Oireachtas Joint and Select Committees
Wednesday, 4 October 2017
Joint Oireachtas Committee on Justice, Defence and Equality
European Travel Information and Authorisation System: Motions
Will everyone please switch off all mobile phones as they interfere with the sound recording system?
The purpose of the first part of today's meeting is to consider a Government motion to exercise the right to opt in, pursuant to Protocol No. 21 of the Treaty of the Functioning of the European Union, to a proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/794 for the purposes of establishing a European travel information and authorisation system.
I extend a warm welcome to our new committee member Deputy Fitzpatrick. I hope he will find membership of this committee a good experience.
I welcome the Minister for Justice and Equality, Deputy Flanagan, and his officials to the committee this morning. I invite him to advise us of the proposition. If there are questions, we will try to deal with this matter expeditiously.
I am pleased to be here this morning. I am accompanied by my officials, Mr. Brendan Eiffe and Ms Anne O’Farrell.
The purpose of the motions is to seek Oireachtas approval for Ireland to opt into an EU regulation amending Regulation (EU) 2016/794, generally referred to as the Europol regulation, for the purposes of establishing a European travel information and authorisation system, ETIAS, for the Schengen area. The regulation provides for the allocation of new functions to Europol in connection with ETIAS. The legal basis of the measure is Article 88(2)(a) of the Treaty on the Functioning of the European Union, which empowers the European Parliament and the Council of the European Union, by means of regulations to determine Europol’s structure, operation, field of action and tasks.
It is useful to be absolutely clear that the regulation in question is binding on all participating EU member states with the exception of Ireland and the UK. In the case of Ireland and the UK, the regulation falls under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union. The amending regulation, therefore, requires the approval of the Oireachtas under Article 29.4.7° of the Constitution to opt into the measure. The committee may wish to note that Ireland previously opted into the Europol regulation this new regulation amends. The Europol regulation came into effect on 1 May 2017. Had Ireland not opted into that regulation, it would have been required to leave the Europol system.
The Europol regulation defines Europol’s role, enhances the supply of information by member states to it, reinforces the data protection regime applicable to Europol and improves its governance structures. Before going into some detail about ETIAS, I want to emphasise that the system has no implications for Ireland. Irish citizens will not be required to use it. It will not affect Irish citizens travelling to the Schengen area or other EU citizens coming to Ireland. ETIAS only impinges on this State because Ireland opted into the substantive Europol regulation and is a member of that organisation. Accordingly, Ireland must be consulted on any changes which may occur from time to time to that regulation.
Following recent terrorist attacks and the migration crisis which has impacted on many regions of the world, including our own, strengthening the EU’s external borders has been one of the measures targeted to ensure internal security and to preserve freedom of movement in the Schengen area. Currently, nationals of around 60 countries worldwide do not need a visa to enter the EU. However, there is currently a lack of information related to such third-country nationals arriving at Schengen external borders. Numerous states in the Schengen area have witnessed significant movements of people arising from the migration crisis. At the same time, there have been horrific terrorist atrocities in several major European cities.
I am by no means conflating these two issues. It is notable that those responsible for terrorist attacks generally do not come from third countries. However, I am drawing attention to the two issues to highlight the public safety concerns among citizens in the countries of mainland Europe whose borders are open. They want to feel better protected by their governments and by the EU. This regulation is part of a response to this. Unlike the advance transfer of detailed information required for the visa application procedure of visa-obliged travellers, no such advance information is required about visa-exempt nationals arriving at Schengen external borders. This means that border guards need to make a decision on allowing or refusing access to the Schengen area without prior knowledge of any security, migration or public health risks associated with persons not requiring a visa. When the ETIAS commences, this category of traveller will have to apply for travel authorisation through the system prior to undertaking their journey.
All information gathered by the system will be done in full respect of fundamental rights and under data protection legislation. The proposal follows similar models already existing in Canada, Australia and the USA, among others. As the EU’s law enforcement agency, Europol’s mission is to support the member states in preventing and combatting all forms of serious international crime and terrorism. Its role is to help achieve a safer Europe for the benefit of all EU citizens by supporting law enforcement authorities through the exchange and analysis of criminal intelligence.
Members of An Garda Síochána are seconded to Europol and are represented on its management board. Europol also assists An Garda Síochána in operational matters when required. Europol plays a key part in Europe’s response to the current terrorism threat and has been central to several counter-terrorism initiatives in recent times. Alongside the threat of terrorism, which can often have a transnational dimension, members will be fully aware that those who engage in serious and organised crime in this jurisdiction frequently operate on an international basis. Our engagement in Europol is, therefore, of immense value in keeping our people safe and tackling serious crime.
While this particular regulation refers to the Schengen zone only, the reason it has come before the Houses is because of our engagement in Europol. This regulation amends Articles 4 and 21 of the Europol regulation. Article 4, which sets out the functions of Europol, is now amended to provide that Europol will be charged with the development and hosting of an ETIAS watch list, the provision of information related to terrorist offences or other serious criminal offences to this watch list, and the provision of opinions following consultation requests by the ETIAS national units.
Article 21 of the Europol regulation, which currently allows limited access by Eurojust and the European Anti- Fraud Office to Europol data on a "hit, no hit" basis, is amended to further permit access by the European Border and Coastguard Agency on the same basis. The agency will only be permitted access to Europol data that is relevant to its mandate. In addition, access will be restricted to seeking information relating to persons who are suspected of having committed, taken part in or been convicted of criminal offences for which Europol has competence or persons regarding whom there are factual indications or reasonable grounds to believe that they will commit criminal offences. Any subsequent sharing of substantive information must be done in accordance with the Europol regulation and any conditions set by the provider of the information.
The aim of ETIAS is to enhance security in the Schengen region with a view to ensuring the safety of individuals travelling through the area, many of whom are citizens of this State. I think the members of the committee will agree that any enhancement of security in the Schengen area is likely to have a positive impact on the security of the EU generally.
A decision by Ireland to opt into the measure would be seen as a demonstration of Ireland's continued commitment to the effective functioning of Europol and the wider security of the EU. The regulation was drafted specifically to facilitate the opting in of Ireland and the UK . A decision not to opt in will not prevent the expansion of Europol's role where ETIAS is concerned but may result in a diminished role for Ireland within the Europol system. This would not be desirable and indeed could be harmful to our capacities to keep our people safe and continue our role in combating organised crime.
I believe it is essential that Ireland contributes to Europe's fight against organised crime and terrorism. Playing a full and active part in Europol is a key part of this process. Our participation in Europol is vital to our national interest and we look forward to continuing to playing an active role with the agency. I hope, therefore, that the committee will support the motion to exercise Ireland's opt-in to this proposal having regard to the points I have raised or submitted here this morning.
If members would like to like to make comment or ask any questions, it is open to them to do so. The committee does not have to make any decision; that is not required of us. We only notify both Houses that we have given consideration to the proposition. The decision on this matter will be taken in the Dáil Chamber and I think that debate is scheduled for this week. Am I correct?
I thank the Minister for attending. I think we should consider it and refer it, as we are required to do. I agree with the Minister that we should opt in. The only question I have for him is whether the UK is opting in as well or whether the Brexit discussions have had any impact on regulations and directives such as this.
My understanding is that consideration is being given. I do not have any evidence to suggest that the UK is not engaging in such arrangements. However, like ourselves, it will be subject to parliamentary scrutiny, observations and, ultimately, approval.
We are discussing it briefly in the Chamber on Thursday, but I would be concerned about the proposal. The briefing note says there is really no need for us to opt in and that we have nothing to lose by not opting in, with which I agree. There has been no full comprehensive impact assessment of ETIAS and this is just another rush job. There are potential implications regarding the right to privacy and the right to data protection. Organisations like the European Agency for Fundamental Rights have huge concerns about this and that the materials will be used for racial profiling. This seems to be what it is being set up for - let us be clear about it - and saying "ah sure look, no Irish people are going to be affected by that" is not a good enough reason for us to join up. There are many dangers in terms of data protection against a backdrop of more global incidences of hacking. At best, it is a massive waste of money and, at worst, it is an exercise in further surveillance and racial profiling and I do not think there is any benefit for us in joining. I would be very reluctant to give it any approval.
I fully support what the Minister said and I believe we should give it consideration. We need to remember that when one strips out the rhetoric and the bits and bobs, what we are actually talking about is safety for European citizens, including Irish citizens. The Schengen area is one of the great successes of the EU. I know we are not a member of the Schengen area because of the historical arrangement we have with the UK and neither country opted into it, but this is just a commonsense approach that any area of a similar nature would like to see in place so I fully support it.
I echo some of the concerns raised by Deputy Daly. The Minister said that it has no implications for Ireland but I do not agree with that because, obviously, it is proposed to share Irish data with this organisation. Regardless of whether this process will apply to Irish citizens, the data is Irish. I would have similar concerns about privacy. Our party has no objection in principle to the sharing of data but it should be data that Ireland decides to share in and of itself and free of compunction from European agencies. Ireland should share data, as appropriate, but this organisation and proposal are potentially disproportionate.
The Minister's response to questions raised by Deputy O'Callaghan relating to Brexit was unclear and I would be quite nervous about that because if Britain decided not to proceed, it would mean that British nationals would presumably have to apply through the ETIAS system to travel to Ireland. Could this be clarified? There is cause for caution if it is unclear what Britain is doing about this regulation.
When is it envisaged that this will be implemented? I echo the questions about Brexit. Is there any indication about Britain's role within Europol post-Brexit because that obviously will have a significant impact on European citizens going in and out? Is there any indication when this regulation will be fully implemented across the EU?
I convey my sympathies to the victims in Las Vegas. The world is shocked by what happened there. It was wrong.
I agree with Deputy O'Callaghan that we should opt in. It is very important that Ireland contributes to combatting terrorism and crime in Europe. Europol has played a very important role over the past number of decades. I wish the Minister the best going forward and I hope that I will be able to contribute to this committee. I thank the Chairman for his introduction.
I welcome the members' observations and apparent support, notwithstanding some concerns they raised. The concern that has most exercised members of the committee appears to be the implications or otherwise of the withdrawal of our nearest neighbour, the UK, from the EU. It has always been the case that Ireland and the UK co-operate closely on immigration matters, particularly those relating to our common travel area. This arrangement is unique in the EU and it is fair and reasonable to suggest that this will continue. Indeed we will continue to strengthen our co-operation, notwithstanding the imminent withdrawal of the UK from the EU. Hopefully, our common travel arrangements will be fully protected. The indications from the negotiations to date are to that effect. Both the Irish and UK Governments are on record as saying that our commitment to ensuring that there is no return to what has been called hard borders on the island on the Ireland continues.
There are excellent relations, which will continue at political and official level on enhancing the operation of the common travel area. We are committed to this continuing. The amended regulation will take effect from 2020. At that stage we will have a clearer picture on the matter of the withdrawal of the UK from the Union.
In respect of the concerns of Deputy Ó Laoghaire on the matter of data, as this particular amendment has no implication for Ireland, our data protection or data retention regime will not change. There is the European data protection supervisor, that being the competent authority, with which we have already agreed to engage in the matter of our engagement with Europol, and this will not change. I will be happy to keep the committee further advised in the event of there being any issues of concern as raised by Deputy Ó Laoghaire. The European travel information and authorisation system applies to non-visa required third-party states. I do not see how there would be implications that might in any way cause a concern in respect of the privacy of personal data of any of our citizens, having regard to what is before us.
We will continue to play our part in Europol irrespective of the position of our neighbours in the United Kingdom. I do not wish to pre-empt what the sovereign Government of the UK will do, but it is likely it will make a decision on this shortly. Regardless, I believe it is important we exercise our own sovereign decision on this issue, which is why I seek approval of the Houses of the Oireachtas.
I thank the Minister, Deputy Flanagan, and his officials for coming here today. Is it agreed that messages will be conveyed to both Houses of the Oireachtas that the committee has completed its consideration of this proposal? Agreed.