I welcome the Minister for Justice, Equality and Law Reform to this meeting, the purpose of which is to consider the draft EU Council framework decision which has been referred by both Houses to this committee. The purpose and objective of the decision is to establish the rules under which member states' law enforcement authorities effectively and expeditiously can exchange information on intelligence for the purposes of conducting crime or crime intelligence operations.
European Council Framework Decision: Motion.
I will begin by explaining the background to the context of the draft EU framework decision on simplifying the exchange of information and intelligence between the law enforcement authorities of the member states which the Council of Ministers hopes to adopt before the current Austrian Presidency ends on 30 June.
The declaration on combating terrorism adopted by the European Council after the Madrid bombings instructs the Council to examine measures aimed at simplifying the exchange of information and intelligence between the law enforcement agencies of the member states.
The Hague programme on strengthening freedom, security and justice in the European Union is the Union's general policy framework in the area of justice and home affairs. This multiannual programme was approved by the European Council at its meeting on 5 November 2004. The programme urges member states to pursue an innovative approach to the cross-border exchange of information. Specifically, it provides that with effect from 1 January 2008, the exchange of information should be governed by what is referred to as the "principle of availability". This means that, throughout the European Union, a law enforcement officer in one state who needs information in order to perform his duties can obtain this from another member state and the law enforcement agency in the other member state which holds this information will make it available for the stated purpose, taking into account the requirement of ongoing investigations in that state.
However, the Hague programme also sets important conditions with regard to the proposals to implement the principle of availability. It provides that exchanges of information may only take place so that legal tasks may be performed and that the integrity of data to be exchanged must be guaranteed. The Hague programme also emphasises the need to secure the confidentiality of data and respect of the principles of data protection.
The draft EU framework decision on simplifying the exchange of information and intelligence between the law enforcement authorities of the member states, which is an initiative of Sweden, is a first step in implementing the principle of availability. The purpose and objective of the draft framework decision is to establish the rules under which member states' law enforcement authorities effectively and expeditiously can exchange existing information for the purpose of conducting crime investigations or crime intelligence operations. The reference to existing information is important.
The draft framework decision does not impose any obligation on the part of the member states to gather and store information and intelligence for the purpose of providing it to the competent law enforcement authorities of other member states. It does not make us proxy investigators for other states. Nor does it impose any obligation to obtain any information or intelligence by means of coercive measures. It establishes a legal obligation to exchange existing information and intelligence for the purposes of criminal investigations and criminal intelligence operations and imposes deadlines for the transmission of such information and intelligence. There is a variety of such deadlines ranging between eight hours and 14 days depending on the urgency or otherwise of the request.
However, consistent with the conditions specified in the Hague programme relating to proposals to advance the principle of availability, there are also a number of important safeguards, including grounds for refusal of information and intelligence, in the draft framework decision. For example, a request for information may be refused where the provision of such information would be harmful to national security interests or the success of a current investigation or operation. A request may also be refused where it pertains to a minor offence, specifically an offence punishable by a term of imprisonment of one year or less under the law of the requested member state. This ensures it will not be used trivially.
Other safeguards include the requirement to guarantee the confidentiality of information and intelligence and the application of established data protection norms and standards. The common interest of the member states in fighting cross-border crime must strike the appropriate balance between law enforcement co-operation, on the one hand, and agreed principles and rules on data protection, fundamental freedoms, human rights and individual liberties, on the other. I believe the text of the draft framework decision achieves this objective.
The draft framework decision does not impinge on instruments of the European Union on mutual legal assistance or mutual recognition of decisions regarding criminal matters. Where a member state wishes to use information or intelligence received in accordance with the framework decision for evidential purposes, it must obtain the consent of the member state that provided the information or intelligence and, where necessary, through the use of instruments governing judicial co-operation between the member states. The draft framework decision is also without prejudice to bilateral or multilateral agreements or arrangements between member states and third countries.
Article 8 provides for the spontaneous exchange of information and intelligence, that is, without being requested, where there are factual reasons to believe that the information and intelligence could assist in the detection, prevention or investigation of offences. The modalities of such information exchange shall be regulated by the national law of the member state providing the information and the provision of information and intelligence shall be limited to what is deemed relevant and necessary for the successful detection, prevention or investigation of the crime or criminal activity in question.
Besides providing for obligatory exchange of information and intelligence between the law enforcement authorities of the member states, subject to the various safeguards I have outlined, the framework decision makes provision for a number of practical matters. For example, it provides that exchanges of information may take place via any existing channels for international law enforcement co-operation and states that the language used for the request and the exchange of information shall be the one applicable for the channel used. The draft framework decision also prescribes the forms to be used by law enforcement agencies, for example, when requesting, transmitting and refusing information.
The draft framework decision provides for obligatory exchange of information and intelligence between EU law enforcement authorities. This formalisation of the arrangements for exchange of information and intelligence will require domestic legislation. However, informal police-to-police co-operation has always been an implied function of the Garda Síochána and it is not expected that the formalisation of the existing arrangements will create any administrative difficulties for the Garda Síochána.
I hope I have been of assistance in outlining what we are dealing with today. The members of the committee will see how the European system works and does not work. It takes a lot of time to arrive at a framework decision of this kind and the European system is far more abstract and intellectual than ours. One must put down procedures for actions that would be conducted between Ireland and England by telephone.
I accept the last point raised by the Minister, having spent six or seven years attending meetings of the European Council. I am well aware of the tedious negotiations that can take place in order to arrive at an outcome.
Is this framework decision worth a pinch of salt? Or is it simply a case of putting something on paper as a post 9/11 measure? There is co-operation already between the Garda Síochána and the police force in the UK, and, indeed, with the PSNI. This co-operation has developed and strengthened in recent years and is working effectively. There is also co-operation between the Garda Síochána, Europol and Interpol. What will this framework decision amount to that we have not got already?
If this framework decision is of consequence and goes beyond formalising existing informal arrangements, what recourse is open to a member state that feels it has been denied information to which it is entitled? Perhaps it has been denied the information within a reasonable amount of time — like some Members of this House who seek information on a parliamentary question and are told they will receive it in due course only to find it is furnished after five months or so. If one waits long enough the matter will be dealt with separately. What action is open to a member state if its police force did not receive the requested information on time or at all or the quarry had flown by the time the information came? Is this framework decision going to improve the existing situation and is there any recourse open to member states that feel it is not working effectively?
This does have a value because some European countries have a very hidebound view on what their investigative authorities can and cannot do. They conduct investigations under quasi-judicial control and such quasi-judicial persons believe they are bound to keep all information within the house and not disclose it to third parties. They do not take the common law approach which is if it makes sense for a police force to share information they simply lift the telephone and do so. This framework decision removes from unwilling police forces the right to declare applicable information confidential. Now they are legally obliged to supply such information if the Garda Síochána needs it in Ireland.
Would the information be held by the investigating magistrate in a continental code country as opposed to the police force?
I do not want to generalise because I do not know — we are referring to 25 different legal systems. I know that, in some cases, search warrants and stake-outs, from a security point of view, have come under the control of magistrates in France. Sometimes, to our disappointment, the magistrate refuses to continue an operation and this does not fit our way of thinking, we do not live in that world. There are different control mechanisms and underlying concepts in different European countries on what constitutes a criminal investigation. They would regard our system as extremely lax and fluid. A criminal investigation is, effectively, what a garda says it is — a garda may ask any questions he or she wishes and only a superior officer, generally, will direct the criminal investigation. The Director of Public Prosecutions does not usually micro-manage a criminal investigation and nor do representatives of his office. I do not believe this draft framework decision will affect Ireland's willingness or capacity to co-operate with other countries, however the benefit to Ireland is that it may enable us, in certain circumstances, to point out the obligation to supply information to parties that would not have done so in the past.
There is no sanction or European Court of Justice mandatory injunction for failure to deliver information requested on foot of the draft framework decision. The value of the decision is that those countries that have strictly circumscribed, formal systems for handling information now have a legal basis on which to share it, whereas in the past they may not have. I would not get wildly overexcited about it as a proposition.
Although the draft framework decision arises in the wake of the Madrid bombings of 2004, I assume it does not apply only to terrorism.
No it does not.
We have limits on how long certain information can be stored. Is the Minister aware of the procedure in other countries? I would hate to think information given that was urgent at the time would emerge 25 years later to be used at that stage. Do we have any information on how long information will be stored or deemed relevant?
If intelligence is shared it is written down or kept in someone's head. It is wrong to expect it to be erased. Deputy Lynch is referring to DNA samples and so on.
I am not referring to DNA samples because I recognise their value in rape cases and the like — sometimes the necessary science is not available, but becomes available at a later stage. I will give an example of what I am referring to, a minor offence of the sort alluded to earlier by the Minister. While information will not be passed on about something like this, I have come across cases of men in their 40s refused a licence to drive a hackney cab because they were convicted of shoplifting at 14 years of age. I am referring to information being stored and used after a prolonged period.
I see the point the Deputy is making. However, data exchanged is to be subject to the national data protection provisions of the receiving member state where the information and intelligence shall be subject to the same data protection rules as that gathered by the receiving member state.
In Ireland we have the Official Secrets Act and there is a general confidentiality of official information. There is an offence under the new Garda Síochána Act of disclosing Garda information in a manner that would prejudice a case. However, we do not have the hidebound procedure that many European countries have and when we get information from them as a result of the draft framework decision the rules applying to the information will be the same as those governing information we gather ourselves.
The Minister has probably gathered that I only joined the committee yesterday.
I was wondering what the Deputy was doing here.
I welcome Deputy Lynch to the committee. I noticed on the order paper recently that she will be attending instead of Deputy Moynihan-Cronin. I thank Deputy Moynihan-Cronin for the work she has put into the committee over the years and welcome Deputy Lynch. We have worked together on the Disability Bill and other equality measures and I look forward to a fruitful working relationship.
Thank you, Chairman, I am sure we will change the world.
I agree with the Chairman's remarks.
Not my remarks, so the Minister is clearly not going to change the world.
Change some aspects of the world.
This draft framework decision was reached very quickly, by European standards. I wonder why there has not been the same urgency about the directive on the trafficking of women for the sex industry. Two groups met this committee on this topic yesterday and asked the same question.
That is a different issue, Chairman.
We will allow the Deputy a little latitude on her first day.
I have said in the House and I want to repeat here that there is a myth being propagated at the moment that it is not a serious offence to traffick women into Ireland for the purpose of prostitution — it is a serious offence. The categorisation of the offence is a different matter, but the activity itself is criminal. Different labels for a crime are sometimes useful. The public was lead to believe that there is a legal loophole allowing the trafficking of people into Ireland for prostitution. That is not true.
I suggest to the Minister it is not only members of the public who are under that illusion.
All I can say is that it is not true. We are bringing a sexual offences and trafficking Bill to Government shortly but that it will stop something that was previously lawful is a carefully created myth.
Why, then, has no one ever been charged for such an offence? The "Prime Time" documentary found clear evidence that it goes on.
I heard the deliberations of a select committee of the British Parliament on BBC Radio 4 taking testimony from people in Northern Ireland on this issue. It is not lawful to do the things that are being talked about. It is not lawful to pimp in Ireland or to bring people here against their wishes. As matters stand, one cannot take over people's lives and threaten violence against them for the purpose of prostitution in Ireland. Irish women have all of those protections and anybody in Ireland, whether he or she is foreign or Irish, has those protections also.
The issue being raised is whether we should formally put into our law a provision that if a person is trafficked and then comes to the attention of the authorities he or she is entitled to a form of immunity from deportation for a period of time, in other words, that he or she can go to the authorities in safety. That is one of the issues.
That is one issue but the other is the fact that it is happening and there is no investigation.
There is investigation.
We cannot go any further on that point.
It is investigated. I am aware of the operations that have been mounted against these clubs and brothels. I know what has gone on. The notion that nothing is happening is not true.
We have further hearings on that tomorrow morning and we will follow it up at that stage.
This is just one of many measures stemming from the European Union Hague programme. I have raised both here and in the Chamber our problems with the Hague programme and the fact that we have not had a proper debate on it. Since the rejection of the EU constitution there is a need to revisit the Hague programme because some of its elements were tied to the constitution, and that still has not come about. It has been acknowledged by the Minister on previous occasions, and by others, that there is a need for a debate on the implications of the Hague programme. If we continue to pass measures the programme will be passed fully before we get around to the debate, which will be after the fact. I have a problem with it on that basis alone. We must ensure that debate takes place and that the European Council of Ministers re-examines the Hague programme, its implications and where it now stands after the rejection of the EU constitution.
I want to outline a sequence of events regarding this particular measure because most people may not be aware of the sequence of events in trying to locate this document. Oireachtas approval is required under the Constitution before this framework decision is adopted and as the Minister said, the desire is that the text can be agreed at the joint Justice-Home Affairs Council on 1 and 2 June. That is the urgency of it.
The briefing note circulated by the Government Chief Whip last week and recirculated by the secretariat here did not include the identifying reference number for this proposal. My personal assistant was unable to identify the text in question last week. Deputy Ó Caoláin informed the Tánaiste of that and when he objected to the motion being sent to committee without debate last Thursday she said, in fairness, a debate would take place in the House when the matter came back from committee. On Monday, my personal assistant again tried to locate this mysterious document. She telephoned the European affairs committee and the justice secretariat who in turn contacted the Department of Justice, Equality and Law Reform which was unable to direct her to the text of the proposal at that stage. That was on Monday. Yesterday, she left messages with the Irish Permanent Representation to the EU and with the Minister's office seeking directions to the relevant text but neither returned her calls. At 12.30 p.m. yesterday, less than 24 hours before the scrutiny meeting was to take place, the Oireachtas justice committee secretariat circulated an e-mail identifying the framework decision to be scrutinised as 10215/04 and enclosed a PDF version of the document published in Brussels on 4 June 2004. Obviously, that is the wrong document because that is not what is before us. Later yesterday evening, my PA discerned, via inquiries to the Oireachtas Library, that the framework decision to be scrutinised this morning was 15482/05 published in Brussels on 8 December 2005. That document is not listed on the EU electronic legislative observatory. It was late last night, therefore, when the exact text we are debating today emerged, although that is not the fault of the secretariat. It was struggling to find it and as soon as it got access to it, it was e-mailed to members immediately but that was the sequence of events. The document we have, therefore, is different from the one identified earlier and it contains substantial differences. We have not had the proper time to give this matter the scrutiny it requires. It involves major changes and I believe it needs extra scrutiny.
The decision itself introduces an obligation to exchange information and intelligence where it is available. On this question the European data protection supervisor advised in March 2006 that sensitive data always require specific safeguards, that we must not underestimate the risk of misuse and should introduce this gradually and cautiously. The data protection supervisor advised further that it is essential that the availability principle is complemented by appropriate data protection rules in the field of justice and police co-operation.
Neither the Minister nor the other Ministers for justice are proceeding cautiously with this measure if they intend rushing it through by June. The opposite is the case. The Minister is rushing through the measure and denying us an opportunity of even the most basic democratic scrutiny. The outcome of this approach will mean more negative consequences for more people. We need only consider some of the problems we have experienced in this jurisdiction, for instance, the McBrearty family's attempts to travel to America and being denied a visa because they were listed on the Garda file as having a conviction. It was overturned some days later but that is the type of problem that can arise. In England, last Monday's The Guardian reported that 1,500 people were wrongly labelled as criminals because of errors in the bureau. Those are the types of problems we may face in the exchange of information, which does not have the support, scrutiny and human rights compliance that is required.
Two of the more contentious articles contained in the earlier versions are missing from the text laid before the House on 15 May; that is the document we found in the Library. I did not have enough time to go into major detail. One of them was Article 3, which appears to have been recast as Article 11. The original Article 3 outlined the offences to which the framework decision would apply. It stipulated that the decision would apply only to offences punishable by maximum terms of at least 12 months or more. That appears to have been changed and is now Article 11, which stipulates that a member state may refuse to provide the information on intelligence where the offence to which it pertains is punishable by one year imprisonment or less. That is my reading of it in the short time available to me. I was unable to get verification whether that is what happened.
Article 6, which outlined the categories of persons about whom information and intelligence can be exchanged, is missing also. Perhaps the Minister can tell us what happened to that problematic provision because when it was contained in the initial text of June 2004, which was originally circulated to committee members, it raised concerns among a number of groups. The Conference of European Data Protection Authorities, referring to that article in particular, stated:
Although data exchange in itself might be necessary in the fight against crime and terrorism, the range of offences covered by the Decision is broad and goes far beyond the relatively narrow range of offences covered by other EU instruments, such as the Europol Convention. The categories of person on whom data may be exchanged is also broad; Article 6(c) in particular is unclear and could result in widespread data exchange on individuals not suspected of any crime. There ought to be clear criteria for determining when personal data may be exchanged.
The draft Framework Decision introduces an obligation to exchange information when available. Given the potentially far-reaching implications of this development, we would stress the importance of examining whether the proposal is proportionate. The fight against terrorism is increasingly being used as the justification for new initiatives in this field, but many go far beyond this purpose. It is important to recognise that a derogation from fundamental rights that might be justified to tackle terrorism will not necessarily be justified where other criminal activity is concerned.
I have had limited time to examine the latest text. There are concerns which need to be addressed which were raised. Article 9 in the document is the proposed framework decision for data protection. It provides that established rules and data protection provided for when using communications channels referred to in Article 7(1) are applied. There is a problem here as there are differences between data protection rules applying to these channels of communications. For example, with the Schengen Agreement versus Europol, there has been no harmonisation.
Article 9 also provides that national data protection provisions of member states receiving the information and intelligence shall apply to that information and intelligence. Again, there is no harmonisation of the data protection provisions across member states. Furthermore, Article 9 contains no mention of the individual's rights. These include, for example, the right to be informed that the data from police and other sources has been given to another EU state's agency in certain cases, or perhaps in all cases. They also include the right to view and correct information which is held on a person, which is important.
If, for example, the 1,500 people wrongly labelled as criminals in Britain had such access in future, they could ensure that if such information had been passed to member states, it would be corrected. If it is corrected, the country which made the mistake in the first instance should ensure that the corrected version is forwarded to receiving states.
Article 9(3) provides that information and intelligence may be used solely for the purpose for which it is supplied, in accordance with the framework decision, or for preventing an immediate and serious threat to public security. We all know the latter provision has been used by the Minister in misusing information to which he has had access. For example, there was the leaking of information on Mr. Frank Connolly in order to destroy the Centre for Public Inquiry and the good name of Mr. Connolly himself.
There are also concerns regarding what it means for information and intelligence to be available. The Minister will no doubt argue that the framework would not apply to whether states engage in new investigations. However, Article 2(d) in defining the information and intelligence which is available and therefore must be exchanged, includes “any type of information or data which is held by public authorities or public entities and which is available to law enforcement authorities without the taking of coercive measures”.
Statewatch has highlighted differences between member states with regard to whether coercive measures are required to access information or intelligence. A report from the Luxembourg Presidency of the Council, dated 28 January 2005, states that there is a major problem with the proposal as in some member states, data is freely available or accessible to police forces, but it is not in others. Statewatch is concerned that there may be an attempt to lower the standards or authorisations in terms of data exchange.
Tony Bunyan, the editor of Statewatch, comments:
It is crucial that the powers of law enforcement agencies to exchange information and intelligence are subject to external control and authorisation. The alternative is that "self-regulation" — with all the dangers of abuse and misuse — will become the norm.
European data protection supervisors have argued that the scope of the available information covered by the decision should be limited to that already held by law enforcement agencies.
That would be quite a long objection. Even though my assistant and I were able to put together this contribution in a short period, we did not have enough time to fully scrutinise the draft framework decision because of the late arrival of the exact document. I have raised questions and I will oppose it at this stage. My attitude is that when the confusion was apparent, we should have at least put off the discussions today until people had the chance to look at the exact document.
It is for the joint committee to decide whether it has adequate notice of the document. I am not trying to push the committee to any decision which it does not want to make itself. If it agrees with Deputy Ó Snodaigh's point that he has not had sufficient time to consider the issue, I am happy for the matter to be postponed. I am not pushing anything.
The relevant official in my Department with me here knows nothing of the difficulty which Deputy Ó Snodaigh had in identifying the text. I find it difficult to understand how such difficulties could occur, without even a telephone call to my private secretary to sort the issue out. This shows how people operate in particular channels. They get into the complex world of intellectual chess playing, which is being demonstrated here.
The joint committee could not identify the document.
Deputy Ó Snodaigh has chosen this occasion to suggest that I have unfairly or wrongly damaged the reputation of Mr. Frank Connolly and the Centre for Public Inquiry. I put it on record that the Deputy is totally wrong in that respect. I have acted entirely lawfully and I have brought to the attention of relevant people in a relevant way the attempt——
Through journalists.
What is wrong with journalists?
It is not the appropriate way.
I highlighted the attempt by the Provisional movement——
The Garda Síochána, or the courts, would be an appropriate avenue.
I did not interrupt the Deputy. I highlighted the attempt by the Provisional movement, with which the Deputy is associated, to sell know-how to the narco-terrorists in Colombia in order to get American dollars to use in their political struggle in Ireland. That is what happened, and the Deputy knows this.
I do not.
The Deputy knows what happened. If the Deputy has never inquired in his own movement as to the truth of this matter, he is turning a blind eye to what occurred.
There is a concept of innocent until proven guilty. I am not turning a blind eye.
If the Deputy wishes to explain what he believes the Colombia three and the previous mission to Colombia were all about, we will hear it. The Deputy should explain if he wishes.
I have not inquired.
It is the usual old thing of turning a blind eye.
I am not turning a blind eye.
This is the sort of fraudulent hypocrisy that——
The Minister was an officer of the court.
I am not an officer of the court.
The Minister was an officer of the court and understood the principle of innocent until proven guilty. He has turned that principle on its head——
That is rubbish.
——in the Dáil and beyond. It is not rubbish.
May I finish? The Deputy has made his remarks.
The Minister chose to engage with me. He challenged me to answer him and I am doing so.
The record of this committee shows that when given an opportunity to explain the Colombia three visit and the previous visit, the Deputy has told the committee that he never made an inquiry into the matter.
I have taken——
If the Deputy wishes to take his stance on the matter, he should.
I have been informed. If the Minister does not shout me down I will respond.
I wished to say that I was struck by the fact that the Deputy contributed to a debate yesterday on drugs and their effect on this city, when the movement he was associated with tried to sell military knowledge to narco-terrorists, the Colombian FARC, for dollars which were generated by the cocaine trade. That is what it did, and it will not get away with it.
It did nothing of the sort.
The Deputy will not get away with the bluster. The Deputy's movement did this.
My party has had nothing to do——
The Deputy's movement is allied to the Irish Republican Army, and it did this. The Deputy should not kid himself.
I can have the argument all day, but the Minister still has not answered the points I made with regard to how articles are missing from this document.
Text was deleted.
The Deputy's MEP will be able to explain that where an article is deleted from a text, it is deleted. It happens during a process of negotiation.
The communication on the article has been poor. If there were 14 days in a week and 48 hours in a day it might have been better but the committee holds many meetings and it is regretted that the relevant documents have not been made available to members and interested parties.
I have no objection to the matter being delayed. If Deputy Ó Snodaigh wants further time to study this I am quite happy.
Does Deputy Ó Snodaigh wish to respond, or will I ask Senator Jim Walsh to speak?
I will respond to two points made by the Minister. I understand the way decisions are made but I asked a simple question on Article 6 and the Minister answered with his usual bluster. I also asked if Article 11 was a substitute for Article 3, because we do not have access to the minutes of justice and home affairs meetings and we do not know why Article 6 was dropped. If it was dropped then I am pleased because it involved one of the contentious issues. I was not making a politically motivated accusation that it was hidden away.
I have outlined my objections and I am glad the Minister is not in quite the rush to have this passed I presumed he was.
The Minister may not be in the same rush as the committee.
As a member of my party's Ard Chomhairle I am happy to say that Sinn Féin has nothing to do with the activities of the three men in Colombia.
How can the Deputy possibly say that when one of them was the party's permanent representative in Havana?
I have given my answer for the record. The Minister overturned established parliamentary practice by mentioning an individual's name and destroying an organisation that was making huge inroads into corruption.
I will not allow that issue to be discussed — it belongs to another forum. I invite Senator Jim Walsh to speak on the framework decision document.
I will ask three questions. The Minister said the framework decision represented a first step in implementing the principle of availability. Is there any information as to what the next steps will be?
A draft framework decision on the principle of availability is under discussion at the moment. It is in the very early stages of negotiation. There is a draft framework decision on data protection in the field of police and judicial co-operation, which is also at an early stage.
Perhaps I am reading the document incorrectly but it seems a minimalist approach in that it only applies to existing information, and there is no obligation on the Garda to gather information for an investigation. That would be desirable, though the Minister must take into account resources and the effect on the workload of police forces in the various jurisdictions. If gardaí had information relating to an Irish citizen involved in the drug trade, who had a temporary base in Puerto Banus, and wanted to know what contacts the person had there what co-operation would they receive?
My final question relates to a point made by Deputy Ó Snodaigh. The EU allows the free movement of people. The free flow of information and co-operation among police forces, if we are to be effective in fighting crime, must be corollaries of that. That may involve co-operation on miscarriages of justice. For example, there were a number of high profile miscarriages of justice in the neighbouring jurisdiction on which individual Members made representations and led campaigns. There should be fuller co-operation among police forces and the State of a citizen who is the victim of a suspected miscarriage of justice should have certain rights.
Perhaps the Attorney General could access relevant information on the prosecution of an offence in another jurisdiction. Has any consideration been given to that in the EU? Is it something we could pioneer through the EU? Now might be the time to do so because it will give comfort to citizens that we can act on their behalf in investigating police operations in the EU carried out under a different modus operandi.
I will add a question before the Minister responds, because I want to close the meeting. I refer to what Deputy Ó Snodaigh said on Articles 3 and 6. The original document from last June clearly set out what the offences were and, in Article 6, the people it covered. I cannot find the articles as easily in the December 2005 document. Why is there such obfuscation and confusion?
The Seanad has passed the Criminal Justice (Mutual Assistance) Bill 2005 and it seems to include a number of provisions similar to what is contained in the framework decision, such as on data protection. Is there an overlap? The framework document simplifies the exchange of information among enforcement bodies. What are the Minister's comments on that?
This is not concerned with mutual assistance nor obtaining evidence for use but deals purely with intelligence matters. It is less formal. Mutual assistance involves one member state asking another to use its judicial investigative process to establish facts on a court-driven basis. This is one step down in the process.
This decision is not a law which has direct effect. Member states are obliged to make provision in their law to give effect to it, to the extent that their law requires them to comply with the framework decision. Article 4A of the framework decision has been amended so that the offences to which it applies are effectively European arrest warrant-type offences. The list of the offences to which it applies are set out in a tickbox arrangement.
While the Chairman may believe the original text was clearer and easier to navigate, an argument with which I have some sympathy, the process of negotiation in Council meetings involves ongoing negotiations between the representatives of the member states and, from time to time, the withdrawal of a text by the Presidency in order to bounce it off one country and resubmit it. The draft framework decision process is not like taking a Bill in the House. Proposals are submitted and withdrawn based on certain countries indicating they can live with them. This is especially the case when unanimity is required and member states indicate that they cannot live with a proposal and must be accommodated. In such circumstances, an article will disappear. Germany might state, for example, that it requires article 3 to be completely recast. To achieve agreement a complex, organic process takes place between member states.
Is the substance of the initial proposal not lost?
No, but it is modified in accordance with the contribution of member states. With regard to Deputy Ó Snodaigh's argument that in some or perhaps all cases the individual concerned should have the right to know that a request has been made about him, let us be realistic. These matters relate to police investigation of serious crime. The notion that the individual in question would have to be notified that a request has been made for intelligence information about him or her makes a nonsense of the whole purpose of the measure. The proposal has been taken in the aftermath of the Madrid bombings to try to exchange information to detect crimes and prevent them from taking place. It is not an exercise in abstract legal theory whereby people might like to know what inquiries police are making about them.
In respect of Irish citizens, a member of the Garda will not telephone a person to inform him or her that the Garda is examining the possibility that he or she may have committed an offence. To use Senator Jim Walsh's phrase, if freedom of movement involves a commensurate capacity on the part of police forces to stop mobility making Europe a less safe place, we cannot have a nonsensical approach to investigations, whereby the subject of an investigation must be notified that it is commencing. Were we to go down that route, we would be better off not to have framework decisions and, instead, have policemen telephoning each other to make inquiries, an approach that would offer no protections or safeguards.
Sometimes we must get real about the purpose of these measures, which is to try to detect or prevent serious crimes. As we are dealing with people suspected of serious crime, we will not establish a system under which they must be alerted every time a police force is interested in them. This would result in the end of all European drug investigations.
The purpose of the framework decision is to enhance co-operation between police forces with a view to catching criminals.
I have reservations about the degree to which this formalises a process which should be effective and informal. However, for reasons I explained earlier some European states require a formal legal basis for the most obvious of matters, whereas the common law countries operate on the basis that people can do as they like unless it is unlawful. Many European states provide that people cannot take any action until they have first secured formal legal authority. This clash between two radically different philosophies is one of the problems we constantly find in justice and home affairs matters. In common law states a policeman may telephone whomever he wishes anywhere in the world to make an inquiry because no law precludes him from doing so. In many European states a policeman cannot make such a telephone call because no legal basis is provided for doing so. In such countries, a question would be asked as to the specific rule which states a policeman may telephone a foreign police service. It is a difference of mindsets and the document reflects the fact that Ireland is in a minority in Europe.
The Irish police force may telephone the French police force to obtain information but is the latter legally entitled to supply such information?
One must know French law inside out to answer that question.
British law would contain such a provision.
In Britain and Ireland two policemen may exchange information and the issue is not addressed in law. One cannot find a rule in the Law Library which provides that a policeman in Dublin may telephone a policeman in Wales asking for information concerning a man standing outside a bank in Dublin.
There is no law against taking such an action.
That is correct but in Europe many states operate on the basis that unless a rule is in place authorising an activity, it is not possible to engage in such activity.
What is the position regarding cases in which people are wrongly listed, for example, the 1,500 individuals who wrongly featured on a list in England? If wrong information is provided to a receiving state——
I listened carefully to the debate in England about that particular incident. People have been misidentified on 1,500 occasions for the purpose of checking. The authorities have, therefore, erred on the side of caution. When they receive a similar name or address to that of a criminal, they decide they have a problem with that person. They could have taken a different approach and decided that unless there is absolute conformity between two names, no one will be notified. In such circumstances, if a person manages to move, for example, from Flat B to Flat C in 48 Upper O'Connell Street, the authorities will not notify a school that the person has moved upstairs because the details could be wrong.
Politics are being played on this issue in a certain neighbouring jurisdiction. If the authorities err on the side of caution, they will not identify a person to a school even if his or her name coincides with that of a criminal and he or she comes from the same town as the criminal because they have not been satisfied the two names relate to the same individual as they do not share the same address. If a child is then abused, there will be screams and roars of outrage that the information was not provided.
Give and take is needed on this issue. Many people are thumping their chests and getting highly moralistic about so-called errors. I understand that in nearly all the cases in question the errors involved decisions to give information because it might be useful even though it was possibly erroneous.
While I accept errors will be made, I pointed out that if an error is identified at a later date, the police force which made it must be responsible for ensuring the corrected information is forwarded.
By definition, if the authorities count up the number of times they got it wrong they will become aware that they made the error and I presume they will do something about it.
Although action was taken in England, my point relates to cross-jurisdictional errors. The last thing on the mind of a person who provided erroneous information months or years previously will be the need to pass on new and correct information which comes to light. Many of those affected by the errors to which the Minister referred could not get jobs because they were wrongly identified as sex predators and so forth.
I presume if they were incorrectly identified, they found out fairly quickly and remedied the mistake. As has been pointed out, the alternative is a system in which someone decides that because the address is not the same in a case where two names and dates of birth match, a school will not be alerted, even if it appears that the person in question is likely to be a sex offender.
In that case, one alerts the police in order that officers will get the correct address.
On the possibility of miscarriages of justice occurring, this will depend on how far the pendulum swings in either direction. I come from the school of thought that believes the pendulum has swung too far towards the human rights of the individual and away from the common good. In that scenario, is a mechanism in place——
The world is not a perfect place. Incorrect information may have been given two years ago, or information which was correct at the time may turn out to be incorrect now. To take an example, the Supreme Court may strike down a section of an Act so a conviction no longer stands but it was valid at the time. However, the notion is unrealistic that there are innumerable gardaí who check all the time on the correctness of old information, or that there is a system to inform the police in Vienna when someone is acquitted on appeal and released on the basis of a miscarriage of justice. Let us be realistic about this. In the real world we do not have a situation where gardaí are sitting there with nothing better to do than hunt back over information they gave two or three years ago to check if it is right, and regularly go over old information to see if it should be updated. It is not going to happen.
It is not about the information. I am going beyond that issue. Obviously, the information we would supply, for example, to another jurisdiction for it to prosecute an Irish citizen who had committed a crime there, may be only a component of the overall case it will present to its courts, which will succeed in sending that person to jail. Apart from the information we supply, however, if it subsequently transpires there is serious suspicion that a miscarriage of justice took place, the State should have certain rights to access all the data and play a part in trying to correct it.
If the State realised that it had given wrong information, there should be some system to correct that. I agree with the Senator.
Not even if we had given wrong information. I am going beyond that. It is a fact that the person is a citizen of this country.
Yes. If the State is aware that there is incorrect information, then it should be a matter of policy to correct the situation, and it should be the duty of the receiving state to accept that correction. That is desirable but only in a handful of cases will people realise they gave such information three years ago and that it is wrong. It will be extremely rare because one cannot have a large number of gardaí sifting through old files to see if anything has changed.
There is a suggestion that if new information comes to light, the Garda will insert it into the relevant file. At that stage, if there is any kind of tracking it will be listed that details were sent to the Austrian police. The latest information will have to be sent to them in case it prejudices something else. It is a simple matter. If the Garda Síochána is not updating files after an acquittal then there is a serious problem. It is only at that stage that it will arise. Nobody is asking gardaí to trawl through thousands of files but they should update files on acquittal or when inputting new information which contradicts the existing data. At that stage, they could discern from a file that the information had been forwarded to Jersey, Austria or elsewhere.
Let us take an example of an Irish drug dealer who is acquitted of an offence on appeal but the Spanish police had been seeking information 18 months earlier about that person and five others who had been drinking regularly in a pub in Puerto Benus. There is no automatic system to unravel that easily. Somebody may not remember that a request was received from the Spanish police and it is unrealistic to expect that someone will spend two days searching through files. There are other things to be done with police time than sifting through old records to check if information is still correct. The Spanish police could check whether any of a given eight people is suspected of drugs offences in Ireland. Someone may say that four of them are.
That is a matter for a police code of practice.
There is good and bad suspicion. People may enter and leave suspect categories but it is wrong to imagine that these matters are like a telephone directory whose entries are checked every day. That is not the way policing works. Intelligence is accumulated but it is not constantly sifted through to ensure it is still right. Gardaí must try to deal with today's crime rather than working out whether their suspicions of three years ago were right or wrong. That is the point I am making.
That concludes our discussion on this subject. In accordance with Standing Orders, the joint committee will report back to Dáil Éireann and Seanad Éireann to the effect that it has completed its consideration of this motion. A formal message in the manner prescribed in Standing Orders is being sent separately to the Clerks of the Dáil and Seanad confirming that the joint committee has completed its consideration of the motion.
There was an interaction between Deputy Ó Caoláin and the Tánaiste recently in the Dáil on the Order of Business concerning a debate on the Hague Convention programme. The Tánaiste said there would be such a debate. I suggest we agree that there should be no further debate on this motion by Dáil Éireann and Seanad Éireann, and that the committee seeks a debate in the Houses on the Hague programme in line with the commitment given by the Tánaiste to Deputy Ó Caoláin.
I do not agree with that.
Deputy Ó Snodaigh is not a member of the committee.
I am substituting for Deputy Finian McGrath.
We have had no formal notification of that in this particular case. We have had such notification on the Criminal Justice Bill, but not on this motion. Does Deputy Ó Snodaigh have any formal note?
A text.
No.
There would be no problem from Deputy Finian McGrath, if that is acceptable.
It is not because it has not been put in place in time.
I understand but that is because of the lateness of this debate. I presumed the committee would have taken the view that because of the short notice of the exact text, it would have been adjourned to have a proper debate.
We have had three meetings of the joint committee.
I am not talking about the committee.
We want to facilitate Deputy Ó Snodaigh by putting the committee's weight behind the request for a debate on the Hague Convention.
I accept that.
I am doing that to facilitate him because of his continued participation in the events.
The Minister also agreed that there should be a debate on it with regard to the implications of the rejection of the European constitution.
There is a note on this subject which might be of interest to the committee. There is a Commission proposal to try to urge member states, notwithstanding the defeat of the European constitution in a number of countries, to change the legal basis of framework decisions in the justice and home affairs area on police and judicial co-operation from unanimity to QMV. That is coming up at a Council meeting in the relatively near future. I would have thought that, rather than the matter we are dealing with today, which is pretty small beer, if the House really wants to have a proper debate on a matter of real substance that is one which should be examined.
We would support that as well.
Is it agreed that there should be no further debate on this motion by Dáil Éireann and Seanad Éireann? Agreed. Is it also agreed that we put our weight behind seeking a debate in the Houses on the Hague programme?
And on what the Minister just said about the change in voting.
That is the proposed change from unanimity to QMV in justice and home affairs matters. Is that agreed? Agreed. Is the draft report agreed, subject to the insertion of details regarding attendance and contributors to the discussion. Agreed.
I thank the Minister and his officials for attending the joint committee. The meeting is adjourned until 9.30 a.m. tomorrow when the committee will meet two further groups concerning the trafficking of women into Ireland for sexual exploitation.