EU-US Agreement on Terrorist Finance Tracking Programme (SWIFT Agreement): Motion.

There are four motions to be dealt with today and a briefing note on each has been circulated to members. I propose we consider each motion in turn and we will begin with the first motion.

I thank the joint committee for taking this motion. The proposal is on the agenda for the Justice Ministers' Council meeting in Brussels next week and I hope members will support it. It is somewhat technical but members will have received briefing material on the interim agreement, so I will not delay them overly with the detail.

Following the terrorist attacks in the United States in September 2001, the United States Government, as part of its overall response, established the terrorist finance tracking programme in the Treasury Department. Its purpose is to use data from financial transactions to identify and track funds that may be used to commit terrorist acts or to support terrorist organisations. Terrorist funding is rarely done in a straightforward or transparent way — rather it can involve complex networks of financial transfers, often over periods of time, which are designed to be hard to spot and harder to follow.

The terrorist finance tracking programme has been judged to be an effective support to terrorist investigations and to identify and counter the sources of funding to terrorist organisations. SWIFT, the company that handles the majority of international interbank payment messaging services, currently holds EU payment messaging data in the United States and the European Union. The EU data are currently available to the United States Treasury through United States subpoenas. However, from December the EU data will no longer be held in the United States. To enable financial messaging data to be requested thereafter in appropriate cases, a specific agreement was necessary. The proposed agreement, the subject of the motions, sets out the circumstances in which the data can be requested and the procedures for so doing.

Following the conclusion of negotiations between the European Union and the United States on 4 November, the current text was agreed by EU ambassadors on 12 November. The Presidency of the Council will seek the adoption of the agreement at the JHA Council at the end of the month. This short timeframe arises for two reasons. First, SWIFT will no longer hold its EU payment messaging data in the United States. From next month the data will be held at SWIFT's data centre in the Netherlands and at a new data centre in Switzerland. The proposed agreement provides continuity in the requesting and provision of the data. Second, the current EU negotiating mandate and the decision-making procedures for the agreement will come to an end on 30 November. The Lisbon treaty arrangements are to come into force on 1 December. If agreement is not reached on 30 November, a new negotiating mandate and proposal for agreement will have to be tabled, leading to an ongoing break in the transfer of data until it is completed, which the European Union wishes to avoid. It is important for members to note that the current proposal, therefore, is for an interim agreement which will expire on 31 January 2011. That will allow a more permanent solution to be put in place during 2010. The European Commission will be asked to table a proposal without delay and it will be considered under the Lisbon treaty arrangements.

SWIFT has its headquarters in Belgium and holds the relevant data in the Netherlands; therefore, these two member states are the ones directly affected by the proposal. The proposed agreement provides for the designation of providers of financial messaging services which will be required to make relevant data available in accordance with a mutual legal assistance request. It is clear that SWIFT is a major provider of financial messaging services, but there may be others. It is considered prudent, therefore, to establish an agreement at EU level to ensure a co-ordinated EU approach to the matter. It is also possible that other data providers could be designated at some point in the future which may have implications for other member states.

In accordance with Article 1 of the proposed agreement, a request can only be made for data for the purpose of the prevention, investigation, detection or prosecution of terrorism or terrorist financing. Article 2 sets out the nature of the conduct that would be involved and is in line with the EU framework decision on terrorism. Article 3 provides for the designation of providers of financial messaging services which will be obliged to provide financial messaging data on foot of a mutual legal assistance request. Article 4 states requests for financial messaging data will be made in accordance with the European Union-United States mutual legal assistance agreement and the relevant bilateral MLA agreements between the United States and the European Union member states. The United States authorities will make a mutual legal assistance request to the Belgian or Dutch authorities, as appropriate, in accordance with the European Union-United States mutual legal assistance agreement, MLA, and the relevant national MLA agreements. These MLA agreements are due to enter into force on 1 February 2010.

From Ireland's perspective, employing the arrangements set out in the MLA agreement adds important safeguards to the process. If such a request is made to Ireland, it will have to conform to the strict requirements of Irish law, as set out in the Criminal Justice (Mutual Assistance) Act 2008 giving effect to the Ireland-United States MLA treaty. Detailed provisions are included in regard to requests which may be made for bank account and financial transaction information. It is important to emphasise that this will not be a one-way process. The MLA agreements allow requests to be made in both directions. Furthermore, under the proposed SWIFT agreement, the counter-terrorism authorities in EU member states will be able to receive information from the United States Treasury which may be relevant to the prevention, investigation, detection or prosecution of terrorism.

The proposed agreement also contains important data protection provisions. Accordingly, specific safeguards are included relating to the processing of the data requested, data security, restrictions on the transmission, sharing, use and storage of data. These are set out in Article 5. Searches of the data provided must be in connection with terrorism and narrowly focused. This rules out the possibility of data mining or trawling for information. The data provided cannot be altered or interconnected with other databases.

As a further protection, Article 11 sets out the right of an individual to seek assurance that his or her data protection rights have been respected under the agreement. The right to seek redress for the processing of personal data in breach of the agreement is also clearly stated in Article 11. The proposed agreement provides for a joint European Union-United States review to be carried out after a period of six months. This review will have a particular focus on data protection and privacy and on the proportionality of the data provided with regard to terrorism investigations.

I consider that this measure is a targeted and proportional tool in the overall international effort to counteract terrorism. The fight against terrorism is a key ongoing priority for the international community and Ireland supports the many actions being taken. We simply cannot afford to be complacent in facing down the threat from those forces that wish to undermine democracy and the rule of law. Identifying the money trail can be an essential aspect of investigating and prosecuting terrorism. It is also essential to work at cutting off or restricting the supply of funds to terrorists in order that their capacity to act can be weakened and, I hope, eliminated.

I acknowledge and accept what the Minister has said. What is the function of this committee in terms of its responsibility to debate European Union and non-European Union agreements vis-à-vis the Joint Committee on European Scrutiny? What are our obligations as a national Parliament under the terms of the Lisbon treaty? I assume the Minister will proceed from here to say his national Parliament has examined the matter, scrutinised and approved it. If we do not do so, I take it that the Minister does not have an opt-out. I wish to determine what the process is because I have a difficulty with the technical nature of these agreements. Will the Chairman indicate the international legal expertise which will be made available if they are to become a more regular feature of our committee work?

With hand on my heart I cannot say I have scrutinised the original documentation. Even if I did, it is somewhat technical. I am in the hands of the Minister, as the Parliament is in the hands of the Government. I am not sure that is the way it should be. There is a briefing note from the Government Whip which I appreciate, but it is a Government document. It comes from the Executive rather than the Legislature. That is the position in which I find myself. There are safeguards to the proposed agreement in that individuals may seek assurances, but what happens if an individual does not seek assurance or if he or she does not know?

Where does this agreement stand vis-à-vis our national data retention framework? How does it impact on the Bill going through the House? I welcome any agreement, the purpose of which is the investigation, prevention, detection or prosecution of terrorist offences and financing. Where stands the committee and the national Parliament in terms of their power to amend or reject what is, in effect, a proposed agreement between the European Union and the United States?

We have an opt-out clause under the Lisbon treaty in matters relating to criminal justice. I take it that data protection and access are viewed in the context of criminal justice, which would be covered by our justice and home affairs opt-out clause under the Lisbon treaty. If that is an issue, it means far greater emphasis must be placed on our role as a committee and a scrutinising body or the national Parliament that will give the green light to the Minister on what we may opt into under the Lisbon treaty. If that is the case, I find the process somewhat less than satisfactory, given the responsibility thrust upon me as a Member of Parliament and one of three Opposition members of the committee to approve, give limited approval to or reject the instrument. I do not have the competence to do so because I do not see anything in it that would put me of a mind to oppose it. While I welcome it, my welcome is weak.

I am in sympathy with the general thrust of what Deputy Flanagan said and do not want to reiterate his remarks. As I understand the matter – I may be entirely wrong – this is a US initiative to counter international terrorism. As such, we are automatically disposed towards accepting the Minister's explanation for it. It is not a reciprocal arrangement. It is an arrangement being entered into by the European Union with the United States and its scope is such that there is one-way traffic in terms of the provisions. The data protection commissioners in some member states voiced concerns about the implications of the measure. Like Deputy Flanagan, I am not competent enough to ascertain the extent to which the concerns of the commissioners have been responded to and whether the new position is more acceptable to them.

I presume there is an interim agreement that will only survive until early in 2011 because there are concerns about the steps being taken. There is a provision to review the agreement. What position did the Minister adopt at Brussels when the agreement was first put on the table? Were we one of the dissenting partners that resulted in some amelioration in the terms of the original instrument? What position did the Minister and his officials adopt?

If we or the Joint Committee on European Scrutiny were doing our job properly, we would make more progress on this matter. Despite the boasting of Members on public platforms about the number of committees of which they are members and the number of committee meetings they attend, when it comes to heavy lifting, I do not see much sign of the Government. During the past few years – I was absent for a while on other business – I did not regard the system as working very well. If it were, we would have the Data Protection Commissioner before the committee to outline his assessment of the measures we are approving. I would like to hear his view. Now that there is to be a 12 month period available to us because of the interim nature of the agreement, we might have the opportunity to hear from him.

Instinctively and automatically one tends to agree with the Minister and take his word on his assessment of the necessity for an instrument such as this. We live in a complicated world and international terrorism is a phenomenon that has had an impact on the lives of most citizens. If they only want to travel from Dublin Airport to Farranfore, they are impacted upon by recent developments in this regard. The automatic instinct to tug the forelock and sanction an agreement just because the United States desires it is one we follow too readily. If US officials had been doing their job as efficiently as they would have us believe, the incidents on 11 September 2001 might have been averted. It is a peculiar and murky world in which the rest of us are supposed to take a lot on good faith. When Mr. Blair appears before the latest inquiry on Iraq, we might learn a great deal more about this territory.

I really do not have the technical competence or political disposition to oppose a measure such as this. I recognise the validity of the argument that if one is to deal with international terrorism, one must follow the money trail. In so far as this instrument facilitates that objective, I have no objection, but I would like to know the concerns expressed by data protection commissioners. The agreement gives rise to issues of privacy. I had a glance at Article 11 and noted it was not readily intelligible. I do not know whether these documents are so inaccessible because they are translated from other languages. The Minister states he is satisfied the agreement adds important safeguards to the process. Will he outline the safeguards he is welcoming? Having outlined the caveats, I am happy to go along with the proposition.

I share the concerns of Deputies Flanagan and Rabbitte about the way in which this is presented to us. We are all disquieted by it and the opaque way in which we are given limited information on the nature of and background to the agreement. It is rather last-minute and hasty. The interim agreement is to be put to the European Council for adoption in five days on 30 November. One wonders why we did not see it before now if SWIFT will no longer be able to store its EU data in the United States from the start of December. I presume this was known about but we are not told why the data are being moved from the United States to the Netherlands and then to Switzerland. The context is missing.

We are told Ireland's position to date has been to support the interim agreement and a more permanent solution. However, there is no background information on why we reached that decision. We have an interest in SWIFT, given that our financial institutions are among the entities which own it. We lack detailed information on why we have taken certain positions and are concerned about the lack of reciprocity, as mentioned by other members. I refer to data about EU citizens being transferred to the United States. A paragraph states the proposed agreement will cover the reciprocal provision for Europol and EU member states of information from the United States, but the data will be very limited. We need to know a little more about the implications for individuals. Having said that, it is hard to oppose the agreement because we lack sufficient information.

A joint US-EU review of the agreement is to be carried out after six months. It would be useful if this committee were to be filled in at that point on the background and concerns raised about data protection and privacy, given that we cannot be filled in now. We may then have a better opportunity to scrutinise the agreement in a more meaningful way. I would put that proposal.

Perhaps that might gives us an opportunity to bring in the Data Protection Commissioner, as Deputy Rabbitte has suggested. I call on the Minister.

On the general point made by Deputy Charles Flanagan as to whether we might have more of these types of discussion in the committee, given that under the Lisbon treaty, we decided to opt in and out on a case-by-case basis, that will be the position and it will put greater onus on us. The fact we were able to get that undertaking under the Lisbon treaty because of Ireland's distinctive criminal legal process, similar to the UK, meant we could have an opt-in and opt-out arrangement on a case by case basis.

This is coming before the Council on 30 November because, as I explained earlier, following the implementation of the Lisbon treaty, in effect, on 1 December, there would be a break in this regard were it to be left over. That is why it is an interim agreement until 2011. In response to Senator Bacik on the suggestion this is a last minute issue, it was only finally agreed on 4 November, between the EU and the US, based on an EU negotiating mandate which was agreed on 29 July. Therefore, the current text was considered by EU ambassadors on 11 and 12 November, and as I have said, this is an interim arrangement to ensure that what has happened heretofore will be seamless as regards what is to occur in the future. There will be an opportunity for this committee to review the situation and there will be a further proposal. The European Commission has been asked to bring forward that new proposal in relation to this without delay, once this agreement is formally adopted.

The whole issue came to light in 2006 when the media revealed that the US Administration was accessing data held by the Belgian-based financial network, SWIFT, on European citizens, without their knowledge. Following pressure by the European Parliament, undertakings regarding privacy were given to ensure that data collected were used properly, purely for anti-terrorist purposes. That is the genesis surrounding this and it was agreed at EU level that we would endeavour to have an overall architecture which would facilitate this. As the committee knows, there are mutual legal agreements between the countries. This initiative facilitates a decision made by SWIFT to basically transfer EU data held in the US to Switzerland. A new data management architecture is being established, which will comprise a European zone, to include the EEA and Switzerland and a transatlantic zone. Inter-zone messaging data will be stored at both ends, so the current change in the SWIFT data architecture will not reduce access to data on an EU-US payment regime.

With regard to the issue of data protection, I very much welcome the fact that our Data Protection Commissioner should brief the committee in relation to this. We do not have any concerns on this because there is an undertaking in this agreement to adhere to the existing legal framework in relation to data protection. Article 5 of the agreement provides safeguards in this regard and basically, the US Treasury Department undertakes to identify all non-extracted data that are no longer necessary to combat terrorism or its financing. Where such data are identified procedures to delete them will commence within two months of the date in which they are so identified and should be completed as soon as possible thereafter, but in any event, not later than eight months after identification in the absence of extraordinary technological circumstances.

It also says that all non-extracted data received prior to 20 July 2007 shall be deleted not later than five years after that date. Again, all non-extracted data received on or after 20 July 2007 shall be deleted not later than five years from receipt. With regard to reciprocity, it is a two-way process in relation to information, but the EU does not currently have a finance tracking programme similar to that in the US. In the EU we rely on results from the US financial tracking programme. Article 7 of the agreement on the spontaneous provision of information, makes explicit provision for the US to feed back information to the EU member states' counter-terrorist authorities, where it may relate to the investigation or prosecution of terrorism and the transmitting of terrorist financing within the EU

However, I accept we are up against a timeline, and I have made that clear. These are just one or two proposals before the committee today, because we are up against a deadline of 1 December. This does not primarily affect Ireland, but rather Belgium and the Netherlands.

How does the Minister mean it does not affect Ireland? Just because the locus is not Ireland does not mean——

I accept that, but I am referring to the reason for this agreement. The system and infrastructure are already in place, but the purpose of the agreement is to facilitate the transfer of the data to the new centre in Switzerland. It still affects people in terms of the transfer of information, specifically in relation to terrorist issues.

I have only two points and I shall be brief, as I do not wish to delay the Minister in his work. I am not happy with the process here and I ask the Chairman to provide me with a briefing note on the jurisdiction of this committee for dealing with these matters, as well as that of the Joint Committee on European Scrutiny. Are we saying, in effect, that the Joint Committee on European Scrutiny will not engage in the scrutiny of any justice or home affairs issues and that these will actually come, automatically, before this committee? If that is the case, as it might well be, this will have some consequences for this committee and the manner in which we engage in our business. I ask the Chairman to provide me with a briefing note on that.

In terms of the jurisdiction of this committee, will the Minister be able to tell the meeting in Brussels or wherever next week that he has the backing of his national Parliament and that, in effect, Dáil Éireann has approved this measure as of 25 November? If that is the case I shall have to amplify my comment on the unsatisfactory nature of the issue, given that the approval of the national Parliament is, in effect, being made in a corner room on a wet afternoon in November, with very few people present.

With regard to the power of this committee, suppose for example, we were not particularly happy with this. I take it the committee does not have any power to amend the agreement or even to suggest to the Minister that some caveats might be entered into in terms of the consequences of this for our citizenry. I find the process less than satisfactory. Will the Minister not agree that the reason we are rushing this now, as adverted to by Senator Bacik, is that the pre-Lisbon treaty rules expire next week? If the Minister and his colleagues do not have this approved by next week, it automatically unravels, because after 1 December we play by new rules, the Lisbon treaty rules. It may not be in the interest of our European colleagues to have to commence this again. Is this not the case? The rules will change next week. If this matter is not approved by 30 November, we are back to square one under a new enhanced regulatory system, namely, the Lisbon treaty. A delay may in fact discommode the United States. Is that not the case?

It is for the Minister to respond to that.

This is no different from any other proposal that comes to this committee under a motion that is required under Article 29 of our Constitution, that is, to opt in or opt out. That is the case and has been the case for many years — as long as I have been coming to this committee — in that the prior approval of the Oireachtas has to be obtained before Ireland can give its assent at a European Council meeting. Despite all of the rhetoric in the run-up to the Lisbon treaty that the Oireachtas does not have a say with the other national parliaments, that has been the case and it will have even more resonance with the passing of the Lisbon treaty in that, in future, it will not be necessary simply that the Government will notify this committee or this Parliament but the Commission, under the Lisbon treaty, will now have an obligation to notify national parliaments of these types of motions.

The advice from the Attorney General is and has always been in regard to these issues that the prior approval of the Oireachtas has to be given. The difficulty for us in regard to this particular proposal, and also in regard to the Japanese agreement which we will discuss later, is that negotiations are ongoing. All of the contributing member states have agreed in this instance that there should be an interim arrangement and the substantive proposal can be discussed when the Commission brings forward a more substantive proposal, and that the national parliaments can under the Lisbon treaty have further discussion and examination of these proposals. I have no problem with that.

I will get back to the Deputy with regard to his query on where we stand vis-à-vis European scrutiny.