Tairgím leasú a 2:
I gCuid I, leathanach 7, línte 7 go 9 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"6º Tig leis an Stát na roghnuithe nó na roghanna a fheidhmiú a shocraítear le hAirteagail 1.11, 2.5 agus 2.15 den Chonradh dá dtagraítear i bhfo-alt 5º den alt seo nó fúthu agus leis an dara Prótacal agus leis an gceathrú Prótacal atá leagtha amach sa Chonradh sin nó fúthu ach beidh aon fheidmiú den sórt sin faoi réir ceadú a fháil roimh ré ó dhá Theach an Oireachtais. ",
agus
I gCuid II, leathanach 7, línte 15 agus 16 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"6º The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5º of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas. ".
I move amendment No. 2:
In Part I, page 6, to delete lines 6 to 9 and substitute the following:
"6º Tíg leis an Stát na roghnuithe nó na roghanna a fheidhmiú a shocraítear le hAirteagail 1.11, 2.5 agus 2.15 den Chonradh dá dtagraítear i bhfo-alt 5º den alt seo nó fúthu agus leis an dara Prótacal agus leis an gceathrú Prótacal atá leagtha amach sa Chonradh sin nó fúthu ach beidh aon fheidhmiú den sórt sin faoi réir ceadú a fháil roimh ré ó dhá Theach an Oireachtais. ",
and
In Part 11, page 6, to delete lines 15 and 16 and substitute the following:
"6º The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 or the Treaty referred to in subsection 5º of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas. ".
In his statement to the House on 3 March, at the commencement of its second reading of the 18th Amendment of the Constitution Bill, the Minister for Foreign Affairs explained that the Government, on Committee Stage, would move an amendment to the proposed wording of Article 29.4.6 of the Constitution as contained in the published Bill. The amendment as set out by the Minister for Foreign Affairs three weeks ago was formally published on 19 March. It relates to the second paragraph of Part I and Part II of the Schedule to the Bill.
The Government amendment reads:
The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5 of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas
Taken together, the three Articles and two Protocols cited in the amendment correspond to the areas of the treaty cited in the explanatory memorandum to the published Bill in relation to the need for the new subsection 6. The explanatory memorandum stated that the new subsection 6 was necessary, in addition to the new subsection 5, in order to confer on the State sufficient powers for it to exercise the options and discretions provided by the Treaty of Amsterdam should it so decide. The explanatory memorandum instanced, in this connection, general provisions in the treaty on closer co-operation, flexibility, police and judicial co-operation and free movement pursuant to which obligations may be entered into by a number of member states of the European Union short of the full membership.
Following a lengthy, detailed and helpful round of discussions, the Government brought forward a modified wording of subsection 6. During the debate on the Bill on Second Stage, the modified wording was endorsed by the three parties which formed the Government when the treaty was negotiated. It is this modified wording which is before the House today as a Government amendment.
The purpose of the Government amendment is to make clear that the State is explicitly authorised to exercise the options and discretions provided by or under the three named Articles and two named Protocols to the treaty but that any such exercise shall be subject to the prior approval of both Houses of the Oireachtas. The amendment does not prejudice, and is not intended to prejudice, any other provisions of the treaty which are covered by the proposed Article 29.4.5.
Taking the three Articles and two Protocols seriatim, they cover the following: Article 1.11 covers police and judicial co-operation in criminal matters; Article 2.5 allows for closer co-operation under normal Community business, known as the First Pillar; Article 2.15 inserts a new Title IIIa into the European Community Treaty and covers visas, asylum, immigration and other policies related to free movement of persons.
The second Protocol sets out how the Schengen arrangements are to be integrated into the framework of the European Union. Inter alia, it provides that Ireland or the United Kingdom or both countries, which have not signed up to the Schengen agreements, may at any time request to take part in some or all of Schengen. The Council will decide on such a request.
The fourth Protocol establishes the position of the State in relation to Article 2.15. Ireland and the United Kingdom are exempt from the provisions of the new Title IIIa as long as they maintain the common travel area arrangements, although they may either together or individually participate in the adoption of specific measures. Ireland has stated in a declaration to the final Act that it intends to exercise its right to take part in the adoption of measures under Title IIIa to the maximum extent compatible with maintenance of the common travel area.
The Minister for Foreign Affairs in a statement introducing the debate on Second Stage set out at some length the complex set of interrelated provisions in the Treaty of Amsterdam regarding what were known under the Maastricht Treaty as justice and home affairs. These interrelated provisions account for four of the five specific elements covered by the amendment proposed today, namely Article 1.1 1, Article 2.15, the second Protocol and the fourth Protocol. Article 2.15 and the second and fourth Protocols are closely related to each other in substance and I shall therefore group them together in my further comments. Before doing so, I shall say a word about Article 1.11 and I shall look briefly at Article 2.5, which concerns closer co-operation in the First Pillar.
Article 1.1 1 of the Treaty of Amsterdam provides for the replacement of Title VI of the Maastricht Treaty by a new restructured Title VI or Third Pillar, which will be concerned exclusively with provisions on police and judicial co-operation in criminal matters. The new restructured Third Pillar has three Articles under which options may be exercised by any member state. These options or discretions enable a member state to adopt a convention established by the Council; such conventions may come into force once they have been adopted by a majority of the member states; to agree to accept the jurisdiction of the Court of Justice to give preliminary rulings at the request of national courts on points of Community law relating to a wide range of matters adopted under the Third Pillar — within this option there are two sub-options, namely states may decide whether any of their courts or tribunals may request preliminary rulings or whether only courts and tribunals of final instance may do so; to join in the new provision in the Third Pillar for closer co-operation among at least a majority of member states, using the institutions of the Union, in matters coming under the restructured Third Pillar.
The Minister for Foreign Affairs in a statement introducing the debate on Second Stage also made clear that, in areas of the treaty related to free movement, Ireland in negotiation secured a number of opt-outs, with the possibility of opting-in on certain conditions. The Minister said then, and I repeat today, that what Ireland has negotiated is, in a sense, an ideal arrangement. Our right to preserve the common travel area with the United Kingdom is confirmed, but we and the United Kingdom may also request to participate in any actions at the level of the Union — either under the new Title lIIa or in the context of Schengen which covers matters some of which fall within the new Title IIIa of the European Community Treaty and some of which fall within the new Third Pillar — where we consider it to be in our interests to do so. These opt-outs for Ireland, with the possibility of opting-in on certain conditions, arise under Article 2.15, and the second and fourth Protocols.
The possibility for this State to opt-in to actions under Article 2.15 and the second and fourth Protocols having been expressly negotiated, it is appropriate that the State be given the power to avail itself of these options. It is, I suggest, especially right and fitting that the exercise by the State of these particular options should be subject to prior parliamentary approval.
As the House is aware, Ireland and the United Kingdom do not participate in the Schengen co-operation system, which has developed outside the European Community-European Union Treaty framework and which the Treaty of Amsterdam will bring into that legal framework for the 13 member states which are involved. The Schengen acquis consists of a comprehensive series of measures aimed at the gradual abolition of checks on persons crossing internal borders between participating States. These measures are in the following areas: the harmonisation of visa and asylum policies; police and security co-operation; the harmonisation of provisions on weapons and ammunition; judicial co-operation; the development of a common information system in relation to entry, the granting of visas and police co-operation.
Under the second Protocol, Ireland and the United Kingdom will not be bound by what has already been agreed in Schengen but will be able to opt in at any time to some or all of what has already been done and to take part in any new proposals to build further on it, in both cases subject to terms and conditions which are set out in the Protocol. Schengen deals with a range of issues such as borders, immigration controls and policing which overlap with the provisions of the new Title IIIa on visas, asylum, immigration and other policies related to free movement of persons. Other areas of Schengen co-operation will be dealt with in the new Third Pillar.
Article 2.5 of the Treaty of Amsterdam will add general provisions to the European Community Treaty which will allow a group of member states less than the full membership to use the Union's institutions to develop closer co-operation between themselves under the First Pillar. To ensure that the introduction of general flexibility provisions would not over time damage the coherence and solidarity of the Union, the treaty defines a tight framework of rules to govern the circumstances in which flexibility provisions may be invoked. The rules specify that the exercise of closer co-operation should aim at furthering the objectives of the Union, respect the principles of the treaties and the single institutional framework of the Union, only be used as a last resort, concern at least a majority of States, not affect the acquis communautaire, be open to all member states, and comply with the specific additional criteria applicable to closer co-operation in the First and Third Pillars.
Article 2.5 establishes specific additional criteria, to the effect that closer co-operation in the First Pillar must not concern areas of exclusive Community competence, affect Community policies, actions or programmes, concern the citizenship of the Union or discriminate between nationals of member states, go beyond the limits of Community powers under the treaty or constitute a discrimination or a restriction of trade or distort competition between member states.
As I indicated earlier, one of the options which arises under Article 1.11 is the option to participate in closer co-operation in the restructured Third Pillar. The general flexibility provisions of Article 1.11 and Article 2.5 do not apply to the Second Pillar, which concerns the common foreign and security policy.
Taken as a whole, the amendment reflects the fact that the specific Articles and Protocols which it identifies contain options and discretions. The other new element which it introduces is a requirement for prior parliamentary approval for the exercise of the options and discretions provided by or under those specific Articles and Protocols. From what I have said about the specific Articles and Protocols, it will be clear that they concern matters which are important to the citizen and which could impact directly on him or her. It is therefore, I suggest, entirely right and appropriate that, should the Government wish in the future to take up the options in question, it should first lay a proposal in this regard before the Dáil and Seanad. It should make its case fully and in context to the elected representatives of the people, engage in a full debate and, subject to parliamentary approval, proceed to exercise the option in question.
I have set out at some length all that is covered by the amendment which I am proposing today on behalf of the Government. The purpose of Article 29.4.6 of the Constitution, amended as I have proposed, is to provide legal certainty with respect to the State's ability to implement the flexibility provisions of the treaty and to exercise the opting-in rights secured in the negotiations, subject to the prior approval of Dáil and Seanad Éireann. On this basis, I commend the amendment to the House.