Colm Brophy (Dublin South West, Fine Gael)
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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 take part in the adoption and application of the following proposed measure: Proposal for a Council Decision authorising Member States to sign, in the interest of the European Union, the Third Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, a copy of which was laid before Dáil Éireann on 4th December, 2025.

I thank the Leas-Cheann Comhairle and the House for facilitating this motion today. I welcome the opportunity to address the Dáil on Ireland's opt-in to an EU proposal for a Council decision authorising member states to sign, in the interest of the European Union, the third additional protocol to the European Convention on Mutual Legal Assistance in Criminal Matters. Ireland has an option, provided for in Article 3 of Protocol No. 21 annexed to the Treaty on the Functioning of the European Union, to opt in to individual proposals in the area of freedom, security and justice. Protocol No. 21 provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, with the three-month period for this proposal ending on 17 December 2025. Ireland can also accept a proposal at any time after it has been adopted, under Article 4 of Protocol No. 21, but in such cases, Ireland will not be 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 EU treaties, of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

Opting in now under Article 3 emphasises Ireland’s commitment to strengthen the ability of states to respond effectively to crime by improving and supplementing the mutual assistance procedures set out in the European Convention on Mutual Assistance in Criminal Matters, as well as its first two additional protocols. The third additional protocol was drafted by the Council of Europe’s Committee of Experts on the Operation of European Conventions on Co-Operation in Criminal Matters, drawing on lessons from the Covid pandemic and the growing reliance on digital tools in international judicial co-operation. Member states, including Ireland, participated and contributed to its development.

The third additional protocol enhances the ability of member and partner states to tackle crime more effectively in a rapidly evolving political, social and technological landscape. It supplements the original convention and its first two protocols, adapting them to today’s challenges. Key improvements include the simplification and acceleration of mutual legal assistance procedures, a broader scope for requesting assistance, an expanded use of electronic communication and video conferencing, the authorisation of technical surveillance tools, and the introduction of time limits.

Ireland supports the third additional protocol and views it as a valuable instrument for strengthening mutual legal assistance in criminal matters. While further technical and policy work is necessitated before Ireland will be in a position to sign and ratify the measure, it is anticipated that Ireland will do so as soon as is practicable. The proposal seeks to authorise member states to sign the third additional protocol. In fact, it was already opened for signature at the Conference of Ministers of Justice in Valletta, Malta, in September of this year. Sixteen states signed, including Belgium, Germany, Greece, Lithuania, Luxembourg, Malta, Portugal, Romania and Sweden. In the circumstances in which many have already signed, member states have questioned the necessity for this Council decision and the Commission’s competence with respect to the measure. Member states have expressed significant concerns as to the approach taken by the Commission and the precedent this may create going forward. This issue will form the substance of negotiations as the measure is discussed in Brussels in the coming months. Ireland very much shares these concerns and, therefore, it is essential that we have a credible and influential voice at the table in these negotiations. This is best achieved by opting in now to the proposal under Article 3.

The Department of Justice, Home Affairs and Migration requested advice from the Office of the Attorney General regarding the implications of a proposed decision to opt in to this proposal. The Office of the Attorney General did not indicate any constitutional or legal impediment to an opt-in under Article 3 or Article 4 in the written advices, although the wider issue of the lack of clarity as to the Commission’s competence in exercising its powers with respect to this international agreement is raised. In this regard, Department of justice officials will continue to participate actively in the negotiations in Brussels on this and any other issues raised to ensure the final text of the Council decision works well for Ireland and the EU as a whole.

Criminal activities continue to evolve and are becoming increasingly cross-border in nature. The third additional protocol will support Council of Europe member states to combat crime by introducing several important updates aimed at modernising and streamlining mutual legal assistance procedures. Ireland has made a firm commitment to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible. Opting in to this proposal now will allow us to stay in step with our European partners in the criminal justice sphere and demonstrate our commitment to combating cross-border crime and fighting impunity. Furthermore, it will ensure that Ireland continues to build a strong, credible and influential voice among European partners. The Government has no hesitation in commending this motion to the House.

Matt Carthy (Cavan-Monaghan, Sinn Fein)
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Gabhaim buíochas leis an Leas-Cheann Comhairle. Cuirim fáilte roimh an deis labhairt ar an rún seo. Is mian liom an deis seo a úsáid chun roinnt piontaí tábhachtacha a ardú faoin Aontas Eorpach agus an daonlathas. This is another example of a Protocol No. 21 motion that has come before the Dáil on which, once again, there has been a very short deadline for discussion before signing up. While Ireland has signed up to the European Convention on Mutual Legal Assistance in Criminal Matters, as well as the first and second additional protocols to that convention, the third additional protocol we are being asked to sign up to requires proper scrutiny. Each time we debate one of these motions I am struck by the democratic deficit at the heart of the European Union, how far away decision-making is from the people affected, how little democratic input there is and how little the people know about decisions that are being made. The fact is that very often the Irish people know very little about decisions being made at European Union level that will impact on them.

As political power was transferred away from EU member states to EU institutions, Protocol No. 21 was an important protection for Irish interests in protecting the right of the Irish people to make decisions in the areas of freedom, justice and security. Not only should we be holding on to the sovereignty that we have, including the powers protected by Protocol No. 21, we should be examining where member states should be taking back powers to bring decision-making as close as possible to the people affected by those decisions. For most people, EU decision-making is opaque, complex and bureaucratic. There is not enough democratic input into most decisions being made at EU level. It is time to recognise that the less control and input that people feel they have in respect of the decisions that impact on their day-to-day lives, the more it contributes to political alienation and voter apathy. Therefore, all motions that come before the Dáil as part of Protocol No. 21 opt-ins should be considered in the context of our overall approach to the mission creep by the European Union in relation to the areas of freedom, security and justice, and also in the context of needing to protect citizen participation through representative political decision-making.

For Sinn Féin, the issue of sovereignty is paramount in considering these types of motions, which now regularly come before the Oireachtas for consideration. A constant drip-drip of handing over sovereignty to the EU undermines democracy and our ability as a State to act in the best interests of the people of this State. My position is that unless there is a compelling reason to the contrary, Ireland should make our own decisions on issues in the area of freedom, security and justice. While Sinn Féin obviously supports mutual legal assistance to tackle cross-border crime and crack down on those criminals who operate across borders, sovereignty over justice matters must remain firmly in the hands of the people of this State.

This motion relates to the third additional protocol to the European Convention on Mutual Assistance in Criminal Matters. This convention provides that states that are party to it agree to afford each other the widest measure of mutual assistance, with a view to gathering evidence and hearing witnesses, experts and accused persons.

The first additional protocol extended international co-operation to the service of documents concerning the enforcement of a sentence and similar measures. It also added provisions related to the exchange of information on judicial records. The second additional protocol broadened the range of situations in which mutual assistance could be requested. It aimed to make the provision of assistance easier, quicker and more flexible, including by taking account of technological developments.

While the majority of the third protocol is also related to technological developments, including establishing electronic communications as the preferred means in all cases of sending and receiving mutual assistance requests, it then also permits hearings by video conference. It is this third article of the new protocol which raises some concerns that could suggest greater scrutiny is required. Article 3 of the third protocol deals with the use of technical recording devices in the territory of another state that is party to the convention. This involves a framework of co-operation on the use of technical recording devices, GPS, audio and software in the territory of another party state, including requests after the fact, such as where it has crossed a border prior to the request being made, for example. This is the part of the third protocol that would raise some concerns in the context of the increased securitisation and militarisation within the European Union. I have some concerns regarding the expansion of the use of technical recording devices in the territory of other states because it is clearly stretching the interpretation of mutual legal assistance which is generally understood as the sharing of evidence, serving of documents, etc., rather than letting the agents of another state operate within your sovereign territory.

Will the Minister of State indicate in what detail he has looked into the implication of this new expansion of mutual legal assistance, including issues in respect of sovereignty? It will be useful if the Minister of State outlines the safeguards to prevent the misuse of such provisions. In his remarks the Minister of State mentioned that the Attorney General raised the wider issue of the lack of clarity as to the Commission's competence in exercising its powers with respect to this international agreement. The Attorney General has raised that issue, the Minister of State tells us, but he did not detail what concerns precisely were raised by the Attorney General. It is unfair for the Minister of State to come with another Article 3 proposal while questions remain outstanding. Along with the concerns I have outlined, once again this highlights how signing up to something under Article 3 of Protocol 21, with just days left until the deadline for signing, is symbolic of a bad approach that unfortunately is becoming all too common on the part of the Government.

This week in the justice committee we saw that the State signed up under Article 3 to a provision that results in a deadline of this coming February to enact legislation and the work has not been done. It was signed in 2018. Five years have passed and now there is a rushed attempt to secure a deadline and create a new office. The Minister of State will be aware that the justice committee has raised huge concerns. Had we signed up under Article 4 or left open the consideration, we could have adopted and moved forward at a pace that would ensure that the Houses of the Oireachtas could do their job, which is to scrutinise these measures properly. Instead, we have another proposal, another short deadline, and TDs are told to take it or leave it. It is an absolutely disrespectful way of treating this House and treating the Irish people's House of democracy. For that reason, we will be rejecting the proposal this evening.

Verona Murphy (Wexford, Independent)
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Before I call Deputy Gannon, who might indulge me for a moment, I would like to welcome members of the Rathangan Country Fair century of harvest committee and others who are in the Gallery. This year they were successful in achieving a world record for having all known methods of harvesting of the past century operating in the same field. It was 100 years of harvesting. While doing so, they set a world record and raised a very significant sum of money for charity. Well done to them. They are very welcome. They are from County Wexford, along with a former chair of the agriculture committee. I wish them a good evening and safe home.

Gary Gannon (Dublin Central, Social Democrats)
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At its core this protocol is presented as a modernisation project, an updating of a 1959 convention in order that cross-border co-operation in criminal investigations can function in a world of encrypted phones, cloud storage, cybercrime and increasingly transnational networks. That is a legitimate challenge. Nobody denies that. However, to be clear, we have been given extraordinarily little briefing on the real implications of what we are being asked to sign up to today. When the language is stripped back, this protocol is not just about allowing a Garda detective to send a letter of request more quickly. It is about broadening the legal basis for digital surveillance requests, remote searches, GPS tracking, data interceptions and the sharing of that data between states. If we are being asked to vote on that, then we need a hell of a lot more detail than we have received.

The truth is that every time Ireland opts into a new EU framework on justice co-operation, there is a familiar pattern. There are big promises about efficiency, speed and fighting cybercrime but very little upfront clarity on what safeguards actually exist for people's data or for privacy, proportionality and oversight. That is where I have to place my concerns today. We are being asked to approve a protocol that allows for enhanced co-operation using digital tools that can be extraordinarily intrusive, tools that in another context would rightly trigger debate about surveillance creep, mission drift and large-scale data retention. Yet, we are expected to just sign off and trust that all the appropriate protections are already in place.

However, they are clearly not. Ireland still does not have a comprehensive framework for governing how cross-border digital evidence is collected, retained, stored, accessed or deleted. We do not have clarity on whether data acquired under this protocol could be repurposed for national security claims, a term that is still nowhere defined in Irish law. We do not have adequate transparency mechanisms for the public to understand the scale of surveillance technologies being used.

At a time when the European Court of Justice has repeatedly struck down overly broad data retention laws, the idea that we should simply wave through expanded cross-border data access without scrutiny feels deeply irresponsible. It is impossible to ignore that some of the most consistent and credible warnings on EU digital surveillance frameworks have come from civil liberty organisations. Such groups as the Irish Council for Civil Liberties have spent years reminding both our Government and the EU that rights have not become optional just because technology makes it convenient to overwrite them. These groups highlight that it is not a burden but a democratic obligation.

I want Ireland to play its part in tackling cybercrime and serious organised crime. We absolutely should co-operate with our European partners. However, co-operation cannot mean signing blank cheques or shifting ever more investigative power into international spaces where parliamentary scrutiny becomes weaker and democratic accountability becomes more abstract. Therefore, before we opt into something like this protocol we should be asking basic but essential questions about how data obtained under this protocol will be protected, what oversight body will monitor its use and whether individuals will have any route to challenge misuse. Will Ireland be able to refuse requests that violate our own proportionality standards? What safeguards exist against surveillance powers being stretched beyond their intended purpose? None of these questions have been adequately addressed in the material we were given.

In principle, I support Ireland engaging in modern rights complaints co-operation with our European partners. However, I cannot endorse a system where surveillance capacity expands faster than the safeguards that are supposed to govern it. Ireland is already behind when it comes to digital rights protections. We are already behind on regulating algorithmic decision-making. We are already behind on providing transparency on how law enforcement technology is used in the State. We cannot keep making the same mistake of approving international frameworks first and asking human rights questions later.

My contribution today can be defined simply: if we are serious about protecting both security and civil liberties then we need far more clarity, more safeguards and more democratic oversight than that which has been placed before us. Cross-border co-operation is important but so is the right of every person in the State not to be subjected to digital surveillance without strict legal protections. Until those protections fully articulated, fully costed and fully scrutinised, I believe we should proceed with caution, not rubber stamp endorsement.

Paul Gogarty (Dublin Mid West, Independent)
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I take on board the civil liberties and civil rights argument. It is hugely important. However, when we look at how crime has changed over the decades, it has become more and more transnational. I am not just talking about criminal drugs gangs. I know of the work being done by Europol in trying to catch and deal with sexual predators. This is not just about the transmission of images but the people involved in creating the images on location.

The sharing of that information has helped to catch the criminals where they are abusing children, so if we can go a little further on that it would be hugely welcome.

Another area is cyberterrorism. More and more, our political system is subject to misinformation coming through troll farms, usually not within EU member states, admittedly, but sometimes in countries that have an interest in EU accession or where the EU states bordering them have better access to tracking down and tracing that type of information. As such, there is a national discretion issue and a privacy and data protection issue as well because any sort of expanded powers for electronic surveillance and cross-border interception will raise civil liberties concerns, but we have to balance those with the common good. As it stands, criminals are literally able to get away with murder because of lack of credible information.

We need to upgrade our systems throughout the European Union and this protocol is adapting an original framework done in 1959 when we barely had colour television, let alone the Internet or AI-assisted technology. We are talking about reducing delays in judicial co-operation through videoconferencing and having the interception of telecommunications and digital evidence being processed faster. Ireland’s opting in would allow a collective EU response which we have not always been able to have up to now.

I would say to the Minister of State to be careful, but from his contribution I do not believe the Government is literally trying to turn Ireland into part of an EU Big Brother state to share people’s information. I do not see it that way at all. There was a similar argument made yesterday about CETA. I was originally against that agreement, but with the advent of the Trump Administration and the hostile view towards Europe and towards Ireland, greater trade co-operation with Canada is viewed as being necessary and there were checks and balances put in. As this goes, we will see checks and balances and we are still a sovereign state with the ability to opt out of protocols as and when required.

All things being balanced, the Council of Europe has rules and the EU is a rules-based institution that has protection for individuals and their privacy. It has protections for consumers and environmental protections. The European Union is not looking to turn into a Big Brother superpower. In fact, our constituents are looking for more surveillance, in many cases. We do not want Chinese-style monitoring on every corner but CCTV is being requested more and more. If can get more of that information while protecting individual rights, it is a good thing in the modern age.

I mentioned a while back that our children are being abused online through acceding to social media companies operating unimpeded. I had criticisms of the Government’s contribution on the ID verification aspect of it, so I am not unaware of the risks and not doing enough, but in this case, through the existing rules in Europe, the parliamentary means, the Council of Ministers, etc., any kind of enhanced surveillance and cross-border co-operation can only be a good thing because it is specifically in terms of catching and dealing with criminals. It is sharing the information on that basis. It is not sharing people’s eating habits, it is not sharing their standard online practices or what their individual likes and dislikes are. It is following up on people who may be involved in crime. It is following up on organisations that are trying to dismember our democratic process in elections and outside them and spewing misinformation. Whether this works, ultimately, depends on all other states opting, and the levels of co-operation may be different between EU member states. It will only work if everyone works towards it. The Government should be very vigilant in protecting individual rights, but at the same time, on the general principle, we need to be pushing more towards co-operation and sharing this information for the common good.

Colm Brophy (Dublin South West, Fine Gael)
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I again thank the House for facilitating the motion and thank all the TDs who contributed. As I mentioned in my opening remarks, this proposal will enhance the ability of member and partner states to tackle crime more effectively in a rapidly evolving political, social and technological landscape. That was very clearly also mentioned by the last speaker. The third additional protocol, though itself introduced as several important updates aimed at modernising and streamlining mutual legal assistance procedures among Council of Europe member states, the main goal is to enhance cross-border co-operation in criminal matters, especially in the light of the digitalisation and evolving forms of crime.

On some of the comments made about human rights by some of the contributors, the third additional protocol reaffirms commitments to human rights, rule of law and democratic safeguards. All co-operation remains subject to Irish constitutional protections, the European Convention on Human Rights, domestic judicial oversight and data protection laws, which is of absolute importance. Also, to address the point, by opting in to the proposal now Ireland ensures we are at the table with our European partners and can be involved in detailed discussions of this proposal. People are challenging and questioning this but we are giving ourselves the opportunity to be involved. Opting in now to this proposal will ensure Ireland fulfils its declared intention to take part in the adoption of Title V measures to the maximum extent possible. As such, opting in will safeguard our international reputation and demonstrate Ireland’s commitment to the EU, ensuring we do not fall out of step with our European partners when it comes to issues relating to criminal proceedings and the European area of freedom, security and justice.

A little bit separate to this, earlier I read an interview given by the French National Front leader Bardella, and I have to say Deputy Carthy’s comments on the European Union and his are almost identical. The Deputy has very strange bedfellows when it comes to his view of the European Union. It is worth almost reading Bardella’s remarks because Deputy Carthy’s remarks in relation to how Europe works and his remarks are almost the same. I commend this motion to the House.

Verona Murphy (Wexford, Independent)
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In accordance with Standing Order 85(2), the division is postponed until the weekly division time later this evening.