I welcome the Minister for Justice, Home Affairs and Migration to the House.

I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Council Decision authorising Member States to sign, in the interest of the European Union, the Third Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters,

a copy of which was laid before Seanad Éireann on 4th December, 2025.

I thank the Seanad for taking this motion. It is before the House to permit Ireland to opt into an EU proposal for a Council decision authorising member states to sign, in the interest of the European Union, the third additional protocol to the European Convention on Mutual Legal Assistance in Criminal Matters.

The third additional protocol is not a protocol of an EU legal instrument; it is an international agreement under the auspices of the Council of Europe. Only sovereign states - not the EU as a supranational entity - can sign it. Consequently, the EU cannot ratify the protocol. Instead, its mechanism is to authorise member states to sign it in the EU's interests.

I am looking for the House's agreement to opt in, pursuant to Protocol No. 21. Members will be aware that the protocol provides that Ireland has three months from the date of a proposal's publication to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. It is subject to approval by both Houses of the Oireachtas. As this proposal was published on 17 September, we have until 17 December to get that approval. We got the approval of the Lower House last week.

It is important to state that we are seeking to opt in under Article 3. The article emphasises Ireland's commitment to strengthen the ability of states to respond effectively to crime by improving and supplementing the mutual assistance procedures set out in the European Convention on Mutual Assistance in Criminal Matters, as well as the first three protocols.

The third additional protocol was drafted by the Council of Europe's committee of experts on the operation of European conventions on co-operation on criminal matters and draws on lessons from the Covid pandemic and the growing reliance on digital tools in international judicial co-operation. Member states, including Ireland, participated in and contributed to its development. The protocol enhances the ability of member and partner states to tackle crime effectively in a rapidly evolving, political, social and technological landscape.

It supplements the original convention and its first two protocols, adapting them for today's challenges. Key improvements include the simplification and acceleration of mutual legal assistance procedures, a broader scope for requesting assistance, expanded use of electronic communications and videoconferencing, authorisation of technical surveillance tools, and the introduction of time limits.

Ireland supports the third additional protocol and views it as an invaluable instrument for strengthening mutual legal assistance in criminal matters. While further technical and policy work is needed before Ireland is in a position to sign and ratify the measure, it is anticipated that Ireland will be able to do so as soon as is practicable.

The proposal seeks to authorise member states to sign the third additional protocol. In fact, it was already open for signature at the conference of ministers for justice in Valletta, Malta, in September this year. Sixteen states have signed. In circumstances in which many have already signed, member states have questioned the necessity for this Council decision and the Commission's competence with respect to the measure. Member states have expressed significant concerns as to the approach taken by the Commission and the precedents this may create in the future. This issue will form the substance of negotiations as the measure is discussed in Brussels in the coming months.

Ireland very much shares these concerns and, therefore, it is essential that we have a credible and influential voice at the table in these negotiations. That is best achieved by opting in now to the proposal under Article 3. The Department of justice requested advice from the Attorney General’s office regarding the implications of a proposed decision to opt in to this proposal. The Attorney General did not indicate any constitutional or legal impediment to an opt-in under Article 3 or Article 4 in the written advices, although the wider issue of the lack of clarity as to the Commission's competence in exercising its powers with respect to this international agreement is raised. These are matters that we will raise in negotiations in Brussels, along with any other issues that arise, to ensure that the final text of the Council decision works well for Ireland and the EU as a whole.

Obviously, criminal activities continue to evolve and are becoming increasingly cross-border in nature. That is why it is so important that we sign up to the third additional protocol. It will support Council of Europe member states to combat crime.

Cuirim fáilte roimh an Aire. The Minister is very welcome. I acknowledge his commitment to this House. He has been very attentive to all debates in the House, which is very much appreciated by me and other colleagues in the Chamber.

On behalf of the Fianna Fáil Party, I am happy to support the protocol as outlined by the Minister. As he stated, it relates to a proposal for mutual legal assistance on criminal matters. It is vital that we have co-operation and the sharing of information and that it is done legally with our partners in the fight against crime. This protocol will facilitate that co-operation between authorities in relation to data sharing and so on.

As the Minister outlined, the Attorney General has scrutinised this from a legal perspective and is happy to see it move on to this stage. As the Minister also outlined, crime knows no borders. It is vital that in our collective efforts to fight crime, we have maximum co-operation between states. For that reason, I am happy to support the protocol as outlined by the Minister.

Cuirim fáilte roimh an Aire chuig an Teach. Like Senator Gallagher, I welcome the proposal for the opt-in. As the Minister said, this was initiated at the Council of Europe, as opposed to the European Union, in its secondary legislation, or what is referred to as a non-legislative enactment, which I understand is on a par with the statutory instruments with which we would be more familiar.

As Senator Gallagher outlined, crime is evolving, and crime protection measures need to evolve with crime. Co-operation with our international partners is as important now as it ever was. I think it is prudent to opt in under Article 3, as opposed to waiting beyond this stage. On behalf of the Fine Gael group, I also recommend opting in at this point.

I welcome the Minister. He probably knows at this point where I will be going with this.

I do.

Sinn Féin supports mutual legal assistance. Crime does not respect borders. Effective co-operation between states is essential in tackling organised crime, trafficking, financial crime and, of course, terrorism. However, support for co-operation does not mean automatic agreement to every justice-related EU measure placed before us under Protocol 21 nor does it mean that Ireland should sign up without proper scrutiny where issues of sovereignty, democratic oversight and civil liberties are clearly engaged. Protocol 21 exists for a reason. It was a democratic assurance to the Irish people that justice and home affairs would remain subject to national choice. That opt-out was fundamental and not decorative, yet we increasingly see a default Government position of opting in under Article 3, often under tight timelines and with limited scrutiny.

The effect of this is that Ireland becomes bound by qualified majority vote and loses its veto, even if the final outcome does not reflect our best interests. That is the issue at its core. Under Article 3, we opt in early and we are bound, regardless of the final text. Under Article 4, Ireland retains the right to opt in after adoption, once the detail is clear, the safeguards are visible and the real-world implications are understood.

Our position has always been the same. Unless there is a compelling reason to do otherwise, Article 4 should be the default. Ireland is already part of the 1959 convention and its first and second edition protocols, which expanded co-operation in sensible and appropriate ways. The third additional protocol, however, goes further, and that is where the legitimate concerns arise. Articles 1 and 2, dealing with electronic communication and videoconferencing, are largely practical and reflect modern realities, but Article 3, which facilitates co-operation in the use of technical recording devices, including GPS tracking and audio surveillance, raises serious red flags. It allows for requests even after the fact, for example, where a device has crossed a border. This represents a qualitative shift. Mutual legal assistance has traditionally meant sharing evidence, not facilitating surveillance activities that may already have taken place within another state’s territory.

This has serious implications for sovereignty, oversight and accountability. Who authorises this activity? What safeguards apply? What remedies exist if Irish citizens’ rights are breached? How do we ensure compatibility with our own constitutional protections? These questions are not answered by this motion. Justice is not just an abstract EU competence. It goes to the heart of the relationship between the state and the individual. Sinn Féin does not support the steady drift towards an EU justice superstructure that erodes national democratic control. That does not make us anti-European; it makes us pro-democracy. There is no compelling urgency that justifies surrendering leverage at this stage. Ireland can co-operate fully while choosing to opt in later under Article 4.

This motion, therefore, presents us with a choice. Do we continue with the drip-drip approach of incremental opt-ins or do we pause, scrutinise and decide deliberately? For us, sovereignty over justice matters must remain with the people of Ireland and their elected representatives. For that reason, we will support mutual legal assistance in principle but we cannot support an Article 3 opt-in to this protocol in its current form. We urge the Government to reconsider and pursue the Article 4 opt-in, allowing for proper scrutiny, clearer safeguards and genuine democratic oversight.

I have a few questions. Some parts of my contribution hang on not fully having an understanding of how this EU opt-in will intersect with the international co-operation office Bill, which is at the heads of Bill stage at the justice committee. Under that Bill, we will see a situation where a body is set up to facilitate the transfer to other jurisdictions when an investigation is happening of data that is owned and controlled within Ireland. I am not sure how this motion intersects with that proposed legislation and proposed body. Will that body become the competent authority for the transfer of data? We see that more flexibility is given in this motion concerning the transfer of data.

I have raised my concerns at the justice committee. If Ireland owns and controls the data and a third party that is not the Judiciary or the Minister for justice is making a decision on what data is shared, how do we ensure full oversight and compliance with regulations and certain protocols but also regarding our own structures or what we determine to be criminality?

I understand in this article it lays out assassination, murder, rape and stuff like that but I have concerns about this transfer of data and whether it is for investigation or actually mapping surveillance. If we look at Hungary, for example, we have countries that are rolling back on their human rights. They are introducing laws relating to the banning of abortion. We have other countries that are really clamping down on liberation with regard to free protest and free speech. Where do these intersect with those types of laws? If we have a third body, competent authority or this other general scheme that is setting up an authority that will transfer data, how do we ensure we are not contributing to laws that Ireland would not generally have any sort of allegiance to? I do not think Ireland wants to contribute to somebody being prosecuted in another country where there are human rights abuses.

This switches from being a Department of justice request and it will be possible to make requests directly to the Judiciary. There is a third step in other legislation that is about data, whereby we will see another body set up to facilitate that data. I do have questions on the constitutionality piece, if we remove the Judiciary from that conversation. I need to understand what constitutes a competent authority. Is a competent authority going to eventually be named as this other body, the international co-operation office? If somebody crosses a border into a country and there is a surveillance aspect to that, if no notification has been given and a large body of data is collected in another country and a period of time has passed before that notification happens, is that data permissible and who owns that data? If that continues to be tracked, are we allowing data to be obtained across another border and then passed over somewhere else without us having full oversight as to why that data is being used?

On the one hand, it is very easy for us to say we need to investigate crime and make sure trafficking or murder are not happening but we cannot allow it to also be a backslide and a back door to an infringement of data privacy, when we look at how this protocol interacts with the regulatory roll-back that is being mooted now in respect of the digital omnibus regulation proposal. Another one of my questions relates to how we are going to impose any restrictions on how a recording device is used by another state party on our authority. Will we ban that being used in homes? Is there going to be a bar we set in which that type of surveillance can happen within our own borders if someone was to cross from another state into ours? I will repeat the question: am I presuming correctly that the Government will ultimately designate the international co-operation office to take on this role? That will, in fact, replace a function that the Judiciary has under the previous protocol and as it stands now.

What happens if the State has contracts with private companies for the provision of technical recording devices? Are there safeguards in place to ensure any data gathered is held exclusively by the states and will not be held by the contracted private operators? Ireland is obviously in a different position from many other EU states as we are primarily responsible for a huge amount of the high-tech industries here. That means we will have other bodies outside of EU states holding data within our country. What role do they, as service providers, play in determining what types of data we will facilitate across borders?

Ar dtús, gabhaim buíochas leis na Seanadóirí. I thank the Senators for their contributions. I acknowledge the points that were raised by Senators Gallagher and Kelleher. They are obviously very much in agreement with the proposal.

I also want to deal with the point raised by Senator Ryan. It is an interesting point as to whether, when it comes to Protocol 21 opt-in, we should opt in under Article 3 or Article 4. As I have stated previously, I think there is a significant advantage to opting in under Article 3. The reason for that is that we get an opportunity, if we opt in under Article 3, to try to mould the ultimate outcome of the legal instrument. Our national position would carry significantly more weight in the negotiations on the final measures to be adopted. The benefit of opting in under Article 3 is that we are part of the negotiations and we can mould the outcome or the final version of the legal instrument. If we opt in under Article 4, we do it after the event. The instrument will have been negotiated and finalised. We will not be able to change it and it will be very much take it or leave it.

I am conscious of the fact as well that if I did it by Article 4, we would probably vote to go into it because the Government has a majority. In regard to Article 3, there is a big benefit in opting in under that article because it gives me and Ireland the opportunity to direct the legal instrument in the area we want to go. That, in some respects, answers some of the concerns that Senator Ruane highlighted in her contribution. It is preferable, if we are trying to ensure the legal instrument follows principles that are important in an Irish legal context, that we should opt in under Article 3.

Senator Ruane also asked about how this is going to align with and work alongside the criminal justice (international co-operation office) Bill. As she indicated, that Bill is in the process of being drafted. It is for the purpose of transposing the EU e-evidence package. It allows authorities in one EU member state to issue an order to produce electronic evidence needed for a criminal investigation to an online service provider based in another EU member state. The e-evidence package will regulate this practice and apply the same rules to all online service providers across the EU, providing legal certainty and clarity for businesses and law enforcement.

Ultimately, down the road, when it is fully transposed, I will establish by commencement order an international co-operation office. That will be the place where people from other EU countries come for the purpose of ensuring the EU e-evidence package can be complied with. I have not yet made a decision in respect of whether that needs to be the office, if there is an office required for the purpose of what we are trying to transpose and opt into at present.

Senator Ruane also mentioned human rights and constitutional concerns in respect of the third protocol we are opting into. The third additional protocol explicitly reaffirms commitment to human rights, rule of law and democratic safeguards. All co-operation remains subject to Irish constitutional protections, the ECHR, domestic judicial oversight and data protection law. The third protocol explicitly reaffirms that all co-operation in criminal matters must respect the rights guaranteed under the European Convention on Human Rights. These protections are directly aligned with the rights already embedded in Irish law. Any personal data transferred under a mutual assistance request may only be used for the specific criminal justice purpose for which it was sought. It cannot be used for unrelated investigations or shared onward without the express consent of the state that provided it. That is a central safeguard of the protocol and it is fully compatible with the principles of purpose limitation and controlled access that already apply in Irish legislation.

The Seanad now stands adjourned until 9 a.m. tomorrow in accordance with the Order of the Seanad today.