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Tuesday, 11 Mar 2003

Vol. 1 No. 17

EU Justice and Home Affairs Council: Ministerial Presentation.

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials. The purpose of this meeting is to receive a briefing from the Minister on the matters discussed and decisions taken at the EU Justice and Home Affairs Council meeting in Brussels on 27 and 28 February 2003. Members have been circulated with details of the proceedings of that meeting in the form of a press release. I invite the Minister to make his statement.

Thank you, Chairman. I welcome the opportunity to discuss with members of the committee the outcome of the recent Justice and Home Affairs Council. The committee was provided with information notes on the matters listed on the agenda in advance of our previous discussion and I now propose to provide members with an update, following the meeting of the Council.

The first item discussed was the proposal for a Council directive on minimum standards for the qualification and status of third country nationals and stateless persons, as refugees or as persons who otherwise need international protection. Discussion focused on the minimum obligations that member states will have to those to whom international protection is granted. The Council agreed to a further examination of the outstanding issues at working party level with a view to reaching political agreement within the time limit of June 2003, as set by the Seville European Council. I am confident there will be agreement by that stage.

The Council achieved a consensus on the directive on family reunification which has been under discussion for three years. The directive establishes the right of legally resident third country nationals to be joined by their families and is the first instrument to be agreed by the EU in the area of legal migration. Neither Ireland nor the UK has opted into this directive. Our decision not to opt into this proposal was based on the fact that there was a provision in the original proposal for freedom of movement between member states for family members who join the sponsor in a member state. This would have had implications for the common travel area if Ireland was to participate without the UK. However, the amended proposal which has now been agreed does not provide for freedom of movement and we will examine the question of opting into this measure once it has been formally adopted by the Council.

The Commission gave an oral report on the issue of passport controls at Schengen entry points, particularly the stamping of travel documents, and announced that concrete proposals on this issue will be presented by next month. This was followed by a joint declaration from Germany and France on the use of biometrics with a view to improving the security of travel documents, which was welcomed by the Council.

The Commission gave a presentation on the current state of play of the study on burden sharing between member states and the Union for the management of external borders and the feasibility study on improving sea border controls. The Council invited the Commission to finalise these studies as soon as possible. An orientation debate took place on the effectiveness of financial resources available at Community level for the implementation of the Community's policy on asylum and migration. The debate covered a range of items, including the overall assessment of the inadequacy of existing JHA Community funds, burden sharing on external borders, the European refugee fund, return policy and relations with third countries of origin and transit. Delegations were invited to submit written comments on this issue with a view to further discussion at the informal ministerial meeting which will be held on 28 and 29 March 2003 in Veria, Greece.

The Council held an open debate on fighting organised crime in the western Balkans. That debate was transmitted live to the public. Council members recognised that organised crime in south - eastern Europe is a phenomenon that not only destabilises that region but has a direct relevance for EU member states. There was a consensus that the fight against organised crime in the Balkans must be stepped up and that Europol should play a role in the region. It was agreed by the Council to examine this issue further at the informal ministerial meeting in Veria and to discuss the question at a Justice and Home Affairs troika meeting with the Balkan countries in April. During lunch, the Commission reported on the state of play of negotiations with Switzerland regarding Swiss participation in the Schengen system.

Discussions on the second day of the Council meeting started with the proposed agreement between the European Union and the United States on judicial co-operation and extradition. The Council agreed that, for the time being, negotiations should be suspended in order to allow for further consideration of the text. It is envisaged that a final decision will be taken at the JHA Council in May. As I said before, the emerging agreement is unlikely to cause difficulty for Ireland because the issues covered are already covered in existing bilateral agreements between Ireland and the United States.

The Council examined the proposed framework decision on combating racism and xenophobia. Discussions focused on the introduction in the framework decision of references to national constitutional rules and the implementation of mutual legal assistance with regard to dual criminality. Ireland's position in negotiations has been to protect our constitutional right of freedom of expression, while at the same time ensuring that hate speech and documents are criminalised and subject to effective, proportionate and dissuasive penalties. This position was maintained at the Council meeting. The proposal requires further amendment and will be discussed at a future JHA Council meeting.

A proposed framework decision on the application of the principle of mutual recognition to financial penalties was also on the agenda. The discussion centred on the list of offences which will give rise to recognition and enforcement of decisions. The idea is that for a defined list of offences, the executing state will not be able to invoke the principle of dual criminality as a ground for refusal. The list of offences under discussion are those agreed regarding the European arrest warrant, certain additional offences and road traffic offences. The principle of dual criminality could be applied for offences not on the agreed list. It was agreed that work on the draft framework decision will continue at working party level, taking account of the comments made at Council. It is likely the proposal will be discussed at the next JHA Council.

A common approach was reached on a proposed framework decision on attacks against information systems, such as unauthorised computer hacking. This is an important measure which will address forms of crime that are a menace to electronic information systems. The framework decision requires member states to provide for criminal sanctions for cases of illegal access to information systems and illegal interference with systems and data, such as concocting and spreading viruses. The measure is subject to outstanding parliamentary scrutiny reservations from some member states, including Ireland.

I hope I have given the committee a flavour of the discussions at the recent JHA Council. I will be happy to respond to any questions from members of the committee.

I thank the Minister. Are there any questions?

With regard to hate speech, the NCCRI recently issued a report stating there was a massive upsurge in racist e-mails and such like. It documented a number of cases last year involving a new type of racism over the Internet in the form of text messaging. Has that area been examined?

Under Irish law, incitement to hatred on racial grounds is already an offence, irrespective of what form it takes. The law does not distinguish between the use of writing, telephone, the Internet or any other means. It is an offence, under Irish criminal law, to make statements which are calculated to incite hatred on racial grounds.

The Irish position regarding the framework decision which is causing us some difficulty is that some member states wish to have a new category of offences, unknown to Irish law, which would deny, minimise or trivialise historic events in a manner likely to cause insult to other people. For instance, denial of the Holocaust, or whatever, would be an offence in certain circumstances. That is currently the position in Europe. In the common law tradition, however, Holocaust denial is not an offence, per se. For example, Dr. David Irving has published books expressing his view that the Holocaust never took place but is a figment of Western imaginations. Our position is that, generally speaking, freedom of speech allows people to have views which the great majority would regard as wrong and untrue. On matters of history, our system has never treated it as a crime to make a statement of fact, however mistaken that statement may be. We have put forward a clause for inclusion in the text of the framework decision stating that it does not require member states to criminalise behaviour which amounts to freedom of expression or freedom of the press. Some other constitutional grounds are also to be included. We will be in a position to accept the framework decision with that in it but to make a decision in our own case in favour of freedom of expression.

Is there substantial divergence of views on this matter with our partners inEurope?

Yes, the civil law tradition is different on matters such as this. Other states have different ideas of defamation and the making of insulting statements, and they criminalise a lot of activities that we leave to the civil law of defamation. They do not have the radical distinction that we have with regard to crime and tort in our law.

In the civil law tradition, things can be said which are gravely damaging and insulting to people's dignity which can amount to criminal offences. We have a slightly different system. There are a number of European countries, particularly those with an internal history of totalitarianism, which have taken strong steps against those who engage in Holocaust denial because it is a threat in those countries. The common law tradition is something we would share with India, Australia, New Zealand, Canada, the United States and Britain and we would not go down that road.

In October 2001, the Garda Commissioner talked about a reporting system that would distinguish between crimes against nationalities. There is no distinction made within the crime statistics with regard to racially-motivated crime. We do not know how many crimes are committed on the basis of race motivation or those committed against asylum seekers or refugees. That such a distinction is not made in the crime statistics is part of the problem. It has been promised for a couple of years and until we have that kind of reporting system, the rate of racially-motivated crime will not be known.

The position is that as a result of police co-operation measures, we report all racially-motivated attacks to European level. The Deputy is correct that we do not have a separate system for segregating those crimes from other offences. I take the Deputy's point that it is strange that we make the distinction in fulfilment of our European obligations but do not do so here.

Are we the only nation that does not do that?

I do not know.

The NCCRI was before the committee recently and it stated that it is developing statistics regarding this matter.

The statistics are available because we must report them to Europe. They are not a secret.

The NCCRI will publish the statistics regarding that.

I welcome the Minister and thank him for bringing us the report on the Justice and Home Affairs Council. Regarding page 2, which mentions the Council having an open debate on fighting organised crime in the western Balkans, there is reference to the fact that not only has it destabilised the region but that it has a direct relevance for EU member states. Is the Minister hinting that organised crime from this area is coming into Ireland? Has the Minister evidence that this kind of crime is developing in Ireland?

With regard to the Council examining the proposed framework decision on combating racism, does the Minister accept that there is a major problem in this country with regard to racism? Last week, two Indian nationals were horrifically assaulted outside McDonald's in O'Connell Street and the assailants were heard to shout racist abuse at the victims. Is the Minister concerned that there is an increase in this type of attack? In pubs and clubs around the country - I have witnessed this - a lot of racist comments are made off the record and out of the public domain. This has the potential to develop into a nasty situation.

I received a sad letter from a doctor who had to leave his country due to sectarian attacks by fundamentalists. He now has an Irish daughter but is worried about his chances of settling and living in Ireland due to recent developments in the courts. Does the Minister feel that cases such as this can lead to an increase in racist attacks?

With regard to the western Balkans, there is a considerable threat, not simply to the region, but to the European Union, which is focused on lawlessness and organised crime emanating from that area. A huge amount of drugs and cigarette smuggling, arms trafficking, illegal immigration and trafficking in women for the purpose of prostitution, and follow-on activity including pimping and extortion, has been noted across the European Union as having a particular focus in the western Balkans. The United Kingdom Government, under the leadership in this matter of the Home Secretary, Mr. David Blunkett, organised a conference in Lancaster House some months ago which I attended on behalf of the Government. I spoke to a number of people including Mr. Paddy Ashdown, the former Liberal Democrat leader, who is part of a European Union initiative in the area. He was interested in the activities of the Criminal Assets Bureau and expressed an interest in coming to Dublin to find out about it.

It is a serious matter and has a knock-on effect across the Community. It encapsulates not just drugs but women for prostitution, guns and major smuggling and theft. The area is a focus of lawlessness. The United Kingdom took its initiative and Greece is also worried about this as it shares borders with Albania and the Former Yugoslav Republic of Macedonia. The Greeks have a vested interest in putting this at the top of the European agenda.

Deputy McGrath also raised the issue of racism. I echo his expression of revulsion at the racist taunts delivered in the course of a vicious physical attack on our streets. It is a matter which every right-thinking person condemns absolutely. I agree with the Deputy that there is much submerged racism which can come out in drink.

The other point I would make - I hope it is not a naive one - is that the race card is exploited by people intent on gratuitous violence. They would pick on anyone they could but are quicker to pick on defenceless people with skin colour different to themselves, and to assault them viciously. Gardaí are doing their best to ensure this kind of crime is detected and that the perpetrators are prosecuted. However, the underlying issue with regard to attitudes remains.

The Government is continually trying to focus on this issue through the Know Racism campaign. One of the points in which I am particularly interested is the possibility of extending the campaign to the education system. I discussed with my advisors recently whether poster campaigns are more effective than sponsoring a children's art competition. I am keen to involve children in campaigns, rather than encouraging them to be involved in a purely passive manner, perhaps by looking at messages on billboards. I will defer to the experts in the field who can determine where more concrete results can be achieved. One need not necessarily be an alternative to the other, because I presume children's art competitions are not expensive to run. It is important that we encourage schools to take a strong view on racism as part of religious and moral formation. Members of the committee are aware that attitudes can be passed from parent to child. Prejudices can be inherited if they are not countered by people who are willing to outline the other side of the argument. I agree with Deputy McGrath regarding this matter.

I also raised the issue of a non-national doctor whose daughter is an Irish citizen.

The daughter is an Irish citizen and her father has been here for an appreciable number of years.

He has been here for a couple of years.

Did he come here to work or as a refugee?

He came here as an asylum seeker. He is a qualified medical doctor and he genuinely does not want to leave the country.

I do not want to get involved.

I know that. I will give the Minister the details.

The Deputy can send me the details, but I should make clear that each case is examined entirely on its merits.

This man has a good reference and I recommend him highly.

Can I ask the Minister a couple of questions? To what extent is biometrics used and what type of biometrics is contained in the declaration? I would also like to ask about the common approach to the framework decision regarding attacks against information systems. I understand that the European Commission intends to establish a network security agency. Such an agency would be well suited to the Digital Hub area of Dublin, as it would attract software and hardware manufacturers and operators. The agency will help with interoperability between systems and hardware. People who are interested in security of systems, interference with systems and criminality of systems could focus on the agency. I appreciate that the Department of Communications, Marine and Natural Resources is involved in this area, but the Department of Justice, Equality and Law Reform should also be involved in the establishment of the agency, if possible. I would like to hear about proposals in that regard.

Government is somewhat compartmentalised and the Chair has correctly mentioned that this initiative relates to the Department of Communications, Marine and Natural Resources, as far as Ireland is concerned. It is an EU initiative, under the first pillar, to create a centre of excellence to bring Europe to the fore as regards innovation and to ensure that we have state-of-the-art facilities in the areas mentioned by the Chair. I appreciate the argument that it is probably better, in the context of fighting viruses and improving the security of computers, to approach the matter in terms of prevention, through first pillar measures and framework directives, to allow member states to develop new joint approaches to hacking, viruses and damage to networks as a result of downloading.

The French and German Governments are engaged in a joint initiative to study the use of biometrics in security documentation, such as visas, passports, identity documents and residency permits. The United States has signalled that it does not intend to live forever in the 20th century. It will expect, as part of its move to the 21st century, travel documentation from countries with which it has arrangements to incorporate biometrics. It is possible to place fingerprints on a chip which is then included in a travel document. Facial characteristics which are relatively probative of identity, such as eye patterns and facial shapes, can also be included in documentation. Such measures are planned to improve the security of travel documentation, as forgers are becoming more skilled in the art of producing apparently plausible traditional passports. Their task will become a good deal more difficult if they have to include biometric material. The US has also announced that it intends to abolish visa waivers if biometric passports are not introduced by the end of 2004 and we have to work towards that deadline.

There is provision for non-EEA nationals in this country, who are referred to as aliens under our law, to carry a registration card. My Department is examining carefully the possibility of requiring that they carry cards which include biometric data in order to prevent many of the abuses that take place. I will not bore the committee with details, but multiple identities are becoming a frequent phenomenon. Some people have three or four personas. One of the problems in the area of asylum and immigration is that when asylum seekers destroy their original documentation, it is possible for them to create a series of personas. If I can use a Cheltenham phrase, such people are able to run a number of horses in the immigration and refugee stakes. The temporary residence certificate for asylum seekers contains fingerprints at present. I would like, generally speaking, to extend this provision to all persons, so that we can determine who is who.

Can I ask a question about a directive which relates to the family reunification unit, before Deputy Deasy intervenes? The Minister can answer our questions together. The fact that any person born here is entitled to citizenship means that this country has particular issues. Many families are resident here at present. What is the potential for Ireland and the UK opting into the directive on family reunification? What effect would the directive have on those who are resident here as a result of their children having been born here?

I wish to discuss the race issue, following Deputy McGrath's comments. It is untrue to suggest that racist traits are more evident when drink is involved, as it is overt and blatant in a way I never thought I would see. It is far worse. Operations such as Operation Hyphen significantly damage relations between ethnic communities and the Garda and authority in general. Of some 140 people initially detained in that operation, only 15 were deported. Many people who are legally resident here found themselves sitting in the back of a squad car.

As far as schools are concerned, 3% of pupils in secondary schools are non-nationals. Much more than art competitions are required. I accept this is not the Minister's jurisdiction, but the Department of Education and Science's. Many schools do not have the resources to properly integrate non-national pupils, in particular, as regards the English language, nor do they have the resources to train staff. We do not have proper facilities or sufficient resources to integrate non-nationals.

The nub of the issue is that because asylum seekers are not able to work, some people treat everybody with dark skin as "spongers", a term which is being thrown around a great deal. Several times in the past year the Minister stated he was not prepared to allow asylum seekers to work as it would open the floodgates to illegal immigration. He should reconsider his approach to this issue.

A survey of members of the Garda Síochána carried out about 18 months ago found that more than half of respondents were uncomfortable with the possibility of changing regulations to allow head dresses or the lowering of the height requirement to attract individuals from ethnic minorities.

A range of issues needs to be considered, including the possibility of increasing penalties for racially-motivated crime. Xenophobia and racism are growing to an extent I never considered possible and the measures taken to date are not sufficient to deal with the problem. The State must have the right to deport people and must police its immigration laws. At the same time, however, we must have a proper integration policy and we simply do not have one now.

As regards the issue of a feasibility study on improving sea border controls, the last time I had discussions with representatives of the navy, they were concerned that Europe has been flooded by large amounts of heroin since the fall of the Taliban regime. Although we have a small flotilla, our navy is extremely efficient. However, it would be the first to admit it is not stopping sufficient amounts of drugs from entering the country, particularly via the south coast. Will the Minister explain what the feasibility study will entail?

As a member of the committee on education and science, I wish to defend the Minister with regard to Deputy Deasy's comments on the education of young people and measures to discourage racist remarks. Education on racism must start at a young age in primary school. We all agree children are not born racist, but become racist through the example shown to them by adults. Every effort must be made at primary school level to ensure the message gets across to children at an earlier stage. Adults are the greatest offenders in terms of racism. I agree that the elimination of racism is a major challenge. As a modern society, we should be much better at addressing this difficult problem. The education system is an important tool for doing so.

I wish to pick up on the remarks by Deputies Deasy and Hoctor on racism. I worked for 20 years in a disadvantaged school in the north inner city where some 15% of the pupils were from ethnic minorities. The policies we drew up with some assistance from the Department of Education and Science were implemented on the day pupils entered junior infants at four years of age.

As regards the comments on arts, the correct approach is not to have a passive campaign but to pursue a proactive one in which children are involved. My school got children involved in football projects because Curtis Fleming was originally from Ballybough. Paul McGrath, for example, visited the school and we had similar events over the years. We took a proactive approach as it is vital to intervene early to avoid losing the children. The children in fifth and sixth class were the worst in the school in terms of racist baggage, which they had acquired from adults.

A number of interesting points have been made. On the issue of sea border control, the feasibility study is focused on illegal immigration, not drugs. With the exception of car ferries, we do not believe we have a significant seaborne illegal immigration problem.

Some 79% of those who are stopped——

While that is true, as far as I understand, detection of illegal immigration at sea is rare. If I have resources to allocate to the problem, I must allocate them to those areas where there are large flows of illegals. Putting people out at sea would be a waste of resources for most of the time.

Deputy Deasy asked me about the right of asylum seekers to work. I will not change Government policy on this matter under any circumstances. We have transformed the rate at which asylum applications are now dealt with. It is now March. Applications which were made for asylum status in January this year are now being considered and concluded by the Refugee Application Commissioner. It is typical but by no means universal that the process of taking decisions on cases by the Refugee Application Commissioner and the Refugee Appeal Tribunal takes less than six months.

If I were to give the right to work to asylum seekers, I would massively increase the flow of people entering the country. The proof of the pudding is in the eating and I note with regret that when the authorities, either in Austria or the Czech Republic, abolished the right to work, the flow of applications for asylum reduced dramatically.

Perhaps applicants could be allowed to work for a specific period.

After a certain period, a person should be told he or she is entitled to remain here if he or she has been found to be a refugee, in which case he or she can work. Every refugee is expected to work once his or her status has been decided. I do not accept the proposition that I should relax the rule in this respect. If I were to do so, the result would be overwhelming. In the context of a common travel area with the United Kingdom, the results of allowing those seeking asylum to work could be mind boggling.

Some 90% of asylum applicants are found to be effectively economic migrants after they have gone through our process. Of the remaining 10%, the great majority are people who have passed through Dublin Convention countries, but were not in a position, for one reason or another, to oblige other member states to deal with them. The amount of people who come here from their country of origin, rather than via a Dublin Convention country, is infinitesimal. We have sufficient problems to contend with in this regard as matters stand.

The volume of asylum seekers is hovering between 11,000 and 12,000 per annum, which is a huge figure in international terms. I understand the Federal Republic of Germany, for instance, receives 60,000 applications per annum compared to 12,000 here. I reiterate the point that anybody who points to this State and says we are unfair, unwelcoming or too hard on the issue just has to look at the figures on where people are coming to in Europe. We have the second highest per capita rate of asylum seekers in Europe. Some 40,000 people from non-EEA countries received work permits in Ireland last year. Whether we can sustain that rate of work permits in different economic circumstances is a different matter. People have a notion that the 12,000 asylum seekers with which I am dealing are the majority and that the legal migrants are the minority. I agree with Deputy Deasy that it is an urban myth that the great majority of people here who are of a different race, skin colour or nationality are asylum seekers. That is not the case. Some 40,000 work permits were given out last year while 12,000 people came here seeking asylum. There is more than a 3:1 ratio of legal migrants for every asylum applicant.

I will not go into detail because it would require an hour or more, but I cannot vary the policy to allow asylum seekers to work. I accept the point that Deputy Deasy made that some people may say that because people are not allowed to work, they are therefore sponging or being parasitic on Irish society. The same people would be the first to complain if I did what some people have asked me to do and grant the right to work. The 12,000 would become 24,000 or 36,000 and I would be in a hopeless situation. That is a point I wish to emphasise although it is not one that is politically correct to make.

If the State is seen to be failing in policing its immigration controls and implementing the laws, and Deputy Deasy has supported me on this issue, that is the stuff of which racism is made. That is much more potent than anything else - any rhetoric or soapbox oratory. If the public perception was that the State had given up on policing its borders and immigration control and our system had become a farce, the racist implications would be significant and virtually uncontrollable. If I loosen my grip on the immigration control issue, all the goodwill and multiparty declarations and efforts on the part of those who seek genuine multiculturalism in society and to combat racism, would be swept aside. That is why I will bring a series of measures to tighten up access to Ireland before the Dáil in the next few weeks.

I know some of the NGOs will criticise me for doing so but I believe that by doing so I will be dramatically reducing the potential for racism in Irish politics. If I do not do this I would be handing a potent weapon to those who would exploit the race card in the next local and general elections. We were lucky that it was not used more extensively in the last election. From canvassing door to door as we all did, it would have been easy to make race-related points. I do not think it would have been numerically damaging to any candidate who had the lack of moral fibre to confuse using the race card and his or her own political ambitions.

What about the directive on family reunification?

In regard to family reunification, I wish to stress that it only applies to legal residents and not to asylum seekers whose right to remain in the State has not yet been determined.

What is the case of Irish citizens born here who do not have legal residence?

Family reunification will not, generally speaking, apply to infants. A child in arms will not be accorded the right to bring in parents, brothers and sisters. I do not think that is a runner, unless some particularly inventive lawyer has a go at it. None of our European partners, or very few of them, have the citizenship - the ius soli provision - that the United States and Ireland have. No European court would oblige us to allow the fact that a toddler had Irish citizenship to accord to his or her parents, grandparents, brothers, sisters and cousins, the right to come to Ireland.

Does Deputy Deasy have another question?

I have heard the Government before saying it has one of the most open migrant labour policies in Europe. The figure of 40,000 work permits was mentioned but the problem with this figure is that 16,000 of these were renewals. Many Irish business people have complained about that fact and that not enough work permits are issued. In certain sectors of industry there are still massive skills shortages that could be met with outside labour. The small firms association, ISME, has continually said that. The figure of 40,000 is certainly impressive but when the number of renewals is taken into account, it appears that we cannot close the door on this issue entirely. I am not advocating that we have an open labour policy but the current system can be overly restrictive. We can utilise outside labour more effectively than we have done to date.

That is a question for another Minister. I thank the Minister and his officials for attending today's meeting. We look forward to our next meeting with him. We will pause for a few moments to allow the Minister and his officials withdraw before we go into private session.

Some members may be interested to know that, after a Council meeting, all the material relevant to it is posted on the website by the European civil servants. People do not have to rely on my version of events.

The Minister's version is more interesting and stimulating. We will continue in this mode for the time being if that is all right.

The joint committee went into private session at 6.08 p.m. and adjourned at 6.10 p.m. until5 p.m. on Tuesday, 25 March 2003.