David Stanton (Cork East, Fine Gael)
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I ask everybody to please turn off their mobile phones or put them on flight mode before the meeting starts. Apologies have been received from Deputy Niall Collins and Senators Tony Mulcahy and Denis O'Donovan.

The purpose of this meeting is to have a discussion with the Minister for Justice and Equality relating to the Justice and Home Affairs Council meeting held on 5 and 6 June 2014. On behalf of the committee I welcome the Minister to this meeting of the committee, together with her officials. As this is the first time she is appearing before the committee in her new role as Minister, on behalf of colleagues I want to congratulate her on her appointment and wish her well. I look forward to working with her in the time ahead.

The format for this session is that we will receive a briefing from the Minister followed by a question and answer session. The briefing has been circulated. I call the Minister.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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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.

David Stanton (Cork East, Fine Gael)
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There were a lot of complex and important issues discussed at those two meetings.

The Minister mentioned the foreign fighters at the beginning. I note that she said there were 30 individuals who had travelled from Ireland to the conflict zones in question, there have been three known fatalities, and the Garda is monitoring the situation and engaging with those who have returned. Do we know how many have returned? I note the terrible conflict in Syria, Iraq and that part of the world and the terrible atrocities that are occurring. I am sure we would be concerned about any danger to citizens from those returning from those areas who might be radicalised or have different views and approaches to situations from the rest of us.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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This is quite a concern in member states. For example, in Belgium recently there was an attack in which a number of Jewish persons were killed. That was at the Jewish museum in Brussels. Ministers stated that this was an issue of serious concern and remains of the utmost importance, given the numbers who are travelling to Syria. From our own perspective, the point I made is that a small number - approximately 30 individuals - from a Muslim population estimated at 50,000 have travelled from Ireland to the conflict areas. There have been three known fatalities. The Chairman's question about those who go there and return to Ireland is more an operational matter for the Garda. If it were necessary to take action, no doubt the Garda would do so.

Finian McGrath (Dublin North Central, Independent)
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I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald. As I believe it is her first time before the Oireachtas committee, I wish her well. Hers is a difficult position. We all understand that, particularly in doing our work here on the Oireachtas committee. I congratulate her and wish her well for the future.

To follow the Chairman's question on the Minister's report on foreign fighters, the Minister stated that there are 2,000 Europeans travelling to the conflicts in Iraq and Syria. My problem is that at a European level - I am seeking answers not on the policing aspect but on the political dimension to the meeting - some European Union member states encouraged such persons to go and bring down Assad in Syria. We cannot have it both ways, with 17 year old children being radicalised and encouraged to go and bring down a particular regime. Ireland needs to be more assertive with a different, independent foreign policy line to stop what is going on. We do not want to see, as the Minister stated, that 30 individuals from Ireland have left for the conflict zone. Many of us suspect their number is higher. I would have concerns. These are the points the Minister should raise at a European level. Will she do so in the future?

David Stanton (Cork East, Fine Gael)
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In that regard I would make one observation. We must be careful, as these are foreign affairs issues that may be more appropriate to the Joint Committee on Foreign Affairs and Trade. The issue about which this committee is concerned is the safety of citizens from those coming back from there who, if I am reading the matter correctly, may have been radicalised, who may be strongly affected by what they have been involved in and who may decide to carry out acts here for whatever reason. That is the kind of concern in which the justice committee would be interested. However, I take the Deputy's point.

Finian McGrath (Dublin North Central, Independent)
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I take the Chairman's point on the foreign affairs aspect, and I agree with that.

The Minister referred to active engagement with those who have returned. Does that mean the Garda is talking to them directly and getting some information? Is that the position on the ground from a justice perspective?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Let me give more information. Up to 2,000 EU citizens, primarily of a Muslim background, have travelled to fight in Syria. There is concern that some of them have signed up with extremist groups. The reasons individuals travel are varied. Some travel out of a sense of solidarity with their fellow Muslims and some are recruited by extremist groups, which is a concern. Others travel for personal reasons, perhaps for adventure without realising the seriousness of the circumstances.

There are areas in respect of which EU action in support of member states' efforts can take place. The Deputy rightly pointed out that prevention is important in reducing the flow of individuals to the countries in question. There are a number of specific initiatives that those involved in counter-terrorism and experts in the area are referring to. First, they are suggesting the creation of a Syria strategic communications advisory team. Second, they refer to the creation of an EU web portal to list, publicise and co-ordinate Syria related humanitarian volunteering opportunities. Members will find this quite interesting. I am not necessarily saying those likely to join an extremist group would be involved. The Deputy mentioned young men, in particular. If one could prevent 16 and 17 year olds from travelling in the first instance, it would be desirable. The two suggestions would help in managing the issue. Better information exchange between member states is important also. There are criminal justice initiatives on which there could be some co-operation but the independence of the Director of Public Prosecutions and Ireland’s prosecutorial system would have to be taken into account.

On the Deputy's question about the Garda, the matter really is an operational one. The Garda is doing ongoing work with the Muslim community here, building good relationships and responding to any issues the community might have. Generally, that is how this issue would be managed, in addition to doing the work on the investigative side.

Finian McGrath (Dublin North Central, Independent)
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Will it be very damaging if Britain is seen to be opting out of policing and criminal justice co-operation measures?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Each state will make its own views known on that. It is important for Ireland - this arose at the discussion - that there be an agreement to opt in to 35 areas. We are satisfied that the 35 areas that the United Kingdom has opt in to are the critical ones for us. To ensure co-operation between the United Kingdom and Ireland, it was critical that the United Kingdom opted in to them.

Many of the 100 or so measures that the United Kingdom is not rejoining relate to informal co-operation. Many of the measures out of which it has opted relate to the setting up of networks and contact points. Measures in this regard may be taken informally as the United Kingdom decides. We are satisfied that we can continue to co-operate with the United Kingdom in those areas due to our common law legal system. As I stated, we are satisfied that the United Kingdom is rejoining in respect of those areas that are particularly important to us. These include the European arrest warrant, Europol, Eurojust, mutual legal assistance, action on fighting against organised crime, combating child pornography and information exchange. We are satisfied that we can continue to co-operate on the other issues.

Finian McGrath (Dublin North Central, Independent)
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The Minister stated procedural safeguards for children were dealt with at the Council meeting by her in her capacity as a former Minister with responsibility for children's issues. She said in her submission that Ireland had not opted into the proposal, as presented, owing to concerns relating to the function of our legal system. What kinds of concerns have we got about safeguarding children?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As I said, a recently announced change is occurring right now. A decision has been taken that when suspects are being interviewed, a solicitor can be present. Before that decision was taken, the legal advice was that it would be difficult for us to opt in to this particular proposal for the directive. Now that there has been a change, I was able to take the decision at the Council to indicate that we could opt in at a future date. I was very pleased to be able to do that because it means children will have the protection that would emerge under this proposal for a directive of the European Parliament and the Council on the procedural safeguards for children who are suspected or accused in criminal proceedings. It means we can now examine opting in to the proposal whereas, previously, we were not in a position to do that.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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With regard to the decision of the European Court of Justice to strike down the data retention directive, the Minister will be aware that the Office of the Data Protection Commissioner has welcomed the decision here in Ireland. There is concern over the need to find a balance between the requirement of a state to gather intelligence, monitor and identify threats to its security, which citizens accept, and the desire to protect the right to privacy and the civil rights of citizens who are not a threat to the state. This is an important balance to strike.

I would like to hear the Minister's thoughts on the recent report from Vodafone. Ireland is the only one of 29 countries that did not give the company permission to publish the level of access of our intelligence and security services to its data. I refer in particular to the concerns of the Irish Council for Civil Liberties in this regard. It sought absolute clarity from the Government.

The Postal and Telecommunications Services Act 1983 seems to provide the broad context in terms of surveillance. Can the Minister explain why Ireland was the only one of 29 countries not to give permission to Vodafone to publish the extent of the Irish State's surveillance requests? Can she assure us that governments are seeking to strike a balance, in line with the decision of European Court of Justice, between the right of the citizen to privacy and the need to pursue identified threats to the security of the state?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The legislative basis to what we are discussing in the context of the data retention directive is the Communications (Retention of Data) Act 2011. It provides for access to relevant data by An Garda Síochána, the Defence Forces and the Revenue Commissioners. Both the directive and the Irish legislation provide for retention periods - the maximum amounts of time for which the data can be retained before it must be destroyed.

From a domestic perspective, it is clear that the High Court will take account of the judgment in its deliberations on the digital rights case. I have said already that the implications of the judgment for the 2011 Act are currently being examined by the Office of the Attorney General and the Department of Justice and Equality. The judgment effectively means that Ireland is no longer required to have data retention legislation, but there is nothing to prevent national legislation providing for it. The legal advice I have at this point is that the Act still stands in the absence of any High Court ruling to the contrary.

Clearly, the question the Deputy raises concerns a security matter. The Deputy is correct that it is critical that there be a balance between respecting privacy and pursuing security considerations in the State.

That is really as much as I feel I can say about that. Clearly, when this type of initiative is used, it is in the interests of the security of the State.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I was alarmed to read the Irish Council for Civil Liberties' statement following Vodafone's publication of this international report. Ireland is the only one of 29 countries that denied them the ability to publish what the State had sought from them. The ICCL says that our interception laws are from a pre-digital age. They are archaic and need to be updated. More importantly, the ICCL talks about the need for oversight of the surveillance process by an independent authority, which is a fair point. The ICCL believes that too broad an interpretation is allowed under the existing legislative base.

I am asking the Minister to reflect on these questions, including what the ICCL has said. The Government needs to demonstrate that, in the current environment of reviewing the Garda Síochána and oversight matters, it will examine these Acts to see if we can put in place a more accountable oversight system. That would demonstrate to citizens that the only basis on which we seek access to that type of data is when there is an identified threat to the security of the State which, of course, we all assume is the case. One could demonstrate that by putting in place a better system of oversight and accountability that would remove the fear of reputable human rights watchdogs, such as the ICCL, in addition to citizens themselves.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As the Deputy knows, there is a judicial oversight mechanism at the moment. Within the Garda Síochána there is decision-making at the highest management level on this type of action. Currently, serious monitoring and decision-making is in place for the very reason the Deputy outlined - to ensure a balance and that decisions that are taken are absolutely valid and are only taken when there is a threat to the security of the State.

I take the Deputy's point but I am not sure that further oversight mechanisms could be put in place. Clearly, however, this legislation needs to be kept under review all the time. The Deputy is correct that, because of the changes in information technology, including digital systems, the Internet and new communication methods, it is imperative the criminal justice legislation stays up to date.

Yesterday in the Dáil, I informed the Deputy that the acting Garda Commissioner is reviewing the approach of An Garda Síochána to this area. She is making some strategic decisions about a realignment of resources so that the Garda will be in a position to respond effectively to cybercrime in the digital era. Crimes against children, including child pornography, are often a key feature of cybercrime.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I have a final question on what is referred to as the dark net, which emerged as a form of preventing surveillance. It was initially a benign development by journalists and pro-democracy campaigners who emerged in Egypt and elsewhere. Unfortunately, however, recent evidence in Britain suggests that the dark net is now being utilised by people availing of child abuse images.

This debate concerns the need to strengthen measures against such issues, so I ask the Minister, with her European colleagues, to examine the implications of the dark net's threat. Something that began as a benign means of protecting human rights campaigners from surveillance by some regimes that abuse their powers is now, unfortunately, being utilised by some of the vilest people who facilitate child abuse. There has been an international focus on zoning in, using every means available, to pursue that vile industry. I am sure every citizen would support such measures. Perhaps the Minister could report back to the committee at some stage on what is being done at European level to combat this new threat.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Deputy's point illustrates the challenge involved. He raised the issue of privacy rights and, quite rightly, there has to be a balance. Equally, one must also look at it from the victims' viewpoint or the threat to the State, and ensure the State has adequate powers to investigate crimes of the type described by the Deputy. I visited Scotland Yard last year to see the work of the Metropolitan Police in combating child pornography. They have a sophisticated and comprehensive response, so clearly the Garda Síochána can learn from the best international methods to deal with such crimes.

The acting Garda Commissioner is undertaking a strategic review of resources in this area in order that she can deal effectively with these matters. I am sure I will revert to the committee to discuss that strategic review. The Deputy will note that cybercrime is included as a priority for the strategic guidelines concerning the justice and home affairs, JHA, portfolio for the next five years. We will see many rapid developments in this area and we will have to work hard to ensure legislation reflects the sort of challenges the Deputy outlined.

David Stanton (Cork East, Fine Gael)
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We were told that two of the biggest threats to the State are flooding and cybercrime, so we would be interested in doing work on those matters. There was a major conference in Cork recently on cybercrime. Many international experts attended that event and I think some of them met the Minister's departmental officials on that serious issue.

Marcella Corcoran Kennedy (Laois-Offaly, Fine Gael)
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The Minister and her officials are very welcome. I wish her every success in her new and challenging role. The Minister mentioned that the new programme of priorities for the JHA Council was discussed, so perhaps she can expand on what those priorities will be.

My second question concerns the EU monitoring centre for drugs and drug addiction. In Europe, there is a growing use of the Internet for distributing synthetic drugs. In addition, the consumption of drug types has changed, so what can be done to address that?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The priorities have to go to the Council tomorrow, so there will be a discussion there. We will have to wait and see what emerges from those discussions between the Heads of State and Government on the priorities. It is part of the in-built process that those priorities go to that Council for its reaction. The last programme, called the Stockholm programme, provided a major legislative basis and cornerstone for a stronger area of freedom, security and justice. Ministers at the meeting were united in their view that now is the time for consolidation and implementation of what has been put in place, with a shift towards ensuring quality and consistency in implementing that legislation.

There was also a strong view about the need to gather evidence so that any new initiatives would follow an evidence-based approach to new legislation. It was felt that we should look at need, impact assessment and cost efficiency. It was also felt in the discussion that a period was now required in which to examine the legislation that has been put in place, as well as looking at its implementation and monitoring its effectiveness. I also mentioned new technology, as we have just been discussing, and it is seen as a priority area.

In the field of asylum for example, the effective implementation of the common European asylum system was considered a priority as was legal immigration and border control. That continues to be a priority area. There was also a consensus among Ministers on the need to strengthen efficient return policies with linkages between visa facilitation and readmission agreements and on the fact that solidarity must be understood in the broader sense and not limited to redistribution of people. That whole area, getting the balances right and putting in place efficient systems, is important. Visa policy for bona fide travellers was also very important and we have taken a number of initiatives here on that. The previous Minister did some very innovative work in that area. Improved integration of third country nationals also featured in the debate as did mutual recognition in civil law with the removal of barriers to mobility for EU citizens and businesses. All of those areas require further work.

On the security side, there was general agreement that one of the priority areas must be combating organised crime and terrorism with, as we have already discussed here, a particular focus on the radicalisation issue. That needs a great deal of attention. Cyber security was also discussed. The issues we have discussed here in the committee already were very much seen as priority areas.

David Stanton (Cork East, Fine Gael)
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There is a vote in the Seanad, to which I draw the attention of members who may need to leave.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Taoiseach will attend the European Council tomorrow and Friday, which will finalise the strategic guidelines. I have no doubt that many of the guidelines and areas I have mentioned will form part of the programme going forward.

David Stanton (Cork East, Fine Gael)
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The second issue was drugs.

Marcella Corcoran Kennedy (Laois-Offaly, Fine Gael)
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I asked about the shift which has been identified in the type of drugs being consumed and the use of the Internet now to distribute synthetic drugs in particular. The shift that has been observed has been from heroin and cocaine to cannabis. What will happen to address that?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Deputy is right. The Internet was highlighted as continuing to play a very key role in shaping the new psychoactive-substances market. To provide some statistics, in 2013 the monitoring centre identified approximately 650 websites selling these substances to Europeans. One can begin to see the scale of the issue of where drugs become available on the Internet illegally. In addition, the purchase of new and more traditional drugs via dark nets - the underground online networks facilitating anonymous communication to which Deputy Mac Lochlainn referred - is a huge challenge for law enforcement. It is one security and police forces throughout the member states are very conscious of. It is a whole other aspect of challenging and dealing with the supply of drugs. It highlights the earlier conversation and why cyber-crime will have to be a priority area. No doubt, it will be a priority for the committee to discuss also. There may be at least 650 websites on which one can access drugs illegally throughout the member states.

David Stanton (Cork East, Fine Gael)
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I want to give Senator Bacik an opportunity to ask a question or two.

Ivana Bacik (Independent)
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I thank the Chairman for suspending the meeting. That was kind.

I welcome the Minister, Deputy Fitzgerald. She has been in the Seanad already several times since her appointment as Minister but this is her first time before the committee, and I welcome her here and wish her the very best of luck.

I thank the Minister for the comprehensive briefing on the Justice and Home Affairs Council meeting. I had a couple of questions concerning items, that were on the agenda that she referred to in her speech and that we had previously looked at on the committee. Apologies, if somebody has raised them already.

The first was the issue of the impending United Kingdom opt-out, which we in this committee considered in some detail over the past year and on which we expressed concern about its potential disruption. The Minister has given us some comfort by saying that the United Kingdom reached this understanding that it will opt back into 35 measures, including the most important instruments for co-operation between our two jurisdictions. Is there anything the United Kingdom is not opting back into that is of any significance? Certainly, that was something the committee had a concern about previously.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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In that regard, the point I made is that undoubtedly there may be issues for other member states but from the point of view of our work and the areas that the United Kingdom has opted back into, we are satisfied that these cover the most important issues. From that point of view, the 35 that they have opted back into - I gave an indication of the list which I can give the Senator if she wishes - cover critical areas, such as the arrest warrants, working on child pornography issues, the serious matter of Europol, Eurojust, the mutual legal assistance, the action on the fight against organised crime and information exchange.

There is also the possibility under Protocol 36, which stipulates that the United Kingdom may decide to notify the Council afterwards that it wishes to participate again in acts which have ceased to apply to it, in which cases the usual provisions on the United Kingdom opt-in conditions on procedures will apply.

That is there but the important point is that by the date, which I think is-----

David Stanton (Cork East, Fine Gael)
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It is 1 December.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes, 1 December. The really critical issue is to ensure that there is no gap in terms of the legality of the situation so that operational matters can continue as they are. We are satisfied at the moment. They are not opting back into the Prüm treaty and they will look at that again after 1 December. This deals with an area that is very important. In respect of our recent DNA database legislation, it is an area where one would expect member states to co-operate. That treaty deals with the information exchange of fingerprints, DNA and vehicle registration and is one that they have not opted into so one can immediately see the issues in respect of that. We are satisfied that the most important issues are among the other 35.

Ivana Bacik (Independent)
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My other question concerned the European public prosecutor's office, EPPO. I know we have considered this and issued a reasoned opinion. I know that there is more information in the fuller briefing about the Minister's point that the collegiate model we seem to be moving towards would be more conducive to Irish participation than the original hierarchical command and control structure the Commission initially proposed. We have more detail on that collegiate model, which is very helpful. Could the Minister say any more about whether this is likely to go ahead in the near future? I know it could go ahead in the enhanced co-operation procedure with nine member states. If that is the case, is there a possibility that Ireland will look to join in? Certainly I would hope that we would have an opportunity to scrutinise it again before any decision is made. I am anxious that if it does proceed on the new model with a small number of states, we will have an opportunity to consider it again before Ireland makes a decision.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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As Senator Bacik said, there was a very strong and robust debate about this with the vast majority of member states adopting quite a different position from that of the Commission and a feeling that they were moving ahead with a model that really did not suit many member states. The collegiate model was the one that should be applied. We could not opt in until after the decision anyway. We have not opted in so they will now have to wait until a much later stage and there will be an opportunity to discuss it again. The dossier on this is very far from being agreed. Quite a lot of discussion is needed before it gets anywhere near the point of completion. Even the most enthusiastic supporters of it recognise that in the absence of a common EU legal framework on criminal procedure, it is very difficult to move ahead on the EPPO proposal. It was very clear that there was a lot of work to be done before agreement on a satisfactory model for the development of a European prosecutor could be reached.

David Stanton (Cork East, Fine Gael)
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Are there any more questions?

Katherine Zappone (Independent)
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I welcome the Minister and her officials. I have two brief questions. The first one relates to Deputy Mac Lochlainn's question about the data retention directive and the European Court of Justice's decision in respect of it. Did the Communications (Retention of Data) Act 2011 come into play as a result of the basis of the directive as distinct from our own initiative? I will tell the Minister why I am asking that question.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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Yes, it did come in to give effect to the directive. Obviously, it is Irish law. In the absence of the High Court saying anything, the legal advice is that it does stand but I take the point the Senator is making.

Katherine Zappone (Independent)
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I understand. The judgment to strike it down was on the basis of the incompatibility with the EU's Charter of Fundamental Rights. Let us suppose that the High Court case is not successful so that our Act is found to be constitutional. The fact remains that there is still a European judgment that the Act, or certainly the directive on which it was based, is in conflict with the Charter of Fundamental Rights. It is important to note that. Ultimately, while it may not be unconstitutional, we may move to a point where it may not be desirable and, therefore, there is a need to change it in light of the fact that it is in conflict with the Charter of Fundamental Rights.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I take the point Senator Zappone is making. One could also say that we have put elements and sections that address that issue into the legislation. That is precisely the argument that will be decided by the courts. I will be in a better position to deal with those issues once the Attorney General and the Department have concluded their examination of the legislation keeping in mind the recent European Court of Justice decision. Clearly, there will be ongoing developments in this area and issues to be decided as regards constitutionality. It is a very current debate and judicial issue given the directive and our legislation. Our legal advice at the moment is that the Act still stands in the absence of any High Court ruling to the contrary.

Katherine Zappone (Independent)
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I understand. Apart from the substantive issue about which we are speaking, my comment relates to the status of the Charter of Fundamental Rights in respect of our law making.

I noted that the Minister's presentation contained references to the continuing positive influence of Ireland's Presidency in the EU. That is good to hear. Does the Minister wish to make any further comment? She pointed that out that this still has an abiding influence due to the impact and what sounds like the effectiveness of our Presidency.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I agree with Senator Zappone. The former Minister, Deputy Shatter, took a very proactive role in respect of justice and home affairs issues and initiated work in a number of areas. Certainly that was commented on and there was a very positive reaction to the Irish Presidency.

David Stanton (Cork East, Fine Gael)
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I thank the Minister for her time and engagement with the committee. I also thank her officials for being here. It was a very positive, informative and interesting meeting regarding very serious and important issues. We look forward to working with the Minister and her officials in the future on these issues which are very important for this country and the EU.