I welcome the opportunity to bring this Bill before the Seanad today. The Bill is an enabling measure to give the force of law in Ireland to two international conventions and three related instruments dealing with co-operation and mutual assistance for customs administrations within the European Union in the fight against organised crime, particularly in the areas of serious smuggling and drug trafficking. Ireland has already signed all these instruments subject to adoption and it is necessary to give them the force of law before we can proceed formally to adopt them.
International co-operation in customs matters is not something new. On its accession to the EEC in 1973, Ireland became a party to the Naples Convention which had been drawn up in 1967. That convention has proved to be an invaluable tool to the customs administrations in the European Union in dealing with cases involving smuggling of prohibited substances such as drugs, restricted goods such as guns and ammunition and dutiable goods such as alcohol and tobacco products. It has served us well over its lifetime and an illustration of its effectiveness can be seen over the past three years when close to 200 million illegal cigarettes have been seized by Irish customs based, in significant measure, on intelligence and information received under mutual assistance arrangements. The loss of this quantity of cigarettes to the criminal organisations involved both here in Ireland and overseas has had severe repercussions for their finances. These seizures have affected the level of supply to the marketplace and have also forced the criminals involved to alter their routes and methods accordingly.
The battle against smuggling has also been assisted by the creation in 1999 within the Office of the Revenue Commissioners of a central risk analysis unit which monitors commercial freight information in an effort to target bogus consignments, including illicit drugs, and contraband goods, concealed in regular traffic patterns. This unit collates and analyses current worldwide smuggling trends produced internationally with a view to identifying similar modus operandi being used in Ireland. I am pleased that this unit has made an immediate, important contribution to the fight against organised, international criminal activity since its inception which resulted in the seizure of large numbers of cigarettes in particular.
I have used the word "criminal" on a number of occasions already and I make no apology for that because the types of activity being perpetrated by international organisations involved in serious smuggling is highly detrimental to us all. In this regard, Members will join with me when I single out for particular mention the scourge of drugs. More than any other commodity, illicit drugs need to be stopped at our borders. The record of the customs service and the Garda Síochána in intercepting both drugs shipments and internal movements has been commendable in recent years and must be sustained. Following the signing of a memorandum of understanding between customs and the Garda Síochána in January 1996 there has been a co-ordinated approach to the fight against drugs and the criminals who are engaged in this evil trade. This memorandum has been strengthened further by the agreement of an operational protocol on day-to-day issues which was signed recently.
I am pleased to report that sustained progress continues to be made against the drug barons. Members will be aware that the Criminal Assets Bureau was set up in 1996 to identify, seize and investigate the assets of criminal activity. The bureau comprises officers drawn from the Garda Síochána, the Department of Social, Community and Family Affairs and the Office of the Revenue Commissioners. Not surprisingly, customs has had continued liaison with the Criminal Assets Bureau since its inception, involving both general contact on an informal basis and the formal exchange of information and intelligence, including details of drug and cash seizures made from individuals and the property of individuals involved or suspected to be involved in drug smuggling. Many of the successes of the Criminal Assets Bureau may be attributed to the quality of the information and intelligence provided by customs.
In addressing the drugs issue, I have concentrated on our efforts in the enforcement area which is of most relevance in the context of the Bill. However, Members will understand that effective enforcement measures are only one aspect of addressing the overall drugs problem facing society. The Bill is focused clearly on helping to limit the supply and availability of drugs. Members will appreciate that it is necessary to address the demand side of the drugs problem also. While I do not propose to go into this aspect in detail here, the consistent approach adopted to date in that context has been based on two key elements, reducing the number of people turning to drug misuse in the instance through information, education and prevention programmes and providing a range of treatment options for those addicted to drugs, the ultimate objective of which must be a return to a drugs free lifestyle. I am pleased the relevant State agencies, in partnership with many voluntary bodies, are actively involved in pursuing these twin objectives. I mention these activities merely to emphasise the importance which the Government attaches to adopting a broad, multi-disciplinary approach to the drugs problem, part of which involves the enactment of the Bill that is before the House.
I mentioned at the outset that this Bill is enabling legislation which must be enacted before this country can adopt two international conventions and three related instruments in the area of co-operation and mutual assistance between the customs administrations in the member states of the European Union. It will give the force of law in Ireland to these five instruments and it will be possible for Ireland to adopt them at European Union level only when it is enacted. Each member state of the Union is required to adopt these instruments in accordance with its own constitutional requirements. The five instruments involved are: the Convention on the use of Information Technology for Customs Purposes – the CIS convention; an agreement to enable certain member states to apply the CIS convention in an interim period until all are in a position to adopt it; a protocol to the CIS convention dealing with the role of the European Court of Justice; a second protocol to the CIS Convention to remedy two deficiencies identified in it; and the Convention on Mutual Assistance and Co-operation between Customs Administrations. The Bill is comparatively short and, for ease of reference, the five instruments are appended to it in both English and Irish, the texts being equally authentic in both languages.
I propose to give the background to the two conventions and related instruments before turning to the detail of the individual sections. The Convention on the use of Information Technology for Customs Purposes – the CIS convention – was signed by all member states on 26 July 1995 and provides for the establishment of a customs information system. The system comprises a computerised central database located in Brussels, with terminals in each member state linked to the central database, allowing for the rapid dissemination of information and intelligence about illegal movements over internal frontiers so that effective action can be taken by customs to combat all forms of smuggling. The central database will carry information on commodities, means of transport, businesses, persons, fraud trends and availability of expertise. By using the central database, customs administrations will be able to pass on information about suspect movements, carry out discreet surveillance or specific checks and report the results to any of or all the other customs administrations concerned.
Under the provisions of the CIS convention, only nominated national authorities are allowed access to and use of data on the central database. Such nominated national authorities must take appropriate measures to protect the security of data which they have accessed. The convention lays down detailed rules about what data may be included on the database and member states are required to have national law in place giving a level of protection to data which is at least equal to that in the 1981 Council of Europe Convention on Data Protection. The Data Protection Act, 1988, gave effect to that convention in Ireland so it will apply in respect of data held on the database. The Revenue Commissioners will fully respect their obligations under this Act. Data will only be included on the database on the basis of prior illegal activities or where there are real indications to suggest that the person concerned has committed, is in the act of committing, or will commit serious contraventions of national law.
In the CIS convention, there are specific limits to the data which may be included on the database and individuals have the right to access data about themselves as well as the right to have data checked, corrected or deleted and to have their rights vindicated in the courts. Members should note that personal data relating to such sensitive issues as racial origin, political opinion, religious or other beliefs and details of an individual's health or sexual life may not be included on the database. I assure Members that the database will not contain information on immigrants or their movements. Neither will it contain details on illegal trafficking of people, as these are matters which are outside the remit of customs. The CIS convention also provides for independent supervision of data to protect the rights of individuals. In Ireland, the data protection commissioner will perform this function.
The convention provides that each member state is responsible in accordance with its national law for any injury caused through the use of the database in its territory, including injury arising from inaccurate data supplied by another member state or data supplied by another member state which should not have been included on the database. Where injury is caused as a result of data provided by another member state, the apportionment of liability will be subject to agreement between the states concerned. The CIS convention also lays down an elaborate framework for the management and supervision of the database. I will provide more details about these management and supervisory structures later as I appreciate that Members of this House have a particular interest in this whole area of data protection. I mentioned that, in addition to the CIS convention itself, this Bill gives legal effect to an agreement on provisional application of the convention and two protocols to it. I will now elaborate on each of these three instruments.
The agreement on provisional application was signed on the same date as the convention itself and allows it to be applied by some but not all the member states in an interim period until such time as all are in a position to adopt it. This arrangement emerged from a recognition that certain member states would have to introduce legislation to give effect to certain provisions in the CIS convention before they could adopt it and that this could slow down the overall process. One particular issue that arose before the CIS convention was signed was whether the European Court of Justice should have power to interpret its provisions. There was no agreement between member states on this point at the time but a compromise was worked out subsequently, resulting in a protocol to the CIS convention being drawn up which enabled each member state to accept such a role for the court on an opt-in basis. Ireland signed the protocol, subject to adoption, on 29 November 1996. The protocol confers jurisdiction on the court to rule on dis putes between member states and between member states and the Commission regarding the application of the convention.
The protocol also confers jurisdiction on the court to interpret the convention but makes the application of this clause by national courts conditional on a declaration to be made at the time of signature, or at any time thereafter, to the effect that the member states will accept the court's jurisdiction to give preliminary rulings on the interpretation of the convention. In relation to the application of the CIS convention, member states which are prepared to accept the court's jurisdiction may specify whether courts or tribunals against whose decisions there is no judicial remedy under their national law, or all their national courts or tribunals, will be in a position to ask the court for preliminary rulings.
Ireland made a declaration at the time of signing the protocol to the effect that it would agree to give only those courts or tribunals against whose decisions there is no judicial remedy under national law the right to request a preliminary ruling on the interpretation of the CIS convention from the Court of Justice. In practice, this means that only the Supreme Court will be in a position to request a preliminary ruling. This reflected Ireland's position in relation to similar jurisdiction provisions in other EU conventions. The reason for adopting such an approach is the serious difficulty that could arise under our legal system if criminal trials had to be suspended for lengthy periods while rulings were obtained from the court.
In the course of preparing for the implementation of the provisions of the CIS convention, two deficiencies were identified in the convention. The first deficiency related to the items of information which could be placed on the database. It was discovered that member states' customs administrations could not include the registration number of the means of transport of smuggled goods on the database even though this additional data element could be very useful. The second deficiency related to the information which could be placed on the database in connection with money laundering. While the CIS convention provided for an exchange of information on money laundering specifically in connection with illicit international drug trafficking, it did not provide for exchanges of information on money laundering in connection with other types of crime which involved infringements of Union and national customs laws. In the interests of ensuring a comprehensive response to all types of smuggling, it was necessary to draw up a second protocol to remedy the two deficiencies. This was signed on 12 March 1999, subject to adoption.
The fifth instrument to which the Bill gives legal effect is the Convention on Mutual Assistance and Co-operation between Customs Administrations – the customs co-operation convention – signed by all member states on 18 December 1997, subject to adoption.
As I have mentioned already, on its accession to the EEC in 1973, Ireland became a party to the 1967 Naples Convention. Since then, that convention has been the principal legal instrument available for the provision of mutual assistance allowing customs administrations to exchange useful information and intelligence as well as assisting in the investigation of breaches of customs law. By the early 1990s, it became apparent to member states that the Naples convention was in need of revision so that customs administrations would have the means to tackle cross-border smuggling activities effectively in the context of a single market without internal frontiers. As a result, the updated customs co-operation convention, known informally as "Naples II", was concluded under Article K.3 of the Treaty on European Union. First and foremost, the customs co-operation convention updates provisions in the Naples convention. However, it also extends the scope of the Naples convention in several ways. In particular, it provides for special forms of co-operation between customs administrations not existing heretofore. I will come back to these forms of co-operation in greater detail shortly.
The customs co-operation convention provides that customs administrations may exchange information and intelligence on the basis of both formal and spontaneous requests. In conducting any such exchanges, the customs administrations must act in accordance with their national legislative powers in applying the provisions of the convention. Formal requests for assistance must be channelled through specific contact points in each member state and, in providing assistance in response to requests, which must be in writing, the requested administration must act as if the request had emanated from within its own country. All reasonable measures must be taken to comply with a request for assistance and, in certain circumstances, officials from the applicant administration may visit the offices of the requested administration to obtain further information. The requested administration can be asked to carry out surveillance on suspect persons and on means of transport, goods and places. While a representative of the applicant administration may be present as an observer in the course of inquiries carried out by the requested administration, provided both agree, only officers of the requested administration may conduct the actual inquiries. In certain cases, where it may not be practicable for operational reasons to make a formal request for assistance, a customs administration may make a spontaneous request and this must be acted on expeditiously. A spontaneous request will be followed up with a formal request in due course.
Member states which obtain information under the convention must treat it as confidential. Such information may only be used for the purposes specified in the convention but it can also be used as evidence in the receiving member state in accordance with national law. The convention has a standard of data protection which is similar to the CIS convention, which I have referred to in some detail.
I made a brief reference earlier to the special forms of co-operation provided for in the customs co-operation convention. These are significant provisions which enable customs administrations to engage in special forms of cross-border co-operation in respect of certain types of infringements such as cases involving illicit traffic in drugs, weapons, munitions and serious cases of smuggling of taxable goods. These special forms of co-operation are hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams.
However, the convention allows member states to opt out of applying some of these provisions, that is, hot pursuit, cross-border surveillance and covert investigations. The Government proposes to avail of the opt out provision and will make a declaration to this effect when Ireland lodges its instruments of adoption of the convention. Most of the other member states intend to apply the provisions and their position is facilitated by the fact that they are already party to the Schengen convention which contains similar arrangements for co-operation. Neither Ireland nor the UK are signatories to the Schengen convention. Notwithstanding this fact, there is provision in the Schengen Protocol to the Amsterdam Treaty for Ireland and the UK to identify those parts of the Schengen Acquis in which they wish to participate and to ask, at any time, to take part. While Ireland has now lodged an application to participate in selected provisions of Schengen, it is not proposed to participate in the arrangements for special co-operation.
The other provisions for special co-operation, that is, controlled delivery and joint special investigation teams, are mandatory. Members of this House may not be familiar with what these activities entail and I would like to take this opportunity to outline the position. Controlled delivery is an investigation technique in which consignments of prohibited or restricted goods are not seized at the frontier but are kept under surveillance until they reach their destination. This helps customs services to identify and prosecute organisations responsible for smuggling goods such as tobacco on which duty has not been paid, for example, rather than just seizing such products at the frontier.
The convention allows member states to set up, by mutual agreement, joint special investigation teams comprising officers from a number of member states with relevant specialist skills. These teams are aimed at improving the control and co-ordination of specific investigations relating to the prevention and detection of particular types of customs infringements. It is important to emphasise that they are purely investigatory and are not operational. They are intended to function only for specified periods and in relation to specific investigations.
An officer from the member state where the team is located will be in charge and that member state will make the necessary arrangements for the team to undertake its activities. All activities undertaken by such a team must be in accordance with the national law of the member state where these are being undertaken. The convention confers no additional powers of intervention on officers from one member state while they are acting in the territory of another, that is, they are subject to the national law of that member state. Thus, in the event of a joint special investigation team being established in Ireland, it will be headed by an Irish official and all of its activities will be subject to, and must be conducted in accordance with, Irish law.
The customs co-operation convention contains a specific provision enabling the European Court of Justice to rule on disputes between member states and between member states and the Commission regarding its application. In common with the protocol to the CIS Convention, it also confers jurisdiction on the court to interpret the convention and contains similar conditions regarding what national courts may seek by way of a preliminary ruling. Ireland will make a similar declaration in relation to this matter as for the CIS Convention for the same reasons that I outlined earlier.
Operation of the customs co-operation convention centres on requests for assistance. It is important to note that a request under the convention may be refused where it is considered to be prejudicial to public policy or other essential interests and rights of the member state concerned, particularly in the field of data protection, or where the action requested is disproportionate to the gravity of the presumed offence. In any case where a request is being refused, reasons must be given for such a refusal.
The final point that I wish to make regarding the five instruments relates to when they will come into force. In this regard both conventions are to enter into force 90 days after the last of the member states has adopted them. The agreement is to provisionally apply the CIS Convention to enter into force as and from the first day of the third month after the eighth member state has adopted it. Adoption of this agreement by those eight states will allow the convention to be applied provisionally subject to certain conditions specified in the agreement.
The agreement will cease to have effect when the convention enters into force. The current position is that eight member states have adopted the agreement and it has recently come into operation for those countries. As with the CIS Convention, both protocols are also to enter into force 90 days after the last of the member states has adopted them but cannot be implemented during the period of provisional application of that convention.
I will now deal with the provisions of the Bill. It is not my intention to spend an inordinate amount of time on the specific provisions since the explanatory memorandum contains a detailed commentary on the individual sections and their related provisions in the five instruments. As I have mentioned already, the approach being taken is to give the five instruments the force of law in the State. This is at the heart of the Bill and the relevant provision is contained in section 2.
Section 3 designates the Revenue Commissioners as the national authority for the purposes of Articles 7 and 8 of the CIS Convention, which deal with direct access to and use of the database, respectively. This means that, in Ireland, such access to and use of the database will be exercised by the Revenue Commissioners. The infrastructure for this system is already in place with over 20 terminals based at, among other locations, customs offices in ports and airports around the country.
Section 4 designates the Revenue Commissioners as the competent customs administration for the purposes of Article 10 of the CIS Convention. That article requires each member state to designate a competent customs administration to take responsibility for the correct operation of the database within the member state and to ensure compliance with the provisions of the convention.
Sections 5, 6 and 9 are concerned with data protection and I propose to elaborate on these as I am aware that some Members of the House have a special interest in this topic. The 1981 Council of Europe Convention on Data Protection is the standard of protection laid down in respect of automated data dealt with under the instruments to which the Bill is giving legal effect. In Ireland, the Data Protection Act, 1988, gives effect to the principles on data protection laid down in that convention and the main purpose of section 5 is to apply that Act to relevant provisions in the five instruments, subject to modification where necessary.
Section 6 designates the Data Protection Commissioner as the national supervisory authority for the purposes of the conventions so that he will be empowered to monitor implementation of the data protection provisions in respect of automated data. This role for the commissioner also extends to being a member of the joint supervisory authority, consisting of representatives from the respective national supervisory authorities, with responsibility for examining difficulties of application or interpretation. Members will note that there is a strong emphasis throughout on independent supervision of the database and its operation.
Section 9 creates an offence under the 1988 Act for the improper use of data on the database. Penalties for such offences are to be the same as those set out in section 31 of the 1988 Act, namely, a fine not exceeding £1,000, or 1,265, on summary conviction, or a fine not exceeding £50,000, or 63,485, on conviction on indictment. All of these sections deal only with data which is processed by automated means and I will shortly deal with the question of protecting non-automated, or manual, data in a few moments.
Section 7 deals with the special forms of co-operation set out in the customs co-operation convention. The convention provides for five special forms of co-operation. While two of these are mandatory, member states may decide to opt out of the others. Therefore, while the Bill will give the force of law to the convention, it is necessary to specify in it that the State shall not be bound by those provisions from which the opt out is being exercised.
I have stated already that we are opting out of the relevant special forms of co-operation. If those considerations giving rise to Ireland opting out were to change at any point in the future and it was desired to avail of these provisions, further legislation would be required to amend subsection (1) of this section. However, by providing in subsection (2) for possible opt in later by way of Government order, the necessity of having to enact amending legislation is avoided. A draft of any such order would have to be laid before each House of the Oireachtas and could not be made until a resolution approving of such draft had been passed by each House in accordance with the provisions of section 11 of the Bill.
Sections 8 and 11 contain provisions for the making of ministerial regulations which may appear to be necessary and expedient for carrying out the purposes of the Bill. As in the case of orders, a draft of any regulations under the Bill would also have to be laid before each House of the Oireachtas and could not be made until a resolution approving of such draft had been passed by each House. While the Bill does not specifically require the making of regulations in relation to any particular aspect of its provisions, it may be necessary at a later stage to consider the need for regulations if it emerges that there is a need to give effect to protection of personal data exchanged by manual means. Therefore, I am making specific provision for that purpose since, as I mentioned earlier, the existing national data protection legislation only applies to automated exchanges of data. Other than in the case of that specific issue, the purpose of these sections is merely to enable incidental requirements to be met from time to time.
Section 10 provides for the interpretation of both the CIS and customs co-operation conventions by the European Court of Justice by way of preliminary rulings and for judicial notice to be taken of such rulings. I have outlined how both the 1996 Protocol to the CIS Convention and the customs co-operation convention provide that member states may, by way of declaration, accept the jurisdiction of the European Court of Justice to give preliminary rulings on the interpretation of the conventions. As a further measure, those member states that accept the court's jurisdiction must declare whether they will allow all of their national courts or only those from whose decision there is no avenue of appeal to seek such preliminary rulings. At the time of signature of both instruments, Ireland decided on the latter option in both cases to ensure that there will be as little disruption as possible to the progress of a criminal trial once it has commenced.
The measures that are being given the force of law by this Bill are not new. For over 30 years, arrangements have been in place for customs administrations to assist and co-operate with each other in the ongoing fight against international criminals. We are building on that solid foundation with the measures which are covered by the Bill and I am confident that with these enhanced measures, the Revenue Commissioners will be even more successful than heretofore. Make no mistake, we have been successful in counteracting smuggling directly in Ireland and indirectly by helping customs administrations in other member states. However, as I have said before, this is an ongoing battle and we cannot bask in the successes of the past. We must focus resolutely on the future and put to good and effective use the enhanced provisions contained in the conventions and related instruments which are at the heart of this Bill. The fight against drugs, in particular, must be relentless and Members will agree that the measures being introduced by this Bill are very desirable in this regard. Both conventions and related instruments represent a comprehensive package of measures to enhance the present co-operation arrangements to assist customs administrations in preventing serious smuggling, illegal cross-frontier movement of illicit substances and products and generally in improving controls.
Members from all sides of this House will find this Bill acceptable. I shall give careful consideration to the points which Members may make and to any suggestions for amendments that may occur in the course of the debate. Members will note that my speech was somewhat lengthy but I hope they will appreciate that I wanted to give the fullest information possible. I, therefore, commend the Bill to the House.
