JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 26 Nov 2008

Justice and Home Affairs Council: Discussion with Minister for Justice, Equality and Law Reform.

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern)

I am grateful to the members for this opportunity to brief them on the matters for discussion tomorrow. I propose to concentrate on the main issues for Ireland. Members have been furnished with information notes on agenda items. I ask the committee to note that some of the items involved have been removed from the formal agenda for the Council by the French Presidency and will now be taken without debate.

While the agenda is quite lengthy, none of the items is anticipated to pose Ireland any significant difficulties. A number of items do not apply to Ireland at all. For organisational purposes, the Council will be divided into three sessions, which will deal with interior-home affairs matters, asylum-immigration and judicial co-operation items.

The Council will begin in EU formation and the first substantive task will be the presentation of a report from the Council's counter-terrorism co-ordinator and proposed Presidency conclusions on combating terrorism. Ireland is actively engaged in the ongoing work between member states to combat terrorism and can agree to the draft conclusions.

The next item will be the issue of European passenger name records, PNR. The Presidency is expected to report on the results of ongoing discussions to identify the essential features of a future European PNR system. The consultation process with key stakeholders is ongoing and the relevant work will be passed on to the incoming Czech Presidency in January for substantive discussion. It is understood that this item will be offered as an information point only at Council and that no decisions are to be taken at this stage.

PNR is clearly a sensitive and complex topic that raises important law enforcement and human rights issues. Any proposal adopted at EU level must achieve the correct balance between the relevant interests before any EU measure might be adopted. The members of the joint committee will also appreciate that a proposed EU framework decision on PNR has been the subject of a recent report from the Joint Committee on European Scrutiny. I have noted the concerns raised in that report and I will reflect on them further in light of the EU proposals.

The Council will then undertake a discussion on civil protection issues such as disaster management training, thereby strengthening the EU's emergency and crisis prevention and response capacity. Ireland supports the Presidency on this matter and the comprehensive approach it has proposed.

The next items take the form of information points. The Council will hear a report on the outcome of the second Euro-Africa Ministerial Conference on Migration and Development and will receive a briefing from the Presidency on a ministerial conference on integration held in Vichy on 3 and 4 November. Following from these information items, the Council will be asked to agree a set of draft Council conclusions on the implementation of a comprehensive approach to migration and on partnership with countries of origin and transit. The proposed conclusions underscore the need for a common policy framework in respect of migration and are supported by Ireland.

The next item on the agenda is an information point allowing the Commission to update the Council on a mission to Syria and Jordan to assess the situation for Iraqi refugees. The Presidency will invite the Council to adopt a set of related draft Council conclusions which Ireland can agree to. The next substantive point relates to the free movement of persons with specific reference to potential abuses within the current system. This issue is particularly relevant to concerns raised by the Metock case which has recently been the subject of a European Court of Justice ruling involving Ireland. In the course of the relevant Council discussion I expect that Ireland, with other member states, will take the opportunity to raise the implications of the Metock case.

Following this, there will be a discussion of a draft report to the Council on the establishment of a common frame of reference for European contract law. Ireland can accept the draft report. The Presidency will recommend to the Council that it approves this report, which Ireland supports, as the Council's position on the basic guidelines of the common frame of reference. Following endorsement by the Council, the report will be forwarded to the Commission and to the European Parliament.

The next item for discussion is the European e-justice action plan which the Justice and Home Affairs Council is invited to approve. Ireland supports the work which has been carried out to date and the future direction of the project as outlined in the plan for discussion. This item has effectively been agreed at official level and, therefore, no substantive debate is anticipated.

The Council will then seek agreement on a set of draft Council conclusions on the establishment of a network for legislative co-operation between the ministries with responsibility for justice of the member states of the European Union. This is a facilitative and non-contentious proposal. Ireland does not foresee any difficulty co-operating with this network for legislative purposes.

The next item on the agenda will be a proposal for a Council framework decision on the European supervision order in pre-trial procedures between member states. The purpose of the proposed framework decision is to enable EU citizens, where they are suspected of having committed a criminal offence in the territory of a member state in which they are not ordinarily resident, to return to their normal state of residence under a European supervision order in pre-trial procedures until their trial takes place, rather than remaining in pre-trial detention in another territory. Ireland is supportive of this measure and can accept the Presidency's proposal that the Council should signify political agreement to the proposed instrument.

The final substantive item on the agenda will seek the agreement of the Council to draft Council conclusions which the Presidency will table on child abduction alerts. The aim of these conclusions will be to work towards the development of an EU-wide initiative to facilitate child protection. Ireland welcomes any developments at EU level which are adopted by member states with the intention of protecting children from harm or exploitation.

A portion of the Council will be devoted to what is called the mixed committee, which is a formation of the Council in which the EU member states are joined by the non-EU Schengen states. Within that framework, the main focus of attention will be the development of the second generation of the Schengen information system, which is usually known as SIS II. The French Presidency is expected to provide a progress report on this project and it is not expected that it will be the subject of detailed or substantive discussion. The Schengen information system is a major database which is used for the exchange of material under the Schengen convention. Ireland has confirmed that it will participate in certain aspects of that convention on the basis of SIS II. The overall position is that, due to technical difficulties, SIS II has been delayed. At the Council, Ireland and other member states may take the opportunity to highlight the importance of progressing the work on SIS II.

Deputy Denis Naughten

I thank the Minister for his presentation. There is a substantive agenda for the meeting and if the Minister is not up to speed I am sure he will be by the time he gets to Brussels.

I refer to item 11, the proposal for a Council directive for a single application procedure for a single permit for third country nationals to reside and work within the territory of the member states. From the briefing material provided by the Department, I note that Ireland, with the UK, did not exercise the option to opt in under this proposal within the three-month period. A further option exists for Ireland to opt in after the instrument has been adopted. What was the reason for not opting in? The Minister, no more than the rest of us as public representatives, has had personal cases brought to his attention of third country nationals residing in this country, who have great difficulty moving throughout the EU. During debate on the Immigration, Residence and Protection Bill, I provided the Minister with the example of the spouse of an Irish citizen who must go through turmoil on leaving the State. In light of the fact that it has a direct impact on the attractiveness of Ireland for third country nationals with high skills, why did we not opt in at the initial stage?

Item 12, the proposal for the Council directive amending the directive on international protection, concerns the long-term residency directive. Ireland opted out at the time. Substantial elements of the directive are now being included in the Immigration Residence and Protection Bill. Regarding the directive, did it make provision for family reunification? That is an issue for third country nationals residing here. It has an impact on bringing highly skilled staff into the country, in the medical profession or any other. There is no statutory provision made in the Immigration Residence and Protection Bill for that.

The Minister referred to item 16 in respect of the free movement of persons, abuse and substantive problems.

Deputy Dermot Ahern

I am not working off the same list.

Deputy Denis Naughten

Sorry, I am referring to the list as I have it.

Deputy Dermot Ahern

I am told the Deputy has an earlier list.

Deputy Denis Naughten

I will read the title if that would help. The first item I referred to was the proposal for a Council directive on a single application procedure for a single permit for third country nationals to reside and work in the territory of a member state.

Deputy Dermot Ahern

I have that one.

Deputy Denis Naughten

That is item No. 11.

Deputy Dermot Ahern

I have it listed as item No. 8. Certain items have been taken off the agenda since Deputy Naughten received the information.

Deputy Denis Naughten

The second item I have is No. 12, a proposal for a Council directive amending Directive 2003/109/EC to extend the scope to beneficiaries of international protection. The third item to which I referred concerns the free movement of persons, abuses and substantive problems. That is still on the agenda because the Minister mentioned it. One of the issues up for discussion under that item is the Metock case. We did not get the opportunity to discuss this prior to the last Council meeting. It was on the agenda for the last Council meeting What reaction was there from other member states in respect of this decision? The Minister has made the point that it is not just Ireland that has concerns regarding this. Is there specific concern in Ireland about the Metock case due to the rules governing marriage here? Is it easier or more difficult in other member states to marry the intended spouse? Does this anomaly have a greater effect in Ireland than in other member states?

What is the reaction from other member states to facilitating an amendment to existing rules governing it? The Minister went into great detail on the implications of this during debate on the Immigration, Residence and Protection Bill. Approximately 4,600 cases fell into these criteria, of which between 1,000 and 1,600 would be deemed to be suspicious. In this context, has any progress been made with regard to amending the primary legislation, namely, the Civil Registration Act?

We all have concerns with regard to the fact that while it is quite easy under existing legislation in this jurisdiction to deport third country nationals who commit serious offences here after they have served their terms, and the Department has been proactive in dealing with such issues, there is a difficulty with regard to citizens of other EU member states. The Minister's predecessor stated that no citizen of another EU member state had been deported from this jurisdiction after committing a serious offence here.

What is the view at European level on the introduction of an amendment along these lines? The Minister's predecessor stated it would be some time before any such changes would happen. Is it still the Minister's view that persistent low level offending should be dealt with also? An example that comes to mind is a persistent offender under the road traffic Acts with regard to lack of tax or insurance or clocking up a substantial number of penalty points. It seems to be an anomaly within our legislation.

Will the Minister bring us up to speed on No. 23 on the list, namely, the draft Council conclusions on child abduction alerts? Will this include the 388 children who have gone missing from HSE accommodation? These are unaccompanied minors who presented in this State and subsequently disappeared after being placed in the care of the HSE by the immigration officials at the Department of Justice, Equality and Law Reform. In future will these children come under this scheme?

Deputy Dermot Ahern

With regard to a single permit for third country nationals to reside and work in the territory of member states and a common set of rights for third country workers, the position is that Ireland together with the UK did not opt into this proposal within the three-month period and this is not unusual. One must make a judgment as to whether one opts in at the start or waits for the proposal to be adopted and finalised. We decided as a matter of tactics to wait until the instrument was adopted after which it would be open for us to participate.

The directive has two main components. It provides a single procedure for third country nationals seeking to enter the territory of a member state to work. The decision as to whether a person is granted permission would remain a matter of national law. Members are aware that the Immigration, Residence and Protection Bill will introduce a single procedure.

The second part of the directive relates to granting certain rights to third country nationals who legally work in the territory of a member state. The principle of equal treatment with nationals is shared with the blue card directive which was adopted recently by the Council. The main rights are with regard to working conditions, pay, health, safety, trade union rights, education and vocational training, recognition of educational qualifications, social security provisions, payment of acquired pensions when moving to a third country, tax benefits and access to public goods. This exists only for information purposes at this stage and when it is finally adopted we will decide whether to opt in or opt out.

Deputy Denis Naughten

The Minister stated we did not opt in at the start for tactical reasons. The Irish Government has discretion and can opt in or opt out as it so wishes. I ask the Minister to correct me if I am wrong in my view that if we were not to opt in to this at a later stage it would put Ireland at a competitive disadvantage in attracting non-blue card skilled workers into this jurisdiction. Perhaps only a small number of people would fall into this category. However, internationally the skills pool is limited for certain technical jobs. If these do not fall into the blue card category would we be at competitive disadvantage if we were not part of the single application procedure? In light of this, what was the tactical advantage in not being part of the group that drafted the rules and regulations and opting in at a later stage when conditions have already been established by other member states?

Deputy Dermot Ahern

In a nutshell, we did not have enough time to evaluate this and by the time it is adopted we hope to be in a position to take account of what the UK does. This is the main reason we have not participated at this stage.

With regard to the proposal to extend the scope of the directive with regard to the beneficiaries of international protection, this is an area to which, in common with the UK, we have not opted in. We will introduce proposals in the Immigration, Residence and Protection Bill 2008 which will be similar to this. This particular proposal to the Council does not apply to Ireland but we will introduce these provisions for long-term residents in the Bill.

Deputy Denis Naughten

My question was whether the directive provides for family reunification.

Deputy Dermot Ahern

There is a separate directive on family reunification.

Deputy Denis Naughten

This directive does not provide for it.

Deputy Dermot Ahern

It does not refer to family reunification.

The Metock case is an area in which we have a particular interest because it occurred in Ireland. In the court case we were supported by interventions from ten member states, namely, the UK, the Netherlands, Germany, Austria, Denmark, Finland, the Czech Republic, Greece, Cyprus and Malta. I did not attend the last meeting at which this was discussed in substantial detail. At this meeting, five countries, namely, Germany, Denmark, Austria, the Czech Republic and Ireland called for an amendment to the directive. I understand a number of countries want more information on it.

I provided figures on this at a meeting of the Select Committee on Justice, Equality, Defence and Women's Rights on the Immigration, Residence and Protection Bill. These include extremely peculiar statistical matrimonial occurrences.

Deputy Denis Naughten

The world works in mysterious ways.

Deputy Dermot Ahern

These showed hundreds of Pakistanis were married to Latvians resident here and this is not the end of it. A substantial number of Bangladeshis were married to EU nationals here also. This is on the agenda for discussion at tomorrow's meeting. Our position is that the free movement directive was not intended to offer a way for people to use their presence in the EU to undermine the immigration laws we have here. We have received much support on this issue, particularly from the Danes, for whom it was a significant political issue this summer.

On the issue of criminality ——

Deputy Denis Naughten

Before the Minister moves on, is it the case that in the countries he has listed, ease of marriage is part of the reason for the problem which exists? Why is it seen to be a problem in some countries and not in others?

Deputy Dermot Ahern

It is not so much the ease of marriage but the prevalence within certain States. It depends on the make-up of people coming into the country. Again, the fact that the case only took place in the relatively recent past is important. When I gave the figures that pertain in Ireland to representatives from several member states they were astounded. They were amazed at the level of peculiarity of matrimonial tie-ups. It must be said that the Commission, on the face of it, may be reluctant to open up the free movement directive to scrutiny again but we obviously maintain that the directive was not designed to facilitate driving a coach and four through our immigration laws.

The issue of criminality will be the subject of some discussion tomorrow. We need to establish guidelines within the framework of the directive regarding the removal of EU citizens engaged in serious and persistent criminality. Obviously, we will work with the Commission on this matter. Several member states have concerns and it may very well be that at the end of the day we do not need an amendment, but we will work with the Commission in that respect.

Deputy Denis Naughten

When the Minister says there might not be need for an amendment, does he mean that if guidelines are agreed——

Deputy Dermot Ahern

It could be dealt with that way, yes.

Deputy Denis Naughten

It could be dealt with through guidelines and deportation could take place. Would it be envisaged to include, let us say, persistent offenders in terms of road traffic offences?

Deputy Dermot Ahern

No, it is envisaged that it would apply to serious offences.

Deputy Denis Naughten

Persistent, low level offending would not come into it. Is that correct? What would the Minister consider to be persistent, low level offending?

Deputy Dermot Ahern

Again, that would have to be covered in the guidelines.

On the issue of child abduction, the Deputy referred to persons in HSE care who have disappeared but in many cases, they may have been taken by family members who were resident in the State. That is not the issue here. What is of concern here is child abduction across member states. The discussion centres on the amber alert programme which operates on the basis of a voluntary partnership approach in the US. The aim is to replicate that programme in the EU. There are missing-child alert mechanisms in place in France and Greece and the Commission proposes that other member states adopt similar mechanisms. That is the mood behind what will be discussed tomorrow on that matter. The conclusions will not bind us, but we obviously support establishing mechanisms across frontiers to alert the authorities with regard children going missing.

Deputy Denis Naughten

On migrant children, how does the Minister know that some of them are not being moved across frontiers? We know that in a certain number of child abductions, the children are snatched by family members. The former MEP, Ms Mary Banotti has highlighted cases where children were abducted by family members and moved outside the EU. In terms of the abduction of a child by a family member in Ireland and the disappearance of children from the care of the HSE, how could the latter children not be included in this provision, given that their circumstances are pretty similar in that they have disappeared from the care of their guardian? Why would they not fall under the same category? It seems to me unaccompanied minors, usually from third countries, disappearing from State-run accommodation is a far greater problem in the EU than child abduction.

Deputy Dermot Ahern

The issue here is child abduction across member state frontiers. The aim is to have similar alert systems across the EU. We are already committed to examining the need for a missing persons' unit within the Garda Síochána and for the setting up of an amber alert system similar to that operating in the US. That would comply with the conclusions on this issue which, as I have said, are not binding. We are making an effort to have a common missing child alert system across the EU.

Deputy Denis Naughten

The Welsh Assembly report indicates that many children who came into the EU through Irish ports have subsequently ended up in the United Kingdom. Whether such children were in HSE accommodation at any stage is very difficult to determine. However, there is anecdotal evidence to suggest that some children who were in the care of the HSE left our jurisdiction in a manner which suggests the commission of a cross-border offence.

Deputy Dermot Ahern

That is what this is designed to assist with.

Deputy Denis Naughten

Would such children be included in it?

Deputy Dermot Ahern

That is not what this issue is about, primarily. It is about putting mechanisms in place within each member state. It is not exactly the same. The aim is to have, in effect, an amber alert system in each member state to try to alert countries where children are going across the border in abduction situations.

Deputy Denis Naughten

Yes, but one does not know at the time that children are going across the border. If one did, one would stop them. Is it not the case that when there is a suspicion that children who have gone missing could have been abducted and transported across borders, the amber alert process kicks in? Surely, if it kicks in for Irish citizens, it should also kick in for unaccompanied minors from third countries.

Deputy Dermot Ahern

It kicks in for any child, I would have thought.

Deputy Denis Naughten

Therefore, it applies across the board.

Deputy Dermot Ahern

Yes.

Deputy Charles Flanagan

Can I take it, on the basis——

Chairman

Deputy Flanagan, I must let Deputy Mulcahy come in first.

Deputy Michael Mulcahy

I thank the Chairman. I thank the Minister and his officials for the briefing they have provided. I am a relatively new member of this committee. It should be noted that this is a very useful exercise in EU scrutiny. I am not sure that every other European Parliament has as rigorous a scrutiny process as this. It is very healthy and very democratic. If the Lisbon treaty was now in force, we would be in a position as members of the national Parliament to raise yellow or orange cards if we did not agree with a particular measure, making the process even more democratic. However, that is merely an aside for another day.

On the common frame of reference for European contract law, does that mean we will lose our own common law contract law and be sucked into the code of Napoleon? I am also concerned about the issue of the European supervision order. As I understand it, this is to cover situations where a citizen of another EU member state commits a crime here, for example, and then goes back to his or her member state of origin for certain pre-trial procedures. I am not sure where the trial takes place. Is it the case that the trial will take place in Ireland? If so, why do the pre-trial procedures not take place here too? If, for example, a French person committed a murder in Ireland, I would not favour that person returning to France before his or her trial took place. I would like to know what exactly is intended with this provision, therefore.

Deputy Dermot Ahern

This proposal does not change our contract law. The Deputy made a point about EU scrutiny. I am not sure if any my predecessors have addressed this committee in advance of Council meetings but such has been my practice.

Chairman

I understand it was also the practice of the Minister for Justice, Equality and Law Reform in the last Dáil.

Deputy Dermot Ahern

I encourage all Ministers to address their respective committees before they go to Brussels. In regard to the draft report to the Council on contract law, our situation is not changed. The CFR comprises three parts, namely, a definition of key concepts of contract law, the common fundamental principles of contract law and model rules applying those definitions and principles. The Commission has not tabled specific proposals.

Deputy Michael Mulcahy

The Minister will be aware that we have precedents on contract law which date back hundreds of years. I am concerned that by co-operating on this at EU level we will whitewash these precedents.

Deputy Dermot Ahern

This proposal attempts to introduce a common frame of reference for European contract law at a global level. It does not replace the existing law in member states. Our laws are somewhat different from those of mainland Europe but we are not being asked to change them.

The pre-trial procedures are intended to allow supervision of a person who commits a crime in a member state of which he or she is not a resident until the trial takes place rather than keeping him or her in pre-trial detention. This measure would be implemented in a somewhat similar manner to the European arrest warrant procedures in terms of having a central authority in each member state and determining whether the respective state is willing to accept the person concerned. It is not compulsory but is intended to facilitate the better administration of cases as they arise in various states. Discussions are at a preliminary stage. Hungary and Spain have entered scrutiny reservations but all other states have lifted theirs. The UK has indicated it will lift its reservations presently. The proposal is undergoing parliamentary scrutiny in Ireland. It is only a framework decision to allow this to take place if member states wish to participate.

Deputy Michael Mulcahy

I ask for further clarification on pre-trial procedures, which in Ireland involve serving a book of evidence in a District Court and presenting a book of evidence. Will a person who commits a murder in Ireland undergo pre-trial procedures in Spain before returning here for trial?

Deputy Dermot Ahern

It provides that during the pre-trial period while a person is on bail, he or she can return to the member state from whence he or she came.

Deputy Michael Mulcahy

Does it require detention?

Deputy Dermot Ahern

No, it provides for supervision orders rather than detention.

Deputy Michael Mulcahy

The pre-trial will take place in the member state in which the crime was committed.

Deputy Dermot Ahern

Yes.

Deputy Michael Mulcahy

Am I correct to state that if an Irish judge refuses bail this provision would not apply?

Deputy Dermot Ahern

That is correct.

Chairman

I thank the Minister for briefing the committee. It was a worthwhile exercise and we wish him well at tomorrow's Council meeting.