Seanad Éireann EUROPOL Bill 2012 Second Stage Speech – 29 November 2012 Alan Shatter, T.D., Minister for Justice and EqualityA Cathaoirleach,
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 organised crime, terrorism or
another serious offence affecting two or more Member States. The Annex to
the Council Decision lists those other serious offences for which Europol
is competent and includes the main transnational crimes such as drug
trafficking, terrorism, money laundering, human trafficking, counterfeiting
or arms smuggling. Also included are 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 into 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, that is An Garda Síochána and/or the
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, because of 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
regarding compliance, the Data Protection Officer may raise these 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 input,
access and retrieve 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 criminal offences and other forms of serious crime. The
State is also obliged to abide by any restrictions placed on the use of
data although there are some limited circumstances in which restrictions
may be waived. Subsection (3) of section 12 permits the waiving of
restrictions in circumstances where a court, legislative body or other body
is acting in a supervisory role over the competent authorities. However,
such waiving of restrictions requires the prior consultation of the
communicating state or body. It should also be noted that by virtue of the
definition of ‘criminal offence’ in section 1 of the Bill, the use of data
is limited to offences for which Europol is competent.
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 (5) 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 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 is 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 the discussions on the Bill. I commend this Bill to the
House.