Tony Killeen (Clare, Fianna Fail)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:

a proposal for a Council Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities of the member states of the European Union,

a copy of which proposed measure was laid before Dáil Éireann on 15 May 2006.

I will begin by explaining something of the background to and context of the draft EU framework decision on simplifying the exchange of information and intelligence between law enforcement authorities of the member states of the European Union. The declaration on combating terrorism adopted by the European Council on 25 March 2004 after the Madrid bombings instructs the Council to examine measures aimed at simplifying the exchange of information and intelligence between the law enforcement authorities of the member states. Subsequently, on 4 June 2004, the Kingdom of Sweden sent a proposal for a framework decision on simplifying the exchange of information and intelligence between the law enforcement authorities of the member states of the European Union, in particular as regards serious offences, including terrorist acts, to the Secretary General of the Council. The proposal has been under discussion within the Council structures since then and the Council of Ministers hopes to adopt the measure before the Austrian Presidency ends on 30 June. Thus, it will be seen that this proposal has a long history.

The Swedish initiative predates the Hague programme on strengthening freedom, security and justice in the European Union, which is the European Union's general policy framework in the area of justice and home affairs. This multi-annual programme was approved by the European Council at its meeting on 5 November 2004. However, the draft framework decision on simplifying the exchange of information and intelligence between law enforcement authorities of the member states has the potential to advance the Union's objectives in the Hague programme with regard to the exchange of information. Having said that, the Minister wishes to emphasise that this is a relatively light measure. A much more complex proposal for a framework decision on the exchange of information under the principle of availability is at the early stages of negotiation in Brussels.

The Hague programme urges member states to pursue an innovative approach to the cross-border exchange of information. Specifically, it provides that, with effect from 1 January 2008, the exchange of information should be governed by what is referred to as the principle of availability. This means that, throughout the Union, a law enforcement officer in one member state who needs information to perform his duties can obtain this from another member state, and the law enforcement agency in the other member state which holds this information will make it available for the stated purpose, taking into account the requirement of ongoing investigations in that state. However, the Hague programme also sets important conditions with regard to proposals to implement the principle of availability. It provides that exchanges of information may only take place in order that legal tasks may be performed and that the integrity of data to be exchanged must be guaranteed. The Hague programme also emphasises the need to secure the confidentiality of data and respect the principles of data protection.

As I indicated earlier, the draft EU framework decision on simplifying the exchange of information and intelligence between the law enforcement authorities of the member states is a first step in implementing the principle of availability. The purpose and objective of the draft framework decision is to establish the rules under which member states' law enforcement authorities can exchange existing information effectively and expeditiously for the purpose of conducting crime investigations or crime intelligence operations. The Minister stresses that it is concerned with facilitating investigative co-operation.

Information and intelligence provided may be used by the competent law enforcement authorities solely for the purposes for which it has been supplied. It cannot be used for other purposes without the consent of the member state which provided the information. The reference to existing information is also important. The draft framework decision does not impose any obligation on the part of the member states to gather and store information and intelligence for the purpose of providing it to the competent law enforcement authorities of other member states, nor does it impose any obligation to obtain any information or intelligence by means of coercive measures. It establishes a legal obligation to exchange existing information and intelligence for the purposes of criminal investigations and criminal intelligence operations and imposes deadlines for the transmission of such information and intelligence. There are a variety of such deadlines ranging between eight hours and 14 days depending, inter alia, on the urgency or otherwise of the request.

Consistent with the conditions specified in the Hague programme relating to proposals to advance the principle of availability, there are also a number of important safeguards, including grounds for refusal of information and intelligence, in the draft framework decision. For example, a request for information may be refused where the provision of information would be harmful to national security interests, or the success of a current investigation or operation, or where it is clearly disproportionate or irrelevant with regard to the purposes for which it has been requested. A request may also be refused where it pertains to a minor offence, specifically an offence punishable by a term of imprisonment of one year or less under the law of the requested member state. Ireland insisted on this provision to protect the individual's constitutional right to privacy. Other safeguards include the requirement to guarantee the confidentiality of information and intelligence and the application of established data protection norms and standards.

The common interest of the member states in fighting cross-border crime must strike the appropriate balance between law enforcement co-operation on the one hand and agreed principles and rules on data protection, fundamental freedoms, human rights and individual liberties on the other. The Minister believes the text of the draft framework decision achieves this objective. The Office of the Attorney General has been consulted during the course of the negotiations and is satisfied the draft framework decision contains all necessary safeguards.

Regarding scope, the draft framework decision does not impinge on instruments of the European Union on mutual legal assistance or mutual recognition of decisions regarding criminal matters. Where a member state wishes to use information or intelligence received in accordance with the framework decision for evidential purposes, it must obtain the consent of the member state that provided the information or intelligence and, where necessary, through the use of instruments governing judicial co-operation between the member states. The draft framework decision is also without prejudice to bilateral or multilateral agreements or arrangements between member states and third countries.

Article 8 provides for the spontaneous exchange of information and intelligence, without it being requested, where there are factual reasons to believe that the information and intelligence could assist in the detection, prevention or investigation of European arrest warrant offences. The modalities of such information exchange shall be regulated by the national law of the member state providing the information, and the provision of information and intelligence shall be limited to what is deemed relevant and necessary for the successful detection, prevention or investigation of the crime or criminal activity in question.

Besides providing for obligatory exchange of information and intelligence between the law enforcement authorities of the member states, subject to the various safeguards I have outlined, the draft framework decision provides for a number of practical matters. For example, it provides that exchanges of information may take place via existing channels for international law enforcement co-operation and states that the language used for the request and the exchange of information shall be the one applicable for the channel used. The draft framework decision also prescribes the forms to be used by law enforcement agencies, for example, when requesting, transmitting and refusing information.

As I stated, the draft framework decision provides for obligatory exchange of information and intelligence between EU law enforcement authorities. This formalisation of the arrangements for exchange of information and intelligence will require domestic legislation. However, informal police-to-police co-operation has always been an implied function of the Garda Síochána and it is not expected that the formalisation of the existing arrangements will create any administrative difficulties for the Garda Síochána.

I hope I have been of assistance in outlining the background to and content of the draft framework decision. I will endeavour to answer any questions that arise.

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