Pádraig Mac Lochlainn (Donegal North East, Sinn Fein) | Oireachtas source

At the outset, I apologise to the Minister for missing the beginning of his speech, as I was delayed at the Disability Federation of Ireland's pre-budget discussion forum. I welcome the opportunity to speak on this Bill and while I welcome that it is mostly technical in nature and is intended to change the administrative status of Europol to bring it under the remit of the European Union, Sinn Féin will examine the Bill closely to ensure that it will serve to reinforce justice on a European level, rather than undermine it. In common with Interpol, Europol's primary focus is on intelligence-sharing between the law enforcement agencies of the EU member states. It also acts as a support service in this regard by providing technical advice and training, as well as co-ordinating technical and strategic co-operation between police services, including the exchange of information. Heretofore, however, it has not been accountable to the European Parliament - the European Court of Justice still has limited jurisdiction over its operations - but it is accountable to the European Union Council of Ministers through the Justice and Home Affairs Council. I hope this Bill has the capacity to rectify this position, as recommended in the Council decision.

Sinn Féin is not opposed in principle to interjurisdictional police co-operation on investigation of serious crimes with a cross-border dimension, where such co-operation is authorised on a case-by-case basis, limited to the necessary and where there are appropriate safeguards and accountability mechanisms in place. Indeed, Sinn Féin strongly supports effective action against cross-border organised crime, including trafficking in human beings and drugs, especially where such action strikes the correct balance between the need and right of individuals and communities to be safe from predation with the civil rights of individuals. However, information lawfully obtained in the Irish jurisdictions should only be made available to and used by the authorities in another state for a legitimate purpose, that is, for the detection, investigation and prosecution of criminal offences that are analogous to offences within the Irish jurisdiction or for the prevention of an immediate and serious threat to public safety in another state, provided that a criminal investigation subsequently is conducted. These are the circumstances under which Sinn Féin accepts it would be reasonable, responsible and in the public interest to share information with other police services. However the sharing of Garda or police intelligence should not happen for its own sake when there is no criminal Investigation and no immediate public threat as this potentially goes against the public good and violates the right to privacy.

It is Sinn Féin's view that co-operation with Interpol, Europol or other interjurisdictional police co-operation on investigation of serious crimes with a cross-border dimension must be authorised on a case-by-case basis, limited to the necessary and must ensure there are appropriate safeguards and accountability mechanisms in place. Any information shared must be lawfully obtained and only made available to another state for a legitimate purpose, that is, for the detection, investigation or prosecution of analogous criminal offences. Moreover, there are serious questions to be asked regarding Europol in this area. It is undeniable that the EU has made incursions against our sovereignty over justice matters in the Twenty-six Counties, with power increasingly shifting over successive treaties from the member states to the EU. Sinn Féin is extremely mindful that a number of EU justice system features are being developed in addition to the current ones, namely, the European Court of Justice and Europol, that are more characteristic of a state or proto-state and which certainly are indicative of superstate ambitions. The aforementioned features include a common border control agency, a common immigration policy, a European public prosecutor and an incrementally harmonised and integrated justice system, including joint investigation teams and EU-wide arrest warrants. Most importantly, the requirement for unanimity between member states on all justice and interjurisdictional police matters has been progressively reduced. Indeed, justice and home affairs as it was known, was removed from the intergovernmental sphere and became an area of community law under the Lisbon treaty.

Sinn Féin does not support the development of EU superstate architecture in respect of justice matters and for this reason it opposed the EU five-year justice and home affairs harmonisation plan known as the Hague programme, which ran from 2005 to 2010. The party does not support the creation of a so-called European Legal Area with a European criminal code and a European public prosecutor. Sovereignty over justice matters must remain firmly in the hands of the peoples of the EU member states. Beyond this, however, Sinn Féin has adopted a general policy of critical engagement on EU policies and legislative proposals. This means it is willing to support those it believes will be of benefit to the Irish people and to oppose those it believes will be detrimental. In deciding its position in respect of justice and home affairs matters, Sinn Féin examines any EU policy or proposal against the following critical engagement criteria. The policy or proposal is scrutinised on whether it respects or fundamentally compromise national sovereignty over justice, whether it advances or rolls back human rights protections and whether it is proportionate and necessary. Further criteria to be considered include whether it will enhance social and economic equality or whether its predictable effects are discriminatory, whether it respects or compromises the interests of smaller nations or minority groups within those nations, whether the proposal was arrived at through democratic dialogue and consultation with civil society, whether its outworking will be transparent and subject to democratic accountability and whether the proposal has the potential to promote Irish unity through all-Ireland harmonisation. Sinn Féin's decision to support, oppose or take a qualified approach will depends on the answer to these questions. To be valid, any EU harmonisation or co-operation measures in the area of justice and home affairs should require unanimity and have as their objective the increased protection of human rights.

Sinn Féin supports measures that genuinely combat international crime or assist legitimate freedom of movement. However, its MEPs, Deputies, MLAs and Ministers will oppose any EU measures that are not fully human rights-compliant and consistent with international law. Sinn Féin rejects the federalist trend towards incremental integration and centralisation of policing and judicial powers ending in the eventual establishment of an EU border guard, EU police and an EU public prosecutor. Sinn Féin believes these are matters for sovereign states. Further to this Sinn Féin also rejects the accelerating impetus to harmonise criminal law between EU member states not only on the basis of safeguarding a cornerstone of nation-state sovereignty, but because it is being done without first ensuring the harmonisation of rights protections, which currently vary widely from state to state. Sinn Féin cannot support criminal law harmonisation measures in the absence of equivalent protections. If one judges by the EU's track record in this area to date, Sinn Féin's concern is the emerging EU criminal justice system will not be a synthesis of the best practices and procedures that exist among the member states but instead will facilitate an unwise shift in rights away from individuals towards the police and prosecuting authorities. In addition, the current EU justice decision-making mechanisms lack adequate democratic accountability but it is to be hoped, given the intent of this Bill, that this position will improve.

Unfortunately, this Bill will not address how Europol actually operates. The joint investigation teams powers introduced by domestic legislation in 2004 go beyond the existing Interpol and Europol mechanisms for police co-operation and information-sharing. This is considered to be an essential element of the so-called anti-terrorism roadmap. It allows for members of foreign, both EU and non-EU, police forces and possibly intelligence agencies to operate in the Irish jurisdiction, with potentially far-reaching consequences for the sovereignty and human rights of the Irish people. The implementing law does not foresee conditions under which bringing other police forces onto a joint investigation team is prohibited and does not elaborate conditions under which consent to enter a joint investigation team led by another state's police force should be withheld. It is based on a fundamentally flawed presumption that all EU police and intelligence forces are democratically sound, follow international best practice and can be trusted not to violate human rights. In fact, Amnesty International has condemned the vast majority of EU member states, including Britain and Ireland, for perpetrating abuses of human rights within their territories. Sinn Féin's concerns regarding the PSNI and the Garda are well known but one must also consider the track records of the police forces with which they will co-operate under joint investigation teams powers.

Amnesty International has documented well-founded allegations of police ill-treatment and excessive use of force against detainees as well as impunity for these actions in Austria, Belgium, France, Germany, Greece, Italy, Portugal and Spain. Some of these cases have resulted in wrongful deaths.

Sinn Féin can support inter-jurisdictional police co-operation on investigation of serious crimes with a cross-border dimension where such co-operation is authorised on a case-by-case basis, limited to cases where it is necessary, and where there are appropriate safeguards and accountability mechanisms in place. However, Sinn Féin cannot support the operation of foreign police forces within the Irish jurisdiction, especially where such forces are not subject to domestic policing oversight and accountability mechanisms, and therefore does not support the use of joint investigation teams. In addition, foreign officers serving on joint investigation teams may come from a very different and in some cases much more aggressive or combative policing culture. At a minimum, therefore, foreign officers must be fully trained in human rights and must also be screened for misconduct before being permitted to serve in any capacity in the Irish jurisdiction. Human rights qualifications and misconduct screening must be essential prerequisites, therefore, for any joint investigation teams. Failure to meet these conditions must disqualify officers from serving on joint investigation teams in the Irish jurisdiction.

The Schengen information system is Europe's largest security database. It started out principally as an electronic system for migration control and deportation. As such it is an essential part of the fortress Europe architecture we oppose. It allows EU member state police forces and consular officials to access and exchange data on specific individuals for the purpose of creating a secure common external frontier to the EU. However, such data can also include a list of "persons to be submitted for discreet surveillance ... for the prevention of threats to public security". It, therefore, has obvious implications for the right to data protection and privacy, and other civil liberties.

The supplementary information request at the national entry, SIRENE, manual is a set of operating instructions and rules governing the exchange of electronic information under the Schengen information system. A human rights audit raised concerns about this system, highlighting significant flaws in the data protection regime and the need for greater accountability and increased safeguards. This first generation Schengen information system contained information on previous asylum applications, stolen cars and other stolen property, and persons registered for discreet surveillance. The second generation system, SIS-II, database has been extended to contain biometric data and information on extradition, EU arrest warrants and third country nationals refused entry to the EU. According to Statewatch, intelligence entries will also feature.

Importantly, SIS-II is not just a database of information on migrants or on criminals. It is a mechanism that allows Europe-wide surveillance of the population in its entirety. The Government has introduced biometric passports and these biometrics will be stored on the SIS-II. In other words, soon enough we will all be on it. SIS-II is, therefore, a database of sensitive information to which a large number of authorities from all the member states and bodies such as Europol that are completely unaccountable to the Irish people -it is to be hoped that might change somewhat with the provisions of this Bill - will have access as of right. That is, if the information is on the joint system, they can have it. There is no need to request it from the national authority, from which the information originates, and no need to explain to the national authority why it is being requested.

This is in marked contrast to the requirement of judicial authorisation before law enforcement agencies can access sensitive data, which Sinn Féin supports. Under the principle of availability, access to SIS-II data will be automatic regardless of the nationality of the data subject or the rules that apply in his or her country of residence. Moreover, Europol will be able to share this sensitive information with third countries. This is a dangerous prospect, given that the CIA kidnapped individuals from EU member states during its programme of extraordinary renditions under the Administration of President George W. Bush.

See this speech in context