I do not want to speak at great length because Members have the relevant articles in front of them. I will explain the distinction in this regard. It is proposed that Article 31, on the second page of the draft, will be included in part 1 of the treaty, which is the basic document setting out the procedures and the powers of the European Union. Some want to delete this on the grounds that we do not need any reference to justice and home affairs in part 1 of the treaty and that it should rather be dealt with solely in the policies issue. I do not agree with this proposal because certain specificities in regard to freedom, justice and home affairs are provided for - such as, for example, to be able to use the red card, only a quarter of national Parliaments rather than a third would be needed - in the article.
In addition, unlike any other area, it is to be a continuing right of initiative of member states that where five member states come together they can table a proposal for consideration on justice and home affairs, whereas in the rest of the work of the Union, the only initiator may be the Commission. Those two specificities recognise that justice and home affairs is an area that has been very much proper to nation states. The use of force to detain citizens is one of the marks of sovereignty of a state and, therefore, individual states should have that additional protection in this area if we move into it. That is a good reason for having Article 31 in the treaty because it provides a recognition of this difference. Particular reference to this is made in Article 31.3.
Page 3 of the draft covers the various articles, over which I will not delay. There is the definition of the area and what is covered and there is the European Council. It provides that the Heads of Government shall define the guidelines for the legislative and operational actions within the area of freedom, security and justice. This is not new in the sense that it is in the treaty, but it is important that it should remain there.
The Tampere Council, where the Taoiseach, Deputy Bertie Ahern, and others set out an ambitious programme of action on cross-border crime, is an example of Heads of Government unanimously deciding that these are priority areas of action. It is important that the treaty should retain that role for the European Council, which acts always unanimously as a counterweight for the fact that elsewhere in the articles we are proposing that qualified majority voting should be allowed for certain defined areas of procedure and certain defined areas of cross-border crime to allow an approximation in those areas to facilitate the mutual recognition by one country of the decisions of another within the European Union.
If there is to be some measure of majority voting in the detailed area of policy, it is important that the outlines of the policy to be followed should be set unanimously by the European Council. I know that some, notably in the European Parliament, would like to delete this reference to the European Council, but it is something that I intend to stoutly defend because it was part of the compromise that enabled us to get the report agreed.
There is a specific reference to national Parliaments in Article 3, which I have already explained, with regard to the lower threshold for the early warning system.
There is provision in Article 4 for an evaluation mechanism. This is important from the perspective of ensuring that if, under the European arrest warrant, we are going to send an Irish citizen to Poland - on foot of a warrant issued by the authorities in that country - in respect of a crime allegedly committed there, there should be a Europe-wide mechanism for evaluating the procedures in all countries to ensure that they have the highest levels of civil rights protection for people who may be subject to such arrest warrants. It is important to make the point that we have already agreed to a European arrest warrant. Much of what we are doing here is ensuring that it is only exercised in an acceptable fashion.
The next provision in Article 5 provides for operational co-operation between the police authorities and others. There is an exception for measures concerning public order and internal security. This is to allow countries to act to maintain law and order. If they have to do certain things to maintain law and order in special circumstances, these are protected from the common norms that would otherwise apply. That reproduces something that is already in the treaties. It is not a contentious issue.
Article 8 refers to the dual right of initiative. This is a novelty in so far as, within this area of the unified treaty, there is a right of initiative for a quarter of the member states. Article 8 states that the Court of Justice shall not review the validity and proportionality of operations carried out by the police and law enforcement services of a member state or the exercise of the responsibility of a member state with regard to the maintenance of law and order and the safeguarding of internal security. That is a counterpart to Article 6, to which I referred earlier, which protects the right of member states in those situations to set their own rights.
With regard to checks on persons at borders, we want to ensure the highest possible uniform standards in regard to controls in this area. Obviously, if we are going to have free movement within the area and a common policy on immigration and asylum, we want to have high common standards of control on people entering the area.
There is provision for a common policy on immigration and asylum provided for in the subsequent articles. Most countries readily agree to this matter, although I understand there is some reluctance by the Germans to agree to QMV in this area. That was not expressed strongly in committee, but it seems to be emerging now. I explained to some Germans who raised this with me that if they want to unravel this, many other parts of the compromise they may be seeking will also unravel. It is one of those balancing acts.
Article 14 provides for judicial co-operation, including the mutual recognition and enforcement of judgments. This does not just apply to mutual recognition of prison sentences, but also to matters such as disqualification for driving or acting as a company director.
Interestingly, the remaining material is where the really politically contentious matters lie. These include, in Article 17, the introduction of qualified majority voting in certain limited areas of substantive criminal law. That relates to crimes that are listed; it is not open-ended. There is also provision for Eurojust, which is a co-operation mechanism between European prosecutors.
The question of a European public prosecutor's office was somewhat contentious. When these articles were first published, there was shock/horror reporting in the British press at the idea of introducing a European public prosecutor. Of course, the journalists in question had not read it very closely because it states that a European public prosecutor "may be introduced" if the Council, acting unanimously and after obtaining the assent of the European Parliament, decides that it wants to do so within the context of Eurojust. Effectively, therefore, every country has a veto on this. A number of countries - including Ireland, although we are not the only one by any means - have indicated that they are not keen on it. The way this is phrased provides a legal basis for it to be done in future if people so desire, but it does not require it to be done. I think it is unlikely to happen in the short-term and that should be reassuring to those who have concerns about this matter.