such a way as to make them identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity.

I am pleased to welcome Vice-President Jourová to our meeting today. Vitajte. She is joined by Mr. Álvaro de Elera, who is a member of the Vice-President's cabinet. Bienvenido. She is also joined by Mr. Jonathan Claridge, who is deputy head of the European Commission representation in Ireland. They are very welcome.

I understand the Vice-President is interested in discussing a number of matters with us today but particularly the European Commission's Rule of Law Report, which was adopted in July of this year, and the rule of law situation in Ireland. I also understand that a copy of our report on civil liberties during the Covid 19 pandemic was sent to her and I hope she found it interesting.

I invite Vice-President Jourová to make her opening remarks, following which we will have an engagement with the committee members.

Ms Vra Jourová

Thank you very much Acting Chairman and the honourable members for having me here. I am always very honoured when I can visit a member state and have a chance to speak to the member about rule of law issues but also other things which might be of interest for the members of the parliaments. I am responsible for the rule of law principle and strengthening the principle for media, for the fight against disinformation and for digital regulation. I am also responsible for fundamental rights matters and electoral integrity. It is a very broad portfolio.

Let me start by expressing my deepest sympathy with the families of those who died in Donegal because I know this is a terrible tragedy for Ireland.

Coming to the agenda, I am sure members know of the Rule of Law Report recommendations for Ireland. For the first time this year, we issued the recommendations. In the previous two reports, it was more or less descriptive. We described how we saw the situation in the spheres of judiciary, media, anti-corruption and the institutional checks and balances.

We started this Rule of Law Report annual exercise because we were asked by several member states to focus on all member states. You can imagine there were strong calls from Malta, Poland and Hungary and several other mainly eastern European countries that we should do this overall mapping and I was very much for that. I was previously the European Commissioner for Justice, Consumers and Gender Equality, so I have lived this for many years. I was in favour of this because it is good to have the overall picture of the whole system. We have 27 unique systems in our 27 member states. That is why when I sometimes hear arguments from some countries that the European Commission is criticising them for having some elements of the system and when they say other states also have them, I always say we have to look at the whole system with all the elements and then make a judgment or make an assessment that there are some gaps in the rule of law system. I am sure members know the recommendations for Ireland. There are recommendations regarding judicial appointments, the number of judges, the efficiency of the Judiciary, the cost of litigation, and the prospect for more efficient Judiciary functioning, including digitalisation, which I will not go into further here. In the anti-corruption sphere, we have some very positive assessments, such as strengthening the existing ethics framework and so on.

Regarding media freedom and pluralism, we note that preparatory work is ongoing for the establishment of a new media regulatory authority. The general scheme of the defamation Bill to update aspects of the defamation law is expected to be published in the first quarter of this year.

These are very important matters for me because as members might know, we are working on the media freedom Act and I would like to receive support from the Irish authorities. We have also proposed the anti-SLAPP legislation, which is very close to what Ireland is doing.

I have just spoken to the Minister for Justice and I believe we are on the same page with the plan that there should be stronger protection for journalists. We have also included in our proposal human rights defenders when they are facing litigation.

We are very much convinced that our Rule of Law Report reflected Ireland as a country with many positive features and this is why I am very glad that today we can discuss the situation. I want to clarify that this is not an inspection trip to Ireland. This is a very welcome opportunity for a discussion. The Rule of Law Report is meant to be a preventative tool and an invitation for well-informed and thorough debate with the national authorities, including the parliaments.

Today I discussed with the Minister for Justice the European arrest warrant and I understand the European Arrest Warrant (Amendment) Bill 2022 completed its passage through the Lower House of the Oireachtas in June this year. I was given the assurance from the Minister that the legislators have given it high priority and will prioritise this process to ensure the concerns as set out in the infringement proceedings will be addressed as soon as possible.

I would also like to hear the committee's views on European Public Prosecutor's Office, EPPO. I have a history with this institution because I inherited this file from my predecessor in 2014, Viviane Reding, who I replaced in the position as the European Commissioner for Justice. We had to modify the model of EPPO from a centralised one into a decentralised one, because otherwise it would not gain support from the member states. At this moment we have 23 member states on board. Sweden is signalling it will join. Ireland and Denmark are out due to the opt out. Hungary and Poland are out due to their own reasons, which is they simply did not want to join the EPPO. I have one comment in this regard. I am convinced that if Poland Hungary had joined the EPPO, it would not have come with the conditionality regulation, which gives us the possibility to freeze the money of a country that does not respect the rule of law principle. There is a connection between the EPPO and the conditionality regulation, which we triggered for the first time in the case of Hungary.

I will speak on the electoral package but I will not go into details as I am aware I had five minutes to speak here. We have a deep conviction that we must do much more to protect elections as a strong pillar of European democracy. Before the elections in 2019 we established the European electoral network. We invited representatives of all member states and we discussed risks we had identified. These risks included cybersecurity risks and the stealing of private data from people for the purpose of hidden manipulation - we recall the Cambridge Analytica case - which we believe is a clear risk because this information is a problem for free and fair elections. Other risks discussed were the lack of rules that reflect the fact that advertising has shifted to the online sphere. Since 2017 and over time, we have developed stronger instruments to protect elections and protect the autonomous vote of voters.

We have proposed, among other things, regulation on political advertising as specific to the Digital Services Act. By this law we want to increase transparency so that when people read some content, they know it is fake content that has the purpose of influencing the political preference and voting preference of the individual. We want more transparency in that regard. The second thing we did was to prohibit micro-targeting on the basis of sensitive data such as race, sexual orientation, religion and political opinions. This is very much consistent with the general data protection regulation, GDPR, because GDPR defines the sensitive data. We also proposed new rules for European political parties and for better possibilities for mobile citizens to cast their vote. These are our contributions to strengthen the electoral system in the EU. Of course, this is not an easy field because the regulation of electoral regimes stays mainly with the member states. This is why we identified the layer where we can do our part of the job to strengthen the electoral systems. This is it. All of these three things I have mentioned, the political advertising, the European political parties and the voting rights of mobile citizens, are now in the legislative process. On the first element especially, I believe the Irish contribution will be interesting and useful within the Council because Ireland is advanced in many aspects we govern in the legislation.

That is the contribution from my side. I went quickly through all of the items I had prepared for the committee, but of course I am also available for any questions the members may have. I came first of all for the committee feedback and information, and especially on how the committee members see the relevance and opportunity of our Rule of Law Report. It is always important for us to understand, from donations of parliaments, whether they find it useful and whether they think the Commission came with relevant and trustworthy assessment.

Acting Chairman (Deputy Pa Daly)

I thank Ms Jourová. The positivity is welcome, as is the criticism with regard to where Ireland is falling down. I have one question before I hand over the Senator Ruane. The Senator has an engagement and I want to bring her in first. Ms Jourová referred to the voting rights of mobile citizens. Is that it?

Ms Vra Jourová

These are citizens who live in another country.

Acting Chairman (Deputy Pa Daly)

That is interesting from an Irish perspective also.

Ms Vra Jourová

Yes.

Senator Lynn Ruane

It is definitely a new term. I have not heard the term "mobile citizens" used before. I like it. I thank Ms Jourová for her presentation. So many areas of the Rule of Law Report touch on much of the work I do but I will try to home in on two particular areas, one of which is the Electoral Reform Act 2022 in Ireland. I authored legislation here some years ago around the Electoral Reform Act. Ms Jourová mentioned elections, election advertising and trying to do elections well. Sometimes, in trying to do elections well, we have actually hindered other types of work around civil liberties, community work and advocacy that does not fall within the realm of elections. Based on Ms Jourová's experience and the work and findings of the report from across the EU, do any equivalent obstacles exist in other countries as do in Ireland in the context of the framing of political purposes? This framing in Ireland has actually hindered normal activism work. This applies to everything from residents associations up. Ms Jourová may be aware that, given the way "political purposes" is framed in Ireland, it falls outside of the regulations of the Standards in Public Office Commission, SIPO.

Even when no general election or referendum campaign is ongoing, normal civil society activism is shut down because of the definition of political purposes in our legislation. Has that come up at all?

I will ask a few questions first and then the witnesses can come back in. I think there was an ECJ finding in respect of Hungary that might be similar to the situation in Ireland in that it involved violation of EU regulations on privacy and Single Market governance. There might be some relation between the two. Based on the witnesses' engagement with the Irish Government, are they confident that legal obstacles which restrict the work of civil society will be addressed and in a timely manner? I know that they cannot be critical of the Government and that they are here for different reasons. My fear, however, is that we have slowed down the process of addressing the issue of the electoral legislation due to the setting up of a commission, which means that, while it is said that everything will be dealt with within the commission, many civil society organisations are not able, while the electoral commission is being developed, to do the work they set out to do for fear of being caught in this kind of rigid definition.

As for the review of the Electoral Acts, do the witnesses feel that those Acts are the appropriate forum in which this legislative anomaly should be addressed or are there alternatives? If the witnesses do not have answers to these questions, there is no need to worry. I can send the questions on to them afterwards if there is anything they cannot answer now.

The rule of law report also expressed concern about the tight timeframes in which new legislation is debated and scrutinised in the Oireachtas, especially during the weeks leading up to the recess periods of summer and Christmas. As an Independent Senator who is quite active, I believe that this is a huge issue because, especially in the Seanad, we work very hard to amend and to review every single piece of legislation that comes before us and we feel that the railroading of legislation really negatively impacts democracy. I know that the report looked at that. Is parliamentary scrutiny undermined, do the witnesses believe, in a similar way in any other EU member state? On our side, the Government has been somewhat quiet in response to widespread domestic criticism of how it has tried to do parliamentary business. Do the witnesses feel that the Government has responded in any such way to the concern expressed in the rule of law report in this regard? Has it responded in any satisfactory way?

I am happy to have the Chair send on any of the questions on which the witnesses would prefer to come back to me.

Ms Vra Jourová

I will try to answer everything. I did not get the third question.

Senator Lynn Ruane

The third one was about our Government having been quite quiet-----

Ms Vra Jourová

I will answer now and then the Senator can tell me what is missing.

The Senator asked about political advertising in respect of activism or NGOs, if I may simplify the question in that way. We had a really big headache when working on this regulation. There were four things we had to decide how to formulate. One was time and whether to cover the whole time or to accept the fact that there is now permanent political campaigning. The experts in marketing, political marketing especially, tell us to forget about covering only some campaign time or three weeks before elections. The campaign is permanent. We agreed and we do not define any special rules for the time before elections.

The second thing was the microtargeting. I have spoken about that. There was a big discussion between "let us not touch it" and "let us ban everything". Now among the voices from the European Parliament are those who would like to go farther.

The Senator asked about civil society organisations. We scrutinised very well what the reality looks like and found that in every member state there are civil society organisations which try to influence electoral preferences. It is legitimate, so we said it was okay and that we would not narrow the space for such organisations. We just want full transparency. When an NGO runs a political programme with the aim of influencing elections, we want such actors to be transparent about who pays for that, how much and in which elections. They are the parameters for transparency. That is it. We are not banning or shutting down anything. I expected very assertive or negative reactions from the side of civil society, but when they read through the text and found out that the only thing we require is transparency, they welcomed that. This legislation is still a work in progress, however, so we might see some changes proposed from the side of the member states. It is, however, already at an advanced stage, and the Commission, represented by me, will insist that we propose something which is balanced and which seeks to increase the transparency of advertising.

Coming to the Senator's second point about the legal obstacles, we have seen over years the trend of shrinking space for civil society. It can be a somewhat slow process, even an unintended one or one caused by financial pressure, or it can be intentional in that the leaders of the state are not comfortable with the people, the activists, the representatives of the NGOs. I will not name and shame, but members can use their imagination. There are ways to intentionally shrink further that space, including by legal obstacles, as was the case in Hungary, which we put to the European Court of Justice, which in turn has already given the decision that Hungary should change the laws which impose obligations on civil society organisations, obligations which have led to a very difficult existence and functioning for such organisations in Hungary. ECJ rulings have the power of precedent, yes?

Mr. Jonathan Claridge

Yes.

Ms Vra Jourová

Mr. Claridge has the biggest legal brain in the Commission, so I always ask him these questions. The court ruling is here, including the parameters for setting the rules and conditions for civil society, which will be proportionate and necessary. There are some benchmarks in the ruling. One way is to bring legal obstacles. There is a reflection already in the ECJ ruling in that regard. The second is financial pressure or decreasing budgets. That is happening in several member states and we have real concerns about it. It is also reflected in the Irish rule of law report that we see some negative changes in that way. The third way is hostile and hateful rhetoric of the leaders of the countries against activists, human rights defenders and journalists. I would not underestimate that because it is one of the factors also contributing to the shrinking of the space for civil society. Once the people, the citizens, believe that the NGOs are public enemies, for the parliament it is easy. It does not lose anything when the budgets go down. There is a clear correlation. That is why we are also working on harmonising the rules against hate speech online. I think that is one of the factors which influence civil society.

As for the timeframe and the fine-tuning of the rule of law report with the parliamentary work, we have a very stable schedule so we now have time to digest the report.

That is what I am here to discuss. From January on, we will start to collect the data and, between February and April or May, we will be able to reflect the legislative changes happening in the member state. As I said to the Minister earlier, we will reflect as much as we can the positive things which come, especially as a reaction to our recommendations. The timeframe is stable and we will publish the report again in July. The methodology is stable, transparent and predictable, and we do not want to change it too much - perhaps just some details.

What has been criticised heavily by many governments is that we are listening too much to the NGOs, although I am simplifying the point. After the first rule of law report, we got many questions as to what are the channels of information from which we are collecting. However, we are very transparent about these channels and it is publicly known who is contributing to the rule of law report. What was the third question?

Senator Lynn Ruane

Ms Jourová covered political advertising. In Ireland, the definition of political purposes is causing issues with the Standards in Public Office Commission in regard to funding. Ms Jourová spoke about the shrinking of funding. Through her experience of doing the report, does she have any alternatives for Ireland to be able to address this anomaly in the Electoral Acts so civil society organisations are not judged in the same way as politicians or parties regarding civil society work?

Ms Vra Jourová

I cannot add more to what I said before. We made that choice. With regard to political advertising, we recognise that some civil society organisations are pushing a political programme and it should be known by the public. Perhaps if the Senator was to formulate a country-specific question, we will deliver a country-specific answer.

Senator Lynn Ruane

I raise it because what is probably not understood so well is the fact that, even outside of trying to put pressure on politics or government, normal everyday activism in respect of issues is being stifled, separate to any sort of lobbying of government but even that educational aspect of a society in the context of poverty, education and various other issues. People are falling into political definitions who should not be doing so. I can send on the legislation that I have authored in order to give Ms Jourová more context.

Acting Chairman (Deputy Pa Daly)

The Senator can send it through the office and we will forward it.

Senator Lynn Ruane

I thank Ms Jourová. I have to go to another committee so I apologise for leaving.

Acting Chairman (Deputy Pa Daly)

Deputy Costello may also be under pressure so I invite him to come in at this stage.

Deputy Patrick Costello

I will come in if Deputy Ó Murchú is okay with that. I apologise as I have to attend the same committee and I was in the Chamber as well.

Ms Vra Jourová

We are competing.

Deputy Patrick Costello

It requires trilocation. It is all part of the joy of this job, as I am sure the witnesses are deeply aware.

I want to start with a few general observations I will pick up on the point that was made about the space for civil society. It is not just governments; there is a huge move among those who want to take the freedoms and liberties of others away and to push back against civil society. Maybe I am a little naïve, but it seems to me that most of the rhetoric against NGOs and civil society is outside. There is some of it in this building; we hear it, and it is often a reflection of those wider currents of those who want to tear apart the fabric of society, but it is a growing problem and the fact we are hearing it in here more is concerning. As Ms Jourová said, this is a general problem across the Union.

The fundamental rights of European citizens are absolutely worth protecting but the challenge is that, quite often, we need to see greater enforcement. In this committee, we have spoken a lot about GDPR and in regard to data protection. There are those of us on the committee who are constantly beating that drum and expressing our concerns about the undermining of European Union citizens’ fundamental rights because of a failure of enforcement of the GDPR. I do not know if this made it into the rule of law report or not, but one thing I would like to flag up is that going hand in hand with this issue of GDPR privacy and fundamental rights are issues relating to data gathering and real-time bidding, which is something the Irish Council of Civil Liberties is campaigning against and I believe it has some court actions in that regard. Real-time bidding has the potential to be a huge engine for disinformation and manipulation. For me, it comes down to enforcement. Anything that can be done to improve the issue of enforcement or to highlight the weak areas of enforcement within Ireland is fundamental for me.

It was positive to hear Ms Jourová talk about defamation and strategic lawsuits against public participation, SLAPP, and that the Minister is in a similar place to her. This is something we have seen a lot of here. I ask Ms Jourová to talk more about the moves afoot in that regard, which would be very helpful to us, as a committee. One of the things that is worth flagging up is that one of the recommendations was around the strength of our ethics legislation and the strength or, in reality, the weakness of the ethics enforcement of the Standards in Public Office Commission. We see this today. We have news today that a member of An Bord Pleanála, one of our national bodies to do with planning and development, is to have criminal sanctions brought against him, and I will say no more about that. At the same time, there are court cases collapsing because An Bord Pleanála is not contesting claims that it made its decisions in an inappropriate manner. This flows directly from those weak ethics and weak ethics enforcement. I will say no more about it lest I get myself or someone else in trouble.

I would be interested to hear more about the challenges of enforcement and, in particular, recommendations for Ireland in regard to improving enforcement in general, and some more information in regard to SLAPP and that kind of work.

Ms Vra Jourová

I am not sure where to start. Deputy Costello has triggered a lot of ideas of a more conceptual character. I will restrict myself to saying that the longer I work in this field of protecting democracy, the more I am convinced that active citizenship is the key thing. Without having people who care, who are demanding and who push governments to be transparent and accountable and to deliver, we cannot have better and more robust democracy. The Deputy referred to the cases which collapsed in the process. These are exactly the moments when the trust of people goes down, and we do not see much space for the dropping of trust in democratic institutions in Europe. In Ireland, of course, the situation is much better than in some other member states. However, we see that more and more citizens in different surveys are announcing doubts as to whether democracy is delivering for their lives, their security and their perspectives, and it will be even worse now when we are all under the new and horrible threat of the war and its consequences for Europe.

Active citizenship means that the individual citizens, who have and should be aware their rights, will not be transposed into some kind of crowd which is easy to manipulate. Here comes the influence of digital media: there is this idea of making the people the crowd for them to be more easily handled. That is why in GDPR we came back to old, good respect for individual rights - it is still early - and we gave the citizens many rights which they should use as informed people.

We have to work on what was mentioned about enforcement and gaps in enforcement. At the same time, people are still missing the knowledge that GDPR is protecting them and that they have rights which they should have enforced. They should complain. That is active citizenship. We cannot invent magical legislation which will protect the people from the top down. There has always been bottom-up care and this is still missing, but here I am more focused on digital and media literacy and this is the long distance around.

GDPR had a brilliant idea of one continent, one law, one method of implementation and equally strong enforcement. That was the theory at the beginning. Over time, after five years of implementation of GDPR, we see that there are still gaps in some member states. We have a very demanding task for the Data Protection Commission with regard to the magnitude and all those big fish.

I spoke yesterday to Helen Dixon who showed me the statistics and all the Data Protection Commission is doing together with other data protection authorities, because there are an incredibly high number of cross-border cases which have to be tackled in co-operation with others. Our problem is that in the member states we do not have comparably favourable legislation which enables speedy processes. However, we are aware of that. Enforcement is key and we are in constant dialogue with the European Data Protection Board about how to improve the overall situation in the EU. There is always the same set of problems for individual states, that is, underestimated staffing, low budgets and slow procedures. It has to be difficult on the member state level.

With regard to strategic lawsuits against public participation, SLAPP, we proposed legislation which would make it more difficult to sue somebody in another state and not just a member state but a third state. I have in mind mainly the UK because it is a big fashion to go the UK courts. We proposed a cross-border regime where the judges should look into the case first to make an assessment of whether the case is real or purely "a case for the case" and whether the nature of the litigation behind it is abusive. We had also recommended the member states adapt the internal system of litigation in order that it should not be that easy to sue somebody for defamation or some wrongdoing. We mean "somebody" to be journalists and human rights defenders. That is how we define the targets in our legislation.

The ministers of justice gave me the first feedback on this proposal. A big number of them are for the legislation, including the domestic legislation. However, they always tell me we must be cautious not to create some kind of impunity because, even when somebody is rich and powerful, they should have the right of access to the court when somehow harmed by the unprofessional performance of a journalist. We created a balanced proposal which is now in the legislative process. I wonder when we can expect a result because a big number of the member states said it is useful but there are some member states who said they did not have any cases like that. I will have to act mainly in that direction.

Deputy Patrick Costello

Some of the statistics Ms Jourová mentioned are hotly contested. I do not know whether she has had a chance to speak to civil society groups. I can recommend a few. Our committee made a report where it took in statements from civil society groups. I am sure the clerk can provide a copy of that to Ms Jourová. There are a few interesting people to follow up with. I wish to correct the record. I misspoke when I said "criminal sanctions". There are no criminal sanctions, only criminal charges. We are at the very beginning of the process and not the end. It would be unfair of me to say "sanctions" when they are criminal charges.

Ms Vra Jourová

Okay.

Acting Chairman (Deputy Pa Daly)

I was reading, on page 6 of the report, about the number of judges in Ireland. Ms Jourová said that more judges were needed to deal with the backlog of cases and that we had the lowest number of judges, per head of population, in the EU and that there have been some other concerns expressed because following Covid there are backlogs, especially in family law cases. Citizens' access to justice is obviously affected by that. She added that there is a perception that the State is not prioritising this if we are the lowest. Do she wish to expand on that?

Some concerns have been expressed to the committee that the cuts which were imposed on criminal legal aid, especially after the financial crash ten years ago, have not been removed. There is now a considerable shortage of lawyers with experience in crime, because the remuneration has not been enough to keep them in it. There is a statistic that two third of barristers who commence a career in criminal law leave after only six years in practice. That is obviously a concern for the defence of the individual before the courts.

She made other interesting comments, one of which was on mobile citizens. Would a mobile citizen be someone who did not necessarily have an address in, but was a citizen of, that state? Does she envisage that there may be facilities made available to those citizens, if they were citizens, to vote without an address?

My other question is on types of legal aid for dealing with the courts with regard to domestic violence, landlord and tenant or a work-related dispute. Could or should legal aid be expanded in this State? I apologise for the number of questions but I am especially interested in mobile citizens.

Ms Vra Jourová

This is about people who have a residence permit in another member state. It is not those who have citizenship, but those who have a residence permit and the status which would enable them to cast their vote in European and municipal elections.

It may be a horrible simplification of our story of the Judiciary but what we hear from people is that they want to see a speedy, accessible and fair judicial system. As regards it being speedy, they want to see their case resolved relatively soon. I am not referring to criminal proceedings, although I should also perhaps speak about them because when a person is convicted, it is already a problem for the person and such proceedings should not last many years. In civil matters and family matters, people expect the Judiciary to be speedy and efficient. We have never pushed for extremely short deadlines because we understand that the speed of the litigation always reflects the complexity of the case. We are aware of that. As regards accessibility, I was surprised to learn from a survey I saw today that 80% of respondents stated that participating in civil law litigation is very costly and demanding, even for small and medium enterprises or people who are not very poor, as well as the middle class, perhaps. I did not see the details of that but 80% of respondents is a rather high figure. This is connected not only with official legal aid but also with fees, which we discussed today with the Minister. As I stated, it needs to be speedy, accessible and fair. The judicial system will never be fair to all; there will always be somebody who is unhappy. Objective fairness and trustworthiness has been built through decades in every member state. That is why it is such a fragile sector. If something is built up through several decades but there are then several cases involving corrupt judges or judges who make bad judgments which the people do not understand in terms of a general feeling of fairness, the trust will go down. Trust is key. We have data which show a correlation between low trust and easy attacks on the Judiciary from the side of politicians. It costs nothing to attack judges if society has low trust in them.

I do not know if I have addressed the Acting Chairman's questions. Of course, for the rule of law report next year we will again look into the development in Ireland of the respective things that he mentioned.

Acting Chairman (Deputy Pa Daly)

As noted in the report, the judicial planning working group is expected to publish its report this month. We look forward to that.

Deputy Patrick Costello

I echo some of the points raised by the Acting Chairman. The statistic that we have approximately 3.3 judges per 100,000 of population, compared with the European average of 18 or 21, is one to which I often refer. The recently retired President of the High Court, Ms Justice Mary Irvine, has looked for more judges, as has the current President of the High Court, with both making the case that the administration of justice is slowly grinding to a halt without further judges. We must bear in mind, however, that approximately 80% of cases in the country are at the lowest level, that is, in the District Court. That is where family law cases are being taken and it is where we also do not have enough judges. It is a drum I have been banging quite a lot. I do not know what consultations Ms Jourová has had on the matter but members of the Judiciary and recently retired superior court judges such as former Chief Justice Mr. Frank Clarke have spoken eloquently and publicly about the challenges to accessibility that are caused by a lack of judges and funding.

Another issue is that civil legal aid is very restricted in this country. I do not know how it compares with other jurisdictions but, within the legislation for civil legal aid, there are plenty of areas where it cannot be granted, depending on the nature of the action. That limits it. Through the years, a wide variety of community NGOs, free legal aid centres and community law mediation centres have called for reform of civil legal aid. Even before we get to the matter of funding and budgets, which is always a more difficult issue, the basic structure of civil legal aid is not good enough.

There is a tendency to keep creating new quasi-judicial bodies - I do not know if that translates well - such as an arbitration board to hear a particular issue or right. I refer to the Workplace Relations Commission, for example. Quite often, these bodies are heralded as taking decisions away from the courts and, therefore, making them quicker, cheaper and more accessible - all the things Ms Jourová spoke about. In reality, however, it is often the case that they do not so or that their procedures are limited and do not deliver fairness. A recent big case here will have significant unintended consequences in that context. It is said that the justice administered in these bodies cannot fall below the standard that pertains in the courts. That creates a significant problem because if sworn testimony, cross-examination and public hearings must be allowed, then it is logical for free legal aid to be provided as a shield for those who do not have the status to hire an expensive lawyer. It is a shield for their fundamental rights. If that legal aid is being provided in the courts, why is it not being provided at those other bodies? The Chief Justice has a juicy quote in his decision in this regard. That is an interesting precedent, the consequences of which are yet to play out, particularly in terms of all those judicial bodies, complaints boards and the Data Protection Commission. I believe that it will also start something in respect of civil legal aid. I stress that when it comes to civil legal aid, it is not just the issue of funding; it is the breadth of it and what is excluded and what is not. That needs fundamental reform.

Ms Vra Jourová

In principle, this requires a lot of attention because when fundamental rights become luxurious in the sense of not being accessible by everybody, there is something wrong. That is why we rightly pointed that out in the report. Everywhere I go, I hear that this is on the radar of the relevant bodies here.

Deputy Patrick Costello

I hope it is also on the radar of the Minister.

Ms Vra Jourová

It is on the radar.

Deputy Patrick Costello

I suppose it is our job to ensure that it is.

Acting Chairman (Deputy Pa Daly)

I was wondering whether Deputy Ó Murchú was going to rejoin us. Apologies have been received from Deputies Alan Farrell, Jennifer Carroll MacNeill and Martin Kenny, as well as from the Chairman, Deputy Lawless. Unfortunately, they cannot be here.

Ms Vra Jourová

I understand.

Acting Chairman (Deputy Pa Daly)

Does the Deputy have anything further?

Deputy Patrick Costello

I have many things I would say, but it would be repeating what I said or me climbing up on my soapbox and giving the poor clerk to the committee a heart attack with all the wild allegations I could make.

I will admit to my own ignorance again regarding Ms Jourová’s engagement with civil society while she is here. I am more than happy to send through our seminar reports and link with her office and recommend some of the people here. Mr. Justice Clarke and the superior court judges have been clear on the issue of the Judiciary and how accessibility is not just about the number of judges and the number of courtrooms. There are fundamental issues that we need to work on.

Ms Vra Jourová

I never wanted two things to be applied on judiciary systems in Europe - one was artificial intelligence and the second was simplified arithmetic. This belongs to the latter. When accounting the number of judges per head, one has to understand the system. In many member states, there are many matters that in other member states belong to the table of judges and higher judiciary officers. Suddenly, there is some kind of deformed picture and, therefore, sometimes we are comparing apples and pears. Of course, the sufficient number of highly professional and well paid judges is the goal in every country.

Deputy Patrick Costello

Sometimes, because of our common law system, which is different from many of the European models, it is claimed that we are not comparing like with like but these comparisons are still useful. I appreciate that Ms Jourová said not to reduce it to arithmetic. However, I am concerned because some people are using that here as an excuse to say we are all good, when in reality we are not. Senior judges are at the heart of this along with the Bar Council telling us we need more judges. We have practitioners sitting on the front line describing the journeys they are walking with their clients and how, quite simply, they are not getting justice.

Ms Vra Jourová

That is why we are running two exercises. One is a justice scoreboard, which is more or less arithmetic, including how many days, which kind of file, how many judges and so on. We were aware that this cannot be sufficient for assessing the quality and robustness of the judiciary system in a member state. That is why we complemented it with this rule of law report, which is going more after the unquantifiable factors. We try to capture or cover complex systems through the report.

However, it is big difference from when I started in the Commission. The rule of law principle was in the Lisbon treaty but, honestly, there was not much care about that. We were convinced that this is something like perpetuum mobile and it will function well forever. When Poland announced and introduced judiciary reform in a political campaign and then implemented it, it was a big wake-up call for the whole of Europe. I am grateful to all the partners in the member states who will co-operate on the rule of report, because I feel this is a common work. The final word is for the Commission, but we can together make the system much more robust in every state.

Acting Chairman (Deputy Pa Daly)

There is a right to a fair and speedy trial under our Constitution. There is also much to be said about the separation of powers.

Ms Jourová's report included the appointment of judges, the composition of the judicial appointments commission and looked at other European standards related that. She defended the idea that a majority of judges be represented on the commission. There has been a contentious issue here about the inclusion of the Attorney General on the judicial appointments commission. Does she have a view on that? Looking at her report, perhaps she is suggesting that the Attorney General should not be involved.

Ms Vra Jourová

Who am I to tell you that? I always say that judiciary systems cannot be one-size-fits-all. However, more or less, we would like to see member states have something that would follow the Council of Europe standards, which state that judges should be appointed by a judiciary body that is majority judges, for the system for appointments, career decisions and dismissals. That is the very simple standard or principle, which I am in unease to sell in many member states, not only in Ireland. It is about the status of the Attorney General and whether they should be a full-fledged or observer. The committee will have to discuss this further. In several other member states, I hear, “Well, we have a tradition and system that lives over decades and the system is enshrined in the constitution.” It is not easy, therefore, to sell this standard of the Council of Europe. However, the Commission is of the opinion that it is useful to have such a structure as protection against politicisation of the processes of appointments and dismissals. By “politicisation” we mean excessive power of executive or legislative branches. That is the one-size-fits-all.

Deputy Patrick Costello

A set of countries has issues with excessive politicisation. Perhaps we can all consider one, which will remain nameless before the clerk to the committee gives out to me again. I am learning.

Deputy Ó Murchú may have just sat down so he may be with us soon enough. I do not know if we can wait.

Ms Vra Jourová

I also had an interesting debate here with Twitter about truth and lies. Yesterday, I was at its headquarters and this morning we saw the journalists and the experts working under the European Observatory structure, who are the fact-checkers. We discussed the influence of Russian aggression in Ukraine on the overall feeling in Europe and our positioning towards truth and lie and Russian propaganda. It was interesting to hear both the journalists but also the managers of Twitter talk about how the situation is newly bringing additional demands to fact-check and deliver the facts to the people. In the country that hosts 52,000 refugees, which I thank Ireland for, it may be especially important that citizens get trustworthy information about the war and are not brainwashed by Russian propaganda. Russians are masters in that. They have been improving the method of how to brainwash people since Stalin. It was interesting to hear how disinformation is being tackled here.

Acting Chairman (Deputy Pa Daly)

I pay tribute to the work that has gone on in the various Departments in accommodating Ukrainians.

Last Friday I was at one of the centres in Tralee, which has some non-Ukrainian asylum seekers, and they are in tents. The system is under a particular strain, which I hope will be addressed soon by the Departments that have tried to prevent that from happening with the winter coming up. Without further ado we have Deputy Ó Murchú.

Ms Vra Jourová

This is a busy place.

Deputy Ruairí Ó Murchú

It is incredibly difficult to be in two places at once and I was holding out for an answer that did not come. I hold the Taoiseach responsible for that. I thank the witnesses, particularly Commissioner Jourová, and I acknowledge her kind words about the tragedy in Creeslough. Ireland is a small place and the Europe we are now in is also a small place and we are connected in many ways.

A consistent argument would have taken place on the issue of the rule of law and, fairly or unfairly, it would have been argued that the rule of law only applies when it is Poland or Hungary. It is vital that it applies across the board. If we look at the specific recommendation on Ireland it is not anything that a sensible person should have a particular difficulty with. We all know about the issues we have had in recent times with judicial appointments and around litigation costs. One must have access to justice. If justice is not affordable and timely then one does not have access to justice; it is as simple as that. There has already been mention of the issues with An Bord Pleanála but we have the ongoing reality or perception in this State of the revolving door between big lobby groups and politics and we need to be able to break that. We need to be able to break it in reality and we even need to be seen to break it because it is one of those scenarios that does not help with the continuity of democracy as sometimes others can use that notion and make an attack. Sometimes there is a case where there is a greater level of connection for those who are perceived as the elites. On some level we need to remove that and we also need to remove the argument on it. All of us have spoken many times about what needs to happen if we are talking about SIPO. There is no difficulty there and we know what the issues are, including ensuring we have the proper media framework and protection for journalists in place.

I have no difficulty with the proposals and it is necessary that we follow through on it. The Commissioner's remit is quite wide so I will throw a number of questions at her and as soon as she gets fed up answering them she can just stop. I will accept that seeing as the committee was good enough to facilitate me in going away and not getting my answer.

I will start with the rule of law issues. These are the rule of law issues that probably held up until we entered a new phase with the Russian invasion of Ukraine. It seemed to be the case that until the rule of law issues were dealt with accession was off the table. Whatever people may have said publicly that was the name of the game. We also have the conditionality regulations and now we have some leverage in ensuring we have compliance. I also accept that countries have to make a determination on whether they want to be part of a European Union that has to be about fairness, democracy and all those societal improvements that have been made in time, or whether they want the alternative, which is plain to see on the international stage.

Where does Ms Jourová perceive the conversations and relationships as being? I imagine they are still particularly bad with Hungary. Where are they with Poland? There has probably been a considerable amount of exchange over and back at this stage.

Ms Vra Jourová

When we saw serious issues in the rule of law in some member states we also made the enlargement discussions and negotiations tougher for the countries which want to join the EU. Chapters 23 and 24 in the negotiations are more demanding and rigid when it comes to requirements. It now also covers the media sphere and so on. It is not easy for the countries which want to join the EU but they became kind of used to it. The western Balkan countries were upset because there was an impression that we were giving Ukraine some fast-track regime for accession, which is not true. At the same time we have to look at the reality in Ukraine. The country is fighting against the aggressor and at the same time it is announcing to us its progress in working on different files, laws, institutional changes and so on.

The rule of law, as a principle, is heavily present in it, and we are aware that by pushing the accession countries to meet high requirements from the EU we have to put our house in order. That is why we strengthened the tools in this respect. The rule of law report is one of the new instruments and the other is the conditionality regulation. The Deputy asked about Hungary and it permitted the introduction of rather vast and broad changes in its anti-corruption system and it partly introduced changes in its judiciary system. Hungary has made 17 commitments and the Commission accepted that Hungary should carry these commitments out, introduce several things, establish the integrity body and make stricter the assets declarations system and so on. These 17 points are very concrete. Hungary accepted this proposal. In spite of hearing a strong voice from Hungary to do all of that, which it can do because it has constitutional majority-----

Deputy Ruairí Ó Murchú

It has the numbers.

Ms Vra Jourová

It is easy. In spite of that the Commission said that Hungary should do that and that it wants to see it done in practice, not only on paper or at the level of promises. The Commission then put the case on the table of the member states. Now Hungary has until 19 November to have everything under that roof for this new legislation. As I said, we believe they will manage. Then the Council has an additional one month, or until 18 December, to decide whether the ministers for finance will be satisfied and close the case or whether they will accept the proposal of the Commission to freeze 65% of the cohesion funding. The process has strict deadlines, which is a good thing. The Commission also felt strong pressure due to these deadlines and so we had to decide, which we did. I am glad that the final decision does not stay with the Commission. It should be down to the member states to decide on that because it is their taxpayers' money. Who says now that this is weak and easy for Hungary to fulfil?

The regulation is what it is and the process became, rather than the protection of the rule of law, the protection of EU money. That is why it goes to the table of the ministers of finance. This is not a complaint. I am glad we have this leverage but, as the rule of law person, I would have loved to see a stronger set of rules.

Deputy Ruairí Ó Murchú

I suppose it is a starting point and engagement is always worthwhile. There is a journey people have to make. It is possible to make it and maybe slightly easier than it should have been, but we are where we are. Will Ms Jourová speak about Poland's issues?

Ms Vra Jourová

With Poland, we have several infringement procedures and the Article 7 procedure ongoing. We still hope Poland will come with an improvement in its reaction to our demands regarding disciplinary proceedings, which is blocking the big pile of money. I hope Poland will come with something positive and constructive because Polish people need support from the EU.

Deputy Ruairí Ó Murchú

That is due to the huge heavy lifting they are doing regarding the war in Ukraine. Beyond that, Poland is a place where, across all politics, people are supportive of the idea of the European Union.

Ms Vra Jourová

Yes.

Deputy Ruairí Ó Murchú

It is to be hoped that is enough to get us to a better place. That is vital. The western Balkans and others have a fair argument in saying nobody was considering them in recent years. The only thing is there are roadmaps, there is a possibility and everybody sees accession is there, but strict criteria must be met. That is sound, as it needs to be and should be.

Ms Vra Jourová

I sometimes say Putin gave us the necessary courage to decide to grow. We need to grow, politically, geographically and in defence and resilience ability.

Deputy Ruairí Ó Murchú

That is a different kettle of fish but I accept we are now looking at issues we were not looking at to the same degree. We are in an age of asymmetrical warfare, hybrid operations and cyber. The Russian state has always had a particular relationship with certain actions. We have all had to access our personal security and those pieces need to be dealt with.

It crosses over into the two other things Ms Jourová spoke about earlier: how we secure the electoral process and how we deal with the age of online media. We all know what was thrown out in relation to the election in America and Brexit. When you are down to small figures, it does not take a huge amount to get somebody across the line. We have also seen state and non-state actors being able to use online platforms, particularly Facebook. It is almost there. It is not that they have to weaponise it. They can use it. We have the Digital Services Act and Ms Jourová spoke about the European Media Freedom Act. We have in this State the Online Safety and Media Regulation Bill, but I do not know that it sufficiently gets into dealing with the issue of the algorithms which sometimes suit certain people of confrontational politics. Beyond that, there is the spread of misinformation, which is everything from information that can be harmful to young people who have issues with eating disorders right through to negative politics that lead to a really bad place. We need to defend that. I ask Ms Jourová about that, and if she can answer in two minutes, I will be impressed.

Acting Chairman (Deputy Pa Daly)

We are running out of time.

Deputy Ruairí Ó Murchú

There is the wider thing in relation to the European Union. When we are talking about protection of democracy, the biggest protection we need to look at is that the door has been left open for the likes of Marine Le Pen and other people across Europe because there are a huge number of people on the periphery who feel they have been left behind.

Ms Vra Jourová

Yes.

Deputy Ruairí Ó Murchú

There is a lot of bad politics playing into that but mainstream politics has not delivered for people economically. If we are intent on defending democracy, we have to make the world a better place for all in it.

Ms Vra Jourová

We need to get the people back.

Deputy Ruairí Ó Murchú

I ask about the algorithms because that is a wider issue in how we deal with peripherality, people on the margins and poverty. I do not think Ms Jourová will deal with that in the next four minutes.

Ms Vra Jourová

Two minutes will be enough. I will lose one minute in reacting. We discussed in the Commission last week that, when we look at the Gauss curve, we are with our communication addressing 2% or 3% of people. Those who are convinced already that the EU is a good thing are those reading our websites. On the other side of the Gauss curve, there is an increasing number of those we will never convince and those we are losing. It used to be 15% or 20%. Now in some member states, we are above 40%. That is critical mass.

Deputy Ruairí Ó Murchú

It is over a third.

Ms Vra Jourová

It is the change of the governance system, so this is serious. That is why I think, as the Deputy said, we have to think about how to get people back. We cannot use populism, simple methods, propaganda or brainwashing. We have to play with clean hands. This will not be easy.

On algorithms, the Digital Services Act is for the first time addressing this issue. We want to have the algorithms auditable by the enforcers so once we have a suspicion the algorithms go against people and simplifying and enable the company to make money on dirt, crime or some horrible content or method, then the enforcers should knock on the door and ask to be shown how the algorithm works. The funny thing is, we hear from the big platforms sometimes that they do not know how the algorithm works.

Deputy Ruairí Ó Murchú

They say of Facebook that you only know how the algorithm works for you and nobody else.

Ms Vra Jourová

That is it. We need to know from outside how the algorithm works. It is easy to say and easy to do. The Deputy's colleague spoke about the enforcement of GDPR. We will have a similarly difficult task here because we will need well-qualified people in each member state who are able to go into the system and understand what is going on there. I cannot imagine how to do that, but that is why we introduced the legally binding rules that oblige the digital systems to disclose the algorithms and let the enforcers understand whether they go against the rules or are Digital Services Act-compliant. There will be a big demand for skilled people.

Deputy Ruairí Ó Murchú

Undoubtedly so.

Ms Vra Jourová

For me this is the main concern regarding the Digital Services Act

Deputy Ruairí Ó Murchú

Frances Haugen and others have looked at trying to create within a virtual world how some of these social media algorithms work, and it is only at that point a determination in the rules can be made. Within GDPR, there are those pieces of information that cannot be used wrongly that relate to race, sexual orientation etc. One last-----

Acting Chairman (Deputy Pa Daly)

If there are any other questions, the Deputy can submit them like Senator Ruane did.

Deputy Ruairí Ó Murchú

That is absolutely unfair, but however.

Acting Chairman (Deputy Pa Daly)

I will wrap it up. I thank everyone for attending. Dkuji. I hope we can maintain lines of communication with each other. This is a very important issue. We will wait to see some of the reports that will come out this month and the response of the State to some of the claps on the back and the criticisms that our guests have raised with us.

Ms Vra Jourová

I thank the Acting Chair and members. I repeat that if there are additional questions or comments, the dialogue has not ended. The committee members should please feel free to email us and we can give them answers.

The joint committee adjourned at 4.32 p.m. until 3 p.m. on Tuesday, 18 October 2022.