That Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council framework decision on the European arrest warrant and the surrender procedures between member states,
a copy of which proposed measure was laid before Dáil Éireann on 11 December, 2001.
I am grateful that the House has been able to create space in a busy Dáil schedule to facilitate debate on this important motion.
Every Member and every citizen we represent knows that the appalling atrocities committed in the United States on 11 September last have shocked the world into the realisation that internationally organised terrorism threatens us all. Before our eyes, we saw the evil of terrorism strike with devastating effect at the heart of the most powerful nation on earth. The impact of this shock has been enormous. Those who suffered most are obviously the families and friends of the dead and injured, many of them Irish or with Irish connections. Apart from that, global business confidence has been shaken, international travel has been significantly curtailed and a war is being waged in Afghanistan as a direct consequence of the 11 September attack.
Another direct outfall of the attacks has been a substantial acceleration in the evolution and development of proposals to counter international terrorism. The main purpose of today's debate is to enable the House to debate two such proposals which have emerged in the recent past at EU level. Before discussing the proposal, it is appropriate that I say something about the pace and the range of activity taking place within the European Union justice and home affairs area, commonly referred to as the third pillar area.
The reality is that in recent times, the pace of third pillar activity has greatly exceeded activity levels in the first and second pillars. Respected independent experts have commented on this. In a recent article dealing with the area of freedom, security and justice, for example, Professor Monar of the Sussex University Institute has stated that:
The European Union has now entered the new millennium with a new major political project which future historians may well regard as another of these defining ventures: the creation of the "area of freedom, security and justice (AFSJ)".
Laid down in Article 2 of the Treaty on European Union, it occupies the same rank as a fundamental treaty objective as, for instance, the implementation of a common foreign and security policy, the single market and economic and monetary union. Politically, its longer term significance could be even greater than that of these earlier important projects because it is all about delivering a range of essential public goods to the citizens of the European Union. These include key issues of internal security and access to justice, areas which have historically played a central role in legitimising the build-up of public authorities and the creation of the modern state and which – much more so than, for instance, foreign and security policy matters – are of direct concern to citizens.
He goes on to state that:
There is no other example in the history of European integration of a policy-making area which made its way as quickly and comprehensively to the centre of the treaties and to the top of the EU's policy-making agenda. Ten years ago – at the beginning of the 1990s – what was then called justice and home affairs did not even exist as a policy-making area within the scope of the treaties, and the limited co-operation between the member states, which had been building up since the mid-1970s, took place in a range of poorly co-ordinated intergovernmental groups which lacked adequate institutional structures, legal instru ments and objectives. Today, after the Amsterdam reforms, the additional impetus given by the 1999 Tampere European Council, and a broad range of legislation adopted or in preparation, policy-making in justice and home affairs has not only become a fundamental treaty objective but also one of the most dynamic and expansionist areas of EU development in terms of generating new policy initiatives, institutional structures and its impact on European and national actors.
The events of 11 September, have added further impetus to the evolution and development of EU third pillar proposals. This, not surprisingly, imposes quite considerable pressure at both official and ministerial levels for countries such as ours with limited resources. We must maintain pace with our EU partners, many of whom are much more heavily resourced than we are. Apart from that, there is – and will be – additional pressure on national parliaments in respect of issues requiring parliamentary approval. Time pressures can mean that proposals will be brought to parliaments for approval when negotiations at EU level are either still in train or just barely concluded.
The proposal which is the subject of the motion before the House today has been the subject of discussion – and subject to significant amendment – over the past two months and only came up for decision at the Justice and Home Affairs Council on Thursday and Friday last, with the objective of it being agreed at the JHA Council. Although the proposal came up for decision on Thursday and Friday last, there was still a significant level of debate resulting in further important amendments to the text – some made at Ireland's behest – in an effort to secure overall agreement. The result is that the Dáil and Seanad are being asked to debate texts, the latest version of which only became available yesterday.
My point in outlining the time pressures involved is not to suggest that Ireland is somehow being hard done by in having to deal with these matters at short notice – many of our EU partners have the same difficulties – but that third pillar business is progressing, and is likely to progress, in a way that will require us to look afresh at how we can conduct business efficiently and effectively at EU level, while facilitating the necessary level of oversight and scrutiny by the Houses of the Oireachtas. Agreement at the JHA Council proved elusive last week in the European arrest warrant but it is necessary, for reasons I shall outline when I come to the detail of the proposal, that the Taoiseach should be able to join the other EU heads of state or government this week in signalling his agreement to the European arrest warrant, on the basis that the prior agreement of the Houses of the Oireachtas has been secured.
As to why this proposal, and the motion on combating terrorism which is to be debated later today, came before the House, Deputies will be aware of the provisions of Article 29.4.6 of the Constitution which 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 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.
This provision was inserted largely on the basis of concerns which had been expressed by the Labour Party. The understandable concern of the Labour Party in proposing the constitutional provision was that, in respect of certain matters on which the State could exercise an option or discretion, the approval of both Houses of the Oireachtas should precede any ministerial agreement. Deputies will be aware that several matters have come before the Houses of the Oireachtas under Article 29.4.6 dealing with asylum and immigration matters and civil law matters.
It has not been the understanding that matters needed to be brought before the Houses where the relevant Treaty provision referred to actions that fall to be taken by the EU Council of Ministers – as distinct from actions taken on the basis that they fall within the "options or discretions" open to the State. The practice, in relation to proposals for framework decisions, for example, which fall to be decided by the JHA Council and involve the approximation of laws, is to seek the advice of the Attorney General as to whether any constitutional issues arise. If a constitutional impediment is identified, the practice is to seek to have the offending provision removed as a pre-condition to ministerial agreement.
This procedure not only has the advantage of efficiency in dealing with JHA Council business, but of ensuring that constitutional issues are identified and addressed before there is any agreement. Consistent with this approach, our EU partners, once they understood our constitutional difficulties, were invariably prepared to be accommodating in meeting those difficulties. Our partners have been accommodating also in relation to this proposal. Several provisions in the original draft proposal for a European arrest warrant gave rise to concern on constitutional grounds, but important adjustments have been made, so that all but one of these have now been fully addressed.
I will return to the one remaining issue on which a question might be raised as to constitutionality and I shall commend to the House the proposals as they now stand. The point I make here is that by virtue of the fact that important constitutional issues arose in respect of one of the draft framework decisions now before the House, the Government has decided, having taken the advice of the Attorney General that, while it has not been the norm to refer proposals for Council framework decisions to the Houses of the Oireachtas, the better course would be to bring all proposals for framework decisions before the Houses.
The European Council meeting in Tampere in October 1999 asked the Commission to bring forward a proposal for an arrest warrant. The Commission tabled its proposal in the aftermath of the events of 11 September this year. We discussed the proposed framework decision at the Joint Committee on European Affairs some weeks ago. There has been intensive negotiation since then and the text I have laid before the Houses of the Oireachtas represents what is likely to be the final shape of the decision. Some 14 of the member states, including Ireland, were able to indicate broad agreement on the proposals contained in the present text when the Justice and Home Affairs Council met on Thursday and Friday of last week. I understand that, following further direct bilateral contacts between the remaining member state and the Presidency, the remaining member state is now also in a position to agree to the proposal as currently framed.
The proposal for a European arrest warrant has at its core the concept of mutual recognition and respect for the judicial processes of the member states of the EU. Based on those concepts, the proposal seeks to simplify procedures to ensure a more efficient system of justice throughout the union. Towards that end, it is proposed to replace among the member states the existing extradition arrangements based on the 1957 Council of Europe Convention on Extradition with a simplified surrender procedure. In essence, it replaces the interstate aspects of extradition with an inter-court system. It is important to emphasise that the European arrest warrant applies between EU member states only and that existing arrangements with non-EU states will continue to apply.
Ireland accepted the need to review current systems in light of the new and devastating threat from international terrorism. However, it was also concerned to ensure that the basic safeguards to protect the individual's rights and liberties were adequately protected. A proper balance needed to be found between the need to protect society at large while retaining the long established safeguards that have been a feature of extradition law heretofore. We have achieved that balance. The general rule set out in the framework decision provides that an arrest warrant may issue in respect of offences with a maximum penalty of at least one year in prison. However, in the case of an offence on a positive list which carries a maximum penalty of at least three years imprisonment, the dual criminality requirement will not apply. The positive list contains 32 of the most serious offences. These include hijacking, terrorism, murder, laundering the proceeds of crime, child pornography, firearms and explosives offences, illicit trafficking in drugs and radioactive materials, and, given our recent sad experiences, it will allow us to deal more effectively with illicit trafficking in human beings.
In the case of offences on the positive list, a warrant may issue based on the definition of the offence in the law of the requesting state. As I have indicated, the dual criminality test will no longer apply to offences on the positive list where there is a maximum penalty of at least three years. That is to say, it will no longer be necessary for the court in the requested country to consider whether the offence on which the warrant is based is an offence in both the requesting and the requested State. However, given the seriousness of the offences listed, it is highly improbable that we could be faced with a situation—