I thank you, Chairman, for your kind words of welcome. This is the first time a European Union proposal, falling within the responsibility of the Department of Justice, Equality and Law Reform, has been brought before an Oireachtas joint committee for scrutiny under the new provisions for the scrutiny of European matters. Technically, it falls outside the scope of the European Union (Scrutiny) Act, 2002, but it has been decided that the same procedures should apply to this measure.
In a sense, we are breaking new ground and there are no established practices, so it would be helpful if I made some comments on the process and I would very much welcome any comments or suggestions the committee would like to make on how such issues should be approached in the future.
At this stage it is important to note that the procedure upon which we are now embarking is a procedure of consultation and not of instruction from the Minister. Notwithstanding that, I have a substantial number of instructions to impart to the committee before consultation can begin.
Many of the decisions made at European level have significant implications for Irish citizens and a greater involvement of national parliaments will improve democratic accountability as well as making the activities of the European Union more accessible and relevant for ordinary citizens. I am a firm supporter of the view that national parliaments should be kept fully informed of developments at European Union level and should have an opportunity to provide a positive contribution to such developments.
In this instance we are dealing with a proposal relating to a convention which the Council of Ministers will be asked to approve at European Union level. We are dealing with a proposal relating to a convention which is already in existence. The joint committee is being invited to consider a proposal amending that convention by way of a protocol. This protocol will be considered by the Council of Ministers, who will be asked to approve it at European Union level. If the protocol is approved at European Union level it will then be recommended to the member states for adoption in accordance with their respective constitutional requirements. If the Council of Ministers accepts and adopts this protocol Ireland will implement it by legislation. There is no strict obligation on Ireland to implement the protocol and that is why there will be a recommendation from the Council to the member states to implement the protocol by way of legislation. This protocol will be drawn up under the third pillar of European Union activity, which relates to justice and home affairs matters. Unlike other EU instruments the final say in this matter will rest at national rather than EU level. Nevertheless, we took the view that it was desirable to have this process of consultation on the matter. In this case we are talking about legislation to amend the Europol Act 1997 before we can proceed to ratify this protocol.
While the Constitution reserves the sole power of determining foreign policy to the Government and while neither the courts nor the Oireachtas can regulate the negotiating position to be taken in any given instance, the importance of today's exercise is that there is an opportunity to brief the committee on the proposal and an opportunity for the committee to express its views on the subject before the text of the instrument is finalised. These views can then be taken into consideration in the context of the negotiations which are already under way. I remind members that there are 14 other member states involved and no guarantee can be given as to what views will finally be acceptable to the Council as a whole. If negotiations at EU level are successfully concluded, the legislation to implement the proposal will be brought back to both Houses, which may accept or reject it at that stage.
Turning now to the subject matter of the proposal, a decision at the European Council in Maastricht in December 1991 was taken to establish a European Police Office (Europol) to combat organised crime, especially in the area of drugs. As a preliminary step the Europol drugs unit was established in January 1994. The Europol Convention was agreed and signed in 1995. It was given the force of law in this State by the Europol Act 1997 and Europol became operational on 1 July 1999.
The primary purpose of Europol is to facilitate the exchange of information and intelligence and to carry out detailed analyses in order to assist the member states in preventing and combating international organised crime. It does not have any operational powers. Rather it is there to support national law enforcement authorities and to facilitate EU police co-operation.
While Europol has had successes and police co-operation at EU level has clearly been enhanced, there is a view that the original expectations for the organisation have not been fully fulfilled. There is a view that developments since 1995 and the experience gained in the operation of the convention have revealed the need for some amendments to the text of the convention. Various possible amendments to the convention have been raised and discussed since 1999. Two proposals on the more pressing issues have been progressed. One was to extend the mandate of Europol to all money laundering offences regardless of the predicate offence and the other, not yet been formally adopted by Council, relates to Europol's role in supporting joint investigation teams and their right to ask states to initiate an investigation. The Danish Presidency on 2 July 2002 published the initiative before us today, which is intended to address the other outstanding issues that might require an amendment to the existing convention.
There also have been discussions about converting the Europol Convention into a Council decision. Were that done, the obligations in relation to Europol would be embedded in Community law and become mandatory for us. The Europol Convention was drawn up prior to entry into force of the Amsterdam treaty and there is a view that the most appropriate legal basis for Europol would now be a Council decision. A Council decision instrument would be more flexible and changes could be implemented more quickly than with a convention. However, it would move responsibility for any further amendments to the instrument away from the member states to European Union. No agreement has been reached on the matter.
Unfortunately the text of the draft protocol is difficult to follow because of the nature of the proposal and because it includes a variety of technical and substantive changes. The wording of the final text is unlikely to correspond to the original proposal and therefore we should concentrate on the broad policy issues.
The most significant elements of the initiative relate to the objectives and tasks of Europol, the question of Europol dealing with national law enforcement agencies through the centralised national units or by direct contact, Europol and the European Parliament, co-operation with Eurojust, and Information system and analysis work files.
With regard to the objectives of Europol, Article 2 of the Europol Convention sets out the objectives of Europol and was drafted on the basis that Europol would initially limit itself to addressing international organised crime in the areas of trafficking in drugs, nuclear material, illegal immigrant smuggling, trade in human beings and stolen motor vehicles. These were to be priorities and the thinking was that its mandate could then be gradually extended to terrorism and the extensive list of offences in the Annex to the Convention.
In practice, a different approach was taken. It was agreed that organised crime groups switch quickly from one form of trafficking to another depending on profits. The same structures can be used for smuggling drugs, cigarettes, people or arms. Therefore, it does not make sense to have a restricted mandate for Europol. Europol should be able to continue to focus on a criminal group regardless of the nature of the criminal activities. As a result, the mandate of Europol has been extended to cover all the offences listed in Article 2 and the Annex.
Following on from this approach, the Danish Presidency has suggested that Europol should have a very open-ended mandate covering all forms of serious international crime. This could have significant implications for the future role of Europol.
I will summarise the views of the member states. I cannot attribute particular views to particular member states, but the following views have been expressed: a formal procedure for determining the priorities of Europol is required as not all offences should be given the same priority; Europol was set up to combat organised crime and its mandate should remain focused on international organised crime; and greater clarification is required regarding what constitutes serious international crime, perhaps a list of offences that could be updated by the Council in appropriate circumstances.
Article 3 sets out the tasks of Europol, and the Presidency has raised three possible amendments. A proposed amendment to Article 3.1(4) relates to clarifying the position as regards the support Europol can give to one member state as opposed to a group of states. Second, a proposed amendment to Article 3.3 relates to the role of Europol in the provision of technical equipment to member states. Third, a proposed new paragraph 4 is to be inserted into Article 3 highlighting the role of Europol as regards counterfeiting the euro.
In regard to the role of national units, the proposed amendments to Articles 4 and 9(4) have very significant implications for the role of the Europol national units. Under the existing convention, Europol interacts with the member states through specially designated national units. Every member state has a national unit with a designated head, and one or more members of that national unit are stationed in the Europol building in the Hague to liaise with Europol. In Ireland's case, the Europol national unit is situated in Garda headquarters and is headed by a Chief Superintendent. The Irish information flow to and from Europol is through that national unit.
The Presidency proposal raises the question of allowing other competent authorities - which, in effect, means any law enforcement agency - supply information to and seek information from Europol. The proposal would also allow Europol to seek information directly from law enforcement officers without going through the national units.
The view has been expressed that the national units are the key to the proper co-ordination and verification of information at a national level and that to allow the national unit to be bypassed will undermine one of the major successes of the existing arrangements. The national units ensure that forwarding information to Europol is in accordance with national law, that the information is of value and that it meets the requirements of Europol. It should also be kept in mind that, in many EU countries, there are a significant number of different police and law enforcement agencies and national co-ordination of intelligence can be quite difficult. I do not have to remind Members that in Great Britain there are many police forces in individual local authority areas. Equally, in many other member states of the EU, there are individual and specialised police forces for different tasks and functions.
While there are references to the European Parliament in the proposed amendment to Articles 24(6), 28(10) and 35(4), the substantive proposal in this area relates to the second paragraph of Article 34 and, in particular, to the appearance of the director of Europol before the European Parliament.
Europol is funded directly by the member states and is answerable to them through the board and the Council of Ministers. As Europol is not funded via the Community budget, the European Parliament does not have the same responsibilities towards the organisation as it has in respect of other Community institutions.
Under the existing convention, the European Parliament is consulted regarding relevant Council decisions and receives an annual report. The Danish Presidency is proposing that the existing arrangements be made more specific and, in particular, that provision be made for the appearance of the Presidency and the director of Europol before the Parliament.
There is a view that as the director is answerable only to the member states and not to the European Parliament and that he or she should only appear before the European Parliament in support of the Presidency representative and not on his or her own.
The Presidency proposes to amend Article 42 to insert a specific reference to Eurojust. Eurojust was established by a Council decision earlier this year - recorded in the Official Journal at L63/5 on 6 March 2002 - to stimulate and improve the co-ordination of criminal investigations and prosecutions within the European Union. It is, in a sense, a sister organisation to Europol and there will be particularly close links between the two organisations.
There are quite a number of technical amendments which relate to access and storage of data, information systems and analytic work files in Europol. I do not propose to go into them in any detail, but if any member of the committee has a specific question I will try to answer it. An independent joint supervisory body comprising national data protection experts was established to oversee Europol and that body has produced a paper on the proposed amendments. Its views and the views of the member states are being taken into consideration in the context of the negotiations under way in Brussels by those bodies charged by the Council of Ministers with the task of preparing a final text acceptable to all member states.
The Danish initiative has been discussed in some detail at working group level. Some progress has been made but it would be premature for me to give an indication of the likely outcome at this stage. The Presidency has also sought the views of the Europol Management Board and the European Parliament. The Danish Presidency is quite keen to progress its initiative and it may be that it will come before the Council of Justice and home affairs Ministers in December 2002. In this regard, the Minister for Justice, Equality and Law Reform, Deputy McDowell, has asked me to thank the committee for dealing with the matter so promptly.
Any views the committee may have on this proposal would be most welcome, as would any suggestions on how the work of the committee might be facilitated in the future when EU proposals are being scrutinised.
