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Seanad Éireann debate -
Tuesday, 18 Dec 2012

Vol. 219 No. 11

Europol Bill 2012: Committee and Remaining Stages

I welcome the Minister, Deputy Shatter, back to the House.

Sections 1 to 3, inclusive, agreed to.

I move amendment No. 1:

In page 5, subsection (3), line 3, after "fit" to insert ", and this figure will be made public".

Céad míle fáilte romhat arís a Aire. What we are seeking to do with this amendment is to ensure the section provides for the number of officers who serve in the Europol national unit to be made public. This is a reasonable amendment. We think all of these things should be known to the public and the Minister of State stated on Committee Stage that there was no substantial issue of security but pointed to the difficulty of ascertaining the numbers who might be in the unit. This seems difficult to understand. Personnel move around, but this is also true of other parts of the public service. The amendment seeks an indicative figure for the number of staff working in the unit. We regard this as both proper and appropriate to give an indication of the resources required and the scale of requirements in the context of the Bill.

I cannot accept the proposed amendment. It is not appropriate or necessary. The Europol national unit a the unit of the Garda Síochána as much as the crime policy and operational support units are units of it. The staffing of any unit within the force is a matter for the Garda Commissioner in accordance with his functions under section 26 of the Garda Síochána Act 2005. Assignments may change from time to time and it is up to the Commissioner to determine the appropriate staffing arrangements within the force at a particular time. For this reason, the amendment is not appropriate, given the functions of the Commissioner under the 2005 Act. Moreover, the amendment is not necessary. I assure the Senator, however, that there is no secrecy about the number of gardaí serving within the national unit. I am happy to inform the House that there is currently one detective sergeant and two detective gardaí attached to it. The unit comes under the direction of the head of the Europol national unit who is a detective chief superintendent. Should the Senator wish to check the number of staff in the unit at a later date, he may inquire through my Department. I regard this as a completely unnecessary amendment.

I do not see the amendment as unnecessary or how it could do any harm. However, I thank the Minister for clarifying that it will be possible in the future to ascertain the numbers involved.

Amendment put and declared lost.
Section 4 agreed to.

Amendments Nos. 2 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 5, subsection (1)(a ), line 36, after "Europol" to insert "on a case by case basis".

This amendment seeks to copperfasten the sovereignty of the police service and the defence of human rights standards in the State. Rather than saying we will respond to requests from Europol, we should say responses will be authorised on a case by case basis and limited to what is necessary. We should ensure appropriate safeguards and accountability mechanisms are in place before we respond in this way. We should protect and enshrine our own standards to ensure the sovereignty of our police service and policing practices. It is well documented that there are human rights abuses in EU member states and even if there were not, we should hardly consider it impossible that there might be such a scenario in the future. In that context, as a state, we should have a reasonable level of discretion and consider each case on its merits. On Committee Stage the Minister of State stated the provisions of section 7 ensured there was no obligation on the State to comply with any request. If that is the case, why is the amendment problematic?

Amendment No. 5 would have the same effect as amendment No. 2. However, whereas amendment No. 2 deals with requests for information, amendment No. 5 to section 7 deals with a request from Europol to initiate an investigation. The point to be made is that there is a need to ensure legislation will be human rights proofed and also the sovereignty of the police force here. These matters should be considered on a case by case basis and on their merits.

Again, I am sorry to inform the Senator that I will not be accepting the amendments. Our obligation is to transpose each and every article of an EU Council decision that is relevant from a domestic perspective. Section 5 gives effect to Article 7, paragraph 1, of the Council decision which states, "Member States shall deal with any request by Europol to initiate an investigation...". Therefore, under the Council decision, there is an obligation to accept a request for the initiation of criminal investigations. However, we must also look at section 7 which sets out the actions to be taken following a request from Europol to initiate an investigation. Paragraph (1)(b) provides that the competent authority, that is, the Garda Síochána or the relevant office of the Revenue Commissioners, shall decide whether to comply with the request. In effect, the decision on whether an investigation should be initiated is made on a case by case basis and the relevant authorities in this State may refuse any such request as per the section.

In that context the Senator’s proposed amendments are not relevant.
In order to comply with the Council decision, while we must accept all requests from Europol there is no obligation to comply with them. I am refusing the amendment on the basis that the amendment to section 5 would undermine our compliance with the Council decision. The provisions of section 7 are such that in any event there is no obligation on the State to comply with a request once received. For that reason amendment No. 5 is not necessary.
Amendment put and declared lost.

Amendments Nos. 3, 4 and 6 are related and may be discussed together.

I move amendment No. 3:

In page 6, subsection (2), between lines 12 and 13, to insert the following:

"(d) jeopardise the human rights of a person.".

This amendment concerns human rights standards in the State. Amnesty International has found that almost every state in the EU has been guilty of human rights abuses, including abuses on the part of their police services. The amendment seeks to enshrine human rights standards to strengthen the Bill. It is perfectly reasonable that this should be a consideration when we are weighing up whether to provide information to Europol or to refuse to do so. All legislation should be human rights proofed, particularly where it relates to justice and due process. Clearly it should be a legitimate consideration.

Amendment No. 4 is a related point. All our legislation should be human rights proofed, particularly when we are considering how justice information is being used. Therefore, we need to ensure that both the processes used in the unit and by liaison officers are human rights proofed and that liaison officers are well trained in this regard and will be well informed as to the dangers of mishandling information or how human rights can be put at risk by failing to abide by due process. This will ensure best practice is followed and that any risk of miscarriages of justice are minimised.

Amendment No. 6 has the same effect as amendment No. 3 but applies to section 7. It seeks to ensure the State can refuse to co-operate should it be of the view that permitting the investigation would jeopardise the human rights of a person. It is entirely within the realms of possibility that such circumstances could arise. Therefore, this should be one of the grounds for reserving the right to refuse permission for an investigation and maintain a good perception of Ireland in terms of its human rights.

Amendments Nos. 3 and 6 as outlined by the Senator add to the grounds for refusal of assistance to Europol by seeking to include “jeopardising the human rights of a person.” Amendment No. 3 is to section 5 and seeks to add the new ground for refusal to those already listed as reasons for refusing to provide information to Europol as set out in subsection (2). That subsection gives effect to Article 8(5) of the Council decision. The amendment would go beyond our remit in transposing the Council decision.

Amendment No. 6 would go beyond the remit of Article 7(3) of the Council decision and to which section 7 gives effect. My primary reason for refusing these amendments is, like the previous amendment we discussed, they are not necessary.

This State and its agents are committed and obligated to promoting and protecting the fundamental rights provisions of our Constitution. Equally, the State adheres to international human rights obligations, including those under the European Convention on Human Rights to which the State is a party. There is no need to set out or confirm in statute an obligation which already arises under our domestic Constitution and our international obligations. This is effectively a drafting matter.

I cannot accept amendment No. 4. Members of An Garda Síochána, customs officers or liaison officers are subject to the requirements to observe human rights. The promotion and protection of human rights underpins all Garda training. The Garda has a comprehensive education and training information system for the professional development of all members. This development programme incorporates training in human rights issues.

Having said that I also consider this amendment falls outside the remit of the Council decision. In accordance with Article 9, once seconded to Europol, liaison officers shall be subject to and required to act in accordance with the national law of the seconding member state. In this case that is the Netherlands. Human rights are codified within the Dutch constitution and the Netherlands, as with Ireland, is party to a number of international human rights instruments, including the European Convention on Human Rights and Fundamental Freedoms.

The proposed amendment would require some form of Irish national oversight vis-à-vis Irish liaison officers in circumstances where, as a result of their secondment, they are subject to Dutch law. For these reasons I cannot accept the amendment.

Amendment put and declared lost.
Section 5 agreed to.
Section 6 agreed to.

I move amendment No. 4:

In page 6, before section 7, to insert the following new section:

“7.—(1) The Garda Commissioner shall ensure external human rights auditing of all liaison officers training materials.

(2) The Garda Commissioner shall ensure all liaison officers appointed will undergo human rights training before taking up positions.”.

Amendment put and declared lost.

I move amendment No. 5:

In page 7, subsection (1)(b), line 4, after “request” to insert “on a case by case basis”.

Amendment put and declared lost.

I move amendment No. 6:

In page 7, subsection (2), between lines 16 and 17, to insert the following:

“(d) jeopardise the human rights of a person.”.

Amendment put and declared lost.
Section 7 agreed to.
Section 8 agreed to.

I move amendment No. 7:

In page 8, subsection (2), line 25, to delete “is satisfied” and substitute “has received a guarantee”.

The purpose of this amendment is to strengthen section 9. Rather than accepting assurance from Europol that only the appropriate authorities will have access to information, the Government would receive a guarantee which would provide for a stronger position legally.

I cannot accept the amendment, the effect of which would be to remove the need for the head of the national unit to be satisfied that information provided will not be further disseminated without the prior consent of the unit and, instead, would require the head of the unit to receive a guarantee that information would not be so disseminated. In theory, the amendment could give rise to a scenario where although the head of the national unit may receive a guarantee with which he or she for whatever reason is not satisfied, he or she would nevertheless be required to provide the data in question. In other words, the amendment may lead to there being less protection. Under the current wording, if the head of the national unit is not satisfied, for whatever reason, that prior consent will be sought for the further use of transmission of data, he or she will not be permitted to transmit the data. There are numerous similar examples on the Statute Book requiring the courts, judges, Ministers, officeholders, officials, etc. to be satisfied in respect of particular information. The important element is the frame of mind of the decision maker. It is that person who must be satisfied about the circumstances of a particular situation. There are several similar provisions on the Statute Book in so far as provision is made for the State to co-operate in the exchange of information with other states. I am afraid that in the circumstances I cannot accept the amendment.


Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Section 9 agreed to.

I move amendment No. 8:

In page 8, subsection (1), line 34, after “supplemented,” to insert “or deleted,”.

This amendment is to ensure clarification of the effect of the section in order that it would be clear legislatively that where the Europol information system had incorrect information, it would not only be the case that it could be supplemented but also could be deleted. This is particularly important where it is the case that there is information held by Europol, for example, on a prior suspect who has since turned out to be innocent. However, the former part refers to his or her competency to take such action, whereas the subsection which refers to deletion is effectively concerned with the actions that can be taken on foot of this.

I am refusing the amendment as it is unnecessary. Section 10 already provides for the deletion of data in subsection (1)(a) and (b). This is a drafting matter. The amendment would be superfluous.

Amendment put and declared lost.
Section 10 agreed to.
Section 11 agreed to.

I move amendment No. 9:

In page 9, subsection (1), line 29, after “crime” to insert the following:

“which shall be listed by the Minister by way of guidelines no later than 30 days after the enactment of this Bill”.

This amendment provides clarity on the designation of competent authorities and the context in which they are entitled to exchange information. We believe guidelines are needed to ensure best practice.

I cannot accept amendment No. 9. This amendment requires the crimes in which Europol is competent to be listed in guidelines prepared following the enactment of the Bill. I cannot for the life of me understand why the amendment is being proposed. Perhaps Senator Ó Clochartaigh will choose to withdraw the amendment because it makes no sense.

Under section 1, a criminal offence is defined as "an offence for which Europol has competence in accordance with Article 4 of the Council Decision". I remind the House that under Article 4 of the decision, crimes which fall within Europol's remit include organised crime, terrorism and other forms of serious crime affecting two or more member states. The other forms of serious crime are listed in the annexe to the Council decision. Europol is also competent for related offences as listed in Article 4(3). Given that the Council decision is scheduled to the Bill and lists the offences within the competence of Europol, and that a reference to such offences is contained in section 1, I do not see what value is added or purpose served by requiring the further publication of information already contained in the Bill.

Any person who wants to find out what offences fall within Europol's competence could look to the Bill rather than separately published guidelines. Looking to the Bill is extraordinarily easy because page 60 contains an annexe which sets out the following offences: unlawful drug trafficking; illegal money laundering activities; crimes connected with nuclear radioactive substances; illegal immigrant smuggling; trafficking in human beings; motor vehicle crimes; murder and grievous bodily injury; illicit trade in human organs and tissues; kidnapping, illegal restraint and hostage taking; racism and xenophobia; organised robbery; illicit trafficking in cultural goods, including antiquities and works of art; swindling and fraud; racketeering and extortion; counterfeiting and product piracy; forgery of administrative documents and trafficking therein; forgery of money and means of payment; computer crime; corruption; illicit trafficking in arms, ammunition and explosives; illegal trafficking in endangered animal species; illicit trafficking in endangered plant species and varieties; environmental crimes; and illicit trafficking in hormonal substances and other growth promoters. The annexe sets out additional provisions which give definitional clarity to some of these crimes.

I cannot for the life of me figure out the purpose of an amendment stating that guidelines should be published when the Bill is enacted to clarify the areas in which Europol is competent because the legislation already makes this clear. Given the manner in which the legislation implements our European obligations, it is important that it should set out in primary legislation Europol's areas of competence.

I thank the Minister for his comprehensive rehearsal of the annexe and the competences outlined therein. Although our amendment makes a suggestion about the designated competent authorities and the contexts in which they are entitled to exchange information, I take on board his comments and withdraw the amendment.

Amendment, by leave, withdrawn.
Section 12 agreed to.

I move amendment No. 10:

In page 10, subsection (3), line 11, to delete “30 days” and substitute “14 days”.

This amendment seeks to shorten the time within which national authorities would be required to forward a request from an individual as to whether Europol is handling information relating to him or her. We believe the process needs not only to be made more effective but also to be conscious of the rights of the individual in these circumstances. For this reason, we think a period of 30 days is too long.

I am sure it will come as a great shock to the Senator when I say that I cannot accept the amendment. He is seeking to require the national unit to forward requests for personal data to Europol within 14 days instead of 30 days.

I appreciate the argument for reducing the timeframe for the forwarding to Europol of requests for personal data. However, the timeframe of one month is set out in the Council decision under Article 32. The national unit should work within the same timeframes as the authorities in other states. It is important our provisions for the implementation of our obligations reflect those in operation in other states.
Question, "That the word and figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 13 agreed to.
Sections 14 to 21, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Members of the Seanad for their consideration of the Bill and for the support given to it and its principles. This is a very important Bill and its importance should not be diminished. It was useful to read out the annexe to the Bill, which lists the multiplicity of serious crimes in respect of which Europol can play a role in the mutual exchange of information and in the context of other functions that arise. It is of great importance at a time when criminals do not recognise national boundaries and when organised crime seeks to exploit a variety of options for making substantial money for itself, to the detriment of others and causing misery in the lives of many people.

The Bill deals with serious crimes, from murder to human trafficking, kidnapping and a range of other crimes and it is of the greatest importance there is the maximum co-operation between member states of the European Union in addressing these issues, and in particular between the police forces in the member states. It is through the exchange of information and the possibility, on occasion, of engaging in joint policing in the area of cross-border crime, where expertise in different states can come together, that we can, as a State, properly respond to the transnational nature of organised crime and those engaged in it.

I thank Senators for the speedy passage of this measure which will come into force and will further enhance levels of co-operation and our capacity to operate at European level through Europol.

I would like to indicate my support for this Bill. On behalf of the Minister, the Government and the State, if this Bill can improve our relations with other international policing agencies, particularly in an ever bigger Europe of 27 countries and more, it is a positive step.

It is essential that we keep the pressure up. We will probably never have the utopian situation that allows us to eliminate crime but this legislation will at least tighten the noose on some of these criminal gangs and put pressure on them. That is what we must continue to do because not alone are they a threat internationally, they are also a threat to our society. They have an impact on every walk of life, whether it is in the Dublin metropolis, rural parts of west Cork or the west of Ireland. This legislation is welcome and I hope it will have a positive outcome in terms of trying to stymie the ever-evolving and ever-more-sophisticated criminals we are dealing with at the current time.

Ba mhaith liom buíochas a ghabháil leis an Aire as ucht na reachtaíochta seo a thabhairt os comhair an tSeanaid. I bprionsabail, tá Sinn Féin i bhfábhar an Bhille seo agus tugaimid tacaíocht dó. I thank the Minister for introducing the Bill. In general, Sinn Féin is in favour of the Bill because, as the Minister said, crime knows no frontiers, be it a county boundary, a state boundary, a continental boundary-----

-----or any border whatsoever. It is important, and we support any co-operation that seeks to ensure that anybody perpetrating a crime, whether that be within or outside the State, is brought to justice and all of the parties involved are given due process.

The issues we raised were with regard to data protection and the civil liberties of each of the people involved in the situation. We have to remain cognisant, if we are dealing with police forces from any other jurisdiction, that the rights of each of the individuals involved in the case must be taken into consideration. This was the reason we introduced our amendments. We are glad to have had the opportunity to debate the Bill and we are glad to add our support to it.

I thank the Minister and his officials for being present to conclude the legislation. Committee Stage was very brief in the Seanad, notwithstanding the efforts of Senator Ó Clochartaigh, but I believe the matter has been fully aired in the other House and here on Second Stage. I agree with what has been said by previous speakers. Europe is a political concept that drifts in and out of popularity from time to time, generally for economic reasons. Here, we again see one of the positives of the politics of Europe, where countries and governments come together in the interests of the citizens of Europe. That level of co-operation is to be welcomed, as is the legislation. I thank the Minister for dealing with it in his usual competent fashion.

Question put and agreed to.
Sitting suspended at 2.50 p.m. and resumed at 3.10 p.m.