JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 2 Dec 2003

Vol. 1 No. 43

EU Agreement: Ministerial Presentation

Minister for Justice, Equality and Law Reform (Deputy McDowell)

I thank the members of the joint committee for allowing me to bring before you for consideration this EU proposal for an agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention on Mutual Assistance in Criminal Matters and the 2001 protocol thereto. This proposal is before the joint committee on foot of motions in line with the advice of the Office of the Attorney General in relation to seeking the prior approval of the Houses of the Oireachtas on EU-related instruments. A similar motion is before the Seanad.

The intention of the measure is to apply certain provisions of the EU 2000 Convention on Mutual Legal Assistance in Criminal Matters and the 2001 protocol thereto to Norway and Iceland with a view to improving judicial co-operation in criminal matters between the member states of the European Union and Norway and Iceland. The Justice and Home Affairs Council agreed the mandate for these negotiations in December 2002 and a number of meetings have taken place to progress the matter since. The original mandate also provided for the mechanisms of the framework decision on the European arrest warrant to be applied to Norway and Iceland. However the extradition arrangements are now being dealt with as a separate issue.

At the meeting of the Justice and Home Affairs Council on 27 November 2003 agreement was reached on the draft Council decision authorising the signature of the agreement with Norway and Iceland before the end of the year and it is expected that the proposal will be adopted at the forthcoming EU Environmental Council on Monday, 8 December 2003. The reason for this is that the Justice and Home Affairs Council will not meet again in December.

I will now outline the main provisions of the agreement. Article 1.1 of the draft agreement identifies the articles from the 2000 convention that are to be applied in relations between member states and Iceland and Norway and Article 1.2 identifies the articles to apply from the 2001 protocol. Article 1.3 specifies that declarations made by member states under certain articles of the EU mutual assistance convention and the protocol to the convention shall also be applicable in relations with Iceland and Norway.

Article 2.1 provides for exchange of information on case law developments for the purpose of arriving at as uniform an application and interpretation as possible of the provisions in Article 1. In that context a mechanism is to be set up to ensure regular mutual transmission of case law. Article 2.2 allows Norway and Iceland the right to submit statements or written observations to the European Court of Justice for preliminary rulings concerning the interpretation of the provisions in Article 1. Article 2.bis provides for Norway and Iceland to request member states to report problems encountered concerning the execution of a request for a practical solution to Eurojust.

Article 3 contains a provision whereby any dispute between either Norway or Iceland and a member state regarding the interpretation or the application of the agreement or any of the provisions referred to in Article 1 of the agreement may be referred to a representative group of the governments of the member states of the EU and of Norway and Iceland with a view to its settlement within six months. Article 3.bis provides for a review of the agreement to be carried out no later than five years after its entry into force, which is a customary provision.

Article 4 is a standard provision dealing with ratification procedures. Article 5 provides that the accession by new member states of the EU to the EU 2000 mutual assistance convention and its protocol will create rights and obligations under the present agreement, in order that we do not have to renegotiate this when new countries join the EU in May. Article 6 is a standard provision dealing with arrangements for termination of the agreement. Article 7 makes provision for notification to the Council of Europe.

There are two declarations to the agreement. The first declaration provides for consultation between Norway or Iceland or one of the member states where there is a necessity to do so to enable the most effective use to be made of the agreement, with a view to preventing any dispute regarding the practical implementation and interpretation of the agreement. The second declaration provides for Norway and Iceland to make inquiries through contact points of the European judicial network to establish which judicial authority of a member state has the territorial competence to initiate and execute requests for mutual assistance. The changes to Irish law necessitated by this agreement will be included in the Criminal Justice (International Co-operation) Bill which is currently being drafted. These proposals will, in due course, be brought before both Houses of the Oireachtas in the normal way.

I commend the motion to the joint committee.

Deputy Costello

I thank the Minister. What matters and criminal issues will come under the 2001 protocol? He said extradition arrangements would be dealt with as a separate issue. When will that be done? The Minister said that changes in the Criminal Justice (International Co-operation) Bill would be necessary. What is the urgency in dealing with this in the Environmental Council on 8 December? Why not wait until the Justice and Home Affairs Council meets next year?

Deputy McDowell

I signalled political agreement with this measure last week when I indicated we had a constitutional obligation to get permission under Article 29. I indicated to the Council that I anticipated getting that but in order not to delay this further it will go to the other Council as an A item on the list, without further debate, once Ireland and some other countries get constitutional obligations out of the way. It will be adopted as a Council item without further debate like an item on the Order of Business being adopted without debate and it does not require further input from the Justice and Home Affairs Ministers. That is the technical basis for it going to another meeting.

The Italian Presidency was going to have one further meeting of Justice Ministers and one meeting for Interior Ministers on 19 December and there would have been no problem dealing with this at those meetings, but they have now been cancelled. The next Justice and Home Affairs Council meeting will be in the Irish Presidency sometime in February, which is a long way off. I did not want our constitutional problem to hold the agreement up as everyone was content to ratify it before Christmas if they could. That is what is happening.

Mr. Costello

What are the implications? Will there be variations in the criminal justice Bill we pass into law?

Deputy McDowell

There will not be variations at this point. We are one of the last pieces in the jigsaw and once we have signalled that we have complied with our constitutional requirements it will go through, as all the negotiations were complete when I went to Brussels last week. If the Italian Presidency had had a Council meeting of the Justice and Home Affairs Council on 19 December I could have signalled that we had already completed this and it could have been dealt with there. The Attorney General's view had matured on this issue. Originally his office's preliminary view was that this did not warrant an Article 29 resolution but then they had a deeper look at the matter and decided there was. In those circumstances I did not want to be the stick-in-the-mud who was holding this up.

Mr. Costello

We must be clear on this as we will be discussing the European arrest warrant on Friday and the co-operation Bill sometime in the future. Those will be elements of our legislation so we will have agreed to this mutual agreement before any legislation comes before the House.

Deputy McDowell

We will have agreed that the EAW applies, in certain respects and subject to certain conditions, to Norway and Iceland when it comes into effect, but it must come into effect. We have an international obligation to bring it in. Under Irish constitutional law the Houses are now obliged to bring the framework decision into effect from 1 January. It is not presumptuous of me to assume this will be done. We will be in default if we do not do so. I am not taking a liberty with what is required. Our embodiment of the EAW framework decision in Irish law is for us to do. Whatever it is, it will apply multilaterally between the European Union, Iceland and Norway.

Deputy Costello

While we will embrace the framework, we are entitled to do so in our own fashion.

Deputy McDowell

That is correct. We have an obligation to transpose the framework decision into domestic legislation, but the agreement does not compromise the degree of latitude open to us in doing so.

The Deputy asked about the relevant articles of the MLA convention. These include Article 8 - restitution of articles obtained by criminal means to their rightful owner; Article 9 - temporary transfer of persons held in custody for purposes of investigation; Article 10 - hearing by video conference; Article 11 - hearing of witnesses and experts by telephone conference; Article 13 - the setting up of joint investigations teams; Article 14 - covert investigations; Articles 15 and 16 - criminal and civil liability regarding officials and Articles 17 to 21 - interception of telecommunications. Other more standard provisions, such as formalities and procedures in the execution of requests, bilateral arrangements and reservations will also apply.

On the 2001 protocol, provisions in relation to requests for information on bank accounts and banking transactions, together with monitoring of banking accounts and bank secrecy, as well as provisions on confidentiality and an obligation to inform, an additional request for mutual assistance under Article 6 and political offences provisions under Article 9 are the main provisions applicable under the protocol.

The Deputy referred earlier to extradition. A separate extradition agreement is being drafted at EU level and Ireland is participating in the process. We got permission to do so at an earlier meeting. It was intended initially to have this as part of the judicial co-operation agreement which would cover both extradition and mutual legal assistance matters. The proposed extradition agreement is likely to incorporate aspects of the European arrest warrant. Several issues require detailed consideration before an agreement can be finalised. In these circumstances, it was agreed that MLA and extradition will proceed separately.

With regard to the timescale for the adoption of the extradition agreement, it is a very detailed proposal and, given recent experiences with other extradition agreements, the Council is likely to undertake a two stage process involving two Council decisions. It is unclear at this stage what the likely timeframe will be. It may require detailed examination and it is unlikely to be presented to the Council until some time late in the Irish Presidency at the earliest. The extradition arrangement may be a matter for the Dutch Presidency.

Deputy Costello

That is a comprehensive list of items on mutual recognition.

Deputy McDowell

I can give the Deputy a list of the others. Article 2 - provisions in the MLA 2000 convention in regard to the Schengen aquis; Article 3 - proceedings in connection with which mutual assistance; Article 5 - sending and service of procedural documents; Article 6 - transmissions of requests for mutual assistance - these are all Shengen type arrangements which are not being included; Article 7 - spontaneous exchange of information; Article 12 - controlled deliveries and Article 23 - personal data protection. These will not apply to Norway and Iceland. In regard to the protocol, Article 8 - provisions relating to fiscal offences, and Article 10 - forwarding refusals to the Council and involvement of euro, are excluded.

Senator J. Walsh

I have two questions arising from what the Minister said regarding the items open for mutual agreement between the parties. One relates to the hearing of witnesses by telephone. Given some of the other debates, will he expand on this and in what circumstances will it apply? Perhaps he will also elaborate on bank accounts, information being made available and an obligation to inform.

Deputy McDowell

Article 10 is long. It provides that if a person is in one member state's territory and has to be heard as a witness or expert by the judicial authority of another member state, the other member state may, where it is not desirable or possible to be heard in person, request that hearing to take place by video conference as provided for in the article.

Article 11 provides that if a person is in one member state and has to be heard as a witness or expert by judicial authority of the other member state, the latter may, where its national laws so provide, request assistance of the former member state to enable the hearing to take place by telephone conference. We do not have this in our law. I have never heard of it. Unless things have dramatically changed since I left the Law Library, I have never heard of telephone conferences. These things may come.

Senator J. Walsh

It has not been in our submissions so far. What about bank accounts?

Deputy McDowell

That is in the protocol. Each member state is entitled, under the conditions set out in the article, to take the measures necessary to determine, in answer to a request sent by another member state, whether a natural or legal person who is the subject of a criminal investigation holds or controls one or more accounts of whatever nature in any bank located in its territory and, if so, to provide all the details of the identified accounts. One member state can, under the agreement, ask, say, Iceland or Norway whether a person being investigated appears to have accounts in either country and vice versa. There is also provision for monitoring accounts. We can ask Iceland or Norway to keep an eye on transactions in an account to help us with a criminal investigation. It is not just a matter of freezing the account or grabbing it. It is a matter of telling us that it exists and what is happening in regard to it.

Senator J. Walsh

Is there protection for individuals? Obviously one would not wish to interfere where there was a presumption of guilt. Are there any bona fide criteria which can be applied before triggering this search because it is a significant invasion of privacy?

Deputy McDowell

MLA in Ireland requires the intervention of the courts. The Garda cannot operate it without judicial sanction. If one comes here, MLA is supervised by the District Court. It is not a matter of gardaí running around to a bank and saying they want details of this, that or the other to be sent to Iceland. In Ireland these issues have a judicial layer of regulation.

There have been no incoming or outgoing requests from Iceland on mutual legal assistance. There have been no outgoing requests from us to Norway. In the last six years six requests have been received from Norway. The requests for assistance related to tax fraud, serious assault, drug trafficking, money laundering and vandalism.

Deputy Costello

Does it refer to our citizens looking for assistance? Would Norwegian nationals have come here?

Deputy McDowell

It would be normally the Norwegian authorities investigating their own nationals. It is not confined solely to their own nationals. It could be an Irish citizen who is involved as a suspect in a Norwegian case.

Deputy Costello

Personal data protection, which is included in other member states, is missing from the agreement.

Deputy McDowell

There must be a problem in regard to Norwegian and Icelandic law or policy. They do not particularly want it. It has not been sought by them. Perhaps their personal data protection law does not operate in the same way as ours. They may not want the particular article applied to them. Article 23 of personal data protection provides that personal data communicated under the convention may be used by the member state to which they have been transferred for a limited number of purposes. It deals with controls over the use of personal data supplied. It may well be that other member states do not wish the criteria to apply to them. Generally, the information can only be used for the purpose for which it is supplied. It is being introduced to try to cut back on the possible wider use of personal data. It may be - I am not sure about this - that Icelandic or Norwegian law does not correspond to the European Union on this. They may have a policy objection to it.

Deputy Costello

Do they feed into the mutual recognition Framework Document agreed between the European Union and the United States?

Deputy McDowell

No.

Deputy Costello

There was a great deal of scope in terms of availability of personal data in that regard.

Deputy McDowell

I do not think there is a connection between them.

Deputy Costello

That would be open to various items such as terrorist activities and so on.

Deputy McDowell

I cannot elaborate more. I do not think a nexus exists between the two agreements.

Senator J. Walsh

Am I right in thinking - I am sure the Minister will have an affirmative answer in this regard and that I have misunderstood him - that the mutual recognition in its application will at all times be subject to our domestic law? Does it override domestic law?

Deputy McDowell

As I indicated earlier, we are currently drafting new legislation to cover mutual legal assistance on an international basis.

Senator J. Walsh

Mutual recognition will be subject to that legislation.

Deputy McDowell

Current legislation in this area is limited but we are hoping to codify the area. Drafting is almost complete and we will soon have a memorandum for Government on it. I am worried about pouring more Bills into the office of the parliamentary counsel while not getting other Bills through the Houses of the Oireachtas. I do not want to overstretch that office's capacity to deal with my legislative requests when I am not succeeding in getting the Bills out at the other end.

The work of that office is not done once a Bill has been published. It has to re-engage with the process when a Bill reaches Committee Stage. There is such an accumulation of justice legislation in the Oireachtas that I will require a great number of draftsmen to deal with Committee Stages of legislation. The parliamentary counsel is limited in terms of the amount of resources he has available to me. My Department is ready to move on the mutual legal assistance legislation but I have to make choices about progressing Committee Stage hearings of other Bills and dragging the draftsmen into that process or asking them to deal with primary legislation. It is juggling act and it is difficult to keep on top of it.

Chairman

Is that a criticism?

Deputy McDowell

No, it is not. It is a squeak of frustration. I am not blaming anybody for it; it is a fact of life. Publishing Bills takes the pressure off me but I must try to have them enacted. The entire legislative process is discredited if a pile of published legislation is not being processed.

Chairman

The Minister can be assured this committee will always facilitate and assist him in that regard.

Deputy Costello

How much legislation is currently on the books?

Chairman

The Minister has broad shoulders.

Deputy McDowell

Deputy Costello feels I am doing too much work, I know that.

Chairman

Is the joint committee recommending there should be no further debate of the motion in the Dáil or Seanad?

Deputy Costello

No.

Deputy McDowell

Have we given up making such recommendations?

Chairman

Yes.

Deputy Costello

We should dispose of that tradition. We should not dictate to the Dáil.

Chairman

I am doing what I am told. I thank the Minister and his officials for attending the meeting.