James Browne (Wexford, Fianna Fail) | Oireachtas source

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion 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, to take part in the adoption and application of the following proposed measure: Directive of the European Parliament and of the Council amending Directive (EU) 2019/1153 of the European Parliament and of the Council, as regards access of competent authorities to centralised bank account registries through the single access point, a copy of which was laid before Dáil Éireann on 18th August, 2021.

I thank the Deputies for agreeing to debate this motion at relatively short notice and welcome the opportunity to address the Dáil on Ireland's opt-in to a new proposal on facilitating the use of financial and other information for the prevention, detection, investigation, or prosecution of certain criminal offences.

Ireland has an option, provided for in Article 3.1 of Protocol 21 annexed to the Treaty of Lisbon, to opt in to individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months, from the date a proposal or initiative is presented to the Council, to notify the Presidency of the Council in writing of its wish to take part in the negotiation, adoption and application of any such measure. The three-month period for this proposal is due to end on 1 November. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas. Ireland can also accept a proposal at any time after it has been adopted, but in such a case, it will not have been in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration appended to the Treaty of Lisbon of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

This proposal, as published, seeks to extend access to the bank account registers, BAR, single access point, which will be introduced by the sixth anti-money laundering directive, 6AMLD, to the bodies already designated with responsibility for the prevention, detection, investigation or prosecution of criminal offences under Directive (EU) 2019/1153, which Ireland has already opted into. My officials have consulted with the Office of the Attorney General and have been advised that there is no legal impediment to Ireland opting into this proposal.

This draft EU directive will extend access to the bank account registers single access point by amending an earlier EU directive, Directive (EU) 2019/1153. This proposal was published in July together with a new suite of EU proposals reforming anti-money laundering efforts at an EU level. Those new EU proposals presented an ambitious set of measures which aim to modernise the EU's anti-money laundering and regime to counter the financing of terrorism. The package comprises four key legislative proposals, which include a regulation on directly applicable rules on anti-money laundering and countering the financing of terrorism, a regulation proposing the establishment of a new EU anti-money laundering authority, a crypto-assets-related amending regulation, and the sixth anti-money laundering directive. While the proposed directive that we are discussing today is not a core element of the new package, the European Commission has presented this amending directive as corresponding to the other measures on the table. This amending directive seeks to extend access to the bank account registers single access point which will be introduced by the sixth anti-money laundering directive to the bodies already designated with responsibility for the prevention, detection, investigation or prosecution of criminal offences under Directive (EU) 2019/1153.

Ireland has already opted into Directive (EU) 2019/1153 and work is in progress to transpose that directive into Irish law. The directive already requires member states to designate authorities competent for the prevention, detection, investigation, or prosecution of criminal offences in order for them to access and search the centralised, automated mechanisms, which are referred to in Directive (EU) 2019/1153 as centralised bank account registers. The BAR-related elements in Directive (EU) 2019/1153 include a provision of wider access to the bank accounts mechanism to be extended to the Criminal Assets Bureau and a cohort of An Garda Síochána at senior level and prescribe that BAR access logs must be kept. The new anti-money laundering directive will provide access to the BAR single access point only to financial intelligence units, FIUs. The national bodies which receive suspicious transaction reports are obliged to enter these and forward them as appropriate to criminal investigative authorities. In the interests of combating serious crime and, in particular, carrying out effective financial investigations, authorities competent for the prevention, detection, investigation or prosecution of criminal offences also need to have access to the BAR single access point to be able to identify, analyse and interpret the financial information relevant for criminal proceedings. This is why the proposed amended directive is necessary.

Looking at the current state of play in Ireland with regard to the bank account register, the fourth EU anti-money laundering directive requires member states to put in place a centralised automated mechanism to allow for the timely identification of any individual or legal person holding or controlling a payment account or bank account identified by an IBAN, or a safe deposit box held by a credit institution within a member state's jurisdiction. The Central Bank of Ireland was appointed as registrar of the BAR. The Department of Finance continues to engage with the Office of the Parliamentary Counsel on drafting secondary legislation to give effect to the BAR. This legislation will provide access to the FIU in An Garda Síochána to allow it to conduct searches in and retrieve information from the BAR. It is anticipated that the BAR mechanism will go live in the third quarter of 2022.

The type of information which will be available through the BAR single access point includes names, IBANs, dates of account opening and closing, and the duration of the lease period in the case of a safe deposit box. The same limitations and safeguards created in the earlier Directive (EU) 2019/1153 will remain in place. The benefit of the change contained in the proposed amending directive that we are discussing today is that by interconnecting a national centralised bank accounts register at EU level, authorities with access to the BAR single access point would be able to establish quickly whether an individual holds bank accounts in other member states without having to ask their counterparts in all member states to investigate and report back.

The basis for the EU anti-money laundering framework, Article 114 of the Treaty on the Functioning of the European Union, TFEU, relates to the Internal Market. The aim is to prevent the use of the EU's financial system for the purpose of money laundering and terrorist financing. This amending directive complements and builds on the preventative policies to counter money laundering and terrorist financing and reinforces the legal framework for law enforcement co-operation. That is why this proposed directive has a different legal basis and falls under Title V of the Treaty on the Functioning of the European Union. Therefore Protocol 21 of TFEU applies and Oireachtas approval under Article 29.4.7° of the Constitution is required for Ireland to opt into the measure.

As I mentioned, the Office of the Attorney General has been consulted on the proposed directive. That office did not identify any adverse legal or constitutional implication for Ireland of opting into this amending directive. Under Protocol 21, Ireland has three months to opt into this proposed directive under Article 3. The deadline for opting into the proposal under Article 3 of Protocol 21 is 1 November 2021, which is why this decision is urgent. Opting in under Article 3 allows Ireland to fully take part in the adoption and application of the proposed measure and to influence the content of the directive that is to be agreed. If the House supports opting in, it is my intention to notify the institutions of our participation next Wednesday.

I reiterate to Deputies that when Ireland signed up to the Lisbon treaty, the Government of the day made a declaration which is attached to the treaty that we would participate to the maximum extent possible in measures relating to police co-operation. I see no reason to deviate from that position. Failing to opt in at this stage would weaken Ireland's ability to influence the evolution of this proposal and the rest of the EU anti-money laundering package which is currently being negotiated. In addition to the operational, practical and policy-level concerns which makes this opt-in important, there is a further consideration of Ireland's reputation. Not opting in under Article 3 of Protocol 21 would present risks to Ireland's reputation and the perception of Ireland's commitment to the anti-money laundering framework at EU level.

Money laundering and terrorist financing pose a serious threat to the integrity of the European Union's economy and financial system, and to the security of its citizens. Given Ireland's status as a hub for companies in the financial services, technological and pharmaceutical sectors, it is important that we commit to alleviating the risks of economic crime by having appropriate preventative measures, including robust legislation in this area covering a suite of interconnected economic crimes such as corruption, fraud and money laundering.

For the reasons I have outlined, I request the House's approval to opt into this proposed directive. I look forward to hearing the views of Deputies and I urge them to support the motion.

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