JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS díospóireacht -
Tuesday, 25 Oct 2005

Scrutiny of EU Proposals.

Acting Chairman (Deputy Hoctor)

The meeting will consider four separate EU scrutiny proposals, all of which were circulated to members with the agenda. It is proposed to first deal with three of the proposals together, namely, COM (2005) 122, COM (2005) 123 and COM (2005) 124, and the other proposal, COM (2005) 317, separately. Is that agreed? Agreed.

I welcome the officials from the Department of Justice, Equality and Law Reform, Ms Valerie Fallon, Mr. Michael Walsh, Mr. Frank Boughton and Ms Marion Walsh, all of whom are familiar to us from previous meetings.

The three proposed Council decisions, COM (2005) 122, COM (2005) 123 and COM (2005) 124, were referred to the joint committee for consideration by the Sub-Committee on European Scrutiny. Members were circulated by e-mail with an updated briefing note from the Department. The proposals form part of the justice and home affairs aspects of the future financial perspectives for 2007 to 2013. The proposed Council decisions relate to prevention, preparedness and consequence management of terrorism, fundamental rights and citizenship and criminal justice. I invite the officials to make brief presentations which will be followed by questions from members.

Ms Valerie Fallon

We welcome the opportunity to discuss with members the justice and home affairs aspects of the financial perspectives for the period 2007 to 2013. The financial perspectives are intended to provide a framework for the planned and disciplined progress of European Union expenditure during the period in question. Financing in the areas of justice and home affairs, which we are discussing today, is currently scattered across a number of different funding programmes and instruments. The purpose of the new financial perspectives instruments is to simplify and rationalise this funding in the form of three framework programmes with total proposed funding of €7.43 billion.

The framework programmes consist of: Solidarity and Management of Migration Flows, known as the freedom programme, for which expenditure is €5,866 million — this programme was examined by the joint committee on 29 June 2005 in the context of approving Ireland's opt-in to these proposals as provided for by the fourth protocol to the Amsterdam treaty; Security and Safeguarding Liberties, known as the security programme, for which proposed expenditure is €735 million; and Fundamental Rights and Justice, known as the justice programme, for which €832 million expenditure is proposed. One of these programmes, civil justice, was examined by the joint committee on 4 October 2005, also in the context of approving Ireland's opt-in to this proposal.

The proposals on which we would like to focus are the proposed decision establishing the programme on prevention, preparedness and consequence management of terrorism, which is part of the security programme, the proposed decision establishing the fundamental rights and citizenship programme, which is part of the justice programme, and the proposed decision establishing the criminal justice programme, which is also part of the justice programme. Two further decisions, the programme on the prevention of and fight against organised crime, which is part of the security programme, and the programme on the fight against violence and drug prevention, which is part of the justice programme, will be presented on another occasion if the joint committee so wishes.

The framework programmes we are discussing provide the financial support for the achievement of the objectives of the Hague programme, the multi-annual programme adopted in November 2004 by the European Council. The programme identifies a number of general principles and orientations which are intended to provide the framework for the further development of the European Union as an area of freedom and security and justice for the period 2005 to 2010. The structure of the proposals is similar in each case. Each programme sets out the general and specific objectives and the actions by which they are to be achieved. They are varied and include studies, seminars, expert meetings, the development of data and statistics, and public campaigns. They are orchestrated by the European Commission. They also include transnational projects undertaken by a small number of member states and, in the case of certain proposals, activities by non-governmental organisations that fall within the programme's objectives.

To implement the programmes, the Commission will adopt a series of annual work programmes, in each case specifying the objectives and thematic priorities and describing accompanying measures. An important aspect is the element of monitoring and accountability. Advisory committees will ensure the annual work programme is set in conjunction with member states. Programme beneficiaries will have to submit reports on work progress. The Commission will write interim reports on the qualitative and quantitative aspects of implementation of the programmes and their completion by dates specified in the proposals. Ex post evaluation reports will be made to the Council and the European Parliament, also within specified timeframes.

On the ongoing negotiations, the proposals were circulated by the Commission in May and are in the early stages of negotiation in the Council working group. Ireland generally welcomes them. Further clarification and explanation of aspects of the proposals are expected as negotiations proceed in the working group. However, the proposed decisions cannot be adopted by the Council until agreement has been reached on the overall expenditure level.

On the overall negotiations, the June European Council was unable to reach agreement on the financial perspectives. The UK Presidency has stated it is likely to aim to reach agreement on the overall dossier at a European Council meeting to take place in December 2005.

I will conclude by drawing members' attention, as I believe is the custom, to section 15 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 which states we may not question or express an opinion on the merits of any policy of the Government, or a Minister of the Government, or on the merits of the objectives of such a policy.

I will now ask my colleague, Mr. Michael Walsh, briefly to address the decision on a prevention of, preparedness for and consequence management of terrorism programme. He will be followed by Mr. Frank Boughton who will address the fundamental rights and citizenship programme, after which Ms Marion Walsh will talk about the proposed decision to establish a criminal justice programme.

Mr. Michael Walsh

As my colleague said, the objective of one of the two proposed decisions in the security section is to create a programme on the prevention of, preparedness for and consequence management of terrorism for the period 2007 to 2013.

Let me provide some background information. We are talking about the situation following the attacks of 11 September 2001, the Madrid bombings of March 2004 and, most recently, the July 2005 bombings in London. The international terrorist threat has assumed a level of importance in the European Union scarcely imaginable ten years ago. Following the attacks, particularly those against the United States and Madrid, the European Union responded quickly in setting out a plan of action to counter terrorism. In particular, the revised EU action plan on combating terrorism was adopted by the European Council in June 2004, during the Irish Presidency. That was an immediate response to what had happened in Madrid.

The action plan identified as priority issues the prevention and consequence management of terrorist attacks and the protection of critical infrastructure. While these issues had been recurring themes within the GEA area of the Council for some time, the attacks brought home the vulnerability of member states. In essence, the objects of the programme are to prevent, help prevent or reduce the risk of a terrorist attack and its consequences by supporting such measures as risk and threat assessments, inspections and the development of common standards for technology and methodology, and attempting to limit the medium-term consequences of terrorist attacks, particularly regarding critical infrastructure such as physical resources, services, communication facilities, networks and so on. The attack on the mass transport system in London is a good example of an infrastructure that was vulnerable and where action could be taken.

In more concrete terms, the objectives will be realised by supporting a number of measures. Risk and threat assessments on critical infrastructure are required in order to, for example, identify possible targets of terrorist attacks and the need to upgrade security. Also required is the development of common security standards and an exchange of knowledge and experience on the protection of critical infrastructure. There should be an exchange of expertise as regards technology and the potential consequences of terrorist attacks. It is also important to develop contingency plans to ensure an input of specific expertise on terrorism matters within the overall crisis management, rapid alert and civil protection mechanisms.

As my colleague has mentioned, the Commission has proposed a fund for the programme, of which approximately €137 million will be available to this area. This is for an eight-year period and will be spread over the 25 member states. This means that the amount available to any one country will not be particularly large. As and when agreed, the Irish authorities will closely examine the programme with a view to identifying how they may benefit from the funding available for this important area of public policy. In this regard, the programme will provide financial support for transnational projects or national projects with a clear transnational applicability. The projects in question could be interdepartmental in terms of critical infrastructure. We could be looking at maritime areas, health, the environment, etc. They are not purely the remit of the Department of Justice, Equality and Law Reform. Organisations outside the Civil Service, semi-State bodies and other agencies that maintain critical infrastructure — for example, telecommunications or mass transit systems — will have responsibilities and obligations in the context of critical infrastructure and in guarding against terrorist attacks. I will now hand over to my colleague, Mr. Frank Boughton, who will address the committee on the fundamental rights and citizenship programme.

Acting Chairman

I thank Mr. Walsh. Before handing over to Mr. Boughton, could the figure please be clarified? Mr. Walsh mentioned a figure of €137 million but the one printed in the submission is €142 million.

Mr. Walsh

The higher figure includes administration costs.

Acting Chairman

That is fine.

Mr. Frank Boughton

I thank the committee for the invitation to discuss the EU proposal for a Council decision establishing, for the period 2007-13, the specific programme, Fundamental Rights and Citizenship, as part of the general programme, Fundamental Rights and Justice.

The general objects of the programme are, in broad terms, to promote the development of a European society based on EU citizenship and respectful of fundamental rights as enshrined in the Charter of Fundamental Rights and to fight against anti-Semitism, racism and xenophobia and strengthen civil society in the field of fundamental rights. The means by which these objectives are to be achieved are detailed in the programme and include such actions as promoting the Charter of Fundamental Rights, assessing regularly the situation of fundamental rights in the EU and its member states and supporting NGOs in the promotion of fundamental rights.

The question of whether the proposed decision could be validly adopted on the legal basis proposed by the Commission has arisen. The opinion of the legal service of the European Council is available and has been referred by us to the Office of the Attorney General. Members may have noticed that the objective and some of the activities proposed under this particular programme seem similar to those planned for the fundamental rights agency. While the Commission has indicated that the programme will actively seek complementarity with the future role of the agency and that the objectives of the two proposals are different, some member states have emphasised that the complementary nature of the programme's objectives with those of the agency requires further clarification. This will be important if synergies are to be created from the two proposals and to ensure that overlaps, or duplication of effort, are avoided.

Article 4 describes the various activities to be supported under the programme, examples of which include: specific actions taken by the Commission, such as studies and research, opinion polls and surveys etc.; actions providing financial support for specific transnational projects of Community interest and for the activities of non-governmental organisations or other entities; and an operating grant to the association of the council of states and supreme administrative jurisdictions of the European Union. The budget for this specific programme is €96.5 million of the €832 million proposed for the justice programme.

Ms Marion Walsh

As my colleague, Ms Fallon, has already stated, the criminal justice programme is also linked to the Hague programme. In the sphere of criminal matters, the Hague programme identified a number of issues to be addressed, most notable of which were: the completion of the programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters and the development of additional proposals in this sphere; strengthening mutual confidence by improving mutual understanding among judicial authorities and different legal systems; and facilitating access to justice and judicial co-operation. A key aim of the criminal justice proposal is to establish a programme which will help to give effect to the issues identified in the Hague programme. The Commission has proposed a fund of €199 million for this programme. An information note was supplied to the committee referring to a figure of €196.2 million and the Acting Chairman inquired about this matter. The difference in the figures is due to the administration costs relating to the programme.

The central feature of this programme is to promote and implement mutual recognition across the member states of the European Union. The key objectives of the proposal are set out in Articles 2 and 3. Promoting judicial co-operation with the aim of contributing to the creation of a genuine European area of justice in criminal matters based on mutual recognition and mutual confidence is one such objective. It is also the intention that the daily lives of individuals and businesses would be improved by fostering access to justice. There is particular emphasis in the programme on improving mutual knowledge of member states' legal and judicial systems in criminal matters by promoting the exchange and dissemination of information, experience and best practices. Training in European Union law of the Judiciary and judicial staff will be a key element in achieving these objectives.

To implement the programme, the Commission will support a range of actions as set out in Article 4. These include specific actions taken by the Commission such as studies and research, conferences, and so on, specific transnational projects of EU interest presented by at least three member states and activities of non-governmental organisations. When the terms of these programmes have been settled we would be interested in taking the opportunity to co-operate with other member states in order that we can take advantage of the benefits to be derived from informed participation in activities that are aimed at promoting judicial co-operation and improving mutual knowledge of the legal and judicial systems of the various member states and third countries. My colleagues and I look forward to hearing the comments of members on the proposal.

Acting Chairman

I thank all the officials for their presentation. I now invite questions from members.

Deputy Costello

I thank the witnesses for their presentation. We all support the idea of EU co-operation in the fight against crime. Ms Fallon suggested that departmental officials would be prepared to talk to us about organised crime and drug prevention in the future. We would all welcome a presentation on crime prevention in the broader transnational European context.

Discussion of any issue in the justice portfolio in the context of the European Union tends to reveal terrorism as top of the agenda. It seems the agenda is very much dictated by some of the major players, both inside and outside the Union, rather than the smaller states such as Ireland. We talk about targeting resources in a transnational, integrated fashion and taking a co-operative approach to the prevention of crime, terrorism and so on. We should, however, be cognisant of the need to be country-specific. There may be too much emphasis on the importance of pursuing co-operation through the generality of transnational seminars, databases and conferences, the general mechanisms through which we propose to do business.

I am not certain that terrorism prevention should be our main priority. The protection of the fundamental human and civil rights of all European citizens and the expansion of democracy in all its forms should be the European Union's main justice considerations. Any threat to these objectives should be next in the order of priorities. The reality, however, is that there is a presumption that the situation is relatively hunky dory in terms of the status and quality of human rights and the protection of liberties and freedoms in all member states, and that the rule of law is the issue with which we should be concerned.

We must emphasise the need to strengthen the institutions which underpin citizens' liberties and ensure we work to promote same. Of the three programmes we have discussed for which funding will be provided in the next six years, the smallest sum will be spent in the area of fundamental rights and citizenship. Do the delegates believe we have got our priorities right? They have said they will not comment on the merits or otherwise of policy. In general, however, do they agree we should spend more money in strengthening the structures that underpin the civil liberties and rights of citizens? It is by this means we can best prevent terrorism and crime.

The funding allocated to this area must be spread across 25 states over a period of six or seven years. Is there anything that can be done beyond the suggestion of more conferences and the occasional transnational project into which we may enter? Do the delegates have any country-specific projects upon which they would like to embark, in conjunction with two or three other member states, which would either extend fundamental rights, protect against terrorism or provide for some co-operation in the criminal justice system that would be mutually helpful? Without some specific plans in this regard, the six years will pass quickly as delegates traipse to one conference after another in member states, with little to show for it in the long term.

Will there be a discussion on the issue of whether Ireland may be considered a target by some terrorists from abroad? Is it within the portfolio to query the situation whereby Shannon Airport is used as a refuelling centre allowing aeroplanes — which belong to a country that is at war and from where the greatest threat from terrorism comes at present — to come and go without supervision? If this is left out of the equation, we will not be prepared and neither will we be exercising any preventative measures for dealing with the threat from terrorism.

We must also examine the manner in which ethnic minorities are dealt with in this country. This consideration should be part of our response in spending some of this money to combat terrorism. No less a person than the Taoiseach had strong words to say about a particular Muslim school in our constituency which was spending too much time teaching the Koran. This is hardly a terrorist threat but it is the extent of what I have heard the Taoiseach say on the issue of terrorism for many a long day. We do not wish to impinge unduly on ethnic groups that may have very different ways to us of approaching their religions. There is scope for some mutual understanding within the country regarding ethnic groups. Lack of knowledge or awareness of their cultures and religions may cause a general hostility. Could specific action in that respect be taken in the context of the programme?

Some advances have been achieved in mutual recognition and judicial decisions in the area of criminal justice. However, this must be difficult to achieve because of the exercise of differing legal approaches. By and large, the role of judges within the legal systems of countries on the Continent is different to that of their counterparts in Ireland or Britain. Is there any scope to examine issues of a criminal or civil nature that arise for Irish citizens abroad? They may experience difficulties when in other jurisdictions. I suggest that there could be more guidelines and protocols established which would be of assistance when people fall foul of the law or when tragic events occur. I do not know whether this assistance is intended in terms of the mutual recognition of judicial decisions but there is a need to find a way through the morass of legal decisions in other jurisdictions with different systems of jurisprudence.

Senator Cummins

Deputy Costello has referred to a number of matters I also wish to raise. The greater co-operation envisaged in the framework programmes is to be welcomed. The emphasis in many of the programmes seems to be on evaluation and monitoring and this was also referred to in respect of the programmes dealing with violence and drug abuse. The committee would welcome a presentation from the Department on these issues at a later stage.

What are the cost implications of the programmes for the Government? How can we derive benefit from the funding available for them? Have we submitted proposals in the various areas? I note from the presentation that the financial package has not been agreed in some areas but that agreement on these is expected in December. How plausible is this timeframe? Mr. Boughton's presentation to the joint committee last week was similar to today's. I am concerned that the programmes will result in duplication and may overlap. What will be done to prevent such a scenario?

Deputy Ó Snodaigh

At our meeting a fortnight ago to discuss a motion on a programme which was also established under the Hague programme, the Minister agreed that the Hague programme was tied to the adoption of the proposed European constitution. Despite agreement that this matter must be revisited, the joint committee is still discussing adopting measures tied to the Hague programme. I asked the Taoiseach on a number of occasions last year to have a specific debate on the programme in the House. No such debate has been held. It would be worthwhile for the joint committee to have a debate or briefing on the full effects of the programme as opposed to continuing to deal with its various aspects in isolation.

Although most of the matters before us today are innocuous and the actions cited, including studies, seminars and expert meetings, do not by themselves present a major problem, we may discover that a review of the proposals under the Hague programme, if carried out by the proper people, will show they are not what was originally claimed and should be rejected. We will discover in time if this is the case.

Deputy Costello is correct that the funding, when distributed over 25 countries and five years, is not huge but the total figure of €7.43 billion is immense. I can think of many projects on which the money would be better spent, for example, world poverty and humanitarian aid.

That said, I propose to address the three specific programmes before us. I do not oppose the first one, which comes under the heading of fundamental rights and justice. If we are to participate in it and encourage studies, we should promote the option of studying how to harmonise fundamental rights upwards, rather then settling for the lowest common denominator, especially in terms of the various definitions of offences and legal systems in the European Union. We should study how we can pick the best examples in the Union.

Regarding solidarity and the management of migration flows, it is innocuous and may be beneficial in the long term if what is being paid for out of these programmes consists of seminars, studies and expert meetings. However, the briefing suggests they will also include transnational projects undertaken by a small number of member states. Perhaps the delegates could explain what these projects might be, especially in this area which has been a source of much debate on "fortress Europe". It is the idea of how we can keep the rest of the world out of Europe and prevent asylum seekers reaching our shores to make their initial application. That seems to be the trend in most EU discussions in this respect.

The third programme, on the prevention of, preparedness for and consequence management of terrorism, seems commendable and logical. The sharing of knowledge and experience regarding contingency plans should happen to avoid duplication and in order that we can learn from the best. However, when discussing the matter, we must also ensure we are not discussing further restrictive measures involving the removal of civil liberties; there must be a balance. It is right that we react to the bombings in Madrid and London, as well as the 11 September 2001 attacks on the United States, but we must all stand back and consider their purpose, which is to force our societies to react and turn in on themselves, suspending civil liberties. That would be regrettable.

My other concern is that, despite the scale of what we are discussing, the amount of money being spent and the number of studies undertaken, we are not adopting all their recommendations to ensure what comes afterwards is more acceptable or a fait accompli. It is not preparing us for future programmes. Studies must be open to show the disadvantages of proposals as well as their advantages.

Ms Fallon

I will try to respond to some of the issues raised, after which my colleagues might address certain more specific questions.

Several members inquired about the approach to the programmes involved. First, the programmes are general and the specifics will have to be set out in the annual work programmes. Therefore, all the projects that will be brought forward will have to be judged in the context of those work programmes' specifics. Having said that, however, it is clear, for example, that when we talk about measures selected by the European Commission such as studies, conferences and so on, the intention behind them is, as far as possible, to gather and share information and exchange expertise. The purpose in various areas is to establish more understanding and make more information available. It is intended that the information will also be available to help assess objectively what proposals should be made in certain cases. It is correct to say projects, studies and research should not be slanted. They should be an objective way of gathering and exchanging information. Are we entitled to an input into the compilation of the work programme? As the Council prepares a programme for the period 2007 to 2013, is this not the time to put our ideas together and make proposals on what we consider pertinent in the work proposed to be done?

On transnational projects, obviously we have to follow the discussions and assess the extent to which Ireland may participate in some of them. It is difficult to say. Since no projects are being proposed, it is difficult to be specific about what might be possible. However, it could arise that a number of common law countries would come together. Ireland, for example, could study how particular types of proposals might impact on our common law system and how we might facilitate certain approaches. It might therefore be useful for a few common law countries to get together. Some countries might have experience of particular types of problems and be able to share the results of studies to cast light on them. These are the types of examples that we have in mind. However, the scope that exists for Ireland to take part in such projects will need to be analysed.

The question of the cost implications for Ireland was raised. The projects we are focusing on today in particular do not indicate what level of co-financing will be required. The Commission might provide 70% of the funding, for example, and Ireland 30%. Those details have yet to be set out and are likely to appear in the annual work programmes.

We were also asked about the likelihood of agreement on the financial perspective in December. I really cannot answer that as it is outside our remit. However, the UK has said it will to try to get agreement at the December Council.

Another issue raised was the Hague programme and the EU constitution. That is an issue to be addressed. A review of the Hague programme will take place in November 2006 and the position regarding the constitution may be taken into account at that stage. I will ask my colleagues to deal with the other issues raised.

Mr. Walsh

I do not have a great amount to add. In terms of prevention, preparedness and the consequent management of terrorism, the focus will be on fairly practical issues, which could include disaster planning exercises. There will be some practical manifestation of how the emergency services might be able to respond in the event of a crisis.

Deputy Costello raised the question of Shannon Airport. I cannot make any comment on that issue.

Overall, in the context of consequent management of terrorism, we are dealing with two things. One is how the infrastructure is prepared. This could also mean how people are prepared. This was seen in the London context and the information campaigns to alert people to what was suspicious, etc. One of the issues to arise from this programme will be a sharing of that type of best practice and information to show how people may be prepared in the context of either an impending terrorist attack or its consequences. Until we see the actual work programmes it is difficult to say specifically what types of projects will be undertaken. However, we will be looking at issues which call for practical implementation or application either in terms of receiving information on best practice from other countries or testing particular elements of our response with them.

Mr. Boughton

I was interested in Deputy Costello's comments on funding. We also think that human rights is the poor relation in all this. This is a proposal coming to us from the Commission and to some extent we must take it as we find it. Second, one has to be alive to enjoy these rights, which is my alternative view.

The question of minorities ties in with the point made by Deputy Ó Snodaigh about harmonising upwards. This State can hold its head high on this issue, as we have acted as a good example to other states. We have comprehensive legislation on human rights across a number of areas such as equality, status, racism and the Council of Europe convention on national minorities. We have incorporated, after a fashion, the European Convention on Human Rights and four of its main operational protocols. We have a Human Rights Commission courtesy of the Good Friday Agreement, which is regarded very highly abroad and is a model for other states to follow.

Senator Cummins mentioned the overlap between these new perspectives and what is to be generated by them under the fundamental rights agency. He is perfectly right and the issue just did not occur to us. In the Commission's ongoing discussions with member states, it has already stated that it will take account of that. We do not want expenditure on two areas. If the fundamental rights agency is to look after something, there is no point in having these programmes focused on the same area.

Ms Walsh

I would just like to pick up on the point made by Deputy Costello on the issue of the Judiciary in Ireland and the UK having a different role from that of members of the judiciary in other member states, and the scope to facilitate our citizens if they fall foul of the law in other member states. An initiative is currently being discussed at EU level on the minimum procedural safeguards to apply to citizens across the member states, dealing with issues like interpretation, legal access and so on. The details of the funding for the proposal must be worked out, but if applications for initiatives like this are put forward, they are usually granted and the possibility of common law jurisdictions coming together and applying for funding will not be ruled out.

Deputy Costello

Mr. Walsh said that he was not in a position to talk about Shannon Airport. Is he in a position to talk about the Koran and school?

Mr. Walsh

No.

Deputy Costello

I guessed as much. We must recognise that these are relevant issues in the context of whether we could become terrorist targets. Shannon is a live issue and while it is not the position of Mr. Walsh to speak about it, it is important for us to articulate it here.

Mr. Boughton made the point that one has to be alive to enjoy human rights. Human rights must be in existence before they can be enjoyed in the first place. The strong underpinning of human rights is the best preventive measure against terrorism. I think it was Ms Fallon who said that we have to see the work programme first. Does the committee have to see the work programme first? Are we not entitled to have some input into the work programme before it is compiled?

Ms Fallon

Deputy Costello is correct. I did not intend to give the impression that we should simply wait until the work programmes were presented. Rather, we can identify those financial programmes which come within the general objectives of the Hague programme and serve to give effect to its objectives.

The specific details of funding in any year will be set down in the annual work programme. These programmes are not drawn up by the Commission in isolation. The proposal is that they will be drawn up with the assistance of an advisory committee made up of representatives of all member states. In partaking in the discussions on the annual work programmes, we must try to ensure the objectives are within the scope of the Hague programme and that the programmes are operational and practical. Deputy Costello is correct that we should look ahead and consider our priorities in this regard.

Acting Chairman

That concludes our discussion of the proposals. Is it agreed to report back to the Oireachtas Sub-Committee on European Scrutiny that this committee has considered the proposals and that they do not require further scrutiny at this time? Agreed. I thank the officials for attending the meeting.

We will now deal with COM (2005) 317 on the improvement of police co-operation between the member states of the European Union, particularly at internal borders. I welcome the officials from the Department of Justice, Equality and Law Reform, led by Mr. Fergus O'Callaghan and Mr. Michael Walsh. The proposal was referred to this committee for consideration by the Sub-Committee on European Scrutiny. An updated briefing note from the Department has been circulated to members. This draft instrument is one of the series of measures provided for in the Hague programme of 4 November 2004 on strengthening freedom, security and justice in the European Union. The draft decision sets out a series of measures to improve operational co-operation between law enforcement authorities with the focus on increasing the level of co-operation and internal borders. I now invite the officials to make a brief presentation which will eventually be followed by questions from the members and I welcome Mr. Sean Sullivan and Ms Elaine Cassidy.

Mr. Fergus O’Callaghan

I thank the committee for the invitation to speak on the European Commission proposals for a Council decision on the improvement of police co-operation between the member states of the European Union, especially at internal borders. The proposed instrument also amends the Schengen convention. My colleagues and I will respond to questions arising from this briefing with the proviso that we, as civil servants, in accordance with the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, cannot in this forum question or express an opinion on the merits of any policy of the Minister or the Government or on the merits of the objectives of such a policy.

I will briefly refer to the background and context of the proposed instrument with a view to providing information likely to be of assistance to the committee. This is relevant in considering the text of the proposed decision from an Irish perspective. The draft Council decision can be said to have its origins in directions from the European Council for the introduction of proposals to improve operational cross-border police co-operation. In particular, the Hague programme on strengthening freedom, security and justice, endorsed by the European Council in November 2004, invited the Commission to develop proposals for that purpose, within the framework of the Schengen acquis. This followed an earlier direction from the European Council in the declaration on combating terrorism, which it approved in March 2004, for the Council to pursue the adoption of measures concerning cross-border hot pursuit.

The proposed decision, which has been tabled by the Commission, is very closely linked to the operation of the Schengen acquis which is based primarily on the Schengen convention. The main objective of that convention is to provide for the abolition of border checks between participating states. At the same time, however, the convention made provision for compensatory measures in the fields of police and judicial co-operation to take account of the fact that police checks would no longer be in place for persons crossing national borders.

In the accompanying explanatory memorandum it has produced, the Commission stated that the specific measures envisaged in the proposed decision are based on best practice which has been developed between states in implementing the existing Schengen arrangements. They are also designed to supplement the provisions of the Schengen convention dealing with police co-operation, which are not very detailed in a number of respects.

It is proposed to adopt the proposed decision under provisions of the Treaty on European Union which are concerned with police co-operation. Instruments adopted under those provisions require unanimity within the Council and the role of the European Parliament is limited to consultation.

Owing to time constraints, I will not refer extensively to the provisions of the draft decision, which are quite detailed, but will cover the more important proposals in general terms. The draft decision provides for a series of measures designed to improve operational co-operation between law enforcement authorities with particular reference to internal borders. General reference is made to strengthening and improving information exchanges as well as to the co-ordination of strategic and operative activities and to undertaking joint action in the operational sphere. Article 3 is concerned with improving information exchanges and it covers a wide range of situations. In accordance with Article 7, any information exchanged would be subject to the relevant data protection requirements. Article 4 makes provision for the development of structural co-operation between law enforcement bodies. Article 5 is directed towards specific elements of operational co-operation. Article 11 is significant in that it amends and replaces portions of Articles 40 and 41 of the Schengen convention, which deal with cross-border surveillance and hot pursuit across borders respectively.

The proposed decision is being dealt with in the Council working group on police co-operation in Brussels. The negotiations are at an early stage. To date, they have been primarily concerned with the topics of cross-border surveillance and hot pursuit. It is not clear when a final instrument might be adopted and the Commission proposals are subject to amendment in light of the ongoing negotiations.

In considering the potential impact of the draft instrument, it is essential to bear in mind that the proposals are closely linked to the Schengen acquis. An application by Ireland to participate in certain elements of the acquis was approved by the Council in 2002. The committee has received a copy of the relevant Council decision which specifies the elements of the Schengen acquis which are to apply in the case of Ireland. In that context, arising from the preservation of the common travel area with the UK, Ireland will not be involved in the abolition of border checks and will not participate in the provisions of the Schengen convention which are concerned with cross-border surveillance and hot pursuit. This is also recognised in the 2002 Council decision.

The overall effect of our limited participation in the Schengen acquis is that the proposed Council decision would not apply in full to Ireland. However, given the general terms in which many of its provisions have been drafted, the extent to which it would be binding on Ireland is not clear. The advice of the Attorney General has been sought and is awaited. This advice will assist in establishing our position and whether it will be necessary for Ireland to put forward amendments to the proposed decision to cater for our specific national requirements. Any such amendments will be introduced following approval by the Government.

Arrangements are being made for the inclusion of the legislative measures required for Ireland's participation in the Schengen acquis in draft legislation which is currently being prepared. Ireland will need to operate a computer system which will be connected to the Schengen information system, SIS. At present the second generation of the SIS is being developed and it is expected that we will be able to operate the new system when it becomes available in 2007.

In conclusion, I will reiterate the key points as follows. The proposed Council decision is in the early days of discussion at official level in Brussels. In the context of Ireland's participation in the Schengen convention, which is specifically limited to reflect our common travel area arrangements with the UK, the advice of the Attorney General has been sought to determine the extent to which the proposal would apply in this State. That advice is awaited and, depending in its nature when received, the draft proposal will be submitted to Government for decision on the stance to be taken by Ireland during its detailed negotiation. The draft proposal could be adopted only by unanimity among member states. This means that Ireland will have a veto in relation to this matter. I thank the Acting Chairman.

Acting Chairman

I invite members to put their questions to the officials.

Senator Cummins

Ireland has indicated that it will not operate the provisions of the Schengen convention allowing for cross-border surveillance and hot pursuit. We are all in favour of more co-operation, especially regarding internal borders. However, I understand the provisions included in this framework will not affect us very much, except in the context of more co-operation between police forces and so on. Rather than going through all its technical aspects, is it the gist of this that it will have minimal effect on us?

Deputy Costello

The nub of the matter is that Ireland is not willing to participate in hot pursuit or cross-border surveillance. I presume that is the thrust of much of this proposal. There is co-operation in terms of EUROPOL, SEAPOL and so on. Exchange of information and joint actions can occur outside the areas of hot pursuit and cross-border surveillance. This does not seem to add very much to what is happening. Will the departmental officials indicate what progress has been made regarding EUROPOL and SEAPOL?

Deputy Ó Snodaigh

I have a number of questions and will try to be as brief as possible. One relates to the Attorney General whose advice was sought. It would have been preferable had his advice been sought and the matter dealt with afterwards when he informed the Government on whether the legislation was acceptable and what course of action it would have to take regarding it.

I agree with other Deputies that no major change is involved. It was also mentioned that exchange of information would be subject to data protection requirements. Does this mean the person whose data are being transferred will be informed of the transfer of data from one jurisdiction to another? What exactly are the safeguards? I remember discussing this issue last year in the context of other legislation and it transpired that the safeguards were not as good as we had hoped.

It has been mentioned that if we are to adopt this, we will have to have legislation prepared. Is it prepared? Is it included in the schedule of legislation before the Houses?

Is the PULSE system operated by the Garda Síochána compatible with the SIS? Is it capable of taking on board the adaptations of the second generation SIS? I am not a computer expert but, given the content of debates in the Dáil about the Garda computer system, it is obvious there have been problems from the start. Alternatively, are we introducing a stand-alone system? In other words, will the SIS be a stand-alone system in Garda barracks or perhaps just in Garda headquarters?

Deputy Costello

I understand there has been discussion at EU level, particularly with the British Government, to try to secure agreement on the length of time for which data can be retained. Will the officials inform the committee of the current position?

Mr. O’Callaghan

I will respond as best I can to the questions in the order in which they were asked.

Senator Cummins referred to the question of hot pursuit and cross-border surveillance. As indicated, Ireland will not be participating in these provisions of the Schengen convention which are very much to the fore in this decision. By the same token, there are other elements which are dealt with. We are seeking the advice of the Attorney General to establish what elements will be applicable in our case. That is the correct approach to take because until we know what the extent of application will be, it is very difficult to know what we are dealing with.

Deputy Costello covered much the same ground. In particular, he raised the question of the exchange of information which is raised as a particular topic in the draft instrument. To a large extent, the material is covered in existing text built into the Schengen framework. It is rather a complicated arrangement because it is not specifically written into the Schengen convention. It is included in a document subsequently adopted. Broadly, there is not much added in the text the Commission has introduced.

Deputy Costello also referred to EUROPOL. It is my understanding Ireland is participating fully and contributing fully to the operation of EUROPOL. Garda personnel have been seconded to serve with with and my information is that it is operating effectively. We are exchanging information with EUROPOL which is carrying out tasks which are of assistance to us and other member states.

SEAPOL is an EU training organisation, in which I understand Ireland is, perhaps, more indirectly involved. I am not sure what element the Deputy had in mind. However, SEAPOL is a completely different organisation. It is currently in the throes of becoming an EU body and provides services on the basis of courses and a schedule drawn up primarily by itself.

Data retention is another issue Deputy Costello mentioned. Discussions are ongoing in Brussels on the topic which the UK Presidency has signalled as a priority, on which it would like to secure agreement for an instrument by the end of its Presidency, that is, by the end of the year. I am sure discussions will continue, given that there will be a meeting of the Justice and Home Affairs Council in December. No doubt this is one of the issues that will be on the agenda to be drawn up by the Presidency.

Deputy Ó Snodaigh made a number of points. He referred to the point at which the advice of the Attorney General might be sought. The approach adopted in this case is that it would be important to seek that advice at the earliest possible stage to establish the extent to which the instrument could apply to Ireland. On that basis, it would be a question of having matters considered or dealt with by the Government rather than sending the instrument to Government because, at that point, the extent of the potential Irish involvement might not be clear.

The Deputy also referred to data protection. It should be borne in mind that Chapter 6 of the Schengen convention, which is relevant here, deals with data protection. Safeguards are built into it. It may not be the case that notification is provided to a data subject of all the information which might be on the Schengen information system. However, there is a supervisory authority which has the function and the capacity to look at the way the Schengen information system is operated.

The Deputy also referred to legislation. As regards this instrument, any legislation, or the extent to which we might have to legislate, will be determined by reference to the advice of the Attorney General and to the instrument which might emerge. It should be borne in mind that there is no certainty that there will be an instrument in this area. In addition, as stated in our presentation, there is always the possibility that some of the provisions of the draft decision will be amended or changed. It will be a question of seeing the final product and relating that to the obligations for Ireland.

The Deputy also referred to the operation of the Schengen information system, the SIS. The information available to us is that there will be a link between the Schengen information system and the PULSE computer system. The information we have is that this matter is being planned in great detail. When we reach the deadline of 2007 for the operation of the new generation of the SIS, as we anticipated, the PULSE and Garda systems generally will be in a position to operate the SIS and take account of whatever else might be required for Schengen purposes.

I hope those attempted responses cover the areas the members raised. If there are any further questions, we will be happy to respond.

Senator Cummins

The PULSE system must first work before it will be compatible with any other system.

Deputy Costello

That is a bridge too far.

Acting Chairman

That concludes our discussion today 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 further scrutiny at this stage? Agreed.

I thank the officials for their attendance. Our next meeting will be on Thursday, 3 November at 11.30 a.m. to discuss another EU proposal.

The joint committee adjourned at 3.25 p.m. until 11.30 a.m. on Thursday, 3 November 2005.