Will the Minister explain the purpose of section 3?
Europol Bill, 1997: Committee and Remaining Stages.
Sections 1 and 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
This section deals with the designation of a national unit within the Garda Síochána under the management of a member of the Garda of at least the rank of chief superintendent and under the control and general superintendence of the Garda Commissioner. The designation of this national unit will not entail the creation of an entirely new unit as there already exists a unit in Garda headquarters to liaise with the Europol drugs unit. If the Senator wishes I will explain each of the subsections.
That will not be necessary. With regard to the staffing of the unit the hierarchy is set out in the section. Will the unit include people with expertise in areas other than policing?
The section indicates that the commissioner may assign such members of the Garda to the national unit as he wishes. There is a provision in subsection (6) for the Minister, after consultation with the Garda Commissioner, the Minister for Finance and any other Minister whom the Minister considers appropriate, and with the Revenue Commissioners where officers of the Customs and Excise service are concerned, to appoint to the national unit persons from outside the Garda. This relates to Customs and Excise officers specifically. Senator Connor wonders if the unit will comprise non-Garda personnel——
With relevant expertise.
Provision is made in subsection (6) for such personnel following a consultative procedure which is laid out in the legislation.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
Will the Minister elaborate on the nature of the functions of the liaison officers?
Section 4 provides for the sending of liaison officers to Europol. Subsection (1) provides that the nomination and sending of liaison officers will be matter for the Garda Commissioner, in whom, under section 3, the control and general superintendence of the national unit is vested. However, there are two restrictions in respect of the operation of the subsection. Article 5.1 of the convention provides that the number of liaison officers who may be sent by member states to Europol shall be laid down by unanimous decision of the management board. Section 4(2) provides that the sending of persons to the national unit other than members of the Garda Síochána, for example, officers from Customs and Excise, can only be made after the Garda Commissioner has consulted with the Minister and that the nominating function in respect of these appointments will be (a) the Revenue Commissioners in relation to Customs and Excise officers and (b) that of such other Minister as the Minister for Justice, Equality and Law Reform considers appropriate in relation to any other person.
Generally, all EU member states have a liaison officer with the EDU. Inspector Noel Keane of the Garda Síochána was Ireland's liaison officer from 1994 to August this year. I pay tribute to him for the wonderful work he carried out. He was replaced by Inspector Michael O'Sullivan, again on a three year contract. Another member of the Garda Síochána, Inspector Frank Martin, was selected and appointed to the post of systems development officer. He is also on a three year contract. He is not a liaison officer but a member of the staff of the EDU. We can be justifiably proud of the work these members of the Garda Síochána have done and are doing in their various roles.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Section 6 relates to the controversial issue of data protection. Will the Minister outline precisely the data protection measures in the section?
I took the opportunity on Second Stage of trying to cover as many concerns as possible regarding data protection. I pointed out that there were important controls on this matter and I hoped I had allayed the concerns of Senator Norris and others who raised it during the wide ranging Second Stage debate. However, for the benefit of Senators, I have no hesitation dealing in detail with section 6 again because it is important.
Section 6(1) applies the Data Protection Act, 1988, to relevant provisions in the convention, subject to necessary modification. The provisions in the convention concerning the right of access provide an example of how the 1988 Act will be subject to modification. In the convention the right is exercisable free of charge whereas under the 1988 Act, the levying of a fee is discretionary. Under the convention Europol must deal with a request for access within three months of its receipt whereas under the 1988 Act, data controllers have only 21 days to respond.
Section 6(2) remedies certain inconsistencies in the terminology used in Article 19 of the convention. Its purpose is to clarify that it is the Data Protection Commissioner and not the competent authorities as defined in Article 2.4 who will carry out the functions set out in Article 19.1 and Article 19.5. The function in Article 19.1 relates to a person's entitlement to make a request to the national competent authority in each member state for access to data relating to him which has been stored within Europol and to have such data checked. The function in Article 19.5 concerns a requirement that Europol, in close co-operation with the national authorities concerned, carries out a check on data which is the subject of a request.
Section 6(3) takes account of Article 38 of the convention under which each member state is liable in accordance with its national law for any damage caused to an individual as a result of legal or factual errors in data stored or processed at Europol. This subsection makes it clear that, for the purposes of that provision, section 7 of the 1988 Act applies. Section 7 provides that to the extent that the law of torts does not already so provide, data controllers and data processors owe a duty of care to data subjects in collecting or dealing with personal data, that is, a duty to take reasonable care to prevent their activities in this respect causing damage to the data subjects concerned.
One of Europol's principal tasks is to maintain a computerisation system of collected information in accordance with Article 3.1(5). This system will comprise three elements; an information system which will have a restricted and precisely defined content; work files which will contain more comprehensive material and which will be published for variable periods of time for the purpose of analysis only, and an index system which will contain certain details from the work files. I emphasise that under no circumstances can Europol's system be linked to computerised systems other than those of the national units. With the exception of data concerning related criminal offences, Europol's information system will store, modify and utilise data necessary for the performance of Europol's tasks only.
Data will be held in relation to two categories of people — persons who under national law are suspected of having committed or have been convicted of a criminal offence under Europol's competence and persons in respect of whom under national law there are serious grounds to believe that they will commit such an offence. Personal data held on these persons may only include name, alias, date and place of birth, nationality, sex and other relevant identifying characteristics. Additional data can include details of criminal offences, alleged crimes, departments handling the cases and their filing references, suspected membership of criminal organisations and convictions related to criminal offences under Europol's competence. Other relevant information held by Europol or national units can be communicated to any national unit or Europol on request and in accordance with national law.
It is important to point out that if proceedings against the person concerned are dropped or if there is an acquittal, related data must be deleted. Direct access to the information system will be restricted to the national units, liaison officers, the Director, deputy directors and other empowered Europol officials. Data will be directly inputted to the information system by member states represented by their national units and liaison officers in accordance with their national procedures. Europol will input data supplied by third states, third bodies and analysis data. Only the unit which enters the data can modify, correct or delete it. It must be possible to identify that unit. Retrieval of data will be in accordance with the laws, regulations, administrative provisions and procedures of the retrieving unit, subject to any additional provisions contained in the convention. Europol will have overall responsibility for the operation of the information system.
It is important to refer to the work files because they will be the most sensitive element of Europol's computer system. Work files of a temporary nature will be set up for variable periods of time to allow Europol to store, modify and utilise data for the purpose of analysis only. "Analysis" is defined in the convention as "the assembly, processing or utilisation of data with the aim of helping a criminal investigation". These files will contain data relating to criminal offences for which Europol is competent, and can include data on related criminal offences. As with the information system, data can be held on persons convicted of or suspected of having committed crimes under Europol's competence and potential perpetrators of such crimes. In addition, data can also be held on potential witnesses, victims or potential victims, contacts and associates as well as informants.
Personal data relating to racial origin, political opinions, religious or other beliefs and health or sexual life are listed in Article 6 of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data, 1981. They must not be collected, stored or processed unless strictly necessary for the purposes concerned or unless they supplement other personal data already entered on the file. Europol will be required to make an order opening every work file and specifying details. This order will be approved by the management board.
An analysis group will be set up for each analysis project comprising analysts, Europol officials and liaison officers. Only analysts will have the authority to enter and retrieve data. National units will be obliged to provide the information necessary for the task of obtaining, collating and analysing intelligence, but only where processing of such information for the purpose of preventing, analysing or combating offences is also authorised by national law. They will not be obliged to supply information if it would mean harming essential national security interests, jeopardising the success of a current investigation or the safety of individuals or if it involves information regarding the organisation of intelligence activities in State security.
The member state communicating an item of data to Europol will be the sole judge of the degree of its sensitivity and regulate the use of such data accordingly. Europol may also ask third states and other bodies, including Interpol, for other information. Results of analyses of a general nature will be communicated to all member states while results of more specific analyses will be communicated to relevant member states by way of report. The implementation of rules regarding these work files will be prepared by the management board.
If Senators wish I can go into further details in relation to the index system, the duty to notify member states, the standard of data protection and responsibility in those matters, the rules on the use of data and their communication to third states and third bodies, the question of the right of access and appeals, the correction and deletion of data, the time limits for the storage and deletion of data files, data security and liability for unauthorised or incorrect data processing. I will deal with these matters if necessary, but Senators can be assured that there are weights and measures inherent in this system and the convention to ensure that individuals' rights are protected. This was raised on Second Stage, and I am satisfied that people have nothing to fear regarding their private lives.
I accept the Minister's assurances on the checks and balances, but I seek the tolerance of the Chair. The matter that concerns me is indirectly related to this section and I cannot find another section of the Bill under which to raise it. On Second Stage I mentioned the cases of a number of high profile fraudsters who committed major frauds here before leaving for other EU member states. Most of them live in Spain, and a television programme some years ago detailed their lives of luxury, interviewing some of them. There are data on these people in Garda files and arrest warrants in some cases, and I accept that some of this material may be dated. However, Europol is an extension of the war against crime in the EU and intends to make it easier to prosecute criminals who flee justice in the jurisdictions in which they have committed crimes.
Can the Minister give an assurance that these files will be made available to Europol through our own liaison officer or national unit in order that they can be examined by national units in Spain or wherever these people live? These cases should be examined to see if these people can be brought to justice here or in the countries where they live now. Many of them are having a good time on their ill-gotten gains from this jurisdiction. There is information available on these people, though it may be some years old, but the Minister should assure us that this information will be made available and that Europol will help us to put pressure on them.
I am grateful to the Minister for his clear explanation of certain aspects of the Bill. I am also glad he indicated that the intention of gathering information on health, sexual orientation, religious and political views, etc., has been considerably watered down. However, I am still concerned about the vague way this section is expressed.
The Minister said that this material should not normally be collected except in cases where it was strictly necessary for the purpose of the files concerned or where it supported other data. That other data might not have been tested and it seems that there is still a wide remit for Europol to collect this information. I cannot imagine the circumstances in which this would be appropriate. How can health, sexual orientation, religious and political views be germane to a criminal investigation? We must be very careful before leaving a loophole for the collection of this highly sensitive information. On Second Stage I indicated my concern about the "berufsverbot" in Germany, under which civil servants' careers could be seriously retarded because of the collection of this kind of information. I am still nervous about this aspect of the Bill.
I notice a reference to the liability of the State for any damage caused to an individual as a result of inaccurate information being stored or held. What is the position of individual members of Europol? I understood that special extra-legal status was to be conferred on them and that they would not be subject to, for example, the views of the European Court of Human Justice as ordinary citizens. The Minister should clarify what seems to be a special status for these officers.
He should also clarify how a citizen can apply for information whether a file is being kept on him or her and its contents. Will a particular agency or Europol office be established in Dublin? How will a person apply to it? Will there be a form or will one send an ordinary letter to a central authority? If the checks and balances referred to by the Minister are to work, then the ordinary citizen must have clear information on the machinery for checking what, if anything, is held in their records. Will the Minister confirm that it will entail total disclosure of the contents of the files?
I refer to matters which are not criminal offences in one jurisdiction but that may be in another. If, for example, an Irish citizen rides without a crash helmet in another country or if the age of consent for certain matters is different in this country than in another, could that other country apply to Ireland for information and would it be supplied? Could we look for information about the commission of something which is a crime in another jurisdiction but not in this one? I realise this is a marginal area but it could come into operation. What screening process, if any, exists for the selection of targets by Europol? Does the opening of a file have to be justified or can any citizen become the target of this type of investigation without being aware of it?
I am concerned about the question of time limits. I understand any activity on a file may trigger another three year period during which the file may be legitimately maintained. It seems a little strong that marginal activity could reactivate a file for another three years. A reasonably shrewd officer, who wanted to maintain the file, could organise a slight degree of movement to protect the file for another three years.
Many people would be concerned about the security of these files because even the United States' military intelligence has been penetrated on occasions by computer hackers. What will happen if a computer hacker gains access to a central file and acquires information on the background of somebody who has been under investigation, who may not have committed a crime, who may be suspected of something but who is innocent until proven guilty or who may be the victim of a widespread trawl? Sensitive information of a personal, financial or security nature or relating to one's ability to travel may be held on these files and I am concerned that somebody might be able to gain access to them. I would like an assurance that the maximum security precautions will be taken to protect the integrity of these files.
I share the concerns of Senators on the protection of the rights of individuals. I understand from where Senator Norris is coming as regards a person's religious or political beliefs, sexual orientation or otherwise. Such information should not per se be stored in this data base. The Minister made it clear such information will be stored only in extreme and extenuating circumstances. It is important to point out that Europol has a limited remit as regards the most extreme and serious crimes, such as drug trafficking and the trafficking in people and terrorism. There is a strong safeguard in the convention on the protection of a person's rights and integrity in relation to the database.
Senator Norris said data would be stored for three years, which is a reasonable period. Three years, however, may not be a sufficiently lengthy period after which files on hardened criminals and professional gangs may be deleted, particularly if they have lucrative businesses and are making huge sums of money from drug trafficking and other such activities. If, during the three year period a person reforms, is sent to prison or is no longer wanted by Europol, the data should be deleted.
I compliment the Minister for outlining in great detail the situation on data. Of concern to Members on both sides was the question of the personal rights of individuals vis-à-vis the overriding need for this European police force. In recent years we co-operated with other European police forces. The EDU has been in place for some time and the convention was passed in June 1995. This Bill gives legal effect to the convention and the protocol which is already in place. Trafficking in drugs and children and terrorism are the most serious crimes with which we must deal and the merits of the Bill outweigh the fears of Senators.
Senator Connor asked if it would be possible to access data, intelligence or information, on nationals of this country living abroad and who were involved in criminal activities. The answer is yes, but clearly one would have to be in a position to charge such persons in a criminal court. Obviously, that would be important. It must be stressed that the exchange of information and intelligence relates to offences outlined in the legislation. With the exception of data concerning related criminal offences, Europol's information system will only store data or modify or utilise them if it is necessary for the performance of its duties and for no other purpose.
The data will be held in relation to two categories of persons. I emphasise this point because it is important in the context of human rights, the right to privacy and the right to bodily integrity and freedom itself. It will relate to persons who, under national law, are suspected of having committed or who have been convicted of a criminal offence under Europol's competence and persons in respect of whom, under national law, there are serious grounds to believe they will commit such an offence. In this context, even when one narrows it down to those two categories of persons, there is a further safeguard in relation to the information which may be stored in that it may only include the name, alias, date, place of birth, nationality, sex and other relevant identifying characteristics.
Additional data can include details of criminal offences, alleged crimes, departments handling the cases and their filing references, suspected membership of criminal organisations and convictions relating to criminal offences under Europol's competence. Since the holding of data is confined to those two categories of persons and as the information which can be retained is defined, there is little or no danger of an unwarranted invasion of an individual's right to privacy or freedom.
Information on the racial origin, political opinions, religious or other beliefs, health or sexual life of an individual must not be collected, stored and processed unless it is strictly necessary for the purpose of the file concerned and supplements other personal data already on file.
Who makes that assessment? Is it the individual officer involved in the case, someone higher up or is there a panel? I am interested in the mechanism by which it is determined to store this information. Is there a sorting process?
In theory, it is a matter for the members of Europol and is confined to the two categories of persons I outlined. The general population has nothing to fear from the collection of this information. The categories of persons on whom information will be stored have something to fear as Europol is there to try to prevent their pernicious activities, with a view to ensuring states have the necessary information to enable them to bring successful charges.
I am concerned that the decision may be left to a Europol officer. Regrettably there are racially discriminatory elements within police forces. If it is left to the discretion of an individual officer, he or she might be motivated by discriminatory attitudes in their own consciousness. Is this checked?
I understand the Senator's concerns but I assure him the situation will be overseen by the board of management and the joint supervisory body. The member states have put regulatory bodies in place so the risk of an unwarranted intrusion in an individual's life is minimised. It is virtually impossible in the modern age to guarantee that every individual will not be intruded upon. However, in so far as it is possible in the scheme of things, the relevant mechanisms are in place to minimise the risk of an unwarranted intrusion.
Each member state will designate a national supervisory body to monitor, within the laws of its own country, the permissibility of the input, retrieval and communication of personal data by a member state to Europol and whether this violates the rights of the data subject. Each individual has the right to ask the national supervisory body to ensure the lawfulness of data entry or communication of his or her data to Europol in any form. This body will have the task of reviewing the activities of Europol to ensure the data protection rights of individuals are not violated. The supervisory authorities will have access to all documents pertaining to their respective national offices.
I hope this reassures Senator Norris, Senator O'Donovan and Senator Connor about the monitoring of information and its permissibility. I am satisfied the system is as watertight as possible, having examined the legislation prior to its publication and having looked at the convention. Member states were conscious of the rights of individuals, particularly their right to privacy, when drawing up the convention. That convention was given due consideration by the member states and is being ratified by this Bill.
I thank the Minister for responding to my query on those who have committed major fraud and fled this jurisdiction. However, I would like further reassurance. He said a crime cannot be prosecuted unless the DPP is satisfied the proper extradition procedures have been followed. I know the Minister and I differ on his interpretation of zero tolerance and I asked him whether it extended to summary as well as indictable offences. I am talking about the serious indictable offence of fraud. I am precluded by the rules of the House from citing cases, but the Minister knows of them.
I know the Minister has no problem acknowledging the offences committed. Can he ensure that, through the Garda Commissioner, the new instrument of Europol will be used to make these individuals amenable to justice? There are charges outstanding against most of them and warrants have been issued for their arrest. I do not know whether the statute of limitations applies but I appeal to the Minister to communicate with the Garda Commissioner or the liaison officer of Europol and re-examine the files in the light of this new instrument.
The Minister referred to a national supervisory agency. Will this be a new agency? What will be its official title? Will the scope of its operation be advertised so members of the public will know if a file is kept on them and can apply to scrutinise its contents? If civil liberties and human rights are to be protected, people must know how to operate their entitlements. If they are unaware of them, they will not be protected.
I am concerned about the holding of material on health, sexual orientation and religious or political views. Some years ago I was professionally friendly with a man called Pastor Joseph Doucé who worked as a psychotherapist in Paris. The French secret police became concerned that there might be sensitive political figures among his clients. He was visited by the French secret police who removed him in the middle of the night. Six months later his naked body was found dumped in a wood outside Paris. There is no question that he was murdered by the police because it disapproved of the nature of his clientele and felt there was a politically sensitive aspect to it. There has never been a proper inquiry into the case because it has always been covered up by security precautions and so on. In that instance, a serious crime was committed by those charged with the responsibility for protecting citizens against crime.
Perhaps the Minister could tell us if an individual member of the force can be held liable in law, because I know member states can. This might be cumbersome and intimidating for an individual. If a member of the public wanted to take an action to seek redress for such activity, they would need to focus on a particular individual. It would be easier to demonstrate that an individual had behaved wrongly than to take on the apparatus of something vague like the State.
Since European law is not harmonised, we are not looking at a Code Napoleon stretching all over Europe. It would be useful if we had codified European statutes, but I expect that will happen in the 22nd century. Bearing in mind there are differences in the definition of criminal offences — the easiest example to give is the different ages of consent — I am curious about the retrieval of information on something which is a crime in one member state but not in another. Perhaps this is the same as the point the Minister and a number of Senators made about a test of seriousness relating to the kind of crime which can trigger such an investigation.
I am not clear what degree of seriousness is required or if there is a consistent standard of seriousness applicable in all countries. In other words, would a person have to be either suspected of or guilty of something such as the old offence of a felony? Would it have to be something that received a sentence of two years imprisonment or more? What is the test of seriousness or is it just a form of words to reassure the public? How serious is the test of seriousness? Must it be something which carries a specific major criminal sanction, such as imprisonment, or could an ill-motivated member of Europol describe something as being serious which would not be so to the average citizen?
I have a healthy respect for the Garda Síochána and for most police forces of our European neighbours. However, when teasing out this type of law we must act as devil's advocate and look at a situation in which there may be, as there are in virtually every police force in the world, rotten apples. We must protect the citizen not against the 98 per cent of police who are good decent citizens but against the 1 per cent or 2 per cent who may be rotten apples.
It is important to allay Senator Norris's fears. The national units of the 15 member states will be tightly knit and carefully chosen. Those with the greatest degree of skill and knowledge will be chosen whether for the Garda Síochána, the British police or the French police. I would have the utmost faith in such units operating in the Europol system.
Senator Connor referred to those involved in major white collar crime.
Serious fraud.
This Bill has been introduced to ratify the Europol convention of 1995 which is narrowly defined to include certain cat-goriest of crime. While it might be a good idea to include revenue fraud in its remit, this could only be done by broadening its terms. I agree with Senator Connor's points in this regard but it is not possible for the Government or the Minister to include white collar crime or revenue fraud in the convention. Senator Connor mentioned the statute of limitations in relation to fraud. That does not apply, so if criminals go to Spain or Portugal to live off the ill-gotten gains obtained here, they will not be able to come back in ten, 15 or 20 years' time without fear of prosecution. It is not within the Minister's remit to include such crimes as the convention is limited in this regard.
Some people could be accused of unlawful drug trafficking.
Senator Norris expressed concern about the seriousness of the offences which will be under the remit of Europol pursuant to the ratification of the Europol Convention here and in other EU states. It is important to look at Article 2 of the convention which specifies Europol's objective within the framework of co-operation between the member states pursuant to Article K.1(9) of the Treaty on European Union. The objective is to improve, by means of the measures referred to in the convention, the effectiveness and co-operation of the competent authorities in the member states in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime——
What does the Minister mean by "other serious forms of international crime"?
An Leas-Chathaoirleach
I ask that the Minister be allowed to conclude.
——where there are factual indications that an organised criminal structure is involved and two or more members are affected by the forms of crime in question in such a way as to require a common approach by the member states owing to the scale, significance and consequences of the offences occurred. That sets out Europol's objective within the framework of co-operation envisaged.
It also specifies what Europol will be involved in initially. It states that in order to achieve the objective I have outlined, Europol will initially be involved in acting to prevent and combat certain specified crimes. These include unlawful drug trafficking, trafficking in nuclear and radioactive substances, illegal immigrant smuggling, trade in human beings and motor vehicle crime.
And money laundering and associated crimes.
Those are the categories of offences which are specified in the article.
I understand the legitimate concerns of Senators in regard to the future. It is envisaged that within two years after the entry into force of the convention Europol will begin to deal with crimes committed in the course of terrorist activities against life, limb, personal freedom or property. This is a progressive convention in the sense that it will go on to include other cat-goriest of offences in the future. Senator Connor is correct that Article 2.3 states:
Europol's competence as regards a form of crime or specific manifestations thereof shall cover both:
(1) illegal money-laundering activities in connection with these forms of crime or specific manifestations thereof;
(2) related criminal offences.
It is clear the convention is a progressive one and does not attempt to catch all categories of offences at the outset.
It must be remembered that whenever innovative criminal legislation in enacted anywhere in the world it must be tried before it is tested. The same can be said of an international convention, irrespective of the depth of consideration given to its terms by experts — that which has not been tried could not be said to have been tested. It is obviously more beneficial in any learning curve to crawl before one attempts to walk. I imagine the framers of the convention were aware of that.
In regard to the codification of Irish criminal law, Senator Norris referred to Code Napoleon. I sometimes fear we will have to await the age of the emperor in the Irish Republic before we see Irish criminal law codified. If Senator Norris could propose someone who would be suitable for the position——
I propose Senator Norris.
——I am sure it would be given due consideration.
If the Minister is referring to the position of emperor I am available.
The Senator has stolen the emperor's clothes.
It is important to realise that Europol will assist in identifying criminals. Its information and intelligence may help to provide evidence to charge those who have committed fraud here if the offence involves two or more member states. Senator Connor said he is very concerned about the issue of fraud. I intend to bring forward very substantive legislation to deal with white collar fraud in the not too distant future. However, in the meantime, Senator Connor is concerned about people who might be, or are, guilty of fraud and are at large.
They are guilty.
It can only be alleged at the moment that such individuals are guilty of those offences. However, when it comes to charging such people under the convention it must be remembered that the fraud must concern two or more member states. Having said that, charging an individual here requires extradition arrangements. Last night I gave details of what is being done to formalise extradition arrangements with certain countries to ensure we will be in a position to pursue such people. However, it must be stressed that Europol's remit is confined to international organised crime involving two or more member states.
Senator Norris asked about the procedure in regard to the opening of files and expressed concern about the collection, storage, analysis and exchange of data. Article 12 of the convention provides that Europol will be required to make an order opening every work file which specifies certain details. This order will have to be approved by the management board, to which I referred. The details relate to the purpose of the file, the nature of the data stored, time limits and so on. The Director of Europol will be advised that the file is to be opened.
Senator Norris also asked if we will have a new office for the national supervisory body. It is envisaged that additional functions will be given to the existing data commissioner's office to enable the national supervisory body carry out its functions.
Senator Norris also expressed his concern about the protection of people's privacy in terms of their ethnic origin, political and religious views, health and sexuality in the context of the collection of data after the ratification of the convention by member states and its subsequent implementation. The Europol convention provides for the collection, storage and processing of data which is necessary for the performance of its duties only. It cannot go outside that remit.
The convention states that personal data relating to the kind of issues stressed by Senator Norris, such as racial origin, political opinions, religious or other beliefs and personal data concerning health or sexual life, will not be collected, stored or processed unless it is strictly necessary for the purposes of the files concerned and unless it supplements other personal data already entered on the file. Therefore, the personal data to which Senator Norris referred will not be held on file unless that data is already held and relates to a criminal offence for which Europol is considered competent and unless that information is considered strictly necessary for the task of combating, analysing or preventing a criminal offence which falls within Europol's remit.
The question of people being targetted in respect of their religious beliefs does not arise in that context. It has to be stressed that, in so far as data of any kind can be collected, the data can be kept for preventing crime. In so far as there is data on victims, it can only be kept for preventing crimes. It is, to that extent, a two edged sword of protection. With regard to how an individual will find out whether Europol has data relating to him, he can do so by making a request, free of charge, to the national competent authority in any member state. In Ireland's case the application would be made to the Data Protection Commissioner. The procedure is that the request would be forwarded without delay to Europol and the individual would be told that Europol will reply directly to him or her.
As regards time limits and whether people would be waiting forever for this information, the request must be fully dealt with within a period of three months. The right of access and to have the data checked will be exercised in conformity with the law of the member state where the right is claimed; obviously, in Ireland's case, in accordance with Irish law. That would take into account the access provisions of the convention itself. There will be occasions when the information will be refused. This would be, for example, in a case where a refusal would be necessary so that Europol could fulfil its duties properly, where security and public order in the member state need to be protected, and where the data concern the prevention of crime or the protection of the rights and freedoms of third parties. Where one or more member states of Europol have objected to the communication of the data or where there is a simple request for a check, Europol will carry out the checks in close co-operation with the national authorities concerned and will notify the inquirer that it has done so without giving any information which might reveal to him or her whether he or she is known. There is then a system of appeal. Under the appeal system an individual will have the right to appeal a decision refusing access to data or a request for a check to the joint supervisory body. There is a system of checks and balances in respect of the right of an individual's request for access to information.
Senator Norris also raised the question of whether the staff would be individually accountable to the national courts or to the EU Court of Justice. The situation here is that immunity is given to Europol and its staff from legal process of any kind in respect of words spoken or written and of acts performed by them in respect of their official functions subject to certain conditions, exceptions and safeguards. These safeguards are as follows. The immunity will not extend to civil action by a third party for damages. The Director of Europol will have no choice but to waive immunity in cases where immunity would impede the course of justice. Immunity can be waived without prejudice for the interests of Europol. If a competent authority or judicial body of a member state considers that an abuse of privilege or immunity has occurred the immunity may be waived. If the issue is disputed the protocol sets down a procedure for settling the dispute.
The type of immunity referred to here is not new; it is usual in new institutions. I understand, for example, that the EU Commission itself, including its staff, has immunity from national jurisdiction. There are again certain provisions dealing with the waiving of immunity in certain circumstances but, nonetheless, the immunity exists for them in much the same way as it exists for Europol. In this context I should also say for the information of the House, that the EU Court of Justice has an interpretation role of the convention. It does not have a role in relation to any EU institutions and their staff similar to the role which national courts have in respect of national institutions and their staff. It has to be stressed that the Europol convention at no stage gives Europol an operational role. I have dealt in some detail with how the supervisory bodies will monitor the system and there is no need for me to delve further into that now.
The safeguards, to which Senators have referred, to ensure that the system will not be abused are many. These relate to the standard of data protection, the restrictions on access to data by users of the system, rules regarding the use of data, time limits for storage and deletion of data files, security measures to prevent unauthorised access, an arrangement whereby each national supervisory body has an overseeing role and an independent joint supervisory body which will have the task of ensuring that the rights of the individual are not violated.
I have also explained that the time limits for storage are that the data will only be held for as long as it is necessary for Europol to perform its tasks and no later than three years after the input of the data. After that the need of continued storage will have to be reviewed. A decision can be taken to continue the storage but if this decision is not taken, the data will be automatically deleted.
With regard to total disclosure, an individual can make his case free of charge and there are various appeal mechanisms which can be looked at after that. Since Europol and its staff have immunity the question arises who has liability for unauthorised or incorrect data processing. The answer to that is that every member state, in accordance with its own law, will be liable for any damage caused to an individual as the result of a legal or factual error relating to data stored or processed at Europol. Only the member state in which the event which gave rise to the damage occurred may be the subject of an action for compensation on behalf of the injured party who can then apply to the courts having jurisdiction under the national law of the member state involved. A member state cannot, incidentally, plead that another member state had transmitted inaccurate data in order to avoid liability. If legal or factual errors occurred as a result of data erroneously communicated, or a failure to comply with the obligations laid down in the convention on the part of one or more member states, or as a result of unauthorised or incorrect storage or processing, Europol or the other member state in question would be bound to repay the amounts paid as compensation unless the data was used by the member state in breach of this convention. Any dispute between member states and Europol on the principle or amount of the repayment must be referred to the management board which will settle the matter democratically by a two thirds majority.
I hope that I have replied to all the queries raised by Senators on section 6 and that I have allayed, at least to some extent, any concerns which they have in regard to this extremely important section of the Bill which ratifies the convention.
I am glad the Minister has been so forthcoming. It seems I am right in saying that this immunity is conferred on Europol. I wish to leave on the record my concern that this should be so. It is a bad principle and it could lead to a lack of responsibility on the part of the police. If it is a vague institution of State that becomes financially liable in terms of error, then it transfers the degree of concern and pressure from the individual to the State.
Nothing the Minister said has convinced me that it is not the case that an individual officer of Europol can make the decision as to whether it is necessary to extend the investigation into matters of health status, sexual orientation and religious or political belief. I still think that an individual officer can make that decision. It is a heavy responsibility for any such officer to have, particularly when he or she is protected by immunity provisions. That is very worrying.
There is no real test of seriousness, such as I mentioned, in terms of whether the crime has to be above the penalty of two years' imprisonment. Those are three areas of concern. For those and other reasons I have mentioned, both on Second Stage and today on Committee Stage, will the Minister request or urge his colleagues in the European Council to ensure there will be a thorough review of the operation of the system after the first two or three years of its operation? Is there any mechanism for such a full-scale review?
With his customary frankness, the Minister said we were putting something new into operation and we had to test it out to see how it ran. I am seriously asking him if there is provision for precisely that kind of review after a stated number of years — not just in one state, but a review of the operation of Europol generally after two to three years? If there is not provision for this, will the Minister take it up with his colleagues in Europe and ensure that this is so? That would go some way towards allaying our fears. Until we see this in operation we are dealing with speculation.
I am speculating about difficult cases but such cases have arisen before — I mentioned Joseph Doucé. We all remember the Rainbow Warrior case, Greenpeace and the use of another kind of elite force basically to commit murder. These agents of a European state were released after a comparatively short time in captivity after having been convicted.
The second paragraph of Article 2.2 deals with terrorist activities against life, limb, personal freedom or property.
I am sorry to interrupt you, Senator Norris, but I understand we are discussing section 6. I am having some difficulty in finding the relevance to that section of what you are saying.
I am talking about the question of deciding whether something is serious and requires this kind of collection of information. I am pointing out that when we look at these, there are certain tests and confinements. One of them is terrorism and the link to property. If one wanted to stretch it, that could have been used by the French in terms of their intervention with the Rainbow Warrior. In the last year or two the question arose concerning the women from Greenham Common who got into a British arms manufacturer's plant and disabled Hawk missiles which were due to be exported to Indonesia to assist President Suharto in the genocide against the people in East Timor. A British jury acquitted them on the basis that they had intervened to prevent a further and more morally serious crime from being committed by State agencies. It was an interesting judgment.
It seems that Europol could go in a different way. That was a clear case where there was damage against property by people who certain agencies would undoubtedly describe, wrongly in my opinion, as terrorists. That kind of group could become subject to this kind of inquiry. Without a test of seriousness being included in the detail of the legislation and leaving it, apparently to the decision of an individual officer, the health status, political views, sexual orientation and religious opinions of these women could have been investigated. That material could have been surreptitiously released to the media in order to discredit them. That is the area I am concerned about.
Having raised some criticisms, I offer the Minister an argument, although perhaps I should not, that with regard to religious views I can see one justification — for example, in the case of an extreme and bizarre cult such as the Waco sect or those in Zürich who committed mass suicide, I would regard it as reasonable that the State should collect information on those sort of religious opinions. I would not have any difficulty with the State collecting that kind of material, although I do have serious concerns. I doubt whether the Minister can satisfy me about them because he may be waiting to see the convention in operation. I would be glad if he would comment on the suggestion that there should be an operational review after a specific number of years.
With regard to Senator Norris's submission concerning the question of member states being liable and individual members of Europol not being liable, except in certain limited circumstances, for any negligence or even wrongdoing, member states will send liaison officers to Europol. They will obviously assist in the exchange of information and analysis work. Article 29 of the convention provides that Europol will be headed by a Director who will be appointed by the Council acting unanimously. It is also provided that there will be a number of deputy directors. It sets out in clear language what the Director will be responsible for. It is also clear that the Director will be accountable to the management board in respect of the performance of his duties. He will also be Europol's legal representative. The Director and deputy directors may be dismissed by a decision of the Council. After the convention enters into force, the first term of office of the Director will be five years, four years for his immediate deputy and three years for the second deputy director.
There is no question of there being no control over Europol by the member states. There will be a sufficient level of control by the member states over Europol. I am not being facetious in saying that, while I acknowledge the fears Senator Norris has expressed, Europol's remit is to prevent crime, not cause it. Every effort has been made to ensure that Europol is provided with the necessary mechanisms to pursue its honourable objectives while minimising the risk of an individual or individuals moving in a different direction. I am satisfied that the convention, in so far as it can, achieves the noble objective it set out to achieve in the first instance.
I do not believe that there is a necessity for a formal review within the context of the legislation or the convention. The Justice and Home Affairs Ministers of the EU will monitor the progress of Europol over the coming years. Any deficiencies will be redressed and any proposals required to remedy them will be put in place.
Rather than give the Senator an undertaking regarding a formal review of the convention I assure him that the operation of the convention will be overseen by the Ministers concerned.
I am sorry the Minister is not able to support the notion of a specific and clear review. He said that Europol would be accountable to the Ministers. Will he confirm my understanding that it will not be accountable to the European Parliament? If so, could he comment on the degree of accountability that may exist to European democratic institutions? Will, for example, an annual report have to be laid before the European Parliament by our representatives?
The Ministers for Justice and Home Affairs will keep an eye on the progress of the convention. Since they, as representatives of the sovereign states, signed the convention in the first instance, it makes sense that they will monitor its day to day operations. That is different from the question of accountability. There are safeguards, checks and balances built into the convention. They are sufficient in their weight and measure to address the concerns of Senators.
The Council Presidency will forward a special report to the European Parliament on the work of Europol and there will be a consultative process with the Parliament on whether the convention should be amended. To that extent, there is a level of accountability to the Parliament. The Council Presidency or its representative will take account of obligations on discretion confidentiality. I hope this explains how the European Parliament is tied in to the convention and operations of Europol.
There is a level of democratic accountability in so far as the European Parliament is concerned, though it is constrained by the matters I have outlined. There is also the fact that the convention was signed by sovereign countries, by Ministers with a sovereign remit. I hope that the convention will be a successful innovation in this country and in the other EU member states.
Acting Chairman
I call Senator Norris and I remind him that section 6 deals with the application of the Data Protection Act, 1988. The competence of the European Parliament in respect of this section escapes me.
This is an interesting dialogue. I beg the indulgence of the Chair. Will the Minister indicate if an annual report is to be laid before the European Parliament and will it lead to a debate in the Parliament?
Article 34.1 of the convention states:
The Council Presidency shall each year forward a special report to the European Parliament on the work of Europol. The European Parliament shall be consulted should this Convention be amended in any way.
I am not aware that the article goes any further, but the word "consulted" is used in so far as it relates to the question of the convention being amended. It would be difficult to see how there could be a consultative process without there being a debate.
Question put and agreed to.
Sections 7 to 10, inclusive, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Will the regulations referred to in the section have to be laid before the Oireachtas? It does not say that they have to be laid before either or both Houses of the Oireachtas.
Section 11 states:
The Minister may from time to time make such regulations as appear to him or her to be necessary or expedient for carrying out the Convention and for giving effect thereto or to any of the provisions thereof.
This is a standard provision for the Minister to make regulations under the Act. The Bill does not specifically require the making of regulations on any particular aspect of the Bill. However, section 12 provides that every order and regulation which is made will be laid before each House of the Oireachtas. There is also the standard provision regarding annulment whereby an order or regulation shall be annulled "if a resolution annulling the order or regulation is passed by either House within the next subsequent 21 days". The usual negative provisions apply.
That is fine.
Question put and agreed to.
Sections 12 to 14, inclusive, agreed to.
First to Sixth Schedules, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I ask that my dissent be recorded. It is not that I am in favour of crime, but I retain serious reservations about aspects of this legislation.
The Senator has shattered my faith in my persuasive powers.
Question put and agreed to.
The Seanad adjourned at 12.50 p.m. until 2.30 p.m. on Wednesday, 19 November 1997.