EU Regulations: Minister for Justice and Equality

This part of our meeting is to consider two Government motions and proposals to opt in, pursuant to protocols 19 and 21 of the Lisbon treaty, to aspects of regulation 2018/1726 of the European Parliament and of the Council of the European Union Agency for the Operational Management of Large-scale IT Systems in the Area of Freedom, Security and Justice, also known as eu-LISA. I want to welcome the Minister for Justice and Equality, Deputy Charles Flanagan, and his officials. I have already cautioned members and I ask the Minister and his colleagues to please make sure their mobile phones are on silent. Members should, under the salient rulings of the Chair, not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I invite the Minister to make his opening statement.

Thank you Chairman and members. I am pleased to be here. I thank the committee for taking this matter this morning. I am joined by officials, Mr. Patrick McCabe and Mr. John Dunphy.

The purpose of the motions is to seek the approval of the Oireachtas for Ireland to opt-in to Regulation 2018/1726 which relates to the European Union Agency for the Operational Management of Large-scale IT Systems in the Area of Freedom, Security and Justice, or eu-LISA for short. Ireland already participates in the eu-LISA agency on the basis of our opt-in to eu-LISA establishing Regulation EU/1077/2011 which is repealed by this regulation. It is therefore necessary for Ireland to opt in to the new regulation which strengthens the mandate of eu-LISA.

As a European Union agency, eu-LISA has effectively contributed to the establishment of a co-ordinated, effective and coherent IT environment for the management of large-scale freedom, security and justice IT systems. euLisa has enabled the pooling of expertise, the harnessing of synergies and allowed a more flexible framework than was possible when the systems were developed and managed by the commission, with certain tasks entrusted to public sector bodies in two member states. The new regulation will benefit member states and agencies who are end users of the relevant large scale IT systems by enhancing the role of eu-LISA with regard to future developments in IT systems and providing support to member states when required. Ireland has representatives who attend the advisory groups in respect of the IT systems in which we participate which are the SIS II and Eurodac. Representatives from An Garda Síochána also participate in the management board of eu-LISA which, among other tasks, appoints and oversees the work of the agency’s executive director.

The support of eu-LISA and our other partner member states has been invaluable to Ireland in the development of our own solutions for these large scale IT systems. The participation of euLISA is of particular importance for the Garda’s project to connect to the Schengen information system, SIS II. Technical experts from eu-LISA have been involved both on the ground in Dublin and through web attendance at workshops on topics such as data migration. euLisa, working closely with An Garda Síochána to build and test the systems necessary to ensure that Ireland is in a position to go live on SIS II early next year.

Ireland’s participation in eu-LISA has also been important for our connection to the update of Ireland’s national Eurodac systems, as required by our participation in the Eurodac regulation. The Oireachtas approved Ireland’s participation in both SIS II and Eurodac and we are now bound by our obligations under those regulations. The support of eu-LISA is vital in meeting these obligations.

This regulation expanding eu-LISA’s mandate will ensure that the agency is adapted to meet current challenges at EU level in the area of migration and security, and provide a proper legal basis for euLISA’s operation and management of the planned new IT systems. Before going into some detail about the new eu-LISA regulation, I merely wish to emphasise that participation in the eu-LISA agency does not mean that Ireland will be opting into any additional regulations in respect of any EU large-scale IT system. Continued participation in eu-LISA would not oblige Ireland to participate in the new systems under its expanded mandate. Ireland’s participation in such systems is a matter for the individual legal bases governing such IT systems.

In particular, I want to acknowledge concerns of Deputies which were raised last night in the Dáil on the proposed interoperability of EU large-scale IT systems. It is true that eu-LISA will have a mandate to develop any technical features of interoperability which may arise as a result of proposals in this area. However, I want to be very clear that it is not the case that Ireland will participate in measures relating to the interoperability of large-scale EU IT systems in the justice and home affairs area as a result of our opt-in to this eu-LISA regulation. Ireland has the option under Article 4 of Protocol 21 to participate in the forthcoming interoperability regulations following their adoption. These proposals have not yet been agreed at Union level so the decision to exercise our opt-in would require the consent of the Oireachtas under the justice and home affairs protocol. There would be a debate on the merits of interoperability regulation at that point. Therefore, I would ask that Deputies not by any manner of means conflate interoperability with this eu-LISA regulation which Ireland will participate in only in so far as it relates to the systems in which we already participate. It would not be appropriate to have a debate on the interoperability proposals which have not yet been agreed at this time because no decision has been made as to Ireland’s participation in it. Ireland does not yet participate in all of the systems that is proposed to make interoperable, for example the ECRIS-TCN system. For this reason I have been advised by the Office of the Attorney General and I decided not to propose to exercise Ireland’s opt-in under Article 3 of Protocol 21 when the interoperability proposals were published. These proposals are somewhat complex and would require a dedicated discussion as to their merits but that is not the topic before us this morning. The number of EU large-scale IT systems has grown and it is therefore important to place eu-LISA’s responsibility for their operational management on a statutory footing. In this regard this regulation achieves this goal in respect of the entry-exit system and the EU travel information and authorisation system. Additionally, eu-LISA will now be enabled to provide more support and advice to member states. The regulation places additional responsibility on eu-LISA for improving the quality of the data, establishing common data quality indicators and developing an anonymised central repository for reporting and statistics. The regulation extends eu-LISA’s mandate concerning research in particular, giving eu-LISA the task of implementing the parts of the framework programme for research and innovation which relate to IT systems in the area of freedom, security and justice.

It is proposed that more pilot projects may be entrusted to eu-LISA. The new mandate of eu-LISA offers the possibility of support to the Commission and to member states in periods of exceptional need. I believe, therefore, that it is essential that Ireland is an active partner in Europe’s fight against terrorism in the effort to ensure effective management of our borders. eu-Lisa is an essential agency that has demonstrated significant added value and whose expanded mandate effectively addresses gaps in the current systems. We look forward to continuing to play an active role in the agency, bearing in mind our limited participation which focuses on the field of police cooperation. I hope, therefore, that the committee will support the motion to exercise Ireland’s opt in to the regulation and continue what has been a beneficial relationship within eu-LISA. Thank you, Chairman.

Thank you, Minister. I invite members’ contributions and questions. I have one indication from Deputy Clare Daly.

I fully appreciate that the motions allow us to opt in to only certain aspects of the regulation, one which has been passed anyway so there is nothing we can do about it at this stage. Because we are not in Schengen most of it does not apply to us anyway. I do accept that, including the most controversial aspects that we discussed last night, but that does not mean that we have not got an obligation to be critical of those or make points about them. I do want to put them on the record because the interoperability proposals that this committee yellow-carded last October are at the back of this. We sent a reasoned opinion to the Commission on its proposals for the interoperable border and security systems, which is nearly like an EU Stasi at this stage, whereby Big Brother is most definitely watching if one was not born inside the EU. I will not repeat the points but the European Data Protection Commissioner has huge problems with it. What we are doing today is extending the competencies of an existing body. I get that. We are extending it in such a way that it can implement the controversial interoperability proposals that we were unhappy about in October. The concerns about linking migration and terrorism, which is at the heart of this, remain. We need to have a serious discussion on that, why it is happening and how we should respond to it. In the opinion on the interoperability proposals last autumn the European Data Protection Supervisor signalled his concerns about the implications and called for a wider debate. That is the reason we asked for it to be discussed in the House, because there has not been any debate at all on this in the EU or in Ireland. It is creating a mega interoperable database, which is a serious problem that I do not think the citizens of Europe have been consulted on, so we need to have these conversations. I make no apologies that we demanded a discussion on it last night because nothing good can come of this linking of migration and terrorism.

I ask the Minister to be clear in his response. Are we effectively only opting in to the police co-operation aspects of SIS 2? Is that it? If we agree to these motions, are we signing up to any of the other aspects such as VIS, the border aspects of SIS II, EES and ETIAS or do we remain entirely outside of those? They are my two questions.

It does involve engagement in police co-operation and there may well be other areas as well where we will engage in co-operation.

I acknowledge the point Deputy Daly makes about the data protection issues. It is important that data protection be upheld in respect of any further development of these systems. Members will be aware that SIS II is supervised by the European Data Protection Supervisor. The supervision is allocated to the data protection authorities in each member state, so any concerns that people might have about any perceived transgressions in respect of data protection can be can allayed on the basis that when Ireland connects to SIS II the Office of the Data Protection Commissioner will be obliged to investigate any complaints that might be received.

I add to that the fact that we have already undergone Schengen evaluation in the area of data protection, so any concerns that Deputies might have can be addressed by assurances on the part of the Office of the Data Protection Commission here. Ireland will not be participating in ETIAS or VIS and EES on the border aspects of SIS II. The legal solution that we have agreed explicitly provides that we can participate in the regulation without having to opt in to the underlying Schengen acquis. Ireland is not a party to either the visa aspects or the border aspects of the Schengen framework and that position will not in any way be affected or impacted upon by this regulation.

Could the Minister be clear on the second question, that we are remaining entirely outside of VIS, the border aspects of SIS II, EES and ETIAS?

The Minister was not quite clear in response to the first question. He seemed to be saying we are opting in to more than the police co-operation aspects of SIS II. He mentioned other areas. What might they be?

And police co-operation.

Is that only EURODAC?

I thank the Minister for coming in. It is worth having this discussion and the one we had yesterday. The Minister has stated that it would not be appropriate to have a discussion on interoperability here today. I accept it is not the primary topic before us but the issues are linked. Although the Minister might disagree, it seems to me that part of what this proposal is doing is prepping eu-LISA for the forthcoming interoperability proposal. I do not think it is inappropriate to ask, if the Minister is willing to answer. As things stand, in their current form, does the Government favour the interoperability proposals?

We will deal with that when we come to it. The motions this morning are quite specific and we are not going beyond them. There is no proposal, nor indeed should there be any inference, that Ireland would participate further in any interoperability arrangement. Should the issue arise in the future it will be subject to debate and that debate will involve an approval by the majority membership of the Oireachtas. I want to make it clear that it does not arise at this time and nor should that issue be in any way conflated or confused with the motions before us, which are quite clear in import. There is not any proposal for further engagement in the interoperability framework.

I do not agree with the Minister but I do not think I will get any more information from him. If eu-LISA is going to be one of the key vehicles for the interoperability proposals when they pass into European law, it is of relevance whether Ireland decides to opt in. Those proposals could change. Has the Government communicated its view to the European institutions - to the Council or the Commission - in the past year on the interoperability proposals?

I wish to make it clear that we are not involved in the decision-making process regarding the exercise of an opt-in to the interoperability police proposal. Ireland has not exercised its opt-in under Protocol No. 21 nor indeed is there a proposal in that regard. Were that to occur, it would be subject to our obligations, which would involve a debate here in the national Parliament.

Very well. There is an existing regulation that Ireland has opted into. Could the Minister outline briefly the significant differences between the regulation we are discussing here today and the previous regulation?

We were obliged to give consideration to the new recast framework, which differs from the previous arrangement. In terms of ensuring that we assist in police co-operation it is necessary now to engage at this enhanced level.

I thank the Minister and his officials for attending. I do not have a question for the Minister. I support the motions seeking to enable Ireland to opt in to continue our participation in Eurodac and SIS II. I am conscious of the fact that the Dáil previously approved our participation in these systems, so in effect what we are doing is supporting these motions in order to continue our participation in them.

I note what Deputy Clare Daly said. It is correct to state that we should not link migration with terrorism, but we do have an issue in the European Union in respect of crime and terrorism and it has to be dealt with and one of the ways to deal with it is through increased police co-operation. I think these motions will assist in that co-operation continuing. When one looks at what is happening in the United Kingdom at present and the chaos they have got themselves into over Brexit, one of the real concerns they have, which has come home to roost, is that if they depart from the European Union without a deal, there will be issues in terms of the safety of that country, and that is the main reason why the Cabinet Secretary has given advice to the Cabinet there that they should not go out with no deal. I am conscious that the whole area of interoperability will have to be dealt with and will be brought back before the Dáil, and perhaps this committee, and the Government will have to make a decision on it, but in respect of the motions here today, we will support them.

The Minister mentioned the development of IT systems and the sharing of information in the Schengen information system in the motion. What is the interface of that with PULSE in the Irish context? Is it a new system? Is information extracted from PULSE? What is the shared access approach on a practical level?

One of the objectives in developing the system is to ensure that there is an element of integration with the PULSE system and, for example, the Garda National Immigration Bureau, GNIB. In the event of a search taking place within this jurisdiction, the same search will also be carried out and take effect on the Schengen information system. It is a dovetailing of the information here at national level with an integrated system across the European Union.

I thank the Minister for coming before the committee today. I wish to highlight the fact that we spent much of the past year discussing data protection and privacy. Could the Minister put on record that he believes the proposal is fully consistent with the general data protection regulation? I share the Minister’s concern about the interoperability. Domestically, we have some formal bodies that can act on abuses of power, but I am concerned that sensitive data, especially on migrants and refugees, will be shared around the EU and that these people will have little chance to challenge that if their data is misused. We need assurances on that. Will it be up to Irish bodies such as the Data Protection Commissioner to hear complaints and to police the system?

I am satisfied, as far as the European data protection regime is concerned, with particular reference to the role of the supervisor, but I would perhaps prefer to hear from our Data Protection Commissioner on this issue. As I mentioned earlier, there is a significant role for our Data Protection Commissioner in the context of the European Data Protection Supervisor. I believe it is important in all circumstances that fundamental rights are observed and that we would not engage in any activity that might in any way encroach upon what might be regarded as fundamental rights. That is why the involvement at justice and home affairs level of the European Fundamental Rights Agency is important.

I think we have probably exhausted any questions we have to put to the Minister. On behalf of the committee I thank him and his officials for joining us here today. That completes our address this morning in joint session. As we all know, we have to break now for 15 minutes before we can recommence our morning's work in the select committee for consideration of the Revised Estimates.