James Browne (Wexford, Fianna Fail)
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I move:

That Dáil Éireann, having regard to 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, and noting that a copy of the following proposed measure was laid before Dáil Éireann on 6th January, 2022: Proposal for a Directive of the European Parliament and of the Council amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA, 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the European Parliament and of the Council, as regards digitalisation of judicial co-operation, approves the exercise by the State of the option or discretion under the said Protocol No. 21, to accept, in the event that the foregoing proposed measure is adopted by the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union, the measure so adopted.

I thank Members for their willingness to deal today firstly with the question of Ireland’s participation in the e-CODEX regulation on a computerised system for the cross-border electronic exchange of data in the area of judicial co-operation in civil and criminal matters; secondly with a proposal for a regulation of the European Parliament and of the Council on the digitalisation of judicial co-operation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial co-operation, in other words, the digitalisation regulation; and thirdly with the digitalisation directive regarding the digitalisation of judicial co-operation. The three proposals are related to each other and are being put before the House today in that context. Scrutiny of these proposals is important in its own right and is a necessary step in facilitating the moving of the motions in both Houses of the Oireachtas, which will enable the opt-in to the measures to be exercised.

Digitalisation of justice is a central focus for the European Commission. The use of digital channels for communication in cross-border judicial proceedings will facilitate judicial co-operation in civil, commercial and criminal matters. Therefore, the legal bases for these initiatives are Articles 81(1) and 82(2) of the Treaty on the Functioning of the European Union. The e-CODEX regulation and the digitalisation proposals will facilitate electronic communication between member states in cross-border judicial proceedings and will be vital to the exchange of documents in certain types of criminal and civil cases. Participation will be essential to Ireland’s co-operation in such matters in future. Participation will ensure the availability and use of electronic means of communication in cross-border cases; ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form; and ensure the validity and acceptance of electronic signatures and seals in the context of electronic communication in cross-border judicial co-operation and access to justice.

The e-CODEX regulation was adopted in May 2022 and is already in operation. While the digitalisation proposals are still under examination, it is envisaged that they will be adopted later this year. The e-CODEX regulation and the digitalisation proposals are closely related and it is proposed that they be dealt with together for reasons of context and convenience. What I am proposing in respect of the digitalisation proposals is to undertake the required procedures at this time in order to facilitate Ireland’s opt-in immediately on their adoption. The approach proposed will give a clear signal of our wish to engage positively with the digitalisation process, and will facilitate our early involvement with this project. Members may be wondering about the appropriateness of bringing these proposals before the House today and undertaking the opt-in processes in advance of their adoption. Legal advice has been taken on that point. That advice is that there is no legal or constitutional impediment to such a course of action.

The digitalisation proposals are omnibus measures which apply to or affect a variety of EU instruments. Members will have noticed that the digitalisation proposals either apply to, or affect, a number of EU instruments in which Ireland is not participating by virtue of Protocol No. 21. Ireland is not participating in six of the affected legal acts; three civil and commercial instruments and three criminal measures. I can assure the House that legal advice has also been obtained in relation to this matter and officials of the Department have engaged extensively with the current Presidency, Sweden, with the European Commission and with the relevant legal services of the EU institutions. I am satisfied that both the European Commission and the Council legal services have confirmed that opting in to these omnibus proposals does not commit Ireland to participation in EU legislation with which we have opted not to engage.

Turning to the measures themselves, I propose to deal firstly with the e-CODEX regulation. I can inform the House that e-CODEX stands for e-justice communication via online data exchange. The regulation sets out that eu-LISA, the EU agency for the operational management of large-scale IT systems, will manage the e-CODEX system from later this year, taking over from the consortium of member states and other organisations such as the European Chamber of Legal Professionals which began developing it in 2010.

E-CODEX provides for secure electronic communication in some cross-border civil and criminal proceedings between citizens and courts, and between member state administrations. It does this by means of various access points in member states. These access points can securely exchange electronic messages with each other directly over the Internet using a set of common IT standards or protocols. The system also allows for the exchange of documents using standard digital forms. To date, e-CODEX has been used by at least ten member states in a range of pilot programmes. These pilot programmes have included proceedings relating to the European small claims procedure, the mutual legal assistance procedure in relation to criminal matters measure and the mutual recognition of financial penalties measure.

The e-CODEX regulation seeks to move the governance and management of the operation of the e-CODEX system from the ad hocconsortium to eu-LISA later this year. Further to this, the regulation sets out the composition of the e-CODEX system, the responsibilities of the European Commission, of the member states, of eu-LISA and of national entities which may be managing access points, which are entry points to the secure system via which information will be exchanged directly. The regulation also provides for the establishment of a committee of member states to assist the European Commission in relation to a number of matters regarding the operation of the system. Ireland cannot participate in meetings of that committee or attend as an observer until such time as a formal opt-in takes place, leaving us without any influence on it. Similarly, Ireland cannot participate in the e-CODEX advisory group or the e-CODEX programme management board, both central structures established by the regulation within eu-LISA to support and oversee the system.

I will turn now to the other measures before us. There is a proposal for a regulation on the digitalisation of judicial co-operation and access to justice in cross-border civil, commercial and criminal matters, which amends certain Acts in the field of judicial co-operation. There is also a proposal for a directive amending various directives and framework decisions as regards digitalisation of judicial co-operation, which I will refer to as the digitalisation regulation and the digitalisation directive, respectively, or jointly as the digitalisation proposals.

In practical terms, the effect of the application of the proposals will ensure that electronic means of communication are both available and used in cross-border cases between member states' judicial and other competent authorities, including the relevant justice and home affairs agencies and EU bodies, where such communication is provided for in EU legal instruments on judicial co-operation.

In addition, and without interfering with the courts' powers to decide on their validity, admissibility and probative value as evidence under national law, it is envisaged that documents will not be refused or denied legal effect solely on the grounds of their electronic form. The proposals also have positive implications for the validity and acceptance of electronic signatures and seals in the context of electronic communication in cross-border judicial co-operation and access to justice.

In addition, they are related to the 2020 recast regulation on the service in the member states of judicial and extrajudicial documents in civil or commercial matters, and to the 2020 recast regulation on co-operation between the courts of the member states in the taking of evidence in civil or commercial matters, under which use of e-CODEX is mandatory with effect from 1 May 2025. Ireland is already participating in both of these regulations and their mandatory use of e-CODEX makes Ireland's participation in the e-CODEX regulation all the more significant. As set out above, given the central role of e-CODEX in the digitalisation proposals, for reasons of context, consistency and coherence, we should now participate in the full suite of measure concerning e-CODEX.

In conclusion, I thank the House for making the time available to deal with these matters. I look forward to the comments of Members. I will be happy to address any questions they may have.

Pa Daly (Kerry, Sinn Fein)
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These debates on the State's participation in EU legal and institutional co-operation are always welcome, both so we can examine the proposals themselves and the context in which they operate.

I wish to address the current context of the courts and their functioning before turning to the proposals at hand. The State had 3.27 judges per 100,000 people in 2020, well below the European average of 17.6 judges. The recent moves have improved this but more must be done.

The judicial planning working group's report has been addressed a number of times within this House and Sinn Féin broadly welcomes the report, and the Government's move to appoint more judges. I note that four High Court judges were appointed this week. I am curious as to how the other recommendations are progressing, especially the review of the District Court and Circuit Court areas. As we stated previously, the review needs to take into account accessibility and geography and not just to seek to rationalise resources. We all know that many District Courts throughout the State have been closed this century, which is contrary to justice being done and being seen to be done in our communities.

I am also eager to hear details of the judicial resources planning model and what the proposed more flexible working arrangements are. Obviously, these reforms, and the ones contained within this motion, will place pressure on staff in the Courts Service. They do important work and are currently at maximum capacity and their numbers have never recovered from austerity times. This is also the case in coroner's offices, which form an important part of the justice system. The Irish Examinerrecently covered the case of the late Mr. Collopy, whose family has had to wait a considerable length of time for a toxicology report. My colleague in Wexford, Deputy Mythen, has been working with the family to get answers. The long delays in toxicology results are causing families much anguish. This is the latest development in the situation up and down the country. The ICCL report setting out a pathway for reform is now a few years old and there are multiple other calls for reform. I have submitted a number of parliamentary questions on this matter and an update on what plans the Department has for reform of the system overall is important for the Collopy family and the many others like them.

The Irish Times this week contains an important and timely intervention from the former judge, Ms Justice Deirdre Murphy. The importance of the separation of powers goes without saying, but policies related to the administration of the courts are squarely in the remit of the Dáil and the Government. The voices of experienced judges are important and while we do need to be sensitive to constitutional strictures, it helps us to hear from judges, both current and retired. The functioning of courts must change, but at the same time the legal system is slow to change, as fundamental rights and responsibilities cannot be ignored. The former judge, Deirdre Murphy, raised some important points in her interview. One of her concerns relates to the increasing monopolisation of State work by a select number of firms, which in my view risks an effective oligopoly within the legal trade. The Attorney General's guidelines on how State agencies should brief firms is important, but a review into the State's distribution of legal work and the effect it has on firms around the country, should be examined. Judge Murphy stated: "I think the system is broken, there are too many barristers scrabbling for too little work, monopolies of big firms, the briefing policy, pressures on the smaller solicitor firms." She continued:

People told me I didn't charge enough. The bigger firms want to brief somebody who will charge a fortune so that they can justify charging a fortune...The bottom line is profit. Who is representing the ordinary person?

That ordinary person and access to justice must be at the heart of everything we do in relation to the justice system. Our consideration of these proposals are no different. According to the EU, the e-CODEX system is composed of an e-CODEX access point, consisting of an interoperable gateway, which allows the secure exchange of information over a telecommunications network with other gateways to be carried out and a connector to link connected IT systems to the gateway for the purpose of exchanging data with other such IT systems. The system also contains digital procedural standards and has supporting software products, documentation and other assets listed in the annexe to the relevant regulation.

According to the briefing, the e-CODEX regulation and the digitalisation proposals will facilitate electronic communication between member states in cross-border judicial proceedings and will be vital to the exchange of documents in certain types of criminal and civil cases. Again, according to the briefing, participation ensures the availability and use of electronic means of communication in cross-border cases. This is to ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form.

The effects of the proposal seem positive, albeit we need to bear in mind data protection and storage concerns. We also need to bear in mind that some member states have engaged in the over-prosecution of political activists and played fast and loose with civil liberties. Providing for these proposals improve the sharing of documents but do not create a legal right to them being shared without adequate legal supervision that is acceptable.

I have some concerns about the timing of the process. The Department has advised that the State is not participating in six of the affected instruments or legal Acts. At the same time, participation within the digitalisation proposals within the three-month deadline was not possible. Therefore, again according to the Department, approval is now sought at this stage to allow for the making of the necessary opt-in notifications immediately on the adoption of those proposals.

From what the Minister of State outlined earlier, I understand he did get legal advice. The Attorney General has said no legal or constitutional issues arise but more details on the deadline and why it was missed would be welcome.

James Browne (Wexford, Fianna Fail)
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On Deputy Daly's question about the courts, the report of the judicial planning working group was published in February this year. It made 54 recommendations relating to five key areas. That work is ongoing. It included increasing the number of judges by 24 initially and a further 20 upon review. That review is being carried out in respect of delivery and reform of the Courts Service.

With regard to the numbers that are often cited from civil jurisdiction-type countries on the Continent, many judges on the Continent carry out prosecutorial and investigatory roles, which are carried out by An Garda Síochána or the Director of Public Prosecutions, DPP, here. They are very different systems and, as such, the numbers can often be out of kilter in that respect.

Several other reforms have been carried out in the courts system. These include the implementation of the review of the administration of civil justice, which made 90 recommendations with a view to improving access to civil justice, and the introduction of legislation relating to preliminary trial hearings, which is also being completed. The Courts Service modernisation programme is also being carried out and includes upgrading information technology, IT, in the courts.

On Deputy Berry's questions, for reasons of timing and Oireachtas scheduling, it was not possible for Ireland to opt in under Article 3 of Protocol 21 to the e-Codex regulation within the three months of presentation to the Council. That is an exceptionally tight time, in fairness to everybody. The Minister for Justice is strongly of the view that Ireland should now opt in to the e-Codex regulation as quickly as possible under Article 4 of the protocol. As I previously indicated, the e-Codex regulation provides for the establishment of a committee of member states to assist the Commission on matters such as technical specifications. Irrespective of when we opt in, justice officials in Brussels and the Department maintain ongoing involvement in all these regulations.

On Article 4 of the e-Codex regulation and the question of online data security, the fundamental rights and freedoms of all persons affected by the electronic exchange of data through the e-Codex system, in particular the right to effective access to justice and the right to a fair trial, the principle of non-discrimination, a right to the protection of personal data and the right to privacy, shall be fully respected in accordance with the law. Therefore, the digitalisation process has the effect that both the European Commission and various central authorities shall be regarded as controllers in respect of the processing of personal data. In those situations, whatever the numbers, and I do not have the numbers for the Deputy, all the fundamental principles of protection will have to apply to each and every case.

I thank the Deputies who contributed to this discussion. I welcome the broad support for these proposals reflected in their comments. I think we all agree that facilitating greater co-operation in judicial proceedings which have cross-border elements makes sense. There are already certain EU rules governing the conduct of communications, some of which provide for the use of modern technology. However, the existing rules do not ensure an adequate and holistic infrastructure for electronic communications between individuals, legal entities or competent authorities with the authorities of another member state. EU action is needed to co-ordinate member states' efforts and establish a coherent framework for the existing EU rules. Such action will improve the efficiency, resilience, security and speed of cross-border judicial procedures. In doing so, it will simplify and speed up communication between member states' authorities and with individuals and legal entities, thus improving the administration of cases with cross-border aspects and-or implications.

In addition, application of the initiatives discussed today will result in a constituent digital judicial environment across member states, rather than the current patchy digitalisation arrangements. Most important, they will enhance access to justice for citizens and businesses and support the State in its activities in cross-border civil and criminal areas in which Ireland already participates. As I said, opting in to the e-Codex regulation will allow Ireland to participate in the governance and implementation of structures which the regulation sets out. As also noted, undertaking the required procedures now and in relation to proposals for a digitalisation regulation and the digitalisation directive will facilitate Ireland's opt-in immediately upon their adoption.

Seeking the approval of the Houses for these measures together is sensible, given their close relationship. The regulation concerns the sustainability, management and governance of the e-Codex system, the IT system through which electronic data will be exchanged in cross-border proceedings. The digitalisation proposals amend a number of civil and criminal justice instruments to provide for a mandatory use of e-Codex in communications under their instruments. The proposals mandate the use of digital tools in the communication process and provide a legal basis for the use of video-conferencing in cross-border cases, while the application of these proposals should facilitate increased legal certainty, reduce costs and delays and enhance protection of parties' procedural rights by establishing a digital communication channel enabling the effective use of digital tools in cross-border judicial co-operation proceedings.

I believe the benefits of Ireland's participation in these measures insofar as they impact on instruments in which Ireland already participates will accrue for individuals and businesses alike, as well as agencies such as the Courts Service, in enhancing and speeding up access to justice. I ask Deputies to support these motions and Ireland's continued active engagement with EU member state partners in judicial co-operation.

James Browne (Wexford, Fianna Fail)
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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 accept the following measure: Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, a copy of which was laid before Dáil Éireann on 31 December 2020.

James Browne (Wexford, Fianna Fail)
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I move:

That Dáil Éireann, having regard to 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, and noting that a copy of the following proposed measure was laid before Dáil Éireann on 6 January 2022: Proposal for a Regulation of the European Parliament and of the Council on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation, approves the exercise by the State of the option or discretion under the said Protocol No. 21, to accept, in the event that the foregoing proposed measure is adopted by the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union, the measure so adopted.