JOINT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY debate -
Tuesday, 19 Jul 2011

EU Directives and Regulations re Victims of Crime and Council Decision on Agreement between the EU and Australia on PNR processing: Motions

Chairman

The purpose of today's meeting is to consider the following three motions: Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime; regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters; and Council Decision on the signature of the Agreement between the European Union and Australia on the processing and transfer of passenger name records, PNR, data by air carriers to the Australian Customs and Border Protection Service. A briefing has been circulated to members. If members agree I propose that we take each motion separately on which we will have an interaction.

I again welcome the Minister of State, Deputy Kathleen Lynch, and her officials. I invite the Minister to make her contribution.

Minister of State at the Department of Justice and Equality (Deputy Kathleen Lynch)

I will outline the main elements of the proposal for an EU directive establishing minimum standards on the rights, support and protection of victims of crime published by the EU Commission on 18 May this year. I will refer to the proposed directive as the victims directive in my remarks. The proposal is before the committee on foot of motions to which the Chairman has just referred.

Under Article 3.1 of Protocol 21 annexed to the Treaty of Lisbon, Ireland may notify the President of the Council of the European Union that it wishes to take part in the adoption and application of this proposed directive within three months of the date of publication of the proposal. Alternatively, we can opt into the measure after it has been adopted but in that event we will not be able to influence the content of the measure. The three month period to take part in the adoption and application of the measure expires on 18 August 2011.

The purpose of this directive as set out in Article 1 is to ensure that victims of crime receive appropriate protection and support and are recognised and treated in a respectful, sensitive and professional manner in contacts with any public authority, victim support or restorative justice service. The proposed directive can be seen as a development of the provisions of the Council Framework Decision of 2001 on the standing of victims in criminal proceedings.

Article 2 defines key terms such as victim, and extends the definition of victim to include family members of a victim whose death has been caused by a criminal offence.

Articles 3 to 9 are grouped together as Chapter 2 entitled Provision of Information and Support. Article 3 outlines a wide range of information which a victim may receive when he or she first reports a crime, including details of the voluntary sector services to which he or she can turn for support. Article 4 gives the victim a right to ongoing information on the relevant criminal proceedings, and information about the release of an accused or sentenced person from detention, if the victim asks for this information to be provided to him or her.

Article 5 requires the criminal justice agencies to provide information in a manner which can be understood by a victim with a disability or with limited literacy skills, for example. Article 6 provides for interpretation and translation free of charge to victims during police questioning and for the victim to exercise his or her rights in court.

Article 7 is a new provision requiring member states to ensure that victims have access to confidential, general and specialist support services, in accordance with their needs, and free of charge. The Article provides for minimum standards for these services.

Chapter 3 groups Articles 8 to 16 under the title Participation in Criminal Proceedings. Article 8 provides that a victim may receive a written acknowledgement of a complaint about a crime. Article 9 provides for victims to be heard and to supply evidence during criminal proceedings. Article 10 provides a right for a victim to have any decision not to prosecute reviewed.

Article 11 lays down safeguards for victims in regard to their participation in any mediation or other restorative justice services. Where victims are parties to criminal proceedings, Article 12 provides for legal aid. In Ireland, victims are not generally parties to the proceedings. Article 13 provides for the reimbursement of expenses for victims who participate in criminal proceedings.

Article 14 requires that property of victims seized as evidence should be returned without delay unless required for the criminal proceedings.

Article 15 provides that victims are entitled, in the course of criminal proceedings, to obtain a court decision on compensation from the offender.

Article 16 provides for the taking of statements from victims who are not resident in the member state where the crime occurs, either in person immediately after the incident or through video conferencing at a later date. It also provides that a statement may be taken in the member state of residence and transmitted to the member state where the crime occurred.

Recognition of Vulnerability and Protection of Victims is the title of Chapter 4, which comprises Articles 17 to 23. Article 17 covers protection for victims and their family members including their physical protection. Article 18 lists children, persons with disabilities, victims of sexual violence and human trafficking as vulnerable victims. It also provides for an individual assessment of other victims to see if they are vulnerable.

Article 19 provides for avoidance of contact between victims and suspects in court buildings in particular. Article 20 provides protections for all victims in regard to interviews with police.

Article 21 provides a suite of protective measures which may be made available to any vulnerable victim during investigations and during court proceedings, depending on their individual needs and concerns.

Article 22 provides additional protection for child victims permitting their evidence in chief to be video-recorded and used as evidence in court and allowing for the appointment of a representative for the child where the parents are not available or are precluded from representing the child because of a conflict of interest.

Article 23 provides for the protection of privacy of victims during court proceedings at the direction of the court.

Article 24 provides for the training of criminal justice system practitioners and voluntary sector staff supporting victims or engaging in restorative justice in regard to victim issues.

Article 25 requires the criminal justice and voluntary sectors supporting victims of crime to co-operate with each other, including at EU level.

Articles 26 to 30 provide for the transposition or implementation of the directive two years after it is adopted; the provision of monitoring data to the European Union on progress on supporting victims; the repeal of the 2001 framework decision; and standard technical provision.

I very much appreciate the attention of the committee and am happy to answer any questions members may have. This is a good-news issue.

Chairman

We agreed not to bank questions and that the Minister of State would respond to questions individually. After each response, a second question may be asked. This is the alternative to having an omnibus of questions where everyone gets confused and does not know where the answers are. I ask members to ask specific, focused questions rather than make long Second Stage speeches or statements.

Deputy Dara Calleary

I welcome Minister of State. With regard to Articles 3 to 9, concerning the provision of information to victims, what are the resource implications for the Department's budget? Will the resources be ring-fenced in forthcoming expenditure reviews?

Deputy Kathleen Lynch

There are obviously resource implications in all these issues. They will not be so enormous as to preclude us from delivering the service because, ultimately, the services, while not available in all parts of the country, are generally adhered to.

The central focus in the negotiations on the victims directive must be on finding practical mechanisms to ensure the experience of victims is improved. However, cost factors will also need to be borne in mind. Certain elements of the proposed directive, such as translation, interpretation, training and special arrangements in courts for vulnerable victims, may entail additional expense.

When the directive is implemented in 2015 or 2016, Ireland, like many other member states, will have been confronted with a need to reduce expenditure. A number of member states share our concerns about the practicality and cost of some of the proposals as currently drafted. The reality is that we would have to tailor our ambitions somewhat at national and EU level. Nevertheless, progress in this important area is still possible and necessary.

As the Deputy will know, we provide interpretation and supports in any case for those who need them. There may be a delay because one cannot obtain certain interpreters but we provide them eventually. We have until 2015 to implement the directive. It will be done.

Deputy Dara Calleary

In regard to Article 10, pertaining to the right of a victim to have reviewed a decision not to prosecute, will changes to civil law be required in this jurisdiction? How will this bear on the right of the accused to appeal? What procedure will be involved under the article if, following a review, it is again decided to prosecute? Will it be possible to decide to prosecute again?

Deputy Kathleen Lynch

Even without the directive in place, it is always open to an individual to appeal to the Director of Public Prosecutions in respect of whether a case will be reviewed. Sometimes a case does not proceed for reasons other than those associated with the Director of Public Prosecutions. The directive is very much about ensuring victims of crime not only feel supported but are also involved in the procedure. They cannot be so involved as to make the decision of the Office of the Director of Public Prosecutions; we are all agreed on that. The decision on whether to prosecute, which is that of the Office of the Director of Public Prosecutions, is very much internal to that office. There are suggestions on how procedures could be changed in cases where the director will make known his reasons for not proceeding with a case. However, it is not intended that this would apply in all cases.

Deputy Dara Calleary

What will the actual procedure be under Article 10 if the Director of Public Prosecutions decides not to prosecute? Will one have to go to the Director of Public Prosecutions or the Garda? Is this but a reaffirmation of an existing process?

Deputy Kathleen Lynch

One would have to write to the Office of the Director of Public Prosecutions where a review of the decision is sought, in the first instance. As with all reviews, one may not receive the reason the original decision was confirmed. The Garda would not have any part to play in that regard.

If there is to be a change, it will definitely have to be achieved through legislation. A review does not automatically mean one will receive a detailed answer as to why one's case was not proceeded with. A review will give one the comfort that someone else looked at one's case and decided one could not proceed, for whatever reason. The reason may not always be as straightforward as we believe.

Deputy Finian McGrath

I welcome the Minister of State and wish her well in her new role, particularly in respect of disabilities.

With regard to Article 18, which deals with persons with disabilities, does the Minister of State accept that there has not been enough debate about sexual abuse of people with disabilities? Many with disabilities, particularly younger people with intellectual disabilities, cannot speak out themselves and rely on good-quality staff members in the care centres or on family members. How would the Minister of State deal with this?

Deputy Kathleen Lynch

People with disabilities, be they physical, intellectual or sensory, will be as protected under the directive as everyone else. However, on the Deputy's specific question, the only way to deal seriously with the issue is through the mental capacity Bill. It is different legislation and represents the only way to proceed. Certain victims of crime whom the Deputy and I know would have the capacity to give evidence and identify the perpetrator could not do so because they would be considered to have insufficient capacity. The mental capacity Bill will deal with this very well. Irrespective of one's standing in society, everyone will have protection under the directive.

Deputy Finian McGrath

Article 18 also deals with sexual violence, which issue has arisen for public representatives, but not exclusively Members of the Dáil or councillors. If a convicted paedophile is released from prison and is signing on at the local Garda station, do we have a responsibility to tell residents that the individual is living in their community? I encountered a case recently in which residents on a street on which a convicted sex offender lives were concerned about the safety of the many children in the area when they had street parties or open days. What should public representatives or the public do if they are to prioritise child safety? While we accept there should be no picketing of houses and that people should not be burnt out of their houses if they have served their time, there is genuine fear in many communities that if nobody says anything and people remain silent, their children will be at risk. Our duty is to put child safety first. How would the Minister of State respond to that?

Deputy Kathleen Lynch

It is not covered in this directive, to start with. The directive refers clearly to victims of crime, rather than perpetrators. These are difficult issues. On the one hand, as the Deputy says, there is the whole issue of child safety. On the other hand, there is the issue of someone who has served his or her time for a crime committed, no matter how one may feel about that. The difficulty is how to balance those competing rights. One would hope that the Garda would keep a close eye on people - who, having been released from prison, must sign the sex offenders' register - without having to go to the extremes we have seen in other jurisdictions concerning people who have served their sentences. It is a very difficult issue.

Deputy Finian McGrath

Article 17 concerns physical protection for family members, but how will it be enforced? It will be hard to implement Article 17 with regard to a domestic situation. How does the Minister of State respond to that?

Deputy Kathleen Lynch

Because we have a lead-in period in which to introduce this directive, all the issues that have been raised here today will be teased out in much greater detail. When one goes into the broader remit of people surrounding the victim, a family could be quite extended, although I am sure that is not what is intended by Article 17. Most definitely, however, once people are identified as being part of the group to be protected, it becomes much clearer. None of this will be easy but we will have to do it. If we rely on people to come forward concerning intimate personal crimes, we must reassure them that they have the comfort and security to talk about it to official Ireland. This will all be part and parcel of it.

Deputy Finian McGrath

I thank the Minister of State.

Senator Ivana Bacik

I welcome the Minister of State to the committee. I also welcome the directive which, as the Minister of State said, is good news. I know we have a lead-in time, but I have one question related to two potential legislative changes that I see as being necessitated by this directive. The first relates to Article 15, providing that victims are entitled to obtain a court decision on compensation. Will we therefore be required to change our law? It is related to Article 12 and is really a feature of other types of criminal legal systems where victims are routinely a party to proceedings. They are civil parties and obtain compensation orders from the criminal court, but it is not a routine procedure in common law countries such as Ireland and England. I wonder therefore if that will require us to change our law. The judge is currently empowered to order compensation but it is not done routinely. I think a change would be required in the law to make it an entitlement for the victim.

My second question concerns another legislative change that, having searched through the summary, I suspect will be required. It is a major issue that Mr. Geoffrey Shannon has recently highlighted, particularly in regard to criminal trials of sex offenders. This is where victims have obtained counselling and the defendant seeks disclosure of what were regarded, by the victim and counsellor, as private and confidential counselling notes. No legislation is currently in place concerning this and the courts are at sea on it. We need legislation on that matter in any case, but I also suspect it will be required within the terms of this directive.

Deputy Kathleen Lynch

While compensation is not routinely awarded, the law allows for it.

The other issue raised by the Senator is one that most of us would be concerned about. There are already groups that have made their feelings known in respect of this. We may need legislation to access this. Even though these type of things are regularly used, we might need legislation to ensure that when we go to use confidential counselling records, we can do so without damaging the whole process. As with the last question, it is hugely important that the victims of certain crimes should feel secure within the system, otherwise there is a danger that they would not avail of counselling, which would be a shame. The Senator's suggestion will be actively considered because whilst it is not in the directive-----

Senator Ivana Bacik

Not directly.

Deputy Kathleen Lynch

-----it is obvious that it may form part of a consequence of the directive. It is something we will have to examine seriously. As the Senator said, Mr. Geoffrey Shannon has been quite vocal about it. On the other hand, we probably have the most overbearing data protection in the whole of Europe, although I am not terribly sure whether that is a good or a bad thing. We must be careful when it comes to something as confidential and sensitive as counselling. As the Senator knows there are always ways of using information without necessarily breaching any confidences.

Deputy Seán Kenny

I welcome the Minister of State to the committee. I also welcome the directives. Very often people fall victim to crimes, such as muggings or robberies, when they go away on holidays. Will these EU directives apply in the Canary Islands and the island of Madeira? They are Spanish and Portuguese territories but may be outside the EU, so will these directives apply there?

Deputy Kathleen Lynch

It is an EU directive and despite the fact that many Europeans go on holidays to these places, my instinct is that they will not apply there. I could be completely wrong. I will come back to the committee on that point.

Chairman

We will give the Minister of State a chance to come back on that matter later. We will need a definite "Yes" or "No".

Deputy Kathleen Lynch

My instinct is to say "No", but I will check it out.

Deputy Jonathan O’Brien

Article 4 gives the right to ongoing information from criminal proceedings right up to a person's release, if a person is sentenced. Can the Minister of State talk us through the mechanics of that? Are we talking about one liaison officer? Or, when it is with the prosecution, is there a particular person and then another person when it goes to the prison system? Will one person be involved or will it be done in stages? Can the Minister of State clarify that?

Under Article 10, are we looking at a timeframe being imposed within which victims can seek a review of the DPP's decision?

Deputy Kathleen Lynch

It is proposed that in each Garda district there would be one liaison officer. That is sensible because when it comes to someone in a vulnerable position, relationships are as important as the process. It is therefore proposed that there would be one liaison officer. I do not see why it should change if the person is convicted, because they have moved into a different space. The relationship will be as important as the process. While I accept people move along with their careers, the hope is that there will be one person familiar with both the victim and the circumstances.

Regarding article 10, my advice is that it would be up to the victim or the victim's family. While a call for a review is allowed for up to five years, most people in such circumstances would want it done as quickly as possible. There is no time limit but I would imagine most people would want it done quickly.

Deputy Jonathan O’Brien

In the case of multiple victims, can one individual ask for a review on his or her behalf?

Deputy Kathleen Lynch

Yes, the victims' charter covers the individual. It does not necessarily have to be a joint process.

The second motion before the committee is that Ireland should exercise its option under the Protocol to the Treaty on the Functioning of the European Union to opt into the adoption of a proposal for a regulation on mutual recognition of protection measures in civil matters. The objective of this proposal is to further develop the European area of justice by enabling the recognition and enforcement of civil protection measures where a person protected by a measure travels or moves to another member state. It will ensure, for example, a victim of domestic violence who has a barring order or a safety order made in his or her favour can continue to have the protection of the order even when in another member state. The regulation aims to achieve this by conferring automatic recognition of protection measures issued in one member state in other member states.

Article 1 sets out the scope of the regulation and that it applies to protection measures taken in civil matters, whatever the nature of the authority issuing the measures.

Article 2 defines a protection measure as any civil measure of a preventive and temporary nature taken by an authority, which may not necessarily be a court, in a member state under its law with a view to protecting a person when serious risk exists to their physical and/or psychological integrity. The measures in question include in particular the types of protection afforded in Ireland under the domestic violence code.

Article 3 confers jurisdiction on the authorities of the member state in which the risk occurs. While this will normally be the member state of the protected person's habitual residence, this may not always be the case, such as when a person moves abroad for a determined and relatively short period for study purposes.

Article 4 states recognition shall take place without any special procedure being required once the protection order has been certified in accordance with Article 5. This means that the protected person does not have to make further court appearances to have the protection measure recognised in another member state.

Article 5 provides for a standard certificate which may be issued by the competent authority, generally the courts, in the member state of origin. The certificate will form the basis for the recognition and enforcement of a protection measure in another member state. All relevant information for enforcement purposes must be provided in the certificate. The protected person may invoke the protection measure by providing the authorities of the member state in which they are temporarily resident with the certificate.

Article 8 allows a member state of recognition to adapt, to the extent possible, a foreign protection measure unknown in its domestic law to the nearest equivalent available under its own law.

Article 9 sets out that where enforcement of the order or measure is necessary, no formal declaration of enforceability is required. In enforcing the protection measure, the member state of enforcement must apply the rules provided under its national law for similar protection measures.

For the protection of the person posing the risk, at whom the order is directed, Article 10 sets out certain safeguard requirements which must be complied with before the member state of origin may certify the measure in accordance with Article 5. The article provides that a person causing the risk who did not enter an appearance in the member state of origin shall have the right to apply for a review of the protection measure before the competent authorities of that member state where he was not served with the document instituting the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence or he was prevented from contesting the protection measure by reason of force majeure or due to extraordinary circumstances without any fault on his part.

This right of review at the certification stage will not be available if the person posing the risk failed to challenge the protection measure when it was possible for him to do so. I note it only states him and not her.

The article further provides that where the protection measure is taken without the person causing the risk being summoned to appear and is intended to be recognised and/or enforced without prior service of that person, that person has the right to challenge the measure under the law of the member state of origin.

Article 11 provides that under no circumstances may a protection measure taken in a member state be reviewed as to its substance in the member state in which recognition and/or enforcement is sought.

Article 12 sets out the rules which apply if the protection measure is irreconcilable with a decision taken in the member state of recognition. This is the only ground upon which a member state of recognition can refuse to recognise a duly certified protection measure from another member state. It also provides for the member state of recognition, on application by the person causing the risk, to suspend or withdraw the recognition or enforcement of a certified protection measure where the original measure is suspended or withdrawn in the member state of origin.

Most of the other provisions are procedural in nature including matters such as notice provisions, translation requirements, changes to the forms and commencement provisions. Article 16 also requires that an applicant who has received legal aid in the member state of origin be provided with the most favourable legal aid available under the law of the member state of recognition in any proceedings relating to the enforceability of the protection measure. This is a standard provision in international instruments of a civil nature.

Given that enforcement in Ireland would take place under the Domestic Violence Acts, it is unlikely that it will lead to legal aid costs for the Exchequer as the Garda is empowered to act on a breach of an order under the Act and a victim should not generally require legal representation.

The proposal is an important development for victims of domestic violence or intimidation. It means that where a protection order is in place, the protected person can move to another member state in the confidence that the local police can, and where necessary will, act on the basis of that protection measure. A protected person need not avoid going on holiday to another member state, or give up the opportunity of a temporary move for work or study purposes, for fear that they will be at risk or because the processes for obtaining similar protection are too drawn out and perhaps too daunting working through a foreign language and an unfamiliar legal system.

Just as this will work to the benefit of Irish residents when travelling in the EU, it will provide the same protection to people travelling here from other member states. Protection measures which are not quite the same as ours will be converted into the nearest equivalent under our law. The Garda will have the same powers in dealing with a breach of an order as it does under the Domestic Violence Acts.

This proposal shows how the EU can work for the citizen by facilitating freedom of movement. The ideal is that European citizens should be entitled to the same level of legal protection wherever they are in the Union. Vulnerable persons, such as victims of domestic violence, should be entitled to the same enhanced protection throughout the Union. That is a laudable aim, and one which this Government is happy to support. I commend the proposal to the committee.

Deputy Joanna Tuffy

The Minister of State corrected herself but it is important to correct the record in this regard. She stated that the final line of a paragraph on page 3 of her script should have read "him or her". However, other references include "he was not served..." and "he was prevented from contesting...". Both genders are served with such orders but there is an issue about negatively stereotyping a gender. How was it referred to in the article? Generally, in law the Interpretation Acts interpret "him" as including him or her and so on. However, in this context, it should clearly state "he or she" or "him or her".

Deputy Kathleen Lynch

The regulation specifically states "he" but when it is introduced, it will be gender neutral and the Domestic Violence Acts under which this arises are gender neutral. The regulation is gender specific but it should be gender neutral and that will be changed.

Deputy Joanna Tuffy

I accept that and I acknowledge that is how the Interpretation Act is often applied but I am surprised the regulation is drafted like this because that is prejudicial. If it stated "she", somebody would protest because the connotation is negative. There is an element of negative stereotyping of the role of men in families and there is a prejudice against them. I worked in family law for a few years as an apprentice solicitor and, briefly, as a solicitor and I felt there was good justification for men feeling they were unfairly portrayed in legislation relating to the family. They rightly felt that the system was prejudiced against them. Why was the regulation worded like this? Did the drafters not consider the context and that it might give rise to presumptions or prejudice?

Chairman

Perhaps the Minister for Justice and Equality can take this up.

Deputy Kathleen Lynch

That is what struck me in the first place.

Chairman

It is a serious issue.

Deputy Kathleen Lynch

That is why reference is made to he or she in every document. I acknowledge the overwhelming evidence that is men are the perpetrators of domestic violence but it is not always the case. This is probably one of the better directives.

Chairman

There have been reports recently of domestic violence against men and Deputy Tuffy is alluding to this. This is a hidden issue and it is an important issue that the committee might return to at a later stage.

Deputy Dara Calleary

I welcome the directive and wonder why it took this long to introduce it given the history in this area. Article 8 states that a member state must adapt to the extent greatest possible to foreign protection measures unknown in its domestic law. Has the Minister of State been given analysis of foreign protection measures that may be unknown in our domestic law? Will changes be required?

Deputy Kathleen Lynch

Not much work has been done on this. For instance, we do not have a well developed body of law on stalking unlike our nearest neighbour. Other countries may not have as well developed an domestic violence policy as we have. Work is being done in this regard but the difficulty is that as we move along we find areas in which we are not as advanced, although they will be dealt with. The ground is shifting all the time but it is important that wherever an offender goes now, the protection order is served on him or her as opposed to on the location.

Deputy Dara Calleary

Our domestic violence policy is advanced and, therefore, I am concerned by article 12 because some countries are not as advanced. Will our protections be diminished in those countries by virtue of article 12? Is there an arbitration process?

Deputy Kathleen Lynch

I am not certain that there is an arbitration process. Our orders are overarching and fully protective in terms of domestic violence but other countries that are not as advanced as us are still obliged to enforce the order as originally intended. That is what is important. They are obliged to give people as much protection as they can and the person would have the comfort of knowing that the original order will be enforced no matter what jurisdiction they are in.

Deputy Jonathan O’Brien

I refer to the certificate. How will this procedure work? When those who have certificates travel abroad, do they go to the local police station and present them if they have concerns? What happens if the protection order is lifted and the victim retains the certificate?

Deputy Kathleen Lynch

Most domestic violence orders apply for a set period such as two or three years but some can be indefinite. The court will issue the certificate and the holder will present it in a local police station in the country to which he or she travels. It will be a standard certificate and it will have a date on it.

With regard to the Deputy's second question, I had not thought of this nor did those who drafted the directive. There is a complicated set of procedures relating to the person against whom the order is granted. I am not certain that he or she could apply to the courts in Ireland to have the order lifted while the other person was abroad. That cannot happen unless the person who was granted the order in the first place appears in court because he or she would have to reply to the application. There may be ambiguity around that and I will examine it.

Deputy Jonathan O’Brien

The Minister for State said there would be no additional cost in the context of legal aid. What happens if somebody from another member state with a certificate travels to Ireland and he or she is followed by the person against whom there is a protection order and it is breached? Is there an obligation on the State to provide legal representation?

Deputy Kathleen Lynch

The Garda applies the protection order. It may not be called a protection or barring order in other jurisdictions. There will not be additional costs because if someone has presented a certificate to local gardaí and the order is breached, they have to act as they would if the order was granted here and the breach happened here.

Deputy Joanna Tuffy

On temporary orders, when somebody seeks an order initially, is it possible for one party to apply without the other having an opportunity to put his or her case before a temporary order is granted by the court? I know the law was amended in recent years but it used to be possible to get one for a short period.

Deputy Kathleen Lynch

Does the Deputy mean ex parte?

Deputy Joanna Tuffy

Yes.

Deputy Kathleen Lynch

They can be granted but they are of very limited duration. One would not be able to take it abroad because of the limited duration. It is granted on the basis that the other person probably has a case to put and the courts would not leave the position stand.

Deputy Joanna Tuffy

In that case, they would not have a certificate.

Deputy Kathleen Lynch

No, it would be a different type of order.

I have good news for Deputy Seán Kenny as the Canaries are part of Spain and Madeira is part of Portugal the directive should apply. We were all very foolish not to have spotted that. We are very international today.

Deputy Dara Calleary

We are moving from Madeira to Australia.

Deputy Kathleen Lynch

There are two motions before the committee on the agreement between the EU and Australia on the processing and transfer of passenger name record, PNR, data as it is the subject of two separate EU proposals for Council decisions. This is a technical procedure by the EU for finalising such agreements. It requires that the Council of Ministers take a decision to sign the agreement first and then to conclude the agreement, that is to bring it into operation. In practical terms, both decisions are taken at the same Council of Ministers meeting.

The motions before the Committee are necessary to enable Ireland to participate in the signature and conclusion of the agreements. They propose that Ireland should exercise the option provided by Protocol 21 to the treaty on the functioning of the EU, that is the Lisbon treaty, to participate in the adoption and application of an EU-Australia PNR agreement. I will outline the terms of the agreement shortly. The prior approval of both Houses of the Oireachtas is required to enable Ireland to exercise that option. The deadline for opting in is 20 August 2011 so it is important that both Houses give their approval before the summer recess. The Government has approved the proposal of the Minister for Justice and Equality that Ireland should take part in this measure. Any measure which can give law enforcement authorities an advantage in the fight against terrorism and other serious criminal activities is to be welcomed and deserves support.

This proposal replaces the current EU-Australia PNR agreement which was not finalised before the entry into force of the Lisbon treaty. The European Commission, on behalf of the EU, initialled the draft text of the agreement following negotiations with the Australian authorities on 6 May 2011. The Council now proposes to bring this agreement into force following approval at the meeting of the Council of Justice and Home Affairs Ministers in September.

I will outline briefly what the agreement contains. The proposed agreement provides that air carriers operating flights between the EU and Australia will provide to the Australian authorities certain PNR data for passengers flying to or from Australia. PNR data is information relating to passengers' travel reservations. It is collected and held by air carriers as part of their reservations systems. The directive will require the airlines to provide a portion of this information to the Australian authorities for the purposes of combating terrorism and serious transnational crime. This proposed agreement will have no practical impact for Irish air carriers as at present no direct flights are operated between Ireland and Australia.

This measure is an important tool in the fight against terrorism and serious crime. However, I am very conscious of the need to ensure the rights of citizens are not subjected to unnecessary or disproportionate intrusion, notwithstanding the importance of protecting individuals and society from terrorist attack. It is important, therefore, to strike the appropriate balance, especially with regard to protection of personal data. Therefore, this agreement contains several important and specific safeguards on the use of PNR data and data protection. In particular, the purpose of processing PNR data is strictly limited to preventing, detecting, investigating and prosecuting terrorist offences and serious transnational crime. Furthermore, Chapter II of the agreement clearly sets out a series of provisions relating to data protection and data security.

I draw attention to the provisions that an individual will have the right to access his or her own data, to have incorrect data corrected and the right to redress for violation of his or her rights under the agreement. The retention period of PNR data is limited to five and a half years and the data will be depersonalised after a certain period. Compliance with these rules will be subject to independent oversight by the Australian Information Commissioner, in accordance with Australian law covering data protection and freedom of information. The EU is satisfied that Australian data protection provisions are sufficiently robust to protect EU citizens. Ireland has until 20 August to decide whether to opt into the adoption and application of the proposal. Therefore, it is crucial that the Oireachtas approve the motions prior to that date.

This proposal is one of a number of measures being taken at EU level in the justice and home affairs field which arise from commitments set out in the 2009 Stockholm programme. The Government is determined that Ireland will have a full, active and constructive engagement in bringing forward the European justice agenda.

Several countries, including the UK, the US, Canada, Sweden and Spain have been collecting PNR data for some years now to tackle terrorism and serious crimes. The use of PNR data has proven to be a very valuable tool in a range of investigations, particularly targeting drug smugglers, human trafficking rings and terrorists. By way of example, PNR data was used by the UK authorities in the case of Mr. David Headley. He was convicted of involvement in the atrocious terrorist attacks in Mumbai, India in November 2008, in which 164 innocent people lost their lives. By entering into the PNR database details of the suspect's first name, his partial travel itinerary and a possible travel window, Mr. David Headley's full name, address and passport number were obtained. He was subsequently arrested and pleaded guilty to terrorism-related charges.

PNR data has also been of benefit in cracking a number of significant transnational organised crime cases. The UK authorities targeted and successfully prosecuted a Chinese criminal gang of human traffickers bringing illegal immigrants to the UK and Ireland, through other EU States. Without the use of PNR data the investigation would have taken substantially longer to identify the passengers and link them to the trafficking facilitators.

Given the potential law enforcement value of PNR data, particularly with regard to investigations into drug smuggling, human trafficking or international terrorism, I have no doubt that it is essential that Ireland should opt in to participate fully in the process of finalising the agreement. Our participation in the measure is also a clear demonstration of our continued support and solidarity with the EU in the fight against these activities. I have no doubt the majority of members will share this view and I commend the motion to the committee.

Deputy Jonathan O’Brien

I am sure the Minister of State will not be surprised to know I am in the minority. One of the first motions I discussed after being elected was another motion on PNR data, which was taken in April. During that debate I raised several concerns. I understand the reasoning behind this, but we must be proportionate and demonstrate that it is necessary. I am glad the Minister of State referred to ensuring that there is no intrusion notwithstanding the importance of protecting an individual and society from terrorist attacks. There is no doubt something like this has the potential to encroach on people's private lives. Last April, we asked for evidence suggesting that PNR data works. I am glad that some limited evidence has been provided at this meeting. Given that this important issue impacts on every citizen within the State, the committee should not be the only group discussing it and other Deputies should have the opportunity to discuss it in the Chamber. For this reason, I am disappointed that the motion will be taken in the House on Thursday without debate. If possible, could the committee recommend that it be debated so that other Deputies would have the opportunity to give their opinions? Unlike the previous two motions, this matter-----

Chairman

There is nothing to stop any Deputy from attending the committee to debate the motion, which is what we are doing now. We are debating it because there is no time limit and anyone can attend to raise any issue or question. I wished to bring this to the Deputy's attention.

Deputy Jonathan O’Brien

The Chairman will understand that a number of committees are meeting now. If even two or three more people would like to contribute to the debate, they should be afforded an opportunity, given the importance of the motion. I know the room is almost empty, but will the Minister of State consider facilitating a debate in the Chamber? It would not need to be a lengthy debate, as even an hour would give people an opportunity.

Deputy Kathleen Lynch

As with all of these issues, it is a matter for the Whips. I do not say this to push it to one side, as I also agree that some issues should be debated more fully. The Deputy should ask his party Whip to raise the matter at the Whips' meeting tomorrow. If the motion is already on Thursday's agenda, however, they have probably already agreed that it will be taken without debate. It is an important issue.

I have asked my officials about another matter concerning Australia's data protection commission. We have an overarching system that affords what is probably the greatest level of data protection in Europe. Australia's commission has virtually the same powers and provides a high level of protection.

Evidence is available and patterns can be examined, but the largest group of people we will detect will probably be those involved in human trafficking. They know the system and travel back and forth more frequently than anyone else. This type of information will detect them more quickly than it will anyone else. This information will be deposited somewhere it can be analysed instead of being held by just one airline. Ireland does not have the facility to do this. Instead, Australia will do it and give us the information.

I have no problem with the Deputy's desire to have the motion discussed further, but it is not up to me. He should raise the matter with his Whip.

Deputy Jonathan O’Brien

The timeframe is the issue. According to the documentation, the motion has been knocking about since 6 May, yet it is only being presented to the committee two days before the summer recess. Even if the Whips agree at tomorrow's meeting to hold a debate, the House will not have an opportunity to discuss it.

Chairman

Does the Deputy have further questions or points?

Deputy Jonathan O’Brien

No, this is my main point. Although I do not agree with the proposal, I do not want to oppose it, yet I may have no choice if the committee does not at least agree to recommend a debate.

Deputy Kathleen Lynch

As the Chairman would readily inform the Deputy, that is a matter for the committee. I am not a member.

Chairman

What occurs in the Chamber is a matter for the Whips. If the Deputy wishes, we can consider whether to examine this broad issue as part of our work programme.

Deputy Jonathan O’Brien

The agreement must be signed off by the middle of August.

Chairman

Yes.

Deputy Jonathan O’Brien

Can I propose that we recommend a debate on the motion?

Chairman

We will put the question, as we were asked that the only debate on the motion be held at this meeting. The Deputy will have an opportunity to agree or disagree with the question in a moment. Do other members have questions?

Deputy Joanna Tuffy

Regarding the data protection provisions, to whom does an Irish citizen with a question on how the information is collected or used go?

Deputy Kathleen Lynch

To the Australian data protection officer. Not only does an Irish citizen have an opportunity to see what information is being held on him or her, he or she can correct it if it is wrong. If the misinformation is damaging to someone's integrity or, for example, Australian job prospects, he or she has a right to compensation. This is an important provision.

Deputy Joanna Tuffy

If someone claimed that his or her rights were not implemented in Australia, could he or she appeal?

Deputy Kathleen Lynch

The airlines must tell passengers that this information will be shared. The data protection commissioner in Australia is similar to ours. A person will know whether the information Australia has is correct, since he or she will have filled in the form. Normally, forms ask for dates of births, names, addresses, passport numbers, and so on. The commissioner could not have more of a person's information than the person provided. If a form was returned to a person and contained additional information that he or she did not provide,-----

Deputy Joanna Tuffy

If one person was confused with another.

Deputy Kathleen Lynch

Yes. One would have an opportunity to correct the information. If one could prove that the misinformation endangered one's reputation or prevented one from doing something, one would have a right to compensation. Someone will quickly learn whether the information being held is correct, as he or she will have given it.

Deputy Dara Calleary

If we needed any reminder of the necessity for the information, we are approaching the tenth anniversary of 11 September, believe it or not.

Deputy Kathleen Lynch

Yes.

Chairman

Thank you, Minister of State. As we have concluded our consideration of the motions, in accordance with Dáil Standing Order 87 and Seanad Standing Order 72, the joint committee will report to Dáil Éireann and Seanad Éireann to the effect that it has completed its consideration of these motions.

Is it agreed that there should be no further debate on the motion re a directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime? Agreed.

Is it agreed that there should be no further debate on the motion re a proposal for a regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters? Agreed.

Is it agreed that there should be no further debate on the motion re a Council decision on the signature of the agreement between the European Union and Australia on the processing and transfer of passenger name records, PNR, data by air carriers to the Australian Customs and Border Protection Service and a Council decision on the conclusion of the agreement between the European Union and Australia on the processing and transfer of passenger name records, PNR, data by air carriers to the Australian Customs and Border Protection Service?

Deputy Jonathan O’Brien

No. However, as long as my opposition is recorded, I will not call a vote.

Chairman

Then it is agreed. The Deputy's opposition will be recorded. I thank the Minister of State for attending.