Seanad Éireann debate -
Wednesday, 6 Apr 2022

Vol. 284 No. 5

European Union Regulation: Motion

Senator Gerry Horkan

I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Regulation of the European Parliament and of the Council establishing a collaboration platform to support the functioning of Joint Investigation Teams and amending Regulation (EU) 2018/1726,

a copy of which was laid before Seanad Éireann on 22nd December, 2021.

Acting Chairperson (Senator Fintan Warfield)

I welcome the Minister for Justice, Deputy McEntee, to the House.

Minister for Justice (Deputy Helen McEntee)

I thank the House for facilitating this motion this afternoon. The Government yesterday approved my Department's request to seek the approval of both Houses of the Oireachtas to opt in to this European Commission proposal. The Minister of State, Deputy Browne, also yesterday presented the motion to the Dáil, which was approved. The proposal seeks to establish a collaboration platform to facilitate exchanges and co-operation within the joint investigation team framework. Joint investigation teams have proven to be one of the most successful tools for cross-border investigations and prosecutions, so I am delighted to have the opportunity to present this motion to this House today.

By way of background, joint investigation teams, JITs, are set up by two or more states for the purpose of specific criminal investigations with a cross-border impact and for a limited period of time. This framework allows the competent judicial and law enforcement authorities involved to organise and co-ordinate their actions jointly and to investigate efficiently, even in very complex cases such as organised crime activities. An Garda Síochána currently participates in JITs and supports this initiative.

Although JITs have proven to be one of the most successful tools for cross-border investigations and prosecutions in the EU, practice shows that they have been facing several technical difficulties preventing them from gaining the highest possible efficiency. The JITs collaboration platform proposed in this regulation aims to solve these problems and deliver the technical support that has been missing thus far.

The proposal will establish a highly secure collaboration platform, provide technological support for participants and ensure that information and evidence can be shared more effectively and safely. The main objective of the proposal is to provide technological support to those involved in JITs to increase the efficiency and effectiveness of their cross-border investigations and prosecutions. To meet these objectives and to tackle the underlying difficulties, a dedicated IT platform is proposed. The platform will be accessible to all actors involved in JIT proceedings, including specific member states' representatives, representatives of third countries invited to co-operate in the context of a given investigation team, and the competent European Union bodies, offices and agencies such as Eurojust, Europol and the European Public Prosecutor's Office. The proposed collaboration platform will solve the technical problems and provide the technical support that has been missing from joint investigations to date.

The regulation itself is more technical than legal in nature and applies to the processing of information, including personal data, within the context of a JIT. That includes the exchange and storage of operational information and evidence as well as non-operational information. This regulation applies to the operational and post-operational phases of a JIT, starting from the moment the relevant joint investigation agreement is signed by its members. This regulation does not amend or otherwise affect the existing legal provisions on the establishment, conduct or evaluation of JITs.

The legal basis for setting up a JIT is Article 13 of the European Union Convention on Mutual Assistance in Criminal Matters, and a Council framework decision of 13 June 2002 on JITs.

The Criminal Justice (Joint Investigation Teams) Act 2004 provides for the measures necessary to give effect to European Council decision on JITs and provides for the terms under which the teams can be established. The Criminal Justice (International Co-operation) Act 2019 made further provisions in this regard to better facilitate the participation of members of An Garda Síochána in JITs.

To provide broader context, this proposal is one of a package of measures announced by the Commission on the digitalisation of justice in the EU as part of a larger initiative to enable the secure electronic communication and exchange of information and documents between courts, national authorities, and justice and home affairs agencies. This is a stand-alone proposal to the other measures in the digitalisation pack. Ireland intends to opt in at a later date to other such proposals when the preparatory work is undertaken.

For member states, no technical costs are considered because the platform will be developed and hosted by the EU centrally and accessed remotely using a browser-based system. There will be a one-off EU development cost incurred centrally of around €10 million. There will also be an EU centrally recurring cost for technical matters, maintenance and operation of the platform of approximately €3 million per year. For member states, the platform will not require any adaptions of the national technical infrastructure and access will be web-based, resulting in minimal costs. It will simply require a PC with a browser and an authorised account which will include relevant security features.

The JIT framework has been pivotal in recent years to tackling serious, organised and transnational crime. Ireland currently participates in JITs and we certainly see the value in continuing to do so and in supporting this proposal.

By way of an example, following the discovery of 39 individuals in Essex in the United Kingdom in October 2019, the UK, Irish, Belgian and French authorities carried out initial actions and subsequently conducted investigations and searches in regard to these tragic events, which led to the formation of a JIT. The effective liaison by An Garda Síochána with the other participating forces in this JIT, with colleagues in the PSNI and various other police agencies, meant a number of suspects were apprehended and sentenced to significant periods of detention following conviction by various courts in several jurisdictions.

This is a practical example of a JIT in action. The experience gained in respect of multijurisdictional operations and the available support from various European statutory agencies such as Eurojust and Europol cannot be underestimated from an operational and learning perspective and will be built on and utilised by An Garda Síochána.

Indeed only on Monday, the EU announced that it is setting up a JIT with Ukraine to collect evidence and investigate war crimes and crimes against humanity in Ukraine. In a statement following a phone call with President Zelenskyy regarding the atrocities in Bucha, European Commission President Ursula von der Leyen stated:

The EU is ready to reinforce this effort by sending investigation teams on the ground to support the Ukrainian Prosecution Services. Eurojust and Europol are ready to assist.

President von der Leyen went on to state:

A global response is necessary. There are ongoing talks between Eurojust and the International Criminal Court to join forces and for the Court to be part of the Joint Investigation Team.

This is a further demonstration of the framework in action.

Ireland, together with our EU partners, is committed to tackling serious crime, as well as organised cross-border and transnational crime, and our continued engagement and commitment to joint cross-border Investigations is central to that. The current proposal will improve the efficiency and effectiveness of such investigations. Therefore, the Government has no hesitation in commending to the House the motion that we opt in to this proposal. The Office of the Attorney General has advised that opting in to the proposed decision does not create any constitutional or legal issues for the State. Doing so now under the Article 3 opt-in will ensure we are at the table with our European partners and involved fully in the detailed discussions on the negotiation of the regulation. It will also indicate our continuing commitment to tackling serious cross-border and transnational crime.

I commend the motion to the House.

Senator Martin Conway

I welcome the Minister to the House. The motion is an extremely important one. Joint investigation teams are extremely important and have been recommended and proposed for some time. I have spent several years on the Joint Committee on Justice. As part of that brief, I represented the justice committee on the Europol scrutiny committee. The latter committee is the first time there was political oversight of Europol. It comprises two representatives from each of the 27 member states, along with representatives of the European Parliament. It was extremely important because although the judicial system has oversight in this country, Europol did not have any political oversight. In my time on that committee I learned a significant amount about the importance of co-operation and working together to set up joint understandings. That is what is needed because, as the Minister and everyone else present are aware, criminals do not recognise borders, nor does crime. Unfortunately, there is a well-established criminal network operating throughout Europe. This proposal is another very important incremental step in addressing, dealing with, catching up with and, it is to be hoped, getting ahead of international organised crime.

I am glad there is no opposition to the proposal from the Minister. I was Fine Gael Seanad spokesperson on justice for nine years. Much of the legislation is technical but extremely important. Although it may be technical, what it is trying to achieve is fundamental. The collaboration between agencies and the establishment of the joint committees are key to facing down the criminal elements that, unfortunately, operate not just within Europe but internationally throughout the world. The more understandings and structures we have, the more determined we will be. The more we work together, the more likely it is that we can address and reduce - we will never eliminate it - international organised crime to such a degree that society and the world can live in harmony in a way that is safe. As a small country, we can lead the way in that regard.

In my time in Europol and working within its structures, I and the other Irish representative from the justice committee, along with our MEPs who were on the Europol scrutiny committee, punched above our weight in ensuring that Europol was held accountable and did its job in a very focused way. I commend the motion to the House. I hope it will pass unanimously, as I think it will.

Senator Gerry Horkan

I thank the Minister for her comprehensive opening statement on the motion regarding the proposed approval of a regulation of the European Parliament and of the Council in respect of joint investigation teams. Of course, such teams have been around for quite a while. The regulation, in essence, proposes allowing them to set up a collaboration platform. The platform will be a highly secure online collaboration tool aimed at facilitating exchanges and co-operation within JITs through the duration to provide them with technological support to increase their efficiency and effectiveness in cross-border investigations and prosecutions. It will ensure those involved in JITs can more easily share information and the evidence collected in the course of their activities safely and securely with each other.

The Minister gave a concrete example of the importance of this, referring to the awful tragedy in Essex involving the discovery of 39 individuals. That investigation involved the jurisdictions of the United Kingdom, Ireland, Belgium and France. They were all able to work together in that case but it is clear the Minister wants them to be able to do so in the most efficient way possible, with access to each other's information and shared data. That is really what the motion is doing. It is not setting up investigation teams; it is just allowing them to work much more efficiently than they did previously.

Clearly, if this involves Ukraine, it is not just for EU members. The platform will be run and administered by the EU but it is not exclusive to EU countries. Based on my understanding of the Minister's remarks, other countries that are involved in the context of these criminal gangs or organised crime will be able to participate in this process. What is happening in Ukraine is horrific. Every day, the news is worse and worse. We should be doing anything and everything we can as a European Union to help the Ukrainians pursue every single one of the perpetrators of these crimes. That is what we are doing through this motion. I will not delay the House. It is a very positive motion. I hope the other Senators who are present will speak in the same vein and light.

It would be remiss of me not to acknowledge for the first time the presence of Senator Clonan, our newest Senator. He is very welcome. It may be the first time he has been in the Chamber with this particular Minister but I am sure it will not be the last. He is very welcome. I hope he will be as supportive of the legislation as everybody who has spoken so far has been. It is a positive thing.

The Bill is quite technical. As Senator Conway outlined, it is much more about the IT backup to the joint investigations teams. The teams have already been doing their work. The motion aims to make it easier for them to work together and faster to take those involved in organised crime and criminality generally out of the loop and the system, and to protect the rest of us. I commend the motion on my behalf and that of Fianna Fáil.

Senator Niall Ó Donnghaile

Cuirim fáilte roimh an Aire. I apologise for missing her opening contribution. I was at a private briefing of the foreign affairs committee. Oireachtas Members have spoken often on the challenges faced by society here in Ireland, South and North, and across the EU as criminal organisations develop organisationally and technologically in pursuit of their criminal behaviour across EU borders. Unfortunately, technological know-how and skills are not solely the preserve of law-abiding people.

The objectives of this proposal are primarily twofold - the recognition of the importance of setting up joint investigation teams for specific criminal investigations and for a limited period of time, and the upgrading of the IT system across the EU to support the JITs in their investigations. Where appropriate, and shaped to meet the specific nature of the criminal investigation, JITs have the capacity to create no-go zones for criminals across the land and sea borders of the EU. In those circumstances, it will blend fluently the exchange of information and documents between courts, national authorities and justice and home affairs agencies. The motion allows for two or more member states of the EU to collaborate and, where legally permissible, non-EU states as well.

JITs are one of the most successful tools for cross-border investigations and prosecutions in the European Union. They enable direct co-operation and communication between judicial and law enforcement authorities in various states to organise their actions and investigations to efficiently investigate cross-border cases. However, they have been facing several difficulties, particularly on the technological front. These difficulties are IT-related in the electronic exchange of information and evidence, including large files, secure electronic communication with other JIT members and bodies such as Eurojust, Europol and the anti-fraud office, as well as the joint daily management of JITs. On examination of the effectiveness of the JITs by a relevant authority, it was proposed they be supported by a dedicated IT platform. The IT platform will enable its members to securely communicate among themselves.

The platform would be available to all JIT members, member states' representatives, third country representatives and the Union's competent bodies in the security field. The platform would be of a voluntary nature and complementary to other security measures employed by the relevant state. It would be available in all EU languages and accessible through computers and mobile devices.

The platform would have two distinctive elements - a centralised information system and communication software. Particular attention should be given to the platform's access rights. Granting access to information stored in the platform would be the strict preserve of the JIT space administrators from the JIT participating states. At least, that is how it should be. Given the highly sensitive nature of the information exchanged, it is essential that the safeguards are impenetrable and in keeping with strong cyber security standards. Although it is a complex and complicated process, the platform's success will also depend on it being as simple to access as possible.

It is also important to acknowledge that the platform proposal, in all its dimensions, is compatible with fundamental rights and freedoms enshrined in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the other human rights obligations under international law. It is my belief that the proposal is credible in its intent and, if well managed, it should assist the people of Ireland and the rest of the EU in living safer lives.

Acting Chairperson (Senator Fintan Warfield)

I welcome Senator Clonan and invite him to speak if he wishes. I share the congratulations to you and wish you all the best during your time here.

Senator Tom Clonan

Thank you. I will be brief. I thank the Minister for the clear opening statement. My understanding is that, notwithstanding events in Ukraine, the greatest threat to the security of the State is the proliferation of organised crime gangs and the terrorist networks with which they operate hand in hand. They operate globally and they are very sophisticated in their activities. Anything that assists us to respond to that as a republic and EU member state is very much to be welcomed.

I am grateful for the opportunity to speak and thank the Minister for the presentation. I am strongly in favour of the proposal.

Minister for Justice (Deputy Helen McEntee)

I should have started by welcoming Senator Clonan. I look forward to working with him in this term and, it is hoped, in the coming years.

I thank the Senators for facilitating the motion so quickly. Everybody has alluded to the fact that crime knows no borders, and the only way we can tackle crime nowadays is by working collaboratively. The joint investigation teams have proven to be one of the most successful methods of bringing forward investigations and prosecutions. Tools such as the collaborative platform proposed in this regulation will continue to support that, but also improve the mechanism and way in which that is done. As the Senator pointed out, this proposal is about highlighting the importance, significance and effectiveness of the teams to date, but also strengthening that and ensuring that the way in which we are sharing information is safe. I assure all Senators that the new security platform aims to mitigate the risks that potentially exist for the security of individual data. There will be strong mechanisms and measures in place.

I thank Senators for their support on this and commend the motion to the House.

Question put and agreed to.

Cuireadh an Seanad ar fionraí ar 3.53 p.m. agus cuireadh tús leis arís ar 4.30 p.m.

Sitting suspended at 3.53 p.m. and resumed at 4.30 p.m.