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Select Committee on Justice, Defence and Equality debate -
Wednesday, 7 Nov 2012

Europol Bill 2012: Committee Stage

A grouping list has been circulated. I welcome the Minister of State with responsibility for disability, equality and mental health issues and older people, Deputy Kathleen Lynch, and her officials.

SECTION 1

As amendments Nos. 1 to 3, inclusive, are related, they may be discussed together.

I move amendment No. 1:

In page 3, between lines 21 and 22, to insert the following:

" "data" has the same meaning as it has in the Data Protection Acts 1988 and 2003;".

These amendments have been introduced to bring clarity to the meaning of "data" and "personal data" within the Bill. The Data Protection Acts 1988 and 2003 automatically apply to any processing of data within the State, including processing of data under the Bill. The amendments simply confirm the meaning of the terms used in the Bill to bring it into line with that used in the Data Protection Acts. These technical amendments are important.

They are straightforward.

Amendment agreed to.

I move amendment No. 2:

In page 4, between lines 13 and 14, to insert the following:

" "personal data" has the same meaning as it has in the Data Protection Acts 1988 and 2003;".

Amendment agreed to.

I move amendment No. 3:

In page 4, line 14, after " "processing" " to insert ", in relation to data,".

Amendment agreed to.

I move amendment No. 4:

In page 4, between lines 17 and 18, to insert the following subsection:

"(2) A word or expression used in this Act and in the Council Decision has the same meaning in this Act as in that Decision.".

This amendment proposes the inclusion of a new section 1(2) in the Bill to provide that any "word or expression" used in the Bill and the Council decision which is set out in the Schedule to the Bill shall be interpreted as having the meaning provided for in the Council decision. This is particularly necessary to identify the criminal offences covered by the Bill. Article 4 of the Council decision sets out the offences for which Interpol is competent. A reference to Article 4 is included in the definition of "criminal offences" in section 1 of the Bill. Article 4.1 provides that Interpol's competence "shall cover organised crime, terrorism and other forms of serious crime as listed in the Annex". It is necessary to ensure references to serious crime in the Bill, for example, in section 12(1), will be interpreted in accordance with the Council decision. Equally, references to "related crime" in the Bill should be interpreted in accordance with Article 4.3 of the Council decision. The annex that sets out the list of crimes extends much further than it did in the past.

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2

I move amendment No. 5:

In page 4, subsection (1), line 20, to delete “or, in relation to a revenue offence” and substitute “and, in relation to revenue offences”.

This amendment makes a minor drafting correction to section 2 which sets out the designated competent authorities within the State. As currently worded, the designated competent authority in the State is either the Garda Síochána or the Revenue Commissioners. The amendment clarifies that the designated competent authorities in the State are both the Garda Síochána "and, in relation to revenue offences", the Revenue Commissioners. It is a technical amendment.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4

I move amendment No. 6:

In page 4, subsection (3), line 36, after "fit" to insert ", and this figure will be made public".

This is a straightforward amendment. We want to ensure this section provides for the number of officers who serve in the unit to be made public. It is a question of accountability.

I cannot accept the proposed amendment because it is not appropriate or necessary. However, we can discuss it further. The Interpol national unit is simply a unit of the Garda Síochána. Similarly, the crimes policy unit and operational support unit are units of the Garda Síochána. The staffing of any unit within the Garda Síochána is a matter for the Garda Commissioner. Any assignations may change from time to time. Section 4(5) provides that the head of the national unit may be assigned tasks or duties other than those relating to Interpol. Any person who wishes to make contact with the national unit may do so via the Garda Síochána headquarters in the Phoenix Park. It is not an issue of security. It is very much a question of the specific numbers involved. If we were talking about the individuals, it would be an issue of security. The numbers may change from time to time. The answer one might receive in this context might not be technically true in the following days.

I would like to pursue this matter a little further. The committee has just received a presentation setting out the number of Defence Forces officers and retirees, etc. There was great detail in the presentation, as there should be. All of these things should be accountable to the public. The amendment looks for an indicative number of staff working in the unit. We cannot get agreement on it.

I need to correct my previous references to "Interpol". I should have been referring to "Europol". There is no "indicative number". There may be times when we need additional resources and times when we do not need as many resources as the Garda Commissioner might deem necessary. It is simply a matter of operation. The operational element has to be allowed to remain in the hands of the Garda Commissioner. The legislation we are proposing seeks to frame a Council decision. The operational element will always have to stay with the Garda Commissioner.

Amendment put and declared lost.
Section 4 agreed to.
SECTION 5

As amendments Nos. 7 and 12 are related, they may be discussed together.

I move amendment No. 7:

In page 5, subsection (1)(a), line 25, 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 our 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, the sovereignty of our police service and policing practices.

I will speak to amendments Nos. 7 and 12. The Deputy will not be surprised to hear I cannot accept these amendments. Our obligation in transposing the EU Council decision involves transposing each and every article that is relevant from a domestic perspective. Section 5 of the Bill gives effect, in line with legal advice, to Article 7 of the Council decision. Article 7.1 provides that "Member States shall deal with any request by Europol to initiate" an investigation. I remind the committee that section 7 of the Bill sets out the action to be taken following a request from Europol to initiate an investigation. In effect, decisions on whether to initiate investigations are made on a case by case basis. The relevant authorities in the State may refuse any such request in line with the provisions of section 7(2). Therefore, in order to comply with the Council decision, we must accept all requests from Europol. However, there is no obligation whatsoever to comply with such requests. I am refusing to accept the amendment to section 5 on the basis that it would undermine our compliance with the Council decision. The provisions of section 7 ensure there is no obligation on the State to comply with any request accepted. For that reason, I am not accepting amendment No. 12 either.

Am I right in saying requests will be considered on a case by case basis? If so, what is the problem with the amendment?

The problem with the amendment is that it is unnecessary. We already have a provision in the Bill that does what the amendment seeks to do. There are clear guidelines that govern how we can say "No" to certain investigations. We can refuse to comply with a request if we believe that to do so would compromise national security or compromise ongoing investigations.

The amendment is unnecessary.

All requests must be accepted, but there is no need to go further.

There are conditions under which we can refuse.

The requests must be accepted, but one does not have to process them further. A request is made, as if one were receiving a letter, and on a case by case basis one can say one will or will not take action. Is that the case?

Yes. We cannot just say we will not do this. There have to be very good operational reasons for not doing so.

One would probably have to look at it in order to make a decision.

Amendment put and declared lost.

Amendments Nos. 8, 11 and 13 are related and will be discussed together.

I move amendment No. 8:

In page 6, subsection (2), between lines 1 and 2, 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 European Union 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.

Amendments Nos. 8 and 13, as outlined by the Deputy, would add to the grounds for a refusal of assistance to Europol by including the jeopardising of the human rights of a person. Amendment No. 8 is to section 5 and seeks to add new grounds for a refusal to those already listed as reasons to refuse the provision of information for Europol, as set out in subsection (2) of the section. The subsection gives effect to Article 8.5 of the Council decision and the amendment would go beyond our remit in transposing the Council decision.

Equally, amendment No. 13 to section 7(2) would go beyond the remit of Article 7.3 of the Council decision, to which section 7 gives effect. However, the primary reason for refusing the amendments is that they are unnecessary. The State and its agents are committed and obliged to promote and protect the fundamental rights provisions of the Constitution. Equally, the State adheres to the international human rights obligations, including those under the European Convention on Human Rights. There is no need, therefore, to set out or confirm in statute an obligation under the Constitution and internationally.

I cannot accept amendment No. 11, as members of An Garda Síochána, customs officers and all liaison officers are subject to requirements to observe human rights. The promotion and protection of human rights underpin all Garda training. An Garda Síochána has a comprehensive education, training and information system for the professional development of all members. This development programme incorporates training in human rights issues. In addition, I consider that the amendment falls outside the remit of the Council decision. In accordance with Article 9, when seconded to Europol, liaison officers "shall be subject to and required to act in accordance with the national law of the seconding member state", namely, the Netherlands. Human rights are codified within the Dutch constitution and, as in the case of Ireland, the Netherlands is a party to a number of international human rights instruments, including the European Convention on Human Rights.

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

Obviously, there is a resistance to spelling things out in clear terms and outlining the sovereignty of our police service and standards in the State.

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

Amendments Nos. 9 and 10 are related and will be discussed together.

I move amendment No. 9:

In page 6, subsection (2)(a), line 17, to delete “or”.

The two amendments are technical. Amendment No. 9 to section 6(2) removes the word "or" where it appears between paragraphs (a) and (b) of the subsection. As discussed on a previous amendment, this confirms that the Garda Commissioner is not limited to only sending Garda or Revenue officers to Europol to serve as liaison officers. Currently, there are three liaison officers attached to the Irish liaison bureau at Europol headquarters, namely, two detective sergeants and one Customs officer.

Amendment No. 10 is a minor drafting amendment to remove the words "if any" from paragraph (b) of section 6(2), as they are not necessary.

Amendment agreed to.

I move amendment No. 10:

In page 6, subsection (2)(b), line 21, to delete “(if any)”.

Section 6, as amended, agreed to.

Amendment agreed to.
NEW SECTION

I move amendment No. 11:

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.”.

SECTION 7

Amendment put and declared lost.

I move amendment No. 12:

In page 6, subsection (1)(b), line 37, after “request” to insert “on a case by case basis”.

Amendment put and declared lost.

I move amendment No. 13:

In page 7, subsection (2), between lines 5 and 6, to insert the following:

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

SECTION 9

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

I move amendment No. 14:

In page 8, subsection (2), line 16, to delete "is satisfied" and substitute "has received a guarantee".

The purpose of the amendment is to strengthen the current draft. Rather than saying they are satisfied they have received a guarantee, they would say they had received a guarantee, which would provide for a stronger position.

Again, the Deputy will not be surprised that I cannot accept the amendment. Its effect would be to remove the need for the head of the national unit to be satisfied that information provided would not be further disseminated without the prior consent of the unit. In theory, the amendment could result in 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 be required to provide the data in question. However, under the current wording, where the head of the national unit is not satisfied, for whatever reason, prior consent will be sought for the further transmission of data. He or she will not be permitted under the legislation to transmit the data. There are numerous similar examples on the Statute Book, requiring all courts, judges, Ministers, officeholders, officials, etc, to be satisfied about particular information. The important element is the mindframe of the decision-maker. It is that person who must be satisfied about particular information. There are also several similar provisions on the Statute Book in so far as provision is made for the State to co-operate and exchange information with other states.

Amendment put and declared lost.
Section 9 agreed to.
SECTION 10

I move amendment No. 15:

In page 8, subsection (1), line 25, after “supplemented,” to insert “or deleted,”.

This is merely a technical amendment intended to strengthen the wording of the related paragraph.

I am refusing to accept the amendment as it is not necessary. Section 10, which it seeks to amend, clearly provides for the deletion of data under subsections (1)(a) and (b). This is simply a drafting matter.

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

I move amendment No. 16:

In page 8, subsection (1), lines 44 and 45, to delete "access and receive" and substitute "input, access and retrieve".

This is a straightforward amendment. Section 11 provides for access by the State to the Europol information system and in doing so gives effect to Article 13 of the Council decision. However, the existing subsection (1) refers only to the right of the national unit and liaisons officers to access and receive data and omits their function of inputting data into the system in line with Article 13. The amendment corrects the oversight in this regard.

Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12

Amendments Nos. 17 to 22, inclusive, are related and will be taken together.

I move amendment No. 17:

In page 9, subsection (1), lines 17 and 18, to delete all words from and including "crimes" in line 17 down to and including "combat" in line 18 and substitute "criminal offences or".

This is a drafting amendment which substitutes the phrase "criminal offences" for the word "crimes". This relates to offences which Europol is competent to prevent and combat. Criminal offences are already defined in section 1, which refers to the offences "for which Europol has competence". It is, therefore, not necessary to refer to Europol's competence in section 12(1).

I cannot accept amendment No. 18, which was tabled by Sinn Féin. This amendment would require the Minister to list "by way of guidelines" the crimes for which Europol has competence. 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". As I stated in the context of an earlier amendment, crimes which fall within Europol's remit are organised crimes, terrorism and other forms of serious crimes affecting two or more member states. The other forms of serious crimes are listed in the annex to the Council decision. Europol also has competence in respect of related criminal offences as listed in Article 4.3 Given that the Council decision is scheduled to the Bill, that it lists the offences which come within the competence of Europol and that a reference to such offences is contained in section 1, I do not see what value would be added by requiring the further publication of information already contained in the Bill. I am of the view that any person who wants to know the nature of the offences involved will consult the legislation. When one reads the Bill, it is quite easy to discover what are the relevant offences. I accept that in view of the amount of legislation coming forward, it is often difficult for Deputies to read every Bill in detail. That which the Deputy is seeking to do is actually dealt with in the Bill.

Amendments Nos. 19 to 22, inclusive, introduce drafting corrections to section 12. Three of these corrections are minor in nature but that contained in amendment No. 21 is more significant. The latter relates to section 12(3). Amendment No. 19 clarifies that compliance, with restrictions, on the use of data is subject to the power to waive such restrictions under section 12(3). Amendment No. 20 corrects an oversight in section 12(2). It proposes that in addition to the reference to "a communicating third state", a reference to a third body, such as Europol or the European Anti-Fraud Office, should also have been included. This amendment makes the necessary correction. Amendment No. 22 makes a similar correction in section 12(4).

Amendment No. 21 relates to section 12(3), which itself relates to the waiving of restrictions on the use of data imposed by other states or bodies. The subsection permits the waiving of such restrictions in circumstances where a court, a legislative body or another body is acting in a supervisory role in respect of the competent authorities. However, such waiving of restrictions requires the prior consultation of the communicating state or body. By introducing this provision, we are bringing the Bill more into line with Article 19.2 of the Council decision. Where the Council's decision can be used to interpret provisions of the Bill, it was considered that the existing section 12(3) went beyond what was required and that the waiving of any restriction should be limited to circumstances relating to the supervision of the designated competent authority. If someone makes a complaint to a court, to the Data Protection Commissioner or to a governing authority within the State in respect of data, such data cannot be used or accessed where it has been provided by another state unless the agreement of said state is obtained in the first instance. This is a technical amendment which brings the legislation into line with the Council's decision. The existing provision contained in the Bill stands outside the framework and is too loose in nature.

Amendment agreed to.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 9, subsection (2), line 20, to delete "Any restrictions" and substitute "Subject to subsection (3)*, any restrictions".

Amendment agreed to.

I move amendment No. 20:

In page 9, subsection (2), line 21, to delete "or a communicating third State" and substitute the following:

", a communicating third state or a communicating third body".

Amendment agreed to.

I move amendment No. 21:

In page 9, lines 23 to 25, to delete subsection (3) and substitute the following:

"(3) Where a court in the State, a legislative body or another body established by statute proposes, when supervising a designated competent authority to waive in accordance with law a restriction placed on information received from a communicating Member State, a communicating third state or a communicating third body, the relevant designated competent authority shall—

(a) consult the communicating state or body concerned as respects the interests and views of that state or body in the matter, and

(b) take all reasonable steps to convey those interests and views to the court, legislative body or supervising authority concerned.".

Amendment agreed to.

I move amendment No. 22:

In page 9, subsection (4), line 27, after "State" to insert the following:

", a communicating third state or a communicating third body".

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13

Amendments Nos. 23 to 29, inclusive, are related and will be discussed together.

I move amendment No. 23:

In page 9, subsection (1), lines 31 and 32, to delete "Data Protection Commissioner" and substitute "head of the national unit".

Amendments Nos. 23, 24, 25, 25a and 27 seek to streamline the manner in which individuals seek access to personal data processed by Europol. Under the existing provision, a request for access to personal data would be submitted to the Data Protection Commissioner who would forward a request to the national unit. The latter would then liaise with Europol in respect of the request.

There are a number of reasons for amending the section in order that requests for access to personal data will be submitted directly to the national unit. First, designating the Data Protection Commissioner under subsection (1) simply creates an extra layer in the application process. Having consulted the latter's office, I am in a position to state that it is inappropriate for the commissioner to be designated for this purpose because the commissioner has a separate legal obligation under the Data Protection Act. It would not be appropriate, therefore, for the Data Protection Commissioner to be involved in handling a request for data in the first instance. Whereas the data protection officer to be appointed under the Bill will oversee compliance by the national unit, there would be no redress available if the Office of the Data Protection Commissioner were not to forward a request to that unit. For these reasons, we are proposing the amendments to section 13. Essentially, the Office of the Data Protection Commissioner is of the view that there is no need for people to make requests to it in the first instance and that people should submit their requests to the national unit. If the latter does not comply, the Data Protection Commissioner will have a role to play.

Amendment agreed to.

I move amendment No. 24:

In page 9, subsection (2), lines 33 and 34, to delete "Data Protection Commissioner" and substitute "head of the national unit".

Amendment agreed to.

I move amendment No. 25:

In page 9, lines 38 to 40, to delete subsection (3).

Amendment agreed to.

I move amendment No. 25a:

In page 9, subsection (4), lines 41 and 42, to delete "subsection (3)" and substitute "subsection (2)".

Amendment agreed to.

I move amendment No. 26:

In page 9, subsection (4), line 45, to delete "30 days" and substitute "14 days".

Amendment put and declared lost.

I move amendment No. 27:

In page 9, subsection (5), lines 46 and 47, to delete "designated competent authorities" and substitute "national unit".

Amendment agreed to.

I move amendment No. 28:

In page 10, subsection (7), line 12, to delete "authorities" and substitute "authority concerned".

Amendment agreed to.

I move amendment No. 29:

In page 10, subsection (8), to delete line 15 and substitute the following:

"to a person by a legal or factual error in data processed by Europol,".

Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.
SECTION 15

Amendments Nos. 30 and 31 are related and will be discussed together.

I move amendment No. 30:

In page 10, subsection (1), line 31, after "of" to insert the following:

"any of the following persons in the performance of their functions as".

These are minor drafting amendments.

Section 15 applies the Official Secrets Act to the persons listed in subsection (1) of that section which includes the director of Europol, a member of the management board, etc. The Official Secrets Act will apply to information which comes to the knowledge of that person listed. Amendment No. 13 clarifies that the Act shall so apply in so far as the information is obtained in the performance of their functions. Amendment No. 31 removes the words, "facts or" from subsection (1). The words are not necessary and are adequately covered by the word, "information".

Amendment agreed to.

l move amendment No. 31:

In page 10, subsection (1), line 43, to delete “facts or”.

Amendment agreed to.
Section 15, as amended, agreed to.
Section 16 agreed to.
SECTION 17

I move amendment No. 32:

In page 11, subsection (1), line 13, to delete “passing” and substitute “commencement”.

This is a minor amendment to clarify that the confirmation provided in section 17 applies from the commencement of the Act and not from the passing of the Act. This is to ensure there is no gap between pieces of legislation.

Section 17, as amended, agreed to.

Amendment agreed to.
Section 18 agreed to.
SECTION 19

Amendments Nos. 33 and 34 are related and may be discussed together.

I move amendment No. 33:

In page 11, line 23, to delete “is” and substitute “and the Europol (Amendment) Act 2006 are”.

Amendments Nos. 33 and 34 are technical amendments. The Long Title to the Bill provides that the Bill will, among other matters, repeal the Europol Act 1997. The repeal of that Act is then provided for in section 19. However, the 1997 Act was itself amended by the Europol (Amendment) Act 2006. Strictly speaking, there is no need to repeal the 2006 amending Act as it is incorporated into the 1997 Act which will be repealed. However, for the purpose of clearing the Statute Book, the Parliamentary Counsel has advised that a reference to the repeal of the Europol (Amendment) Act 2006 be included in the Bill. These amendments make the necessary provision.

Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 and 21 agreed to.
TITLE

I move amendment No. 34:

In page 3, line 8, after “1997” to insert “and the Europol (Amendment) Act 2006”.

Amendment agreed to.

Title, as amended, agreed to.

I thank the Chairman and the members of the select committee for their co-operation.

I thank the Minister of State and her officials.

Bill reported with amendments.
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