Order of Business. - Customs and Excise (Mutual Assistance) Bill, 2000: Second Stage.

Thursday, 22 February 2001

Seanad Eireann Debate
Vol. 165 No. 7

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Minister of State at the Department of Finance (Mr. Cullen): Information on Martin Cullen  Zoom on Martin Cullen  I welcome the opportunity to bring this Bill before the Seanad today. The Bill is an enabling measure to give the force of law in Ireland to two international conventions and three related instruments dealing with co-operation and mutual assistance for customs administrations within the European Union in the fight against organised crime, particularly in the areas of serious smuggling and drug trafficking. Ireland has already signed all these instruments subject to adoption and it is necessary to give them the force of law before we can proceed formally to adopt them.

International co-operation in customs matters is not something new. On its accession to the EEC in 1973, Ireland became a party to the Naples Convention which had been drawn up in 1967. That convention has proved to be an invaluable tool to the customs administrations in the European Union in dealing with cases involving smuggling of prohibited substances such as drugs, restricted goods such as guns and ammunition and dutiable goods such as alcohol and tobacco products. It has served us well over its lifetime and an illustration of its effectiveness can be seen over the past three years when close to 200 million illegal cigarettes have been seized by Irish customs based, in significant measure, on intelligence and information received under mutual assistance arrangements. The loss of this quantity of cigarettes to the criminal organisations involved both here in Ireland and overseas has had severe repercussions for their finances. These seizures have affected the level of supply to the marketplace and have also forced the criminals involved to alter their routes and methods accordingly.

The battle against smuggling has also been assisted by the creation in 1999 within the Office of the Revenue Commissioners of a central risk analysis unit which monitors commercial freight information in an effort to target bogus consignments, including illicit drugs, and contraband goods, concealed in regular traffic patterns. This unit collates and analyses current worldwide smuggling trends produced internationally with a view to identifying similar modus operandi being used in Ireland. I am pleased that this unit has made an immediate, important contribution to the fight against organised, international criminal activity since its inception which resulted in the seizure of large numbers of cigarettes in particular.

I have used the word “criminal” on a number of occasions already and I make no apology for that because the types of activity being perpetrated by international organisations involved in serious smuggling is highly detrimental to us all. In this regard, Members will join with me when I single out for particular mention the scourge of drugs. More than any other commodity, illicit drugs need to be stopped at our borders. The record of the customs service and the Garda Síochána in intercepting both drugs [579] shipments and internal movements has been commendable in recent years and must be sustained. Following the signing of a memorandum of understanding between customs and the Garda Síochána in January 1996 there has been a co-ordinated approach to the fight against drugs and the criminals who are engaged in this evil trade. This memorandum has been strengthened further by the agreement of an operational protocol on day-to-day issues which was signed recently.

I am pleased to report that sustained progress continues to be made against the drug barons. Members will be aware that the Criminal Assets Bureau was set up in 1996 to identify, seize and investigate the assets of criminal activity. The bureau comprises officers drawn from the Garda Síochána, the Department of Social, Community and Family Affairs and the Office of the Revenue Commissioners. Not surprisingly, customs has had continued liaison with the Criminal Assets Bureau since its inception, involving both general contact on an informal basis and the formal exchange of information and intelligence, including details of drug and cash seizures made from individuals and the property of individuals involved or suspected to be involved in drug smuggling. Many of the successes of the Criminal Assets Bureau may be attributed to the quality of the information and intelligence provided by customs.

In addressing the drugs issue, I have concentrated on our efforts in the enforcement area which is of most relevance in the context of the Bill. However, Members will understand that effective enforcement measures are only one aspect of addressing the overall drugs problem facing society. The Bill is focused clearly on helping to limit the supply and availability of drugs. Members will appreciate that it is necessary to address the demand side of the drugs problem also. While I do not propose to go into this aspect in detail here, the consistent approach adopted to date in that context has been based on two key elements, reducing the number of people turning to drug misuse in the instance through information, education and prevention programmes and providing a range of treatment options for those addicted to drugs, the ultimate objective of which must be a return to a drugs free lifestyle. I am pleased the relevant State agencies, in partnership with many voluntary bodies, are actively involved in pursuing these twin objectives. I mention these activities merely to emphasise the importance which the Government attaches to adopting a broad, multi-disciplinary approach to the drugs problem, part of which involves the enactment of the Bill that is before the House.

I mentioned at the outset that this Bill is enabling legislation which must be enacted before this country can adopt two international conventions and three related instruments in the area of co-operation and mutual assistance between the customs administrations in the member states of the European Union. It will give the force of law [580] in Ireland to these five instruments and it will be possible for Ireland to adopt them at European Union level only when it is enacted. Each member state of the Union is required to adopt these instruments in accordance with its own constitutional requirements. The five instruments involved are: the Convention on the use of Information Technology for Customs Purposes – the CIS convention; an agreement to enable certain member states to apply the CIS convention in an interim period until all are in a position to adopt it; a protocol to the CIS convention dealing with the role of the European Court of Justice; a second protocol to the CIS Convention to remedy two deficiencies identified in it; and the Convention on Mutual Assistance and Co-operation between Customs Administrations. The Bill is comparatively short and, for ease of reference, the five instruments are appended to it in both English and Irish, the texts being equally authentic in both languages.

I propose to give the background to the two conventions and related instruments before turning to the detail of the individual sections. The Convention on the use of Information Technology for Customs Purposes – the CIS convention – was signed by all member states on 26 July 1995 and provides for the establishment of a customs information system. The system comprises a computerised central database located in Brussels, with terminals in each member state linked to the central database, allowing for the rapid dissemination of information and intelligence about illegal movements over internal frontiers so that effective action can be taken by customs to combat all forms of smuggling. The central database will carry information on commodities, means of transport, businesses, persons, fraud trends and availability of expertise. By using the central database, customs administrations will be able to pass on information about suspect movements, carry out discreet surveillance or specific checks and report the results to any of or all the other customs administrations concerned.

Under the provisions of the CIS convention, only nominated national authorities are allowed access to and use of data on the central database. Such nominated national authorities must take appropriate measures to protect the security of data which they have accessed. The convention lays down detailed rules about what data may be included on the database and member states are required to have national law in place giving a level of protection to data which is at least equal to that in the 1981 Council of Europe Convention on Data Protection. The Data Protection Act, 1988, gave effect to that convention in Ireland so it will apply in respect of data held on the database. The Revenue Commissioners will fully respect their obligations under this Act. Data will only be included on the database on the basis of prior illegal activities or where there are real indications to suggest that the person concerned has [581] committed, is in the act of committing, or will commit serious contraventions of national law.

In the CIS convention, there are specific limits to the data which may be included on the database and individuals have the right to access data about themselves as well as the right to have data checked, corrected or deleted and to have their rights vindicated in the courts. Members should note that personal data relating to such sensitive issues as racial origin, political opinion, religious or other beliefs and details of an individual's health or sexual life may not be included on the database. I assure Members that the database will not contain information on immigrants or their movements. Neither will it contain details on illegal trafficking of people, as these are matters which are outside the remit of customs. The CIS convention also provides for independent supervision of data to protect the rights of individuals. In Ireland, the data protection commissioner will perform this function.

The convention provides that each member state is responsible in accordance with its national law for any injury caused through the use of the database in its territory, including injury arising from inaccurate data supplied by another member state or data supplied by another member state which should not have been included on the database. Where injury is caused as a result of data provided by another member state, the apportionment of liability will be subject to agreement between the states concerned. The CIS convention also lays down an elaborate framework for the management and supervision of the database. I will provide more details about these management and supervisory structures later as I appreciate that Members of this House have a particular interest in this whole area of data protection. I mentioned that, in addition to the CIS convention itself, this Bill gives legal effect to an agreement on provisional application of the convention and two protocols to it. I will now elaborate on each of these three instruments.

The agreement on provisional application was signed on the same date as the convention itself and allows it to be applied by some but not all the member states in an interim period until such time as all are in a position to adopt it. This arrangement emerged from a recognition that certain member states would have to introduce legislation to give effect to certain provisions in the CIS convention before they could adopt it and that this could slow down the overall process. One particular issue that arose before the CIS convention was signed was whether the European Court of Justice should have power to interpret its provisions. There was no agreement between member states on this point at the time but a compromise was worked out subsequently, resulting in a protocol to the CIS convention being drawn up which enabled each member state to accept such a role for the court on an opt-in basis. Ireland signed the protocol, subject to adoption, on 29 November 1996. The protocol confers jurisdiction on the court to rule on dis[582] putes between member states and between member states and the Commission regarding the application of the convention.

The protocol also confers jurisdiction on the court to interpret the convention but makes the application of this clause by national courts conditional on a declaration to be made at the time of signature, or at any time thereafter, to the effect that the member states will accept the court's jurisdiction to give preliminary rulings on the interpretation of the convention. In relation to the application of the CIS convention, member states which are prepared to accept the court's jurisdiction may specify whether courts or tribunals against whose decisions there is no judicial remedy under their national law, or all their national courts or tribunals, will be in a position to ask the court for preliminary rulings.

Ireland made a declaration at the time of signing the protocol to the effect that it would agree to give only those courts or tribunals against whose decisions there is no judicial remedy under national law the right to request a preliminary ruling on the interpretation of the CIS convention from the Court of Justice. In practice, this means that only the Supreme Court will be in a position to request a preliminary ruling. This reflected Ireland's position in relation to similar jurisdiction provisions in other EU conventions. The reason for adopting such an approach is the serious difficulty that could arise under our legal system if criminal trials had to be suspended for lengthy periods while rulings were obtained from the court.

In the course of preparing for the implementation of the provisions of the CIS convention, two deficiencies were identified in the convention. The first deficiency related to the items of information which could be placed on the database. It was discovered that member states' customs administrations could not include the registration number of the means of transport of smuggled goods on the database even though this additional data element could be very useful. The second deficiency related to the information which could be placed on the database in connection with money laundering. While the CIS convention provided for an exchange of information on money laundering specifically in connection with illicit international drug trafficking, it did not provide for exchanges of information on money laundering in connection with other types of crime which involved infringements of Union and national customs laws. In the interests of ensuring a comprehensive response to all types of smuggling, it was necessary to draw up a second protocol to remedy the two deficiencies. This was signed on 12 March 1999, subject to adoption.

The fifth instrument to which the Bill gives legal effect is the Convention on Mutual Assistance and Co-operation between Customs Administrations – the customs co-operation convention – signed by all member states on 18 December 1997, subject to adoption.

[583] As I have mentioned already, on its accession to the EEC in 1973, Ireland became a party to the 1967 Naples Convention. Since then, that convention has been the principal legal instrument available for the provision of mutual assistance allowing customs administrations to exchange useful information and intelligence as well as assisting in the investigation of breaches of customs law. By the early 1990s, it became apparent to member states that the Naples convention was in need of revision so that customs administrations would have the means to tackle cross-border smuggling activities effectively in the context of a single market without internal frontiers. As a result, the updated customs co-operation convention, known informally as “Naples II”, was concluded under Article K.3 of the Treaty on European Union. First and foremost, the customs co-operation convention updates provisions in the Naples convention. However, it also extends the scope of the Naples convention in several ways. In particular, it provides for special forms of co-operation between customs administrations not existing heretofore. I will come back to these forms of co-operation in greater detail shortly.

The customs co-operation convention provides that customs administrations may exchange information and intelligence on the basis of both formal and spontaneous requests. In conducting any such exchanges, the customs administrations must act in accordance with their national legislative powers in applying the provisions of the convention. Formal requests for assistance must be channelled through specific contact points in each member state and, in providing assistance in response to requests, which must be in writing, the requested administration must act as if the request had emanated from within its own country. All reasonable measures must be taken to comply with a request for assistance and, in certain circumstances, officials from the applicant administration may visit the offices of the requested administration to obtain further information. The requested administration can be asked to carry out surveillance on suspect persons and on means of transport, goods and places. While a representative of the applicant administration may be present as an observer in the course of inquiries carried out by the requested administration, provided both agree, only officers of the requested administration may conduct the actual inquiries. In certain cases, where it may not be practicable for operational reasons to make a formal request for assistance, a customs administration may make a spontaneous request and this must be acted on expeditiously. A spontaneous request will be followed up with a formal request in due course.

Member states which obtain information under the convention must treat it as confidential. Such information may only be used for the purposes specified in the convention but it can also be used as evidence in the receiving member state in accordance with national law. The convention has a standard of data protection which is similar to [584] the CIS convention, which I have referred to in some detail.

I made a brief reference earlier to the special forms of co-operation provided for in the customs co-operation convention. These are significant provisions which enable customs administrations to engage in special forms of cross-border co-operation in respect of certain types of infringements such as cases involving illicit traffic in drugs, weapons, munitions and serious cases of smuggling of taxable goods. These special forms of co-operation are hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams.

However, the convention allows member states to opt out of applying some of these provisions, that is, hot pursuit, cross-border surveillance and covert investigations. The Government proposes to avail of the opt out provision and will make a declaration to this effect when Ireland lodges its instruments of adoption of the convention. Most of the other member states intend to apply the provisions and their position is facilitated by the fact that they are already party to the Schengen convention which contains similar arrangements for co-operation. Neither Ireland nor the UK are signatories to the Schengen convention. Notwithstanding this fact, there is provision in the Schengen Protocol to the Amsterdam Treaty for Ireland and the UK to identify those parts of the Schengen Acquis in which they wish to participate and to ask, at any time, to take part. While Ireland has now lodged an application to participate in selected provisions of Schengen, it is not proposed to participate in the arrangements for special co-operation.

The other provisions for special co-operation, that is, controlled delivery and joint special investigation teams, are mandatory. Members of this House may not be familiar with what these activities entail and I would like to take this opportunity to outline the position. Controlled delivery is an investigation technique in which consignments of prohibited or restricted goods are not seized at the frontier but are kept under surveillance until they reach their destination. This helps customs services to identify and prosecute organisations responsible for smuggling goods such as tobacco on which duty has not been paid, for example, rather than just seizing such products at the frontier.

The convention allows member states to set up, by mutual agreement, joint special investigation teams comprising officers from a number of member states with relevant specialist skills. These teams are aimed at improving the control and co-ordination of specific investigations relating to the prevention and detection of particular types of customs infringements. It is important to emphasise that they are purely investigatory and are not operational. They are intended to function only for specified periods and in relation to specific investigations.

An officer from the member state where the team is located will be in charge and that member state will make the necessary arrangements for [585] the team to undertake its activities. All activities undertaken by such a team must be in accordance with the national law of the member state where these are being undertaken. The convention confers no additional powers of intervention on officers from one member state while they are acting in the territory of another, that is, they are subject to the national law of that member state. Thus, in the event of a joint special investigation team being established in Ireland, it will be headed by an Irish official and all of its activities will be subject to, and must be conducted in accordance with, Irish law.

The customs co-operation convention contains a specific provision enabling the European Court of Justice to rule on disputes between member states and between member states and the Commission regarding its application. In common with the protocol to the CIS Convention, it also confers jurisdiction on the court to interpret the convention and contains similar conditions regarding what national courts may seek by way of a preliminary ruling. Ireland will make a similar declaration in relation to this matter as for the CIS Convention for the same reasons that I outlined earlier.

Operation of the customs co-operation convention centres on requests for assistance. It is important to note that a request under the convention may be refused where it is considered to be prejudicial to public policy or other essential interests and rights of the member state concerned, particularly in the field of data protection, or where the action requested is disproportionate to the gravity of the presumed offence. In any case where a request is being refused, reasons must be given for such a refusal.

The final point that I wish to make regarding the five instruments relates to when they will come into force. In this regard both conventions are to enter into force 90 days after the last of the member states has adopted them. The agreement is to provisionally apply the CIS Convention to enter into force as and from the first day of the third month after the eighth member state has adopted it. Adoption of this agreement by those eight states will allow the convention to be applied provisionally subject to certain conditions specified in the agreement.

The agreement will cease to have effect when the convention enters into force. The current position is that eight member states have adopted the agreement and it has recently come into operation for those countries. As with the CIS Convention, both protocols are also to enter into force 90 days after the last of the member states has adopted them but cannot be implemented during the period of provisional application of that convention.

I will now deal with the provisions of the Bill. It is not my intention to spend an inordinate amount of time on the specific provisions since the explanatory memorandum contains a detailed commentary on the individual sections and their related provisions in the five instruments. As I [586] have mentioned already, the approach being taken is to give the five instruments the force of law in the State. This is at the heart of the Bill and the relevant provision is contained in section 2.

Section 3 designates the Revenue Commissioners as the national authority for the purposes of Articles 7 and 8 of the CIS Convention, which deal with direct access to and use of the database, respectively. This means that, in Ireland, such access to and use of the database will be exercised by the Revenue Commissioners. The infrastructure for this system is already in place with over 20 terminals based at, among other locations, customs offices in ports and airports around the country.

Section 4 designates the Revenue Commissioners as the competent customs administration for the purposes of Article 10 of the CIS Convention. That article requires each member state to designate a competent customs administration to take responsibility for the correct operation of the database within the member state and to ensure compliance with the provisions of the convention.

Sections 5, 6 and 9 are concerned with data protection and I propose to elaborate on these as I am aware that some Members of the House have a special interest in this topic. The 1981 Council of Europe Convention on Data Protection is the standard of protection laid down in respect of automated data dealt with under the instruments to which the Bill is giving legal effect. In Ireland, the Data Protection Act, 1988, gives effect to the principles on data protection laid down in that convention and the main purpose of section 5 is to apply that Act to relevant provisions in the five instruments, subject to modification where necessary.

Section 6 designates the Data Protection Commissioner as the national supervisory authority for the purposes of the conventions so that he will be empowered to monitor implementation of the data protection provisions in respect of automated data. This role for the commissioner also extends to being a member of the joint supervisory authority, consisting of representatives from the respective national supervisory authorities, with responsibility for examining difficulties of application or interpretation. Members will note that there is a strong emphasis throughout on independent supervision of the database and its operation.

Section 9 creates an offence under the 1988 Act for the improper use of data on the database. Penalties for such offences are to be the same as those set out in section 31 of the 1988 Act, namely, a fine not exceeding £1,000, or 1,265, on summary conviction, or a fine not exceeding £50,000, or 63,485, on conviction on indictment. All of these sections deal only with data which is processed by automated means and I will shortly deal with the question of protecting non-automated, or manual, data in a few moments.

[587] Section 7 deals with the special forms of co-operation set out in the customs co-operation convention. The convention provides for five special forms of co-operation. While two of these are mandatory, member states may decide to opt out of the others. Therefore, while the Bill will give the force of law to the convention, it is necessary to specify in it that the State shall not be bound by those provisions from which the opt out is being exercised.

I have stated already that we are opting out of the relevant special forms of co-operation. If those considerations giving rise to Ireland opting out were to change at any point in the future and it was desired to avail of these provisions, further legislation would be required to amend subsection (1) of this section. However, by providing in subsection (2) for possible opt in later by way of Government order, the necessity of having to enact amending legislation is avoided. A draft of any such order would have to be laid before each House of the Oireachtas and could not be made until a resolution approving of such draft had been passed by each House in accordance with the provisions of section 11 of the Bill.

Sections 8 and 11 contain provisions for the making of ministerial regulations which may appear to be necessary and expedient for carrying out the purposes of the Bill. As in the case of orders, a draft of any regulations under the Bill would also have to be laid before each House of the Oireachtas and could not be made until a resolution approving of such draft had been passed by each House. While the Bill does not specifically require the making of regulations in relation to any particular aspect of its provisions, it may be necessary at a later stage to consider the need for regulations if it emerges that there is a need to give effect to protection of personal data exchanged by manual means. Therefore, I am making specific provision for that purpose since, as I mentioned earlier, the existing national data protection legislation only applies to automated exchanges of data. Other than in the case of that specific issue, the purpose of these sections is merely to enable incidental requirements to be met from time to time.

Section 10 provides for the interpretation of both the CIS and customs co-operation conventions by the European Court of Justice by way of preliminary rulings and for judicial notice to be taken of such rulings. I have outlined how both the 1996 Protocol to the CIS Convention and the customs co-operation convention provide that member states may, by way of declaration, accept the jurisdiction of the European Court of Justice to give preliminary rulings on the interpretation of the conventions. As a further measure, those member states that accept the court's jurisdiction must declare whether they will allow all of their national courts or only those from whose decision there is no avenue of appeal to seek such preliminary rulings. At the time of signature of both instruments, Ireland decided on the latter option [588] in both cases to ensure that there will be as little disruption as possible to the progress of a criminal trial once it has commenced.

The measures that are being given the force of law by this Bill are not new. For over 30 years, arrangements have been in place for customs administrations to assist and co-operate with each other in the ongoing fight against international criminals. We are building on that solid foundation with the measures which are covered by the Bill and I am confident that with these enhanced measures, the Revenue Commissioners will be even more successful than heretofore. Make no mistake, we have been successful in counteracting smuggling directly in Ireland and indirectly by helping customs administrations in other member states. However, as I have said before, this is an ongoing battle and we cannot bask in the successes of the past. We must focus resolutely on the future and put to good and effective use the enhanced provisions contained in the conventions and related instruments which are at the heart of this Bill. The fight against drugs, in particular, must be relentless and Members will agree that the measures being introduced by this Bill are very desirable in this regard. Both conventions and related instruments represent a comprehensive package of measures to enhance the present co-operation arrangements to assist customs administrations in preventing serious smuggling, illegal cross-frontier movement of illicit substances and products and generally in improving controls.

Members from all sides of this House will find this Bill acceptable. I shall give careful consideration to the points which Members may make and to any suggestions for amendments that may occur in the course of the debate. Members will note that my speech was somewhat lengthy but I hope they will appreciate that I wanted to give the fullest information possible. I, therefore, commend the Bill to the House.

Mr. Coghlan: Information on Paul Coghlan  Zoom on Paul Coghlan  I welcome the Minister of State and thank him for his comprehensive overview of the Bill, which I welcome. As he has said, the Bill is a necessary enabling measure regarding conventions, protocols and agreements already signed up to pending enactment of this measure. The Bill is useful as well as necessary and will greatly strengthen the hand of customs and excise officials in combating international crime.

The principal measure in the Bill is the adoption of the EU convention on the customs information systems and it legislates for the provisional application of the convention. There are also two protocols to the convention which change the interpretation of key sections. A separate convention is also to be adopted on mutual assistance and co-operation between customs administrations. All reasonably minded people would readily accept the necessity for the provisions contained in this Bill. Because of the ease of movement of people and goods within Europe, member states are hugely dependent on one [589] another's co-operation and goodwill in combating illegalities, whether the promotion and smuggling of drugs, money laundering, illegal acquisition of assets with the proceeds or international terrorism.

We very much welcome the strengthening of the powers of customs and excise officials in their fight against organised crime. Unfortunately, a lot of the political advances in freeing up the movement of goods and people has increased crime and such activity internationally. The democratisation of eastern Europe, for example, has further facilitated mafia activities originating in Russia, Romania and other eastern European countries. Large amounts of armaments have found their way onto the black market and have become increasingly freely available. The various wars in former Yugoslavia have made vast quantities of arms available. The availability of this weaponry for crime has posed considerable problems and we, as a country, are not free from it. We also know from our recent past that guns and semtex were successfully smuggled into Ireland originating from sources ranging from former Czechoslovakia to Libya.

I fully agree with the Minister of State that this Bill incorporating international agreements will much better position us to combat trafficking in illegal drugs which, sadly, is so prevalent in our country and which reduces the possibility of quasi-republican dissident groups importing arms which are freely available across Europe. This is very welcome.

One of the most important provisions of the CIS Convention will allow for the establishment of computerised central databases with terminals in each member state and the inclusion on the databases of very significant information relevant to all areas which concern organised crime. This will encompass such matters as commodities, names of transport businesses, names of persons, fraud trends and any other relevant details. The intention is that the database will be constantly updated and the flow of information will be available to each of the member countries. We can see how important this is when we realise that 14 million people per annum pass through Dublin Airport and cars and trucks can come and go freely on ferries.

Our drug problem has greatly escalated and is no longer confined to our major cities. Drugs have reached even our small villages and are extremely widespread. I wish the customs and excise officials and the Garda Síochána every success in their efforts and I hope they will be able to deal more successfully with these areas of crime.

The Criminal Assets Bureau has turned out to be a very important weapon in our armoury against drug related and other crime. However, we have seen how successfully some Irish people involved in this illicit trade have been able to deal from Amsterdam. Indeed, some of them have been able to live lives of luxury there. This shows how well developed their links are internationally and that there is a safe haven for them in Europe.

[590] In line with my party colleagues in the other House, I fully approve of our ratification of the convention and the continuing efforts which will flow from it. The customs information system will also be used to disseminate information in all areas of custom concern and will not be confined solely to the exchange of information on drugs and other sensitive goods. The convention on mutual assistance and co-operation between customs administrations is also welcomed by my party. The provision is for mutual assistance and it allows the customs authorities to exchange useful information and intelligence in the investigation of breaches of customs law, including the smuggling of prohibited goods such as armaments, ammunition and drugs. According to the explanatory memorandum, it will allow member states to co-operate to the extent of agreeing to hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams.

I note opt out clauses are provided for and I am sure the Minister of State will clarify Ireland's position on whether we are opting out. I think he said we are opting out for the moment in regard to proposals contained in the Schengen Agreement and that, by ministerial order, it will be possible for us to opt out without having to enact further legislation. We no doubt need that flexibility. The Minister of State will forgive me but I may be slightly confused in regard to the opt outs. Will the convention enable our customs officials to bring in people from the United Kingdom to become involved in joint surveillance activity? Will it allow hot pursuit across the Border in regard to the suspected movement of drugs or other items? Will covert investigations allow the use of customs and excise officials from other European countries to operate here? If I understood the Minister of State correctly, I think that will be under the control of our people operating under our law but maybe he will clarify or elaborate on that in his response.

We are well aware from holidaying abroad of the different experiences one can have from country to country regarding cultural procedures security-wise and that what is acceptable in some countries is most unacceptable in others. We need to know specifically what we are signing up to in regard to how it is intended the measures will operate in practice. The Minister of State might come back to that.

The use of information technology for customs purposes is very welcome. There are considerations which will have to be taken into account in regard to what is included on the database. What safeguards will there be to ensure personal rights are not transgressed? What access will people have to the database if they feel their rights are being infringed? I was glad the Minister of State said there is a strong emphasis throughout on independent supervision of the database in its operation, which is very welcome. He said that the protection will be at least as strong at that provided under domestic law in the Data Protec[591] tion Act. Will there be guarantees in regard to updating necessary corrections to protect the good name of citizens in the case of erroneous material getting onto the database?

This technology is very useful and I am glad to note the strong independent assessments the Minister referred to. However, information can get on to computer systems and in the course of their duties people tend to look ahead rather than to look back. If incorrect information gets on, what guarantee have we? A citizen may not know and his good name could be damaged. The Minister might return to this in his response.

The Minister outlined the elaborate framework for the management and supervision of the CIS which ranges from the committee consisting of customs administrations from member states to a national supervisory authority and a joint supervisory authority. While the safeguards appear to be adequate to provide the necessary overall protection, there is no doubt that in some instances incorrect information can be stored on computers. There is a genuine risk that some people could be found guilty by association.

The two protocols are welcomed, as is the fact that the European Court of Justice will be the arbiter and interpreter of the convention. This is as it should be. I also welcome the improved level of co-operation among the member states and the fact that the protection of data concerning individuals will be stronger than the requirements to protect data concerning persons who might be involved in money laundering or smuggling drugs and armaments. The Minister might say a brief word about that portion of the explanatory memorandum which states:

The requested authority can be asked to carry out surveillance on suspect persons and on means of transport, goods and places (Article 11). A representative of the applicant authority may be present when action is carried out by the requested authority provided both authorities agree (Article 12).

I look forward to hearing the Minister's response and I wish him well with this Bill.

Mr. Finneran: Information on Michael Finneran  Zoom on Michael Finneran  I join in the welcome to the Minister of State, Deputy Cullen and compliment him on his wide-ranging address on this important legislation. The Customs and Excise (Mutual Assistance) Bill, 2000 is an important part of the Government's fight against organised crime. In particular it seeks to eliminate the scourge of drugs, their importation for sale here and the opportunity to use Ireland as a conduit for flooding other European countries.

We have a new-found co-operation among the Garda, Customs and Excise and the Revenue Commissioners in the fight against crime. With the back-up legislation recently brought in by this Government regarding the Criminal Assets Bureau the co-operation among the three agencies has had major success against organised [592] crime and the scourge of drugs. We cannot however be complacent.

Attempts will be made by criminals to seek new opportunities. We have to send out a loud and clear message from this House that Ireland will not be a soft touch for the international criminal in setting up bases or conduits for organised crime. Ireland must be seen internationally as being in no way a haven for the international criminal. This legislation is a firm message to those who may think Ireland will tolerate the illegal importation of drugs or contraband.

There are aspects of the legislation that have been in use over the last 20 to 30 years. This Bill brings those aspects together and puts in place a framework for co-operation among member states in stamping out the aforementioned forms of illegal activity. There is a strengthening of the protocols for co-operation. Our lengthy coastline is used by drug barons for the importation of substances via the many small ports and secluded beaches. We applaud the recent successes of the agencies of Government in stamping out this activity. The legislation offers those agencies further opportunities to ensure that this country will not be so used.

There is practically no town or village that has not experienced the scourge of drugs. It behoves us all to open our eyes to the fact that drugs have become freely available. This legislation is therefore of vital importance. It is also of vital importance that we co-operate with member states in ensuring that future generations are not damaged by exposure to drugs. I compliment the Minister and the Government on what they are doing.

I would like the Minister to comment on some of the following in his reply. There is reluctance by some people to accept the measure regarding hot pursuit. They feel there have been incursions by British forces that were both illegal and inappropriate. There is a fear and mistrust on this matter. I would ask the Minister to elaborate on that.

While we do not wish to inhibit the chase, arrest and conviction of those involved in illegal activity, we do not want to see democratic republican activity interfered with by any misuse of legislation. The Minister might reassure the House with regard to that.

People may be concerned by the breadth of personal information held on databases. Some 30 years ago, it would not have been considered at all appropriate to hold such data but modern technology has made it possible to obtain virtually all information relating to citizens, a fact which worries some people. Perhaps the Minister will offer some reassurance on this point.

Trafficking in people is an area of huge concern. In the past, we had the slave trade between Africa and America but now we have a white slave trade. Criminals are engaged in the trafficking of people from eastern Europe to western Europe. These people are being abused and exploited at the hands of pimps and ruthless employers. This legislation does not appear to [593] cover this issue and, if it does not, the Minister might indicate where it is covered.

We all abhor the trafficking of people which is the lowest form of criminal activity. Unfortunate people living under difficult regimes can be attracted by the opportunity to leave their homes. They pay hard cash in the hope of making a better life in western Europe but they end up in very suspect situations, often being abused by the very people they saw as offering them new opportunities. Young girls and women in particular are being abused by being forced into prostitution and other illegal activities.

People in Ireland who have amassed huge amounts of money through illegal activity have reinvested that money in legitimate enterprises here and abroad. The Bill covers money laundering and I would welcome some further insight into this. We should applaud the success of the Criminal Assets Bureau in regard to the confiscation, through the courts, of criminals' ill-gotten gains which are subsequently returned to the State. Some of these criminals are still at large in other European capitals but the success of the Garda, Customs and Excise officers and the Revenue Commissioners has sent out a clear message that people who have acquired empires through criminal activity can now be brought to justice. This legislation enhances and complements the existing raft of legislation in this area.

I welcome this important Bill which is a clear indication of the Government's intention to continue to fight organised crime through international and European co-operation. The Bill puts down a clear marker that criminals should not expect to carry on their illegal activities, be it the distribution of drugs or other contraband, easily here.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I welcome this Bill which is a further step in the development of mutual co-operation between EU member states. The Bill will be particularly valuable in the fight against crime. As an island nation, Ireland is easily accessible by sea and air and it is difficult for us to effectively police our boundaries. Therefore, it is very important that there are mutual co-operation arrangements between Ireland and other EU member states.

There are inlets all around Ireland's coastline and it is difficult to prevent the landing of illegal products such as drugs, cigarettes and weapons. I do not know whether the Bill addresses the various problems facing jurisdictions. A country like Ireland will require extra resources to provide mutual assistance and co-operation because of the complexities associated with being an island nation. The provision of effective air and sea policing services is far more costly in Ireland than in a country which is landlocked.

The Irish criminal fraternity has altered its operations in recent times. In terms of criminal activity, Ireland was formerly a small-time gangland area. The effective operation of the Criminal Assets Bureau has resulted in many of the big [594] players moving abroad. People formerly resident in Ireland who had contacts abroad have moved abroad altogether and established bases from which they run their illegal operations, such as the importation of drugs and weapons into Ireland and money laundering. Only this week, a Dutch court convicted a person who had paramilitary links in Ireland in the past and who has strong drug links here at present. The man organised the transport of drugs, guns and ammunition to Ireland. All of these combined in one set of activities is becoming increasingly common. Ironically, because of the excellent policing in these areas, our local criminal fraternity is now expanding abroad and is becoming much more influential in the international criminal circuit. That underscores the need for the maximum activity in terms of mutual co-operation.

There is another side to co-operation. We share a border with Northern Ireland which has seen the greatest amount of crime in terms of smuggling weapons, bombs, ammunition and, increasingly, drugs. I am disappointed that we have not made more progress with the Good Friday Agreement in terms of joint co-operation on policing, North and South. We appear to have better relations with the Dutch police than we do with the RUC. What is happening between the Minister for Justice, Equality and Law Reform and the RUC in terms of joint policing which is so essential in that area? In many cases a blind eye seems to be turned to certain forms of criminal activity. I thought that would have been one of the areas most focused on in terms of cross-Border co-operation and that the area of drugs in particular, cigarette smuggling and other activities would be hard hit by now, but that is not the case. That is a common problem here and many illegal entries from other jurisdictions, be it Britain or elsewhere, take place across the Border.

I ask the Minister to convey to the Minister for Justice, Equality and Law Reform that the first area on which we need mutual co-operation of the highest order is the Border. I would like to see that mutual co-operation being promoted to a greater degree. With the British-Irish group meeting this weekend, there is scope for discussion of various forms of co-operation in terms of policing and criminal activity.

The Minister said that the one opt-out clause we have is that in relation to the Schengen Convention, namely, the area of hot pursuit, cross-border surveillance and covert investigation between two jurisdictions in terms of customs co-operation. He indicated that we are likely to opt out of that agreement. That is in relation to Northern Ireland where any covert surveillance is likely to take place that would be termed cross-Border in our jurisdiction; it would be difficult for it to take place elsewhere.

What talks, if any, have taken place with the neighbouring jurisdiction on this matter? For example, when Britain signs these conventions, will it look for a similar opt-out clause in relation [595] to our jurisdiction or will it retain the full force of the Schengen Agreement? Will we find ourselves not participating from this jurisdiction if our police force wants to engage in pursuit while it would be possible for the police force in the Northern Ireland jurisdiction, or indeed the army, to engage in certain circumstances? That is an important point on which I would like clarification.

I want to refer briefly to the controlled delivery of illegal materials. Provision is being made in the legislation whereby materials and goods that have been identified as illicit by a police force in one jurisdiction can be kept under surveillance while they cross a border into another jurisdiction. The theory is that it is seized at the point of delivery but our experience of dealing with that in this jurisdiction has been poor because, invariably, the people abscond at the point of delivery and the general transmission process is a mess. I would be wary of Starsky and Hutch or James Bond type covert operations where the delivery of illicit materials is tracked in exciting, trans-border activity because invariably there is a breakdown in communication. That has happened so often in the past when materials pass from one jurisdiction to another, and perhaps even to a third. We have to be careful about that because the statistics indicate that of those we have attempted in this jurisdiction, there have been few successful sting operations of this nature. It might not be any harm to examine the statistics before we agree too readily to this form of operation which might become the norm as criminal activity becomes more widespread on the international or European circuit.

Data protection is extremely important and the Bill provides for co-operation in this area in terms of the Data Protection Commissioner. In our jurisdiction we see how readily official bodies use confidential personal information for other purposes. I raised on the Order of Business this morning the manner in which the Department of Education and Science used confidential data on members of the ASTI to deduct pay from those teachers, and only those teachers, who paid their union subscription by direct debit. The Department used that information, without permission, to deduct from the salaries of the ASTI members who were working to rule during that dispute. As a result, the whole process of industrial negotiation with the teachers was set back by two months because of the anger the teachers felt at what was clearly an illegal act by a Department. The Minister is considering appealing that decision which will further provoke the teachers because he embarked on an illegal act in relation to personal confidential information. It is difficult to police that area in this jurisdiction. The data commissioner has much work to do in that regard alone.

In terms of exchanging information with other jurisdictions the Minister spoke about “clear situations” where there was prior illegal activity or [596] where there are real indications to suggest the person concerned has committed, is in the act of committing or will commit serious contraventions of law. This is extremely vague – a policeman's suspicion will not be upheld in a court of law. Material can be put on a database by a policeman, Customs and Excise officers and other officials and remain there, and the danger is that it will be abused unless there is proper confidential data protection. I am worried there could be a huge database of citizens which could be used for a variety of purposes. This will require continuing supervision and the inclusion of caveats so that what I have outlined does not happen.

I welcome the Bill which is a useful contribution to the fight against international crime, but I enter the caveat that in all these circumstances we must be careful to ensure the rights and liberties of all citizens are protected as far as possible.

Minister of State at the Department of Finance (Mr. Cullen): Information on Martin Cullen  Zoom on Martin Cullen  I thank Senators for their contributions to this important debate. A number of issues were raised, but I wish to begin by giving some information on what has happened over recent years in terms of convictions etc. The Revenue Commissioners take a very robust approach to customs and excise offences. Where commercial smuggling is concerned, the goods are seized and confiscated and offenders are prosecuted if there is sufficient evidence to do so. In the case of excise offences, where the necessary evidence to sustain a conviction is more readily available than in other areas, there is substantial emphasis on prosecution.

In the context of customs and excise, over the past 12 years more than 3,600 convictions were obtained. Court penalties of almost £3.5 million were imposed and jail sentences were imposed in 18 cases while 237 jail sentences have been imposed for non-payment of fines. Enforcement action in relation to smuggling has been hitting criminals hard, and over the past eight years 6,650 seizures have been made with an estimated total value of almost £46 million. Therefore, regarding Senator Costello's point, it would be unfair to suggest that things are not happening. There have been one or two high profile cases where things did not work out as well as they should have, but we should be aware of the substantial level of seizures over recent years. The co-operation agreements which now exist between the Garda, Customs and Excise and Revenue, with a new protocol having been recently signed, have immeasurably improved understandings and relationships, particularly in terms of operations. Perhaps in the past there was not the most efficient use of resources in expediting particular cases. Currently over 800 cases involving smuggling and other customs and excise offences are being processed with a view to bringing offenders before the courts.

All Senators referred to the opt out clause under the conventions. As I outlined in some detail, the five areas involved are hot pursuit, [597] cross-border surveillance, controlled delivery, covert investigations and joint special investigations teams. Joint special investigations teams and controlled delivery are mandatory, but we are opting out of the other three to a certain extent, as is the UK to more or less a similar degree, because neither ourselves nor the UK are party to the Schengen agreement, which has obvious implications in terms of our enforcement ability. However, it would be wrong for Members to simply say we are opting out. The flow of information, as I outlined in great detail, between Customs and Excise administrations in various member states is very advanced and very high tech, and the structures in place for assimilating information and processing it is very sophisticated. The message we need to send out is that Ireland has a very strong approach towards international criminals, whether they are based in Ireland or abroad, and that they are not welcome here. The Legislature and Government will do everything possible to ensure all the forces of law bring these people to justice so that they are prosecuted and given jail sentences where the evidence is available and, therefore, cannot continue to be involved in criminal activity.

As parents we are all aware of the scourge of drugs and what is happening some of our young people. We must exorcise this scourge from the culture of young people. One method of doing so is to prevent illicit substances from entering the country and ensure we can cut off supply. This will be a constant battle which will probably never end, but we can make it extremely difficult for criminals who want to do business here.

All Senators referred to the importance of data protection. The provisions in the Bill are specific in terms of data protection and are in keeping with existing data protection legislation.

Senator Finneran specifically asked about trafficking in terms of illegal immigration. I am sure Members know that the Illegal Immigrants (Trafficking) Act, 2000, deals with this issue as does the Refugee Act, 1996, which was amended by the Immigration Act, 1999. Therefore, there is a substantial body of legislation to deal with some of the matters raised by Senators.

This Bill is specific and I gave an amount of detail as to how it fits into our armoury of measures dealing with crime. It is important that Ireland keeps its legislation up to date so we can be party to international conventions and signatories to them. This allows us work in consort with our fellow members in the EU to ensure a cohesive and co-ordinated approach in the Union to dealing with international crime. What we are dealing with in the Bill is how automated data is shared among member states, the responsibilities involved, how various Customs and Excise administrations act and the relationship between them so that we are successful in bringing to the courts, in Ireland or elsewhere in the EU, the drug barons and international criminals who create misery and suffering for many people.

[598] I will deal on Committee Stage with specific points which arise. However, I hope I have responded in general to the issues raised by Senators. They can reflect on the information I have given. I appreciate the support on all sides of the House for the Bill.

Question put and agreed to.

Committee Stage ordered for Thursday, 1 March 2001.


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