JOINT COMMITTEE ON EUROPEAN SCRUTINY díospóireacht -
Tuesday, 13 Oct 2009

Scrutiny of EU Legislative Proposals: Discussion.

Chairman

The draft EU proposals will be considered under a number of categories. Category 1 relates to adopted measures.

COM (2009) 285 concerns a Council regulation on restrictive measures against Iran. Given the information provided by the Department, it is proposed to note the adopted measure. Is that agreed? Agreed.

COM (2009) 371 concerns a decision of the European Parliament and of the Council on the mobilisation of the European Globalisation Adjustment Fund. Given the specific proposal has no implications for Ireland, it is proposed to note the adopted measure. Is that agreed? Agreed.

COM (2009) 417 - FON is a follow-on note to a Council regulation imposing a definitive anti-dumping duty on imports of certain tube and pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand. Given the information provided by the Department, it is proposed to note this adopted measure. Is that agreed? Agreed.

With regard to COM (2009) 425, COM (2009) 246, COM (2009) 429 and COM (2009) 430, given the information provided by the Department it is proposed to note these adopted measures. Is that agreed? Agreed.

Category 2 concerns proposals for no further scrutiny that are proposed to be noted.

With regard to COM (2009) 161 and COM (2009) 223, given the information note provided by the Department it is proposed to note these documents. Is that agreed? Agreed.

Let us now consider COM (2009) 228, COM (2009) 337 and COM (2009) 448, incorporating COM (2009) 445 and COM (2009) 827, incorporating COM (2009) 308. It is proposed to note the adopted proposals COM (2009) 228, SEC (2009) 827, incorporating COM (2009) 308 and COM (2009) 337. It is proposed that COM (2009) 448, incorporating COM (2009) 445, does not warrant further scrutiny. Is that agreed? Agreed.

COM (2009) 297 and COM (2009) 298 do not warrant further scrutiny. Is that agreed? Agreed. It is proposed that COM (2009) 311 does not warrant further scrutiny. Is that agreed? Agreed. It is proposed that COM (2009) 320 does not warrant further scrutiny. Is that agreed? Agreed.

With regard to COM (2009) 393, COM (2009) 395 and COM (2009) 406, given the information provided by the Department it is proposed to note these measures. Is that agreed? Agreed.

It is proposed that COM (2009) 423 does not warrant further scrutiny. Is that agreed? Agreed.

Category 3 contains proposals that do not warrant further scrutiny and which are proposed to be sent to the sectoral committees for information.

COM (2008) 817 was published originally in December 2008. Given that the proposal has completed its First Reading in the European Parliament and also progressed at Council level, it is proposed to note it at this stage and forward it to the Joint Committee on Transport. Is that agreed? Agreed.

Category 4 comprises Common Foreign and Security Policy, CFSP, measures. Given the information provided by the Department on CFSP (2009) 615, it is proposed to note the adopted measure. Is that agreed? Agreed.

There are no Title Vl, TEU, and Title IV, TEC, measures under category 5 for consideration. There are also no early warning notes under category 6 for consideration.

Under category 7, there is a proposed proposal for further scrutiny. COM (2009) 362 is a proposal for a directive of the European Parliament and the Council amending Directives 2006/48/EC and 2006/49/EC on capital requirements for the trading book and re-securitisations and the supervisory review of remuneration policies. The capital requirements directive adopted in 2006 regulates the licensing and supervision of credit institutions and investment firms and introduces a more comprehensive and risk-sensitive capital framework to encourage better risk management by these institutions. The directive was transposed in Ireland by Statutory Instruments Nos. 660 and 661 of 2006. This proposal proposes changes to the directive which are designed to further strengthen the existing prudential framework for risk management in the light of the international financial crisis. Four specific areas are being targeted in the proposal: capital requirements for the trading book; capital requirements for re-securitisations; disclosure of securitisation exposures; and remuneration policies and practices within banks. It is proposed that the proposal warrants further scrutiny by the committee and that the Department of Finance be invited to make an oral presentation and discuss the matters arising in more detail at the next meeting of the committee. It is proposed also that a report be drafted by the committee and forwarded to the Minister and both Houses of the Oireachtas. Is that agreed? Agreed.

There are no proposals proposed for forwarding to sectoral committees for their observations under category 8 and no proposals proposed for referral to sectoral committees for detailed scrutiny under category 9.

COM (2009) 338 is a proposal for a Council framework decision on the right to interpretation and translation services in criminal proceedings. We are discussing the proposal with Ms Geraldine Moore, principal officer, and Mr. Billy Keane, assistant principal officer, from the Department of Justice, Equality and Law Reform whom I welcome. Before we begin, I draw everybody's attention to the fact that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. I invite Ms Moore to proceed with her presentation.

Ms Geraldine Moore

I thank the joint committee for extending an invitation to discuss the proposal for a Council framework decision on the right to interpretation and translation services in criminal proceedings. The committee will understand I am prevented from expressing an opinion on the merits of the policy of the Minister, the Government or the Attorney General.

Article 6 of the European Convention on Human Rights which deals with the right to a fair trial provides that everybody charged with a criminal offence has a right to the free assistance of an interpreter if he or she cannot understand or speak the language used in court. With a view to facilitating the application of these rights in practice, in July the Swedish Presidency brought forward a proposal to agree a set of common minimum standards on the right to interpretation and translation services in criminal proceedings throughout the European Union. The explanatory memorandum to the framework decision states the proposal should be considered as part of a comprehensive package of legislation which will seek to provide for a minimum set of procedural rights in criminal proceedings in the Union. The Council framework decision is complemented by a non-binding Council resolution which sets out guidelines for best practice.

Negotiations on the framework decision are ongoing but in the current version of the text Article 1 sets out the scope and provides that the rights to interpretation and translation services apply to a suspect or accused person from when he or she is suspected or accused of committing a crime until the conclusion of proceedings. The provisions of the framework decision also apply to proceedings for the execution of a European arrest warrant.

Article 2 deals with the right to interpretation. It provides for a right to interpretation at all stages of criminal proceedings. The article provides for a right of review of a decision not to provide interpretation and the review will be in accordance with national law. The provision also applies to persons with hearing impediments, where appropriate.

Article 3 deals with the right to translation of essential documents. The decision as to which documents are essential will be a matter for the relevant competent authority but should, at the very minimum, include detention orders, charge sheets and court judgments. An oral translation can be provided instead of a written one, where appropriate.

Article 4 provides that the State will cover the cost of the provision of translation and interpretation services.

Article 5 seeks to ensure that the interpretation and translation provided will be of a quality which is adequate in order to enable a person to exercise his rights.

Article 6 is a non-regression clause which provides that none of the provisions of the draft framework decision should give rise to less protection than that arising from the European Convention on Human Rights or from national legislation.

Articles 7 to 9, inclusive, are standard provisions which deal with implementation, reporting procedures and entry into force.

The framework decision is complemented by a set of guidelines or what can be described as a "best practice manual" in the form of a non-binding Council resolution. The original text of the resolution reads very much like a framework decision and negotiations are ongoing with a view to producing a more user-friendly text. The resolution provides guidelines on a range of issues including: qualifications of interpreters and translators; training of the judiciary and legal personnel; national registers; codes of conduct and exchanges of information on best practice between member states.

A couple of difficulties arose during negotiations. The original proposal contained a number of quite specific elements which the majority of member states were not in favour of including in a binding instrument relating to procedural law. These included: the broad scope of the original proposal providing, as it did, for interpretation and/or translation for "all necessary meetings" and "all essential documents" and the costs which might ensue; the provision for a formal procedure in order to establish whether or not a person should be entitled to interpretation and translation, which it was considered went beyond a minimum standard; and the provision relating to the training of judges, lawyers and other court personnel, which issue also gave rise to concern due to cost implications. Member states' concerns on these matters, expressed during negotiations on the instrument, resulted in either the dilution of the provision in question, as in the case of the scope of the instrument, or in its removal from the framework decision, as in the case of the formal procedure, or its inclusion in the supporting resolution, as in the case of training of the judiciary.

In Ireland the courts must be satisfied that an accused receives a fair trial and that the defendant understands the proceedings and the evidence presented. The courts, where necessary, appoint interpreters and translators for this purpose. A non-English speaking defendant appearing before an Irish court is entitled to have an inquiry carried out by a judge as to his or her proficiency in English and, if required, to have an interpreter appointed. If a person has been granted free legal aid the solicitor can decide to independently appoint an interpreter and/or secure translation services for the defendant, if necessary.

In 2008, the Garda spent approximately €3.5 million on interpretation and translation services during detention and questioning, while the Courts Service spent €3.7 million on the provision of services during court proceedings. Some €730,000 was spent on the provision of services in the context of free legal aid.

The Attorney General's office has advised that there would not appear to be any major legal issues with regard to the purpose or objective of this instrument.

As I have already mentioned, everyone charged with a criminal offence is entitled, under Article 6(3)(e) of the European Convention on Human Rights, “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. In Kamasinki v. Austria in 1991, the European Court of Human Rights indicated that entitlement to an interpreter is not limited to oral proceedings at the trial, but extends to interpretation or translation of all documents or statements which are necessary for the accused in order to have a fair trial. Domestic case law dating back to 1929 supports the right to interpretation as a principle of natural justice and an aspect of the right to due process under Article 38 of the Constitution.

This framework decision is a diluted version of an earlier framework decision on procedural rights, which was put forward in 2004 but eventually abandoned due to lack of agreement. As the joint committee is aware, Ireland objected to the proposal on a number of grounds. This position was based on a number of factors, most notably Article 31 of the Treaty on European Union, which was the legal basis for the original framework decision. The measures in Article 31 aimed at improving judicial co-operation in criminal matters include a measure that provides for such compatibility in the rules applicable in member states as may be necessary to improve such co-operation. The key requirement is to demonstrate there is a need to legislate to improve such co-operation. At the time of the negotiations on the previous instrument, the Government's policy was that this had not been done in the case of the procedural rights instrument.

Since the last framework decision on procedural rights, the State has seen the bedding down of the European arrest warrant. There have been a number of new mutual recognition measures. It could be argued that our understanding of the necessity for mutual trust between member states, for the purposes of facilitating co-operation, has increased. It should be noted that Article 82.2 of the Treaty of Lisbon expressly confers on the European Union the competence to adopt, under the legislative procedure, minimum rules in relation to the rights of individuals in criminal procedures, although Ireland will have the option of opting out where it is considered necessary to do so.

Negotiations on the framework decision are ongoing. The Swedish Presidency is working towards obtaining agreement during its term on a general approach to the text of the draft framework decision and its complementary resolution. If the committee would like to raise any issues, I would be happy to address them.

Chairman

I thank Ms Moore for her comprehensive overview of the situation.

Deputy Joe Costello

I thank the delegation for coming to this meeting. When we discussed this matter at a previous meeting, some concern was expressed about the manner in which the matter was being discussed. It appears that the Department of Justice, Equality and Law Reform and the Office of the Attorney General have a favourable view of the current proposal, as distinct from the proposal that was made in 2004. I would like to clarify where we stand on this proposal, which relates to all cases that come into this country, from the European Union or elsewhere. I assume it also relates to people from other countries who have been living in this country for a number of years but might well be Irish citizens. I would like to get clarification on the extent of the application of the proposal on the interpretation and translation of criminal proceedings.

Ms Moore mentioned that the Treaty of Lisbon provides for minimum rules in respect of the rights of individuals to be set. I do not doubt that this desirable element of the proposal has had an effect on the present thinking on the matter. Does the fact that the European Union, as a legal entity, is now signing up to the European Convention on Human Rights detract from the argument that it is a matter for individual member states that have already signed up to the convention to conduct their business separately with regard to matters such as home affairs, in particular, and Common Foreign and Security Policy? Will it be deemed to be more appropriate for the Union, as an entity, to deal with matters that are expressly covered in the European Convention on Human Rights?

Has an analysis of the extra costs that will be involved been conducted? Are we already dealing with these matters in this jurisdiction and under our own legislation? Are we providing interpretation and translation services? Is it considered that the proposals may exceed our subsidiarity requirements in any way? To what extent has the Lisbon treaty extended that remit to the European Union?

It seems that this is a desirable framework proposal. It does not apply to Ireland, but it applies to other countries that may have far less stringent measures in place to ensure that the rights of people appearing before the criminal courts are vindicated. It is desirable that we have a minimum set of regulations across the 27 member states.

Ms Geraldine Moore

The framework decision will apply to all people coming before courts in all member states. While all member states are parties to the European Convention on Human Rights, we discovered during the negotiations that some member states are having difficulty meeting the minimum standard that has been set. Members probably have seen the difference between the first proposal and the text as currently drafted. It has been considerably diluted to take into account those states that are party to the ECHR, but are having difficulty meeting this minimum level.

With regard to costing, we provide more than what is allotted in the framework decision. We spent approximately €7 million in 2008, and it emerged in negotiations that Ireland is to the forefront in the provision of interpretation and translation services.

Some member states have difficulty meeting the standard on the subsidiarity requirement. We think it is appropriate that there be common minimum standards. It has been argued that when we have such a high standard, we should expect that other member states will have the same, but the view during negotiations has been that it will increase mutual trust if a minimal standard is guaranteed. Article 82 of the Lisbon treaty will change things, because the Commission will now have competence in this area and it can bring forward measures on procedural safeguards and setting minimal rules. Ireland will have an opt out, as this is the first of a package of measures that the Swedish Presidency has brought forward. I am sure there will be other procedural safeguard measures in the next Presidency and beyond, but we will have an option of accepting some if we agree to them. We do not have to accept them if they are not appropriate.

Deputy Joe Costello

Is the Department supportive of the proposals at this point?

Ms Geraldine Moore

We have not taken a position as the Minister is still examining it, and this is due to difficulties we had with proposals on procedural safeguards. The Office of the Attorney General has advised that it is fine from a legal point of view. We are still going above and beyond what is in this framework decision. In spite of the difficulties in previous negotiations on the 2004 framework decision, member states seem to recognise that we should have minimum standards on interpretation and translation. We have not taken a definite position yet, because we are watching the text as it develops. It has changed considerably since we began. There does not appear to be a legal difficulty with it, and we are happy that we are above and beyond the current standard.

Deputy Lucinda Creighton

I thank Ms Moore and Mr. Keane for their presentation. Could they say what has changed since 2004? I support the measure because it is not anathema to what already exists in Ireland, where there already exists constitutional protection for people in such circumstances. On the subject of subsidiarity, would it be more appropriate if the provision only applied to EU citizens? It seems to apply to any citizen under arrest or investigation or facing trial in the EU, even if he or she is not a citizen of the EU. I do not understand why there needs to be such a broad scope and I wonder whether this breaches the principle of subsidiarity.

Does the Government plan to table amendments? Does the Department envisage changes from a national point of view? Article 82.2 of the Lisbon treaty confers competence on the EU in this area but my understanding is that this is not an opt-out measure but an opt-in measure. Is it correct to say that we have opted out but will opt in on a case-by-case basis?

Ms Geraldine Moore

The right to interpretation and translation is an element of a fair trial. It is a fundamental personal right so it applies beyond the EU borders.

We do not think there will be additional costs. Translation is a requirement for a European arrest warrant and if we issue such a warrant we will send translations to the other member state. Similarly, if we receive one we will seek translations of the relevant documents. There may be additional costs but at present we spend €7 million on interpretation, which is a lot more than other member states.

There were a couple of amendments to both the framework decision and the guidelines. The original framework decision is quite strict and wanted to establish professional bodies and specialist training for interpreters and translators for the judiciary, lawyers and court personnel. In the UK a register was set up but it was expensive and took ten years to put in place. Cost was a major concern for every member state. We already spend more to meet the minimum requirements but everything in the framework decision which involved an additional cost has been moved to the resolution process. We have been advised by the Office of the Attorney General that the decision is non-binding, as stated in the explanatory memo. We asked that the word "guidelines" be inserted in the non-binding resolution and that the text be changed to say that member states "should" rather than "shall" carry out various provisions. In addition, member states are "encouraged" to take certain actions, which makes it clear it is a set of accompanying guidelines.

The Deputy asked about Article 82 of the Lisbon treaty. Under that provision, we can decide in advance whether we will opt in or out of a particular initiative. Where we decide to opt out, we can nevertheless participate in negotiations and can subsequently choose to opt in. We have a second chance and can then present our legislation or whatever is necessary to give effect to the relevant proposals.

Chairman

Has there been any consultation with NGOs and special interest groups? Did the Department facilitate any type of public forum at which interested parties could submit their views and offer their interpretation of the proposals?

Ms Geraldine Moore

We have not had any specific consultations since the framework decision was published. The Commission undertook a study at the University of Brussels in the course of which various NGOs and other interested parties were asked for their views. The Minister of State, Deputy Curran, as part of his remit in the area of integration, is examining proposals for the provision of interpretation and translation services not only in the criminal justice sphere but across the public sector. There is a broader discussion taking place in this regard.

Chairman

I understand the total fund may be as much as €8 million. Given that we currently have an exemplary record in this area, it might be useful to ascertain the views of NGOs and other interested parties on this framework. Will the Department consider facilitating such consultation?

Ms Geraldine Moore

At this stage the proposals are quite well advanced. Given that we are way and above the standard being set by the framework decision, I would not expect there to be major concerns on the part of NGOs and other interested parties. Such consultation might be useful if we were not meeting the minimum standard.

Chairman

Has there been consultation with the Office of the Attorney General?

Ms Geraldine Moore

Yes, we sought the opinion of the Attorney General on these proposals, particularly in regard to the nature of the non-binding resolution. We were especially concerned because of the difficulties that arose in the negotiations on the 2004 framework decision. However, the Attorney General's office advised that while at that particular time there was no experience of mutual recognition, the situation has since moved on and we have seen the bedding down of the European arrest warrant. We can now see the necessity for mutual recognition.

Chairman

Does the Government intend to seek support for its proposed amendments? At the COSAC meeting I attended last week, concerns were expressed about this directive by representatives of various member states. It seems its transposition will not be plain sailing in every jurisdiction and there are concerns that there will be a need, as in 2004, for the proposal to be broadly amended. Does Ms Moore expect there to be problems with the transposition of the decision and what timeframe does she foresee for that transposition? In regard to the opt-out clause to which she referred, what areas does she envisage we will opt out of?

Ms Geraldine Moore

Ireland would not have an opt-out in regard to this at the present time. The proposal may not be adopted under the Swedish Presidency because some member states may not complete their parliamentary procedures. In that case the proposal will fall and will have to be reintroduced under the Spanish Presidency at which point the legal base will have changed. Article 82 will then come into play and we could opt out at that stage. All the amendments we sought have been agreed, but meetings are continuing this week because some member states are still not satisfied with the text. As I said, the scope was originally very broad. The original text referred to the translation of all meetings and all documents. That would be too costly for any member state and therefore we have pared back the scope. We have asked that any measure we believe would impose a cost be included in the guidelines and that has been done. We are quite happy with where we stand. Other member states have difficulties with the matter.

Chairman

We carried out a subsidiarity test and submitted our own recommendations. From the information we received from the Department, I understand Ms Moore had some concerns. Are these concerns still as significant as they were?

Ms Geraldine Moore

Yes, but we must still keep an eye on the framework decision as it is being negotiated. Other member states are asking for paragraphs to be changed, deleted, etc.

Deputy Michael P. Kitt

On a practical note, I would like to know how the Department of Justice, Equality and Law Reform operates with regard to the interpretation of translations. Is there an agency on call? The expense is obviously greater when one must translate non-EU languages. Reference was made to the Minister of State, Deputy Curran, examining the practices of other Departments. The Joint Committee on Arts, Sport, Tourism, Community, Rural and Gaeltacht Affairs recently debated translation into Irish and what needed to be translated, including annual reports, for example. Ms Moore referred to what needed to be translated. Considerable costs would be incurred if people were on stand-by. How does the process work in practice?

Ms Geraldine Moore

The Courts Service, the Garda and Department of Justice, Equality and Law Reform, which covers free legal aid, all have contracts with a company that provides interpretation and translation services. There is a tendering process. There are not many such companies that we would use; there are three or four in Ireland. We tender each year. The Garda has a contract in place in regard to providing interpretation when people have been detained or questioned. The interpreters are obviously on call, but under a contract.

Deputy Michael P. Kitt

Could Ms Moore envisage all Departments working together? Does translation to Irish form part of the process? This may be far-fetched.

Ms Geraldine Moore

That is a constitutional right. One is guaranteed a court hearing in Irish if one desires it.

Deputy Michael P. Kitt

It is different. Do Departments other than the Department of Community, Rural and Gaeltacht Affairs work together?

Ms Geraldine Moore

As I stated, that is what the Minister of State, Deputy Curran, is examining. The Department of Justice, Equality and Law Reform was considering the fact that different agencies under its aegis were working separately. The Minister of State recognised this when he took over the brief for integration. He should be addressing the issue across the public sector and is considering the matter from that perspective. A sub-group was set up in the Department to examine the issue but we are now feeding into the work of a group chaired by the Department of the Taoiseach which has been tasked by the Minister of State, Deputy Curran, with examining the issue. In this context, a register was being considered. There is a register of interpreters in the United Kingdom. One of the findings pointed to the service being very expensive.

Deputy Michael P. Kitt

Has it become more expensive over the years?

Ms Geraldine Moore

I only have the figures for 2008.

Deputy Michael P. Kitt

It was €7 million.

Ms Geraldine Moore

It was €7 million. The Garda spent approximately €3.5 million and the Courts Service spent approximately €3.6 million, and €730,000 was spent on free legal aid.

Deputy Joe Costello

Are there any implications for deaf and blind people? Are their rights guaranteed by the Constitution? I refer to sign language in Swahili, for example.

Ms Geraldine Moore

The framework decision refers to people with hearing impediments and the fact that provision should be made for them. Some member states refer in their national legislation to the need to make provision for people with hearing difficulties or speech impediments. Some countries insisted a measure be included in the framework decision to cover member states such as Ireland which do not contain provision in their national legislation. I believe that in practice if a defendant or accused person is deaf we provide interpretation, as appropriate.

Deputy Joe Costello

Do we do that at present?

Ms Geraldine Moore

Yes, we do that. It is always at the judge's discretion. In the interest of a fair trial, it depends what the person------

Deputy Joe Costello

Would this make it obligatory?

Ms Geraldine Moore

Yes.

Chairman

I compliment the Department on putting such a comprehensive service in place. It is good to know we are up there with the best in offering such a facility. It is also important that many of the Department's concerns have been dealt with decisively. Your concern, Ms Moore, about watching things closely is important. Today's comprehensive report gives clarification. It is the committee's intention to prepare a report on this matter. The subsidiarity check and the concerns associated with it have been expressed in the Department's report.

I thank Ms Moore and Mr. Keane for attending today and assisting the committee in scrutinising this important proposal. The committee will be preparing a report. If you wish to furnish additional information we would appreciate your forwarding it to us. Our proposal will be sent to the Minister and laid before the Dáil and Seanad.

The joint committee adjourned at 1.20 p.m. until noon on Tuesday, 3 November 2009.