Wednesday, 11 May 2022
Protocol No. 21 of the Treaty on the Functioning of the European Union: Motions
We will now deal with the following motions: motion regarding proposed approval by Seanad Éireann of a Council decision to provide for continued exchange of DNA profile and fingerprint data with the United Kingdom after 30 June 2022; motion regarding proposed approval by Seanad Éireann of a Council decision (EU) 2021/430 on the position taken on behalf of the European Union on the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law; and motion regarding proposed approval by Seanad Éireann of Regulation (EU) 2021/2260 of the European Parliament and the Council amending Regulation (EU) 2015/848 on insolvency proceedings to replace its Annexes A and B will be debated together but decided separately.
That Seanad 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 on the position to be taken on behalf of the European Union vis-à-vis the United Kingdom of Great Britain and Northern Ireland regarding the determination under Article 540(2) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, of the date from which personal data as referred to in Articles 530, 531, 534 and 536 of that Agreement may be supplied by Member States to the United Kingdom, a copy of which was laid before Seanad Éireann on 13th April, 2022.
I am speaking today on a number of motions that exercise Ireland's option to opt into certain EU measures under Protocol No. 21 of the Treaty on the Functioning of the EU, TFEU.
Senators will be aware that if Ireland wishes to take part in an EU measure with a legal basis that falls under Title V of the TFEU, Oireachtas approval under Article 29.4.7° of the Constitution is required. The three measures before Senators today all have a legal basis which falls under Title V of the treaty and, therefore, it is necessary to secure Oireachtas approval.
The first motion refers to a draft proposal by the Council of the European Union to determine the date from which personal data relating to DNA-profiles and fingerprints, which is also known as Prüm data, may be supplied by member states to the United Kingdom. This is an essential tool for law enforcement across the European Union. Of course, it is of particular value to law enforcement co-operation between Ireland and the United Kingdom.
The EU-UK Trade Cooperation Agreement, TCA, stipulates that member states may continue to supply Prüm data to the United Kingdom pending the outcome of evaluations required by the TCA until 30 September 2021. This interim period was extended until 30 June 2022. It is worth noting that a measure providing for this extension was before the Houses in September 2021.
Since then, the European Commission has completed an evaluation of the UK and concluded, in its reports, that the co-operation with the United Kingdom on DNA profiles and dactyloscopic data meets the relevant requirements. These reports were submitted to the Council in March 2022. They paved the way for the Council to allow the Union to declare that member states may supply personal data regarding DNA profiles and dactyloscopic data to the United Kingdom as referred to in Article 540(2) of the TCA.
Without this Council decision, Prüm data will cease to be shared between the EU and the UK from midnight on 30 June 2022. As Senators will understand, if this were to happen it is something that could, potentially, have serious repercussions in the investigation and prosecution of criminal cases.
The views of the Office of the Attorney General were sought and the legal advice received has confirmed that Oireachtas approval, under Article 29.4.7° of the Constitution, is required.
I would like to emphasise that the effective implementation of the EU-UK Trade and Cooperation Agreement is an EU priority. Ireland will play its full part in that.
Ireland's role in the EU has changed in recent times and will continue to evolve in the coming years. The full implementation of the TCA is necessary for us to not only play our part as an EU member state but also to ensure that our post-Brexit relationship with the UK continues to grow and develop. Part of this relationship is ensuring that the safety and security of our citizens is protected and this measure is necessary to do that.
The second motion relates to Council Decision (EU) 2021/430 on the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law: towards the achievement of the 2030 Agenda for Sustainable Development.
The United Nations Congress on Crime Prevention and Criminal Justice is held every five years. It focuses on the topics of crime, crime prevention and criminal justice. At each congress, a high-level non-binding declaration is adopted, which consists of statements collectively agreed by United Nation member states.
At the 14th congress held in Kyoto, Japan on 7 March 2021, the Kyoto Declaration was adopted and covers a variety of wide-ranging topics, including: "Tailor-made crime prevention strategies"; "Mainstreaming a gender perspective into criminal justice systems"; and "Safeguarding victims' rights and protecting witnesses and reporting persons". For the first time, the Council of the European Union took the approach of publishing a Council decision approving the adoption of the final draft Declaration, which has necessitated this Protocol No. 21 process.
As Senators will be aware, provided for in Article 3.1 of Protocol No. 21, Ireland has three months from the date a proposal or initiative is presented to the Council to consider the proposal, and notify the Presidency of the Council in writing of its wish to take part in the negotiation, adoption and application of any such measure. However, on this occasion, in order to support the speedy adoption of this proposal, Ireland waived its right to have three months for consideration before the decision was adopted. That is why we now propose to opt-in post adoption under Article 4 of Protocol No. 21.
Ireland's support for international frameworks, policies and strategies, including adherence to the principles contained in the Kyoto Declaration, is reflected in the programme for Government, which commits to various reforms to prevent crime, make communities safer and support victims of crime. The importance of collectively agreed and collaborative responses to criminal activity globally is vital to ensure best practice initiatives are shared and jointly implemented.
To give just one example of Ireland's innovative approach to crime prevention, I would like to mention the Greentown Project. It is a research project and pilot initiative that is aimed at disrupting the recruitment of children by criminal gangs. The project was recognised at the European Crime Prevention Awards when it was awarded first place among the initiatives submitted on the theme of "tackling family-based crime, particularly for young people and new communities". This success shows the international recognition of Ireland's innovative approach to developing crime prevention measures, and displays our willingness to engage and share our experience with international colleagues.
Nevertheless, while my Department leads on criminal policy matters generally, many current national strategies and policy initiatives require a whole-of-government response. That means many Departments and agencies share roles, and responsibilities, in this area. They will contribute to Ireland's role in the implementation of the declaration thus leading to the advancement of the 2030 agenda for sustainable development.
The third motion relates to an EU civil justice regulation, which was adopted in December 2021. It is an amending regulation, which makes technical updates to the two annexes in the 2015 Recast Insolvency Regulation. Ireland has already opted into the Recast Insolvency Regulation. Under the protocol, a fresh opt-in is required in respect of any measure that amends the regulation.
The Recast Insolvency Regulation applies to company insolvency, personal insolvency and bankruptcy. It provides for mutual recognition and enforcement of insolvency proceedings between EU member states in cases with a cross-border dimension.
The Recast Insolvency Regulation sets out agreed common rules on which member states' courts will have jurisdiction to deal with a cross-border insolvency case, and to which national insolvency law will apply. The regulation also deals with the recognition of court orders.
The changes made by the amending regulation are to replace Annexes A and B to the 2015 regulation with updated versions. These annexes list, respectively, the types of insolvency procedures and insolvency practitioners in each member state that are to be recognised under the 2015 regulation. These updated annexes are required due to changes in national legislation in EU member states. In addition, the relevant UK listings have been removed post Brexit. The lists of recognised Irish insolvency proceedings, in Annex A, and of Irish insolvency practitioners, in Annex B, are unaffected by these changes. For reasons of timing, it did not prove possible for Ireland to opt into the amending regulation under Article 3 of the protocol, within three months of its presentation.As a result, the intention was to propose an opt-in under Article 4 following the adoption of the measure and subject to the necessary approval. It is recommended that Ireland should now opt in to this regulation so we apply the same updated list of insolvency proceedings and practitioners as other EU member states. It is important that Ireland is seen to confirm the recognition of updates to the relevant laws in other member states.
The recast insolvency regulation is also an important and well-established part of civil justice co-operation between EU member states which ensures a more coherent and predictable approach in cross-border insolvency cases. It is desirable that Ireland should exercise its right to opt in to this amending regulation post adoption in accordance with Article 4 of the protocol. I trust the House can support the exercise of Ireland's opt-in in respect of these three measures.
These motions are self-evident and make perfect sense. I welcome the fact that the Government has taken steps to fast-track them and opt out of the delays that might have come with the updating regulations and the new ones, and with the opportunities available to Ireland. International co-operation benefits Ireland in particular. As a small and geographically peripheral country, that level of interaction with our international colleagues is of great importance to us in terms of all the areas included in these motions. It benefits us in terms of experience, information and information sharing, intelligence gathering and sharing and other opportunities such as training that might arise from time to time. There can be no overstating how important it is for Ireland to form part of this international co-operation network because without it we will quickly become isolated. I am happy to support the motions and restate how important they are for Ireland, which benefits to an even greater extent than most countries in Europe and around the world because we are a small country and because we benefit from the experience and work already done by other countries on this.
Although the motions are all justice-related, they have slightly different applications but each one benefits Ireland. They are clear examples of the necessity for us to engage in international co-operation and to become full players on the international stage, because that is how we benefit from them. Everything from insolvency to crime prevention, detection and, perhaps most importantly, prosecution is made easier and more effective through joining these international agreements, which give us an opportunity to maximise what we take away from them, which is more than a large country would. I have said that in this House previously.
I welcome the fact we have a more internationalist Government than those of past generations, one which engages properly in its international obligations and is open to the opportunities that brings for this country in law enforcement and the different systems within the justice system. I am happy to support these motions on behalf of the Fine Gael group and welcome their passage through the House.
The Minister of State is welcome back to the House. On behalf of the Fianna Fáil group, I am delighted to support these three motions which have been clearly outlined by the Minister of State and Senator Ward. It is essential we have the highest possible level of co-operation with our nearest neighbour and with our EU colleagues when it comes to crime prevention, investigation and, perhaps most important as Senator Ward said, prosecution. We are delighted to support these motions and look forward to their being incorporated into law in order that the highest possible level of co-operation with our closest neighbours in the UK and with fellow EU member states will take effect.
I have a couple of concerns. I hope they can be addressed and reflected. We are talking about a combination of the three. My primary concern regards the exchange of Prüm data with the UK. There are concerns when we look at things like the fall of the privacy shield. The UK is effectively a third country in terms of EU data in certain circumstances. There are concerns about how data may be treated. The goal is to be able to exchange data in as many ways as possible and, in terms of crime investigation, that is important. However, Chris Jones, EU director at the Home Office, has spoken about how standards may evolve and states the UK will "have a choice as to whether or not to move its standards to meet ... requirements under the Prüm system. There is no compulsory requirement for us to align with the EU Prüm system." It is similar in terms of the UK parliamentary committee. They are clear from the UK perspective that they regard as a moveable piece the extent to which they need to align with EU standards on addressing this data. There was an evaluatory visit in November 2021 by the EU evaluation team on DNA profiles and dactyloscopic data. Such information falls under the GDPR and into the special categories of personal information, so it is particularly sensitive.
There are concerning elements in UK law over the past two years which need to be thought through and addressed. Specifically, there is the Covert Human Intelligence Sources (Criminal Conduct) Act, which was passed very rapidly at the end of 2020 and which gives impunity to covert human intelligence agents in the UK to commit any crimes. That means impunity for any crimes committed by those working as human intelligence agents for the UK state. Many people in civil society raised concerns. Ireland should have had significant concerns because it was indirectly affected by the culture of impunity in human intelligence areas in the past in the UK, with the spy cops scandal. That scandal concerned a situation where, over three decades, undercover officers created false personas and, in some cases, deceived people into sexual or political relationships, in one case fathering a child with somebody under a false identity. They would effectively have had a form of impunity and, instead of addressing this, it is being cemented into law by the covert human intelligence sources Act. Ireland was affected by that because some of those agents operated in the Irish State.
In that context, will the Minister of State address two matters? It is almost a double protection. First, will covert human intelligence operatives in the UK be immune? Will they be subject to this? Will their DNA and so forth be exchanged if it is sought in relation to crimes they commit? Second, will these intelligence operatives have access to DNA or other sensitive information through this mechanism of exchange, which they can use with impunity and without regard for the normal caveats of law that anybody, and certainly servants of the state, should be subject to? It is a specific but important issue. I would like if it had been better addressed in the EU scrutiny of this matter.
I have heard concerns from people who contacted me. We have all seen the phenomenon whereby those who are wealthy become insolvent and are wealthy again a few years later, with a number of creditors, including sometimes employees and labour creditors, who are vulnerable.How can we ensure that this new exchange concerning insolvency practice will not contribute to insolvency shopping, whereby people choose to go bankrupt or seek insolvency in certain circumstances. In Ireland, we have some protections for labour creditors, namely, the employees of someone who becomes insolvent. We must ensure their rights do not become diminished through any form of insolvency shopping.
I thank the Senators for their contributions on the three opt-ins. As I mentioned in my opening remarks, the Prüm measures are essential to ensure the continuation of the close law-enforcement co-operation between Ireland and the United Kingdom. It is vital that we meet the highest standards possible when it comes to the investigation and prosecution of crimes. The ongoing transfer of Prüm data helps to ensure that. In the absence of a decision to facilitate the sharing of these data with the UK, the arrangement will expire at the end of June 2022. The EU has evaluated whether the UK meets the Prüm requirements. It was satisfied that it did.
With regard to the Kyoto Declaration, Ireland’s opt-in to the EU Council decision reaffirms the strong belief that we share with other EU member states that the international community should build on established standards and further develop multilateral solutions, which the Kyoto declaration aims to achieve.
Ireland and the EU are very committed to taking an holistic, collaborative to prevent crime through targeted strategies, legislative reforms and operational activities via international collaboration with the EU and UN member states. The implementation of actions in Justice Plan 2022, which is very much in line with and supportive of the EU Council decision and the principles of the Kyoto Declaration, will ensure the criminal justice system in Ireland is fair, respectful and inclusive. In addition, these aims align directly with advancing sustainable development goal 16, which is to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
The Minister and I are committed to supporting innovative policies and legislative reforms, such as the community safety innovation fund and the Greentown Project, to which I referred. The latter will continue to be rolled out to target those children most at risk of being recruited by criminal gangs. We are committed to the enactment of new criminal legislation that will outlaw the grooming of children to commit a crime. Once again, I ask all Senators to support this motion and Ireland’s continued engagement with its international partners.
With regard to insolvency regulation, I mentioned in my opening remarks that the recast insolvency regulation is an important and well-established part of civil justice co-operation between EU member states, which ensures a more coherent and predictable approach in cross-border insolvency cases. It is important that Ireland now opt in to the amending regulation so it will be applying the same updated lists of insolvency proceedings and practitioners as other EU member states. All it is doing is providing updated lists of insolvency proceedings and practitioners to match those of other EU member states, and nothing more. Therefore, it is desirable that Ireland should exercise the right to opt in to the amending regulation after adoption in accordance with Article 4 of the protocol.
Once again, on behalf of the Minister for Justice, I thank all the Senators for their contributions.
That Seanad 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: Council Decision (EU) 2021/430 of 5 March 2021 on the position to be taken on behalf of the European Union on the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law: towards the achievement of the 2030 Agenda for Sustainable Development at the 14th United Nations Congress on Crime Prevention and Criminal Justice to be held from 7 to 12 March 2021 in Kyoto, Japan, a copy of which was laid before Seanad Éireann on 24th February, 2022.
That Seanad 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) 2021/2260 of the European Parliament and of the Council of 15 December 2021 amending Regulation (EU) 2015/848 on insolvency proceedings to replace its Annexes A and B, a copy of which was laid before Seanad Éireann on 29th April, 2022.