I welcome the officials from the Department of Justice, Equality and Law Reform. We will examine two EU proposals, both of which have been circulated. I propose to deal with COM (2003) 199 regarding the freedom of movement. The other proposal regarding sexual offences committed against children will be taken separately. The first proposal, COM (2003) 199, is a directive on rights of citizens of the EU and their family members to move and reside freely within the territory of member states. I welcome Mr. Paul Byrnes and Mr. Gerry Browne and invite them to make a presentation.
Scrutiny of EU Proposals.
Mr. Paul Byrnes
I thank the committee for the opportunity to outline the current position on the directive on the rights of citizens of the European Union and their family members to move and reside freely within the territory of the member states. I am a principal officer in the immigration policy unit of the Department of Justice, Equality and Law Reform. My colleague, Gerry Browne, is an assistant principal officer in the immigration policy unit.
I propose to outline the background and main features of the directive and then my colleague and I will be glad to respond to questions. The committee is aware that, as civil servants, we cannot question or express an opinion on the merits of any policy of the Minister or of the Government, or on the merits of the objectives of such a policy.
This directive was transmitted by the Commission to the Council on 2 July 2001 and was proposed in the context of the new legal and political environment established by citizenship of the European Union introduced by the Maastricht treaty. The directive is based on articles of the treaty dealing with citizenship of the European Union and free movement of persons rather than Title IV which deals with immigration matters.
The directive was discussed over a two year period at the working party on free movement of persons which was established to deal with the proposal. The working party reported to the Competitiveness Council at which Ireland is represented by the Minister for Enterprise, Trade and Employment. The Department of Justice, Equality and Law Reform was put in the role of leading the Irish delegation in the discussions in the working party. This was because of our Department's role in the admission and presence of non-nationals in the State.
The Department of Social and Family Affairs also participated in the work of the working party. Other Departments, such as the Department of Education and Science, the Department of Enterprise, Trade and Employment and the Department of Health and Children, were consulted on developments in so far as they affected their areas of competence.
As regards the approach adopted in the negotiations, Ireland was supportive of the proposal's general thrust and in all our dealings on this proposal we were mindful of the fact that it affects Irish citizens in their movements within the European Union as well as the movements of other member states' citizens into Ireland. Our general approach was to support the simplification of the system of free movement but at the same time ensure that the provisions of the directive were not subject to abuse by persons who did not have a legitimate right to benefit from it. We also wished to ensure that as far as possible, the proposals were consistent with current Irish legislation, policies and practices.
Current immigration procedures relating to European Union citizens travelling to Ireland are very simple. All that is required to be allowed travel here is that a European Union citizen should have a valid passport or national identity card. If such citizens wish to remain in Ireland for a period of more than three months in exercising their rights to free movement, they are not required to register with the Garda national immigration bureau. Such registration is required for persons who are nationals of countries outside the European economic area.
Details from the 2002 census show that there were approximately 133,000 EU nationals resident in Ireland in 2002. This represented some 3.6% of the population of the State. The largest group was UK nationals. The numbers have increased since then, in particular following accession of the new member states on 1 May 2004. According to data from the Department of Social and Family Affairs, from 1 May 2004 up to the end of November 2005, some 161,861 PPS numbers have been issued to nationals of the new member states. These data do not tell us how many have remained working in Ireland or have gone elsewhere. The 2006 census results will be of interest in this regard.
The directive replaces and supplements the existing legislative instruments in force on freedom of movement of European Union citizens, consisting of nine directives and two regulations. The directive must be transposed into national legislation by April next year. This involves the drafting of a new regulation to reflect the developments envisaged by the new directive. It will also require the drafting of new procedures for staff to follow in dealing with applications from European Union citizens and their family members. Such work is currently under way in this Department.
The principle underlying the directive is that European Union citizens should be able to move between member states with minimal formalities. Any administrative or legal obligations should be kept to the bare minimum as required by the fact that a person is a non-national.
The directive also serves to bring together the complex corpus of existing legislation into a single legislative instrument establishing a single system applicable to all categories of person, including workers, students and those who are economically non-active. It streamlines the legislation, taking into consideration the case law of the European Court of Justice and the provisions of the EU Charter of Fundamental Rights regarding family unity and the protection of family life.
The directive is structured in seven chapters: chapter I deals with general provisions; chapter II deals with right of exit and entry; chapter III deals with the right of residence; chapter IV deals with the right of permanent residence; chapter V covers provisions common to the right of residence and the right of permanent residence; chapter VI deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health, while chapter VII is titled "Final Provisions".
I will now outline the major provisions of the directive. Article 2 defines "family member" and widens the scope of the definition. The new provision takes into account in the definition registered partnerships where the legislation of the host member state treats registered partnerships as equivalent to marriage, and in accordance with the conditions laid down in the relevant legislation of the host member state. It also modifies the existing EU provisions by the inclusion of descendants of the registered partner who are under the age of 21 years or dependants. Additionally, it includes the dependent direct ascendants of the registered partner.
Article 3 defines the beneficiaries of the directive, namely, all EU citizens moving or residing in another member state and their family members who accompany or join them. The directive covers all categories provided for in the previous legislation, namely, employees, self-employed persons, providers of services, retired persons, economically inactive individuals and students.
The facilitation of entry and residence of family members not covered by Article 2, where serious health grounds so require, is an innovation of the directive. The facilitation of the partner with whom the EU citizen has a durable relationship, duly attested, is also a new feature. The directive requires that in these cases the host member state must undertake an extensive examination of the personal circumstances involved and must justify denial of entry or residence.
Article 8 introduces one of the main innovations of the directive, that is, that EU citizens will no longer need to obtain a residence permit in the member state in which they reside. A simple registration certificate with the competent authorities will suffice and even this will not be required if it is deemed not necessary by the host member state. Article 11 provides that the residence cards of family members of a EU citizen who are not nationals of a member state will be valid for a period of five years.
Article 12 is also new and deals with the retention of the right of residence by family members in the event of the death or departure of an EU citizen. Family members who are EU citizens have a residence entitlement in their own right which is not affected by the departure or death of the EU citizen, but in such an event they must satisfy the conditions for the exercise of the right of residence as established by Article 7(1) if they have not acquired a permanent right of residence.
Article 13 is also new and deals with the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. EU citizens have a residence entitlement in their own right which is not affected by the termination of marriage or registered partnership. Family members who are third country nationals can also retain their right of residence when the marriage or registered partnerships ends. However, conditions for retaining the right of residence are strict.
Article 16 creates one of the main innovations of the directive, a new right of permanent residence for EU nationals and their family members who are third country nationals. The requirement for acquiring a permanent right of residence is five years legal continuous residence in the host member state. The directive also guarantees a reduction in the scope of expulsion of EU citizens and their family members who have acquired the right of permanent residence in the host member state and extensive protection to EU citizens who have strong links in the host member state or are minors.
Article 28(1) requires member states, before ordering the expulsion of EU citizens or their family members, to take account of the person's degree of integration in the host country and certain other criteria such as age, state of health and family and economic situation. Article 28(2) introduces a reinforced protection against expulsion for EU citizens and their family members who have acquired a right of permanent residence. Article 28(3) introduces an absolute protection against expulsion for EU citizens, except where decisions are based on imperative grounds of public security, where EU citizens have resided in the host member state for the previous ten years or are minors.
Article 31 deals with procedural safeguards and aims at ensuring access to administrative and judicial redress. The redress procedures allow for the examination of the legality of the decision, as well as the facts and circumstances on which the proposed measure is based. Article 31(4) allows a member state to exclude an individual from its territory pending a procedure, although the individual's presence at the hearing may be permitted. Article 32 allows persons who have been excluded on grounds of public policy and public security to apply for the lifting of the exclusion order after three years.
These are the main developments provided for in the directive which will further facilitate the freedom of movement of EU citizens and their family members. I hope the overview I have given has been helpful. I will be happy to deal with any questions committee members may have.
I thank Mr. Byrnes.
In the main, I am supportive of the principles outlined in the directive. The free movement of citizens of member states is a fundamental aspect of the European Union. However, this discussion highlights in stark detail the changes in the nature of Irish society arising from this free movement, particularly following accession of the new member states.
I tried to calculate the size of the non-national population based on the 2002 census figures, adding the number of PPS numbers issued to nationals of new member states since then. On that basis, it is reasonable to assume that more than 300,000 EU nationals are resident here. If the number of non-EU nationals such as Americans, New Zealanders and Australians with those who pass through the asylum process, is added, it is reasonable to assume that more than 10% of the population is made up of non-nationals. It is a change from the time of the Irish diaspora, when Irish people were to be found all over the world. This is now a multi-cultural society, a fact to which we must face up from many points of view. It is a fact of life which brings enormous benefits to our society, at least in the economic area. However, it also poses challenges for us.
The directive does not seem to propose any dramatic new departures. It seems to consolidate existing legislation in one legislative instrument. Simplifying the procedure through combining a range of existing instruments makes sense. However, issues arise on the facilitation of entry and residence of family members as partners or family members might not be EU citizens. What is covered in the directive regarding the facilitation of a partner with whom an EU citizen has a durable relationship? What constitutes a durable relationship for the purposes of the directive? What length of time is specified? About what type of certification are we talking? There are also references to expulsion in the document and clearly the approach in the proposed directive is to ensure expulsion is not used, except in extreme circumstances. It would be helpful if the representatives could tell us what the current situation is, rather than the current law. In practical terms, have we had many expulsions of EU citizens in the past few years and in general, for what reasons? With regard to the facilitation of entry, the procedure is that one produces an ID card or passport and is allowed to enter but obviously there will be security considerations in this area. At present, and I presume under the proposed new directive, procedures will be in place to ensure right to entry is not abused. Could the representatives give us a practical illustration of the current situation? Do we refuse entry to many EU citizens and, generally, for what reasons?
These are some of my thoughts on the proposal. In the main, I like the idea of the directive. I like the idea of simplification of the law, bringing together existing legislation under a single framework and streamlining the whole process. That approach is welcome. It is in the interests of Ireland and the other member states to have streamlined, simplified systems for entry and freedom of movement throughout the EU.
I welcome the officials from the Department of Justice, Equality and Law Reform. It appears the proposed directive aims to regularise or streamline the procedures that are in place, with one or two areas where procedures are enhanced or changed. That will bring the various countries of the European Union closer together. Up to now we had a common travel area with Britain and that will become the norm within the entire EU.
With regard to the figures, I wonder are they even greater, in percentage terms, than what has been presented? Perhaps the officials could make an educated guess on the true picture. The figures presented to us suggest there were 133,000 European Union nationals in Ireland up to 2002, but that must be an understatement, given that 161,861 people obtained PPS numbers in less than a year and a half, during 2004 and 2005. Can the officials estimate the number of EU nationals who arrived between 2002 and 2005, apart from those from the new member states? The 133,000 people are estimated to represent 3.6% of the population. Those people, combined with the 161,861 others, must represent at least 8%, if not 9%, of the population. If the EU nationals who are not from the new accession countries are not included in the figure, we must be talking about in excess of 10% of the population. That would not take account of non-EU nationals, those from the United States or elsewhere.
The number of new additions to our country and economy is manifestly enormous. The budget we had yesterday would not have been possible if we did not have this power house of a labour force that has come from the EU, soaked up the extra job opportunities and contributed so much to our national welfare.
I will pass on the Deputy's admiration for the budget to the Minister for Finance.
I was describing the healthy state of the economy, which is not due to the Minister as much as to our guests from other European Union countries. The Minister should be very thankful. Perhaps the Chairman will tell him that I would like him to compliment all the European Union nationals who have contributed so much to our economic well-being.
If the current trend continues, our population will obviously go on growing. The economist, Mr. Paddy Punch, wrote an article suggesting that by the year 2020, approximately 25% to 33% of our population will be non-Irish, that is, born outside Ireland, if we continue with the current patterns. Ireland and Britain have been the most accessible countries in the European Union, vis-à-vis the new accession states. The rest of the original 15 EU countries have imposed conditions of entry on the citizens of the ten accession countries. Has the Department assessed the impact of that? Would, for example, Polish people go to Germany if they could do so? What will happen in 2007 when Romania joins the EU, given there is a large number of Romanians here already? Will Romanians travel to Ireland following the accession of their country in 2007? Will they apply for PPS numbers? It appears many Romanians want to come here now.
What are the future intentions of the other European countries, those that are closer to the new accession states? Will they maintain their policy of limited access? If one is talking about free movement between all EU countries, what will happen with the Germans? Will they accept the principle because at present they do not appear to? They have imposed very specific conditions of entry for new EU nationals coming into their country, particularly with regard to social welfare, services and so forth. What will the new directive mean in practice? Will the original 15 EU countries adhere to, accept and ratify it or will they sign up to it in the context of the conditions they have already put in place? Will those conditions be abolished or maintained? This is information we must obtain to assess the proposed directive and its implications for the free movement of people.
What will the directive mean for services? Some countries have privatised services, for example, health or education, while others have nationalised services. Will the directive mean people can move freely from country to country and obtain appropriate services, regardless of the status of those services? Is that why the directive contains a caveat on serious health grounds? Article 2 refers to the facilitation of entry and residence of family members, where serious health grounds so require. Is that included because it is felt people might shop around for health services? How is that dealt with in the proposed directive?
The representatives have said people will have a right to permanent residence here after five years but as the situation stands, there is nothing to prevent people having, de facto, permanent residence, no matter how long they are here. What is the difference between having a right to permanent residence and having access to the country in an unlimited fashion? In practical terms, what is the change in circumstances in that regard?
I have raised with the Minister of Justice, Equality and Law Reform on a number of occasions the issue of the expulsion of EU citizens. Account could be taken of such criteria as the person's integration in the host country and Article 28(3) with regard to public security. Article 31 allows a member state to exclude an individual from its territory. Is this a new provision? For some time, I have been drawing attention to the residence here of Czech nationals for whom the Czech Government has sought extradition. They were two of the greatest gangsters in Czechoslovakia and are wanted for murder and mayhem. However, we have introduced the European arrest warrant in a different manner to the Czech Republic — it is retrospective here but not retrospective there — which means that the onus falls on the latter in terms of the matter.
That does not mean that an issue does not arise here because extradition warrants were sent to this country for people — the colleagues of whom are serving long prison sentences — but have not been implemented for technical legal reasons. Are we not entitled, on grounds of public order, to expel people regarded as members of the Mafia by another country when we have been sent prima facia evidence of the various crimes they committed? The Minister claims that we cannot do so but will this legislation provide the necessary powers?
I welcome the directive because we are moving towards cohesion in Europe and there should be free movement between member states. However, the implications of that need to be teased out.
Mr. Byrnes has clearly outlined the implications of the directive. Does he have an estimate of the total non-national population in Ireland and can he break that down between EU and non-EU citizens?
The directive defines categories such as self-employed and employee. While Ireland has seen the greatest growth of people in the employment area, provision is also made for retired, unemployed and economically inactive persons. What are the entitlements to social welfare and health care for people who have not made contributions to the social fund? I presume that any such entitlements would apply consistently across the EU.
A non-EU citizen, after a divorce or the breakdown of a partnership, is entitled to remain here. What safeguards exist in the provisions to prevent marriages of convenience, which have occurred in the past for the purpose of trafficking people?
Deputy Costello remarked on the impacts of accession by Romania and Bulgaria. In terms of all this free movement, has any analysis been made of the potential impact on member states of Turkey's accession?
Mr. Byrnes
Both Deputies noted that this matter largely involves consolidation, which is probably a correct interpretation. While I have outlined the new features in my presentation, they are probably not of great significance apart from the introduction of the right to permanent residence. Formerly, a person could remain but did not have a permanent right to do so and could potentially be asked to leave or be denied services if, for example, he or she became unemployed. Such a person will now have a permanent right after five years and cannot be deported if no longer able to support him or herself.
Deputy Jim O'Keeffe asked a question on partners and their relationships. The definition of families specifically refers to partnerships where these are recognised in the host member state. Partnerships are not currently recognised in our legislation for immigration purposes but, due to the requirement to facilitate them, we will have to consider circumstances in which EU citizens have partners. We are currently investigating the issues of documentation and the length of time required before a relationship can be demonstrated as durable.
Does Mr. Byrnes anticipate the introduction of legislation with regard to the issue of recognising partnership arrangements?
Mr. Byrnes
There is a requirement under this directive that we facilitate partners who arrive with EU citizens from abroad. However, we will have to consider particular types of partnerships and the evidence that they existed in other member states before the people involved came here.
Are we then discussing the introduction of a provision which would allow us to recognise a partnership arrangement of another member state without defining a legal relationship for Irish partners?
An Irish solution to an Irish problem.
A non-Irish solution for an Irish problem.
Mr. Byrnes
The legislation will have to reflect Article 3 of the directive, which requires facilitation of partners with whom EU citizens have durable and duly attested relationships. The details of what will be done in practice remain to be worked out.
What about the recognition of gay and lesbian partnerships?
Mr. Byrnes
Potentially, if another member state recognises or attested to such relationships, they will be covered.
The law in another state will be accepted in terms of relationships.
Mr. Byrnes
It will be a factor. The manner by which persons in such relationships will be facilitated to come here will depend on the nature of the relationship, how it is attested in the other member state and its durability. A range of issues will have to be considered when deciding on an application from persons in such circumstances.
As partners who are EU citizens are entitled to come here, that will not be the problem.
Will they have entitlements to taxation and succession rights when they come here?
Exactly. What will recognition mean?
Mr. Byrnes
I can clarify that. This directive deals solely with rights of admission and residence. It is a question of whether a person is allowed to enter the State and no provision is being made with regard to their treatment.
If they are EU nationals, the relationship is a factor in the decision on whether they are allowed to come here.
I presume it is important in terms of partnerships between EU and non-EU nationals.
Only if one was a non-EU national.
Mr. Byrnes
If it is a case of two EU nationals, there is no issue because each has an individual right to come here. The issue of partnership arises if one is a non-EU national. The section dealing with family definitions has effect only where a non-EU citizen is involved.
Does Mr. Byrnes accept that there will be a need for the Minister to think through the ultimate outcome of our adoption of this proposal? There will be an onus on us to establish a legal framework which will enable us to fully comply with our obligations.
Mr. Byrnes
I can only answer in part. This directive involves only admitting persons and allowing them to reside here. The fact that those persons are in a partnership elsewhere does not give them the rights that, for example, a married couple has here. It is simply a question of allowing and facilitating them to enter the State.
On the issue of expulsion, if we wished to remove an EU citizen from the State the provisions of the Immigration Act 1999 would apply just as they would to other non-nationals. Over the past five years just one EU national has been expelled and it was a serious criminal case.
What procedure was adopted in that case?
Mr. Byrnes
It would have been under the terms of the Immigration Act 1999.
A deportation order was signed by the Minister?
Mr. Byrnes
Yes.
Was that for crimes committed in Ireland or in the country from which the person came?
Mr. Byrnes
In this country.
That person would have been brought to court and convicted here. Does the court have jurisdiction or is it referred to the Minister? What is the process?
Mr. Byrnes
I do not want to speak about the particular case. It could be that after the person served a conviction the Minister did not wish that person to remain in the State.
After five years residence would that still be the case?
Mr. Byrnes
The issue of permanent residence as provided for in this directive allows for expulsion on imperative grounds of public security or policy.
If a friendly member state gives the Government evidence about one of its members who is taking refuge in our country and the existing extradition mechanisms cannot function, can Ireland, in the interests of public order and security, not deport him or her?
Mr. Byrnes
It would depend on the circumstances of the case.
Where an extradition request has been made and apparently incriminating evidence presented to the Department of Justice, Equality and Law Reform, is there not reason for a response? The purpose of the European arrest warrant was to facilitate good working order between member states in terms of preventing people fleeing justice and becoming fugitives in another country. If that mechanism breaks down for technical reasons, is it not reasonable that we protect ourselves from fugitives from justice in another country who use Ireland as a bolthole because of technicalities in the implementation of the European arrest warrant, because it is not retrospective?
Is that within the terms of reference of this discussion?
In terms of expulsion——
Mr. Byrnes
I do not want to speak about particular cases. I am aware of the case about which the Deputy is speaking.
On a separate issue from the pirate of Prague, what is the nationality of the person who was deported or is that a State secret?
Mr. Byrnes does not want to speak about the case. Will Mr. Byrnes answer all the questions and then we can come back to other issues if necessary? Mr. Byrnes would prefer not to answer that question.
Mr. Byrnes
In general I prefer not to mention particular cases. Entry procedures are simple for EU citizens who present a passport or an identity card. A family member who is not an EU citizen would have to show the immigration officer at the airport or port that he or she is the spouse of the EU citizen. In the case of a visa required national, in general he or she would be required to have applied for a visa in advance, which would be issued as a matter of course if the person showed he or she was a family member of the EU citizen.
A number of questions were asked about statistics and I am not well placed to comment. The census figures I quoted are the most up-to-date, stark figures. The estimates of migration and population from April to April published by the CSO in September stated that the gross number of migrants from the ten new member states who came in during that period is approximately 26,000. That is much lower than the number of personal public service, PPS, registrations at the time so there is a question over how many of those who have registered for PPS numbers have stayed. There is evidence that people are moving between here and the UK because, as a Deputy pointed out, both states applied similar provisions allowing access to the labour market. Some people may also have decided to go home after looking at the labour market here.
I am not in a position to comment on what other member states are doing as regards allowing access. The European Commission is due to make a report after next April about how the free movement situation has operated for the two years and the period of restriction of access to the labour market is based on a seven-year transition period comprising a two-year initial period followed by three years followed by two years. After the two years member states must show that giving access to nationals of the new member states would cause problems in their labour markets. It will be interesting to hear the Commission's statement on this issue around the middle of next year.
The question of access to services in other member states is a matter for those states to determine. In general the principle is that one would have equivalent access to a citizen in the other member state but there may be particular residence requirements and the necessity to show one is a legal and long-term resident of that state. On the issue of excluding people on health grounds, the provisions about public policy and public health relate more to people who may have epidemic illnesses that might cause specific problems. There is a provision allowing family members in if they have health problems and are particularly dependent on the EU citizen who is travelling to a second state.
The description "economically non-active persons" generally refers to retired people or those with independent means rather than unemployed persons. An unemployed person would normally be given the opportunity to seek employment, not to become a burden on the social welfare system, but that would be a matter for the Department of Social and Family Affairs. The provisions in this directive are largely that a person coming from a member state to a second member state must be economically self-sustaining, working, studying or have his or her own resources. After the five-year period the right of permanent residence will apply and he or she no longer needs to justify residence.
We are concerned that marriages of convenience are possible. There is a reference under Article 35 to the effect that member states may adopt necessary measures to refuse, terminate or withdraw rights conferred in the case of abuse of rights or fraud. It specifically refers to marriages of convenience so there are provisions to deal with them.
I will not speculate on the issues surrounding Turkish accession.
Turkish delight.
I thank Mr. Byrnes. His comments raise more questions than answers but we will not cover them all today.
We will return to it as the directive progresses.
I ask the Chairman to outline how it is progressing.
Is April the deadline?
Mr. Byrnes
It must be transposed by the end of April 2006.
Are negotiations ongoing?
Mr. Byrnes
Negotiations are completed and it was adopted during the Irish Presidency.
Therefore, it is a fait accompli.
Mr. Byrnes
Yes.
The legislation required will be interesting and we look forward to debating it.
It will be a different kettle of fish.
When does it come into effect?
Mr. Byrnes
From 8 April 2006.
Therefore, each country is expected to have the mechanisms in place before April.
Mr. Byrnes
By the end of April.
If not, will they be penalised? We will have to work in February and March to ensure our system fully complies but it does not look likely.
I am sure the Opposition spokespersons are up to the task.
We have no problem. It is whether the Government is up to the task.
The Government may not have the opportunity to finalise it but we will take it up thereafter.
It may be its swansong. Have all countries signed up to it?
Mr. Byrnes
Yes, unlike some of the immigration measures under Title IV for which some states have opt-ins. As this is on the freedom of movement of EU citizens, it is obligatory on all member states.
Is there any ticktacking between member states on transposing directives into national legislation? There seem to be discrepancies in the manner in which they are transposed. The purpose of transposing the directives is to bring coherence to the process.
Mr. Byrnes
There is. The Commission holds contact group meetings of member states to examine how directives are dealt with in individual member states' legislation. Different legal systems mean different methodologies are used in different states.
We have another short proposal to deal with.
I will ask a short question. Does this come into effect in Bulgaria andRomania on their accession on 1 January 2007?
Mr. Byrnes
In the event of their accession the freedom of movement provisions will apply. Access to the labour market is something that still has to be considered.
That concludes the discussion on these proposals. Is it agreed to report 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.
The second proposal is 14207/04. The proposal was referred to this committee for consideration by the Sub-Committee on European Scrutiny. The matter for scrutiny is a proposal for a Council framework decision on recognition and enforcement in the EU of prohibitions arising from convictions for sexual offences against children. I welcome Mr. Paul Murray, principal officer, and Ms Breeda Walsh, assistant principal officer, and invite them to make a presentation.
Mr. Paul Murray
I thank the committee for the invitation to be here today to discuss the proposal for a Council framework decision on the recognition and enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children. The committee will understand that I am precluded from expressing an opinion on the merits of the policy of the Minister, of the Government or of the Attorney General.
In some EU member states a prohibition on activities related to supervision of children can be imposed on persons convicted of sexual offences against children, either because of the gravity of the offence or to prevent the commission of other offences. This initiative, which emanates from Belgium, proposes that other member states should recognise any such prohibition imposed in the member state where the conviction was handed down. As a result, the prohibition would be enforced by any member state in which the person lives.
The offences covered by the proposal concern sexual exploitation of children and child pornography as set out in the framework decision on combatting the sexual exploitation of children and child pornography. The proposed framework decision will require member states to register prohibitions against convicted persons in the criminal record held by them. When information from the criminal record is exchanged between member states details of the prohibition should also be included. Each member state will be required to recognise and enforce a prohibition imposed by another member state following conviction for any of the offences in question.
The proposal has been discussed at two working group meetings and is still at an early stage. At the first meeting of the working group in May 2005 it was agreed that without detailed information on the types of prohibitions in force and the methods of recording them already existing in member states no concrete progress on the proposal could be achieved. It was also agreed to draw up a questionnaire to be circulated to all member states. The responses to the questionnaire were considered at a further meeting of the working group on 5 December 2005. The UK Presidency has submitted the matter to be considered by the Article 36 committee today. That is purely for information. As the UK nears the end of its Presidency, it is informing the higher committee as to what it has done. It will then pass the dossier to the incoming Austrian Presidency which is not yet in a position to indicate when the matter will next be discussed.
We are satisfied that there is a legal basis for this initiative under Title VI of the European treaty. As far as the recognition by a judicial authority of a prohibition pronounced by another judicial authority is concerned, the principle of mutual recognition can be applied. However, the extent to which the principle of mutual recognition outside criminal proceedings, including prohibitions pronounced by administrative authorities, remains an outstanding issue. Before there can be any further discussion on this matter, the question of whether the treaty provides for sufficient legal basis to incorporate such provisions has to be decided. The opinion of the Council legal service has been sought on this point. I mention this because administrative prohibitions are a common feature in some member states.
Preliminary views from the Attorney General advise that the proposal is not unconstitutional. However, judicial prohibitions in criminal convictions for sexual offences are not as significant a feature of Irish law as in many other member states. In Ireland, prohibitions arise in a more indirect manner. For example, under the Sex Offenders Act 2001, where a person has been convicted of a sexual offence and later acts in a way that gives rise to reasonable grounds for believing an order is necessary to protect the public from serious harm, the Garda may apply to the court for a civil order prohibiting the respondent from doing one or more things. That is a prohibition order but is not exactly the type of order that was envisaged in the framework decision.
Under the Sex Offenders Act 2001, a convicted sex offender who applies for a job or a voluntary position, or is offered such a position, which would give the offender unsupervised access to children, is obliged to inform the potential employer of the conviction. This is another way of attempting to achieve the same objective, that is, that persons with a conviction for a sex offence against children do not in future work with children. The Garda vetting unit is also currently operating on an administrative basis to ensure sex offenders do not get jobs facilitating access to children.
The negotiations on this decision are at a very early stage. From experience, I know the final version will probably bear little resemblance to what is being discussed here today. At a later stage I would be pleased to explain further the advances which may be made in discussions.
I thank Mr. Murray. As we are pressed for time I ask that contributions are kept short. We may return to the issue at a later stage.
I thank Mr. Murray for his presentation. This proposal is clearly at an underdeveloped stage, although I like the principle very much. I appreciate the legal complexities of the matter. It is not unexpected that this emanated from Belgium after the appalling Marc Dutroux case in the country, and I am not surprised by the commitment to a framework which will restrict the activities of such monsters throughout Europe in future.
When the witness returns I would like to see more information on the responses to the questionnaire that went to the working group on 5 December. Our administrative system is not as developed as those in other countries and we have a different process. The Garda vetting unit is very under-resourced, and other action should be carried out to enable us to be behind the principle of this framework and put it into effect. I look forward to a more detailed discussion on the next round.
I welcome the representative from the Department. We have a long way to go, although we have accepted there is a legal basis for what is being proposed. What about the other side of the coin, where people come from another country? If these people have a conviction, will it be communicated to the authorities in this country and will there be an obligation to observe the rules in place? For example, we have a register of sex offenders but there is no procedure currently for people from other jurisdictions who have been convicted of offences to be compulsorily included on the register. If there is a recognition of prohibitions in one member state there should be recognition of legislative and regulatory prohibitions in another member state which may host such people. Mechanisms should be in place, and is this included in deliberation of the issue?
I have a question on the European Data Protection Supervisor publishing an opinion on this. Is there information on how these criticisms and opinions are being taken into account, and the problems identified by him which are to be addressed?
Mr. Murray
The immediate reason for this framework decision is not the Dutroux case, although it is clearly in the background. Some years ago, a French man in Belgium killed several people while involved in sexual offences. He crossed the border between the countries several times and there was no means for information on the person to be transmitted from one member state to another. That is the immediate reason for this framework decision.
I would be happy to detail the responses to the questionnaire at a later meeting. They generally fall into two or three categories. Some member states have a sophisticated system of judicial prohibitions; other member states have an extensive system of administrative prohibition, which could be a problem in the overall context of this issue; and some member states have no system whatever. There is much variation in the responses to the questionnaire.
With regard to persons coming from other countries, if we get agreement on this framework decision, this country will be as bound to it as anywhere else. We will have the right to seek information on any prohibitions arising from criminal convictions of a person coming from another member state who seeks a job. Anybody entering this country from any other country with a comparable type of sexual offences register to here is obliged to register with the Garda, and if he or she does not, an offence is being committed.
I am not quite clear on Deputy Ó Snodaigh's point.
My point dealt with the European Data Protection Supervisor, Mr. Peter Johan Hustinx. He published an opinion on the proposal in which he detailed a number of potential problems if the text as it currently stands is unchanged. I ask the witness to be aware of this detail and whether the concerns have been addressed. The opinion was in response to initial drafts.
Mr. Murray
I have not seen the opinion. I can understand that anybody coming from a data protection background would have some fears. This will always happen when there is an exchange of information.
The problem relates to some of the wording which is quite open in the current proposal.
Mr. Murray
I will procure a copy and examine it.
It may relate to various administrative or other procedures. Perhaps the wording could be tightened up to specifically deal with sexual offences. Currently it covers more than this with regard to exchange of information.
I thank Mr. Murray and officials for attending. That concludes our discussion on the proposal. Is it agreed to report 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. The joint committee's next meeting will discuss two motions relating to justice and defence.
The joint committee adjourned at 10.40 p.m. until 2.30 p.m. on Tuesday, 13 December 2005.