Vol. 198 No. 8
I move:
That Seanad Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council Decision on the use of information technology for customs purposes,
a copy of which proposed measure was laid before Seanad Éireann on 25th November, 2009."
This motion deals with the Council decision on the use of information technology for customs purposes. The customs information system, CIS, a computerised network database, which is the subject of the proposed European Council decision, is one of the tools used by customs services in the member states of the European Union to co-operate with each other in combating smuggling and customs fraud.
International co-operation between customs administrations is not new. On our accession to the EEC in 1973, Ireland became party to the Naples Convention that was drawn up in 1967. That convention proved invaluable to customs administrations in what is now the EU, in dealing with cases involving smuggling of prohibited substances, including drugs, restricted goods, such as guns and ammunition, and dutiable goods, such as alcohol and tobacco products. Since then, the Irish Customs and Excise has been continually introducing new tools to combat smuggling, including the introduction of a scanner and the customs cutter, continually updating the legal bases for co-operation with colleagues in other member states as the need arose. A second scanner and cutter will also be operational by the end of this year.
The success of this co-operation and sharing of intelligence can be demonstrated by the fact that seizures of cigarettes and roll your-own tobacco have more than doubled by value since 2007. Some 74.5 million cigarettes were seized in 2007, and 135 million in 2008. In addition, customs seized over 1,500 kg of roll-your-own tobacco in 2007 and almost 3,100 kg in 2008. During the period January-October 2009, over 200 million cigarettes have been seized, with a retail value of approximately €80.5 million. This includes the recent seizure on 27 October of some 120 million cigarettes at Greenore Port, which was valued at €50 million.
Alcohol recovered increased from 139 seizures in 2007 to 282 in 2008. This involved the seizure of over 22,800 litres of beer, wine and spirits in 2007, and more than 83,000 litres in 2008. During the period January-October 2009, there were 319 seizures of alcohol, totalling almost 90,000 litres of beer, wine and spirits.
Drug seizures in 2008 included the seizure of more than 1.6 metric tonnes of cocaine and heroin. One of the largest cocaine seizures in the history of the State, with an estimated street value of €105 million, took place in November 2008. Other large seizures during 2008 included two consignments of cannabis, valued at €18 million, in Rosslare; and 10 kg of heroin valued at €2 million. The overall street value for drugs seized in 2008 was over €152 million. During the period January-October 2009, drugs with a street value of €42 million were seized.
Cash seizures in 2008, representing the proceeds of crime, amounted to €3.5 million, seven times more than customs seized in 2007. During the period January-October 2009, the net amount of cash seized amounted to €1 million. Most of the large seizures were made as a result of intelligence. This is the strongest indication of the increased effectiveness of customs' intelligence capability and of good qualify inter-agency co-operation both in Ireland and internationally. However, we cannot be complacent. There are the potential losses to the Exchequer of such activities, the effect on legitimate business, and the impact of drug abuse on our communities.
Those engaged in smuggling activities are becoming more sophisticated in their approach and more ruthless in their determination. One of the initiatives taken at EU level to combat smuggling was the development of the customs information system. On completion of the Single Market in 1993, the European Union decided to build an information system specifically for customs, aimed at ensuring customs officers had immediate access to information on suspicious border crossings throughout the Union. The reasons for setting up this system which are equally valid today were: the abolition of normal customs controls at internal EU frontiers on completion of the Single Market and the effect this could have on the ability of customs services to combat smuggling, including drug trafficking; the clear need to enhance existing arrangements for co-operation between the customs services in the member states and to improve the effectiveness of customs controls, especially at the external frontiers of the Union; the success of, and improvements in, technology had demonstrated the benefits of fully using the potential of such technology for the rapid dissemination of information between customs offices across the Union; and the increased sophistication of the techniques used by those involved in transnational organised crime.
The aim of this EU customs information system is to enable national customs services to exchange and disseminate information on smuggling activities and requests for action. Since information can be accessed quickly and legitimate trade can be facilitated, while customs and police officers can act effectively on the basis of information from other customs services on possible illegal activities. Its purpose is to assist in preventing, investigating and prosecuting serious contraventions of customs law.
The system is a computerised network comprising the central database in Brussels, with terminals in all the member states linked with the database. The CIS consists of two parts to the central database, each of which is similar in structure. They are underpinned by two separate legal bases to cover both the First Pillar, dealing with the three Communities of the European Community, the European Atomic Energy Community or EURATOM and the former European Coal and Steel Community, ECSC, as well as the Third Pillar, dealing with police and judicial co-operation in criminal matters.
The legal bases are a Community regulation dealing with First Pillar customs fraud, namely, Regulation (EC) No. 515/97, which was amended most recently in 2008 by Regulation (EC) No. 766/08, and a convention dating from 1995 which also has a number of subsequent associated protocols covering Third Pillar customs related matters. In each of the databases the main categories of information collected relate to commodities, means of transport, businesses, persons and fraud trends. Direct access to data is reserved exclusively for the national authorities designated by each member state. Revenue has been designated as the national authority for Ireland. Within Revenue, there are 17 terminals located around the country, primarily at ports and airports, with between two and five users at each location authorised both to interrogate the system and input cases.
The Council decision with which Members are dealing is to provide a fresh legal basis for the Third Pillar customs information system to allow the information to be used more fully. Part of the rationale for the decision is also to consolidate, update and replace the existing CIS convention, as well as a number of protocols. These are a protocol dating from March 1999 on the laundering of the proceeds of breaches of customs legislation and the inclusion of the registration number of the means of transport in the list of information which could be exchanged between member states and a protocol dating from May 2003 providing for the creation of a customs files identification database which has an intelligence focus on persons or businesses which have been or are the subject of investigations in member states in connection with serious breaches of customs legislation.
It is important to note, as indicated, that the system has been in operation for some years with the CIS convention and the protocols underpinning it from a legal perspective. Consequently, customs administrations in the member states are already allowed to exchange information using the ClS on breaches of customs legislation. A proposal was made by the French Presidency in 2008 to replace the convention and existing protocols by this new Council decision. The decision was also regarded as being necessary to adapt the existing legal basis better to the control services' requirements and allow information on the system to be used for operational and strategic analysis as the CIS is currently only an alert system. The European Parliament has passed its opinion and the Swedish Presidency plans to have the decision adopted as an "A" point at the Council of Justice and Home Affairs Ministers on 30 November.
The new Council decision, in common with the existing convention and protocols which it will replace, generally limits access to and use of data on the CIS system to certain designated authorities in the member states. It also provides that the European Union's judicial co-operation unit, Eurojust, and the European police office, Europol, will have access to the system to improve the effectiveness of these agencies in fulfilling their roles in tackling transnational organised crime and co-operating with customs services in the member states to that end. In addition, it aims to give the European Commission access to the system to carry out its technical responsibilities regarding the central system which is located on Commission premises. Furthermore, it provides for national supervisory authorities to oversee the operation of the system, that is, in Ireland, the Data Protection Commissioner, whose office will fulfil the same role as it was empowered to do under the existing CIS Convention.
In summary, the decision includes detailed rules on the lawfulness of the processing of personal data; provisions concerning specific forms of processing, collection, storage, transmitting and making available, as well as using personal data; the rights of the data subject; measures to protect confidentiality and security of processing; judicial remedies, liability and sanctions; and the designation of national supervisory authorities to deal with data protection issues. The data protection rules governing these exchanges of information using the CIS are set down in Community law.
There are no major issues of concern for Ireland in so far as adopting the new Council decision is concerned. Throughout the process of negotiating the draft decision, the officials liaised with the Attorney General's office, the Data Protection Commissioner's office and other relevant Departments as the need arose. If the decision is adopted by the Council of Ministers, national legislation will be required to give it effect by 27 May 2011. In the interim, none of the new elements of the decision will apply and the use of the CIS will be subject to the rules contained in the existing CIS convention and its associated protocols. I recommend the motion to the House. While I will not read the outline of the articles of the draft Council decision, to assist Members, they are available at the end of the supplied script.
All Members will welcome any measure that will improve co-operation between customs services in the different jurisdictions of the European Union and reduce the quantities of illegal goods imported into Ireland. I refer, in particular, to reductions in the quantities of illegal drugs being imported by any number of organisations. On one level, I am surprised the Data Protection Commissioner has such a role to play in the system's operation. One would have expected that as this deals with levels of organised crime across the European Union, enormous confidentiality issues would arise as to who can have access to the system and that the information contained within the system would be kept confidential between the law enforcement agencies across the European Union. Considering that this is a Europe-wide organisation with a number of terminals accessible right across the European Union, the opportunity for an organised crime gang to gain access to the system is good, to say the least.
As for the intended aim of the proposed decision, we should be going further. Even though there have been a number of important drug seizures in Ireland, the actual cost of drugs on the street for those who use illegal drugs is still quite low. If the cost of drugs on the street is low, it means a ready supply is available and, therefore, this problem is not being dealt with adequately. Were the supply of illegal drugs on the market to be restricted, the cost would increase because that is how demand works.
There are also concerns about the free activity of Irish drug barons who live abroad and organise their businesses and affairs from other European countries. They appear to be able to do this without being concerned about how the law in either those jurisdictions or this one might affect them. A huge proportion of the activities of organised crime in Ireland is controlled by non-nationals who live in Ireland and about whom the Garda Síochána does not have the same wide knowledge as it might have were the organised crime paramilitary in nature, as was the case in recent years. In such cases the Garda had good inside knowledge of the organisations concerned.
The Criminal Assets Bureau is very restricted. If it operated at the level of provincial towns it might have a greater impact. Gardaí know everybody involved in illegal activities in every town. They know the individuals who drive around in expensive SUVs and other cars and have extensive property but who do not seem to have any income. If CAB was beefed up it might have a greater impact on organised crime which will does more long-term damage than petty crime because organised criminals attempt to bribe gardaí, customs and judicial officials. We should hit hard on this activity.
The PULSE system operated by the gardaí has been sporadically used and has not reached its full potential. There were many concerns about the system when it was introduced. It does not seem to operate in the fast and efficient way we would like. Perhaps we should discuss that issue too.
I welcome this initiative. We often put business first when we deal with the European Union. A long time ago we reduced the customs checks on our borders to facilitate business. We are now dealing with the effect of reduced customs on our borders on the flow of alcohol, cigarettes and illegal drugs. EU-wide commercial and socioeconomic decisions should go hand in hand.
I am very pleased to see further co-operation and the integration of information technology for customs purposes. I am conscious that in Ireland, because of a convergence of events, including tax rates and currency, there is a large moral hazard on our borders leading to cross-Border smuggling. This moral hazard extends further because those who get involved in well-organised gangster-type operations have in the past laundered cash and oil and changed tags on different goods to get grants. These gangsters attempt to style themselves paramilitaries. I fear that the huge divergence created by the 30% decrease in the value of sterling means that there is a huge moral hazard that must be dealt with effectively and comprehensively to ensure the Continuity IRA or the Real IRA do not have access to funds. Not only do the Revenue Commissioners lose money and illegal goods and drugs come across the Border, there is also a paramilitary threat. This is a serious situation.
Within the EU cigarette prices between countries can diverge by 500% which raises the question of smuggling and taxation. We need to watch that area. Very sophisticated operations seem to exist in the Balkan countries, the former Yugoslavia, where the level of crime is almost a subculture in many areas. That is feeding into itself. Sharing information, pooling resources and the absolute necessity of dealing with illegal drugs, given the harm they do, is most important. It is more cost effective to deal with the problem at source than with its results. I commend the methods of the Revenue Commissioners and the Customs and Excise officials who have recently made major hauls, such as the €50 million of cigarettes in County Louth. That was a great success and I hope it puts many of these gangster-style operations out of business for good.
We should perhaps consider the sentences being handed down to people who handle illegal cigarettes. It is perhaps time to increase the sentences. In some cases people receive only a very low €500 fine. It is not appropriate that it should be so low in today's world. We need to get a bit tougher in this area, even at the small end of the business such as trading cigarettes on the streets because that leads to further backstream gangster operations which are very dangerous and can involve other operations which are even more sinister than illegal cigarettes. I warmly welcome the use of information technology and further co-operation between Customs and Excise services.
I am very interested in what the Minister of State told the House. Until recently I was unaware of the amount of smuggling that took place. I thought smuggled cigarettes were worth between €500 million and €750 million a year. It is clear from the figures the Minister of State has given us that it is probably a great deal more and that is only the tip of the iceberg. More interesting was the fact that in many cases people are smuggling counterfeit cigarettes, usually made in Asia and containing anything. Somebody who uses those counterfeit cigarettes or drugs is in serious danger of damaging his or her health. Cigarettes will damage one anyway but these will be even more damaging.
I learned recently that a counterfeit swine flu vaccine is being sold on the Internet. I do not know how easy it will be to combat that. The steps the Minister of State has taken are very worthy but we are unlikely to be able to cover all the areas we seek to cover. It is a reminder to us that the benefits of a border-free Europe also bring disadvantages. It is less easy to check and control goods and therefore information technology is essential. I attended a recent meeting about smuggled cigarettes and when I said that there was only one scanner in the country, I was corrected and told there is another coming in, which the Minister of State has confirmed. I am concerned that everybody knows about the scanners and apparently knows where they are. This is clearly a disadvantage. Maybe it is just too much information to give to gangsters and others who use this knowledge to their own benefit.
Senator Twomey touched on the role of the Revenue Commissioners and those who fight organised crime. It is a reminder to us of how much we need to continue to invest in that battle to protect ourselves. I support the Minister of State's motion. I had not realised the deadline. It is important we get this done and use all these facilities to combat this which is a threat not only to the Revenue Commissioners but to the health of the nation.
This is a measure that will draw strong support because there is a need for European and international co-operation to deal with the scourge of smuggling. There is an obligation on us as a member state of the European Union to act appropriately. The Minister of State's speech highlights some of the additional measures we are taking through the use of information technology. Those moves are also welcome. This gives us an opportunity to ask where we stand on combating smuggling. Smuggling operates on two levels, legal goods that are taken in illegally and illegal goods that should not come in at all.
Various figures were given by the Minister of State on the success of Customs and Excise in intercepting goods in both categories. It is, however, readily admitted that no matter how successful a regime is in making seizures and stopping smuggling, it is a small percentage of what is out there, just the tip of the iceberg. In approving measures such as this, some indication must be given how the level of co-operation and the improvement of technology will bring about higher levels of seizures and less seepage in other smuggled goods, despite the amount of resources provided.
The other area of concern is how information collected for a desired purpose is stored and prevented from being used inappropriately. The issue of data retention is an ongoing debate at European level. When it comes to issues such as the smuggling of hard drugs, there is less of a tolerance, both politically and publicly, of meeting concerns over personal rights in this area. It must, however, inform our debate on our role as a democratic country and our involvement in the European Union. It is a fine balance to strike that in protecting the public good we do not interfere with the individual's rights and good. Ultimately, the Government and the EU must strike a balance to fulfil the responsibility in preventing public harm created by smuggling. On these grounds this is a necessary measure. I am confident the proper safeguards, both nationally and at EU level, are in place to ensure Customs and Excise and its European counterparts are more effective in the prevention of smuggling and we will be better served.
I am prepared to accept we will be better served by this measure from what the Minister of State explained to the House and the relatively limited information we have about it. It prompts me, however, to make a general point which will arise in the House every week following the coming into force of the Lisbon treaty. There will be a much more advanced engagement by the EU's national parliaments in European legislation, whether decisions, directives, regulations or otherwise. We must find a way of ensuring we see a little more of the detail behind this legislation. I know people sigh when they think of the tedium of reading through material from Europe. I understand Members' concerns in that regard but we are here to do a job.
It causes me a slight amount of concern to see that we are being asked today, 26 November, to agree to a motion in respect of document which was only laid before the Houses yesterday. I am not levelling that as a criticism at the Minister — at least not for the moment — but we need to stand back and ask if we are doing justice to our job and the people we represent when we agree to a document essentially sight unseen. I have not seen the draft Council decision because I have not had the time to go to the Library to examine it in the past 24 hours.
A way must be found to ensure this information gets to Members. People might say we could go and look for it. With the best will in the world, that is not the way life is because busy, practising politicians tend not to have the time to ferret out information. We need to devise a means by which we are notified more clearly and with a little more notice than 24 hours.
In fairness, the Minister of State provided a summary of the draft Council decision. It is important still that we have an opportunity to examine the document itself and ensure, particularly with such measures, it is taken on having read it rather than simple trust.
The Government will have to introduce legislation to back up this measure. I appreciate this is not the end of the story but the beginning and that these matters will not enter into operation until legislation is passed by May 2011. What restrictions are in place in the current regime of information exchange? The Minister of State said, the Council decision is to provide a fresh legal basis for the third pillar customs information system to allow the information to be used more fully. Does the Council believe it must free up the use of this information or have different categories available on the system? That suggests to me restrictions on the use of the information are already in place. What restrictions are already in place and why is it necessary to change them?
I agree with and support the involvement of the Data Protection Commissioner in this process. It is only appropriate he is involved and consulted. Past commissioners have served us well and have given opinions on particular developments. What is the current commissioner's view on this measure and does he have any concerns about it?
Article 44 provides guidance on the inclusion of data and that personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership cannot be included on the system. Article 25 provides for the involvement of the European data protection supervisor. Article 13 provides that data have to be corrected, rectified or erased if inaccurate or contrary to the Council decision. While we are familiar with such articles, these are appropriate in this measure. The Government and the Council must bear in mind that it is necessary to keep those protections in place and that they do not undermine it. Not including them would be entirely wrong.
These protections do not take from the general thrust of the measure which is that there should be robust system of the exchange and availability of information to and by the appropriate agencies, Revenue Commissioners and otherwise. I have no difficulty with supporting the motion with the caveats I have entered. I look forward to the introduction of the legislation.
I thank Senators for their support of this motion. It is interesting to note that the points raised in this House differ from those raised in the Dáil when I brought this motion before it this morning.
This agreement will not come into effect until May 2011, following enactment of the relevant legislation. The purpose of the motion is to allow Ireland to agree and sign the new agreement, following which legislation will be enacted. Much of the discussion rotated around the question of protection of data. We must guard against organised crime gaining access to data to which they should not have access. The authorities concerned must be extremely vigilant to ensure this does not happen.
The CIS contains only data necessary to achieve its aim, namely, to assist in preventing, investigating and prosecuting serious contraventions of national laws. No items of personal data will be included in respect of broad trends. The information in respect of persons is limited to names, including aliases, date and place of birth, nationality, sex, any particular objective and permanent physical characteristics, reason for the inclusion of data, suggested action, a warning code indicating any history of being armed, violent or escaping and registration number of the means of transport. Data can only be included on the CIS for specific purposes including citing and reporting, discreet surveillance or specific checks as set out in Article 5. For these actions, the personal data mentioned may be included only if, especially on the basis of prior illegal activities, there are real indications to suggest the individual concerned is, has been or will be involved in contravening national laws.
Direct access to data on the CIS is limited to designated national authorities. These are to be customs administrations but can include other authorities competent to act to achieve the objectives. The committee responsible for the implementation and correct operation of the CIS is made up of representatives from member states who have access to and use of data on the CIS. The Data Protection Commissioner was consulted and as the national supervisory authority he or she will have access to the CIS to carry out his or her role of ensuring the processing and use of data held on the CIS does not violate the rights of the persons concerned.
The suggestion was made by Senator Twomey that the CAB should operate a wider range of activities in towns and villages. I believe one would need to be careful not to dilute its important function or to use it in enforcement where it is not strictly needed owing to the existence of other legislation. CAB performs an important strategic purpose and it has overwhelming public acceptance and support because it short circuits what would be otherwise cumbersome ways of catching people who are at the heart and control of gangs or operations but are not easily accessible because they are rarely, if ever, at the scene of crime. That strategic function must be protected.
I agree with Senator Hanafin in regard to there being a large moral hazard on our borders. We know from experience that the wider the gap in prices, regardless of whether this is due to exchange rates or different levels of tax, the greater the incentive for smuggling. There is a relationship between smuggling and taxation. I do not believe the smuggling taking place on the Border can be reduced to dissident or paramilitary activity although it is and has been a significant element in this regard. People who devolved into this type of activity have benefited from what was in the past a more difficult law enforcement environment in the Border region. At the same time, substantial joint police-customs operations have had considerable success.
While more than adequate sentences in this regard are provided for in law maximum penalties are not often enough applied by the courts. The penalty for cigarette smuggling on summary conviction are a monetary fine not exceeding €5,000 and-or a custodial sentence not exceeding 12 months. They are the maximum penalties at District Court level. The penalty for conviction on indictment is €12,695 or treble the duty paid value, whichever is the greater, and-or a custodial sentence not exceeding five years. There have been a number of convictions and fines in respect of illegal selling, for example, more than €20,000 in fines were imposed in eight cases. While the penalties provided in the legislation are considered to be sufficient, the ultimate decision in terms of the penalty to be applied on conviction in each case rests with the courts.
There are, as Senator Quinn pointed out — this point was also made in the other House — substantial health hazards in regard to counterfeit cigarettes in that their composition may differ from those sold legally over the counter.
The scanners are highly mobile. It is not the case that they will be located in fixed locations of which everybody will be aware. They take only 30 minutes to erect at any location.
When is it proposed to sit again?
I wish to raise a matter of urgent importance and will not agree to the adjournment of the Seanad until this matter has been at least recorded in this House. I am speaking about the extraordinary judgment of the Supreme Court today in which The Irish Times which was vindicated in terms of the public record is being forced——
I have not received notice from the Senator in this regard.
I understand that but business has collapsed early——
The Senator will have an opportunity——
I insist on the right to state that on a point of order I object to the adjournment of the Seanad because I believe we should discuss this matter, which is vitally important. A major national newspaper, the paper of record, is being required to pay €600,000 in damages in a situation where costs usually follow the event.
Senator Norris is out of order.
This must not be allowed by the Supreme Court of our country without debate.
Senator, please. That is totally out of order.
It is extraordinary——
I have asked the Acting Leader when it is proposed to sit again.
——given that the principle that the newspaper was correct to protect its sources was upheld by the Supreme Court.
At 2.30 p.m. next Tuesday.
I ask the House to recognise that this is an urgent national matter that could cripple the national newspapers of the country.
Senator, please——
The Seanad should not adjourn. I object to its adjournment and I intend to call a vote on it.
