Europol Bill 2012: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice and Equality (Deputy Alan Shatter)

I am pleased to present this Bill, which will enable Ireland to implement a decision by the Council of the European Union establishing the European Police Office, Europol, to the House. While Europol has existed since 1995, it did so on the basis of an EU convention, which has been subject to a number of amendments introduced through subsequent protocols. However, such legal instruments are subject to lengthy ratification procedures by member states and therefore it was agreed to replace those instruments with a Council decision which will ease any future amendments.

In 2008 the Houses of the Oireachtas approved the adoption by the State of the Council decision which ultimately entered into force in 2010. The convention and protocols to which I have referred were given force of law in the State by way of the Europol Act 1997, as amended. Section 2(1) of that Act states that the convention and the protocols "shall have the force of law in the State and judicial notice shall be taken of them." Such wording, which is usual for the implementation of international agreements such as conventions, effectively precludes the need to legislate for each and every article of the instrument. In effect, the 1997 Act as amended is relatively minimalist. However, a Council decision must be implemented in a manner whereby each and every aspect of the instrument which has domestic effect must be provided for in legislation. For that reason, this Bill is significantly more detailed than the existing Europol Act. Nonetheless, the Bill will, in effect, maintain the status quo. Although the Council decision does introduce a small number of changes to Europol, to which I will shortly refer, it replicates to a large extent the provisions of the convention and the protocols thereto.

Turning to Europol itself, I would like to mention briefly one change introduced by the Council decision. Under the convention, Europol had the status of an intergovernmental organisation funded by contributions from member states. However, establishing Europol under a Council decision gives it the status of an agency of the European Union. As an agency in the area of police and judicial co-operation in criminal matters, Europol joins the European Police College, CEPOL, and the EU's judicial co-operation unit, Eurojust. Establishing Europol as an entity of the EU ensures that it is funded from the general budget of the European Union and also enhances the role of the European Parliament in the control of Europol.

The objective of Europol, under the Council decision, is to improve the effectiveness and co-operation of the law enforcement authorities of member states in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more member states. This is another difference between the Council decision and the convention and probably the most significant change from an operational point of view. The Council decision extends the mandate of Europol from that under the convention. Organised crime was originally the sole focus of Europol's activities. The Council decision removes the requirement that an organised criminal structure must be involved before Europol can act. It will be sufficient for the crime concerned to involve organised crime, terrorism or another serious offence affecting two or more member states. The annex to the Council decision lists those other serious offences for which Europol is competent, which include the main transnational crimes such as drug trafficking, terrorism, money laundering, human trafficking, counterfeiting and arms smuggling. Also included are other more serious crimes such as murder, organised robbery and kidnapping. Europol's role in supporting and strengthening action by the member states in combating such crime is clearly set out in Article 3 of the Council decision.

It is the reality that no member state, including Ireland, despite our island status, can avoid the impact of international crime. The very nature of this crime requires the co-operation of several states to ensure an effective response. Europol describes its role as that of making Europe safer, and it does so by providing the necessary co-ordination of and support for national law enforcement authorities.

The support and assistance that Europol can offer to any investigation can be broadly categorised as information management and, to a lesser degree, semi-operational tasks. The latter tasks include the option for Europol to participate in joint investigation teams. Primarily, however, Europol co-ordinates and supports Europe-wide operations investigating serious criminal activity. All arrests and policing functions are carried out by the competent law enforcement authority in the member state in question. Europol assists member states in combating crime on a daily basis. In the case of Ireland, this assistance is achieved through secure intelligence exchange between the Irish Europol national unit based in Garda headquarters and the Irish liaison bureau located in Europol HQ in The Hague.

Europol has established a number of crime priority areas which are assigned a team of analysts and to which Ireland contributes on a daily basis.

The information gathered has assisted in identifying links between international organised crime groups operating in Ireland and in other jurisdictions.

In terms of operations, in 2011 Ireland assisted Europol in the provision of intelligence and information on a mobile organised crime gang which was involved in the organised thefts of rhinoceros horn throughout continental Europe. That work continues with ongoing intelligence exchange between Ireland and other member states about this gang, which is also involved in the commission of crimes including burglaries, aggravated robberies, fraud, money laundering and drug trafficking. Europol has also assisted Ireland in the area of illegal immigration. Ireland has taken part in operational meetings involving the exchange of information and intelligence concerning an organised crime gang operating in France that assists illegal immigration into Ireland. This operation, which is continuing, has already resulted in a number of arrests in France. More recently, An Garda Síochána took part in a joint operation with the Police Service of Northern Ireland, PSNI, targeting prostitution on the island of Ireland. Europol again assisted this operation through the deployment of analysts who worked alongside Garda and PSNI personnel. Europol continues to be of major assistance in combating and preventing crime. It is an essential means of exchanging and analysing information and intelligence and ensuring that European law enforcement agencies are alerted to new threats.

Turning to the Bill, I will highlight some of its main provisions. Section 2 confirms that the competent authorities for the purpose of the Bill and the Council decision are the Commissioner of the Garda Síochána or, in the case of a revenue offence, the Revenue Commissioners. "Competent authorities" are defined in article 3 of the Council decision as "all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences".

Sections 4 and 5 provide for the Europol national unit including the functions of that unit. Those functions are set out in Article 8 of the Council decision and include liaising with Europol and the competent authorities of other member states, responding to requests for information and intelligence and performing such other tasks as are required by the Council decision. The provision allows the national unit to refuse a request for information where to provide such information would prejudice the security or other essential interests of the State, prejudice a criminal investigation or criminal proceedings in the State or would jeopardise the safety of a person or persons. Section 5 also clarifies that the national unit may access the Europol information system as permitted under the Council decision.

Section 6 provides for the role and functions of liaison officers. This provision replicates the existing section 4 of the Europol Act 1997. Under this provision, a liaison officer may be sent from the national unit to Europol to serve in the Irish liaison bureau. A liaison officer may not necessarily be a member of the Garda Síochána and could, for instance, be an officer of the Revenue Commissioners. Currently, Ireland has two liaison officers based in Europol - one from An Garda Síochána and one who is an officer of the Revenue Commissioners. These officers provide co-ordination between Europol and the national unit in the transmission of information and otherwise co-operate with Europol in accordance with the Council decision.

Section 7 gives effect to Article 7 of the Council decision which permits Europol to request member states to initiate criminal investigations. A request shall be made to the national unit which will transmit the request to the competent authority of the State, that is, An Garda Síochána and-or the Revenue Commissioners. The competent authority will consider and decide whether to comply with the request. The national unit will notify Europol of the decision as to whether to conduct the investigation. Where it is decided to refuse the request, the national unit will inform Europol of the reasons for refusing, unless to do so would harm essential national security interests, prejudice an ongoing criminal investigation or proceedings or would jeopardise the safety of any person or persons. This provision which was initially introduced into the convention in 2002 responds to previous difficulties with regard to member states acting upon information provided by Europol. However, it must be emphasised that An Garda Síochána, the Revenue Commissioners and the law enforcement authorities in other member states have absolute discretion in the prioritisation and deployment of resources.

Section 8 provides for the transmission of data to the Europol information system. This system is used to store personal information about people who are suspected or convicted of having committed a crime for which Europol has competence or where there are reasonable grounds to believe that they will commit such an offence. Subsections (2) and (3) set out the types of data which may be input and which are also set out in the Council decision. As can be expected, this data includes information concerning a person's identity including names, date and place of birth, address and driving licence or passport information. Also included is the possibility of providing DNA data which, owing to the lack of the appropriate technology, was not in the previous Europol instruments. Now, because of modern technology, the use and sharing of DNA information is a key element of criminal justice systems across Europe. However, it should be pointed out that neither the Council decision nor the Bill requires the obtaining of such DNA data and it will only be provided where it is available.

Section 9 concerns the transmission of data to Europol for purposes other than under section 8, that is, for input in the Europol information system; for example, Europol may include information in a system known as analysis work files. This system offers broader information than the Europol information system although with much more limited access. These files allow Europol to provide operational analysis with the aim of assisting criminal investigations. Information may also be used by Europol and transmitted to third states or other entities. However, the prior consent of the national unit is required before any onward transmission of the data by another party may take place.

Sections 10 to 14, inclusive, concern the use of, access to and protection of personal data to which the Bill applies. On a general point, it must be noted that data under the Bill is subject to the provisions and protections of the Data Protection Acts. There is a very strong data protection regime in place in Europol. It is generally highly regarded, most recently in a 2012 report following an evaluation of the implementation of the Council decision and of Europol's activities. While not making any changes to Europol's systems of data protection, the Council decision does establish a data protection officer at Europol. Although such an officer has always been a part of Europol, the Council decision makes it a formal and independent role. The functions of the data protection officer are set out in Article 28 of the Council decision and include ensuring compliance with the provisions of the Council decision concerning the processing of personal data. Where there are concerns regarding compliance, the data protection officer may raise these directly with the director of Europol.

In addition to these safeguards, section 10 addresses the modification, correction and deletion of data, giving effect in the main to Articles 12 and 13 of the Council decision. These functions are the responsibility of the inputting party. Data must be deleted, without delay, where it relates to a case where proceedings are definitively dropped or a person is acquitted. This section also creates an obligation on the national unit or liaison officer, as the case may be, to notify an inputting party of their belief that data input by that party is incorrect or should be supplemented.

Section 11 confirms that the national unit or liaison officers may input, access and retrieve data from the Europol information system for the purpose of preventing and combating those crimes which fall within the competence of Europol. There is also provision for limited access to the system by the competent authorities who may directly query it, although any data that is located can only be obtained via the national unit.

Section 12 concerns the use of data in the State and confirms that data obtained from any of Europol's processing files shall only be used to prevent and combat criminal offences and other forms of serious crime. The State is also obliged to abide by any restrictions placed on the use of data although there are some limited circumstances in which restrictions may be waived. Section 12(3) permits the waiving of restrictions in circumstances where a court, legislative body or other body is acting in a supervisory role over the competent authorities. However, such waiving of restrictions requires the prior consultation of the communicating state or body. It should also be noted that by virtue of the definition of "criminal offence" in section 1 of the Bill, the use of data is limited to offences for which Europol is competent.

Section 13 provides for access by individuals to personal data. This provision allows persons to request information as to whether data relating to him or her has been processed by Europol and to have such information communicated to him or her. Grounds for objecting to a disclosure of data are set out under subsection (5) which permits the State to object where it considers that providing the information would likely prejudice the sovereignty, security or other essential interests of the State, prejudice a criminal investigation or criminal proceeding in the State or would prejudice the rights and freedoms of any person. This section replicates, in part, section 6 of the Europol Act 1997.

Section 14 designates the Data Protection Commissioner as the national supervisory body for the purpose of the Bill and the Council decision. This provision gives effect to Article 33 of the Council decision and replicates section 7 of the Europol Act 1997. The national supervisory body is responsible for monitoring the management and processing of personal data by the State in the context of its relationship with Europol.

The section also confirms the authority of the Data Protection Commissioner to access data provided to the Europol information system and the requirement on the Data Protection Commissioner to inform the joint supervisory body of any action taken with respect to the Europol information system. The joint supervisory body is an independent body with the task of ensuring compliance by Europol with data protection principles. The body is made up of representatives of national data protection authorities, including the Irish Data Protection Commissioner.

It should be further noted that, by virtue of section 15, the Official Secrets Act 1963 applies to facts or information which come to the knowledge of any director, member, employee or other person connected with Europol. This provision replicates section 9 of the Europol Act 1997.

Section 17 confirms the validity of acts done in accordance with the Europol Act 1997 or the Council decision, prior to the passing of the Bill. The Council decision establishing Europol applies from 1 January 2010. As has been mentioned, it repealed and replaced the Europol Convention and its protocols. However, existing Irish law gave force of law to the convention and its protocols and it is arguable that, as these instruments have now been repealed, the status of the Europol national unit and its powers as set out in the existing legislation is unclear. Following legal advice, this transitional provision seeks to put beyond doubt the status of the national unit by providing that the acts done by the national unit and liaison officers during the intervening period are valid. The Attorney General has indicated that: "there is no difficulty in providing retrospective validation of anything done by the existing national unit". The remaining provisions are of a standard or technical nature.

Before concluding, I draw the attention of the House to the future of Europol. Europol has been given responsibility for the establishment of the European Cybercrime Centre which will place it at the forefront in the continuing fight against high-tech organised crime. Ireland, through the An Garda Síochána computer crime investigation unit and the staff at the liaison bureau in The Hague, will continue to offer advice and expertise to assist the cybercrime centre when it becomes operational.

In 2013, Europol will publish the serious organised crime threat assessment, or SOCTA. On the basis of this document, the Council of the European Union will determine its priorities and recommendations for the fight against organised crime in Europe.

Also, in 2013, Ireland will take up the chairmanship of the Europol management board which is Europol's governing board. This board gives strategic guidance and oversees the implementation of Europol's tasks. Each year the management board adopts Europol's final budget, the work programme of future activities and a general report on activities carried out during the previous year. These will be submitted to the Council for endorsement and to the European Parliament for information.

I wish to comment on the future regulation of Europol. Article 88 of the Treaty on the Functioning of the European Union provides for a new legal regime for Europol stipulating that Europol shall be governed by a regulation or regulations. While the main policy objective of the new regulation will be to align Europol's legal base with that treaty, it will, undoubtedly, also seek to address any recommendations arising from the recent evaluation of Europol's activities.

The implementation of the Council decision is an important step in ensuring Europol can adapt in a flexible manner without the need for complicated ratification processes by member states. The extension of its mandate reflects the very significant contribution which Europol has made to combating serious and organised crime across borders. Since its establishment in 1995, Europol has evolved to become an essential tool for national law enforcement agencies in their efforts to combat this form of crime. Such crime is increasingly cross-border and without the overall strategic analysis of an agency such as Europol, combating that crime would be a more difficult task.

I thank members for their attention and look forward to the discussions on the Bill. I commend the Bill to the House.

Senator Denis O'Donovan

I welcome the Minister and the Bill's proposals as set out in the legislation. Given what the Garda Commissioner said at the Joint Committee on Justice, Defence and Equality in respect of criminal gangs in Ireland, of which there are 25, there is a huge issue at international level as they are obviously transgressing borders. He mentioned communications and contacts with the Russian mafia and African crime gangs, and communications in the Middle East with established gangs. Therefore, it is imperative for Ireland, as a small island on the periphery of Europe, to be involved in Europol and Interpol and in getting as much international support as possible.

I had a question for the Minister who has left the House. He mentioned a liaison officer who need not necessarily be a member of the Garda Síochána but could be a person from the Revenue Commissioners. Would it be possible for an officer of the PSNI to be a liaison officer and, if not, why?

There were a series of major drug confiscations off the coastline of west Cork, the region where I am lucky to live. One of these confiscations involved a huge consignment of drugs found in Dunlough Bay off the Mizen Peninsula. A number of members of that gang are serving long-term prison sentences. The second was a yacht with a consignment of cocaine from South America which was brought, almost at sinking point, into Castletownbere.

In the Dunlough Bay incident, although many people claimed credit for it, the fact is the criminals involved were out at dawn of day and left my home village of Kilcrohane having put diesel into a petrol engine. Had that not happened, as sure as night follows day, they would have headed off to London with their huge consignment of drugs. I made the point at meetings of Cork County Council many years ago that west Cork was, and still is, a gateway for huge consignments of drugs coming through this country, not necessarily for the Irish market. That is where the Bill, Interpol and international co-operation can be successful.

In the second incident, where the consignment of drugs came in by yacht to Castletownbere, having been monitored from 50 miles out to sea by the Irish Naval Service, an eye in the sky, so to speak, in some part of Spain or Portugal, was able to track the yacht and, through communication, transmit its precise location from when it left South America all the way to Irish waters. That proves how international co-operation prevented a major consignment of drugs getting to our shores. Irrespective of whether it was the intention to land them in Ireland or the United Kingdom, we must be ever vigilant and alert in that regard. Cigarette smuggling is another area where co-operation can help, as well as in the areas of human trafficking, prostitution and so on.

To return to the Dunlough Bay consignment of drugs, it is ironic that three of the culprits who are serving long-term prison sentences in Portlaoise Prison were detected, caught and arrested by local gardaí. Unfortunately, the Garda station at Goleen has since closed and Ballydehob Garda station is basically unmanned. I think the Garda Commissioner told the joint committee last week there was no economic consideration on savings - or, if so, it was trivial - in the closure of rural Garda stations. One of the gardaí who was in plain clothes got a tip-off from a farmer. Were it not for vigilance, an hour later they would have slipped through the net and would have been gone. The closure of rural Garda stations has a negative impact on rural communities.

There is concern in regard to the whole area of policing. It may not be fair to lob these grenades at the Minister of State, Deputy Kathleen Lynch, as it was the Minister for Justice and Equality, Deputy Alan Shatter, I was planning to ambush, but he has taken leave. There is concern about the issue of Garda numbers.

Even though the Garda Commissioner would not admit it, reading between the lines, he is concerned about lack of resources. He is also concerned that the Garda training unit in Templemore has been shut down for the time being and there will be a terrible deficit in two or three years' time. With gardaí retiring, the numbers will decline below the famous 13,000 figure which is of grave concern to us.

I recently heard that a new consignment of Garda vehicles was being purchased. Rather than sending a Garda vehicle from Bandon, Bantry or Clonakilty out to Mizen Peninsula when an incident such as the one I mentioned occurs, it is preferable to have the local knowledge of the local garda, working and living in the community. When someone rings him he knows exactly where to go to make the arrest. The three lads concerned were mingling among a herd of dairy cows west of Schull. The farmer became concerned and rang the local garda, who knew exactly where to find them. They had travelled several miles and were wet. They had resisted arrest for some days and were it not for that sort of local knowledge and local effort, these three men, all of whom are serving sentences in excess of 20 years, could have easily escaped from the jurisdiction. They could have got onto a ferry and slipped away unknown. Local gardaí in their own communities, knowing the local terrain, have a very valuable contribution to make to policing.

As part of a delegation from the Oireachtas Joint Committee on Justice, Defence and Equality, I recently went to Finland and Sweden. Based on my experience of travelling and meeting ministers for justice and senior police officers, the world seems to be becoming a smaller place. It is essential to have international co-operation not just within Europe, but also beyond. While I support the entire thrust of the Bill, my remarks are in criticism of the Minister on other issues. We need to have complete co-operation with other international police agencies in Europe and beyond. It is well known that bulk of the smuggled cigarettes are coming from eastern Europe and Russia. It has been said that less than 10% of the illegal cigarettes available for sale in this country have been captured. While the Garda Commissioner could not confirm or deny this to us when we questioned him, it is well known that a substantial proportion of the illicit drugs coming into the country go undetected. While I do not know how accurate these figures are, I understand that 80% of the drugs that come into Ireland are not detected, which is frightening when we consider some of the big hauls that have been captured. It is a tough battle to stay on top of the 25 criminal gangs operating in places like Cork, Sligo, Limerick, Dublin and other centres. It is frightening to think they have the capacity to do business thousands of miles away. In order to keep on top of these criminals, it is important that we have co-operation with Interpol and this new Europol.

This legislation will copper-fasten something that is in place already. It is important legislation. I apologise to the Minister of State for lobbing a few grenades in her direction. They were targeted at the senior Minister, who, I am sure, would love to return and address the fears I have about rural Garda stations, garda numbers falling and a lack of resources. I might have a chance to do that another day. The Minister of State should not take it personally - it was intended for the senior Minister, who, I presume, knew I was going to launch an attack and slipped away.

Senator Paul Bradford

I welcome the Minister of State, Deputy Kathleen Lynch, and the Bill. I trust she will be sufficiently robust to deal with the situation as outlined by Senator O'Donovan. As I listened to the Senator giving us a lovely meandering geographical tour from eyes in the sky to the dairy farms of west County Cork to the Garda station in Bandon and on to the bays of west County Cork, I was reminded of our former colleague, Mr. P. J. Sheehan, who always gave us such evocative and interesting tours of the countryside during his parliamentary career. Of course the son of the said former Deputy, who is a councillor in Goleen, was one of the people who came across that famous drugs haul a number of years ago - at least he claimed credit for having done so. Perhaps that is how the Sheehan family operated so well on the political front for a number of years.

Obviously I welcome the Bill, which further strengthens what needs to be done throughout Europe in tackling crime. Just as society has changed and Europe has changed, so has crime. Some 20 years ago if we had been discussing crime on this island and co-operation between the Garda and the then RUC, which is now the PSNI, we would have been talking almost exclusively about paramilitary crime. Sadly, some of that continues and needs to be tackled on an ongoing basis. We now have different and, in some sense, more terrible crime, involving illicit drugs, arms dealing and prostitution, all of which need to be tackled. In the Europe of 25 years ago when we had the Berlin Wall, and the Continent was geographically and politically divided between East and West, there was a different type of threat to the security of Europe. Thankfully, that has passed, but every threat is replaced by a new threat and now organised crime, terror gangs, drugs gangs, and practitioners of all sorts of illegalities are continually threatening the individual citizens of Europe in ways that may be small or big.

In the first place the resources required by national police forces must - in so far as possible - be provided and we also need the highest possible levels of co-operation between police forces. This legislation is about ensuring that those structures are in place and I welcome it. The more co-operation we have between the police forces of Europe, the better and obviously results will be achieved. We will never get to read about many of the results because in many cases they do not bring about convictions but rather prevent crimes from being committed by warding off criminals from pursuing certain activities, which is welcome.

At the commencement of his speech, the Minister said Europol was about making Europe safer and obviously we all support that purpose. He outlined some detail of the contents of the legislation. The previous speaker mentioned fuel laundering. I am sure Senator Whelan will speak about the matter, as it is something about which he has previously spoken in this House. Fuel laundering along the Border gives rise to huge losses to the Exchequer. It has been the cause of difficulty for many motorists, who ended up buying an inferior quality fuel necessitating costly repairs to their cars. The Revenue Commissioners are losing countless millions of euro per annum and the progress in tackling this problem has been relatively disappointing. It is great to talk about European security and co-operation at a continent-wide level, but here on our own island of 32 counties and two jurisdictions further progress is needed on fuel laundering. I would like to see the Europol resources and thinking applied in that area.

At the conclusion of this contribution, the Minister highlighted some aspects of the future of Europol.

It shows how we need to change with the changing times. He spoke of the establishment of the European Cybercrime Centre. Ten or 15 years ago, none of us could pronounce the word. Cybercrime was certainly something that one might have associated with "Star Wars" or "Star Trek: The Next Generation", but we are the next generation and must deal with-----

Senator Denis O'Donovan

Dr. Spock.

Senator Trevor Ó Clochartaigh

There are still a few Klingons hanging around.

Senator Paul Bradford

Indeed, there are certainly a few political Klingons, but the Senator is coming our way and need not worry. Obviously, cybercrime must be tackled with modern resources and I welcome the progress that will be made in that regard.

The data protection side of the issue will cause a certain amount of concern to a number of persons. Data protection is a sensitive area. All of us would like to think that any information retained on ourselves would be kept safely and securely and would be deleted and disposed of as soon as it serves no useful purpose to any agency. It is a question of balance. In a perfectly libertarian society where everybody is entitled to do what he or she wishes within the law, and to be as removed as one possibly can be from regulation and monitoring, and Big Brother, the question of data protection and data retention would not arise, but we need such data retention from the point of view of knowing who are the major threats, be they groups, organisations or individuals. The Europol arrangement probably strikes a fair balance between the rights of the citizen to have his or her details protected in so far as possible and the obligations of states and security forces to have access to the sort of information which they require to tackle crime.

I welcome the Bill. It will put in place strengthened regulations. We must welcome any regulation which will result in one less illegal cigarette being sold, one less illegal litre of diesel being sold, one gram less of illegal drugs on the streets of Dublin and one less unfortunate person being trafficked across the State or the states of Europe, and gift the resources to ensure it will be done. The Bill was passed by the other House with ease and I am sure it be similar here. I wish the Minister, Deputy Shatter, well in his deliberations on the matter.

Senator Feargal Quinn

I welcome the Minister of State, Deputy Kathleen Lynch, to the House. The Bill is certainly welcome. I cannot see how anyone would have any objection to it.

I had a friend in the supermarket business in Holland some years ago who was kidnapped and I was impressed at the speed at which the local police were able to move across borders to see if they could identify the criminal. Unfortunately, they were not able to move quickly enough because he was murdered that same day. The reason I mention this is that it is the speed at which they were able to cross borders, and, therefore, the need for Europol and all of the technology that it can provide, that is essential to us. If nothing else, it seems the aim is to be a deterrent in order that those criminals who are thinking of acting in a manner not in the public interest are deterred from doing so because of the speed at which the police forces of the various countries can move and also they way that they can co-operate. There needs to be as much technology as possible if we are to succeed with that. I think of young Ms Madeleine McCann who was kidnapped and disappeared. While she was close enough to other borders - it was in Portugal but close to Spain - the kidnappers could cross borders quickly. If we are to compete with the criminals we must have the same ability to compete as they have.

There was mention of cigarette smuggling. We were visited last week by the retailers who are concerned about it, the scale of which is significant. Senator Bradford mentioned that only a fraction of the amount of cigarettes that come into the country are detected. The issue is not only cigarette smuggling, but counterfeit cigarettes. We can use technology but I do not think the authorities are doing so. I understand that when a container comes into an Irish port, there are only two scanners capable of identifying illegal goods and I am told only one of those is able to work at a time. If this is to work, we must use international co-operation, the best technology, aim at ensuring we have the capability to act speedily and, most importantly, act as a deterrent.

This is a worthy step forward. I understand it will make us more alert and more capable of being able to compete, and we need to do this if we are to protect ourselves in the future. I support the Bill. I think we all support it and hope it is passed immediately.

Senator John Whelan

I, too, welcome the Minister of State, Deputy Kathleen Lynch to the House.

I commend the provisions in this important Bill. It is, perhaps, housekeeping, a sensible piece of legal scaffolding or necessary infrastructure. I am surprised it has taken this long to put it in place but I commend the Minister and the Government for bringing it to this stage.

We enjoy all of the benefits, privileges and flexibility that have been brought to us by a European Union without frontiers and borders, and we have enjoyed the free movement of labour, goods and services. As anyone who has travelled abroad in recent years will be aware, a person can get into his or her car in Ireland and go to a football match in Poznan without meeting any roadblock, checkpoint or border control. Likewise, crime knows no boundaries and criminals certainly do not respect borders.

To some extent, we are coming late in the day to put in place this kind of infrastructure in so far as there has been a borderless Europe for decades. We are playing catch-up in such areas as sex offenders and human trafficking. The drugs gangs are exploiting this opportunity to drive across Europe and into Britain and Ireland unimpeded and unchecked.

As other Members pointed out, it is wreaking havoc in communities. It is not merely an urban problem. While the Garda Commissioner pointed out that the criminal gangs operate out of the major urban centres, I was horrified in recent weeks that a man was shot down in his own home in front of his children in Portarlington, which is not by any means a big town. The impact of such organised crime of drugs smuggling has reached its tentacles into every corner and part of Ireland; it is not only a Dublin, Cork or Limerick phenomenon. We read in the newspapers in recent days of where criminal gangs are turning their hands to skimming credit cards and bank cards, and this is an international pursuit. We must get with it, get smart and get wise, and match up in terms of combating and preventing this crime. It is possible to do so.

Hardly a month goes by without the detection of serious fuel laundering operations along the border with the North. It is damaging, in terms of the loss of revenue to the State but it is also crippling legitimate businesses and making it difficult for legitimate petrol stations and hauliers to operate and match up to such sculduggery. It is high time that we put the resources into this and this begs the following question of the Minister.

To what is extent is the Europol dedicated unit in Garda headquarters in the Phoenix Park resourced? There is very little point in paying lip-service to this type of co-operation without resourcing it.

People who came before the District Court in the midlands for offences such as stalking or sex offences were deported to their native country in the EU rather than being incarcerated here. Is there an exchange of information with the authorities in the countries to which these people are being returned? In the case I have in mind, the person convicted had a string of previous convictions in his native country, but such people are able to arrive in Ireland unimpeded. Are the Garda authorities notified that such a person is roaming the towns and streets of the country? It is a serious matter and not one that would be lost on the Minister of State, Deputy Kathleen Lynch. I would like to have an opportunity to raise it directly with the Minister, Deputy Shatter.

I support the point made by Senator O'Donovan. We speak about modern policing and how it has evolved and that it is not necessary to have bricks and mortar and a Garda station at every corner in every village. I would go along with this, but it does not mean we do not need the personnel. We cannot have the shrinkage that has taken place in Garda numbers and resources and state gardaí are gathering information and intelligence on the ground. One cannot beat local knowledge, and the advantages of the relationship a local garda has in his or her community and organisations were well illustrated by Senator O'Donovan.

It is ironic that we speak about co-operation to prevent transnational crime throughout Europe when, I am ashamed to state, in towns such as Mountmellick people are accosted while bringing their children to school or driving up the streets. Some local shops and businesses have had to put locks and buzzers on their doors so they can allow people enter. We cannot continue to turn a blind eye to this and state we can continue to reduce front-line services. We must make savings, and we are under the cosh from the troika to reduce spending, but we must ask at what stage we enter diminishing returns. One could go through towns throughout the country the size of Portarlington and Mountmellick for a week or a fortnight and not encounter a garda on the beat or a Garda patrol car. This allows criminal elements, including organised criminal elements, to get on with their dastardly deeds virtually unimpeded because there is no one to keep an eye on them.

The cost to the State of criminality, trying to solve crimes and fighting a rearguard action afterwards is greater than ensuring we have a Garda presence in towns. Having gardaí on the beat makes people feel safe and secure in their businesses and on the main thoroughfares. We cannot continue to reduce Garda numbers and suggest it has no impact on deterring and preventing crime, or on the feeling of security of people as they go about their daily routine seeing gardaí, as was traditionally the case, walking the beat in twos and meeting people or going through the town on a rotation in a patrol car keeping an eye out for ne'er-do-wells and criminal elements which would exploit an opportunity.

We have reached diminishing returns in the scaleback of numbers. The Garda Commissioner confirmed to the Oireachtas Joint Committee on Justice, Defence and Equality that a further 1,200 gardaí are due to retire but the Garda training centre in Templemore remains closed. Even if it was reopened next year it would take two full years before we had a new squad of young trained gardaí on the streets. We cannot be dismissive or offhand about this. Serious consideration must be given to this issue by the Minister and the Government. I ask the Minister of State to relay these concerns of people in towns throughout the country.

I welcome the broad thrust of the Bill. I hope it will lead to continued success in deterring criminal gangs operating in and out of the country.

Senator Trevor Ó Clochartaigh

Cuirim fáilte roimh an Aire Stáit. Cé go bhfuil imní orm faoin treo atá cúrsaí póilíneachta ag dul trasna na hEorpa beidh Sinn Féin ag tacú i bprionsabal leis an mBille seo, mar gheall ar an chaoi a bhfuil sé ag déileáil le cúrsaí riaracháin ó thaobh obair phóilíneachta trasna na hEorpa.

The Bill is mostly technical in nature and is intended to change the administrative status of Europol to bring it under the remit of the European Union. This is necessary in line with bringing Irish legislation in line with the European Council decision which brought Europol within the EU’s institutional framework, and it does to some limited degree improve the accountability of Europol to the European structures and potentially to the European Parliament. It is on this basis we will not oppose the Bill.

The Minister of State will be familiar with the concerns that Sinn Féin has about the growing European justice infrastructure. Similar to many other areas of policy, European institutions are taking on competences beyond their original remit and expanding their powers. We believe there is an agenda at the highest levels of the European institutions, and in particular those parts of it not directly elected, to ease us gradually and quietly into a European superstate, something for which there is neither a popular mandate nor popular demand.

The evidence of such a trend, the trend of ever closer union as many of the European Union's top brass would call it, is especially evident in the area of justice. A number of EU justice system features are being developed in addition to the current ones, namely, the European Court of Justice and Europol, which are more characteristic of a state than of a union of nation states. Most obviously, justice as a policy area was removed from the intergovernmental sphere and became an area of community law under the Lisbon treaty. We have seen, or will soon see, the development of a border control agency, a common immigration policy, a European public prosecutor and an incrementally harmonised and integrated justice system, including joint investigation teams and EU-wide arrest warrants.

Sinn Féin does not support the development of EU superstate architecture in respect of justice matters, and for this reason it opposed the EU five-year justice and home affairs harmonisation plan known as the Hague programme, which ran from 2005 to 2010. We do not support the creation of a so-called European legal area with a European criminal code and a European public prosecutor. We believe it is important that nation states retain sovereignty over the area of justice policy. This is not to preclude genuine co-operation and intergovernmental action, but what it does mean is that the primary responsibility has to lie with them.

Notwithstanding this, we have adopted an approach of critical engagement with these institutions, and with these changes in agreements. We will, on a case-by-case basis, decide whether such a change would be in the interests of the Irish people or not, on the basis of whether it respects or fundamentally compromises national sovereignty over justice, whether it is proportionate and necessary, and its consequences for human rights protections, social and economic equality, and minorities.

With regard to the particularities of Europol, Sinn Féin is not opposed in principle to inter-jurisdictional police co-operation in the investigation of serious crimes with a cross-border dimension where it is necessary, where appropriate safeguards and accountability mechanisms are in place, and where it is jointly authorised on a case-by-case basis. We support effective action against cross-border organised crime, including trafficking in human beings and drugs.

Europol's primary focus is on intelligence-sharing between the law enforcement agencies of the EU member states. Previously it has operated as a body which was a separate international institution funded by individual member states. We are now bringing it into the EU institutional framework, which is welcome. The European Court of Justice has had limited jurisdiction over its operations, and it will be now be accountable to the European Union Council of Ministers. I hope the Bill has the capacity to make it more accountable to the European Parliament, the only directly elected EU institution, as recommended in the Council decision.

We have some concerns about the operation of Europol, particularly as it pertains to information about citizens. Information lawfully obtained in the Irish jurisdictions should only be made available to and used by the authorities in another state for a legitimate purpose, that is, for the detection, investigation and prosecution of criminal offences that are - this is the key point - analogous to offences in the Irish jurisdiction or for the prevention of an immediate and serious threat to public safety in another State, provided that a criminal investigation subsequently is conducted. Garda or police intelligence should not change hands for its own sake when there is no criminal investigation, for this potentially violates the right to privacy.

The Schengen information system is Europe's largest security database. It started out principally as an electronic system for migration control and deportations. Such data can also include a list of "persons to be submitted for discreet surveillance ... for the prevention of threats to public security". It therefore has obvious implications for the right to data protection, privacy and other civil liberties.

The new second generation information system, SIS-11 database has been extended to contain biometric data and information on extradition, EU arrest warrants and third country nationals refused entry to the EU. The Government has introduced biometric passports and these biometrics will be stored on the SIS-11. We will all soon be on it. There is no need to request this information from the national authority from which it originates and there is no need to explain to the national authority why it is being requested.

Moreover, Europol will be able to share this sensitive information with third countries, perhaps with the United States, and we are all aware of the abuses that may be carried out in this context. There is a need for safeguards in this regard and full respect for and enforcement of data protection rights. We ask the Minister and the Government to fight this battle at European level.

We can support inter-jurisdictional police co-operation on investigation of serious crimes with a cross-border dimension where there are appropriate safeguards and accountability mechanisms in place. However, we do not support the operation of foreign police forces in the Irish jurisdiction, especially where such forces are not subject to domestic policing oversight and accountability mechanisms and therefore does not support the use of joint investigation teams. The joint investigation team's powers introduced by domestic legislation in 2004 go beyond the existing Interpol and Europol mechanisms for police co-operation and information-sharing.

However, on balance we are happy to support this legislation, given its technical nature, the fact that it is necessary in terms of bringing us into line with the EU and that there is a small improvement in accountability.

Senator Martin Conway

I welcome the Minister of State, Deputy Kathleen Lynch. I too am happy to support this important technical Bill. During his contribution, the Minister, Deputy Shatter outlined in great detail the benefits in terms of the security of the State and of Europe. Over the years we have developed an ad hoc system of co-operation with other police forces, however, under the provisions of the Bill we will create a police architecture that will ensure co-operation and that we are best equipped to fight organised crime. Organised crime will always be one step ahead of the detection and prosecution of crime. Let us hope we are only one step behind because if organised crime gains ground, it will take us twice as long to catch up. We co-operate effectively with the PSNI in Northern Ireland. We are joined at the hip in terms of dealing with crime on both sides of the Border. I respectfully suggest we have an excellent working relationship with the police force of Great Britain.

One often hears of a person absconding to Spain or France after committing a crime in Ireland. Let us hope that absconding to France or Spain becomes redundant as a result of the provisions of the Bill. The only way is to co-operate. We are an European unit. We have been very successful in terms of the free movement of persons, goods and services.

Following the Second World War, when Europe was nearly ripped apart, the European project was initiated. Who would have thought back in the late 1940s that by the turn of the next century, we would be where we are now? There is a determination that European states will work together as a friendly neighbourly unit and will be able to compete effectively with the United States, China and other major conglomerates. We probably need to improve the structure to co-operate in terms of crime prevention and detection. That is why this Bill is very important. I am very heartened that it is being supported unanimously.

We are all working against crime. We are determined to break organised crime. This city has suffered at the hands of organised crime and drug dealers. At a recent sitting of the justice joint committee the Garda Commissioner outlined in great detail the 21 criminal gangs operating out of the cities with spurs in every town and village. He also advised us that these gangs have close links with organised gangs throughout Europe and as far away as Russia. The level of sophistication of these criminal gangs is remarkable. Since the murder of Ms Veronica Guerin in 1996 we have seen how some of these criminals have enjoyed a luxurious lifestyle in places such as Spain. We have also seen the Spanish authorities apprehend some of the most high profile gang leaders who had absconded from Ireland and bring them to justice. The co-operation is evident, but we need to bed it down and develop it and bring it to a higher professional level in order to ensure that neither Spain nor Ireland are attractive destination for criminals, as we are all working as a single entity to take on terrorists, drug dealers who destroy the lives of thousands of citizens throughout Europe.

I am very happy to support this important Bill. We will see the benefit of this legislation in the years to come.

Minister of State at the Department of Justice and Equality (Deputy Kathleen Lynch)

I thank all Senators who contributed to the debate and acknowledge the widespread support for the Bill.

I will deal with the direct questions put by Senators Denis O'Donovan and John Whelan. It will be an issue for other countries to decide whether they will designate a liaison officer. It will be a matter for the English authorities to decide whether they will designate an officer from the PSNI to act as a liaison officer.

I am sure Senator O'Donovan knows the answer to his question on Garda stations. The resources for Garda stations in rural Ireland is a matter for the Garda Commission, but I am sure the Senator will raise the matter again with the Minister. I will convey Senator O'Donovan's concerns to the Minister.

Senator Denis O'Donovan

A leading Garda representative member of the force said that the Minister for Justice and Equality, Deputy Shatter, had a gun to the Commissioner's head on these issues. However, I do not think he ever carried a gun.

Deputy Kathleen Lynch

I am sure the Minister is far more persuasive and does not need to use that type of threat.

Senator Denis O'Donovan

"Persuasive" is a kind adjective.

Deputy Kathleen Lynch

Senator Whelan asked about the staffing of the Europol national unit. There are three staff in the Europol unit in the Phoenix Park, a detective sergeant and two detective gardaí.

The unit comes under the direction of the head of the Europol national unit, who is a detective chief superintendent. While the unit is considered to be adequately staffed, I understand the reason for the question. If legislation such as this Bill is to be passed, as the Senator quite rightly pointed out it is important that it be adequately resourced

I again thank Members for their contributions. The issues raised will be brought to the attention of the Minister and no doubt will be discussed further on Committee Stage. I accept this is a technical Bill that may have little operational impact on existing arrangements between Europol and the State. However, this Bill provides an opportunity to remind oneself of the threat of international crime and the importance of co-operation between the law enforcement authorities of this State and international partners such as Europol. In the case of the State and its particular circumstances, my reference to "international" reminds one there is a Border very close to this location, which also must be protected in terms of co-operation and information. It should be remembered the Council decision was motivated primarily by the need to introduce a more flexible legal basis for Europol and it achieves this aim. While there have been some changes to the provisions relating to the governance of Europol, the most significant change from an operational perspective has been the extension of Europol's competence to include all forms of serious crime when two or more European Union member states are affected. Importantly, the need to show evidence of organised criminal activity has been removed. This is an important development in so far as it removes an unnecessary obstacle to Europol's involvement in the investigation of international criminal activity. However, it also reflects the increasing emphasis at European Union level on closer co-operation between member states.

Europol is an investigative resource for member states, the effectiveness of which is determined by the action and response of member states to information from that organisation. Ireland has an effective relationship with Europol, which was evidenced through some of the examples the Minister already has outlined in his earlier contribution. The importance of cross-border co-operation in the fight against crime cannot be underestimated and the European Union is continually seeking to improve information exchange between member states. While one sometimes imagines or envisages that this pertains to major international gangs, which are all covered in this respect, as Members, including Senators O'Donovan, Whelan, Bradford and Conway, have outlined, it also is about matters such as fuel laundering, cigarette smuggling and other activities one sometimes thinks of as being almost benign but which in fact have a huge impact on revenue, of which the State is desperately in need.

In 2008 a Council decision was made which is known as the permanent decision. It is a further step in European co-operation in the fight against crime and terrorism. The decision allows for shared access by member states to national databases of DNA profiles, fingerprint data and vehicle registration for the purposes of criminal investigation. In so far as it relates to DNA profiles and fingerprint data, the forthcoming criminal justice, forensic evidence and DNA database system, Bill will make the necessary legislative provision. This Bill is being drafted and due to be published shortly.

I also wish to mention briefly the steps taken at European Union level to improve the exchange of information in respect of criminal records and this is an issue in which Senator Whelan was interested. Under a 2009 framework decision in which an EU national is convicted in one member state, that state shall automatically notify the member state of which the convicted person is a national. Legislation to give effect to this framework decision also is currently being drafted. Notwithstanding these and other developments over the years, Europol has, since 1995, proven its effectiveness in supporting national law enforcement agencies in their efforts to combat crime. Recognising that support, the Council decision to which this legislation will give effect provides Europol with an up-to-date legal basis, placing it on a par with other European Union agencies in the area of police and judicial co-operation. I welcome the support Members have given to the Bill which recognises the important role that Europol plays in supporting law enforcement authorities across the European Union in fighting crime. I commend it to the House.

Question put and agreed to.

Seanad Éireann díospóireacht -
Thursday, 29 Nov 2012