No. 3 on the agenda is scrutiny of EU proposals COM (2007) 249, providing for sanctions against employers of illegally staying third country nationals; COM (2007) 478, providing for co-operation between the European Agency for Fundamental Rights and the Council of Europe, and COM (2007) 466, providing for the establishment of the European Migration Network. I welcome the officials from the Department of Justice, Equality and Law Reform, Mr. Liam Fitzgerald, Mr. Kevin O'Sullivan, Ms Joyce Duffy, Mr. Ben Ryan and Ms Janet Lacey, and Ms Helen Dickson from the Department of Enterprise, Trade and Employment who are here to assist members in the scrutiny of these proposals. I suggest we take the last proposal first, that is, COM (2007) 466. I invite Mr. O'Sullivan to comment on this proposal.
Scrutiny of EU Proposals: Discussion with Departments of Justice, Equality and Law Reform and Enterprise, Trade and Employment.
Mr. Kevin O’Sullivan
I am from the immigration policy division at the Irish Naturalisation and Immigration Service which is part of the Department of Justice, Equality and Law Reform.
The European Migration Network has its roots in earlier efforts by the European Commission to include the co-ordination of data and information on migration flows across Europe. The network was launched on a pilot basis in 2003. In 2005 its operation was evaluated and the Commission published a Green Paper on its future. In the intervening period it was operated on an administrative basis.
The broad purpose of the network is to improve the availability of and access to information on migration and asylum matters both at European Union and member state level to support more coherent policy and decision making in the Union. While there are various sources of data on international migration, they are dispersed and access to a coherent picture is not easy. The network is intended to operate as a clearing house for such data. It is also intended to provide member states with a quick response on migration and policy developments.
In 2007 the Commission brought forward proposals in the form of a draft Council decision intended to formalise the workings of the network and place it on a proper legal basis. In addition to providing legal clarity, one of the main arguments for doing this was to make participation compulsory among the member states of an enlarged Community. Prior to that, participation was on a voluntary basis.
On the structure of the European Migration Network, as proposed, it is comprised of national contact points designated by member states and the Commission. The steering board which will oversee the strategic guidance of the network's activities will have representatives from each member state, the European Parliament and the Commission, which will be assisted by technical experts. It is intended to disseminate as widely as possible the information and analysis produced by the network. With that in mind, an information exchange mechanism is to be developed. The system, which will be web based, will be managed by the Commission and, in general, the information and reports on the system will be open to the public. The system will give access to the studies and reports prepared by the network and national contact points, as well as a migration and asylum thesaurus and a database of national and Community legislation dealing with migration and asylum.
Under the proposed Council decision, the national contact points will be designated by member states and we must satisfy a number of conditions. They will include expertise in the area of migration and asylum, information technology and the ability to establish a national network comprising all stakeholders. An additional requirement will be the ability to work in a second official language of the European Communities.
The national contact point will be comprised of at least three experts, one of whom will act as national co-ordinator, but not necessarily all from the same organisation. The contact point will be responsible for the following: preparation of national reports, including an annual report describing the migration and asylum situation in the member state, any policy developments and up-to-date statistical data; contribute national data to the information exchange system; develop a capacity to respond effectively to ad hoc requests for information and analysis; and establish a national migration network comprised of a wide range of stakeholders in the field of migration and asylum involving public bodies, non-governmental organisations, academic institutions and representations of international organisations.
The network will be co-financed from the general budget of the European Union and its member states. It is envisaged that the budget for the period 2008-13 will be approximately €56 million. The eligible cost of national contact points may be co-financed by the general budget of the Union up to 80%.
The network will convene at least five times a year and national contact points will be represented by at least one national expert. The meetings will be chaired by the Commission and their purpose will be to facilitate the exchange of knowledge and expertise, review progress of the network, exchange data and provide a platform for the discussion of practical and legal problems encountered by member states.
The Council reached agreement on a draft text on the legal basis of the network at the Justice and Home Affairs Council in early December. The opinion of the European Parliament is awaited in order that the matter can proceed. For the activities of the network to be financed from the general budget of the European Union this year, it will be necessary for the text of the Council decision to be signed off and implemented by the end of June. The Council decision must enter into force by the end of March or early April at the latest for this deadline to be met.
The Economic and Social Research Institute was designated by the Department as Ireland's national contact point in 2003. The ESRI acted as contact point for the period of the preparatory phase of the network between 2003 and 2006 and received an annual grant from the Department of approximately €65,000, as well as Community funding, for this purpose. In 2007 the Department fully funded the contact point's activities. The funding requested amounted to €100,000 and comprised staff and other costs, including travel and printing.
This is a measure to which opt-in arrangements apply. Under the Treaty of Amsterdam which came into force on 1 May 1999, added to the EC treaty has been a new Title IV which deals with measures in the area of visas, immigration and other policies related to the free movement of persons. This proposal is subject to Title IV of the treaty, the application of which to Ireland is subject to the provisions of the protocol on the position of the United Kingdom and Ireland annexed to the treaties. Under this protocol, Ireland has three months from the date of a proposal presented to Council to notify its intention to take part in the adoption and application of the measure. We may also accept the measure any time after its adoption.
In the case of the current instrument, we did not opt in during the initial three month period but the opportunity to do so after its adoption will present itself in two to three months' time. Oireachtas approval would be required at that stage. We exercised our option under Title IV to participate to the maximum extent compatible with maintenance of the common travel area, for which the current proposal has no implications.
I thank Mr. O'Sullivan.
I thank Mr. O'Sullivan for his presentation and would like clarity on one point. The briefing note circulated to us, a copy of the note circulated to the Joint Committee on European Scrutiny at its meeting on 20 November, states we had until 2 November to opt in to fully participate and be involved in the negotiations. Mr. O'Sullivan said a three-month window remained in which to opt in and participate fully in this measure. We should participate fully because if we are to deal with migration issues, it is imperative we have as much information as possible on migration trends in the State, between it and other member states and from third countries into the European Union. It is my understanding — Mr. O'Sullivan can correct me if I am wrong — that the main purpose of the European Migration Network is to make information available to member states on migration trends and projections. If that is the case, it is a process in which we should not only participate but also be involved in at the earliest possible stage to ensure that in the agreed negotiations Ireland can get the best possible deal.
I thank Mr. O'Sullivan for the explanation of what is involved in this measure, the essence of which is the placing of the European Migration Network on a legal footing. The network is charged with identifying trends, giving advice and so on but is there any tracking of individuals? For instance, there does not appear to be any monitoring of persons with a criminal record coming here from other states, the cause of some concern recently. We do not know if people coming here have a criminal record. We cannot prevent such persons coming here if there are no outstanding sentences. What controls are in place to prevent migration by potential criminals who could cause problems in whatever member state to which they decide to travel?
I welcome Mr. O'Sullivan and his colleagues and thank him for his presentation.
Migration is an important issue for a small country such as Ireland, given the frontier with Northern Ireland. There is a common travel area with the United Kingdom on which we have worked well together in parallel during the years. I am aware there has been much dovetailing and commonality in the attitudes we have adopted to migration difficulties.
Why is this measure necessary? Mr. O'Sullivan mentioned a budget of €56 million. Is that the global European Union figure? If so, will we receive 80% of the cost in that regard?
Will the measure have any impact on the status of individuals already here? Will it have any impact on our long association with countries such as Brazil, Newfoundland, Australia and the United States, the people of which have been more than generous to Ireland during the centuries, never mind in the past century, in terms of the International Fund for Ireland and the support given to Northern Ireland? Will the measure impact on the citizens of those countries who might wish to come here to work for a period?
Will there be a link with the Garda National Immigration Bureau, EUROPOL and EUROJUST? Does it affect visas? Is the decision mandatory in that we are obliged to accept it? Is it a co-decision with the European Parliament, as well as a Council decision of last December? On what basis was the ESRI selected as the contact point for Ireland? Will it create extra jobs for Irish people in the delivery and collation of information? What access will other countries or international agencies in Europe have to the information we will have on our databases?
Mr. Kevin O’Sullivan
I will take the questions in the order they were asked. With regard to Deputy Naughten's question, the first three-month period has passed but we still took part in the discussions on the network. The reason it was not critical to take part at a very early stage was that this was not a particularly contentious measure. We knew how it would look when it was finished and had a good, clear idea of how the network would operate because we had seen it in operation on an administrative basis prior to that. From that point of view, we will not be disadvantaged if we use the second opt-in procedure after adoption. The negotiation period for this proposal was very short; therefore, there will not be a difficulty.
Deputy O'Shea asked about the treatment of persons who are moving here and who potentially have criminal records. It will not have an impact on that area. The migration network is dealing with statistical information. It is the type of work national statistical agencies do. They do not get involved in individual cases. It is an information exchange but will not involve information exchange on individual migrants. It would be more typical to have an information exchange on the number of persons who moved in the course of a year or the composition of the group by age, gender or source country. It does not have a role with regard to such specific security matters. It performs the type of function the ESRI might perform with regard to other areas of social policy in Ireland.
It is, therefore, dealing in aggregates. If people are constantly moving in and out of the country, they will not be picked up through this process. I take it that it is the aggregate figures of how many move from one place to another.
Mr. Kevin O’Sullivan
Exactly. It is about trends, aggregates and statistical material to aid policy making. It does not deal with what might be called operational data about individuals.
To reply to Deputy Treacy's questions, it is a multi-year budget involving a sum of €56 million spread over the period 2008 to 2013. That is the full estimated cost of running the network across the 27 member states and the work done at the centre by the Commission. With regard to what Ireland would get out of the 80% financing, last year Ireland funded it and paid €100,000 for the services carried out. The network slightly expands the number working. There is one person working with some assistants. This requires a slightly beefed up number but only as many as three people who will not be full-time. We are talking about an overall figure of less than twice €100,000. I have not seen figures for it but I guess the figure is approximately €150,000, of which we would be seeking 80% from the Community. The remaining €30,000 would come through national funds.
With regard to links with the GNIB, EUROPOL and so forth, that question is related to Deputy O'Shea's question on the sharing of information on people. This information would be made available primarily through a website but also through exchange between the contact points. It will not deal with individual people and will not involve passing security information to other agencies. It will just deal with the trends and aggregate figures that will give us an idea of what is happening in general rather than what is happening with regard to a particular individual.
The Deputy asked about the selection of the ESRI. Some of the larger member states will do this from within their immigration services. The Irish immigration service did not have the statistical and research capacity required. It has people who could do research but there would not be the research background, resources and access to information sources the ESRI would have. Given the standing of the ESRI, the decision was taken at the time that it was a good fit for what the network involved.
I am grateful to Mr. O'Sullivan for his open responses but I am somewhat confused about the genesis of the information. I understand this matter dates back to approximately 1990 when the European Union, particularly Italy, was under threat from serious migration from eastern Europe. Some of those countries are now members of the Union. I thought the crisis created at the time, around Easter 1990 and which led to emergency meetings of the European Council and other bodies, had abated somewhat. If we are to collate this information, it must be generated. Where will it come from? How is it created and what are the sources that yield the statistical database for the information if there are not state agencies controlling the flows, identifying the individuals, tracking their origins, passports and identities and passing this on? I am at a loss to know how that can be achieved, unless there is some way of creating the baseline information in the first place.
I thank Mr. O'Sullivan for his replies. There is mention in the documentation of employment of illegally staying third country nationals. I take it that does not include persons going through the asylum process here. They are not illegally staying here and are not allowed to work. How is the figure of between 4.5 million to 8 million throughout the Community estimated? If these people are known to be there, why are they not dealt with by the national authorities? In the case of persons in the asylum process, for example, is it the position that they cannot work in all member states or is the situation in this country different from that in other countries?
Mr. Kevin O’Sullivan
Deputy Treacy asked where we get the information. He is correct that at the start it is done on an individual basis but the information forwarded to the migration network would be aggregated at that point.
From where does it come originally? Where is the information trapped? If I am Joe Bloggs from outer Mongolia and I arrive at Dublin Airport or in London, I am in the European Union. How is that information included in our database? Who transfers it? Who has responsibility for creating it?
Mr. Kevin O’Sullivan
If somebody arrives in Ireland, their arrival is not statistically recorded at the airport. They would be required to report to the Garda National Immigration Bureau and register with it, assuming they comply with the law. The annual figures from the bureau would be typically the type of information we envisage forwarding to the migration network. We would, for example be informing it that there were 150,000 people.
Therefore, it has a link with the GNIB.
Mr. Kevin O’Sullivan
It would have a link with it in the sense that the initial information on an individual basis would be recorded with the GNIB. However, when it is transmitted to the European Migration Network, it would be an aggregate figure. It would not contain any security information. Another source could be the census or work permit figures for information to be passed to the network.
It is general information on a volume basis.
Mr. Kevin O’Sullivan
Yes, it is purely on a volume basis. That is what the network is about so that it can look at trends. It does not get involved in chasing individual cases or issues of national security in that sense. It is very much about flows.
That brings me back to one of my original questions and links in to Deputy O'Shea's questions pertaining to third country nationals, be they from the United States, Newfoundland in Canada or elsewhere. How do they stand as a result of this situation? Based on the information that has been given, is a lot of this done on trust? If people come into the country and are not recorded for this information service system at the point of entry, be it a port, airport or the Border, are we not operating on the basis of trusting them to register with the GNIB and go through the legal process? Obviously they are outside the system if they have not registered because they have not been captured on arrival in Ireland or elsewhere in the European Union.
Mr. Kevin O’Sullivan
The Deputy is absolutely right. In any area of illegal migration one is trusting people, to some extent, to comply with the law. Illegal migration is very difficult to measure. The motive to migrate illegally is so huge that one will never eliminate it entirely. If people do not comply with the law by recording their presence in the State, and stay here illegally, at that point it is down to detection and tracking them down. One will never get a full handle on the number of illegal people in a country, however.
Does the proposed immigration Bill have an impact on the network?
Mr. Kevin O’Sullivan
It does not have an impact on the network in itself because all we will be presenting to the network will be aggregate figures for the Irish migration system at the end of a year, and from other sources potentially within the State, as in issues like PPS numbers and the census, that kind of information. The Bill will make it more difficult in the area of illegal migration in that there are various provisions in it for clamping down on that area.
I have a final question which is a general one for the Department. From a policy viewpoint, taking into account the huge changes in demographics on the island of Ireland, the multicultural society we have, the many different people from third countries and indeed from the EU who work here now, to manage and legalise all these in so far as we can do so as a small nation, what is the Department's view or policy on ensuring that we are able to identify everyone who enters the country legally or illegally?
Mr. Kevin O’Sullivan
It is a question that has an answer in different areas. As regards the Bill, we are looking at tightening up the legislation to be able to deal more effectively with people who are here illegally. The Bill also includes provision for restricting access by illegal people to services. Basically, one is seeking to remove the support structure for illegal persons present in the State, which would include access to various social services. As regards monitoring people, the immigration service is investing considerably in information technology systems to give us better data about tracking people. There are also longer-term ideas regarding better information at the borders where one would monitor people coming in and out. We are also looking at introducing biometrics in the Bill to avoid a situation where people can claim double identities so one can get a better handle on who is who. They are the areas on which the Department is working.
Is it agreed that this completes our scrutiny of this proposal?
Yes.
Agreed. The next item is our scrutiny of legislative proposal COM (2007) 249, which provides sanctions against employers of illegally-resident third country nationals.
Mr. Kevin O’Sullivan
This proposal forms part of the EU's efforts to develop a comprehensive migration policy, which involves addressing both ends of the spectrum — illegal and legal migration — essentially preventing one and promoting the other. It is clear that a key factor in encouraging illegal migration into the EU is the possibility of finding work. While measures can be, and are, taken with regard to illegal migration in respect of the individual, this proposal is specifically targeted at the pull factor of employment of persons who are illegally present in member states. It builds on existing measures that member states have in place. The aim is to ensure all member states introduce similar penalties for employers of such third country nationals and enforce them effectively. As has been mentioned already, the estimate of the number of third country nationals illegally staying in the EU is between 4.5 million and 8 million. In that respect, in my answer to Deputy O'Shea's question I missed mentioning how they arrived at that figure. The honest answer is that I do not know. It is a fairly wide-ranging estimate and I do not know whether the true figure falls within that range, but that is the estimate we have from the Commission. The figures for Ireland are not known and it is obviously something that is very difficult to measure.
The rationale for the proposal is that illegal migration can depress wages and working conditions, and can distort competition between businesses. On the other side of the coin though, the illegal worker is much more vulnerable to exploitation given his or her illegal status. The proposal contains a general prohibition on the employment of third country nationals who are illegally staying. Infringements would be sanctioned by penalties, which can be administrative in nature, consisting of fines and, in the case of businesses, the possibility of other measures, including exclusion from and recovery of public subsidies. Criminal penalties would be available in serious cases. To ensure the effectiveness of the prohibition employers would be required to undertake certain checks before recruiting a third country national. The procedure for making complaints will be facilitated and member states will be required to undertake a certain number of inspections.
As regards the main provisions, the proposal does not cover third country nationals who are staying legally in the EU but who are working in violation of their resident status. For example, the legal base does not cover a student who is entitled to work a certain number of hours but is working in excess of that, or somebody whose residence permission here does not include the right to work but is working.
It does not cover someone who is legally present but is breaching employment law?
Mr. Kevin O’Sullivan
Yes, it does not go as far as that. It does not cover EU citizens. The central provision of the proposal is a general prohibition on employment for people who do not have the right to be resident in the EU. Essentially we are talking about illegal people. Before recruiting a third country national, employers are required to check that they have a residency permit or other such authorisation to stay. Employers, such as a non-profit organisation, would be required to notify the competent national authorities. Employers who can show that they have carried out those obligations are not liable to sanctions. If someone does what they are supposed to do, it covers them as regards their compliance with the law.
Infringements by employers will be punishable by effective, proportionate and dissuasive sanctions which may be administrative sanctions. In respect of each infringement these could include fines and the cost of returning the third country national to his or her home country. The third country national in question would not be subjected to sanctions by virtue of this proposal. The Commission has a separate proposal for a returns directive but there are also other measures dealing with the individual who is illegally in the State under national law. Therefore this proposal is specifically focused on dealing with the employer element to tackle the pull factor.
Employers would be required to pay any outstanding remuneration to illegal third country nationals, and member states would be required to put in place measures where the back-money owed to a person is channelled to them. Other measures will be available to business employers, such as disqualification from public benefits and subsidies, including EU funding managed by member states, and public procurement procedures. To the extent that a financial penalty cannot be recovered from a subcontractor, it should be recoverable from other contractors in the chain of subcontracting up to and including the main contractor.
The proposal also indicates administrative fines and other measures may not be enough to deter employers. Therefore, member states would be required to provide for criminal penalties in four types of serious cases as follows: repeated infringements; the employment of significant numbers of third countries nationals; particularly exploitative working conditions; and where the employer knows the worker is the victim of human trafficking. To ensure employers would be liable to criminal sanctions only in serious cases, repeated infringement is criminalised only where it is the third infringement in a two-year period.
The proposal provides for a complaints procedure which would protect a third party providing information. Additional measures are proposed in respect of third country nationals in the case of particularly exploitative working conditions leading to criminal liability. Member states would also be required to provide for a certain number of controls on the basis of risk assessment. This comes down to inspections. One must carry out a certain percentage of inspections; the percentage in the original directive is set at 10%.
I am talking about the directive as originally brought forward. As discussions proceed, the text changes. Some of the issues I might raise as problems could be or are being resolved in certain areas. I want to address the issues in the directive before members.
There is an issue in regard to Community competence in the area of sanctions. The proposal sets out a range of sanctions for employers. Article 10 describes circumstances in which a criminal offence should be deemed to have taken place. Articles 11 to 13 elaborate further in this regard. At the time of the original information note, there was a pending court case in respect of environmental law within the European Union. It specifically related to an application by the Commission seeking annulment of Council Framework Decision 2005/667/JHA of 12 July. This was a framework decision to strengthen criminal law in enforcement of measures against pollution. The court ruled in the case in late October and found in favour of the Commission and against member states. However, because it dealt with an environmental matter, the implications for areas other than the environment are still unclear and under discussion in Brussels as to what the judgment actually means if one strays from the area of environmental protection. The two issues under consideration in plain terms — I say this as a non-lawyer; therefore, apologies for my lack of legal knowledge — are whether competence as regards criminal sanctions extends beyond the environment and whether determination of the type and level of criminal penalties to be applied falls within the Community's competence. Ireland has taken the view that the answer to most of these questions is no. It was one of a large number of member states involved in the case which would have taken that view. The judgment still appears inconclusive but that position is subject to ongoing legal advice. That is where we stand in regard to the issue of criminal sanctions.
On the implications of the proposal for Ireland, there is a general acceptance that there is logic in targeting employers to try to reduce pull factors for illegal employment. Most migration is economically motivated and making it harder for an employer to take on illegal migrants appears rational.
As regards the specifics of the proposal, there are issues with the level of inspections required. Many member states, including Ireland, believe 10% is a very high level and that something more targeted, such as looking at areas in which one is more likely to find illegal migration, might be more effective. It is fair to say the figure 10% is being modified. I do not believe the final directive will contain such a blanket figure. It will be one which will be led to over a period with a reference to graduated employment and certainly provide for more risk analysis.
There are some issues in regard to the definition of "employer" and for employers with the administrative burden this might place on them in registering people, reporting their signing on and off at work and introducing the checks they will have to carry out.
As I described the opt-in arrangements in the discussion of the previous item, I will not go through it again other than to say we had an opt-in arrangement from the time of the original directive in May which ran for three months and more or less coincided with the period of the general election and the Dáil recess. Therefore, there was little or no opportunity to bring the matter before the Oireachtas. We are, however, still fully taking part in the negotiations. To clarify, one does not technically take part in them in the sense that one does not vote on proceedings. One takes part in the discussions at the working groups and makes comments. To that extent, we take part fully in the workings of the group analysing the directive. This is done on a joint basis between the Department of Justice, Equality and Law Reform and the Department of Enterprise, Trade and Employment. We will have the opportunity at the end of the adoption period to opt in.
In regard to the common travel area, it is worth noting that the United Kingdom has not opted in to the directive either. Therefore, there would be some common travel area implications in one of the two countries opting in and the other one not doing so. One would run the risk of displacement of people if one had a much more liberal regime. That issue will have to be considered as the discussions on the directive proceed.
Mr. O'Sullivan has said the proposal is subject to change and that the process is ongoing. I would have thought that the proposal would only have come before us when it was finalised. Even though we might scrutinise it here, is Mr. O'Sullivan saying the final proposal might be substantially different from that at which we are looking?
I have a similar question. Will Mr. O'Sullivan come back to us when there is a determination in the environmental case and the impact of the judgment on criminal sanction is known? That is important in being able to make a decision on the proposal which has serious implications for Ireland in terms of the applicability of criminal sanctions and the power of the European Union to impose them.
One of the issues surrounding the employment of migrants illegally resident in member states is the attempt to depress wages and working conditions. A commitment was given in Towards 2016 that 90 labour inspectors would be employed by 31 December 2007 to identify individuals who may not have proper work permits and may not be here with proper terms and conditions. Only 50 labour inspectors were employed by 31 December 2007. We have employed only one third of the number we were supposed to have. Is it not a little pointless for the committee to discuss bringing forward additional sanctions when we cannot enforce existing laws or recruit staff within the timetable laid down in the partnership agreement?
We have seen the headlines about the Gama construction workers and the Polish workers at the ESB Moneypoint plant in County Clare. The main contractors, usually Irish, subcontract work to other European employers who subcontract it to non-EU employees. The main contractors seem to be able to wash their hands of the issues surrounding the employment of staff at below legal rates. Is there anything in the proposal that would ensure the main contractor would be tied in so that subcontractors would abide by the terms of employment law in this country? It seems to be a gaping loophole which facilitates cowboy employers employing people under the table which is part of the problem with which we are dealing. It is also putting genuine employers and companies out of business because some of these cowboy operators can tender prices far lower than those of someone who works within the law.
I ask Ms Dickson how what is being proposed differs from the Employment Permits Acts 2003 and 2006, in which provision is made for significant fines. The legislation provides for a €250,000 fine and up to ten years imprisonment in the case of someone employing a person without a work permit or illegally. There seems to be a fairly significant criminal sanction in place. What will the proposed legislation at EU level add to this? It seems it will not really add to it. I do not know whether we can increase the penalties and criminal sanctions further or whether that would make sense. The criminal sanction within our law is fairly hefty. The issue is in the lack of enforcement and the lack of resources being given by the Department of Enterprise, Trade and Employment to ensure enforcement.
A briefing note was provided to the committee and two questions arise. It states it should be noted that under this proposal an employer who controls the documents of prospective employees will not be held liable, for example, if those documents prove to be forgeries. That is an important protection to be put in place for employers. Each member of the committee would have come across examples of where, because the employer was responsible for the renewal of permits, employees have fallen out of the system. Does this give additional powers to employers to facilitate that? I must go as the Minister is answering my question in the House. I will return in a few minutes.
Does one of the proposed measures, namely payment of outstanding wages, mean that where there are wages outstanding in the case of somebody who does not have a legal right of residence here and is employed, that person would be paid those wages? Also if the person is being paid a rate below the norm, would that shortfall be made good? Does this mean that even though the person was illegally employed, he or she would be paid outstanding wages, including the difference between what that person may have been paid and the legal rate in a particular employment?
There is the issue of persons who have a right of residence in the EU. What of the case of member states whose citizens we have not agreed to allow work here yet? Where stands the case of such citizens, who have a right of residence and who are employed here, in instances like this? Other issues arise, for instance, where wages are due to someone who is getting a welfare payment here, who does not have a right of residence in the EU and who is working illegally. Would they be used to recoup State agencies to which money is outstanding?
Essentially, would it be true to state, more or less as Deputy Naughten did, that the State is not seriously equipped to pursue these issues in this area of people working in the black economy? In general, what is the level of formal co-operation between the various arms of the State which in certain instances may have information relevant to breaches of the law, fraud, etc.? Is there a formal process involving an exchange of information because it seems the State is not too seriously pursuing the issue of persons who are working illegally here? As Mr. O'Sullivan pointed out, this tends to depress wages and distort competition and all that goes with it. As the unemployment figures are rising, is it about time the Department got much more serious about dealing with the black economy, preventing this depression of wages and, indeed, the distortion of competition because the employer who is doing everything correctly is at a disadvantage competitively vis-à-vis the employer who is doing much that is wrong?
I endorse what my colleagues have said. Referring back to the previous measure, is this measure subject to co-decision with the European Parliament?
I concur with the Chairman's comments and questions. I am at somewhat of a loss in that we are discussing a matter which is in transition and without conclusion. Where does that leave us vis-à-vis the court case and the legal impact of this, and will we get an opportunity to revisit this in the future? It is seriously strong law that we are considering. There is nothing wrong with that once we have a capacity to ensure it is fair and equitable.
I still raise the question pertaining to third country nationals from the US, New Zealand, Australia, Newfoundland and perhaps Canada, which are good friends of Ireland with a long historic Irish connection. Over the years we have found it hard to get work permits for such English-speaking persons, of whom there would not be many, who come here for a year for special training, a special opportunity or to be seen to have worked in a country where they might have heritage connections. It is not always easy to get work permits for such persons while others would seem to get them.
Some of my questions may be for the Department of Justice, Equality and Law Reform or the Department of Enterprise, Trade and Employment, and they themselves may decide who wants to take them. What is the impact of the minimum wage in the distortion of the marketplace and the displacement of Irish workers? I worry somewhat that the minimum wage is creating an environment where foreign nationals are able to get jobs at the minimum wage at which our people would not work. Our own people are being displaced from jobs to be replaced by foreign nationals at the minimum wage. This gives comfort to the employer and probably facilitates survival in a competitive environment, but at a cost to our own people. Has either Department found that to be the case?
If we implement this and it is passed into law, will it be written in stone or is there discretion, under the principle of subsidiarity, resting with Ireland as a member state of the Union in our interpretation and even-handed implementation of the matter?
Returning to the points Deputies Naughten and O'Shea made, I have found the following situation — this may not be exactly pertinent to what we are discussing but it impacts on it — prevailing in the present competitive environment, particularly in the construction industry. In 2007, the company which secured one of the biggest private sector contracts in the country undercut the second highest tenderer by anything up to €20 million. The company lost €11 million on the contract. It was the flagship contractor but had literally nothing to do other than sign the contract and benefit from it. It incurred a serious loss which impacted on its operations, but several subcontractors which made deals with other suppliers and service contractors in respect of supplying equipment, materials, etc., were also affected. Those companies which supplied services in the belief they had the support and comfort of the main contractor had no avenue of redress and some of them went to the wall. We must be aware of what is happening because people from third countries and citizens of the European Union may be employed by these contractors and subcontractors. There is a distortion. We need to tighten the law to ensure the various lacunae are closed and that there are no further losses on the part of individuals, companies or, ultimately, the State.
If this proposal became law tomorrow, to what extent would Ireland be non-compliant with it? I would have thought that some of the offences would be considered as such under domestic legislation.
Mr. Kevin O’Sullivan
I will deal, first, with the Chairman's question and then with Deputy Naughten's original point on timing as regards this matter being brought before the committee.
On compliance, Ireland will not be bound by this arrangement, unless a decision is taken to opt in. If we were to decide not to opt in after the measure was adopted, it would have no effect on us.
If we decide not to opt in, will it affect the legal position of states that decide to do so? It is normally the case with European legislation that if all 27 member states do not accept a measure, it is not binding. Is that the position in this instance? Will our opting in or out affect its implementation in other member states?
Mr. Kevin O’Sullivan
This is one of the special measures that relate to the opt-ins in the area of justice and home affairs in respect of migration matters. Ireland and the United Kingdom have the option of whether they wish to take part in measures. If we want to take part, we notify the European Commission. There are two ways of doing so. The first is that we opt in at a very early stage, indicate within three months of a measure being published that we are going to take part and then become involved in the negotiations on it. We would be considered to be party to whatever was decided at the end of the process and the measure would then be subjected to the appropriate voting mechanism, which would be set out in advance. Regardless of whether it is qualified majority voting or unanimity, we are considered to be party to a measure if the chosen voting mechanism leads to its being adopted.
As regards the timing relating to this matter being brought forward, I understand that, following its consideration of the information note relating to the measure — this occurred just after its publication — the Joint Committee on European Scrutiny decided to refer it to this committee for consideration. Discussions on the measure are ongoing and if the committee wishes to recall us to provide a progress report or have us do so in writing--
As I understand it, Deputy Naughten has asked why the proposal is being brought before us now and not at a later stage when it might be more formal in nature.
Mr. Kevin O’Sullivan
To some extent, we are in the hands of the committee in that regard. If members wish us to return at a later stage, we can do so. My understanding is that the Joint Committee on European Scrutiny merely referred the matter to this committee.
What is the Department's view on the proposal? Should we opt in at an early stage or wait until the negotiations have concluded? If the Department and the Minister are of the view that we should opt in, would it not be better to do so at an early stage in order to be part of the negotiations and address some of the points I raised, rather than being bound to something agreed by everyone else? Issues arise in the context of criminal sanctions emanating from the European Union and there are implications attaching thereto. It is difficult for the committee to make a decision or issue a recommendation on the matter until the court decision is made and its implications become apparent. The briefing material we received does not indicate the views of the Department or the Minister on the proposal.
Mr. Kevin O’Sullivan
The negotiations on the directive will take some time to complete. If Ireland is to opt in, the matter will, based on a motion brought forward by the Minister, be referred back to the Houses of the Oireachtas for approval. The Houses will, therefore, have the final say on whether we should opt in. I take the Deputy's point that there are many unknowns with regard to where we are going. A judgment was delivered in the court case to which I referred. However, it is occasionally the case that no one is sure what particular judgments of the European Court of Justice mean and it takes time to clarify the position.
That sometimes happens in Irish courts also.
There are many languages in Europe; therefore, judgments can sometimes mean different things.
Mr. Kevin O’Sullivan
A judgment was handed down but there are differing views as to what it means. One's view of it depends on the side of the fence on which one is sitting. Matters are somewhat up in the air as regards the judgment. As stated, the discussions on the general provisions in the directive are ongoing. The committee may wish to revisit this matter as the directive develops and we obtain a clearer picture of the eventual position.
In respect of the position of the Department, we could not really exercise the early opt-in arrangement because, as a result of our constitutional procedures, the Houses were in recess during most of the three-month period following publication. I wish to reassure the committee with regard to our influence on the negotiations. Members should be aware that we take part in all of the meetings relating to this matter. We will not take part in the formal vote at the end of the process but will be involved in all of the negotiations. Ireland's comments will be noted at any meeting that takes place. The same applies to the United Kingdom and Denmark, both of which have automatic opt-outs.
Is Mr. O'Sullivan referring to meetings of COREPER?
Mr. Kevin O’Sullivan
The matter will eventually go before COREPER. Initially, however, it is being dealt with by the working group on migration and expulsion.
Therefore, the matter has not yet reached COREPER.
Mr. Kevin O’Sullivan
No, it has not got that far yet. My guess is that it will take most of this year to complete the working group negotiations. The matter will then go before COREPER. There is a fair way to go with this directive.
Ms Helen Dickson
I wish to respond to Deputy Naughten's first question. My understanding is that the National Employment Rights Authority's 90 labour inspectors have, as of January, all been appointed. That figure includes ten--
I received a reply to a parliamentary question from the Minister on 30 January which--
Is that 30 January this year?
What does it state?
It states there are 79 people employed but only 50 inspectors. The Minister is having great fun with the figures. The position is that we have not come within an ass's roar of having 90 inspectors.
We can make new proposals on--
Ms Helen Dickson
l understand there are--
What is the point talking about new criminal sanctions in this area when the current ones are not enforced?
Ms Helen Dickson
The figure of 90 includes ten language specialists, with a particular emphasis on eastern European languages. A Government decision was made on 31 October 2007 that National Employment Rights Authority labour inspectors would be responsible for enforcing the terms of the Employment Permits Acts. Preparation is under way in consultation with colleagues in the Departments of Justice, Equality and Law Reform and Social and Family Affairs, the GNIB and Revenue to set up joint investigation units to engage in enforcement. Employers in breach of employment permits legislation are typically in breach of other employment legislation.
Deputy Naughten also queried whether the proposed directive added anything because, as he pointed out, significant criminal sanctions were provided in the Employment Permits Acts. Ireland is one of 17 member states that has made provision for criminal sanctions in this area. With the Commission, we believe we will be part of a common framework tackling the issue and that Europe will be seen to have a harmonised framework to prevent illegal immigration. That would be the significant advantage of the directive.
Is it expected the criminal sanction will be greater than what is provided for in Irish law?
Ms Helen Dickson
No, member states will be allowed to set that themselves.
We have discretion under the principle of subsidiarity.
Ms Helen Dickson
Yes, we do. The areas where the criminal sanctions apply under the directive are greater than where they kick in under domestic legislation. Therefore, it would not infringe any further than is currently the case.
There are two aspects to this. To what extent does existing legislation cover these matters?
Fundamental to the issue of enforcement are the discussions under way with the GNIB and the labour inspectorate about joint investigation teams. That is important because the GNIB enforces some aspects of labour law, while the labour inspectorate enforces others. At what stage are the talks? When will a joint investigation team be in place to examine these issues? Should it fall within the remit of one Department rather than straddling both, as is the case currently?
Ms Helen Dickson
With regard to developments and the negotiations, we are a long way towards setting up joint investigation units. Joint investigations are taking place. It is appropriate that they should straddle many Departments and agencies, including the Departments of Social and Family Affairs, Enterprise, Trade and Employment and Justice, Equality and Law Reform, Revenue and the GNIB because the issues and the legislation cut across all of them. Each agency or Department can contribute by spotting where the problems are. One body on its own cannot always recognise the issues involved. This year we will report on joint investigation unit activity and our target is an increase in the number of proceedings and convictions under the Employment Permits Act 2006 this year.
Do the representatives have an opinion on my comments on the national minimum wage, the displacement of workers and the substrata scenario pertaining to contract services?
Ms Helen Dickson
The economist in FÁS recently suggested that perhaps the high level of the national minimum wage might become a pull factor in bringing in legal migrants who might displace Irish workers. There is no evidence of this to date because of the buoyant economy. There appears to be evidence that while eastern European workers have taken up jobs at the minimum wage, Irish workers have moved up the value chain. However, clearly, if unemployment increases, this might not always be the case. It is being examined but there is no evidence of displacement to this point.
Not even anecdotal.
Ms Helen Dickson
No.
I agree there may not be factual conclusions but, as the knowledge economy expands, and given that all workers would like better jobs and improved pay, terms and conditions, many foreign workers are prepared to work every hour they can and mirror our traditional work ethic, which was the hallmark of Ireland. While we are productive, our productive periods are much shorter than previously and our leisure periods are becoming too long. This is a challenge for the future and if it is not dealt with now, it may not be possible to deal with it in a decade.
I refer to the briefing note we received and the issue of an employer who controls the documentation of prospective employees not being liable for criminal sanction. This is a responsible mechanism to deal with responsible employers and they should not be prosecuted if they did not deliberately employ an illegal immigrant. However, the problem in the past was that employees fell out of the system, thus making them illegal immigrants, because the employer did not renew their work permit. As a result, the Department of Enterprise, Trade and Employment amended the legislation through the Employment Permits Act 2006 in order that the employer or the employee could apply for the work permit, which proffered more power on the employee if he or she held the permit. Will the proposed directive rescind this legislation? While, from a legal perspective, the responsibility would lie either with the employer or the employee to apply for the work permit, from the point of view of criminal sanction, the onus would be on the employer to ensure he or she had control over the work permit. Ultimately, employees could fall out of the system and become illegal, as happened in the past, thus compounding the issue we are discussing.
Ms Helen Dickson
I must examine the wording of the directive. I had not considered that it was suggesting the employer would control the original employment permit. It proposes employers should check the residency card or its equivalent.
The document I have states: "It should be noted that under this proposal an employer who controls the documents of prospective employees will not be held liable if, for example, those documents prove in fact to be forgeries". That does not specify GNIB authorisation.
Ms Helen Dickson
I read that as meaning copies. For example, there is no question the employer would hold the passport or original GNIB authorisation. Currently, they only have a copy of the permit. Perhaps clarification of the text is needed. I would be happy to raise that issue at the working group.
If it is worded in that way in our legislation, the reference does not mean copies. However, this must be transposed.
Mr. Kevin O’Sullivan
My understanding is the employer only controls the residency permit for the purpose of satisfying himself or herself that the documents are genuine. They are returned but, as Ms Dickson said, the matter may need to be further clarified. However, the employer typically examines the residency permit as a non-expert, and, as far as he or she can, satisfies himself or herself it is genuine. The proposal does not envisage that if somebody makes a good forgery, the employer will be held responsible for having believed it. I understand it is a question of just looking at the documents. Employers would retain copies of the documents for their records, but that is as far as it would go.
A question was asked about subcontractors and their liability. The contractor and subcontractor are held jointly and severally liable. The procedure would be to start with the person who directly employed them, but if one cannot get that person, one works one's way up. Everybody is responsible.
Is that under current law or under the proposed directive?
Mr. Kevin O’Sullivan
Under the directive.
Correct me if I am wrong, but that is a significant shift from how the law is currently implemented. It seems to me from reading public comment relating to incidents that have occurred to date with various contractors that where an employee is not directly employed by the main contractor, that contractor can wash his hands of the situation and say he has nothing to do with him because he employed a subcontractor and that it was the subcontractor who employed the individual at lower than minimum wage or did not pay the PRSI or proper tax. There has, therefore, been an opt-out clause for main contractors, despite the fact they knew from the outset, based on the price submitted by the subcontractor, that there was no way the subcontractor could deliver the contract with over the counter, legitimate employees.
At what point can a third country national apply for a residency permit?
We will take questions from Deputy O'Shea before Mr. O'Sullivan responds.
I see from the documentation that the lead Department with regard to this directive is the Department of Justice, Equality and Law Reform and that no other Department is involved. However, I have not yet got clarification regarding proposed measures against employers of illegally staying third country nationals. There is mention of repayment of outstanding wages. Legislation relating to the payment of wages rests with the Department of Enterprise, Trade and Employment. What does this proposal mean? It mentions repayment of wages, rather than payment of outstanding wages. It mentions repayment of wages, taxes and social security contributions. Can Mr. O'Sullivan clarify what rights an employee has? Let us suppose an employee is being paid a wage below the national minimum wage, or, where there is a trade agreement, is being paid under the rate. Under this measure is that person entitled to payment of wages up to the full rate, even if the person was illegally employed in the first place?
Mr. Kevin O’Sullivan
The proposal is quite a short one and being a directive it gives a fair amount of discretion to member states as to how they interpret it in national law, provided they are in compliance with what it sets out to do. From my reading of it, it does not relate to where someone is paid under the odds. The directive does not refer to national minimum wages. It would refer instead to where someone was not paid because he or she was illegal. Basically, there is money owing to that person and the directive attempts to cover the situation where it was detected that the person was an illegal and was not paid and did not benefit from their labour during that period. It does not appear to reference national minimum wage requirements, but that is something that would be open to a member state to implement if it wanted.
Ms Helen Dickson
I would like to add a comment relating to Deputy O'Shea's question. There was considerable debate on this very point at the working group meeting on 31 January this year and it has caused considerable differences of opinion among member states. A number of member states felt that paying remuneration to illegally staying employed third country nationals was an incentive to illegal workers. Other member states felt that reducing the amount of the minimum wage could also be an incentive to illegal employers. The presumption of a work relationship over short periods of less than six months was also queried. Therefore, the Presidency has agreed to redraft the text of this Article. We await that and it may make more sense.
Are these subject to co-decision?
Mr. Kevin O’Sullivan
This directive is. I apologise for failing to reply to the Deputy's question on the migration network earlier. The migration network is not a co-decision, but the European Parliament is consulted. This directive is a co-decision. It is a directive of the Council and the Parliament.
What part, if any, of this directive is already enshrined in existing legislation or is it completely new?
Ms Helen Dickson
We have domestic legislation that provides for sanctions against both employers and the employees they illegally employ, namely, non-EEA nationals. What is different in terms of the focus of the proposed Commission directive is that instead of employers facing sanctions for employing non-EEA workers without an employment permit where required, employers will now be drawn into the immigration area. They will now face sanctions for employing illegally resident persons. There is a slightly different focus on it.
I do not quite understand. What is the existing prohibition?
Ms Helen Dickson
The existing prohibition is against employing non-EEA nationals without an employment permit. For example, Mr. O'Sullivan raised a scenario earlier where one could have Bulgarian and Romanian nationals now who are legally resident in the State, but who are not entitled to access to the labour market without an employment permit. Our domestic legislation would cover that case, whereas the EU directive would not. There is a different focus therefore. In reality, we have all and more than the Commission's proposal has.
I take that point. The directive does not seem to add much to what we have already.
Ms Helen Dickson
I agree. However, as I said to Deputy Naughten, what it may bring is that we will be part of a common framework with a Europe facing illegal immigration.
The directive could have long-term implications for domestic law, based on the interpretation of the European Court of Justice decision on the environmental case. Is that correct?
Mr. Kevin O’Sullivan
Yes, in the sense of whether the Community can require or tell member states what sort of sanctions they are to impose. However, given that this State has probably already gone further under its own legislation with regard to sanctions, the practical impact of the directive is probably not that great.
We have had full consideration of this matter. I do not know to what extent we can invite the officials back or how we can proceed further on this.
I have dealt with many such directives as a member of the Oireachtas Joint Committee on Agriculture, Fisheries and Food. Perhaps, rather than bringing Mr. O'Sullivan back to make an oral submission, he could keep us updated through written submission. Then, based on the written submission, if we require him and the other officials to return, we could call them back. From a logistics point of view, there is no point in calling Mr. O'Sullivan back every few months as small changes take place. Can he keep us up to date and briefed on the matter? Then if we require him to return we can call on him to do so.
That sounds like a good suggestion.
I agree with that. Perhaps Mr. O'Sullivan could also let us have a note when the European Court of Justice has concluded its decision.
Mr. Kevin O’Sullivan
To clarify, it has given its judgment, but there is an issue as to what it means and how it is to be interpreted.
Could we have a note when there is an interpretation?
Mr. Kevin O’Sullivan
Of course.
That concludes our consideration of that proposal. The third and final proposal is COM (2007) 478, a proposal regarding co-operation between the European Agency for Fundamental Rights and the Council of Europe.
Mr. Liam Fitzgerald
I thank the Chairman and committee for the opportunity to brief members on this. I am in the diversity and equality law division of the Department and my colleague Janet Lacey and I deal with the national action plan against racism. Colleagues from the international policy division, Joyce Duffy and Ben Ryan, are also here with me. I am the national liaison officer for the fundamental rights agency.
The topics for discussion and query are the European Agency for Fundamental Rights, the Council of Europe and the proposed agreement between them with regard to how they will operate together. The concept is there should not be duplication between both. The European Agency for Fundamental Rights is a newly established European Union body dealing with the human rights aspects of legislation. It will have a role in human rights proofing of key aspects of new EU legislation. It is generally recognised it is timely this body has come into being, given the number of member states at 27 and the millions of people. How human rights are brought into effect is part of the work of this agency which it will monitor on a continuous basis.
The agency was established under Council Regulation 168/2007. It will provide advice to EU institutions and also to member states about the human rights aspects of the drafting of legislation. It covers the fundamental rights which are already comprehended by Article 6(2) of the Treaty of the European Union, the European Convention on Human Rights and the current Charter of Fundamental Rights of the European Union. It covers all six categories of rights relating to dignity, freedoms, equality, solidarity, citizens' rights, justice and access to legal remedy.
It is important to note the agency will carry out its tasks within the sphere of Community law. This was a key point for Ireland in the negotiations on the establishment of the agency. We were clear we did not want it to embrace judicial and police law or anything to do with criminal rights with regard to criminal aspects. This ties in with our position on these aspects which we regard as better dealt with nationally. We are not alone in this view as seven or eight other member states were of the same view.
It is recognised the agency should act only within the scope of the application of Community law and this is built into the regulation. There will be a review of that point by the end of 2009. Compared with the Council of Europe, it is geographically limited to dealing with the fundamental rights aspects in 27 member states, whereas the Council of Europe has 46 or more. The development was designed to ensure that as the Council of Europe predates the EU on the issue of human rights, there would not be any duplication of effort or of resources. This is the purpose of the agreement.
An existing body, the EUMC, the European Monitoring Committee for Racism and Xenophobia, is a precursor of the European Agency for Fundamental Rights. This agreement ran from 1999 with the Council of Europe. The Council of Europe in its own legislation of a number of years ago actively welcomed the development of any agencies for promoting human rights. The Council has never regarded the agency as a difficulty and does not envisage any duplication of its efforts.
The proposal has been referred to COREPER and it is anticipated it will go to the next JHA as an A point. It is acceptable to everybody in its current format. It involves close co-operation with the Council of Europe, in particular with the Council of Europe Commissioner for Human Rights, Mr. Thomas Hammerberg, who was in Ireland in November on an inspection visit during which he visited a number of our detention centres, industrial schools and Traveller sites. His report is pending and we will respond in due course. We expect the report by the end of this month and we will be required to respond by April. In the same context, Ireland has a pretty good track record on human rights which is recognised internationally.
From the point of view of Ireland, the interesting point about the European Agency for Fundamental Rights is that it is chaired by an Irishwoman, Anastasia Crickley. She has the honour of being the first chairperson of the new agency and was voted to that position by the 27 member states. It is a reason for Ireland to be proud. Her ability and acumen in the area of human rights was recognised by the management committee.
I refer to the proposed agreement and the idea of synergy. There will be a sharing of research and documentation. It is significant that a member of the Council of Europe is on the management committee of the European Agency for Fundamental Rights and has voting rights. The other way around is not quite as strong as the agency can be present as an observer but not with voting rights. A major concession was made in the interests of reaching agreement. I think it will work very well. A total of 30 members make up the management board: 27 member states, two from the Commission and one from the Council of Europe.
The new director will be appointed shortly. There are two candidates, one from Denmark and one from Portugal. The European Parliament had an input into the selection process. The agency has been busy and has worked well, even though the director is not yet in place. It is working with an interim director and has a very busy programme.
The multi-annual framework for the organisation has been dealt with by the Commission, the Council and Parliament. Coincidentally this will also conclude at the next JHA. The agency works in close co-operation with all bodies dealing with human rights, including the UN. It works closely with the Irish Human Rights Commission. There is no implication for Ireland as regards the conclusion of the agreement and no legislative requirement because we do not need to implement anything.
I thank Mr. Fitzgerald for his summary of information on what is being proposed. It is important this agency stays within Community law. It will have a substantial workload dealing with Community law without straying outside that brief. I am concerned that if this agency strays outside Community law it will be all over the place and will not be an effective organ for monitoring what is happening at Commission level. Our own Human Rights Commission has been very effective in dealing with legislation and in highlighting issues which can then be debated on the floor of the House. I hope this organisation will do something similar at European level. The co-ordination between the Council of Europe and what is happening at EU level is to be welcomed and this is not duplication.
I have one question about the work programme of the agency. Citizenship is a fundamental right of individuals within the European Union. There is an anomaly in Irish law. An interpretation has been taken by the Department of Justice, Equality and Law Reform regarding EU citizens who marry spouses from outside the European Union. Is the agency considering that issue or does it have the power to consider such issues? Is that really a matter for the European Court of Justice?
My issue is somewhat in line with the matter Deputy Naughten raised. Mr. Fitzgerald has spoken about EU law with no reference to national law. Our documentation states that the purpose is to monitor and promote respect for fundamental rights within the EU and to ensure EU legislation is in line with these guaranteed rights to all citizens of the EU. That would seem to exclude national law. Has there been a growing concern regarding racism and xenophobia in the context of enlargement? Are forces at work in some of the new member states that would give concern over levels of racism and xenophobia in the EU?
I thank Mr. Fitzgerald for his presentation. I congratulate Ms Crickley on her appointment. She is an internationally renowned person in the field of human rights. The distinguished public servants and others who represent Ireland in the European Commission and in other positions across the world are regarded as positive and even-handed. Ms Crickley symbolises everything that is good about human rights.
Would it be true that the Council of Europe is the foremost organisation in the world in the protection of individual human rights with a long track record? Does this agency have any legal mandate for the territories of the 20 member states outside the EU but in the Council of Europe territory? If so what role does it have? How does the Council of Europe impact from a legal position vis-à-vis the establishment of the European Agency for Fundamental Rights in Vienna? I hope we will get a positive validation of the EU reform treaty. I presume this agency will have a much more relevant role with greater force of law once the treaty comes into operation. If the matter is to be considered at the next JHA meeting, when will that take place?
Mr. Liam Fitzgerald
In reply to Deputy Treacy, the meeting will take place on 28 and 29 February. It will come into force once it goes into the official journal. Regarding the legal mandate between the Council of Europe and the European Agency for Fundamental Rights, it is limited to the 27 member states.
Why is the Council of Europe involved?
Mr. Liam Fitzgerald
Most of the 27 member states are also Council of Europe members.
I thought they were all members.
Mr. Liam Fitzgerald
I apologise. Yes, they are all members.
If they are all members and the Union is creating the agency, what role has the Council of Europe with the agency if the agency does not have a mandate in the territory of the other 20 countries?
Mr. Liam Fitzgerald
The Council of Europe is the main driver of human rights in the world, with the UN on the other side.
I would say it is ahead.
Mr. Liam Fitzgerald
I will accept what the Deputy says is right. It can look at all human rights, going into the criminal side as well, which the European Agency for Fundamental Rights will not be able to do because it is limited to EC law only and not the Union legislation, the third pillar legislation.
Is the third pillar involved from its track record, expertise and professionalism as distinct from its functional territory? It is an ingenious proposal. It would be more ingenious if all 47 member states could be involved. I see one or two countries on that list where I would love to see human rights having a legal impact. Why is the Council of Europe involved if it has not the force of law in all its member states?
Mr. Liam Fitzgerald
The idea behind it was the feeling within the European Council. That is where the genesis of the European Agency for Fundamental Rights came into being in 2003-04. There was a feeling that the area of human rights should be given priority in the European Union and that it should address new legislative proposals to ensure they comprehended the aspect of human rights and that they are human rights friendly, if one likes.
Is our agency operating in partnership with the Council of Europe?
Mr. Liam Fitzgerald
Very much so. They will work very closely together. There is no antagonism or animosity — quite the opposite. There is a very amicable arrangement between both. Looking back even to the original situation, there was never discernible difficulty in that original 1999 agreement. This will abrogate or do away with that agreement.
The Deputy made a point about the level of racism in new member states. One of the functions of the European Agency for Fundamental Rights is to monitor racism incidents in the 27 member states. There is a database called the RAXEN database. Periodically each member state reports racist incidents to the agency. There is always a concern that racism is something that will never go away. There will always be an element. It is down to how we cultivate respect for other people. It is possible to introduce legislation. We have legislation in place and are reviewing it. The Prohibition of Incitement to Racial Religious or National Hatred Act 1989 is the subject of research by the University of Limerick. A framework decision on racism and xenophobia is coming through. What the Deputy mentioned is very topical at EU level and here with us.
The Deputy mentioned national legislation. The intention is that the European Agency for Fundamental Rights would consider national legislation in member states to ensure it has this in-built human rights element. Regarding the levels of racism, the feeling is generally that the incidence is higher than the reported incidence. One of our two sources of incidence is the Garda racial intercultural office which deals with the new communities. It involves approximately 450 liaison officers who have been specially trained to deal with the new communities and to deal with incidents of this sort. That office has a reporting mechanism. The other source is the public reports on racism incidents directly into the National Consultative Committee on Racism and Interculturalism, NCCRI. In Ireland the figures are pretty low with approximately 80 per annum. It is probably somewhat higher in practice. Ireland's figures are considerably lower than those in the United Kingdom and some of the other EU member states about which we read.
I was also asked about citizenship. The fundamental rights agency will be able to examine any of the rights included in the Charter of Fundamental Rights. It will examine how member states are dealing with the evolution of legislation and various conditions. Not only will it be analysing the process, but the Irish Human Rights Commission will also be keeping a close watching brief. The commission and the agency are linked. The commission will form part of the mechanism of the agency. There is a human rights commission in all 27 member states, each of which is directly linked to the fundamental rights agency in Vienna.
It is not looking at that at the moment.
Mr. Liam Fitzgerald
No, it is not. It is on the list of items which can be examined under its multi-annual work plan.
I thank Mr. Fitzgerald for his helpful briefing. That concludes the joint committee's consideration of the three items which were before it today. I thank the officials from the Departments of Justice, Equality and Law Reform and Enterprise, Trade and Employment for attending and assisting the committee's scrutiny of the various proposals.