I welcome Ms Marian Walsh, principal officer, and Ms Deirdre Fanning, assistant principal officer, criminal law unit, Department of Justice, Equality and Law Reform, and thank them for coming to discuss the proposed decision on the European evidence warrant for obtaining objects, documents and data for use in proceedings in criminal matters. The proposals were referred by the Sub-Committee on European Scrutiny. Members have been circulated with an updated briefing note from the Department. The purpose of the proposal is to apply the principle of mutual recognition to a European evidence warrant issued for the purpose of obtaining objects, documents and data for use in criminal matters. I invite Ms Walsh to make her presentation.
Scrutiny of EU Legislation.
Ms Marian Walsh
I thank the committee for the invitation to come before it to discuss this proposal. I am precluded from expressing an opinion on the merits of the policy of the Minister, the Government or the Attorney General.
To put this proposal into perspective, EU competence to deal with judicial co-operation in criminal matters is governed by the provisions of Title VI of the Treaty of the European Union. These provisions create an objective of providing citizens with a high level of safety within an area of freedom, security and justice. The objective is to be achieved by preventing and combating crime, in particular, terrorism, trafficking in people, offences against children, illicit drug trafficking, corruption and fraud. The means for achieving this objective include closer co-operation between judicial authorities and the approximation, where necessary, of rules on criminal matters.
In October 1999, the European Council endorsed, in what became known as the Tampere conclusions, the principle of mutual recognition — that is, the process whereby one member state would recognise and enforce a judicial decision taken in another member state — and the Council agreed that this principle should become the cornerstone of judicial co-operation in civil and criminal matters between member states. This approach aspires to close co-operation between member states based on the principle that diverse legal systems should offer each other maximum mutual recognition and support. The Justice and Home Affairs Council subsequently adopted, in January 2001, a programme of measures to implement the principle of mutual recognition in criminal matters.
The proposal for a European evidence warrant, EEW, arises from the Tampere conclusions and from the programme of measures adopted by the Justice and Home Affairs Council. Its aim is to apply the principle of mutual recognition to a European evidence warrant issued for the purpose of obtaining objects and documents for use in proceedings in criminal matters. It is envisaged that the framework decision, when implemented, will result in quicker, more effective judicial co-operation in criminal matters. It is considered to be the first step towards replacing the existing mutual assistance regime by a single EU body of law based on mutual recognition and subject to minimum safeguards.
I will briefly outline the main provisions of the framework decision. The original proposal, published in November 2003, has been amended in light of ongoing negotiations that commenced in regard to the detail of the proposal in July 2004. Further amendments to the text are likely as negotiations on outstanding issues continue. The latest draft text of the framework decision, which has been made public and which has been made available to the committee, is dated 19 July 2005. My presentation is based on this text.
Articles 1 and 2 define the EEW, place an obligation on member states to execute it in conformity with the principle of mutual recognition and define certain terms used in the framework decision. Article 3 outlines the scope of the EEW. The EEW may be issued to obtain evidence in the executing state for the purpose of the proceedings covered by Article 4, once the conditions for the issue of the warrant set out in Article 6 are met. The warrant shall not be issued for the taking of evidence in the form of interviews, statements or hearings or from a person's body — including DNA samples — for obtaining information in real time such as via interception of communications, surveillance or the monitoring of bank accounts, or for conducting inquiries concerning existing objects, documents or data by means of, for example, forensic analysis or systematic compilation, unless such material is in the possession of the executing authority.
Article 4 specifies that an EEW can be issued for any criminal offence under the law of the issuing state or for administrative proceedings which may give rise to criminal proceedings before a court. Itmay also be issued for any of the foregoing proceedings which relate to offences or infringements for which a legal person may be held liable in the issuing state.
Article 5 deals with the content and form of the warrant, which must be completed, signed and certified and translated into one of the official languages of the executing state. The procedures and safeguards to be followed by the issuing state are dealt with in Articles 6 to 10, inclusive, of the framework decision. According to Article 6, an EEW may be only issued where the issuing authority considers it necessary and proportionate and where the evidence sought can be obtained under the law of the issuing state in similar circumstances, even though different procedural measures might be used.
Article 7 states that the warrant shall be transmitted to the competent authority for execution and that each member state may designate a central authority or authorities to assist the competent authority by handling the administrative transmission and reception of the EEW. The former Article 8, which concerned the designation by each member state of a central criminal records authority, has now been deleted in light of a Commission proposal regarding the exchange of information placed on the criminal record.
Article 9 provides that where evidence additional to that noted in an EEW is required for the same proceedings and where the content of the original warrant remains accurate, a warrant for additional evidence, rather than a new evidence warrant, will be issued.
Article 10 sets out the use to which personal data obtained under the framework decision may be put and provides for the confidentiality of personal data obtained. The provisions are similar to those in other instruments in this field.
Articles 11 to 20, inclusive, deal with procedures and safeguards for the executing state. Article 11 provides for recognition and execution without further formality unless a specific ground for non-execution or non-recognition comes into play. It also provides for the judicial validation of an EEW issued by a police, customs or frontier authority if coercive measures are required. The provisions covered by Article 12 in the initial proposal have, since that proposal was issued, been deleted and addressed in other articles of the text.
Article 13 provides that any formalities or procedures indicated by the issuing state must be followed unless they are contrary to fundamental principles of law in the executing state. Article 13(2) has, since the issue of this document, been deleted as it is encompassed by the terms of Article 13(1).
Article 14 provides an obligation for the executing state to inform the issuing state if it appears that further investigations not initially foreseen may be appropriate or if it comes to light that execution may have been contrary to the law of the executing state. The executing state must also inform the issuing state, when it has transmitted the EEW to the authority competent for execution, if it has decided to postpone execution or not to recognise the EEW or if it is impossible to execute the EEW.
Article 15 provides grounds for the non-recognition and non-execution of an EEW. It may be refused if there is immunity or privilege under the law of the executing state, if its execution would infringe the ne bis in idem principle, if it relates to offences which have been committed on the territory of the executing state or if it relates to offences committed outside the territory of the issuing state and the executing state’s national law does not permit proceedings to be taken where the offence is committed ex-territorially. Recognition or execution may also be refused in the interest of national security. Provision is made for consultation with the issuing state before deciding not to recognise or execute an EEW.
In accordance with Article 16, the recognition or execution of the EEW will not be subject to the verification of dual criminality if it is not necessary to carry out a search or seizure or if the offence is one of those encompassed by the terms of Article 16(2). These include, for example, terrorism, human trafficking, sexual exploitation of children, fraud, murder, rape and arson. The list of offences in Article 16(2) is the same as that agreed in respect of this issue in the framework decision on the European arrest warrant and the framework decisions dealing with the mutual recognition of both confiscation orders and freezing orders.
Article 17 lays down deadlines for recognition and execution of an EEW and also provides for the return of evidence to the executing state. The text is subject to ongoing review and the final text is likely to be more flexible providing that the issuing state shall be informed where it is not practicable for the deadlines to be met.
Article 18 provides for the postponement of an EEW if the necessary form is incomplete, if an ongoing investigation or prosecution could be prejudiced by the execution of the EEW or if the evidence is already in use in other proceedings.
Article 19 provides for arrangements to be put in place to ensure that any interested parties will have a legal remedy against an EEW. It also provides for the issuing state to be informed if an action is taken and that the transfer of evidence may be suspended while a legal action is under way. This article is the subject of ongoing discussion and the likely outcome of such discussions is that legal remedies may now be taken against recognition and execution and will not be forcibly limited to where coercive measures have been used.
Article 20 provides for the issuing state to reimburse the executing state for any damages paid to any interested party or bona fide party who has been injured in the course of the execution of an EEW, unless the injury is due to the conduct of the executing state.
Article 21 provides that a state should be able to execute a European evidence warrant dealing with computer data that is accessible to the executing state or relates to a service provided on the territory of the executing state.
Article 22 provides for a review of the operation of the framework decision and for its effectiveness to be monitored. Article 23 provides for the EEW to function alongside existing bilateral mutual legal assistance instruments for a transitional period. That text has not yet been finalised. A provision will be included to the effect that the EEW is to be the primary instrument and that authorities shall seek to rely on it.
Article 24 provides that requests received before a certain date shall continue to be governed by existing instruments. That is to ensure that the transition to the use of the EEW is clear cut.
Articles 25 and 26 deal with the formal procedures for implementation and entry into force. Provision is also made for the Commission to submit a report to the European Parliament and to the Justice and Home Affairs Council assessing the extent to which member states have complied with the framework decision.
That completes the description of the articles contained in the draft framework decision. As I have already indicated, negotiations between member states on this instrument are ongoing. For that reason, the document I have outlined to members today may go through some further amendment before the text is finalised. Negotiations are nearing an end in that the Hague programme for strengthening freedom, security and justice in the European Union, approved by the European Council at its meeting in November 2004, provides that the instrument should be adopted by the Council by the end of 2005. Following the terrorist attacks in London in July, the Justice and Home Affairs Council also indicated that adoption of the framework decision should take place by 31 December 2005. I thank members for their attention. I will now endeavour to answer any questions they may wish to ask.
I thank Ms Walsh for an excellent presentation.
I have one question——
I thought I would be called first.
Deputy Peter Power was the first to indicate. Normally——
I do not accept that. If a presentation is made on behalf of the Government, the Opposition is called to respond. It is never necessary to remind the Ceann Comhairle of that in the House and it has never been necessary in any other committee of which I have been a member.
To be helpful, I am not under any time pressure.
I do not want to make an issue of it.
I do not want to make an issue of it in this particular instance but it is a normal courtesy to the Opposition. It should be standard practice. It is standard practice in the Dáil, the Seanad and every other committee with which I am involved and it should apply here also.
Having raised the political aspect, I welcome the principal officer and the assistant principal officer from the Department. I will preface my next remark by saying I have the highest regard for Ms Walsh's technical knowledge in this area but in principle and in general, when a framework decision document or proposal is put before this committee, it should be presented by a political figure. It is not fair to officials to have to open their remarks by saying they are precluded from expressing an opinion on the merits of policy. We are a political committee and we should be in a position to present a political view and have it debated. I am sure Ms Walsh and Ms Fanning are far more qualified to deal with technical questions than any political figure but that is not the point. My remark is not directed at them in any sense but we are a committee of the Oireachtas, which is a political body.
I am strongly in favour of the framework decision proposal for a European evidence warrant and any questions I may ask are with a view to ensuring that the European evidence warrant will be as effective as possible from the point of view of assisting in the recognition and enforcement of judicial decisions among member states.
Despite great ideas regarding progress in the area, there has not been much since the Tampere conclusions of 1999. I hope that this framework decision can be completed before the end of the year. On a technical level, if we agree to this proposed delay, which I hope we do, I gather from the remarks made earlier that there may be amendments. Will they come back to us before final approval is given?
The warrant will be fit for the purpose of obtaining objects and documents for use in criminal proceedings. My approach is to ask whether we can make it even more effective. I note in particular that the warrant cannot be issued for the taking of evidence in the form of interviews, statements or hearings or for DNA samples, which are becoming increasingly important to criminal forensics. I understand the point that a warrant should not be issued solely for a trawling exercise. However, the restriction in the framework document might limit the scope unnecessarily. For example, while the idea is that the scope is limited to evidence existing before the issue of the warrant, what happens if some evidence exists when the warrant is issued and, in the course of its execution, more emerges? Will that be admissible or will some highly paid lawyer be able to argue that it must be excluded because of the way the document is framed? Perhaps we might deal with that matter because I am worried that it limits the framework decision unduly.
I see that each member state is to designate a central authority to assist those competent through entrusting it with the warrant's administrative transmission. Who will do that in Ireland? Another aspect about which I am somewhat concerned is the provision for the judicial validation of a warrant issued by a police, customs or frontier authority if coercive measures are required. What does that mean? It is dealt with under headings 11 to 20.
The last point of concern is Article 15, which sets out grounds for the non-recognition or non-execution of a warrant. One of those grounds is that there is immunity or privilege under the law of the executing state. We do not have a great deal of that here but I understand that there is a fair amount of it on the Continent. For example, parliamentarians in some member states enjoy immunity for as long as they remain elected representatives. Could we find ourselves limited by such a stipulation if we tried to have a warrant executed? I believe that there is such immunity in Italy. Should we try to ensure that we are not thwarted in our efforts to chase up criminal evidence in a member state where there is such immunity? Those are the main issues I wish to raise.
I will try to be brief. Perhaps Ms Walsh might discuss Articles 6 to 10 of the framework decision in more detail. These provide that a European evidence warrant may be issued only where the issuing authority considers it necessary and proportionate and where the evidence sought can be obtained under the law of the issuing state. While an issuing state may claim its request for evidence relating to particular criminal proceedings in its jurisdiction is necessary and proportionate, the proposal does not seem to contain any provisions in regard to how this evidence may be collected. For example, there is much jurisprudence in Ireland governing the circumstances upon which evidence can be obtained on foot of a warrant, particularly when a defendant is not on the premises. My concern is that a situation could arise where a European evidence warrant is submitted to another country which then procures the evidence required in a manner not acceptable here, being contrary to our constitutional guarantees. There are clear guidelines in this State on the manner in which evidence is to be collected once a warrant is issued. Our standards in this regard are high by international norms. Will Ms Walsh confirm whether safeguards for the collection of evidence are included in the proposal? I have not seen any such provisions, albeit I have not read the entire draft.
It is valid we should try as far as possible to simplify and speed up the gathering and transfer of evidence, in line with the European Convention on Human Rights, to ensure people are put on trial within a reasonable time. However, I have expressed my concerns here on numerous occasions in regard to the Hague programme. The Minister informed me last week that parts of the Hague programme, including the issue of the collection of evidence, must be reviewed because of the implications for our Constitution and the fact there was no debate on the Hague programme in the Oireachtas.
I share Deputy Jim O'Keeffe's concern that when we next come to consider this proposal, it will have been amended and we will not be in a position to further amend it because the timetable dictates that it must be passed by the end of the year. As a result, we will be required merely to rubber stamp the document or else opt out entirely. Will Ms Walsh confirm that this is the ratification process? I suggest we take the time to propose amendments which will ensure that people's rights are upheld. I cannot see how the proposal can be accepted in the context of the EU's diverse legal systems, with diverse punishments and definitions in regard to various crimes. What is a crime in one country may not be considered so in another. The difficulties in this regard must be recognised.
In terms of the European evidence warrant, there seems to be a shift from mutual assistance to mutual recognition in that states will be obliged to comply. Heretofore, states have made their own decisions based on their legal systems and safeguards.
The grounds for refusing to comply are greatly limited under this proposal. There is a restriction in terms of the European arrest warrant, which was referred to in the presentation. There is a change to what is called the dual criminality restriction in that it will be restricted further and abolished in time. The European evidence warrant goes further than the European arrest warrant. The current dual criminality rule allows the executing state to refuse to implement a request or to issue a European evidence warrant if the acts for which the evidence is sought are not considered criminal in that jurisdiction. Another important difference between member states is that some allow a defendant's previous convictions to be used against him or her, even if he or she has finished their term of imprisonment, while others do not. How will that work if one wants warrants expedited efficiently? It would take time to build a case. The latter might not exist but might be built up on the basis of evidence which led to a previous conviction.
We should consider a number of amendments. We must ensure that member states do not have to comply if the crime or act for which the evidence is being sought is not considered a crime in a particular country. Additional safeguards must also be put in place in respect of data protection to ensure that self-incrimination does not occur.
While human rights are dealt with in the next proposal, there must be a provision to enable a country to refuse to execute a warrant on the grounds that it might breach a person's human rights. That would be in line with the Convention on Human Rights. We must ensure that it is not only the prosecution that can apply and that the same rights are extended to the defence. We must also ensure that defence lawyers are granted the same ease of application for evidence. I do not know if that is included in the proposal or if it is possible to do so at this stage. Given the different jurisdictions, cultures and languages, we must ensure that people are afforded the right to linguistic or other technical supports if they wish to challenge an evidence warrant. When such a challenge is initiated, the evidence warrant or any work on executing it must be suspended pending the outcome of that legal challenge.
Ms Walsh
I will address some of the points raised by Deputy Jim O'Keeffe. He mentioned progress in respect of the Tampere conclusions. A programme of measures relating to mutual recognition in the field of criminal matters was agreed by the Justice and Home Affairs Council following the Tampere conclusions. There were 21 or possibly 23 measures in that, of which approximately eight have so far been implemented. Others are at various stages of development. In some cases, these have not yet been published by the Commission.
Deputies Jim O'Keeffe and Ó Snodaigh both asked about the timeframe for the completion of this instrument. They also inquired whether, if the proposal proves acceptable to the committee, the process of deliberation would be completed now or whether there would be a further opportunity to comment on the matter. As I indicated, the proposal is at quite an advanced stage and the plan is to have it adopted at the Justice and Home Affairs Council on 1 and 2 December. There will be opportunities at a number of meetings to make some amendments at EU level but before the proposal is approved by the Dáil, the Minister will again appear before the House in the context of seeking approval of the instrument under Article No. 29.4.6° of the Constitution.
Deputies Jim O'Keeffe and Ó Snodaigh also referred to the issue of this instrument being used as a trawling or fishing expedition. Article 7 of the proposal contains a provision relating to an evidence warrant not being issued to an executing state unless there are reasonable grounds to believe the evidence is in that state. Ireland was one of the countries which sought the inclusion of this provision.
Another question was raised regarding further evidence. Article 9 of the instrument deals with this issue and talks of an additional warrant being required for new evidence not specified by the terms of the original warrant.
Deputy Jim O'Keeffe raised the issue of central authority.
What would be the difference between a warrant for additional evidence and a new warrant? Would one essentially be issuing a warrant for something that had emerged as a result of the operation of the original warrant?
Ms Walsh
That is correct. Additional information may come to light in the issuing state, following the issue of the initial warrant, which was not specified in the terms of the original warrant. In order to obtain the relevant information or objects, it would be necessary to issue a further warrant. In addition, the executing state, in the execution of the warrant, may discover some information which would be useful and which would clearly be highly relevant and would notify the issuing state of its existence. A further warrant would have to issue for that evidence to be obtained.
The manner in which we will transpose this into our national legislation will clearly have to be examined in the future.
My main concern is that it would not be used as a loophole.
Ms Walsh
No. There would be no diminution in terms of safeguards or anything of that sort. While it will have to be decided at the stage when the decision to give effect to this framework will be implemented, I assume that the central authority will be the same as that which we have had for many of these instruments to date, namely, the central authority attached to the Department of Justice, Equality and Law Reform. It will receive these warrants from other member states. The latter is the position at present in respect of European arrest warrants. The Department checks that the information is complete and accurate and raises any queries necessary with regard to missing information before a warrant goes to the courts for validation.
Is there a separate unit in the Department?
Ms Walsh
Yes, a separate unit deals with these issues.
Is the unit the central authority or is it the Department?
Ms Walsh
The unit is the central authority.
What is it called?
Ms Walsh
It is the central authority for mutual assistance which is attached to the Department of Justice, Equality and Law Reform.
The issue of judicial validation by a judge, and what that means, was also raised. In the vast majorities of cases in this country, a judge would issue a warrant but in some of the Scandinavian countries, police, customs and frontier personnel can issue warrants. Clearly, it would not be very acceptable to many member states to have such a need for validation if one were, for example, to execute warrants for coercive measures. Accordingly, in an effort to reach some degree of compromise, this proposal remains the subject of ongoing discussion. One of the options on the table is that if a warrant that required coercive measures was issued by, for example, a Scandinavian country, we would execute it only if it had been validated by a judge in that court in the first instance.
This would be a post facto validation?
Ms Walsh
No, it would be validated pre-execution of the warrant. If we received it and saw coercive measures were necessary, we would refuse to do it without judicial validation. That proposal has not been finalised but is currently being discussed.
Reference was made to Article 15 on non-recognition, the issue of immunity and privilege. That article refers to refusal of immunity or privilege under the law of the executing state; if we received a warrant to be executed here, our own immunity or privilege provisions would apply.
I meant if we sought to have a warrant executed in Italy, for example, would we be restricted by Italian immunity provisions? I think parliamentarians have immunity there. Could we be thwarted in our efforts to have a warrant executed?
Ms Walsh
If the scenario the Deputy describes applies in Italy, that would be the case.
There would be no such immunity in Ireland in a vice versa situation.
Ms Walsh
Whatever normal immunity Irish Deputies have would apply when Ireland is the executing state. Deputy Power mentioned Article 6 and the issue of proportionality. Encompassed in this is the intention that one would not issue an evidence warrant for a minor offence. This instrument is aimed at serious cross-border offences. An evidence warrant would have to be executed in accordance with Article 11(1) in the same way as it would be executed by an executing state. In other words, if we received a warrant here we would executed only in circumstances similar to those that would apply if it were a domestic warrant.
How could the State be sure evidence collected overseas under a warrant issued in this state was collected in a manner consistent with our constitutional principles? Where is that guaranteed?
Ms Walsh
Article 14(1) states that the executing state will inform the issuing state if the executing state discovers the warrant was executed in a manner contrary to the law in the executing state.
I refer to the law in the issuing rather than the executing state.
Ms Walsh
There is a provision that addresses that matter. I will come back to it before I finish.
As I have to leave, I would appreciate it if Ms Walsh could respond in writing. It is a key provision and I do not see it.
Ms Walsh
Yes. Deputy Ó Snodaigh mentioned human rights provisions in the ECHR. This was raised by Ireland during the negotiations. Ireland was one of the countries that had Article 1(3) added to the instrument which provides for the framework decision not affecting or modifying the obligation to respect fundamental rights and legal principles as enshrined in the Treaty on European Union. Reference was made to the diverse legal systems. Mutual recognition is intended to address this issue. While member states have different legal systems, proposals of this nature are implemented with respect to the traditions of member states. The negotiating authorities keep this to the fore when negotiating such instruments.
Reference was also made to the abolition of dual criminality. The proposal as initially published contained a provision in Article 23 for the abolition of dual criminality after a period of five years following the implementation of this framework decision. Ireland was among member states unfavourably disposed to this proposal and had the issue of the abolition of dual criminality written out of the instrument. However, a provision remains for a review of the issue at the conclusion of a five year period following implementation.
On self-incrimination, a specific provision was made for this and other issues in Article 12 of the instruments as published. Due to the number of matters which were defined, a number of member states believed that issues may be left out if they were too prescriptive. The states considered it preferable for the issue of self-incrimination to be addressed in Article 13, which provides that the executing authority should comply with the formalities indicated by the issuing authority, unless to do so would be contrary to the fundamental principles of the law of the executing state. We received agreement that the preservation against self-incrimination would continue to apply here.
In terms of linguistic support and challenges to the warrant, a proposal concerning procedural safeguards is currently subject to discussion at EU level. Access to solicitors, translations and other protections will be addressed in that instrument.
Is there provision to inform the person concerned of the issuance of a European evidence warrant, in order that he or she may initiate legal proceedings? If one is unaware that this type of warrant has been issued, how can legal proceedings be initiated? It is not a normal warrant obtained by gardaí but is cross-jurisdictional.
Will the evidence relate specifically to a person rather than generally to an event?
Ms Walsh
There is provision under Article 19 of the instrument, which deals with legal remedies, that member states are required to put in place arrangements to ensure that any interested parties including bona fide third parties have legal remedies against a warrant. I hope I have addressed the questions that have been raised.
Will the warrant relate to general information or must it be specific and relevant to an individual or body? Can, for example, an investigation into a bombing in Dublin be informed by evidence in Italy, even though the investigators may not know the exact nature of the evidence in question? Does one have to specifically identify the evidence?
Ms Walsh
Article 7 of the instrument provides that a warrant must be issued where there are reasonable grounds to believe relevant objects, documents or data are available. One must have a good idea of what is being sought and cannot go on a fishing expedition.
Two items arose. Deputy Jim O'Keeffe noted his desire that this committee be informed of changes on an ongoing basis. Deputy Peter Power requested a letter containing the information he sought. Is it agreed to report back to the Sub-Committee on European Scrutiny that this committee has considered the proposal and it does not require further scrutiny at this stage? Agreed. I thank Ms Walsh and Ms Fanning for attending.
I welcome the officials from the Department, Mr. Frank Boughton, principal officer, and Mr. Michael Kelly, assistant principal officer. We are considering a proposal for scrutiny on the Council regulation establishing a European Union agency for fundamental rights and a proposal for a Council decision empowering that agency to pursue its activities in areas referred to in Title VI of the Treaty on European Union. I invite Mr. Boughton to make his presentation.
Mr. Frank Boughton
I thank the committee for the invitation to discuss the EU proposal for a Council regulation establishing a European Union agency for fundamental rights and the associated proposal for a Council decision empowering that agency to pursue its activities in areas referred to in Title VI of the Treaty of the European Union.
Before I go into the detail of the proposals, it might be helpful to outline the background to the Commission's proposals. In preparing this presentation, I went into a fair degree of detail because I thought members might wish to use it as a document of reference and record. Due to time constraints, I might summarise parts of the presentation but members have the full text in their possession.
The European Commission has stated that respect for and promotion of fundamental rights are founding principles and major objectives of the European Union and its member states. Fundamental rights are general principles of Union law and, accordingly, they are amenable to judicial control. Their importance is highlighted by the proclamation of the EU Charter of Fundamental Rights in 2000. In summary, the objective of these proposals under scrutiny is to extend the mandate of the EU Monitoring Centre on Racism and Xenophobia, which is based in Vienna, and re-establish it as an EU agency for fundamental rights. It is intended that the agency will be a centre of expertise on fundamental rights issues at EU level and that it will make the Charter of Fundamental Rights more tangible. The close relationship with that charter is reflected in the agency's name.
The 1999 Cologne European Council decided that the need for an agency for human rights and democracy should be examined. A report on that issue — the report of the three wise men — which was drawn up in 2000, recommended the creation of an EU agency on human rights to contribute to the establishment of a mechanism within the EU to monitor and evaluate the commitment and performance of individual member states with respect to common European values. This idea was strongly supported by the European Parliament in its May 2005 report, Promotion and Protection of Fundamental Rights: The Role of National Institutions, including the Fundamental Rights Agency.
In December 2003, the European Council, stressing the importance of the collection of human rights data, collection and analysis with a view to defining Union policy in this field, took the decision to meet this objective by extending the mandate and remit of the European Monitoring Centre on Racism and Xenophobia and converted it into this wider fundamental rights agency. The centre was originally established in 1997. The Commission had already presented limited proposals to develop it, principally with a view to ensuring its sustainability and proper functioning but steering clear of any radical reform. The centre's primary role is to collect and analyse data on racism, xenophobia and anti-Semitism and study the causes of such behaviour in order to assist the Community and member states in policy formation on these issues.
The idea of establishing a human rights agency was included in the Hague programme, which was adopted in November 2004. In December 2004 the European Council called for further implementation of the agreement to establish the agency and for it to play a major role in enhancing the coherence and consistency of EU human rights policy. In light of these suggestions, the Commission decided to reconsider its earlier relatively modest proposals for limited reform of the centre and to consult NGOs and national human rights institutions working in this general area. This consultation took place in Brussels on 25 January, at which time the Commission undertook to present further proposals relating to the conversion of the monitoring centre into a fundamental rights agency later in 2005. These proposals are now contained in the draft regulation and associated decision — both published in a single document by the Commission in June — that are before the committee today. The draft regulation was discussed on 7 July and 11 October.
These decisions have taken place under the stewardship of the UK Presidency at the ad hoc working party on fundamental rights and citizenship. No significant progress has been made in these discussions, which are exploratory. The analysis of the proposals has been carried out on a thematic basis following on from the initial responses of member states to the draft proposals. As with other EU member states, our response to the proposals has, in general, been positive. At the request of member states, the Council legal service has been requested to advise regarding the legal basis proposed for this initiative. Some member states are reserving their comments until such time as this advice is to hand. It is anticipated that this advice will be available for the next meeting of the ad hoc working party on fundamental rights and citizenship, which is scheduled for 7 November 2005. It is hoped that more significant progress will be made in the discussions when the draft regulation is considered article by article.
Some of the issues which have emerged in the discussions are indicated in the advance briefing note submitted to the committee and I will refer to them again as I explain the provisions of the regulation. The proposal for the Council regulation contains 35 articles, which are divided into seven chapters. The proposal for the Council decision empowering the European Union agency for fundamental rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union contains three articles and the provisions on police and judicial co-operation in civil matters.
Chapter 1 of the proposal for the Council regulation — Articles 1 to 5, inclusive — provides for the subject matter, objective, scope, tasks and areas of activity of the agency. These are the key articles in the regulation. Article 1 provides for the establishment of the agency, while Article 2 sets out the objective which is mainly to provide assistance and expertise to member states and the institutions, bodies, offices and agencies of the Union when they are interpreting Union law.
Article 3 limits the scope of the agency's tasks to the competencies of the Union laid down in the treaty establishing the European Community and identifies fundamental rights as defined in Article 6(2) of the Treaty on European Union and in the Charter of Fundamental Rights of the European Union. These are the agency's reference points for the purpose of its tasks. While it is made clear that the agency's focus will be on fundamental rights in the EU, it can, when requested by the Commission, provide information and analysis on third countries. Some member states have expressed concern that this latter provision will place too great a burden on the agency in the early days after its establishment. We will see how this develops.
Article 4 defines the tasks of the agency. These are mainly technical in nature, with tasks directed towards: the collection, recording, analysis and dissemination of information and data; developing methods to improve comparability, objectivity and reliability of data; carrying out and encouraging research and surveys, preparatory studies and feasibility studies; awareness raising and other activities; formulating conclusions and opinions on general subjects; and making its technical expertise available to the Council.
One particular aspect of the tasks proposed for the agency, which will be closely monitored by member states, is Article 4(1)(e). This relates to the role proposed for the agency with regard to the provisions of Article 7 of the Treaty on European Union. The intention is that the Council may request the expertise of the agency if it finds it useful when acting on a proposal by one third of the member states, by the European Parliament or by the Commission during the procedure under Article 7, which concerns a member state being in serious breach of human rights principles. These principles relate to liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. This proposal would seem to be acceptable as the involvement of the agency is dependent on a formal request being forthcoming from the Council.
Article 5 provides that the thematic areas of activity for the agency will be set out in a multi-annual framework to be adopted by the Commission. The details relating to this are set out and provision is made for the agency to prepare an annual work programme. The requirement that the commission adopt the multi-annual framework has been criticised by some member states which see it as giving too much control to the Commission and undermining the independence of the agency. We will also monitor this issue in the discussions.
Chapter 2, Articles 6 to 9, inclusive, provides for the agency's working methods and the arrangements as regards co-operation with other bodies. Article 6 provides for the agency to establish information networks which will feed into and support it in its work. It also requires the agency to utilise existing sources of information so as to avoid duplication of effort by other institutions, bodies or agencies.
Articles 7 to 9, inclusive, provide for co-ordination and co-operation by the agency with relevant Community bodies, offices and agencies, with organisations in member states and European level and with the Council of Europe respectively. In the latter regard provision is made for co-operation agreements to be established with the Council of Europe and for the Council of Europe to be represented on the agency's management board. The Council of Europe has responded reasonably favourably to the proposals in the regulation.
Chapter 3, Articles 10 to 14, inclusive, provides for the organisational structure of the bodies of the agency, namely a management board, an executive board, a director and a fundamental rights forum of non-governmental organisations. With regard to member states appointees to the management board, the aim will be to attract persons with high level responsibilities in the management of national human rights institutions, or with thorough expertise in the field of fundamental rights. The management board will be responsible for ensuring that the agency performs the tasks assigned to it and will be its planning and monitoring body. Details on the administrative, financial and staffing responsibilities of the board, arrangements for the holding of meetings and the taking of decisions are also set out in Chapter 3. Some member states have expressed dissatisfaction with these proposals as they consider that the appointees from the member states may not be sufficiently independent and they are seeking some other formula for addressing that issue. Provision is also made for the submission of the agency's annual reports to the European Parliament, the Council, the Commission, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions. Provision is also made for the director of the European Institute for Gender Equality to attend meetings of the management board as an observer.
Articles 12 and 13 are technical provisions. Article 14 provides for the establishment of a fundamental rights forum with 100 members which will allow for participation by civil society in the exchange of information and the pooling of knowledge. The forum will be chaired by the director and the agency will provide technical and logistical support and a secretariat for its meetings. The forum will be able to make suggestions in regard to the annual work programme of the agency and provide feedback on the annual report on the situation regarding fundamental rights.
Chapter 4, Articles 15 to 18, inclusive, deals with the agency's independence and other matters relating to access to documents. Chapter 5, Articles 19 to 21, inclusive, sets out the details concerning the financial provisions relevant to the agency, including the arrangements for drawing up and implementing its budget. Article 21 identifies the anti-fraud measures to which the agency is to be made subject.
Chapter 6, Articles 22 to 28, inclusive, contains mainly technical provisions relating to the status and location of the agency, staffing, languages, jurisdiction of the Court of Justice. Chapter 7, Articles 29 to 35, inclusive, deals with procedural matters relating to the formal termination of the office of the existing monitoring centre which shall be 31 December 2006 and arrangements for appointing the director of the new agency — Article 30.
For legal reasons the Commission has proposed two separate legal instruments concerning the establishment of the agency. One is for the regulation I have just described under the treaty establishing the European Community; the second is for a decision under the Treaty on European Union to allow the agency to pursue its activities as set out in the regulation in areas referred to in Title VI of the treaty. In the latter regard, the proposal for a Council decision contains three articles the purpose of which is to give effect to that by applying Articles 2 to 32 of the regulation to the Title VI area.
The Commission's aim is for the new agency to become operational on 1 January 2007. With regard to its budget, the Commission has indicated that historically, the establishment of an agency takes between two and three years. The Commission, therefore, proposes to have a growing budget for the period 2007-13 to take account of the transition period. I have outlined the financial planning details in the material.
As far as we can see the proposal to establish the new EU fundamental rights agency does not give rise to any significant implications for Ireland. As I said earlier when I referred to Article 4, under the present proposals, it is envisaged that the agency's tasks will be mainly technical and its focus will be on the provision of assistance and expertise to the institutions, bodies and agencies of the Community and to member states.
On a general level, Ireland is well prepared to meet any challenges which might emerge from the mandate proposed by the Commission for the agency. In this regard, we have a written bill of rights in the 1937 Constitution and, as referred to by the Constitution Review Group in its seminal 1996 report, Irish courts have been working within a system of judicial review of legislation which confers on them far-reaching powers which extend to the striking down of laws as being repugnant to the Constitution. This is almost unique outside of the US.
In accordance with the provisions of the Good Friday Agreement, we have established a new national human rights institution here, the Human Rights Commission — a sister body to that which exists in Northern Ireland — with very wide powers in line with the Paris Principles applicable to such bodies. We have incorporated the provisions of the UN Convention on Human Rights together with four of the main operational rights-related protocols into domestic law in the strongest manner possible consistent with constitutional considerations. We have also enacted exemplary anti-discrimination and equality legislation. Ireland is also party to other Council of Europe and United Nations conventions and their associated protocols on rights related issues. I have mentioned the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and two international covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, in this regard.
It is clear that the proposals under scrutiny by the committee are still in their initial stages of development. Following completion of these proceedings, the committee might decide to revisit them at a later stage when we will have a clearer picture of their possible final form. We will, of course, keep the committee updated in respect of the negotiations in Brussels on these issues.
I thank members for their attention and I would be more than happy to answer any questions they may wish to pose.
I am not sure whether Mr. Boughton will be able to address the main issue I wish to raise. He did not state that he is precluded from expressing an opinion on the merits of the policy. While I do not raise this issue in any party political sense, we seem to have human rights agencies coming out of our ears at this stage. For many years we got along fine with the provisions of the 1937 Constitution as interpreted by the courts. We then adopted the UN universal declaration and the various covenants. Ireland has used the European Convention on Human Rights and has had resource to the Commission and the European Court of Human Rights over the years.
Under the Good Friday Agreement we established the Human Rights Commission, which is very ably chaired by a former Member of these Houses. As I recollect, we are committed under the Good Friday Agreement to establishing a joint North-South human rights body, which has not got off the ground yet. As these are but a few of bodies involved, is the European agency for fundamental rights really necessary? Will it merely be a nuisance on the human rights scene? The way we are going we will need a separate body to adjudicate between the different human rights agencies. I raise this matter in a genuine sense. I do not want to create any difficulty for Mr. Boughton. I wonder whether we may have gone overboard in terms of human rights bodies and taken our eye off what we should have been doing. There may be a better way to ensure the provision of human rights. The European Court of Human rights is utterly overburdened, totally under-resourced and it can take years for a case to reach conclusion. Here we are gaily sailing along appointing another human rights body.
The numbers employed in the outgoing agency will be nearly trebled to give the new body a staff of 100. It will have a budget of upwards of €30 million. It might be as well to use it on the agency rather than allow the Minister for Justice, Equality and Law Reform to go off and spend it buying another farm in north County Dublin. Leaving that aside, is it wise for us to be involved in supporting a proposal of this kind? Will it do anything for human rights or will it just be another body justifying its own existence, carving out a role for itself which seems to be collecting and analysing data and making itself busy conducting surveys? Is there really a need for a European agency to do this? We should have proper fora for dealing with human rights issues. My firm belief in the existence of such fora makes me query the need to establish another agency when we could investigate means of making existing agencies more effective by providing them with better resources.
Reference was made to the Council's legal service having been requested to advise on the legal basis for this initiative. What are the reservations of member states, about which legal advice has been sought? Will the body be completely independent or will it be answerable to the Commission or the Council, for instance? Will staff be provided on a quota basis? If there will be jobs for the boys, who will be getting them? As someone who supports human rights and the European ideals, I have genuine concerns about a new agency for dealing with human rights issues which is being set up, willy-nilly, without a clear vision as to its useful function.
Does Deputy Ó Snodaigh agree the existence of all these human rights bodies amounts to overkill?
I agree in this instance. There was no demand for such a body from either NGOs or civil society. While I agree such a body would be laudable, I am concerned that its powers are to be limited to analysis and monitoring. As Deputy O'Keeffe stated, bodies exist in this country and others. NGOs such as Amnesty International and Statewatch also undertake this work. They engage in monitoring and produce very good reports. There is an EU annual report on human rights in each member state. The existing Human Rights Commission here is hampered by the level of its resources and funding. I, therefore, suggest co-ordination of the work of human rights commissions in EU member states. I refer to the office of the EU ombudsman which deals with breaches of EU regulations, the European Court of Petitions and the European Court of Human Rights.
My problem is that this agency seems to be confined to reporting and monitoring. It will not have the power to initiate cases. It seems it will report on human rights abuses in an attempt to embarrass countries. However, most countries that are breaching human rights have already been embarrassed but have not changed their rules or taken the steps required to address such breaches. Where does the charter of fundamental rights lie, now that the EU constitution has been parked? Was this agency not part of the work done with regard to the passing of the constitution? Is this issue urgent or may we suggest it be parked for the time being?
The Paris Principles are mentioned in the briefing documents. These principles, established by the UN General Assembly, set out standards for national human rights bodies based on independence and pluralism. They expressly state government representatives should not participate in the management of such bodies but the proposal before us is that member states appoint representatives and that the Council of Europe be involved in the management of this agency. If this proposal is to be accepted, that aspect must be changed to comply with the Paris Principles.
Mr. Boughton
On Deputy O'Keeffe's points, we, too, questioned the need for yet another human rights body, but somewhat like motherhood and apple pie, it is hard to be against it. However, when one examines the detail, the illustrious history of the proposal and the way in which it has been developed, one is impressed. Perhaps my briefing material does not get the point across strongly but this body is designed to be a tool for the European Union to assess its own human rights record and that of its member states in implementing Community human rights related policies.
The explanatory document accompanying the proposal expresses the aims and objectives better than I have. It argues that there is a need for fundamental rights data for all EU member states which are comparable and of sufficient quality to inform policymakers and improve decisions made. It maintains that there is also a need for systematic and regular observation of how the institutions, bodies, offices and agencies of the Community and the Union respect standards with respect to fundamental rights as well as how they promote awareness of these rights.
This is an EU-oriented body which has received a lot of support from the movers and shakers in the human rights arena, including Amnesty International. The latter organisation, while being positively disposed towards the proposal, has also been quite critical of it in a detailed submission dated 5 October 2005. I am not sure if it has sent its submission to this committee but I can forward copies to members, if necessary. It is an interesting document in the sense that it is both positive and negative.
Which is similar to the view of this committee.
Mr. Boughton
There is a plethora of human rights bodies in existence but, to deal with Deputy Ó Snodaigh's point, this is not a petitioning body. It will not be receiving complaints, except in one specific area, Title VI, where a member state might be in breach of fundamental rights. While I do not want to deal with any contentious issues, clearly there are human rights implications in the case of immigration where, for example, people are summarily exported and left on the edge of a desert. That is covered in the EU treaty. It is possible for member states acting together to complain about human rights violations. That would be an area where the agency would come into play.
Would it be able to apply sanctions?
Mr. Boughton
The agency itself would not have sanctions but it would be used as a tool in collecting the data available on any specific complaint. That is the only area where it is a kind of petitioning body but it is not an individual petitioning body. It acts at the request of the Council. It is not a self-effecting jurisdiction.
I am not taking a holier than thou attitude on behalf of the State but we do not see the agency as creating any problems for us. If it does not, there is no reason why we should not be for it. Our attitude towards it is generally positive, with the reservations outlined by Deputy O'Keeffe.
Mr. Boughton damns it with faint praise to some extent.
On page 4 of the briefing document it states that the agency's focus is on fundamental rights in the European Union but that the agency can, when requested by the Commission, provide information and analysis on third countries. In the case of a trade agreement between the European Union and Israel there is a clause relating to human rights.
Mr. Boughton
The human rights record of a country seeking entry into the EU is also taken into account. I do not refer to any particular country as I do not wish to be contentious but that would also be a remit given to the agency.
Will it stay within the proposed budget of €25 million or €30 million?
Mr. Boughton
We will see.
If 100 people are to be employed that would already account for a quarter of the amount, in addition to promoting fundamental rights throughout 25 countries. There would not be much money left to do any work.
Mr. Boughton
Another point raised by Deputy O'Keeffe was the legal basis. His point goes a bit far just because some member states wanted to be sure about the legal basis. European Union and European Economic Community law is so complex that some member states are quite suspicious of the legal basis of regulations as they are expressed. They would like to be sure that they are accurate. It is being done for clarification. We are standing on the sidelines keeping an eye on that but we have alerted the Attorney General's office to the point. One never knows what might come out of that, in a general way.
The main reservation we had about it related to the fact that the public consultation forum consisted of 100 individuals. One must wonder how that would be managed. Again, it has been positively welcomed. The International Human Rights Experts Group, an auspicious body that has been operating for a number of years and was appointed by the Commission, is quite positively disposed towards this body.
Is each of the 25 member states represented? That would mean 25 different points of view.
Mr. Boughton
Yes.
Will the headquarters be in Vienna?
Mr. Boughton
I think so.
That would be likely, as a continuation of the existing body. Would the members fly in from all over Europe to Vienna for the public consultation forum?
Mr. Boughton
It is envisaged that it would happen once a year.
Would Deputy O'Keeffe be eligible in 2008?
I may be doing another job that year but I would consider any application from outgoing members of the present Administration.
Mr. Boughton
Deputy Ó Snodaigh made the point that it did not come about as a result of NGO or civil society input but they were all consulted on it. There was a generally positive attitude towards it from the public which helped in getting the proposal off the ground. It is favourably regarded.
It would be difficult to be against it.
Mr. Boughton
Yes.
That is the problem. It is a question of whether this is the model we are seeking. Should we be seeking something other than the setting up of a monitoring agency? Do we need to pull all the strands together and have a single agency responsible for all aspects? Having said that, I am not against the proposal — I fully support it.
Mr. Boughton
There is no doubt that it is geared towards the charter on fundamental rights. The Deputy asked about the status of this charter. It is somewhat parked because it is included in the draft EU constitution. Perhaps the start-date of 1 January 2007 is a little optimistic because one cannot divorce the charter from the constitution. This issue will have to be resolved before the body can fulfil its mandate. On the membership of the body, the Deputy was quite prescient regarding my reference to the Paris Principles. The independence of the body is stitched into the regulation. The body, including the directorate, members and staff, is totally independent. This is the reason for the reference to the Paris Principles.
The Deputy's point that member states appoint people to the agency is very good. However, member states will have to be careful about the people they appoint, just as they are careful when appointing people to their own human rights commissions under the Paris Principles. The real issue is the involvement of the Commission, which, as members will know, is the executive of the European Union. There has been criticism within the working group to the effect that the Commission may be represented too heavily thereon. This question is being considered. The Deputy is coming at the matter from a slightly different angle.
I cannot let the reference to the Irish Human Rights Commission go by. The commission is very well funded. It is in a developmental stage, it is proceeding with its work and has increased its accommodation in Dublin. The question of increased staff will be up for review shortly. It is in an incremental stage.
By comparison with the one in the six counties, and bearing in mind the population, the Irish Human Rights Commission could be much better staffed and resourced. We will argue this when the Estimates are next issued.
That concludes our discussion on this proposal. Is it agreed to report back to the Sub-Committee on European Scrutiny that this committee has considered the proposal and that it does not require any further scrutiny at this stage? Agreed.
I thank Mr. Boughton and Mr. Kelly for attending. At the next meeting, to be held at 9.30 a.m. on Wednesday, 19 October 2005, we will resume our hearings on child care.
The joint committee adjourned at 3.30 p.m. until 9.30 a.m. on Wednesday, 19 October 2005.