JOINT COMMITTEE ON EUROPEAN SCRUTINY díospóireacht -
Tuesday, 20 Apr 2010

Justice, Equality and Law Reform Departmental Report: Discussion with Secretary General.

Chairman

I welcome Mr. Aylward, Secretary General, Ms Joyce Duffy and Ms Rachel Woods from the international policy division. I draw the attention of witnesses to the fact that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside of the House or an official by name or in such a way as to make him or her identifiable.

I call on Mr. Aylward to proceed with his presentation.

Mr. Seán Aylward

I thank the chairman and members for the opportunity to appear before the committee to address it on European matters that are becoming increasingly important in the justice and home affairs area. The period covered by my Department's most recent six monthly report, July to December 2009 was particularly eventful in the development of justice and home affairs issues in the European Union. Following the Irish referendum on the Lisbon treaty in October, its entry into force on 1 December 2009 has substantially changed the playing field in this area. In European terms it has been renamed as the area of freedom, security and justice and has been brought firmly within the bounds of the ordinary treaty structures. Implementing these considerable changes will present challenges and opportunity for all those involved in the European project and this is recognised by the committee in highlighting the matter for today's discussion.

There were other important issues detailed in the six-monthly report, most notably among these was the adoption by the European Council, also in December, of the Stockholm programme. This programme, the outcome of more than two years planning and negotiation, provides an ambitious framework for EU work in the area of freedom, security and justice over the next five years. A number of important legislative proposals were presented and progressed during the latter half of 2009 including proposals on child exploitation, human trafficking, criminal procedure and family law.

However, given that so much of the work highlighted in the six-monthly report has been fundamentally affected by the entry into force of the Lisbon treaty, I would like to address this matter first before returning to the other issues set out in the report.

I know that members are well versed in the changes introduced by the Lisbon treaty and I do not intend to go through these again today. What I would like to focus on is the very substantial implications of the new treaty for the area of freedom, security and justice; the effect of Ireland's protocols in this area; and my Department's plans for implementing these changes and interacting with the other stakeholders involved, notably the Oireachtas.

Because of the sensitive nature of the issues that arise in this area, those concerning police, security and the criminal justice system in particular, the justice remit has, until now, been afforded a special position within the old three-pillar treaty structure. It has been protected by a requirement for unanimity in adopting decisions with every member state allowed a national veto on proposed measures. The Lisbon treaty changes all this. The three pillar structure has collapsed and the ordinary treaty procedures will apply to freedom, security and justice measures. This means that decision making will be shared between the Council and the European Parliament for the first time and the Council will vote on justice proposals on the basis of qualified majority voting. These new decision making procedures will entail a new approach to negotiations by officials in my Department. Another important factor concerns the Department's relationship with the European Parliament which will need to be developed.

The Department, however, is not coming wholly raw to these new procedures. Qualified majority voting and co-decision with the European Parliament have been the norm in the asylum, immigration and civil law areas since the Amsterdam treaty which came into force in 1999. We in the Department will draw on this experience as the new procedures are applied to the wider areas of police and judicial co-operation in criminal law. It continues to be the case that much of the work in the justice and home affairs sphere is sensitive and complex. In addition to security and police co-operation concerns, Ireland has a particular constitutional and legal position which can make European co-operation in justice and policing matters more complicated. Ireland is one of just four member states — the UK, Malta and Cyprus are the three others — with a common law based legal system. This system is not always fully understood or provided for in draft EU measures and the small number of member states affected may not be in a strong enough position to ensure that their common law systems are adequately recognised in proposals put before the Council. It is this situation which has lead to the incorporation into the treaty of the UK and Ireland's protocol in respect of the area of freedom, security and justice.

It is worth explaining briefly the rationale behind this protocol. There are potential difficulties that could arise for Ireland, and other common law jurisdictions, in seeking to reconcile non-common law concepts and principles with our existing legal system. During the treaty negotiations there were concerns that these could give rise to legal and operational procedures which, in turn, could undermine general public confidence in the criminal justice system. For example, in many EU member states police officers can only perform a function when they are expressly authorised in law to do so. This situation compares unfavourably with the common law system which is generally more flexible, for example, in relation to the handling and use of information obtained by law enforcement personnel for law enforcement purposes. The EU proposals in this area could hamper the Garda Síochána's operational capacity and discretion.

In making its decision on the new arrangements, the Government carefully considered all aspects of the matter. It decided that the opt-in arrangements provided under the justice and home affairs protocol were the best way to ensure that Ireland's distinctive legal system was protected and at the same time ensure that Ireland remained fully committed to working with its EU partners in tackling serious cross-Border crime.

The objective of the protocol is not to keep Ireland out of EU developments in the area of freedom, security and justice. It is there to protect Ireland's interests in instances where EU measures would be potentially damaging or have serious, and doubtless unintended, negative consequences for our national policing and criminal justice systems, while still allowing Ireland to participate in other measures. Under the protocol, Ireland has committed to review its position within three years. Such a review will provide opportunities to assess the impact of the opt-in arrangements and to consider whether any changes might be necessary. For instance, with the benefit of experience under the Lisbon treaty, Ireland may decide that the protocol is no longer necessary. Ireland could then choose to participate in measures automatically, as other member states do.

To reinforce Ireland's commitment to the EU's work in the justice area, the Government made a strong declaration, published with the Lisbon treaty, underlining its firm intention to participate to the maximum extent possible in justice proposals and in particular in those relating to police co-operation. I can assure the committee that my Department takes this commitment very seriously and will make every effort to participate in as many justice and home affairs measures as possible. Members may in fact have already observed several opt-in motions going through the Houses in respect of justice and home affairs measures in the few months since the Lisbon treaty has come into effect.

That brings me on to the enhanced role of the Oireachtas in general, and of the committee in particular, under the new treaty arrangements. As the committee is well aware, the Lisbon treaty has considerably enhanced and formalised the role of the national parliaments within the EU legislative process. Now the Oireachtas will receive a vast amount of documentation and information directly from the European institutions. In addition to receiving this information at an early stage the Oireachtas, along with other national parliaments will have the power to challenge proposals which breach European rules on proportionality and subsidiarity. This responsibility places significant resource demands on the Oireachtas, and I understand, it will fall to this committee to examine new proposals under the relevant Lisbon treaty protocols.

This is a role exclusively for the Oireachtas as set out in the Lisbon Treaty but there is scope for Departments and the Oireachtas to work together in partnership to represent and protect the national interest.

Oireachtas scrutiny information notes are provided by Departments for all new EU legislative proposals. The timeframe for the provision of these notes is a very challenging 20 days. While the 20-day deadline can be difficult to meet, especially for complex proposals, my Department does its utmost to provide these notes on time within that timeframe. I assure the committee that this is closely monitored and every effort is made to ensure the committee receives the necessary information efficiently and within the required timeframe.

Perhaps the most significant development in the role of national parliaments is in regard to the principle of subsidiarity. Either one or the other House of the Oireachtas may issue a reasoned opinion to the Presidents of the European Parliament, the European Council and the European Commission stating why it considers an EU draft legislative Act does not comply with the principle of subsidiarity. Such opinion must be provided within an eight week period, a challenging deadline.

At the committee's request, information notes now contain information on subsidiarity. In instances where subsidiarity is not an issue, this may be addressed by a single sentence to that effect. However, where subsidiarity concerns exist we will endeavour to provide full details of those concerns at the earliest opportunity. I envisage this as a partnership role, where Ireland's national competence and interests are concerned and more can be achieved through co-operation, facilitation and information sharing than attempting to address concerns independently. Several justice and home affairs proposals came within the pilot project on subsidiarity prior to the entry into force of the treaty. The Department provided detailed briefing notes to the committee on the subsidiarity issues arising. We await the revised guidelines on EU scrutiny procedures, generated by the Department of Foreign Affairs, and we will continue to do our very best to assist the committee in its scrutiny of EU proposals falling within our remit.

Since most matters falling within this Department's remit are now subject to an opt-in procedure under the JHA, justice and home affairs, protocol, much of the scrutiny of these proposals will be undertaken by the Joint Committee on Justice, Equality, Defence and Women's Rights at the same time as an opt-in is being considered.

Not only has the role of national parliaments been enhanced by the Lisbon treaty, but the role of the European Parliament has also expanded. More policy areas are subject to co-decision. Among these, almost all measures in the area of freedom, security and justice. Even in these early days it is evident the European Parliament intends to take an active role in this area and the Council and its member states must adapt their approaches to decision-making, methodologies and negotiation to take account of this development.

The European Court of Justice also gains new jurisdiction over justice and home affairs measures. Even more care needs to be taken to ensure legislation developed in this area is of the highest quality attainable and such that Ireland is in a position to meet any obligations which may arise. Not only will the ECJ, the European Court of Justice, have the authority to interpret EU justice legislation, but it will also have enforcement powers, through infringement proceedings, for the first time in the justice area. Now, when the first justice and police co-operation directives are fresh before us, is the time to start considering the long-term consequences of the legislation and to ensure that we get it right.

We are still in the very early days of the Lisbon treaty. As I have outlined, the implications for my Department's policy areas are considerable. While we have the JHA opt-in protocol, it is Government policy to participate as fully as possible in such measures and that is what we intend to do. The three-month timeframe available is quite a short period in which to assess the merits of a proposal, obtain the necessary legal advice and obtain the approval of the Oireachtas. However, through close monitoring and careful scrutiny I am confident that we will quickly build up the experience and expertise to ensure that the outcome of the new Lisbon treaty procedures will amount to better quality EU legislation.

I refer to two specific important developments covered in the six-monthly report, the Stockholm programme and the impact of the Lisbon treaty on some of the very important proposals under negotiation as part of the pre-Lisbon protocols at the time of the changeover. The Stockholm programme is the new multi-annual justice and home affairs work programme adopted at the EU Council last December. It is the third five-year justice and home affairs work programme and builds on the achievements of the Tampere and Hague work programmes which preceded it. The programme sets out, in a series of thematic chapters, action points for future work in the area of justice and home affairs. These will be reflected in an action plan which, I understand, will be presented by the Commission this month. The new programme will play a key role in meeting the ever-increasing challenges ahead by building on the achievements to date in a focused and coherent manner.

A central theme of the new programme is the creation of a citizens' Europe in the area of freedom, security and justice, focusing on the interests and needs of citizens, providing a safe union through police and crime co-operation measures, protecting citizens' rights and making people's lives easier through access to justice and judicial co-operation measures. It is wide-ranging in terms of content, covering issues in the areas of civil and criminal law co-operation, protection against serious and organised crime, counter-terrorism and asylum and immigration matters. It is a wide ranging and ambitious programme and, no doubt, will result in further strides in European co-operation across the area of freedom, security and justice.

I refer to a more immediate and practical concern. The committee will be aware that many legislative proposals, which were under negotiation under the old Title VI arrangements but not agreed before the Lisbon treaty came into force, fell on the entry into force of the treaty. Among these were proposed framework decisions on child sexual abuse and exploitation, combating human trafficking and protecting victims and procedural rights relating to translation and interpretation in criminal proceedings. I am pleased to state that these valuable initiatives and the substantial amount of work which underpinned them and which had gone into their negotiation last year will not be lost. These three measures have already re-appeared as draft directives and are currently being negotiated at working party level by officials in my Department and other member state representatives. In early April, Ireland notified the President of the Council of its intention to participate in the directive on procedural rights, following approval by the Oireachtas, and opt-ins in respect of the other two directives are under consideration. It is anticipated that the remaining measures which fell on the entry into force of the Lisbon treaty will also be reintroduced in the near future. I have confined my opening remarks to a brief overview of some of the key developments in the justice and home affairs area but I trust they have been helpful to the committee as a starting point for our discussion. I look forward to responding to the committee's thoughts and concerns.

Chairman

I thank Mr. Aylward for a very comprehensive overview. I was very pleased to hear Mr. Alyward's reference to the enhanced role of the Oireachtas post-Lisbon. I refer to the improved facility of the Department working with the Oireachtas and the justice committee, which deals with the Stockholm programme, and other elements of scrutiny. The point I make may be equally relevant for the Joint Committee on European Scrutiny. There may be a difficulty in respect of Eurojust, Europol and the new remit of the Stockholm programme, which deals with freedom, security and justice. Mr. Aylward alluded to the importance of the programme in his statement. Is there any way the new arrangements will result in immediate benefits to this committee? This committee deals comprehensively with the 14 other Departments. I refer to the justice committee and the issues of subsidiarity and proportionality. Many other directives and legislative proposals will arise. The enhanced service is not in breach of subsidiary and it remains very important. How can Mr. Aylward give comfort to this committee to ensure that between the two committees something is not overlooked?

Mr. Seán Aylward

First, we must get our information notes to the committee as quickly as we can. Second, we must make ourselves available to the committee and, where the committee refers any work to the justice committee, we must make ourselves available at short notice and as required. The sheer mass of documentation produced by Brussels is intimidating for any small member state. Our resources are finite. As a collective polity we must be intensively selective and prioritise those of concern and be clear about them. In a way, the opt-in mechanism comes to our aid. If we have a doubt or a concern we can shelve it and we are not forced to adopt something about which we have doubts or concerns. We can then re-enter the picture if, over time, it proves to be something that turns out to be valuable in a wider European sense. We must recognise that there has not been an augmentation to resources in this State — anything but is the case in the current circumstances — in the wake of the Lisbon treaty. There is substantial continuing stepping-up of the resources drawn on by the Commission to come up with the ideas. That is where the people with the powers of initiative come from. I do not mean it as a short answer but we must box clever and try to sit down with the Chairman and his team to establish how best we can manage things as we proceed. I do not have a solution in my back pocket for the dilemma facing the committee.

Chairman

I refer to the difficulty of the enhanced role of the national parliaments. The issue of subsidiarity comprises one element. We must compliment Mr. John Hamilton who as liaison officer in Brussels did an outstanding job with regard to giving us a comprehensive brief of the forthcoming subsidiarity issue. All documentation from the Commission comes to this committee simultaneously. I remain concerned about the level of support, although I acknowledge there is very comprehensive back-up for this committee. However, there may be an issue in respect of the documentation sent to the justice committee in light of its other work. Certain documentation may be overlooked. Also, there may be an element of duplication of scrutiny. How can we ensure the process is gilt edged? The ultimate responsibility for scrutiny rests with the scrutiny committee but there is a delegated function to the justice committee as well.

This is a matter Deputy Creighton and the Joint Committee on European Affairs is examining with regard to future procedures for the operation of the Lisbon treaty on a permanent basis. There is a grey area in the justice portfolio in respect of the vast amount of documentation. I refer to Eurojust and Europol. Having attended the COSAC meetings, I note there appears to be a lacuna with regard to how information is being dealt with comprehensively. I am delighted to have the opportunity to express this point of view. I realise the Department has been given the 20-day timeframe and that there is an eight-week time limit for subsidiarity.

I refer to the opt-in for the Government. The Oireachtas is not given the opportunity for a debate either within Seanad Éireann or Dáil Éireann in respect of protocols that should be discussed in both Chambers in a timely manner. Any such change would not be in breach of subsidiarity but equally would have a big impact on the citizens of Ireland.

Mr. Seán Aylward

As a small State we face a dilemma in dealing with a very large organism, the European Community. We must make pragmatic choices about how we manage our business. I am reminded of the dilemma facing the US Supreme Court to which thousands of legal appeals are addressed every year. Although the United States is a vast power, only a limited number of individuals manage the Supreme Court. They exercise high selectivity.

There must be a ruthless and early analysis of proposals as they emerge. We must establish whether a given proposal will be an issue or a problem and whether there a subsidiarity issue at play. The numbers that will fall into the box that require very detailed parliamentary scrutiny or that warrant mounting a challenge on the point of subsidiarity will be small. Organising the sift will be the challenge for us. I do not claim we have worked it out, which is why I welcome the Chairman's reference to the process Deputy Creighton is at the heart of. We have not worked this out yet but we must apply the principles of extreme selectivity and pragmatism in sifting.

Chairman

I refer to the 80:20 principle of defining the documentation apart from documentation in breach of subsidiarity. There is an early warning system for the secretariat in Brussels. Other justice and home affairs documentation is produced by Eurojust, Europol and in light of the new freedom, security and justice role under the Stockholm programme which is completely separate from subsidiarity issues. There are other relevant legislative proposals coming forward that may be of importance to Ireland but may not be in breach of the principle of subsidiarity. How does the Department propose to deal with these? Will the Department consider the agenda from today with regard to a definitive proposal from the committee to address how the matter could be dealt with simultaneously with the justice committee? There should be an overview of the very selective scrutiny of proposals the Department believes are of concern.

Mr. Seán Aylward

I would be happy to reflect and take away issues such as those raised by the Chairman just now. I was thinking of the analogy of those who worked as look-outs for icebergs. Sometimes these European proposals are a long time in gestation. They are being ventilated in committee and we see them coming from a good way out. Others suddenly rear up out of nowhere in the ocean. I have seen more of these unexpected icebergs in the past six months than I would have expected. As the discussion proceeds around the committee we will reflect on the points coming up and perhaps revert to the Chairman. We will also cross-check with our colleagues in the Department of Foreign Affairs, who are at the heart of the dialogue to which I referred in respect of Deputy Creighton. That relates to how we manage as a country and as a parliament across the gamut, of which justice is a significant part, but by no means the only part.

Chairman

There is major concern in light of the fact that the primary focus is the justice committee. This committee deals with 14 other Departments and much of the documentation is dispatched from here. This committee excels as a result of the legal back-up available and it can carry out scrutiny correctly. As a result of their workload, other committees may not accord the same emphasis and we may lose out. There may be an issue for debate in Seanad Éireann and Dáil Éireann in light of the fact that documentation is going to two committees with equal responsibility but not in a very definite manner.

Mr. Seán Aylward

I understand the dilemma the Chairman has described. Some of these things must be teased out at Oireachtas level. As a worker for the Executive, I do not wish to stray into the domain of the Legislature. However, there is no question but that very complex challenges face the Legislature as individuals, members, chairpersons of committees and as workers who represent a demanding electorate. It is very hard to juggle all these things and get them right. I am quite sure there will be further evolution in developments for the committee. Doubtless resource issues and implications exist but I cannot speak to them.

Chairman

Will the Secretary General give consideration to the concerns we hold on this matter?

Mr. Seán Aylward

We face new challenges and we will not experience augmentation of resources, nor can we expect to in the current circumstances. We too must find ways of boxing more cleverly and developing systems, including early warning systems that indicate potential trouble. We too must sharpen up the way in which we deal with these points. There are whole new levels of scrutiny at issue. I welcome them as a democrat but I share the concern of the Chairman about how we manage them. We will keep working on it.

Chairman

I thank Mr. Aylward for his comprehensive reply.

Deputy Lucinda Creighton

I thank the Secretary General, Ms Woods and Ms Duffy for joining us. This is a very useful exchange and it is very timely given the work we are undertaking. It is fair to say we all find the increase in workload and the volume of work facing us to be somewhat overwhelming. However, it is an opportunity and must be seen as such. Almost everyone around the table today advocated the Lisbon treaty precisely for the reasons pointed out by Mr. Aylward, that is to say, because we are democrats and we wished to see an additional level of democracy within the European Union and the way in which it conducted its business. However, there are challenges associated with it. I do not intend to go over the same ground as Deputy Perry because Mr. Aylward responded very comprehensively. I would like to touch on a couple of points arising from Mr. Aylward's contribution. He mentioned the European Parliament's relationship with the Government, the Council of Ministers and the Department of Justice, Equality and Law Reform, which is a very important issue. The European Parliament is active and robust. Mr. Aylward suggested that the Department's relationship with the European Parliament will need to be developed. I would be very interested to hear any thoughts he may have on how that might happen. How does he envisage that it might happen? I accept there is no simple answer to that question.

Members referred to the "opt-in" with regard to justice and home affairs. I would look on it as an "opt-out" because we are opting out. The Government's initial dialogue related to an opt-out. It became an opt-in at some point during the course of the Lisbon treaty referendum campaign, which was very clever. I am fundamentally opposed to this. I accept the point that our common law system is unique in Europe. However, these difficulties could have been overcome. It is lamentable that they were not.

What is Mr. Aylward's experience to date in this regard? I appreciate that these are early days. My concern about the ongoing opt-out is that our ability to shape proposals in the justice and home affairs sphere is limited. We are constrained because we have not played a full part in this process from the outset. We have adopted a kind of à la carte approach. I wonder whether the Department has had any experience of that kind to date.

The final point I make about the "opt-out" relates to the three-year review. I note that the language used provides that a review must occur within three years. We know reviews can take a long time. At what point will the review begin? If it is conducted in a comprehensive manner, it could take up to 12 months. When one thinks about it, the timeframe for the review is not all that far away. I am curious to hear more about this aspect.

The eight-week deadline for subsidiarity has also been alluded to. Such a short timeframe is very constraining. How does the Department envisage that the deadline will operate, from a practical point of view? Is it feasible that such a deadline will be met when complex legislative proposals come from the EU? I accept that many of these issues are aired well in advance. While that is true, it will be difficult to go through the tight schedule that will be associated with the formal procedures.

On the additional responsibilities, such as the increase in legislative initiatives coming from the EU, which have resulted from the Lisbon treaty, has there been a dramatic increase in legislation to date? I am interested to know whether it is anticipated that there will be a dramatic increase in legislation emanating from the Department of Justice, Equality and Law Reform as a result of the Lisbon treaty. The increase will probably be quite substantial.

Chairman

Does Mr. Aylward wish to answer Deputy Creighton's questions now, or after Deputy Costello, Senator Leyden and Deputy Michael Kitt have asked their questions?

Mr. Seán Aylward

I might to try to respond to some of Deputy Creighton's questions now, if it suits the committee.

Senator Terry Leyden

It might be best to answer all of the questions together.

Deputy Joe Costello

Can the Chairman take everybody together?

Chairman

I can.

Deputy Joe Costello

I welcome the Secretary General, Mr. Aylward, and his colleagues, Ms Woods and Ms Duffy. This is an important meeting. Now that justice issues are being dealt with as part of mainstream European affairs, I expect we will have many more meetings of this nature than we had in the past. It used to be a separate pillar that operated on the basis of unanimity, but it is now part of the normal legislative mechanisms that use qualified majority voting. Now that extra powers of co-decision-making have been given to the European Parliament, it will be far more assiduous in looking at justice matters. It has already flexed its muscles in respect of the transfer of data to the United States. It has decided to reject the Council's recommendations and to oppose its proposals. It is clear that the European Parliament intends to be a major player in this area.

This development is further compounded by the opt-in mechanism. I ask the Secretary General to reflect on that. I understand that the opt-in mechanism applies to every item and that an individual decision has to be made in the case of each item. When will such decisions be made? If such a decision is made after a period of reflection by this committee, the Joint Committee on Justice, Equality, Defence and Women's Rights and the Department of Justice, Equality and Law Reform, will the Government have the authority to be involved in the development of the proposed draft measure from the beginning? Do we know how long we will have to reflect on such matters? Will we need to make immediate decisions, in principle, on proposed measures? Will we have to indicate from the outset — before we undertake the fullest possible interpretation or consultation — whether it looks like we will be able to opt into any given measure? As I understand it, if we do not opt at an early stage to get in on the action, we will not able to participate in the negotiations. Will we have to trigger the opt-in mechanism in two stages? Is it the case that an initial decision will be taken in principle and a final decision will be taken after negotiation? If so, these matters will have to be dealt with sensitively. I would like to hear Mr. Aylward's views on that.

On the European Parliament, I was pleased to hear what Mr. Aylward had to say about the need for this committee to work in partnership with the Department of Justice, Equality and Law Reform, the Government and the Joint Committee on Justice, Equality, Defence and Women's Rights. However, I suggest we also need partnership with Members of the European Parliament. If we do not have some knowledge of how the European Parliament reflects on these matters, there might be difficulty with the proposals we make when the final co-decision-making process takes place. There needs to be a mechanism whereby the 12 Irish MEPs can make an input into the many justice matters that will be decided on at this committee or at the Joint Committee on Justice, Equality, Defence and Women's Rights. I wonder if Mr. Aylward can give us his views in that regard.

This committee meets the Minister for Foreign Affairs every month in advance of his attendance at Council meetings. Now that the centrality of justice matters has become a reality, would it not be appropriate for the Minister for Justice, Equality and Law Reform to come before this committee, perhaps on a monthly basis, before he attends meetings of the Justice and Home Affairs Council? Does the Minister attend such meetings, or is it generally the Secretary General who does so? It seems to me that this whole new area of development will require much more intense conferencing. We will have to organise many more meetings on this matter.

Does the Stockholm programme, which seems to be a major initiative for the next five years, not require a full plenary hearing in the Dáil and the Seanad? The action plan has yet to be agreed. The proposals that have come from the Commission will determine many activities in the freedom, security and justice area over the next five years. Would it be appropriate for the Minister for Justice, Equality and Law Reform to place this issue on the agenda for full debate in both Houses?

Senator Terry Leyden

I welcome Mr. Seán Aylward, Secretary General of the Department of Justice, Equality and Law Reform, and Ms Joyce Duffy and Ms Rachel Woods from the international policy division. The presentation was very thoughtful and comprehensive on the roles of the Department, the Minister and the Lisbon treaty and I hope it receives widespread coverage. I welcome the idea of a partnership approach with this committee and other committees. We should work as a team, in a non-political way, on behalf of Ireland. Creation of a citizens' Europe in the areas of freedom, security and justice is commendable.

Can Mr. Aylward comment on the growth of head shops? They did not originate from the Lisbon treaty but if they had become an issue a year ago people would have had serious concerns. We are using Europe to justify not bringing in legislation until June to ban the substances concerned. The issue is not covered by the Department of Justice, Equality and Law Reform but the Minister is considering legislation to ban head shops. There was an arson attack in Balbriggan last night and there have been attacks in other locations as people resort to illegal methods to close the shops concerned. This is because the system has failed them. We should bring forward emergency legislation to close them down. There have been incidents in Sligo and there is to be a protest at High Times on Castle Street in Roscommon.

Deputy Joe Costello

To whom is the Senator addressing his question?

Senator Terry Leyden

I am addressing it to the most senior person, apart from the Minister, in the Department of Justice, Equality and Law Reform and someone who has enormous influence.

Chairman

We are deviating from the debate on the Stockholm programme.

Senator Terry Leyden

I do not see why the Lisbon treaty should inhibit us in bringing forward legislation and compel us to report to the EU to ban these shops. The Minister made a statement on the matter in the past 48 hours. I am sure the Secretary General is aware of the Minister's comments and I would like him to update us on the position.

The Schengen area comes up regularly in the Council of Europe. It comes within the area of justice and I ask the Secretary General to comment on the matter.

Deputy Michael P. Kitt

I welcome the Secretary General and his staff. Every MEP was invited to address the last Seanad, which was a very good exercise, and Deputy Creighton's sub-committee will hear from many experts on the European Union's role. Can the Secretary General give his views on the role of MEPs and that of the European Parliament?

In the context of the volcanic ash cloud, is any video conferencing taking place? The Minister for Transport took part in a video conference with his counterparts in Europe in recent days. We discussed this issue long before the volcanic ash became an issue.

Mr. Aylward mentioned the proposals which fell after we accepted the Lisbon treaty. I am particularly concerned about combatting human trafficking and protecting victims and feel there is a need for translation and interpretation services to be made available in that area. Mr. Aylward said we would bring the measure back in but what progress has been made in that regard?

Even before the volcanic ash became an issue, airlines decided whether to ask for a passport for travel between Ireland and Britain or accept some other photographic identification. Could the Schengen Agreement be adopted for people from other European Union countries who want to travel?

Chairman

MEPs are entitled to attend the Joint Committee on European Scrutiny and occasionally do so, but they want to avoid duplication of work in Brussels. All documentation and publications of this committee and of the Joint Committee on European Affairs are circulated to them but they should be facilitated on weeks when they are not in Brussels.

Mr. Seán Aylward

I am conscious that the committee is working to a deadline so will respond with brevity. I will deal with the questions seriatim. Deputy Creighton referred to relations with the European Parliament. They should be part of a broader strategy by the joint committee across its full remit. There is certainly scope for the attendance of MEPs before this committee and there may be more formal requirements to attend. We have tried, through our representations in Brussels and Strasbourg, to get messages to Irish Members of the European Parliament when big issues come up and we try to brief them accordingly. This will become a higher priority for us and reaching a common position across the political divide will have to be brokered as part of the wider responsibilities of this committee.

Chairman

Mr. John Hamilton is the Irish EU liaison officer and it is to be welcomed that the Department is working with MEPs.

Mr. Seán Aylward

We are happy to do so. Over the years I have been contacted by Members of the European Parliament when a particular debate is coming up or if they are members of a particular committee. A briefing has sometimes been given over the telephone or by means of a short fax or e-mail. We try to provide a service but we have limited resources. Our philosophy is to help and to support and we see the role as a partnership between the elected representative, who is doing his best for the country, and the Department which supports the Executive and the broader Irish project.

Chairman

Mr. Aylward referred to the importance of legislation coming from Eurojust and Europol. The liaison officer in Brussels has attended meetings of this committee on numerous occasions and is doing an outstanding job in that area. MEPs would very much appreciate any support.

Mr. Seán Aylward

They certainly know where we are. Several issues arise in respect of the opt-in and opt-out. One is the question of whether, philosophically, we were safer to do what we did and I am of the view that we were. However, the UK authorities took a pre-emptive decision. We would have been very isolated if an issue came up on which we wanted to shout "Stop", citing our concerns for our common law culture and traditions. The UK would be out of the picture and we would have to ask the Minister to ask the Taoiseach to execute a handbrake turn at European Council level. I do not want to diminish the status or the concerns of Malta and Cyprus but their concerns are not as big as ours. They might not be prepared to go out on a limb to stop something which, for us, would violate the culture and traditions of the country. One proposal which might raise concerns for us, and where we would be happy to recommend exercising an opt-out, relates to changing our succession laws. There are EU proposals in that area which are underpinned by the Code Napoléon approach to inheritance and succession which has existed on the continent for centuries but they would cause us considerable difficulty. I do not want to go into them in too much detail but they would involve, for example, the possibility that people could bypass our very liberal succession laws by moving to another European state, thereby disinheriting family members in a way which they could not do at present. We would have an issue with that. We could have been on our own in that assembly had we not followed the UK opt-out. That is just one tiny example I have seen already where I am glad we have that opt-in or opt-out option. I think it is of value.

We have already stated in regard to the opt-in review that we will monitor the occasions and the instances where we have opt-ins and the reasons behind them. We are gathering the data. I assure Deputy Creighton, who raised this matter, and the committee that our review will begin well in advance of the three year period. We will do our utmost to ensure that this committee which will be at the heart of that review will have sufficient time to debate it properly.

An issue was raised by a number of members about the attendance of the Minister. Deputy Costello raised the issue in the first instance. The Foreign Affairs Councils are more frequent than the Justice Councils and take place every month, whereas the Justice Councils are less frequent. However, at the request of this committee, the Minister for Justice, Equality and Law Reform has attended in advance of meetings of the Council. While I do not wish to speak for him, I see no change in his attitude towards being positive to the committee and briefing it in advance of the issues that will come up at a Council.

A number of issues were raised about the Schengen area and the common travel area. The Schengen area and the common travel area are in some ways in opposition to each other. We have the land border with the UK which is staying firmly, for the moment, outside the Schengen area. We do not want to do anything that would impinge negatively on people who would identify with this State who are on the other side of the Border. We also have an incredible level of frequency of travel east-west as well.

There are issues and concerns about the operation of the Schengen area in terms of immigration patterns, including illegal immigration. It is in our interest, at this juncture, to remain part of the common travel area and to enthusiastically adopt those elements of the Schengen programme which do not relate to borders, but which relate to policy co-operation, or as many as possible. I would be the last person to speak about the world of diplomacy. There is not an ounce of diplomacy in me. As pragmatists we are taking the line we take on Schengen and on the opt-in and opt-out because that is our perception of where our national interest lies. There is no ideological basis to the advice we give in this area or the line the Government has struck and which has been endorsed.

Chairman

What does Mr. Aylward think of Eurojust and Europol?

Mr. Seán Aylward

Europol tends to be an operational organisation and it operates under the structures that exist. It has not generated a vast volume of proposals to date but that could change. These are all institutions which are in evolution. There were two other issues raised which I will touch on briefly. One was about the volcanic ash video conferencing. There is a famous film "Lost in Translation". One of the difficulties about video conferencing with 27 people around Europe is that unless the discussion is confined to a very brief exchange, it will not take one very far in that wide area of consultation.

In regard to human trafficking and interpretation services, we are happy to see a common standard being set across Europe. We are well in the lead in this area. At considerable expense, we have substantial translation services afforded both in our immigration control areas and in our immigration appeal areas, availed of by the police and our courts. It is expensive but it is a very extensive approach and is very much around protecting people's rights — the rights of people who are seeking permission to stay here, perhaps claiming asylum, or people who we fear may be the subject of human trafficking.

Ahead of the issue becoming a large problem in our Department, during the past two years — even though our resources were beginning to shrink — we set up an anti-human trafficking unit, led by a senior colleague, Ms Marion Walsh, which liaises intensively with countries around the world and with our police and immigration services. It is a growing issue and it is welcome that the JHA structures and executives are examining it.

Head shops were mentioned. Different member states appear to have a different view on head shops. We in the Department of Justice, Equality and Law Reform view this development with concern. Our attitude in terms of addressing it is to hit every button on the set in trying to tackle head shops. Our colleagues in the Department of Health and Children are following European rules and protocols in banning certain products, mind altering substances. We are also promoting a criminal justice response and we are in dialogue with a number of Departments and with the Attorney General's office with a view to bringing the heads of legislation to Government. However, framing such legislation is a challenge. It has proven very difficult. Thanks to our colleagues in the Department of Foreign Affairs, we have had a review across the world of what countries have done to deal with these shops. Around the world, they tend to have a similar pattern. They are aimed at young people inclined to experimentation and vulnerable to experimenting with illegal drugs. They tend to sell drugs paraphernalia, bongs and things like that and promote various pharmaceutical products which could be described as party drugs. They keep changing the formulation which makes it difficult to proscribe the substances. There is much hype around them. The only countries I have seen which have been successful in eliminating these are pretty totalitarian countries. That said, the Minister and the Department are resolved to test the law and the ingenuity of the law officers and the system to tackle these. It will require ingenuity of language and philosophy to do this but it is our resolve to try.

Chairman

What is the timeframe?

Mr. Seán Aylward

I must be careful here and respect the fact that the law officers are involved, including the Attorney General's office and his senior officials, whom we have met, and they have gone into this issue in detail with us and the Minister. We must get an agreement with them and the other Departments and get to Government and the Government has to sign off on it. We will get our report on this matter to Government as soon as possible. After that it is not in my span of control.

Chairman

It is certainly——

Mr. Seán Aylward

I may be straying a little from the strict European remit. We are fully cognisant of local and community concerns.

Chairman

Big concerns.

Mr. Seán Aylward

The Minister is very concerned. He has spoken to local representatives from these areas and local residents. We have reports from the Garda. We are aware of the arson attacks on these premises. We know the young people who tend to patronise them are in a cohort who are inclined at that age to experiment and, at the very least, involvement with head shops as a customer could become a gateway to full involvement with very sinister illegal drug merchants. We do not want them. They are socially undesirable. It is unquantifiable the damage that can be wrought on people from taking such substances. There may be libertarian arguments in favour of head shops but none that I have heard, is persuasive. They put people at risk. The buyer should beware and the State should try to put them out of business if it can. We are resolved to do it.

Chairman

That is a very comprehensive reply for which I thank Mr. Aylward.

Senator Terry Leyden

I apologise but I must leave to go to a meeting.

Deputy Joe Costello

Is there a reason the European Union should stand in the way of the Irish Government taking immediate action? There is an idea abroad of a three month notification period, but applying that constraint seems questionable in circumstances where there is need for urgent action.

Mr. Seán Aylward

There are anti-competition laws as well as laws in the area of pharmaceutical products which seem to impinge on this area. The issue, which I think the Deputy is raising, is whether there is scope for what we might call an emergency procedure. This is an issue that is being addressed by our colleagues.

Deputy Joe Costello

The Minister for Health and Children announced that the Department had proposals and was able to name the actual products to be banned but that her hands were tied until the end of the period because of a European directive. The European Union is being blamed for the failure to ban some of these mind altering products. It seems to me that this is being done wrongfully.

Mr. Seán Aylward

The officials involved are very experienced people who are familiar with the directives. They have access to legal advice on the matter. I do not want to stray into their area. When I asked them why we have to wait, it was explained that there are various controls and protections at European level, around the protection of competition law in the production of pharmaceutical products — beneficial products. This is an unfortunate fact but it is being looked at by our colleagues in the Department of Health and Children.

I have spoken over the Deputy, for which I apologise, but the issue is whether an emergency procedure exists whereby we can get around this 90 day restriction. All I can say is that it too falls to be looked at by our colleagues in the Department of Health and Children. I have met the officials and they are very alive to the issue. This is not something that officials are dealing with by remote control. There have been meetings and I have been involved with my colleagues at the top of that Department and the Department of Community, Rural and Gaeltacht Affairs, soon to be renamed, the Department of Community, Equality and Gaeltacht Affairs and collectively we have worked on this from every angle to see if there is an effective way to manage this problem. To put it colloquially: Watch this space.

Chairman

I thank the Secretary General for that comprehensive reply and overview of the Stockholm programme.

That concludes the question and answer session. I thank Mr. Aylward, Secretary General, Ms Rachel Woods and Ms Joyce Duffy from the Department of Justice, Equality and Law Reform for being present at this meeting. The support provided to the committee by the Department of Justice, Equality and Law Reform on directives and in supporting the enhanced role of the Oireachtas post-Lisbon treaty is very important. We are open to advice from the Department on the best way to deal with directives in light of the dual mandate given to the justice committee as well. The new sub-committee under chairperson Deputy Lucinda Creighton will overview the long-term implementation of the Lisbon treaty. It is very important that we look comprehensively at the justice portfolio and the directives emanating from it.

The joint committee adjourned at 1.15 p.m. until 11.30 a.m. on Tuesday, 11 May 2009.