Hague Programme: Ministerial Presentation.

Item No. 1 is an exchange of views with the Tánaiste and Minister for Justice, Equality and Law Reform, Deputy McDowell, on the period of reflection of the Hague programme and the proposed use of thepasserelle provision. I welcome the Minister to a joint session with the Joint Committee on Justice, Equality, Defence and Women’s Rights.

Apologies have been received from the Chairman of the Joint Committee on Justice, Equality, Defence and Women's Rights, Deputy Ardagh, who has been unavoidably delayed. I, too, welcome the Minister. Members will be aware of the diverging views on the way forward as proposed by the European Commission, particularly as regards the proposed use of thepasserelle clauses. We look forward to hearing the views of the Minister and committee members on how Ireland should proceed on this issue of fundamental importance to citizens.

I remind members that the Tánaiste has to leave at 4.15 p.m. As we have only one hour and ten minutes remaining, I ask members to put their questions in quick order. The Tánaiste's opening statement has been circulated.

I wish to be associated with the Chairman's good wishes to Deputy Dan Wallace.

I thank the joint committees for inviting me to address them today on justice and home affairs issues facing Ireland in the European Union. Justice and home affairs is now a major area of EU policy. It is an important area involving issues central to the security and freedom of our citizens. It is not surprising, therefore, that there is an extensive work programme. It is also a complex subject where the necessary balance between the powers and duties conferred on the European Union and those retained for member states must be critically monitored and carefully maintained. It is appropriate, therefore, that we have a broad debate on the issues arising from the work programme. The fact that this discussion is taking place before two committees of the Oireachtas reflects the importance of the subject.

As stated in the treaties, maintaining and developing the European Union as an area of freedom, security and justice is a key objective of the European Union. There are two distinct areas or pillars in the general JHA framework, namely, immigration, asylum and judicial co-operation in civil matters and police and judicial co-operation in criminal matters. The dynamics are different for each. In asylum, immigration and civil law the usual Community method applies, which gives sole right of initiative to the Commission and involves qualified majority voting, QMV, and co-decision with the European Parliament. Ireland, in common with the United Kingdom and Denmark, is not a party to this area but we can and do exercise a right to opt in to any measures brought forward from time to time. Co-operation in criminal matters is, by contrast, largely intergovernmental in nature and decisions are taken by unanimity.

The priorities for the JHA area as follows: the development of common immigration and asylum policies; strengthening the capacity of the European Union and its member states to combat terrorism, organised crime, drug trafficking and other forms of serious crime, particularly through measures designed to improve operational co-operation between member states; and the further development of judicial co-operation in civil and criminal matters. These priorities are addressed through a five-year work programme. The current programme, the Hague programme, was adopted by the European Council in November 2004.

As stated, the programme is extensive. Ireland's policy in relation to it is to actively participate in measures to realise the JHA priorities, bearing in mind the following criteria: respect for the limitations of the treaties and the principles of subsidiarity and proportionality; the preservation of our common travel area with the United Kingdom; the preservation of the integrity of our legal system; and strong support for greater practical co-operation, particularly between police forces.

In that context, there are a number of challenges which we are facing including: the Hague programme review, particularly the proposed use of thepasserelle provision in Title VI on police and judicial co-operation matters; keeping the focus on practical measures in the area of police co-operation and combating terrorism; pursuing mutual recognition of judgments in the criminal and civil field, as opposed to harmonisation measures; and participating in asylum and immigration matters to the extent that they are compatible with the maintenance of the common travel area and the integrity of our own immigration powers. I will refer to these challenges in the course of this presentation. A review of the Hague programme was anticipated in the context of the coming into force of the constitutional treaty which has not yet been ratified by all member states and is, therefore, not yet in operation.

The Commission has published a number of communications on the Hague programme issue. The most important of these was a call for discussion of the use of Article 42 of the Treaty on European Union, known as thepasserelle provision — passerelle is French for a little passageway or alleyway. The provision gets its name from an alleyway from the third pillar into the first pillar. Article 42 allows, by a unanimous vote of the Council, movement of the sensitive areas of police and judicial co-operation in criminal matters from the current intergovernmental type rules to the more standard Community rules such as qualified majority voting, QMV, and sole right of initiative for the Commission. Ireland has taken a strong stance in opposing this approach. We argue that using Article 42 at this stage would amount to cherry-picking of the justice and home affairs provisions of the European constitutional treaty. In that context, it should be noted that the treaty gives Ireland important provisions to safeguard fundamental aspects of national criminal justice systems which we do not believe would be replicated if we were to adopt the passerelle provision with the necessary degree of legal certainty.

Ireland has also expressed the view that the correct method of improving police and judicial co-operation is by improving practical co-operation rather than introducing further unnecessary legislative proposals. I have also proposed that decision-making could be improved if EU legislative proposals were vetted by an independent person or body to ensure any legislation proposed would be beneficial to improve police and judicial co-operation.

I advanced these views at the informal Justice and Home Affairs Council in Tampere on 21 and 22 September. The clear majority view at that meeting was to reject using the Article 42passerelle provision at this stage. Additionally, there was a strong view that increased emphasis should be placed on practical co-operation and the need to assess the value of legislative proposals more thoroughly. There is a requirement for a report to be made to the European Council in December on the passerelle issue but I expect that report will recognise that activation of the passerelle provision is not supported by the majority of member states. As I stated, our focus is to encourage practical co-operation between law enforcement agencies at EU level. In this respect, Ireland participates fully in the work of Europol. The Europol Bill 2006, currently before the Dáil, will enable Ireland to give effect to a strengthened role for Europol.

In so far as co-operation between police forces is concerned, there is an important focus in the Hague programme on information exchange. The programme provides that the exchange of information should be governed by the principle of availability. This simply means that there should be a seamless exchange of information between law enforcement agencies. Ireland supports this approach. Proposals to give further effect to this principle are under discussion. It will, for instance, be applied to DNA data as a first step.

Ireland has applied to operate police and judicial co-operation provisions of Schengen. The necessary additional legislative measures will be included in the Criminal Justice Bill under preparation in my Department.

Terrorism remains a real and significant threat within the European Union, as exemplified by the Madrid and London bombings in 2004 and 2005. We only had to listen to the radio this morning and watch television last night to realise that there was also an external threat which could turn into an internal one. Considerable work has been carried out in this area at EU level. In December 2005 the European Council adopted an EU counter-terrorism strategy and action plan which specified the areas of counter-terrorism of particular importance to security. For Ireland's part, we co-operate closely and actively with other member states in the fight against terrorism.

Mutual recognition is the guiding principle for the development of judicial co-operation in both criminal and civil matters. Mutual recognition means that, in general terms, a decision of a court in one member state can be recognised and enforced in other member states. The approach is intended to ensure full co-operation between judicial authorities without interference with the integrity of national legal systems. Instead of having a uniform system across Europe, we state we will recognise each other's court orders. Ireland is strongly in favour of this approach which is crucial to ensuring important features of our common law tradition are not overwhelmed by EU harmonisation ambitions.

In the criminal law area an important focus of mutual recognition is to ensure criminals cannot evade justice because of differences in legal systems. The European arrest warrant and the recently approved European evidence warrant are important examples of mutual recognition initiatives which Ireland supported. Mutual recognition measures in the civil law area are aimed at jurisdiction and recognition-enforcement issues and applicable law. In Ireland's case the opt-in arrangement applies to this area of co-operation.

While our policy is to participate as far as possible, a recent exception was the Government decision not to participate in the Rome III measure which dealt with applicable law on divorce. A key factor influencing our decision was a determination to ensure the constitutional safeguards surrounding the granting of a divorce in this country would not be undermined. The particular measure proposed that if, for example, a Swedish man married an Irish woman, they would have a choice to have their matter dealt with in an Irish court, either at their option under Swedish law or Irish law, or a Swedish court, either at their option under Swedish law or Irish law. That is a complex proposal which would have the effect of Irish courts dealing with transnational marriages in a wholly different way from the way they deal with domestic matrimonial disputes and we were not attracted to it.

Ireland has recently taken a case on the legal base used in the directive on the retention of telecommunications data. It argues that the sole or, alternatively, the main or predominant purpose of the directive was the investigation, detection and prosecution of serious crime, including terrorism. In the circumstances, it is Ireland's contention which we are making to the European Court of Justice that the only permissible legal base for the measures is the intergovernmental third pillar model, not a first pillar instrument as has been purported to be adopted by the Community. This is not just an academic legal point; it represents an important principle as to whether member states can retain the power to legislate in areas dealing with national security and the proper functioning of their societies.

The Hague programme sets out the steps required for the establishment of a common EU asylum policy, the first phase of which has been completed, largely in the term of the Irish Presidency, with the adoption of instruments dealing with the introduction of minimum standards in areas such as the criteria for qualification for refugee status and subsidiary protection. The priority in the period ahead will be the transposition by member states and evaluation by the European Commission of instruments adopted in the first phase of that common EU asylum policy. Ireland is on track in transposing all the relevant instruments. A Green Paper is expected from the Commission in early 2007 on the next phase of the policy, but any movement from minimum standards to common standards will require treaty changes, as provided for in the constitutional treaty.

An issue arising in one of the Commission communications published last June is its proposal to activate thepasserelle provision contained in Article 67(2) of the treaty establishing the European Community. Activating that provision would remove the existing restrictions on the jurisdiction of the European Court of Justice in Title IV matters which deal with immigration, asylum and judicial co-operation in civil matters. The main restriction is that only courts whose decisions cannot be appealed can refer questions to the European Court of Justice. The effect of removing this restriction would be that all courts and, possibly, other decision-making bodies could refer questions to the European Court of Justice. Ireland was concerned about the potential of that measure to introduce delays into our system for processing asylum applications and had similar concerns about the ability of the European Court of Justice to deal with asylum-related cases expeditiously. As a result, it chose not to exercise its option to opt in to the proposal and will not be participating in the measure.

The European Union focus on immigration is to ensure free movement of EU citizens, the regulation of migration flows and the control of the external border. The Commission intends to bring forward a number of proposals on legal migration, including proposals on the conditions of entry and residence of highly skilled and seasonal workers. While Ireland welcomes discussion at EU level on legal migration, we would be cautious in considering whether there is a need for a unified approach because attempts to harmonise EU legislation could reduce the ability of policymakers to respond effectively to skill shortages in the Irish labour market. As matters stand, Ireland can ultimately choose whether to opt in to any forthcoming proposals.

The European Commission issued a communication on illegal migration in July this year. The communication sets out nine key policy priorities, including co-operation with third countries, the fight against human trafficking and border security. Ireland has already made good progress on some of them.

FRONTEX, the European border management agency, co- operates directly with member states and is responsible for the co-ordination of joint operations and projects at external borders. Ireland has opened discussions with it with a view to formalising an agreement on participation in its activities. While it has a Mediterranean and eastern focus rather than one of direct relevance to us, on the other hand, it is relevant indirectly in that whoever enters the European Union can travel freely. As such, we have an interest in its success.

The Hague programme represents a substantial body of work and many of its tasks have been addressed. The challenge remains of continuing the development of real and practical co-operation, as distinct from paper co-operation, at EU level to enhance the safety and security of all EU citizens. I am happy that Ireland can continue to play an important role in ensuring the European Union meets that challenge by participating in the work towards the realisation of the remainder of the Hague programme objectives.

The Minister spoke of a seamless exchange of information between law enforcement agencies. In the past nine or ten months members of the committee have visited a number of countries. We set out this year to visit the new accession states, in particular. To this end we visited Latvia, Lithuania, Romania and Bulgaria. On every trip we asked about the exchange of information between our police force and that of the country visited. We were concerned about those countries from where we would be getting many migrant workers. It was an obvious question: what kind of relationship does our police force have with the law enforcement agency concerned? Whereas the Minister spoke of a seamless exchange of information, in many cases it was made clear to us that there was no exchange of information and that there was no relationship.

We were interested because we had asked this question on a number of occasions. When Garda Commissioner Conroy was asked it at the Joint Committee on Justice, Equality, Defence and Women's Rights, he made it clear that there was no relationship between the Garda Síochána and police forces in some of the ten accession countries from which we would be experiencing an appreciable level of inward migration. We also asked the question in Romania and Bulgaria in particular as there were concerns about the level of organised crime in that country. Is the Minister happy that the Garda Síochána has developed reasonable relationships with some of the countries mentioned? It has been made clear to me that there is no seamless exchange of information between some law enforcement agencies.

It would be misleading to state I was happy. There must be a mutual relationship which instils confidence. In every case there is a bilateral relationship and it is important that there are contact points between police forces. However, we have not established a satisfactory network of bilateral exchanges with the accession states. Therefore, the answer to the Chairman's question is that I am not happy with the current situation. I would make two points in that regard. First, access to criminal records and information on suspects and criminal intelligence is much more highly regulated in many of the civil law systems than in common law countries. It is a rule of thumb in common law countries that something that is not prohibited is permitted. However, it is a rule of thumb in civil law countries that something that is not authorised is prohibited. They have a much more explicit system under which, for example, to be able to give a fingerprint of a person who has been arrested in Poland, if one is not using Europol as the transmission network, there must be express authority for a policeman to make that information available, whereas in our relations with the United Kingdom a policeman need only ask another by telephone to fax a copy of the fingerprint of the person concern and it is done. That cultural difference presents a big problem.

Much of what is happening in Europe on the exchange of information is predicated on the proposition that there must be a formal legal instrument. All sorts of issues then come into play such as data protection, privacy and confidentiality and the uses to which information will be put. On the European method, one must set out various matters — that the information cannot be used for a certain purpose, that it must be carefully used in respect of (a), (b) or (c), or there will be a problem.

I accept those points. If the Minister is not satisfied, are there plans to seek a relationship with those police forces with which there is none?

As he stated to the committee, the Garda Commissioner intends to develop a relationship, where relevant, as best he can between Ireland and other member states. Bulgaria and Romania will soon be members of the European Union. There is a proposal before the Justice and Home Affairs Council on the principle of availability. Once it is in place, it will be much easier to establish relationships. I do not need to legislate to allow a Polish policeman to become attached to Garda headquarters. He or she could just sit in a room and do whatever he or she had to do. However, in many continental countries that would be unlawful, unless it was explicitly authorised in a legislative arrangement. That is the difficulty.

International police co-operation is becoming more important by the day because criminals know how to pervert the law and appear to know more about it than most. One would believe from what one reads that we enjoy great police co-operation with our nearest neighbour and that there is a high level of cross-Border co-operation, but the reality in the Border area, particularly now that the police are less vigilant, is that criminals see it as an area in which they can roam freely, almost at will. In Cavan and Monaghan business people are terrified. They are literally sitting ducks for criminals crossing the Border from the Six Countries to repeatedly commit robberies. The Garda has increased the level of surveillance and does its utmost to combat such activity. It is the level of police co-operation that I would query. Despite the fact that shopkeepers have excellent video footage, know exactly who the people involved are and know their track records, nothing is done to apprehend them, yet we are supposed to believe there is great police co-operation. If there truly was, the people concerned would be brought to justice here. The shopkeepers concerned are terrified and stressed. In the past week one individual of whom I am aware who has a fine shop in a nice Border area decided to call it a day. Shopkeepers cannot take it anymore because they do not know when they will be hit next. Some of them do not know what action they might take, yet we are supposed to accept the Minister's statement that there is police co-operation. I would like to hear his response.

There is at a high and an operational level a culture of co-operation between the PSNI and the Garda Síochána. Whether it is the Northern Bank robbery, there is close co-operation between the forces. For instance, there are joint conferences, a few of which I have addressed, between the CAB and the Assets Recovery Agency. There are close relationships between local operational commanders.

Deputy Connolly will be aware that there has been a difficulty in policing the northern side of the Border in the area immediately adjoining Cavan and Monaghan. Even now, at this stage of the Good Friday Agreement, there is considerable resistance in some communities there to the presence on a normal day-to-day basis of the PSNI. I hope that will improve in the next few days, with the normalisation and commitment to policing across Northern Ireland. Deputy Connolly will appreciate from his own experience and what he hears on the ground that for instance, for the PSNI to intervene in a meaningful way in some communities in that area requires a large scale operation with escorts from armed forces and the like, even on routine matters like recovering stolen vehicles from those who are trading in them. That is a point that we must bear in mind. I hope for a substantial improvement in policing so that it extends right up to the Border.

There are other interesting measures. We have had preliminary talks with the United Kingdom about some of the implications of Schengen type arrangements. Where, for instance, police are in hot pursuit of somebody who drove to a border, among the Schengen countries the police are entitled to pursue across the border. This is an issue on which we are still at a preliminary stage and I do not want to exaggerate our progress, but we have noted that this makes sense. If one of the shopkeepers to whom Deputy Connolly referred was raided and a Garda car pursuing the miscreants drives across the Border, it makes no sense in the long term to simply peel off and watch them go. If there is to be seamless policing co-operation, there must be some form of Schengen type co-operation in the long term and that is something towards which we are moving.

There is strong co-operation with the UK authorities. There is another area to which I would draw Deputy Connolly's attention. For instance, there is significant co-operation between the Garda National Immigration Bureau and the British immigration authorities on illegal migration into this country.

I would not like to exaggerate. There is a problem and Deputy Connolly is correct. There is a discontinuity in policing and at present there is not seamless policing in Border areas. It is to the detriment of the communities on both sides of the Border that such is the case.

I always say that we are interdependent. There is no such thing as independence in respect of crime in modern Europe. If somebody commits a crime in Keady, it affects what is happening down the road. We are dependent on each other to uphold the law.

It is a major issue and I would welcome it being addressed.

The other issue is that while there are appeals not to buy fireworks, during the Hallowe'en period they just set up shop at will on concession roads.

I have seen that.

If there was any form of police co-operation, this would not happen.

It is not illegal to sell fireworks on the northern side of the Border but if there was co-operation, it would be great to be tipped off and know which car to stop and seize in the South.

If they spent a while there, they would not need to be tipped off.

We are again half-debating the Hague programme. As I stated on several occasions in this committee and in the House, despite being half-way through the Hague programme at this stage there has never been a full debate in the House on its merits. We have not debated whether it is advisable, how the programme front-loaded the security measures and the rest, including the protections which are to come at the end of the programme, if ever reached, and how it has been affected by the rejection of the European Constitution. Yet there seems to be manoeuvring to circumvent the rejection of the European Constitution by cherry-picking it. The Minister is correct in that the use of thepasserelle would be cherry-picking some aspects of the Justice and Home Affairs provisions of the European Constitution. I support the Minister’s position that Ireland should reject the use of Article 42 — the passerelle — and that we should, especially in this area, object to any move towards qualified majority voting in these contexts.

I want to ask the Minister one or two questions. These relate to my concern that there seems to be a move by stealth in this area. For instance, the committee debated the passenger name record — PNR. Even though it should have been a justice issue, it was not a matter for the Justice Ministers and was dealt with through transport. Similarly, the directive establishing a European criminal instrument to fight piracy and counterfeiting, which is currently being debated and which one would also presume is a matter for the Justice and Home Affairs Council, is a matter being construed as an Internal Market issue and is being dealt with by QMV whereas, in fact, it involves matters such as minimum sentences which I presume should be taken under Justice and Home Affairs procedures requiring unanimity. There might not be a problem with the directive, but the fact that bit by bit these matters are slipping out of the Justice and Home Affairs Council means that states such as our own can be overruled or voted against because of the QMV procedures.

Deputy Ó Snodaigh raises an important point, that the Commission and the European Court of Justice have in two particular cases taken the view that something which we would consider part of Justice and Home Affairs and the criminal law can be dealt with on a QMV basis using a different perspective. In a matter such as ship source pollution, for instance, they could prescribe the penalties and define the offence, and make it obligatory on member states by QMV under a directive to change the criminal law in a particular way.

Ireland, with a number of other member states, is now effectively fighting a case in the European Court of Justice on this exact issue. We believe the Commission is creating common crimes and common punishments in a way which is not mandated by the treaties. I cannot tell the committee what will be the outcome of that, but it is an issue and we are keeping a close eye on it.

I thank the Minister for the presentation. The thrust of the Hague programme was to develop freedom, security and justice within the European Union, but it seems this is probably the critical area where we have been least successful in reassuring citizens that there is effective management of the borders, effective police work and effective security in the European Union. Deputy Connolly referred to the trouble we experience at Hallowe'en every year over fireworks, where one law operates across the Border and another operates in this jurisdiction and we cannot combine either the legislation or the enforcement. A similar difficulty arises with the biggest problem in crime, that is, the threat from guns and drugs and gangland activity which is escalating every year. All guns and drugs come from outside the jurisdiction and we seem unable to police these issues effectively within or outside the domestic context.

In 1996, after the murder of Veronica Guerin, the drugs barons positioned themselves in Europe. They export and import drugs from that fairly safe haven yet we do not appear to be effective in dealing with that matter, either in terms of legislation, decision making or policing.

We found that we could not deport people from the Czech Republic because of different forms of implementation of the European arrest warrant in both countries. There is need to examine how we can improve decision making and cross-border co-operation on areas such as crime, drugs, trafficking in persons, etc. While that is a matter of unanimity in terms of decision making, in regard to asylum policy we have the option of the qualified majority vote but we only have minimum standards. We do not have a common policy across Europe to deal with asylum. It is time that whatever is required is done to put in place a common asylum policy for Europe. It is also time we examined legal and illegal migration and had a European policy or whatever is required in decision making to bring that about. Of all the challenges facing us currently, I believe ordinary citizens would say they are most adversely affected by matters of justice and home affairs and the inability of the Government or of the European Union to address any of those issues.

Is the Minister saying we will not change our position on any of these matters? Is he saying we will make our own domestic decisions on all of these matters and that we are satisfied Interpol and Europol are doing a good job in co-operating with our authorities? They are not co-operating with our authorities. The Minister said the co-operation is good but in practice it is dismal. Nothing is happening. There are open borders which are not policed. We can talk forever about the matter and the processes but there is no effective legislation, decision making or policing. Does the Minister have any suggestions as to how we might go about that?

There are some fairly fundamental questions implicit in what the Deputy is saying. One of them is that we have a Europe in which there is free movement of people and of goods. That makes Europe more vulnerable to criminality on many fronts. However, if the Deputy is saying that by removing border controls, not searching every car and not insisting on passport controls between Ireland and the United Kingdom or wherever will improve its security, that will not happen. I do not believe the Deputy is suggesting that we go back to where we were in that regard.

There are two broad responses to this situation. One of them is to have a federal law, FBI-type agency, courts system and so on for Europe and create a single law across Europe which will be enforced by federal agencies. That would have serious implications for the nature of the European Union because if those powers were given to bodies we would have to have democratic control of them, democratic accountability for them and court control of them. It would involve, in effect, the creation of a federal superstate. The people of Europe, at this stage, do not want to pool sovereignty to that extent and I do not believe they will, for generations, ever wish to pool sovereignty to the same extent as, say, the individual states in the United States did when the United States was founded in the late 18th century. I do not believe we are going down that road.

We are in a middle course where the member states have followed the practice of mutual recognition, the right to be different and the right to be autonomous. The real aspect in that context is practical co-operation. The Deputy made a good point that, for instance, drugs and the importation of firearms associated with drugs is facilitated by our membership of the European Union with a greatly increased facility to move weapons and goods across Europe because of increased integration of markets. That is true but creating a federal superstate is not the answer to that issue. It would create as many problems as it solved and I do not believe it is the desire of the Irish people at this stage to go down that particular road. It could create a dangerous power centre in Europe without the adequate checks and balances we require in our concept of liberty.

The Deputy mentioned the European arrest warrant but it was part of the European law that after the day the arrest warrant came into effect, all other extradition systems were wiped out and only the new system could be used. The Czechs, unfortunately, did not transpose the European arrest warrant procedure into their own law and said that a European arrest warrant could not be issued in respect of pre-EAW offences. They created a discontinuity but they have changed their law to accommodate the proper interpretation of the law. The Irish have, to the best of our ability, incorporated the EAW into our law.

We also put in, to the best of our ability, as many safeguards as we could for fundamental rights, although some of the measures we took have caused disquiet in the Commission because we have given people the right to resist a European arrest warrant on the basis of fundamental rights and freedoms which are set out in the European treaties.

It is a question of balance and it is not an easy issue. If we are not in favour of a federal superstate, we have to live with the fact that we will have different legal systems. The only way to make the European Union work and create an area of freedom, security and justice is to maximise mutual recognition.

I will give some simple examples of areas where we need to have more recognition. For instance, penalty points on a driving licence for speeding is an elementary point. Why is a driver from Northern Ireland allowed to drive in the South effectively without penalty in terms of points? Sharing information on sex offenders, a very simple proposition, is another area as is sharing information in respect of suspects and fugitives. Another area is joint systems to prove, for instance, criminal convictions so that a theft conviction in France can be proved in an Irish court without having the French ambassador or somebody appear in a court waving documents.

All of those areas are ones where mutual recognition and co-operation can advance the process significantly. I am not saying everything is perfect at the moment. There are major imperfections but we must deal with practical issues, not theory. My constant message at Justice and Home Affairs Council meetings is that we should cut out the theory and just deal with practice. One of the problems is that many of the issues considered at Justice and Home Affairs Council meetings are at the level of theory and do not have much practical effect.

I am not in favour of a federal superstate. The principle of subsidiarity is the basic pillar. The Hague programme, for example, is based on subsidiarity, proportionality, solidarity and so on. One of the first proposals in that programme is the development of a common asylum system by 2010. The development of such a system for the European Union would be practical, desirable and would not in any way undermine the integrity of the national interest of each member state. We could take that approach in regard to some areas. It appears there is the greatest lack of cohesive and co-ordinated activity in the Justice and Home Affairs area and that lack of activity does not extend to the same degree in other areas. What practical steps are being taken to deal with this matter?

In regard to asylum and migration issues, the existing treaties do not accommodate the development of a single asylum system for Europe and the constitutional treaty would have to be adopted before we could achieve that. Achieving that will mean that a majority of member states will decide, irrespective of whether we agree with them, the criteria for the recognition of an asylum seeker. Sometimes that is an issue for us because, as the newspapers constantly highlight, there is a different judicial review mechanism in Ireland and the United Kingdom compared with other members states in Europe. Matters that would be decided outside these islands could have significant effects in these islands.

In regard to migration, at present the member states are jealous of their rights to determine migration policy, particularly the numbers of migrants, in their own member states. In all member states the majority of people do not believe it would be a great idea to let Brussels decide who gets into all member states in Europe on a migration basis. Nobody believes that. There is virtual unanimity that this must remain a matter for each member state to resolve in the context of its own issues.

In relation to illegal migration, however, there are issues for co-operation. There is little realism in Ireland trying to conclude, say, a return of illegal migrants agreement with Tunisia, Morocco, Algeria or places through which migrants to this country travel. This is an issue on which the European Union could use its muscle to arrive at an EU returns policy with some of those member states. There is strength in numbers on issues such as this. The Spanish recently gave 500,000 people an amnesty. It matters to the integrity of common travel areas within Europe if individual countries can make a unilateral decision to do something like that because it has a trickle down effect across the Union.

We are feeling our way towards increased co-operation within the confines of the existing treaties to ensure that illegal migration and asylum seeking do not overwhelm any country. The vast majority of people who come to Ireland are not asylum seekers or illegal migrants. The vast majority of recent migrants to Ireland, some 200,000 in the past two years, are perfectly legal and come from the accession states.

I thank the Tánaiste and members of his staff for appearing before the committee. I wish to raise issues relating to child custody, immunity and tug-of-love children. I am aware of a case involving an Irish mother and an Italian father. An application was made here from the Italian side to have a child brought back to Italy for the courts there to decide on the ultimate custody position. There appears to be a variation of interpretation of the law in this case by the courts in Italy and Ireland. I do not know if this is true but serious complaints were made about the slowness of the courts in dealing with this case. It goes without saying that there is much heartache for all sides involved in circumstances such as this.

I will briefly outline the circumstances of the case. The mother of the child went to Italy and had to live in unsuitable accommodation for months on end awaiting the decision of the Italian courts. The outcome was unsatisfactory from her point of view and she had to return to Ireland without her child who is five years old. The issue of equal access did not appear to be the interpretation of the law in this case by Italian courts.

With the general streamlining and development of law in this area and noting that the Hague Convention covers this general area, what work is being done in this area and what does the Minister anticipate will happen in the context of a greater level of co-operation and the setting of the ultimate goal of harmonising the law in the various jurisdictions across the community?

This is a complicated issue and one we could spend the day discussing — we could have a seminar on it. There are significant difficulties involved in child abduction or child custody disputes, particularly in the Europe of today where there are transnational marriages and where people do not reside permanently in one place or another but are highly mobile, moving from A to B to C. In those circumstances serious tug-of-love issues can crop up. We must have reliance on a fundamental set of rules such as the Hague Convention because we cannot have a free for all in which people can create a fait accompli by simply taking a child from somebody and saying “Come after me and sue me in my own courts”. There must be a strong defence against people moving the child out of joint custody or out of the custody of the other parent and then being able to rely on the local court for protection.

I fully accept the Deputy's point that a corollary of this is that an individual may experience hardship if he or she is required to go back to a court in Rome. How is that person to live, support himself or herself and what will be the circumstances in such a case?

The Brussels II regulations cover decisions on parental responsibility relating to custody, access and other issues. These will include provisions designed to improve delivery of judgments in child abduction cases to deal with the exact point raised by the Deputy. A few years delay in this matter means that justice delayed is justice completely denied. These regulations will provide for automatic recognition and enforcement of judgments in access cases on a summary basis, whereby legal road blocks cannot be erected against a person getting access to justice or getting an effective order. It is a very difficult subject.

A case is currently before the courts involving an Irish couple who went to America. The case resulted not merely in a custody dispute but an extradition proceeding in a criminal suit. It is a very difficult area and all I can say is that some of these cases are heartbreaking situations. It is very difficult to have an absolutely fair and simple system that always works. However, I agree with the Deputy on one point, namely, that one can have something on paper that seems fair and then find that because it takes two or three years to get a result there is no solution even though there is one on paper. That is worst of all worlds and it is a case of justice delayed being justice denied.

Can a system be established in the Department of Justice, Equality and Law Reform or in the Department of Foreign Affairs where general advice can be provided to people who find themselves in difficult circumstances such as this and are unable to anticipate what they might encounter with the courts or the legal system in other countries? With the enlargement of the EU this problem will be exacerbated. What are the possibilities in that regard?

The State does not generally provide legal advice. It provides limited legal advice through the Civil Legal Aid Board. This is an area where, with the best will in the world, it would be difficult for a law centre in Ireland to give effective advice about what is likely to happen in Rome, let alone give legal aid in those circumstances. It really is a matter for each member state to assist people who are involved in the process in that country rather than attempt to provide a comprehensive legal service from Ireland in respect of a transaction that is taking place in Rome. It would be almost impossible to do that. If we are to have a common area of freedom, security and justice and common rules and conventions, it appears to follow that there must be a strong case for effective legal aid for people who find themselves on the wrong end of a legal process.

Sometimes there are two elements to illegal migration. One is going across a border legally or illegally and the other is the question of working legally or illegally. It is probably true that there is far more illegal work than illegal crossing of borders or illegal entry. We can sometimes confuse the two issues when we debate the matter. The Minister inherited a problem which dates back to the late 1990s when no agreement could be made on the issue among the EU member states at Tampere in 1998. It is an extremely difficult situation.

On the question of mutual recognition, the civil system and the common law system are quite different. They are not like currencies that can be changed or subsumed into a common currency. My impression is that they are more like languages, where mutual recognition would be a better and more effective course of action. The Minister commented that in the common law system if something is not forbidden, it is permitted. It reminded me of the old phrase regarding Germany, that if something is not permitted it is compulsory. There is a difference between the civil and common law systems.

The Minister stressed the practical approach and I endorse his view. There are clear problems with the European arrest warrant, such as issues relating to bail which are rooted in common law principles. Can the Minister give examples or statistics to show whether this is working or workable?

There is another matter at the practical level of mutual recognition. The UK has a system for the rehabilitation of offenders whereby a sentence is allowed to be expunged. If, for example, a person is applying for a job and it is ten years since he or she was convicted and served the sentence, he or she could respond lawfully in the negative to a question as to whether he or she had a criminal conviction. If such people came to Ireland and looked for a job in the Garda Reserve, could they state they have no criminal conviction in the application form on foot of the authority they have to do so from the UK? In other words, it would require mutual recognition of judgments in their complete form, including the expungement. On a practical level, how does the Minister envisage dealing with that?

I agree with Deputy Kirk's remarks about the problem for children. This area has been highlighted for some time and there is a danger of jurisdiction shopping. The Minister gave the example of Swedish and Irish marriage. In Sweden the family has a broad definition while in Ireland it is based on marriage. The child of a non-marital family is obviously likely to be treated in a different way in the two places.

With regard to the European arrest warrant, 91 European arrest warrants have been issued in 2006 by other member states and have been received by the central authority in the Department of Justice, Equality and Law Reform. Of those 91 warrants, 68 have been endorsed by the High Court, 41 persons have been arrested and eight persons have been surrendered to other member states. That does not mean that one out of three arrest warrants is a waste of time. Sometimes the arrest warrant will be sent out on the assumption that the person is, for example, either in the UK or in Ireland. Failure to bring it to a conclusion does not mean that the process has failed. It is a warrant and an arrest can be made any time on foot of it. A warrant can be sent to a number of member states in respect of the same person. Basically, the European arrest warrant is functioning reasonably well, despite a few minor hiccups.

There is a proposal at present for the exchange of criminal records. The point Deputy Andrews raises about expungement had not occurred to me. This is the first time I have contemplated it. I do not believe there is a proposal for mutual recognition of expungements or, alternatively, to go behind expungements. We will have to examine that issue. It is a very interesting point. With regard to Ireland, I believe it should be possible. It is a reform that should be made in our law. People should be entitled to apply to the courts that convicted them to expunge their record after a certain period of time.

I recall an individual telling me that he was in a position where he was handling cash. To get that job, he had lied about a relatively trivial incident that had taken place when he was a teenager but which had left him with a conviction. He woke up every morning in a sweat wondering if somebody would discover his lie. Clearly, such a person should be in a position to expunge that event. He is a conscientious, decent man who is earning his living. However, he has this sword hanging over him. It is an issue to be examined. Some other countries are well advanced but we have no such system, apart from a presidential pardon. I believe we should have such a system.

With regard to the independent person or body that would vet legislative proposals, who does the Minister have in mind? With regard to the case before the European Court of Justice about the retention of telecommunications data, what is the up-to-date position with that and when is a decision expected?

Next year is the answer to the last question. That is the normal timespan. We are putting our case together and putting many resources into ensuring that it is argued to the highest standard. We have a strong belief in the correctness of our case.

With regard to the independent evaluation person, if the Commission or a member state comes forward with a proposal it should be built into the Justice and Home Affairs Council arrangement that it goes to somebody who has the job of looking at all the downsides of the proposal. It might be, first, redundant or useless or, second, counterproductive. Third, it might already be part of the law in all the member states so it would be a waste of everybody's time. Fourth, there might be particular adverse elements in the text which member states should have drawn to their attention.

So it should be a person or body selected by the Council to deal with any individual proposal?

Yes. I am not suggesting that there should be one person whose job for life is to say "No" or to pick holes in a proposal. It could vary from case to case, depending on the expertise and the subject matter.

I thank the Tánaiste and his officials for attending.

The joint committees adjourned at 4.10 p.m.