A Ceann Chomhairle,
I am pleased to present this Bill to the House which will enable Ireland to implement an EU Council Decision establishing the European Police Office or Europol. While Europol has existed since 1995, it did so on the basis of an EU Convention. That Convention has been subject to a number of amendments introduced through subsequent Protocols. However, such legal instruments are subject to lengthy ratification procedures by Member States and therefore it was agreed to replace those instruments with a Council Decision which will ease any future amendments. In 2008, the Houses of the Oireachtas approved the adoption by the State of the Council Decision which ultimately entered into force in 2010.
The Convention and Protocols, to which I have referred, were given force of law in the State by way of the Europol Act 1997 as amended. Section 2(1) of that Act states that the Convention and the Protocols “shall have the force of law in the State and judicial notice shall be taken of them.”. Such wording, which is usual for the implementation of international agreements such as Conventions, effectively precludes the need to legislate for each and every article of the instrument. In effect, the 1997 Act as amended is relatively minimalist.
However, a Council Decision must be implemented in a manner whereby each and every aspect of the instrument which has domestic effect must be provided for in legislation. For that reason, this Bill is significantly more detailed than the existing Europol Act.
Nonetheless, this Act will, in effect, maintain the status quo. Although the Council Decision does introduce a small number of changes to Europol, to which I will shortly refer, it replicates, to a very large extent, the provisions of the Convention and the Protocols thereto.
Turning to Europol itself. I would like to briefly mention one change which the Council Decision introduced. Under the Convention, Europol had the status of an intergovernmental organisation funded by contributions from Member States. However, establishing Europol under a Council Decision gives it the status of an agency of the European Union. As an agency in the area of police and judicial cooperation in criminal matters, Europol joins CEPOL – the European Police College, and Eurojust – the EU’s judicial cooperation unit. Establishing Europol as an entity of the EU ensures that it is funded from the general budget of the European Union and also enhances the role of the European Parliament in the control of Europol.
The objective of Europol, under the Council Decision, is to improve the effectiveness and co-operation of the law enforcement authorities of Member States in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States. This is another difference between the Council Decision and the Convention and probably the most significant change from an operational point of view. The Council Decision extends the mandate of Europol from that under the Convention. Organised crime was originally the sole focus of Europol’s activities. The Council Decision removes the requirement that an organised criminal structure must be involved before Europol can act. It will be sufficient for the crime concerned to involve a serious offence, as listed in the Annex to the Council Decision. These serious offences include the main transnational crimes such as drug trafficking, terrorism, money laundering, human trafficking, counterfeiting or arms smuggling. They also include other more serious crimes such as murder, organised robbery and kidnapping. Europol’s role in supporting and strengthening action by the Member States in combating such crime is clearly set out in Article 3 of the Council Decision.
It is the reality that no member state, including Ireland, despite our island status, can avoid the impact of international crime. The very nature of this crime requires the cooperation of several states to ensure an effective response. Europol self-describes its role as that of making Europe safer and it does so by providing the necessary coordination of and support for national law enforcement authorities.
The support and assistance which Europol can offer to any investigation can be broadly categorised as information management and, to a lesser degree, semi-operational tasks. The latter tasks include the option for Europol to participate in joint investigation teams. Primarily, however, Europol coordinates and supports Europe-wide operations investigating serious criminal activity. All arrests and policing functions are carried out by the competent law enforcement authority in the Member State in question.
Europol assists Member States in combating crime on a daily basis and, in the case of Ireland, this assistance is achieved through the secure intelligence exchange between the Irish Europol National Unit based in Garda Headquarters and the Irish Liaison Bureau located in Europol HQ in The Hague. Europol has established a number of crime priority areas which are assigned a team of analysts and which Ireland contributes to on a daily basis. The information gathered has assisted in identifying links between international organised crime groups operating in Ireland and in other jurisdictions.
In terms of operations, in 2011 Ireland assisted Europol in the provision of intelligence and information about a mobile organised crime gang which was involved in the organised thefts of Rhino Horn throughout continental Europe. That work continues with ongoing intelligence exchange between Ireland and other member states in relation to this gang who are also involved in the commission of crimes including burglaries, aggravated robberies, fraud, money laundering and drug trafficking.
Europol has also assisted Ireland in the area of illegal immigration. Ireland has taken part in operational meetings involving the exchange of information and intelligence concerning an organised crime gang operating in France that assists illegal immigration to Ireland. This operation which is continuing has already resulted in a number of arrests in France.
More recently, An Garda Síochána took part in a joint operation with the PSNI targeting prostitution on the island of Ireland. Europol again assisted this operation through the deployment of analysts who worked alongside the Gardaí and PSNI personnel.
Europol continues to be of major assistance in combating and preventing crime. It is an essential means of exchanging and analysing information and intelligence and ensuring that European law enforcement agencies are alerted to new threats.
Turning now to the Bill, I would like to highlight some of its main provisions.
Section 2 confirms that the competent authorities for the purpose of the Act and the Council Decision are the Commissioner of the Garda Síochána or, in relation to a revenue offence, the Revenue Commissioners. “Competent authorities” are defined in article 3 of the Council Decision as “all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences.”.
Sections 4 and 5 provide for the Europol National Unit including the functions of that Unit. Those functions are set out in article 8 of the Council Decision and include liaising with Europol and the competent authorities of other member states; responding to requests for information and intelligence and performing such other tasks as are required by the Council Decision. The provision allows the national unit to refuse a request for information where to provide such information would prejudice the security or other essential interests of the State, prejudice a criminal investigation or criminal proceedings in the State, or would jeopardise the safety of a person or persons. Section 5 also clarifies that the national unit may access the Europol Information System as permitted under the Council Decision.
Section 6 provides for the role and functions of liaison officers. This provision replicates the existing section 4 of the Europol Act 1997. Under this provision, a liaison officer may be sent from the national unit to Europol to serve in the Irish Liaison Bureau. A liaison officer may not necessarily be a member of the Garda Síochána and could, for instance, be an officer of the Revenue Commissioners. Currently, Ireland has two liaison officers based in Europol – one from An Garda Síochána and one who is an officer of the Revenue Commissioners. These officers provide coordination between Europol and the national unit in the transmission of information and otherwise cooperate with Europol in accordance with the Council Decision.
Section 7 gives effect to Article 7 of the Council Decision which permits Europol to request member states to initiate criminal investigations. A request shall be made to the national unit who will transmit the request to the competent authority of the State (Garda Síochána/Revenue Commissioners). The competent authority will consider and decide whether to comply with the request. The national unit will notify Europol of the decision as to whether or not to conduct the investigation. Where it is decided to refuse the request, the national unit will inform Europol of the reasons for refusing, unless to do so would harm essential national security interests, prejudice an ongoing criminal investigation or proceedings or would jeopardise the safety of any person or persons. This provision which was initially
introduced into the Convention in 2002 responds to previous difficulties with regard to Member States acting upon information provided by Europol. However, it must be emphasised that An Garda Síochána, the Revenue Commissioners and the law enforcement authorities in other Member States have absolute discretion in relation to the prioritisation and deployment of resources.
Section 8 provides for the transmission of data to the Europol Information System. This System is used to store personal information about people who are suspected or convicted of having committed a crime for which Europol has competence or where there are reasonable grounds to believe that they will commit such an offence. Subsections (2) and (3) set out the types of data which may be input and which are also set out in the Council Decision. As can be expected, this data includes information concerning a person’s identity including names, date and place of birth, address and driving licence or passport information. Also included is the possibility of providing DNA data which owing to the lack of the appropriate technologies was not in the previous Europol instruments. Now, owing to modern technologies, the use and sharing of DNA information is a key element of criminal justice systems across Europe. However, it should be pointed out that neither the Council Decision nor the Bill require the obtaining of such DNA data and it will only be provided where it is available.
Section 9 concerns the transmission of data to Europol for purposes other than under section 8, that is for input in the Europol Information System. For instance, Europol may include information in a system known as analysis work files. This system offers broader information than the Europol Information System although with much more limited access. These files allow Europol to provide operational analysis with the aim of assisting criminal investigations. Information may also be used by Europol and transmitted to third States or other entities. However, the prior consent of the national unit is required before any onward transmission of the data by another party may take place.
Sections 10 to 14 concern the use of, access to and protection of personal data to which the Bill applies.
On a general point, it must be noted that data under the Act is subject to the provisions and protections of the Data Protection Acts. There is a very strong data protection regime in place in Europol. It is generally highly regarded, most recently in a 2012 Report following an evaluation of the implementation of the Council Decision and of Europol’s activities. While not making any changes to Europol’s systems of data protection, the Council Decision does establish a Data Protection Officer at Europol. Although such an officer has always been a part of Europol, the Council Decision makes it a formal and independent role. The functions of the Data Protection Officer are set out in article 28 of the Council Decision and include ensuring compliance with the provisions of the Council Decision concerning the processing of personal data. Where there are concerns concerning compliance, the Data Protection Officer may raise it directly with the Director of Europol.
In addition to these safeguards, section 10 addresses the modification, correction and deletion of data, giving effect in the main to articles 12 and 13 of the Council Decision. These functions are the responsibility of the inputting party. Data must be deleted, without delay, where it relates to a case where proceedings are definitively dropped or a person is acquitted. This section also creates an obligation on the national unit or liaison officer, as the case may be, to notify an inputting party of their belief that data input by that party is incorrect or should be supplemented.
Section 11 confirms that the national unit or liaison officers may access and receive data from the Europol Information System for the purpose of preventing and combating those crimes which fall within the competence of Europol. There is also provision for limited access to the System by the competent authorities who may directly query it although any data that is located can only be obtained via the national unit.
Section 12 concerns the use of data in the State and confirms that data obtained from any of Europol’s processing files shall only be used to prevent and combat crimes in respect of which Europol is competent and to prevent and combat other serious crimes. The State is also obliged to abide by any restrictions placed on the use of data.
Section 13 provides for access by individuals to personal data. This provision allows persons to request information as to whether data relating to him or her has been processed by Europol and to have such information communicated to him or her. Grounds for objecting to a disclosure of data are set out under subsection (6) which permits the State to object where it considers that providing the information would likely prejudice the sovereignty, security or other essential interests of the State, prejudice a criminal investigation or criminal proceeding in the State or would prejudice the rights and freedoms of any person. This section also replicates, in part, section 6 of the Europol Act 1997.
Section 14 designates the Data Protection Commissioner as the national supervisory body for the purpose of the Act and the Council Decision. This provision gives effect to Article 33 of the Council Decision and replicates section 7 of the Europol Act 1997.
The national supervisory body is responsible for monitoring the management and processing of personal data by the State in the context of its relationship with Europol.
This section also confirms the authority of the Data Protection Commissioner to access data provided to the Europol Information System and the requirement on the Data Protection Commissioner to inform the Joint Supervisory Body of any action taken with respect to the Europol Information System. The ‘Joint Supervisory Body’ is an independent body with the task of ensuring compliance by Europol with data protection principles. The Body is made up of representatives of national data protection authorities, including the Irish Data Protection Commissioner.
It should be further noted that, by virtue of section 15, the Official Secrets Act 1963 applies to facts or information which come to the knowledge of any Director, member, employee or other person connected with Europol. This provision replicates section 9 of the Europol Act 1997.
Section 17 confirms the validity of acts done in accordance with the Europol Act 1997 or the Council Decision, prior to the passing of this Bill. The Council Decision establishing Europol applies from 1 January 2010. As has been mentioned, it repealed and replaced the Europol Convention and its Protocols. However, existing Irish law gave force of law to the Convention and its Protocols and it is arguable that as these instruments have now been repealed the status of the Europol national unit and its powers as set out in the existing legislation are unclear. Following legal advice, this transitional provision seeks to put beyond doubt the status of the national unit by providing that the acts done by the national unit and liaison officers during the intervening period are valid. The Attorney General has indicated that “there is no difficulty in providing retrospective validation of anything done by the existing national unit.”
The remaining provisions are of a standard or technical nature.
Before concluding, I would like to draw the attention of the House to the future of Europol. Europol has been given responsibility for the establishment of the European Cybercrime Centre which will place it at the forefront in the continuing fight against high tech organised crime. Ireland, through An Garda Síochána Computer Crime Investigation Unit and the staff at the Liaison Bureau in The Hague will continue to offer advice and expertise to assist the Cybercrime Centre when it becomes operational.
In 2013, Europol will publish the Serious Organised Crime Threat Assessment or SOCTA. On the basis of this document, the Council of the European Union will determine its priorities and recommendations for the fight against organised crime in Europe.
Also, in 2013, Ireland will take up the Chairmanship of the Europol Management Board which is Europol’s governing board. This Board gives strategic guidance and oversees the implementation of Europol’s tasks. Each year the Management Board adopts Europol’s final budget, the work programme of future activities and a general report on activities carried out during the previous year. These will be submitted to the Council for endorsement and to the European Parliament for information.
I would also like to comment on the future regulation of Europol. Article 88 of the Treaty on the Functioning of the European Union provides for a new legal regime for Europol stipulating that Europol shall be governed by a regulation or regulations. While the main policy objective of the new Regulation will be to align Europol’s legal base with that Treaty, it will, undoubtedly, also seek to address any recommendations arising from the recent evaluation of Europol’s activities.
The implementation of the Council Decision is an important step in ensuring that Europol can adapt in a flexible manner without the need for complicated ratification processes by member states. The extension of its mandate reflects the
very significant contribution which Europol has made to combating serious and organised crime across borders. Since its establishment in 1995, Europol has evolved to become an essential tool for national law enforcement agencies in their efforts to combat this form of crime. Such crime is increasingly cross border and without the overall strategic analysis of an agency such as Europol, combating that crime would be a more difficult task.
I would like to thank the members of this House for their attention and I look forward to hearing your contributions.
I commend this Bill to the House.