Dáil Éireann díospóireacht -
Tuesday, 28 Feb 2023

Vol. 1034 No. 3

European Union Directive: Motion

Minister of State at the Department of Housing, Local Government and Heritage (Deputy Malcolm Noonan)

I move:

That Dáil 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 Directive of the European Parliament and of the Council on the definition of criminal offences and penalties for the violation of Union restrictive measures,

a copy of which was laid before Dáil Éireann on 19th December, 2022.

I thank the Ceann Comhairle and the House for facilitating this motion. On 21 February, the Government approved the request of the Minister for Justice, Deputy Harris, to seek the approval of the two Houses of the Oireachtas to opt in to this European Commission proposal, which relates to the definition of criminal offences and penalties for the violation of Union restrictive measures, which are more commonly known as sanctions. At present, different EU member states have different ways of dealing with sanctions breaches. In Ireland and many other member states sanctions violations are a criminal offence, but in some member states they are dealt with administratively. The European Commission wants to bring in a common approach at EU level to sanctions breaches and has put forward a proposal that will harmonise criminal offences and penalties for any violations. This proposal sets out common EU rules which will make it easier to investigate, prosecute and punish violations of restrictive measures in all member states alike. While the proposed regime is more broadly based, Russian aggression towards Ukraine is ongoing and adds a greater imperative to ensuring that EU restrictive measures are fully and consistently implemented. There must be consequences for the violation of EU sanctions. The ongoing situation in Ukraine makes this proposal an urgent and important one.

Since the start of the war in Ukraine, the EU has adopted a series of sanctions against Russian and Belarusian individuals and companies. Efforts to implement and enforce these sanctions have brought to light the challenges of identifying assets owned by those subject to sanctions who hide their assets across different jurisdictions through complex legal and financial structures. Those who wish to conceal their assets are helped by existing legal loopholes, as the related criminal law provisions vary across member states. The inconsistent enforcement of restrictive measures undermines the EU’s ability to speak with one voice.

The main objectives of this proposal are to ensure that all member states are defining the criminal offences for violating EU sanctions in the same way; to ensure that all member states have effective, dissuasive and proportionate penalties in place for sanctions violations; to foster cross-border investigation and prosecution; and, lastly, to improve the operational effectiveness of investigating, prosecuting and punishing sanctions violations. One of the key elements is defining the kinds of sanctions violations that will now constitute criminal offences. These include making funds available to those subject to sanctions; failing to freeze funds; facilitating entry into or transit through an EU member state; providing certain legal, financial and advisory services which have been prohibited; and trading in goods and services when this has been prohibited. Circumventing an EU restrictive measure will also be made a criminal offence. This includes bypassing or attempting to bypass restrictive measures by concealing funds or concealing who the funds belong to. The proposal also introduces a shared basic standard for penalties so that there will be consistency throughout the EU in how people convicted of sanctions violations are punished.

The legal basis of this proposal is based on Article 83(1) of the Treaty on the Functioning of the European Union. As this is a measure under Title V of the Treaty, Protocol 21 applies and Oireachtas approval under Article 29.4.7° of the Constitution is required for Ireland to opt in to the measure. The view of the Office of the Attorney General was sought and the legal advice received has confirmed that there is no constitutional impediment to Ireland opting in to this directive. Naturally, given the importance of this issue, the Minister's officials will continue to participate actively in the negotiations at working party meetings and engage with other Departments and agencies to ensure the final text of the directive works well for Ireland and the EU as a whole.

While this directive is an important part of the EU’s response to Russian aggression towards Ukraine, it is part of a range of actions under way at EU level. The sanctions adopted in response to Russia's invasion of Ukraine are the most expansive and hard-hitting sanctions in EU history. Ireland has consistently supported the adoption of these measures. With the adoption of a package on 24 February marking the one-year anniversary, EU member states have adopted ten major packages of measures since the invasion. The three aspects of the tenth package are additional listings, sectoral measures and enforcement measures. The package contains approximately 100 new listings of military figures, political institutions, propagandists, additional Russian banks and other supporters of the Kremlin. Iranian, Belarusian and Syrian entities will also be added to the sanctions list.

On the sectoral side, the package includes additional export bans worth more than €11 billion on technology and goods critical to the Russian economy and the war effort, as well as on dual-use and advanced tech goods. The import ban list was also expanded. On enforcement measures, there are now additional reporting requirements, including an obligation on member states to report on any Russian public assets that they hold. This ties into discussions on the possible use of Russian assets to fund the reconstruction of Ukraine.

The impact of the sanctions adopted depends on their full and effective implementation. The new measures to strengthen reporting requirements and tackle circumvention in the tenth package are particularly welcome and the work of the new international special envoy for the implementation of EU sanctions, David O'Sullivan, will also be instrumental in combating the circumvention of EU sanctions by third countries. Ireland has been consistent in advocating for a maximalist approach to sanctions since the start of the war. Ireland will support the widest possible measures and to date Irish financial institutions have already frozen almost €1.8 billion of Russian funds. Ireland is playing a strong part in the EU-wide response to Russia’s actions. Supporting this proposal is another demonstration that Ireland stands in solidarity with our EU colleagues in putting in place measures that robustly respond to such aggression.

The Government has no hesitation in commending this motion to the House.

Deputy Richard Boyd Barrett

It is interesting that nobody else is here for this debate.

An Ceann Comhairle

I see two colleagues present.

Deputy Richard Boyd Barrett

A couple of people are interested then. It is difficult to know what to say about this motion because on the face of it, a motion that calls for consistency in the implementation of penalties for breaching sanctions adopted by the EU seems reasonable. We should have consistency if we make a decision, on principled grounds, to impose penalties or restrictive measures on a particular regime or group of individuals because we feel collectively they have done something wrong. It seems reasonable to have a consistent approach. The problem is that we do not have a consistent approach. We have an inconsistent approach which, when unpacked, reveals cynicism and double standards.

Senator Frances Black introduced a Bill calling for sanctions on trade between this country and the illegal settlements of the apartheid state of Israel on the West Bank. It was passed by this House but the Government ensured it will never become law. It is the case with not only the Irish Government but also the major European powers because they do not want to sanction Israel. In fact, in many cases, they want to support Israel and give it impunity for war crimes, crimes against humanity, illegal occupation, what is essentially internment of Palestinians, including young people, and for the illegal and criminal siege of Gaza. They do not want to impose sanctions even though, under international law, they would be entirely justified if not morally obliged to do so. No sanctions were imposed. Human Rights Watch, Amnesty International, the UN special rapporteur on the Middle East all say there should be sanctions against Israel for war crimes, crimes against humanity, apartheid and the siege of Gaza. Yet, there are no sanctions and, in fact, the opposite is the case. Major European powers, including Britain, Germany and others, give Israel arms and weapons and the EU gives it special trade status.

It did it favours for breaking international law. Apparently, the European Union has found its moral compass when it comes to Ukraine. All of a sudden, the European Union is a champion of self-determination and opponent of illegal occupation. Undoubtedly, Putin is engaged in an illegal criminal war and occupation, war crimes and all of that. We must have sanctions, but not, apparently, against Israel for doing exactly the same thing for decades with European support. Where is the moral compass and consistency? There is, of course, none whatsoever.

When the United States invaded Iraq in 2003, where was the call for sanctions? To be honest, I would not have supported a call for sanctions, even though some did at the time, because I do not blame the American people for what George Bush did in Iraq, but where is the consistency?

Deputy Thomas Pringle

They are the good guys.

Deputy Richard Boyd Barrett

They are the good guys. That must be it. When they bomb people to bits and kill a million people in Iraq, it is different because they are the good guys. When European countries arm the Saudi dictatorship so that it can carry on a war over exactly the same period of time as Putin has been at war with Ukraine, we say not a word. There are no sanctions and we continue to trade and have meetings with it. There is not even talk of sanctions. Apparently, we need consistency according to this resolution.

To me, it is the biggest load of hypocrisy I have heard in my life. When there is a bit of moral consistency, maybe we could take this stuff seriously.

An Ceann Comhairle

I thank the Deputy for his contribution.

Deputy Cathal Berry

I welcome the opportunity to contribute to this important debate on whether we should transpose an EU directive on the definition of criminal offences and penalties for the violation of restrictive measures into Irish law. I am happy to support the motion for a number of reasons. I am, in principle, in favour of sanctions as an alternative to violence, provided those sanctions are targeted not at the ordinary people in these countries but rather at regimes, palaces, oligarchs and senior decision-makers.

An integral part of the EU Common Security and Defence Policy is that it can safeguard and promote EU values abroad. These are universal human rights, not just western human rights, and involve equality, the rule of law, democracy and all of the rights in that family. The Russian and Belarusian situation at the moment is a classic example. Of course the sanctions are not perfect, but are they depriving Russia and Putin's war machine of resources, funding and technology? They absolutely are. Are they the sole answer? Of course not, but they are making a positive difference.

My concern is very similar to that of the EU, namely that there are very easy methods of circumvention. The whole idea of the directive is to tidy and tighten up the inconsistent application whereby some countries regard breaches of violations of the sanctions as merely administrative, rather than criminal, issues.

I welcome the recent establishment of the EU task force on freeze and seize, which involves the confiscation of assets. The Minister of State mentioned that €1.8 billion of Russian and Russian associated assets have been seized in this jurisdiction. Perhaps he could indicate in his concluding remarks whether the Government has a plan for that money. Many countries are considering not just freezing but also seizing assets and keeping the money in an escrow account for the redevelopment and reconstruction of Ukraine post conflict.

The objectives of the directive are straightforward. First, it harmonises the approach, for which there is a sound legal basis, improves and fosters cross-border co-operation and prevents the aiding and abetting of people circumventing the sanctions regime. I welcome the motion. I am in favour of transposing the directive into Irish law. I ask the Minister of State to comment on the question of seizing or freezing the €1.8 billion to which I referred.

Deputy Mattie McGrath

The implementation of the new restrictive measures has shown the complexity of identifying assets owned by those subject to sanctions who hide their assets across different jurisdictions through complex means and financial structures. Those who wish to conceal assets are helped by existing legal loopholes as the criminal law provisions relating to the breach of EU sanctions vary between member states. This is the problem.

We are now a full 12 months into the war and I understand eight different sets of sanctions have been introduced. The intent may be good, but the sanctions are not effective. As I have said, we are all over the place. This directive is meant to ensure effective, dissuasive and proportionate penalty types and levels for criminal offences relating to the violation of EU restrictive measures. Are they having any impact? Are they having the desired effect with regard to oligarchs and people who have ingenious ways of transferring funds and moving them elsewhere?

The directive also proposes to foster cross-border investigation and prosecution. Surely to God that already exists as things stand. We are a year into these economic sanctions and the war. We are coming to the table very late. It is like closing the stable door when the horse is in the Curragh, which is in the Ceann Comhairle's constituency. There is an old adage about closing the door after the horse has bolted. We need to be more effective and engaging, pony up with people and tell them we have proper mechanisms, or else it makes a folly of the sanctions.

Deputy Michael Collins

Since the start of the war in Ukraine, the EU has adopted a series of sanctions against Russian and Belarusian individuals and companies. The implementation of restrictive EU measures has shown the complexity of identifying assets owned by those subject to sanctions who hide their assets across different jurisdictions through complex legal and financial structures. Those who wish to conceal their assets are helped by existing legal loopholes as the criminal law provisions on breaches of EU sanctions vary across member states.

The inconsistent enforcement of restrictive measures undermines the EU's ability to speak with one voice according to the European Commission. People who enter this country should have some type of documentation that identifies who they are. We are strict with our own laws when it comes to people who have resided here for years, yet we let every person who is running from war and, in some cases, from where there is no war, into Ireland without any identification.

An athlete representing Ireland wants to compete in the European games but cannot get his foreign birth registration expedited in order to represent Ireland. He has been living and working in Ireland for years. Another person who is also supposed to be representing Ireland cannot get a foreign birth registration expedited in order to represent this country, yet we have no problem handing out identification documents and welfare to people who have nothing to do with Ireland and, in some cases, could cause a serious danger to us. One of the biggest hitmen in the world resided in Ireland, something we did not realise until he was extradited recently, and correctly so. I understand most people coming into the country are genuine, but surely when our own people who have been working here for years cannot get passports it is a strange and frustrating situation.

With regard to penalties for legal persons, the proposed directive requires member states to provide for criminal or non-criminal administrative fines, exclusion from entitlement to public benefits or aid, exclusion from access to public funding, including tender procedures, grants and concessions, and may include other penalties.

An Ceann Comhairle

I call Deputy Pringle, after which I will go back to Deputies Kenny, Ó Ríordáin and Catherine Murphy. This will be a concession and is not to be taken as custom and practice.

Deputy Thomas Pringle

I thank the Ceann Comhairle for the opportunity to speak on this important proposal. Last year, the Commission proposed to add the violation of EU restrictive measures to the list of EU crimes and the proposal that is being put to us today is for a directive on the definition of criminal offences and penalties for the violation of Union restrictive measures.

Before I speak about this, I have to agree with Deputy Boyd Barrett. We contrast the European Union's reaction to the absolutely wrong invasion of Ukraine with how the Union treats Israel, the destruction of Palestinians, Palestinian property, villages and lives, even during this last week. There is also the reaction to Saudi Arabia in Yemen. It is contrasting and the only option that can be seen is that Israel and Saudi Arabia are the good guys and Russia are the bad guys. That seems to be the way it is. Is that the way the European Union is going to work from now on? Maybe they should put a clear list up there, so we will know that when one government kills people it is okay and when another government kills people it is wrong. That seems to be what is going on here.

Before I speak to this measure, I would first like to point out that, to my knowledge, the proposal was still ongoing while this debate was starting. It was actually on the agenda for discussion of the justice committee today. Luckily enough, it flew through in a flash because there was no discussion on it. I had been here in the Dáil and was a couple of minutes late getting to the justice committee meeting, and it was gone. At least that part has been rubber-stamped for the measure to go through. These things should probably be taken to a meeting. I understand that this motion requires a resolution of the Dáil. It is coming through the Dáil today so it will be put into force.

The Attorney General found there was no constitutional impediment to Ireland opting into this directive, but noted a few areas that would need to be considered from a transposition perspective, including the provision under article 3 which criminalises the breach of a travel ban. The text of this directive is still being negotiated, with the most recent meeting between officials taking place only yesterday. Yet, we are putting through the adoption today, which is disappointing. It is disappointing that we are debating the proposal today given this and it is very concerning that we are trying to push approval for it through before the deadline next week, without proper debate. The reason given by the Department for rushing this through is that: "not opting in under Article 3 of the Protocol would present risks in terms of Ireland’s reputation and the perception of Ireland’s commitment to the international sanctions regime". Let me be clear, that fear of repudiation and perception are terrible reasons to rush a decision on any proposal, never mind important proposals such as these, of which we do not yet know the full implications.

I would now like to speak to the proposal itself. I absolutely condemn the horrendous acts by Russia towards Ukraine and my thoughts go out to all those suffering from the violence of the past year. I also understand the implementation of a series of sanctions against Russia to demonstrate our condemnation. All EU countries have been in favour of these restrictive measures and therefore I would like to know the reasoning for adding the violation of EU restrictive measures to the list of EU crimes. It seems extreme to me when every country is actually in favour of this and has been implementing sanctions already. I personally question the use of sanctions and their effectiveness, but there is no doubt that all European countries have been supportive of them by choice. I do not see why it would be necessary then to force this support and to threaten countries with criminalisation if they do not agree to it. It is unnecessary, extreme and controlling.

This proposal has the potential to foster mistrust and resentment between the Union and member states who have happily supported sanctions until now. Criminalisation is not the answer and it is for this reason that I am very wary of this motion and do not support it. Instead of focusing on unnecessary criminalisation, the focus in Europe should be on facilitating negotiations and a ceasefire. It should be on promoting peace, which is the very first of the European Union’s listed aims and values. We will see how that goes as well.

An Ceann Comhairle

We will now go back to Deputy Kenny, then Deputies Ó Ríordáin and Catherine Murphy.

Deputy Martin Kenny

I thank the Ceann Comhairle for his indulgence on this. The proposal is to bring us into line with European countries in regard to those who would fall foul of the various sanctions regimes that have been brought in. I support that and I understand where that is coming from. I do have certain reservations about it as well. The rushed nature of it is something we should try to avoid in the future in any of these situations.

A year ago Russia invaded Ukraine. The Russian aggression there has been immense, extreme and has caused a huge humanitarian catastrophe for the people of Ukraine who have been scattered across Europe. Many of them have come here to Ireland and they are very welcome here. I listened to the radio this morning and it was said that there are more than 1 million Ukrainian people in Germany and over 1.5 million in Poland. Sometimes we think that a great number of people have come here. While many people have come here, when compared to many other countries, we need to recognise that we are playing a small part. Yet, it is a very important part and an important role that we play.

The issues in regard to sanctions and using sanctions as a means of putting pressure on the Russian regime are important and can be used effectively and efficiently. However, we have to be careful that this does not have a detrimental effect on ordinary Russian people and they are not the ones to suffer from this. It has to be targeted at the people in the higher echelons of the Russian Government, such as Putin and those around him, as well as the oligarchs and the huge wealth we see them display. In Russia, in effect, a new model of imperialism has developed over the past number of decades. It is an extremely fascist and repressive state and that needs to be recognised and acknowledged.

Deputy Boyd Barrett raised the issue of other states that are equally repressive and fascist, but which we do not treat with the same sense of urgency. That is something we should all reflect on. It is certainly something Europe needs to reflect on, particularly in its attitude towards what happened in Yemen over the past number of years, as well as with what happened to the Palestinians and the Israeli situation. We need to correct ourselves in regard to these double standards which continually come up in respect of all that. With that said, it is important from a European perspective that all members of the European Union have the same sets of standards and rules in place in this situation, and hopefully in others as well, where sanctions can be put in place. The same rules should be put in place for them.

A great deal of money passes through the International Financial Services Centre. There are many shadow companies and various other institutions and regimes. We have to be vigilant about how they can be used to benefit some of these very wealthy oligarchs that are very close to the people who are causing such terrible devastation across all of Europe.

I want to go back for a moment to some of the comments that were made about the people who come to Ireland and indeed about the many Ukrainians who have come here. They are very welcome and will hopefully be an asset. They already are an asset to many communities and, hopefully, they will be an asset to more communities across the country. Reference was made to people who come here without passports. It is important to point out that over 40% of refugees across the world leave the countries they come from without a passport. They cannot get one and that is why they travel. In many cases, they have to get false passports and documentation in order to travel on to the countries they need to go to. In most jurisdictions, it is a worse offence to have false documentation than it is to have no documentation. Therefore, they turn up and say they have no documentation. That is often what happens and that does not mean these people are somehow or other trying to cheat the system. It actually means the system they have come from is so defunct and so terrible that they were forced into that position. It is important to recognise that.

The primary issue we have to deal with here is what has happened over the past 12 months and the very significant upheaval that has caused across Europe, which is something we all have to take seriously. Of course, this is the first time in decades and almost the best part of a century that Europe has been the centre of this type of situation where we have seen a war of this nature visited on people. However, it is not unusual for these proxy wars to be happening on other continents and in many cases it has been European countries that have been in the shadows in respect of all that. We in Europe do not have clean hands when it comes to all these situations. That clearly needs to be recognised.

I want to finish on this point because I respect that I was late for the debate and I do not want to over-indulge. The primary thing we need to get right is that there needs to be consistency. There needs to be consistency with how we treat all these situations, or else we will not have any credibility in regard to any of them. That is what Europe needs to get its head around. I was at the Organization for Security and Co-operation in Europe last week in Vienna, where there were great debates by representatives from all the countries. Representatives from almost every country were united in their condemnation of what Russia is doing and indeed of what Belarus is doing in supporting them.

Indeed, representatives of many of the countries in attendance, in particular ones that are former colonies themselves, smiled and nudged one another when they heard certain states being so vigorous in their condemnation because they have short memories when it comes to how some of those countries had treated many of the countries that were represented in the room.

We need to get this right. We cannot live in the past. We have to step over all that and look to a future where there are firm laws and rules by which we will all abide, but also firm laws and rules we all recognise we have an obligation to drive home to ensure every country will be part of that. It cannot be just for the select nations we decide are, as one Deputy said earlier, the good guys rather than the bad guys. We need to lose that idea and move forward.

Deputy Aodhán Ó Ríordáin

I appreciate the Ceann Comhairle's indulgence. Many of us were attending a meeting of the Joint Committee on Justice when we realised we were running late for the debate.

We regret the fact the debate is being slightly rushed. It is an especially important debate given that at the heart of what we are discussing in the context of the motion, which the Labour Party supports, is the very nature of the EU. It is central to many of the debates that have been happening in this country over recent years, not least relating to the Ukrainian war and the EU's response to it, which is the central point of this motion, but also to the very basis of the EU, a debate with which we in Ireland have been struggling because of Brexit, as well as to our defence of being a member of the EU, how the EU has assisted us as a member state and how the EU has been the greatest peace project in post-Second World War Europe. It is part of that understanding of our place in the world and in the EU that we have an historical and moral obligation to accept those fleeing that conflict into this country, as has been mentioned.

It is incredibly hypocritical and quite nauseating to hear voices in Ireland and even in this Chamber who would second-guess the intentions of those who come into this country. There are estimates of up to 55,000 Irish people living illegally in the United States, so it is remarkable how we change the language we use when we describe the Irish in the US as undocumented but those who come here seeking protection as somehow illegal. We need to check ourselves a little in respect of our hypocrisy regarding our own history of travelling all over the world by different means, often without the correct documentation. We overstayed our welcome and that is why there are Irish names all over the place, in every jurisdiction and all over the world. We need to remind ourselves of that.

In November 2021, before the invasion, Deputy Howlin of the Labour Party brought forward the Magnitsky Bill, which would have a major impact in freezing the assets of Russian war criminals. That is something the Government should have taken on board much more speedily. It has been on the Order Paper of this House since November 2021 and we feel strongly that the Government should move on it.

As was mentioned by other Deputies, the EU has stature and an ethical backbone only when it deals with all international conflicts in a similar manner. It is hypocritical not only for Irish people to question those coming here but also for the EU to bring forward sanctions against Russia without having a similar perspective on conflicts such as that waged by Israel on the Palestinian people. I grew up in Ireland during the South African apartheid regime and we were united, as a country and in the international community, regarding what had to be done about South Africa. It was frozen out of cultural and sporting exchanges and there were heavy sanctions, as advocated by Desmond Tutu and others. Apartheid was finally done away with and freedom reigned in South Africa. That will happen in Israel only when that country no longer feels it has friends in the EU and the United States, and there is an ethical absence there. There is a very significant contradiction between how we are, justifiably, dealing with the Russian scenario and how we are allowing an apartheid regime to reign uninhibited in Israel, which is quite happy to see men, women, children and journalists die. It behaves in a manner that is absolutely consistent with what happened in South Africa before the 1990s.

While we will support the motion, we feel that the EU, of which we are a proud member, needs to deal with other international conflicts in a similar vein to how it deals with that in Ukraine. If we were to exert that power in respect of what is happening in Israel and Palestine, we might get successes and our international reputation would be greatly enhanced.

Debate adjourned.