Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I have circulated a background note and also a paper with comments on some of the key areas that I want to bring to the attention of the committee.

I thank the committee for the invitation to brief the members on what was discussed at the EU Justice and Home Affairs Council which took place on 5 and 6 June; I attended both days of the meeting. Information notes have been circulated and I hope the information has been of assistance. The agenda for the meeting was lengthy. There was a range of information and any other business points on which there was little or no discussion. This morning I will concentrate on the main items of substance, particularly those of relevance to Ireland. I will give the committee a brief flavour of the discussions on these items and provide an indication of Ireland's position on the relevant issues, where applicable.

The meeting commenced on the Thursday morning in the Home Affairs formation and the first substantive issue for discussion was the proposed Europol regulation on which a general approach was agreed by the Council. Ireland is broadly supportive of the Europol proposal and exercised its discretion to opt into it under Article 3 of Protocol 21 to the treaties.

Equally, Ireland had no particular concerns with the Presidency compromise text, as it goes a considerable way towards addressing its initial concerns regarding the proposal. In particular, like many other member states, Ireland was unhappy with the Commission's original proposals to absorb the European Police College into Europol. This now is not happening and those provisions have been removed under the general approach that was agreed by the Council on the Europol regulation.

The next two items of relevance to Ireland from a policy perspective concerned counter-terrorism policies and there was a lot of discussion on this issue at the meeting. The EU's counter-terrorism co-ordinator updated Ministers on developments relating to the issue of foreign fighters and the ongoing efforts at EU level to assist member states in addressing this problem by way of prevention, information exchange, criminal justice responses and co-operation with third countries. The foreign fighters phenomenon has to date seen an estimated 2,000 European citizens travel to fight in foreign conflicts, particularly the conflict in Syria. There is no evidence of any slowdown in fighters heading to Syria. There is serious concern over the radicalisation and security risks these individuals may pose on returning to their home countries in the EU. The dangers involved have been starkly illustrated by the recent atrocity in the Jewish Museum in Brussels. To date, approximately 30 individuals have travelled from Ireland to the conflict zones in question and there have been three known fatalities. The Garda is monitoring the situation and in line with best international practice is actively engaging with those who have returned from Syria. Its overall assessment, however, is that the threat to Ireland from international terrorism remains low. The next and closely related item was the adoption by the Council of a revised EU strategy for combating radicalisation and recruitment to terrorism. In June 2013, Ireland's EU Presidency had secured the agreement of member states that the strategy should be updated. This was prompted by concerns that the existing strategy, which dated back to 2005, had not kept abreast of recent developments and in particular, the phenomena of lone wolf terrorists and foreign fighters. The new strategy provides a comprehensive set of options for member states to consider in addressing the threats of radicalisation and recruitment to terrorism, both domestically and in the wider context.

The Home Affairs session was followed in the afternoon by a joint session involving both Justice and Home Affairs Ministers. The first item for discussion was future developments in the Justice and Home Affairs, JHA, area. This arises from the need for a successor to the Stockholm programme, which expires at the end of 2014. In this context, Article 68 of the Treaty on the Functioning of the European Union provides that "the European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice". The intention is that the guidelines, which are due to be adopted at the European Council meeting which takes place tomorrow and Friday, should shape future work in the JHA area between 2015 and 2020 and will comprise the new agreed programme of priorities. One point made by Ireland and a number of other member states was that a huge legal framework has been put in place in the JHA area over the past ten to 15 years. From the outset of the year-long debate within the Council on the future developments, Ministers were united in the view that a period of consolidation and reflection was required. At the discussions, this became clear and Ministers once again stated they believed the top priority for the coming years should be to fully implement and evaluate the framework that was in place and to ascertain what is working well and what required further attention.

To give an example, Ireland recently completed the legislative work on the DNA database and obviously international co-operation is an important part of that. It is an example of where the legislation is in place in various countries and to focus somewhat on its implementation; it is a question of monitoring how that legislation works across the Union. Having said that, Ireland and others stressed the guidelines should be flexible enough to allow for further legislative measures where there is clear and objective evidence that these are necessary and that any additional costs are justifiable. Council consensus or near consensus has also been reached on a number of other themes that should inform the strategic guidelines and these include cybercrime, human trafficking and improving the links between internal and external JHA policies. This pertains to better co-operation on the foreign affairs side and the justice and home affairs side at an internal level. In general, Ireland is satisfied with how the Council debate has progressed and that its outcome reflects most of the main priorities and concerns it has expressed since the debate began.

The next item under discussion was on the ongoing preparations for the United Kingdom's impending opt-out of all pre-Lisbon treaty policing and criminal justice co-operation measures and its simultaneous application to rejoin 35 of these measures. As members are aware, the United Kingdom has opted out but has chosen to opt back in to 35 of the measures. This is because last year, the United Kingdom exercised its unique discretion under Protocol 36 to the treaties to opt out of all such measures on 1 December 2014, this being the date on which the measures become subject to the jurisdiction of the Court of Justice of the European Union and the Commission's oversight and enforcement procedures. The protocol also provides that the UK may, as I stated, rejoin some of the measures and in this regard, Protocol 36 provides that the UK must reach agreement with the Council in respect of Schengen measures and with the Commission in respect of non-Schengen measures. A "Friends of the Presidency" group was established by the Hellenic Presidency in February to address all of the legal and technical difficulties that a UK withdrawal would raise. At the Council, the Hellenic Presidency reported that its work on agreeing the relevant lists of measures, that is, the agreement about the measures into which the United Kingdom would opt back, had been proceeding satisfactorily. I can confirm to the joint committee that last week, the UK Government reached an understanding with the Commission on the 35 measures it will opt back into on 1 December. This is critical from Ireland's point of view. The biggest concern of everybody at the meeting and of all the stakeholders was to avoid the risk of any legal or operational gap between the UK opting out of particular measures and opting back into them. A legal formulation needs to be found which will ensure a seamless transition on 1 December and this work will be taken forward by the incoming Italian Presidency. This obviously is a critical issue for Ireland and if members are interested, I can comment further on it later on. The measures into which the United Kingdom has agreed to opt are important from Ireland's point of view because it means co-operation can continue on policing and criminal justice matters. As I mentioned in my note to members, the areas into which the United Kingdom has opted include the European arrest warrant, Europol and a range of mutual assistance measures, including the Naples II Convention on mutual assistance in customs matters.

This issue was followed by a discussion on the fallout from the recent decision of the Court of Justice of the European Union to strike down the data retention directive on the basis of incompatibility with the EU's Charter of Fundamental Rights. The European Commission is examining the judgment, including its implications for other measures and proposals, and the incoming College of Commissioners will examine the question of bringing forward a replacement data retention proposal. As the joint committee is aware, the legislative basis in Ireland for implementation of the data retention directive is provided in the Communications (Retention of Data) Act 2011. The possible implications of the Court of Justice of the European Union's judgment for the 2011 Act are under consideration at present. However, although the European Union basis for the Act now has been removed, it remains in force unless the High Court finds it unconstitutional.

The next item was the adoption of Council conclusions on the EU anti-corruption report, which looked in detail at each country. While it did not make particular recommendations across the Union, it went into detail on what was the position within each member state in this regard. Ireland welcomed the publication of the Commission's anti-corruption report as a first step in the further development of a European Union response to the problem of corruption. At the same time, Ireland submitted that significant improvements can be made to the methodology of the report in future, including more consultation with member states. Ireland also seeks progress on the evaluation of EU institutions themselves and in this context, an acceleration of the process of EU accession to the Council of Europe's Group of States against Corruption, GRECO, which is generally perceived to be operating at a very high level in this area. The joint session concluded with presentations on the annual reports of the EU's Fundamental Rights Agency and of the European Monitoring Centre for Drugs and Drug Addiction. Both reports obviously are available online and provide a good summary of the challenges in Europe with regard to dealing with the drugs issue in terms of availability, supply and treatment issues and on how states are doing.

The Council resumed the following morning in its justice format, the first item being the agreement of a general approach on the proposed directive on procedural safeguards for children suspected or accused in criminal proceedings. I was pleased to inform the Council that, while Ireland had not opted into the proposal as presented owing to concerns relating to the functioning of our legal system, the matter had been reconsidered in light of recent domestic developments. I refer particularly to the attendance of a solicitor when suspects are being questioned. I expressed the hope that Ireland would be in a position to opt into the measure as soon as possible after its adoption, subject to the approval of both Houses of the Oireachtas.

The Council discussed the structural aspects of the proposed European public prosecutor's office, EPPO. Ministers confirmed the principles of a collegial structure for EPPO as a basis for further discussion. They also confirmed the principle that the EPPO should have a priority competence to investigate and prosecute offences affecting the Union's financial interests. Members will be aware that Ireland has not opted into the EPPO proposal as presented by the Commission, owing to concerns over its implications for fundamental aspects of our criminal justice system. However, we are engaging constructively in the negotiations with a view to possible participation in the longer term depending on the final outcome of negotiations. What I can say is that a collegial model would be more conducive to Irish participation in EPPO than the hierarchical model proposed by the Commission. That view was shared by quite a number of member states.

The next item comprised a discussion on aspects of the draft Eurojust regulation, particularly the structure and governance arrangements for the agency. In this regard, it was agreed that the revised text prepared by the Presidency should form the starting point for further discussions at expert level. While supporting the revised governance structure, a number of Ministers, including myself, made the point that the overall Commission proposal does not give full weight to the distinct differences that exist between criminal justice systems in the Union. The proposal, particularly Article 8, which prescribes certain powers for national members of Eurojust, is problematic for Ireland and, as such, we have not opted into the proposal. However, we will consider doing so if the measure as finally agreed is sufficiently compatible with our criminal justice system. As the committee can see, in a number of areas the issue that arises is a question of the compatibility of our justice system with some of the proposals being put forward.

The general data protection regulation was considered next. The Council agreed a partial and conditional general approach on key aspects of the draft general data protection regulation, including the provisions on territorial scope and on international data transfers. Ireland was supportive of that approach.

The Council also held an orientation debate on the one-stop-shop provisions of the draft regulation on the basis of a Presidency proposal that outlined a compromise approach developed in recent working party discussions. There was a lively debate about how data could be shared across the Union. The approach would give the data protection authorities of individual member states a greater say in dealing with complaints made by their citizens against data controllers that operate in their jurisdiction but that are headquartered in another member state. At the same time, the essential principle of the one-stop shop, which is that businesses operating in multiple member states need only deal with a single national data protection authority, would be preserved. Ireland has been a strong advocate of the one-stop shop and, in common with a majority of member states, we are generally happy with the direction in which the discussions on this important matter are proceeding.

There was a short update on the proposed data protection directive which, along with the aforementioned draft regulation, forms part of the data protection reform package launched by the Commission in January 2012. The proposed directive sets out new data protection rules in respect of personal information collected and shared by law enforcement authorities for the purposes of detecting, investigating, prosecuting and preventing crime. Working party discussions on the proposal have been proceeding at a slow pace, with many member states still unconvinced of the merits of replacing the relatively recent framework decision that governs this area. Ireland is generally supportive of the proposal.

The final substantive item on the agenda was the proposed insolvency regulation, on which a general approach was reached on the understanding that some outstanding technical provisions would need to be re-examined by the relevant working party to ensure their clarity and accuracy. Ireland supported the general approach. Overall, Ireland recognises the proposal as an important contribution to modernising EU cross-border insolvency procedures with a view to assisting economic recovery and supporting a second chance for viable businesses and individuals. The priority afforded to the dossier by Ireland's Presidency of the Council of the European Union, under the former Minister for Justice and Equality, Deputy Shatter, gave the measure a strong political impetus from the outset.

I thank the members for their attention. I hope that gives the committee a good summary of the various issues that were discussed at the Council meeting and Ireland's approach to them.