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JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS díospóireacht -
Tuesday, 28 Jun 2005

Terrorist Offences: Motion.

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell. The joint committee is considering the following motion:

That Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:

proposal for a Council Decision on the exchange of information and co-operation concerning terrorist offences, a copy of which proposed measure was laid before Dáil Éireann on 16 June 2005.

The Government granted its approval on 8 June for the exercise of the option to adopt a proposed Council decision on the exchange of information and co-operation concerning terrorist offences. It also authorised the proposal of appropriate motions in both Houses of the Oireachtas seeking approval for the exercise of this option or discretion as provided for in Article 1.11 of the Treaty of Amsterdam to take part in the decision. The decision in question was proposed by the European Commission in response to Objective 3 of the European Union's action plan against terrorism. It aims to improve efficiency in the exchange of information on terrorist offences between member states and Europol and Eurojust.

The Attorney General has advised me that one particular aspect of the proposed Council decision, on which I will elaborate more fully, may require legislation to enable full implementation. The motions, therefore, seek the approval of both Houses for the exercise of the option.

It might be of assistance to members of the committee if I briefly outline the background to the proposed measure. In the wake of the terrorist attacks in Madrid on 11 March 2004, the European Union, under Ireland's Presidency, determined that combating terrorism and the threat of terrorism required improved co-ordination. The European Council declaration of 25 March 2004 sets out seven strategic objectives for the action plan against terrorism. Objective 3 of the plan was to maximise the capacity of EU bodies and member states to detect, investigate and prosecute terrorists and prevent terrorist attacks. On 29 March 2004, under Objective 3, the Commission proposed a draft Council decision on the exchange of information and co-operation concerning terrorist offences.

The purpose of the proposed decision is to provide for improved co-ordination and co-operation between EU institutions and services responsible in this area. It builds on another earlier EU measure aimed at combating terrorism which provided for information exchange on persons, groups and entities listed in the annexe to Common Position 2001/931/CFSP which provides for the freezing of funds of those listed. As such, the earlier measure was limited to information exchange on persons, groups and entities already identified in another EU instrument.

The proposed Council decision will repeal the earlier measure and extend the scope of information exchange to include the exchange of information on all terrorist offences, not merely those listed in an annexe to the earlier decision. It provides that each member state will exchange information with Europol and Eurojust on all stages of criminal proceedings relating to terrorist offences.

Turning to the contents of the proposed Council decision, the principal operative provision is Article 2 which provides for the establishment of a designated specialised service within the police services in each member state which will have access to all relevant information on criminal investigations with respect to terrorist offences. This information is exchanged with Europol. Article 2 also provides for the establishment in each member state of a designated Eurojust national correspondent for terrorism matters. This person will have access to all relevant information on prosecutions and convictions for terrorist offences. This information is exchanged with Eurojust. The Irish national correspondent for terrorism matters is an officer of my Department.

The remaining articles of the proposed decision are concerned with such matters as the definition of terrorist offences which is provided for in the 2005 Act; the type of information which should be exchanged with Europol and Eurojust, including details of the person and acts under investigation, the offences concerned, links with other cases and the penalties imposed and information on enforcement; the use of joint investigation teams in appropriate cases; and urging that requests for assistance in terrorist cases be given priority.

These are the principal points of the proposed Council decision which is relatively short. It is clear that its primary aim is to ensure a better exchange of information with those European bodies with responsibility for investigating and prosecuting terrorist offences.

The provision for the exchange of information with Europol requires no implementing legislation here. The Europol Act 1997 which gave effect to the Europol Convention of 1995 and enabled Ireland to take part in the work of Europol covers the exchange of information. The position on the exchange of information with Eurojust is slightly different. Eurojust was established in 2002 and consists of 25 member states. Its objectives are to stimulate and improve co-ordination between member states in the investigation and prosecution of serious cross-border crime. It also aims to improve co-operation between the competent authorities in member states, in particular by facilitating the execution of requests for mutual legal assistance.

Since its establishment Eurojust has seen a steady increase in the number of cases referred to it by national authorities. The principal types of cases in 2004 included drug trafficking, fraud, money laundering, homicide, terrorism and people trafficking. As part of its efforts to ensure better action against crime, Eurojust has concluded a co-operation agreement with Europol. It continues to develop its capacity to assist the appropriate authorities in member states in the fight against crime, in particular organised cross-border crime and terrorism.

As I mentioned, the Attorney General has advised me that implementing domestic legislation will be necessary to enable the exchange of information with Eurojust. He has also advised me that, as a consequence, motions under Article 29.4.6o of the Constitution are required. The necessary legislative proposals will be prepared and brought before both Houses of the Oireachtas in the normal way in due course. I hope this summary is of assistance to members of the committee.

I thank the Minister for his presentation, on which I have a couple of questions. The joint committee is authorising him to exchange information on all terrorist offences. Will he elaborate on what is meant by "allterrorist offences"? Does it refer to offences in Northern Ireland proscribed in special legislation as well as the the Criminal Justice (Terrorist Offences) Act 2005?

The Minister has to a degree constrained the definition of "terrorist offence". He has entered certain, although probably not sufficient, caveats. I presume other countries have accepted the framework document's initial definition. Therefore, there are various definitions in European legislation. The provisions contained in the Criminal Justice (Terrorist Offences) Act 2005 were probably enacted in some countries and perhaps remain to be enacted in others. Perhaps the Minister will clarify the matter. How many countries have enacted terrorist offences legislation and how many still have do so? What is the nature of the definition in each case? The type of information transmitted depends on the definition. A wider definition of a terrorist offence means a wider distribution of information. What checks and balances will there be to see how each of the 25 member states operates in that respect?

The information goes to Eurojust and Europol. Will the Minister clarify further the role of Eurojust as distinct from Europol? The information in question is very sensitive. It could relate to anything that could be regarded as terrorism, and the definition of terrorism is quite wide. What guarantees are there regarding the security of information supplied by this country to another? Are there or will there be standard security guidelines? Will the Minister be able to insist on such guidelines when this matter is discussed?

We are talking about sensitive information on Irish citizens and others. How broadly will this be applied? Presumably it will extend into the areas of fraud, money laundering and other forms of trafficking that may or may not be directly related to terrorist offences. What is to stop it being so extended? Is there good reason to stop that being done? How will it be limited to those areas? How can we ensure that the information supplied will be safely maintained? Not so long ago there was a rather embarrassing moment in Department of Justice, Equality and Law Reform when the second Morris tribunal report was hacked into. I would have thought that Department would have had the greatest security measures in place regarding computer data. Was the Morris tribunal incident a blip? Was it on the tribunal side or on the Department's side that security was less than ideal? Furthermore, we would be very concerned if it were possible to hack into the Garda PULSE computer database which contains hugely sensitive information. Is it possible for hackers to access sensitive data held in departmental files or in the PULSE file?

How extensive will the transmission of material be? Are we talking about the transmission of a DNA data bank as well?

The Deputy has a great capacity to hack into information which is outside our terms of reference.

It might be better if I dealt with a few of those points now. In regard to the statutory provisions on terrorism, Irish legislation circumscribed some of the definitions which were provided for by the European Union as to what were or were not terrorist offences. The Department thought these definitions were too wide. We also put in a fail-safe mechanism whereby proceedings must be second-guessed by the Attorney General in order to prevent the provisions of that legislation being used in a manner contrary to the fundamental values of the Irish State and other matters.

I note that the decision in Recital 6 respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union — effectively, ECHR rights are already built in. It will be open to us if we so wish to include in our implementing legislation any necessary safeguards that are dictated by the ECHR or by the Charter of Fundamental Rights of the European Union. We take the view that if a recital of that kind is made it gives us a licence to give it legal effect in Ireland. There is a different school of thought at European Union level which holds that a recital of that kind is merely an assertion and does not give member states the right to act on foot of it. We put a more purposive construction on it. If protection of fundamental rights is stated, the decision can have fundamental rights clauses attached to it when being transposed into national law.

Deputy Costello also raised the issue of confidentiality of information in the context of the Morris tribunal report. The Department of Justice, Equality and Law Reform had nothing whatever to do with the incident to which the Deputy referred. The report was not in our possession in the sense that it was available to any third party. A server used by the tribunal which was based in County Clare was hacked into. That had nothing to do with my Department. It was a deeply regrettable occurrence, but such things happen.

The issue of DNA does not arise in this context. The information we are dealing with is data which identifies a person, group or entity, acts under investigation and their specific circumstances, the offence concerned, links with other relevant cases or terrorist offences, and requests for judicial assistance, including letters rogatory, and terrorist offences of which the person has already been convicted, in other words, previous convictions and the specific circumstances surrounding them, penalties imposed, disqualifications and the prior criminal record of people. That is the area of information with which we are dealing.

The Deputy asked what Eurojust was. Eurojust is a body established in 2002. Its headquarters is in the Hague in The Netherlands. It comprises one national member seconded from each member state, and these are the college of Eurojust. The national members are either prosecutors, judges or police officers. The Irish national member is a professional officer seconded from the Office of the Director of Public Prosecutions. The committee will appreciate that there are different prosecution systems in Europe. In many European countries the prosecution role is a judicial one. There are inquiring magistrates and prosecuting magistrates who are a magistracy all of their own. The common law system is not like that. The judiciary are not prosecutors. We must, therefore, select a person corresponding to the inquiring magistrate. The closest to that is a professional officer in the Office of the Director of Public Prosecutions.

The Deputy asked what Eurojust does. It can request national authorities to undertake an investigation or a prosecution. It can request member states to establish joint investigation teams for particular purposes. It can also request the competent authorities to accept that one or other of them, where there is a cross-border dimension, is the appropriate body to deal with an issue.

I welcome the Minister and his officials to the committee. The Minister referred to the terrorist attacks in Madrid on 11 March 2004 during Ireland's Presidency of the EU. We are discussing improved co-ordination between countries. Nobody has a major problem with that. It is the duty of each country to protect its citizens. However, there is one issue on which I have a major problem. Does the Minister share my concern at the fact that the lawful government of Spain lied to the Spanish people about this act, tried to use it for domestic political reasons, and blamed the Basque group ETA for the bombing when, as has been discovered, there was a connection with international terrorism and the war in Iraq? Does the Minister share my concern that a democratically elected government would do this, and it has been proved in the past two or three weeks?

Given that the institutions and the EU are responsible for combating terrorism, is the Minister concerned that we as a nation are facilitating the US by allowing it to use Shannon Airport to bring weapons and bombs to the war in Iraq? Many of our citizens are opposed to the war. Does the Minister share my concerns? It is against the democratic mandate of the people.

Does the Minister share my concerns about the Dublin and Monaghan bombings and the lack of co-operation from the British Government? The document refers to countries assisting each other, yet there is no major co-operation from theBritish Government on the Dublin and Monaghan bombings.

The Minister used the word "terrorism". How does he define it because there are different interpretations and international analyses? I do not know if he is familiar with the Miami Five case in which five Cuban nationals who were trying to prevent terrorist acts being carried out in their own country were imprisoned for 20 and 30 years when the information was passed to the US authorities. Does the Minister share my concerns about governments being directly or indirectly involved in terrorism? The Miami Five case is a classic example.

Does the Minister accept that to bring an end to so-called international terrorism the causes of poverty and larger countries interfering with smaller countries and trying to interpret the democracies within their societies — which often leads to further terrorism — must be dealt with? The world has become more dangerous in the past two or three years. Does the Minister accept this analysis?

As regards the first point about the Madrid outrages, the Spanish people had the opportunity to cast their votes in the light of all the knowledge gained. I respect their democratic decision. It would be inappropriate for me to comment further on internal Spanish matters.

As regards the Iraq war, the two Houses of the Oireachtas adopted a resolution approving the Government's position. The Deputy was present when it was passed. The Government's position is, as with the conflicts in Kosovo and Afghanistan, that we have given limited transit rights to the United States Government to use Irish airspace and, on occasion, Shannon Airport.

The Minister supports the war in Iraq. I wanted to know his position on it.

I did not say anything about it. I said both Houses of the Oireachtas, the Members of which are elected by the people, had made their decision clear on the issue.

As regards what I would categorise as terrorist activity, both Houses of the Oireachtas recently passed into law the Criminal Justice (Terrorist Offences) Bill 2005 which adopts and adapts European Union framework decision definitions of "terrorist" and "terrorist linked activity". As Deputy Costello said, the legislation seriously circumscribed some of the broader phraseology of the relevant framework decision in the interests of protecting our fundamental freedoms and values.

As regards the Dublin and Monaghan bombings, as the Deputy knows, I was one of the first to identify with the relatives of the deceased of that atrocity and have not wavered in that regard. The Taoiseach has also not wavered and takes every opportunity at every meeting to impress upon the British Government the Government's strong position that the truth about the bombings should emerge untrammelled by security considerations in the United Kingdom. That remains the Government's firm position in all its dealings with the British Government on the issue. I strongly deplore the atrocities carried out in Dublin and we should attempt to get to the bottom of the issue. The Taoiseach is right to constantly request his opposite number and theBritish Government to agree to a comprehensive inquiry.

There have been many other atrocities in Ireland which have not only not been investigated but which have also been the subject of a massive campaign of deceit such as the killing of a young girl by the Provisionals and the campaign of sustained lying by all the top Provisionals in Derry who knew the truth. They told her family that she had been killed by the British army. For many years they were unwilling to acknowledge that they had killed her. For all those years they made a cowardly and deceitful attempt which must have involved collusion at the political top of the Provisional movement to persuade her family that their daughter had been killed by the British army. If we are moving into a world of new values in terms of what has happened on this island and the use of terror, the Deputy should remember that some have an insatiable appetite for finding out the truth about what was done by those they opposed but have little willingness to inquire into their own activities. I would love to have a statutory tribunal of inquiry to find out who in the Provisional movement in Derry and which elected members of Sinn Féin knew for all those years that they were lying about this incident. Why, 30 years later, do they suddenly get a fit of conscience? Is it an effort to expiate guilt or sanitise themselves at a belated stage? I do not know.

I do not have any doubt the people will support improved measures for the exchange of information on and co-operation against terrorist offences. I am probably speaking for 90% of the people. Why would they not support such measures after 30 years of terrorism, murder and mayhem in this country by people with no conscience or concern for the wishes and will of the people? We must support measures for the better exchange of information on and co-operation against terrorist offences. We must do everything within the Constitution and the series of measures which constitute the EU constitution to provide for this.

If I were again to interpret the wishes of the people — unlike Éamon de Valera, I will not look into my heart — I would say they want to ensure there is no abuse of any database or exchange of information. I am sure that is the position of 90% of the people who are not overly liberal but concerned. As regards the completion of any new arrangements, we must ensure there are safeguards against abuse. The Minister will be answerable to the Oireachtas and this committee for whatever emerges. If he ensures there are adequate safeguards against the abuse of such information, he will have the support of the committee and the Oireachtas.

I welcome the Minister and his officials. How will the information be stored? Reference was made to the Dublin and Monaghan bombings and the Morris tribunal. The judges involved in both inquiries found a deficiency in the maintenance of files and records in the Garda Síochána. It is essential that accurate information is maintained. It would be embarrassing if we were to repeat the same mistakes made in both inquiries. Passing on information on a person's previous convictions is an issue. The Troubles gave rise to miscarriages of justice for some Irish people in Britain. I do not think it is institutional but there are elements in the British system who have a particular bias in that regard. Have safeguards been put in place? Given the terrible atrocities in recent years, it behoves all those involved in state security to co-operate fully with each other in countering international terrorism.

I welcome Deputy O'Keeffe's support in principle for implementing this decision, that the great majority believe it is the duty of the State as a member of the European Union with solidarity to come to the aid of and give assistance to all other member states and that, conversely, it is our moral entitlement to expect other states to assist Ireland in such activities.

The Deputy makes the point that keeping information confidential and not allowing it to be abused in any way is foremost in our minds. Let me emphasise that the information to which this decision relates is not high grade intelligence — that would be a matter for Europol or an agency to agency bilateral issue — but straightforward factual information on investigations.

In the European model whether an investigation is taking place in many European countries is usually not a secret matter. Their view of the law is that an investigation is a judicial process. We are not talking about the darkest secrets of the State being imparted to others or vice versa but straightforward material about people’s previous records and the nature of the investigation being carried out.

Senator Walsh makes the point that we have to be certain that we avoid colluding unintentionally in miscarriages of justice. I agree that when we engage in activity in connection with the state security of any other member state, we must be very careful to remember that citizens have rights; that the interests of the state are not always paramount and that a balance between the interests of the state, both internally and in Europe, and the rights of the citizen must be struck.

Whatever about events which occurred in the past, nobody but the most perverse could possibly see any justification for terrorism on this island or between us and our nearest neighbours, north of the Border or on the other side of the Irish Sea. We have come to the point where there is no justification for terrorism. The immediate threat of terrorism comes from small splinters of so-called republicans who are still apparently interested in committing murders and carrying out bombings and attempting to put together bombing and murder campaigns, although unsuccessfully.

In Northern Ireland there are some active loyalist terrorist bodies which pose a threat to security on both sides of the Border. Again, it is a matter of providence that we have been spared some of their excesses. In protecting this society from such people we would expect the government, police and security services of the United Kingdom to share information with us on a very generous basis. There is very close co-operation between the security services on either side of the Irish Sea and the Border.

Obviously, by their very definition, security services do not throw open their doors to each other and operate on a seamless unitary basis but bearing that reality in mind, there is immensely close co-operation between the Garda and the police and security services on the other side of the Border and in Britain. It is important that there is that relationship because I keep emphasising that, whatever views Unionists in Northern Ireland may have, it is clear that as far as the security and well-being of every person on this island is concerned, we are interdependent. What happens south of the Border affects what happens north of it and vice versa. As somebody said, “No man is an island”. No part of Ireland is an island; there is only one island, the whole of Ireland. From the point of view of ensuring the security and safety of Irish citizens from thuggery and criminality and those who would revert to terrorism, we are totally interdependent. We cannot guarantee the safety of our citizens isolated from happens in Northern Ireland. Neither can they.

That concludes our discussion of the subject. Is it agreed that there should be no further debate on it in the Dáil and Seanad? Agreed. Is the draft report agreed, subject to the insertion of details regarding attendance and contributors to the discussion? Agreed.

I thank the Minister and his officials for attending this meeting. We look forward to meeting them again tomorrow morning at 9.30 a.m.

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