I welcome Ms Deirdre Meenan, Ms Ann Barry and Mr. Tony McDermottroe from the Department of Justice, Equality and Law Reform. We are looking at two separate EU proposals, both of which were circulated to members with the agenda. It is proposed to deal first with COM (2004) 328 on criminal proceedings and then COM (2004) 334 on criminal sanctions. COM (2004) 328, a proposal for a Council framework decision on certain procedural rights in criminal proceedings, follows from a Green Paper proposing common minimum standards in criminal proceedings covering five procedural areas.
Scrutiny of EU Proposals.
Ms Deirdre Meenan
I thank the joint committee for the invitation to discuss the Commission proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union and the Green Paper on the approximation, mutual recognition and enforcement of criminal sanctions in the Union. The Chairman has stated we will deal first with the proposed framework decision on procedural rights. The committee will understand I am precluded from expressing an opinion on the merits of the policy of the Minister, the Government or the Attorney General. However, I will attempt to deal as comprehensively as possible with any issues the committee may wish to raise.
The stated aim of the proposal on certain procedural rights in criminal proceedings is to lay down rules to apply throughout the European Union concerning certain rights of persons who are the subject of criminal proceedings. The committee will be aware from its previous discussions on the Green Paper on this topic that the Minister has serious concerns about this instrument. As we shall see, those concerns are twofold. First, the Minister does not believe there is EU competence under the treaty to allow the approximation of criminal procedural law. Second, he remains to be convinced that the proposal would add value to the system of safeguards as operated in Ireland. While he shares the Commission's views on the importance of procedural safeguards, he is unable for the reasons stated to support the approach taken by the Commission in the proposal. I will return to the question of EU competence but first I would like to outline some of the background to the instrument and set out briefly what it proposes to achieve.
The proposal has its origins in a Green Paper presented by the Commission in February 2003. The proposal for a framework decision, first circulated in May 2004, provides for the introduction of common minimum standards in five procedural areas identified in the Green Paper and also contains provisions for the evaluation and monitoring of member states' compliance with the proposed policy. The five areas are: the right to legal advice and representation; the right to interpretation and translation facilities; the protection of certain potentially vulnerable persons; the right to communication and consular assistance; and written notification of rights, otherwise known as the letter of rights.
The proposal has been discussed at a number of meetings of the substantive criminal law working group on dates between 9 September 2004 and 3-4 October this year. The working group is scheduled to meet again on 22 November with a view to completing the third reading of the instrument. While Ireland has taken part in the negotiations on it, it has done so without prejudice to its fundamental concern regarding EU competence. The text before the committee arises from the September 2005 meeting — the text arising from the October meeting has not yet been made available publicly by the Council services.
Article 1 defines the scope of application of the rights identified in the instrument. As currently drafted the rights apply to the following proceedings and any appeal from them: proceedings aiming to establish whether a suspected person is to be subject to a criminal charge; proceedings to determine whether a suspected person has the mental capacity required to undergo criminal trial; proceedings aiming to establish the guilt or innocence of a person subject to a criminal charge; proceedings to determine sentence following conviction; proceedings involving a European arrest warrant or extradition request, or other surrender procedures.
Articles 2 to 14, inclusive, make provision for the common minimum standards to apply in the five identified areas of procedural law. Articles 2 to 4 deal with the right to legal advice. The articles address issues such as access to legal advice, the question of who bears the cost and the effectiveness of the advice, for example the qualifications necessary to give legal advice.
The subject matter of Article 5 is now reflected in Article 3bis and as a result Article 5 has been deleted. Articles 6 to 8 make provision regarding interpretation and translation. The articles address the issue of when interpretation and translation should be made available, who should bear the cost of such assistance and the accuracy of the interpreting and translation facilities. Article 9, which dealt with the recording of proceedings, was deleted during negotiations.
Articles 10 and11 make provision for the right to special attention for those who have difficulties in understanding or following proceedings owing to age, mental or physical condition and for related matters. These articles specify certain types of special attention, for example, the presence of a parent or guardian during the questioning of a minor and access to medical and psychiatric assistance. These articles have been further amended following the negotiations held in October. The amendments, which are not reflected in the text of the instrument circulated to the members, in summary, provide greater focus on the specific attention to apply to minors.
Article 12 makes provision for the right to inform a third person of a person's detention. This article has been the subject of a number of amendments which are, in the main, drafting amendments. An exception to this is an amendment which replaced the requirement to inform the third person "immediately" with a requirement that he or she be informed "without undue delay". Article 13 makes provision in relation to communication with consular authorities. Article 14 provides for a letter of rights to be given to the detained person to ensure that he or she is informed of his or her rights.
Articles 15 and16 deal with the evaluation and monitoring of the effectiveness of the instrument and the collection of data in this regard. Article 17 provides that the instrument shall not be understood so as to limit or derogate from any rights arising under the laws of a member state. Articles 18 and 19 provide for the implementation and entry into force of the instrument. Appended to the instrument is a proposed template for the letter of rights.
I want to return to the question of the legal basis. In advance of the next meeting of the working group it is understood that the UK Presidency intends to refer the instrument to the Article 36 Committee to review the issue of the legal base. I have already mentioned that Ireland has concerns regarding the legal base. A number of other member states share such concerns.
EU competence to deal with criminal matters is governed by the provisions of Title VI of the EU treaty, that is, Articles 29 to 42, inclusive. That Title deals with police and judicial co-operation in criminal matters. These provisions create an objective of providing citizens with a high level of safety within an area of freedom, security and justice. The objective is to be achieved by preventing and combating crime, in particular terrorism, trafficking in people, offences against children, illicit drug trafficking, corruption and fraud. The means for achieving this objective include closer co-operation between judicial authorities and approximation where necessary of rules on criminal matters.
The Commission cites Article 31(1 )(c) of the Treaty on European Union as the legal basis for the present proposal. This article provides for competence to ensure compatibility in rules applicable in the member states, as may be necessary to improve judicial co-operation in criminal matters. Ireland has stressed the need to include the words “as may be necessary” and expects to see a demonstration of the supposed necessity for any measure relying on Article 31(1)(c). Ireland has taken the view that this sub-article is not a means of achieving the standardised approach advocated by the Commission; that its competence to ensure compatibility in rules in respect of co-operation between member states is limited to situations where member states have, of necessity, a relationship with each other in criminal matters such as, for example, in cases of cross-border or transnational crime. The framework decision proposals go much further and seek to introduce obligations which would apply internally in each member state. We believe this is outside the scope of Article 31 and breaches the principle of subsidiarity. It must be recognised that most crime is domestic or national in nature, having no cross-border implications. While Ireland has supported specific measures at EU level that facilitate the fight against cross-border crime, it believes such measures should be restricted to cases where the advantages of such an approach are clear for all to see.
Turning to the specific provisions, Ireland is concerned that the instrument proposes specific provisions which do not allow for a margin of flexibility and which could present confusion and difficulty as the jurisprudence of the member states and the European Court on Human Rights evolves. Ireland has noted that all EU member states are party to the European Convention on Human Rights, ECHR, and are required by Article 6 of the Treaty on European Union to respect the fundamental rights set out in the ECHR as they result from the constitutional traditions common to them. In summary, Ireland is of the opinion that there is already a common standard, that is, the ECHR, and that mutual trust, the stated objective of the instrument, can be achieved through compliance by all member states with the European Convention on Human Rights and its enforcement by the European Court of Human Rights.
In Ireland procedural rules must satisfy both the European Convention on Human Rights and the requirements of the Constitution. The impact of constitutional requirements on our body of procedural law ensures a high standard of rules with some unique characteristics, many elements of which have developed over time to create a system which achieves the highest standards of fairness and justice. Ireland's system of procedural law and practice applies many safeguards which may not be present to the same degree or are applied in a fundamentally different way in other juristictions. Ireland is, therefore, wary of the danger that common rules could too easily settle at a level well below those which currently apply in Ireland and would simply reflect the lowest common denominator.
As I have noted, this proposal is still under negotiation and as such, I do not wish to forecast the outcome of the negotiations. However, I hope I have been able to convey to the joint committee the view Ireland has taken so far, as well as the reasons for taking this view. I will be pleased to answer questions and provide whatever clarification I can on aspects committee members may wish to raise.
I thank Ms Meenan for her presentation.
I also thank her for her presentation. I note that she began by stating the Minister was not in favour of the Council framework decision on two grounds, the first of which is that he does not believe there is any EU competence under the treaty to allow the approximation of criminal procedural law, while the second is that it would not provide any additional safeguards.
If the current procedures are considered, to the ordinary lay person they look eminently reasonable and desirable. The first refers to the right to legal advice and representation which is already prescribed here. The second refers to the right to interpretation and translation facilities, in respect of which we have sometimes experienced difficulties in the sense that non-nationals complain that they are inadequate. I understood, however, that the Minister had made a commitment to the effect that he was in favour of providing such facilities.
The third matter referred to relates to the protection of potentially vulnerable persons who are later described as those who might have a disability owing to age, mental or physical condition. This is an area in which we are obliged to do something and it is eminently desirable that we should.
It is stated later in the document that the right to communication and consular assistance is a matter of subsidiarity that comes largely within domestic law. This is a matter that certainly does not come under domestic jurisdiction because it refers to what may happen outside the country. In the light of some recent high profile cases, consular assistance is at a premium for citizens. Some common protocols are certainly necessary in that respect.
Regarding a written letter of rights, I cannot see anybody disagreeing with this provision. It is stated there is no EU competence for having common procedural standards of this nature. What is wrong with having them? We can opt in if other countries believe it is desirable. There is not much sense in us being insular and saying we are better than the rest, that we have the Constitution and a standard of rights in domestic law and that it is up to the principle of subsidiarity to determine that right across the board in every country. Ireland is an island but that does not mean we have to be insular. We are part of the European Union. Why should there not be common basic standards relating to procedural rights agreed in a Council framework document that would apply to all countries, not just Ireland? Many of the remarks made seem to indicate a certain degree of insularism. That is not a desirable approach.
It may be stated all this would do is reflect the lowest common denominator. I do not believe so. This is the common approach we have had all along. There is no reason we cannot have added value in our country also. However, it is important to have a common agreed set of procedures that apply to all the countries of the European Union but it is difficult enough to get this. There is quite a difference in how the legal system operates in different countries. The common law system is very different from the system operating in many of the Napoleonic law countries. The rights, protections and safeguards we operate here should operate everywhere. I would have thought the better approach would be the more proactive approach that states we are proud of our procedural rights in criminal matters and would like to see operating in all countries in Europe at least a common standard set of minimum rights. I am aware this issue is being examined again under the British Presidency. When did Ms Meenan say it was coming up for discussion?
Ms Meenan
In a couple of weeks.
Perhaps that will be the time to come back to it. I am surprised the Minister is rejecting the proposal. Perhaps he will take on board some of the remarks being made here. I would like more information on why he feels he should reject it. What are the views of other countries to date? Is this a type of Schengen operation on our part whereby we can opt in or out? Have we decided to opt out in this case? Do we know whether the other countries in the European Union within the Schengen acquis are opting in? Let me restate the question: are the Schengen countries agreed on this approach or is it mainland Europe versus the Condor countries?
I will allow other members in first before asking Ms Meenan to reply.
Generally, I support Deputy Costello's remarks. The framework document outlines the basic rights which apply throughout the European Union, which is to be welcomed. The Minister may think the protection afforded under Irish law is greater in certain circumstances, but that is not a good argument for not accepting the recommendations which would provide a basic level of protection throughout the European Union. The Minister refers to it as the lowest common denominator, but that argument is not relevant because Irish law would always be taken into consideration. Recommendation No. 4 refers to the right to communication and consular assistance. Is it not time something was put in place to assure citizens of their rights in that context? I agree we must not take an insular approach, but look at the broader aspect and regularise certain aspects of law throughout the European Union. I, too, would like to see the Minister's detailed reasoning for rejecting this proposal.
I have a number of concerns in regard to the Minister's approach. While I understand to a degree the concerns expressed by him, I would like to know what he proposes to do to ensure the framework decision is strengthened rather than weakened as it proceeds through the process of negotiation. Has he sought to build alliances with other countries which would be looking for similar increases in protections as originally envisaged when this package was put together? This package was the carrot given to countries to allow the passage of the European arrest warrant. I remember making the argument that we should not proceed with the European arrest warrant until a series of measures and commitments were guaranteed. This proposal is only one version of these measures which have since been updated. What is of concern is that the exact wording of the measure we are discussing, although it was amended in October, is not yet available. This is not a reflection on the Department, but of the work rate of the European Union. As a minimum standard, it is a step forward, but we should be setting the bar higher. I do not think the Minister is correct when he states the European Convention on Human Rights provides adequate protection because there are measures within this framework which go beyond the convention, for example, the right to legal advice and assistance, as set out in the briefing document.
Can Ms Meenan give an indication of what will happen if the document is not signed off? Will it carry over to the next Presidency? Will Ireland have an opportunity to give a lead and demand that a stronger proposal be brought forward? If the framework decision is weakened in the process of negotiation, I agree with the Minister that it will not be worth signing up to.
While the aim is laudable, we have not gone as far as I would like and we must insist that pressure is brought to bear to ensure the highest possible standard within the European Union, rather than having the lowest common denominator being taken as the bar to be achieved by all other countries. The suggestion was made during our discussions on the European arrest warrant that necessary protections would arrive at a later date. However, what is before us does not include such protections.
I have a couple of points to make on this issue. I will not stray into political questions. I thank the officials for their submission.
I take a different view on this issue. It is not often I agree with the Minister but I share his concerns on this. The operation of safeguards in Ireland is a major issue of concern across all parties. On the broader issue, many of us are concerned about the direction of the EU, in particular in terms of legal and legislative areas and in the context of whether we are creating a super state. I do not need the EU or any other organisation to grant me my rights. This issue emerged during the referendum in France, with many people there sharing my concern and rejecting the constitution.
On international law, we should not be afraid to admit that we can work together and co-operate internationally, which we often do, without sticking our noses into every internal legal procedure in every EU or other country. I disagree with those who argue that those of us who advocate this line are insular in any way. I reject that argument in its entirety. I disagree with colleagues who suggest this.
We are dealing with the European Convention on Human Rights.
Deputy Finian McGrath, without interruption.
It is important that we nail this issue to the rack. I do not consider myself, based on my concerns about the direction of the EU, to be insular. It is important that we have respect for international law and that we work with the European Court of Human Rights on the many progressive policies awaiting implementation.
Articles 10 and 11 deal with important and relevant issues and make provision for the right to special attention for those who have difficulties in understanding or following proceedings owing to age, mental or physical condition. They also deal with medical and psychiatric assistance issues. These are important provisions for the many people with intellectual difficulties living in Ireland, the EU and internationally. Our prisons are full of people with intellectual disabilities. However, these articles deal adequately with the matter.
It is stated on page 7 of the submission that Ireland's system of procedural law practice applies many safeguards which may not be present to the same degree or which are applied in a fundamentally different way in other jurisdictions. Ireland is, therefore, wary of the dangers that common rules could too easily settle at a level well below those which currently apply here and would simply reflect what would be the lowest common denominator. I agree with those sentiments.
Ms Meenan
During all the negotiations on this issue, Ireland has endorsed its desire to heighten standards and safeguards for individuals. We have stated often that the Minister is not adverse to proposals that would do so. The difficulty with the proposal in question is the lack of confidence in it. The Minister's approach on the issue of a lack of confidence has been endorsed by the Attorney General and by a number of other member states. While it is granted that the member states endorsing the Minister's approach appear currently to be in a minority, the number of states which have a problem may become clearer at the next Article 36 meeting. It should be noted that we are not alone in having issues.
It was asked whether we should sign up to something which would at least represent a common standard, even if it were lower than the standard currently operated by Ireland. It would be a strange policy to sign up to something which should represent a minimum standard but which is below one's own minimum standard. We have common standards in the European Convention on Human Rights, the enforcement of which should be the focus of any further work on standards for individuals or suspects. It is possible to muddy the waters regarding the safeguards that are available to the suspects who will be the focus of procedures. On top of the standards applied in national law and those outlined in the Convention on Human Rights, a third instrument may be added which sets lower standards to those already in place and creates confusion for suspects. This is evident in the letter of rights in the concluding passages of the instrument which explains to suspects what their rights will be under the framework decision. In effect, a suspect will be told that his rights are lower than those applied currently. One would have to continue by discussing national standards.
The question was raised as to whether consideration of this matter will carry over into the next Presidency. It is expected, following Article 36, that the matter will be the subject of a Council meeting, possibly in December. It is proposed to bring the views of members of the joint committee to the Minister's attention in advance of that meeting.
While we do not seem to be denying any of the five rights outlined, including the right to legal advice, the matter of the European arrest warrant, to which Deputy Ó Snodaigh referred, remains outstanding. We have not prescribed procedures arising from the passing of the warrant, despite having agreed a common structure for European arrests. There is no procedural agreement on the operation of the warrant and it is not underpinned by rights or entitlement. While part of the framework document before us was to address the matter of the warrant, it remains in limbo. What will happen on this issue?
I have raised this issue on a number of occasions in the context of the Hague programme. The Minister said there would be a review of that programme because some aspects of it were tied to the EU constitution. The timeframe for the Hague programme was set to conclude at the end of this year. Does that allow for further time in the context of a review to strengthen the procedure under discussion?
The European lawyers group lobbied to ensure a guarantee of defence lawyer access to people facing criminal proceedings would form part of any common procedure but that has not been reflected in what has emerged.
Ms Meenan
While it might be necessary to communicate further with the joint committee on the arrest warrant, my understanding is that it specifies provisions to safeguard the individual. The document we are negotiating would apply across the board and one would not simply be picking out particular procedures. It is mentioned in the European arrest warrant in the context that these safeguards will apply to it. I will communicate with the joint committee on specific matters if members so wish.
We have been talking about lowering the bar. It is possible such situations could lower the bar for Ireland and other European countries. However, are there instances wherein we will be lifting the bar, particularly in some of the eastern European countries and those states that will potentially join the European Union? Should Ireland not be trying to ensure that those countries which do not operate the same protections as us reach at least a certain minimum standard?
Would members like clarification from Ms Meenan on the European arrest warrant issue?
I do not wish to delay proceedings but another issue arises in that regard. As with all legislation, each country is required to transpose the European framework documents into its domestic legislation while adhering to the principles. However, the European arrest warrant is being transposed by some countries in a manner, depending on whether it is retrospective or prospective and so on, that makes it difficult for people to be arrested. We need clarification on the procedural entitlements, protections and safeguards of the European arrest warrant. In addition, we need information on its implementation in various countries. There is not much sense in Ireland operating it if, as we found out recently when two members of the largest gang in the Czech Republic came to Ireland, we are unable to extradite people or, as happened in that instance, to honour a request from the Czech Republic to have them sent home. Those people continue to live in this country. We must also address how each country implements the European arrest warrant. I agree that the committee should request further briefing on this.
Is Ms Meenan prepared to send the briefing on to the committee?
Ms Meenan
Yes.
Perhaps Ms Meenan would reply to Deputy Gerard Murphy's question now.
Ms Meenan
All member states of the European Union signed up to the European convention on human rights. The Commission has prepared the framework decision in a manner which seeks to identify the rights that arise in that regard and to include them as common minimum standards. As member states should now be compliant with that convention, the document is not aspirational.
When speaking about the European convention on human rights, one is speaking about a theoretical situation. This, however, is very specific and is valuable because it assists those countries below the bar in terms of setting out what are the minimum standards they must achieve.
Are the provisions of the European Convention on Human Rights not specific?
The convention tends to be more theoretical and argumentative.
Mr. Tony McDermottroe
As Ms Meenan pointed out, the legal base will be discussed in detail at the article 36 committee meeting due to be held on 15 and 16 November. I expect that said meeting will set the focus for the framework decision and the direction it is likely to take. Following that meeting, we may be in a better position to update the committee on the direction of framework decision.
Following that meeting, Mr. McDermottroe will be able to inform the committee of the position at which time it can decide what it wishes to do. Is that agreed? Agreed.
That concludes our discussion on COM (2004) 328. Is it agreed to report to the Sub-Committee on European Scrutiny that this committee has considered the proposal and that it does not require further scrutiny at this stage? Agreed.
Proposal COM (2004) 334 was referred to the committee for consideration by the Sub-Committee on European Scrutiny. The matter for scrutiny is the Green Paper on the approximation and mutual recognition on enforcement of criminal sanctions in the European Union. The intention is to identify whether national differences in respect of penalties are an obstacle to achieving the objective of providing citizens with a high level of safety in an area of freedom, security and justice and whether they are obstacles to mutual recognition and judicial co-operation. The Department's briefing note raises significant issues of subsidiarity and proportionality and it is indicated that not much progress has been made with member states. Perhaps the officials could give the committee a brief update on the current position.
Ms Meenan
This note is quite lengthy. I will try to identify the implications and the current position.
On the implications for Ireland, in the absence of recommendations it cannot be said that the Green Paper presented any immediate implications for Ireland. However, if proposals were to emerge which are as extensive as the broad range of issues contained in the document, there could be wide-ranging implications for Ireland's criminal justice system, including the Judiciary, the Courts Service, the Director of Public Prosecutions and the Prison Service, and for the law and practice on imposition and enforcement of criminal penalties, both custodial and non-custodial. Clearly, therefore, the issues raised in the Green Paper required detailed consideration and examination, having particular regard to issues of EU competence and the principles of subsidiarity and proportionality. In accordance with such principles, the need for a common EU approach must be established. Evidence of such need is not provided in this paper. Rather, the purpose of the paper is to establish if a need exists. A detailed examination of the Green Paper was conducted by Department officials in conjunction with the Office of the Attorney General and other relevant parties.
Ireland's approach at the expert meeting in June 2004 was to seek to focus the debate on the fundamental questions which we considered needed to be answered before deciding to embark on a wide-ranging legislative programme in this area. We sought to steer discussion towards exploring where there might be a real need to develop EU approaches to penalties, bearing in mind the provisions of Article 29 of Treaty of the European Union that approximation should occur only where necessary. This involved highlighting: the limitations of treaty competence and irrelevance of proposed competence; the need for a robust approach to the principles of subsidiarity and proportionality; the need to explore fully and in real and practical terms where penalty levels may be an obstacle to judicial co-operation or mutual recognition and, in this respect, to encourage further study and exchange of information; if it is appropriate to do so, explore areas of penalties where mutual recognition and judicial co-operation can be developed with practical benefits — for example, in areas of crime having cross-border dimensions; the need to avoid unwarranted intrusion into national penal systems; and the need to recognise the differing approaches in different legal systems to the criminalisation and punishment of offences. At that meeting, there was little enthusiasm expressed by other member states on the Commission's proposals for work in this area. Most member states shared Ireland's view that the paper raised issues of subsidiarity and proportionality.
As I indicated, the Commission originally sought responses by 31 July 2004 but the date was extended by to mid-September 2004. It subsequently informed us that this timeframe could be further extended because a large number of responses were still awaited.
In the meantime, developments have largely overtaken this initiative. In particular, it has been understood for some time that the Commission will not proceed with a general proposal in this area. Following what was, for the most part, a critical response from member states to the Green Paper at the expert meeting held in June 2004, the Commission came to the conclusion that the only area where there was some acceptance of the need for a proposal was in EU development of the Council of Europe arrangements on transfer of sentenced persons. In this respect, Austria, Finland and Sweden developed an initiative for a framework decision on the European enforcement order and the transfer of sentenced persons between member states of the EU which is currently being negotiated in the working party on co-operation in criminal matters.
It will be recalled that the Green Paper relied on the Tampere Programme as the basis of its future work. The Tampere Programme has since been replaced by the Hague Programme on strengthening freedom, security and justice in the European Union, which was adopted in November 2004. The Hague Programme further clarifies that approximation of offences and sanctions should concern particularly serious crime with a cross-border dimension, with priority being given to areas of crime specifically mentioned in the treaties. This statement appears to suggest a narrower focus and therefore seems to point to a different approach from the more generalised tenor of the Green Paper. In this regard the action plan on the implementation of the Hague Programme contains reference to the following proposals: proposal on the approximation of sectoral criminal sanction, due in 2007; and the proposal on recognition and execution of alternative sanctions and on suspended sentences, due in 2007.
It was decided not to forward Ireland's detailed written response to the Green Paper to the Commission. We believe several other member states have taken a similar view. We await any further initiative from the Commission but, as indicated, we understand none is planned, in the short term at least.
I suppose this is not something we should discuss in any great detail. I am inclined to agree with the position adopted there. It is different from the last one about procedural rights and entitlements, which was important in the criminal area. This is more about mutual recognition, enforcement, penalties and so on. That is a particular area that applies more to subsidiarity.
The specific issue that is still ongoing is the one concerned with the transfer of sentenced prisoners. I have serious reservations about the proposal that this should be an enforced transfer. The repatriation system which has operated since 1995 between Ireland and Britain is based on voluntary agreement. If someone was sentenced in another country, he or she could only be transferred on foot of volunteering. The enforced transfer of prisoners from one jurisdiction to another would certainly give rise to problems.
It would give rise to problems in this country as well. There are in the region of 1,200 Irish born nationals serving time in Britain. Imagine what it would do to the Irish prison system if they were all sent back automatically or at the same time. There are quite a few Irish born prisoners in other countries as well. It would be interesting to get some statistics on that. In any event, on humanitarian grounds, many people spend most of their lives in particular countries and that is where the relationship contexts exist, as distinct from whatever familial origins they might have had in a particular country. We should leave this one on the long finger.
It appears that the only matter to arise from this is the instrument being proposed by Austria, Finland and Sweden, which relates to the transfer of prisoners. That was concerned with humanitarian grounds initially. It is difficult to see how forced repatriation of prisoners would help the humanitarian situation. In that context, the position of Ireland appears to be fine.
In terms of the first point, it is out of date because it only deals with the 15 countries of the EU. It is worrying that procedures and papers are coming before the committee which are obviously out of date. Is it that the bureaucracy just continues to work, rather than this matter being parked, killed off or whatever? From the briefing, there does not appear to be an appetite for it among the other member states, yet it seems it is being progressed. I do not know whether the Minister has the powers to insist that this does not re-emerge. If so, he should ensure that this document is not proceeded with and that the process begins anew from the start. If such a development were to arise, I would be opposed to it. Our independence in respect of sentencing is a matter with which, from the outset, we were told the European Union would not interfere.
This is one of the scrutiny items which was a hot potato when the Green Paper was published. However, as it has not gained momentum over the last 18 months, a different situation now applies. Effectively, the committee is noting it.
Have the proposals regarding the transfers of sentenced people gained any momentum?
Can Ms Meenan comment on whether the issue of the transfer of sentenced people has gained momentum?
Ms Meenan
That issue may be still under examination by the relevant committee. The officials present have not dealt with it. It is still under negotiation in the working group.
Will Ms Meenan provide the joint committee with a short note on the current position regarding the proposal?
Ms Meenan
I will.
That concludes the committee's discussion on proposal COM (2004) 334. Is it agreed to report to the Sub-Committee on European Scrutiny that this joint committee has considered the proposal and it does not require scrutiny at this stage? Agreed. I thank the officials for their attendance.
In respect of the Ludlow report, the draft minutes of the joint committee's meeting are in preparation and for the benefit of members I can confirm that the following decisions were taken. First, it was agreed by the committee to publish an interim report on the Ludlow murder, with the Barron report included as an appendix. Second, it was agreed to set up a sub-committee to consider the matter, comprising the following members: Deputies Ardagh, Costello, Hoctor, Finian McGrath, Gerard Murphy and Peter Power and Senator Jim Walsh. Third, it was agreed to engage Hugh Mohan SC with junior counsel to assist the joint committee and the sub-committee. Fourth, it was agreed to invite submissions from interested persons and bodies and to hold public hearings in January 2006, with a view to producing a final report by 31 March 2006. The committee secretariat will make the detailed arrangements for the first meeting of the sub-committee, which I hope will take place some time next week. Its purpose will be to draw up the sub-committee's terms of reference and to liaise with our senior counsel.
The joint committee adjourned at 10.30 a.m. sine die.