Oireachtas Joint and Select Committees
Wednesday, 16 October 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Scrutiny of EU Legislative Proposals: Discussion with Department of Justice and Equality
I ask everybody to ensure their mobile telephones are switched off completely. Silent mode is not enough as it interferes with the sound system.
The purpose of this meeting is to receive a further briefing concerning two EU proposals and to allow the committee to consider any implications these may have for Ireland. These proposals are COM (2013) 534, proposal for a Council regulation on the establishment of a European public prosecutor's office, and COM (2013) 535, a proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Co-operation, Eurojust. Members will have received briefings on these two proposals.
I welcome Mr. Andrew Munro, Mr. David Fennell and Ms Una Murphy from the Department of Justice and Equality. Before Mr. Munro addresses the meeting, I draw the witnesses' attention to the question of privilege. Witnesses are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
I invite Mr. Munro to make his opening statement on these two proposals. He might tell us what he makes of them and what they are all about. We will have a question and answer session afterwards.
Mr. Andrew Munro:
Thank you very much, Chairman. My colleague, Mr. David Fennell, will deal with the Eurojust proposal, while I and my colleague, Ms Una Murphy, will deal with the proposal regarding a European public prosecutor's office, or EPPO. We have an opening statement on the latter proposal.
The concept of a European public prosecutor's office has been discussed for more than 20 years. The rationale underpinning it is that the Union needs to be able to protect its interests directly as the member states' efforts to prosecute fraud successfully are insufficient.
In the explanatory memorandum to the proposal the Commission states:
The present situation in which the prosecution of offences against the Union's financial interests is exclusively in the hands of the authorities of the member states is not satisfactory and does not sufficiently achieve the objective of fighting effectively against offences affecting the Union budget.Many of the difficulties faced in tackling cross-border offences in particular can, it is argued, be obviated by having a central body at EU level that is empowered to operate across member states' borders. Article 86 of the Treaty on the Functioning of the European Union provides for the possibility of an EPPO to investigate and prosecute offences against the Union's financial interests.
In a reflection of the challenging nature of the concept, Article 86 provides for a Council regulation involving a special legislative procedure requiring unanimity. In other words, it is not the ordinary co-decision measure where the Parliament is an equal partner in the legislation. It is also one that does not depend on qualified majority voting; it requires unanimity. In the absence of unanimity among member states, provision is made for the establishment of the EPPO on the basis of enhanced co-operation by at least nine member states.
The proposed regulation is a complex measure with significant implications from a legal and practical perspective for Ireland. Whether we participate in its adoption and implementation, or whether we just interact with the EPPO, if it is established, as a non-participating state, it will be challenging. The proposed regulation would provide for the first time for an authority from outside this State to direct criminal investigations and prosecutions. The model of investigation and prosecution would see the prosecutor, not the police, initiate and manage investigations. The European public prosecutor would, for example, order the arrest and interview of suspects, order that search warrants be sought and executed, etc. This is quite different from the standard Irish model where members of the Garda Síochána initiate and manage investigations and present their findings to the Director of Public Prosecutions, who then decides whether to prosecute.
The issue that has gained most attention in discussions so far at EU level is that of the structure. The Commission's proposal envisages a structure with a European public prosecutor at the centre supported by four Deputies. Each participating member state would nominate European Union delegated prosecutors to carry out most of the front-line work of supervising investigations and managing prosecutions in member states. While European Union delegated prosecutors would wear two hats, that of a national prosecutor and of a European Union prosecutor, it is clear they would be subject to the authority and control of the European public prosecutor. The proposal envisages exclusive competence for the EPPO over offences affecting the financial interests of the Union while also providing for the EPPO to deal with ancillary offences in certain circumstances.
The proposal provides for member states' criminal procedure law to apply in general, yet where provision is made for any matter in the draft regulation, the regulation shall prevail. Of interest in this regard is Article 30 which requires evidence presented by the EPPO to be admitted in court even if national laws provide different rules for the collection and presentation of evidence. I would be happy to assist the committee with any queries it may have on the matter while bearing in mind the statutory strictures on expressing opinions on the merits of Government policy.
I thank Mr. Andrew Munro and Ms Una Murphy for their help. I have read the briefing. There would obviously be a concern around subsidiarity. The Department of Justice and Equality has not specifically pointed it out but it has, as the witnesses have done, pointed out the practical issues of implementation. From a broader point of view, the concept of a European constitution and us all being citizens of a new European state did not proceed. It was rejected by people in France and Holland and, in fairness, while it was endorsed by a couple of countries, it did not proceed further. We are citizens of Ireland. We are members of the European Union but we are citizens of this State. We have a Constitution in this State and we expect the laws to be upheld. I would have grave concerns. I agree with co-operation between the Judiciary and our police forces to combat European-wide threats, particularly as specified by Eurojust which also deals with this area. I would be concerned about people co-operating and sharing intelligence and evidence emanating in Ireland but not at the European level. My view is that we should flag a subsidiary concern in Ireland, as has been done elsewhere.
I know there are certain things on which one can and cannot comment. The Deputy's main focus is how it would work. I should say to Deputy Mac Lochlainn that the subsidiary issue is an issue for us and for us to comment on.
Mr. Andrew Munro:
As the Chairman said, the question on subsidiary is a matter for the competence of the Houses, particularly in relation to protocol 2 to the treaty. As I said in my opening remarks, it is very challenging. It marks, as with any measure, a degree of transfer of sovereignty and control to the Union in a particular area any time we agree a new measure at EU level. It is particularly challenging in the ways that I mentioned. It would require us to turn our investigation and prosecution system upside down, to some extent, in that it would now require to be prosecutor led. It would require change to our approach to criminal procedure law and it would see an external prosecutor operating within the State for a time. These are things that are relevant to a judgment on subsidiarity. The Government has not taken a particular view on that issue. I would not seek to influence the decision of the Houses in relation to it but it is certainly a relevant question.
I thank the officials for their work in this area. Like Deputy Mac Lochlainn I have a view, having read the material. I think we should put forward a reasoned opinion on the breach of the principle of subsidiary involved in the setting up of the EPPO. I am very taken with the British House of Commons report. I have a specific question. Looking at the report of the House of Commons and also the justice committee of the Scottish Parliament, which is quoted and which arrived at a particular conclusion, I believe there is a substantive objective issue. I do not know if the witnesses can comment on this because it is a borderline political issue. The conclusion of the Scottish committee quoted by the House of Commons was that the committee did not consider the establishment of the EPPO to be necessary to achieve the stated objective of tackling EU fraud and that it had concerns that the Commission had not explored sufficiently whether action short of a super-national agency would be capable of delivering effective protection against EU financial fraud. There is a suggestion, which the House of Commons did not go into, that more developed co-operation between OLAF and Eurojust could deliver an effective means of protecting against EU financial fraud. Perhaps the witnesses would comment on that issue. There is a certain value judgment but there is an objective issue about whether existing agencies are capable of delivering effective protection against financial fraud at EU level.
Mr. Andrew Munro:
Some of the arguments advanced by the Commission and some of the things that have been discussed in the Council working group touch on the point raised by the Senator. One argument I have heard is that perhaps more can be done in terms of preventing fraud. It is a truism to say that any system in place can be tweaked to improve it and make it work better. Much effort goes in at national level. For example, in terms of the biggest volume of payments in the agricultural sector, of the order of 23,000 inspections or checks are conducted annually on the system within Ireland alone. Therefore, much work is done on the preventative side and at administrative level.
I could not comment specifically on whether there is scope for more and better co-operation between OLAF and Eurojust. My guess is that every system could, perhaps, be tweaked to work better. The suggestion has been made that when cases go through the administrative process in OLAF, OLAF finds there is a criminal issue at stake and it is referred back, the Commission's position is that the level of success in terms of prosecutions in member states following on from that is not what it should be. If we look at the figures, not specifically relating to fraud against the interests of the EU, from the Director of Public Prosecution's report for last year for fraud cases finalised, we find that the success rate in terms of cases that were prosecuted was 100% last year, with 19 cases resulting in conviction. I believe it was 95% the previous year. It is a very high number of cases when there is a decision to prosecute and they go ahead. It is difficult to draw a particular conclusion because we do not have any set of figures broken down between EU fraud and other types of fraud. Certainly at the discussion at member state level one will hear other member states maintaining that their systems are effective and that they are successfully challenging these issues. I agree that more co-ordination between member states might be helpful but whether the proposed model needs to go that far is the focus of the discussion to some extent and also how much centralisation and harmonisation is needed on this measure.
How will the European Public Prosecutor Office, EPPO, function in each member state? Will files be referred to it from Europol, from the Garda Síochána or the PSNI? Who takes the prosecution in the individual jurisdiction? Will it be handed to the Office of the Director of Public Prosecutions in the relevant jurisdiction? Could Mr. Munro tell us how it in envisaged such an office would function in practical terms?
Mr. Andrew Munro:
In very simple terms, the regulation provides for anybody who becomes aware of fraud against the interest of the European Union to report it to the EPPO system. There would be an obligation on national authorities that become aware of fraud to report it to EPPO. The proposal provides for exclusive competence for the EPPO over cases of fraud against the interest of the Union. In the Irish context, the Director of Public Prosecutions would not have competence but it is envisaged in the proposal that every member state that participates would nominate at least one if not several European delegated prosecutors. Germany has a federal system and as a result there may be several European delegated prosecutors, EDPs for each of the different landers because of the volume of cases. If Ireland were to participate we would have to nominate at least one European delegated prosecutor to that office. When a report would come in to the office, it is envisaged that an investigation directed by the Irish EDP would direct the Garda Síochána to investigate it and produce a report.
Mr. Andrew Munro:
The European delegated prosecutor would be a qualified prosecutor and would have all the functions and competences of a national prosecutor. This is a challenge also in that the office holder would have to have in law the competence and powers of the Director of Public Prosecutions or equivalent to the DPP. This is what is meant by the term "two-hatted", that at the one time the person would be a prosecutor in terms of Irish law in this case and a prosecutor in terms of being part of the European Public Prosecutors Office, but in terms of the control in running any EU fraud case, the delegated prosecutor would be under the supervision and control of the European Public Prosecutor's office. The delegated prosecutors would not operate as independent entities or members of a college, they would be under the control of the European Public Prosecutor. The proposal under this regulation envisages that in certain cases the European Public Prosecutor, the central authority, would act directly in national courts. By the proposals under this regulation they would have to be conferred with the power to prosecute in an Irish court. It is not clear in what circumstances this would apply but perhaps in cases relating to European officials or such like, they might be taken on directly by the European Public Prosecutor, so that those appointed would potentially appear on the ground and ask that such a suspect would be interviewed or a search warrant sought and executed and direct that a prosecution would be brought against a person. There is inner control from the European Public Prosecutor's office, in that it envisages generally decentralisation to the extent that the European delegated prosecutor in the member state would probably be an Irish prosecutor with two hats but would be under the direction and control of the European Public Prosecutor.
In the main, the cases will be heard in the Circuit Court. While there is no de minimis threshold, the likelihood is that they will be concerned with more serious cases involving a trial on indictment. Part of the discussions among member states is the question of exclusive competence, and if it is pragmatic for the European Public Prosecutor to have exclusive competence over even the most minor cases, the type of cases that would only be brought to the District Court because it is of such minor value. It is open to question as to whether that is an efficient model. That is also forming part of the discussion. The majority of serious fraud cases do not go to the Central Criminal Court, they go to the Circuit Criminal Count as that is where the jurisdiction lies.
I thank the officials for appearing before us this morning. Is there a perception that member states are not doing enough to combat the type of fraud they are hoping to tackle and is that the reason this proposal is on the table?
Mr. Andrew Munro:
In short, the answer is "Yes". I quoted in my opening statement the line from the explanatory memorandum in which the Commission states: "[T]he present situation, in which the prosecution of offences against the Union’s financial interests is exclusively in the hands of the authorities of the Member States is not satisfactory and does not sufficiently achieve the objective of fighting effectively against offences affecting the Union budget". That is the rationale underpinning the proposal.
Deputy Collin's question raised the very practical issue as to how this would work. One of the main reasons there has been concerns about breaches of subsidiarity, not just from the only other common law jurisdiction, Britain, but also from countries such as The Netherlands, is because the EPPO and the EPPO deputies would have powers of investigation as well as prosecution. Is it not envisaged that they would be prosecutors in that sense, that they would depart from our model of prosecution so that they would have control not only over prosecution of the relevant offences but over investigation, which would be a significant departure from our current process, where the process of investigation is independent of the prosecution process?
Mr. Andrew Munro:
Absolutely, Article 18 deals with conducting the investigation and Article 26, which deals with investigation states: "The European Public Prosecutor’s Office shall have the power to request or to order the following investigative measures when exercising its competence:". It then lists from (a) to (u) of everything one can think of that one might want in terms of an investigative power from interview, search, production of documents and so on. It is a model that is very different from the one we operate in Ireland.
It also provides difficulties for other member states that have a role for an investigating magistrate, where it is not all in the hands of the prosecutor. That is also a complication. Some of that is reflected - certainly the centralisation of control is reflected in the debate in the Justice and Home Affairs Council last week around structure, in which many member states are advancing the argument for the structure to be more collegial, which would see more power left to member states and their representatives in a college in which there would be a more co-operative rather than a centralised approach.
Mr. Andrew Munro:
Yes. The implications for us would be particularly challenging. Let us take, for example, the power of arrest for the purposes of investigating an offence. That power of arrest and most of the powers that are given to member of the Garda Síochána in statute are conferred on individual members and it is an individual member who forms a suspicion, which allows a court directly to interact with the individual member of the force and examine whether the arrest was justified. The model we are discussing does not allow the Garda Commissioner to order individual members to arrest that person. It will involve considerable change for us to amend it. It is possible to change the system. What is proposed is quite a different model from the one we operate.
The Commission has given as one of its reasons for bringing this in is that EU fraud is not a priority at national level and is not prosecuted satisfactorily by member states, including OLAF referred cases. The conviction rates have been uneven across members states and ranges from 20% to 90%, but Mr Munro states it is almost 100% in Ireland.
Mr. Andrew Munro:
To be very clear Chairman, when I was speaking about 100%, I was referring to outcomes in terms of all fraud cases, regardless of whether they involve fraud against the EU interest.
While not many statistics are available in this regard, the 2010 OLAF report notes that four of the cases processed by it were referred on to Ireland on the basis that criminal activity may have been involved. From what I can ascertain from the figures in the 2010 report, prosecution was directed in one of these cases. While I do not know the reason prosecutions did not take place in the other three cases, the Director of Public Prosecutions may not direct prosecution in a case for a number of reasons, for example, insufficient evidence, witnesses not being available and so forth. The Director of Public Prosecutions has discretion in this regard.
An issue arises in regard to the assertion that member states do not take seriously allegations of fraud against the European Union. I have no evidence, and there is no evidence to suggest, the Director of Public Prosecutions does not take seriously fraud against the European Union. To some extent, the Irish system is unconcerned about who is the victim, whereas in some other member states there is a very important role for the victim and the complaint in the system of criminal prosecution. That is not the case here. While it helps if one has a complaint and witnesses, if the Garda Síochána submits a file to the Director of Public Prosecutions, there is no evidence to suggest the latter is in any way less interested in fraud against the European Union than fraud against anyone else.
Mr. Munro indicated that discussion on the establishment of a European public prosecutor's office has been ongoing for more than 20 years. The ostensible purpose of such an office would be to improve efforts to combat fraud across the European Union, which many people consider to be insufficient. I am surprised that this is the case given that issues such as fraud are now taken more seriously than they were ten years ago.
I am concerned that the European public prosecutor's office is being used in a broader political game. We appear to be moving towards the formation of a super-state. People here need to keep an eye on Europe because sections of society believe the European Union is moving in the direction of becoming a super-state. The establishment of a European public prosecutor's office could be one more piece in that jigsaw. Is this, as opposed to the need to address fraud, the real agenda here?
Mr. Andrew Munro:
It is difficult for me to comment on that issue as it would involve trying to analyse the political motivation of other people. Certainly, one of the effects of establishing a European public prosecutor's office would be a transfer of sovereignty. The Union would acquire some more of the attributes of a state. However, the motivation, as set out in the European Commission's memorandum, is to address concerns arising in the area of fraud.
The House of Commons makes a very interesting point in this regard. It notes the following: "In the explanatory memorandum, the Commission's subsidiarity analysis does not consider whether the stated objectives are necessary, only that they can better be achieved at EU level." The issue, therefore, is whether the proposal is necessary and if the stated objectives will be better achieved by this means.
If members have concluded questions and comments, I ask Mr. Fennel to brief the joint committee on the second proposal.
Mr. David Fennell:
The Commission has published a proposal for a regulation on Eurojust, which seeks, inter alia, to harmonise the status and powers of national members. The draft, as it stands, is problematic for Ireland. To provide a brief background to Eurojust, the organisation was established in 2002 to facilitate co-ordination and co-operation between national investigation and prosecution authorities in dealing with cross-border crime. Each member state appoints a national member, assisted by deputy and assistant members. Reflecting the prevailing civil law ethos of most member states, most national members are investigating judges and prosecutors. Ireland has a national member assigned by the Director of Public Prosecutions, essentially on a part-time basis, who does not exercise any investigative powers and operates more as a contact point and liaison officer.
Article 8 of the draft regulation provides that national members "shall" have certain powers, namely, to facilitate and support the issuing and execution of mutual legal assistance requests; to contact directly and exchange information with competent national and international bodies; to participate in joint investigation teams; to order investigative measures in urgent cases when timely agreement cannot be reached; and to authorise and co-ordinate controlled deliveries, for example, drugs and weapons, in urgent cases when timely agreement cannot be reached.
In the previous Eurojust decision, member states could decide not to confer certain powers on their national members. This was done to accommodate Ireland and the United Kingdom, mindful of the differences between the common and civil law systems. No such exemption is provided in the proposal which, as a regulation, is directly applicable. The powers contained in Article 8 are incompatible with those exercised by an officer of the Director of Public Prosecutions. For instance, the national member will be required to be able to order investigative measures. The draft regulation, as it stands, is based on the investigating prosecutor civil law model and presents significant difficulties to common law states. The powers in question are exercised by a range of entities in the Irish system, namely, courts, prosecutors and gardaí. For instance, only a judge can order an investigative measure such as a house search. Even in such circumstances, a judge is permitting a search rather directing that a house be searched.
In the circumstances, it has been decided that it would be best for Ireland not to exercise an opt-in under Protocol 21. However, subject to the necessary changes being made, especially in respect of Article 8, we are hopeful Ireland will be in a position to opt in after adoption, subject to the adopted instrument being consistent with Irish law in practice. Ireland will fully participate in the negotiations and actively explore and pursue the possibility of amending the problematic sections of the draft regulation to ascertain whether it can be changed to fit Irish law in practice.
I thank Mr. Fennell for his contribution, which highlights again one of the problems with Europe, namely, the marked divergence between the common law system in place in Britain and Ireland on the one hand and the civil law jurisdictions on the other. It is clear we cannot opt in to the regulation given the substance of Article 8.
Mr. David Fennell:
That is not quite clear. The 50 page document prepared by the Commission includes one or one and a half pages setting out the background to the proposal. To be honest, this does not make a convincing case for the need for a regulation, as of now. The Eurojust decision was adopted by the Council in 2008 and has only been implemented by member states since 2011. A number of member states have expressed the view that no clear case has been made as of yet for such a significant change, that is, a decision to give national members binding powers of investigation. Pages 1 and 2 of the document provide a background to the proposal. A number of member states, including Ireland, have expressed the view that there is no convincing argument that it is necessary, in 2013, to amend a decision which was adopted in 2008 and has only been implemented since 2011.
Mr. David Fennell:
The function of Eurojust is to co-ordinate meetings of prosecutors and try to speed up mutual assistance requests. The Director of Public Prosecutions and Garda Síochána would be better placed to provide the Chairman with an assessment of the value of Ireland's participation in the body. From dealing with Garda and DPP colleagues, I do not get a sense that there is a significant level of interaction between Irish agencies and Eurojust. This may be for a number of reasons.
First, we are a common law state. By definition, the organisation comprises investigating judges and prosecutors. Unlike some of his colleagues, our national member does not have a function in investigating crime. Second, we are an island and, therefore, issues of conflict of jurisdiction, which is a particular issue with which Eurojust must deal, are not as pressing for us. For example, where a robbery is organised in Belgium, carried out in Holland and the money is laundered in Luxembourg and arrests are made in Germany, which is a relatively small geographic area, issues arise such as where the crime should be prosecuted, which country and investigating judge should take the lead and where the evidence should be sent and so on. This situation is not as common in Ireland. We already have in place long-standing mechanisms on a North-South and east-west basis in terms of bilateral co-operation. I do not get the impression from Garda Síochána and Director of Public Prosecution colleagues, who would be far better placed to respond to this question, that there is a significant level of interaction between Irish agencies and Eurojust. Essentially, our national member is a useful contact point but would not exercise the same type of investigative powers exercised by many of his colleagues.
From our point of view, co-operation at Europol level would be much more significant because that is practical between police forces. On the point made by the Chairman in regard to motivation, while, as stated, the information provided by the Commission in this regard is not clear, it does appear to envisage this as a parallel measure to the creation of the European Public Prosecutor's Office, EPPO. One can only assume the Commission sees it as very much part of the same package of measures. Is that a fair assessment?
Mr. David Fennell:
I would surmise that a strong motivation is bearing in mind the developments in relation to the European Public Prosecutor's Office, EPPO. I can go no further than that. I do not think it is coincidental that as the EPPO proposal is published another proposal is published in relation to Eurojust. As I stated earlier, there has been only one working group meeting in relation to Eurojust which I was unable to attend. However, I understand from my colleagues that a number of member states asked the reason for the pressing need for a Eurojust regulation at this time and what problem it would fix. A number of them also expressed the view that this was not fixing any problem of which they were aware. A number of people would probably share the view expressed now that the timing is not coincidental in that it follows in the wake of the EPPO proposal.
Mr. David Fennell:
As it stands, Ireland has not opted into the measure. We would be hopeful that Article 8, which is the problem section, will be amended to permit Ireland and other member states to continue participation. If, in the worst case scenario, member states do not accept that Article 8 could be amended and, therefore, Ireland could not as a consequence take part in Eurojust, in practical terms we would see no difficulty in having a liaison officer assigned who would not by definition exercise any formal powers in Eurojust. There is already a precedent for third countries to have liaison officers assigned to Eurojust. Effectively, the Irish national member is essentially a liaison officer or contact point. In practical terms, I do not believe there would be any significant operational implications for Ireland.
I thank the witnesses for appearing before the committee and for their briefing on the two issues concerned in the context of the committee's work in the area of European scrutiny. It is good to drill down into the detail of what is proposed and so on.