I thank the joint committee for its invitation to address this meeting. If I speak for too long, I ask members not to hesitate to interrupt.
The topic the joint committee kindly invited me to address is the proposed United Kingdom justice and home affairs block opt-out, including any possible implications for Ireland. I presume members have copies of the speaking note I prepared. I considered the best approach to the briefing would be to list a number of questions on the proposed opt-out for discussion.
I will address the following questions together. Why does the United Kingdom have a protocol 36 opt-out? How does this differ from the Irish protocol 21 opt-out, with an opt-in? Why did Ireland not negotiate an outcome that reflected the position of Britain in this regard? The story of the UK opt-out begins with the considerable advances in justice and home affairs co-operation which were made with the treaty of Lisbon in 2007 and its subsequent entry into force in December 2009. The Lisbon treaty effectively resulted in the abolition of the intergovernmental third pillar of the European Union governing police and judicial co-operation in criminal matters and a switch to the more normal, so-called Community method of decision making. In plain language, this meant a more exclusive role for the Commission in proposing and enforcing legislation and a broadened and more normal form of jurisdiction for the European Court of Justice.
Changes of this nature are by and large welcome for Ireland. Commission proposals mean that the interests of the European Union as a whole are taken into account, rather than only those of large member states. Moreover, legislation is better enforced and a role for the European Court of Justice by and large means the application of European Union law becomes more uniform. To sweeten the pill, protocol 36 provided for a five year transition period during which the European Court of Justice and Commission enjoyed only their old powers in respect of pre-2009 measures. In the UK, with its deeply ingrained history of euroscepticism, the changes rang alarm bells and, as a result, two protocols were negotiated, one forward-looking, the other backward-looking.
Members should be reasonably familiar with the forward-looking protocol 21, which involved the famous opt-out, with an opt-in, in respect of justice and home affairs measures. According to this protocol, the United Kingdom would not take part in the adoption of justice and home affairs measures proposed after the Lisbon treaty and such measures would not be binding on the UK. The opt-in aspect of the protocol is two-pronged. In the first instance, the UK could notify within three months of a measure being proposed that it wanted to take part in the adoption and application of any such proposed measure and would be entitled to do so. The second limb of the opt-in was that even if the UK did not give such notification, it could, at any time after the adoption of a justice and home affairs measure, notify that it wished to accept the measure and it would be allowed to do so. The forward-looking protocol 21 was, therefore, a permanent opt-out, with a double opt-in possibility.
What was Ireland's position on protocol 21? Confronted with the prospective absence of the largest common law country in the European Union from an indefinite number of justice and home affairs measures and thus the possibility of being in a very weak negotiating position, Ireland, despite not having any real reservations either about the Commission or European Court of Justice, also negotiated and secured essentially the same deal. Ireland's opt-out is little different from that of Britain's, although it is slightly more limited as it does not apply, for instance, to anti-terrorist measures to freeze funding. It is also more easily escapable in that all we must do is notify in writing that we no longer want to be covered and that is the end of the matter. We declared an intention at Lisbon to review the operation of our adherence to protocol 21. Our declared attitude is also different from that of Britain because we declared at Lisbon an intention to opt into everything possible. None the less, our overall position in respect of measures proposed and adopted subsequent to the Lisbon treaty is similar to that of the United Kingdom in that we have an opt-out and two opt-ins. I do not need to remind members that there are also constitutional provisions relating to this in the form of Article 29.4.7° and 8°.
The forward-looking protocol 21 did not fully address the UK's concerns at Lisbon because Britain also looked back at more than 130 measures in justice and home affairs co-operation that had been agreed in the period between the Maastricht treaty of 1993 and 2009. The UK argued that these measures had been adopted at a time when the involvement of the Commission and European Court of Justice had not been envisaged. At this point, the UK sought to review the issue of whether it was still interested in continuing to adhere to these measures given the changed role for the Commission and European Court of Justice. The other member states - rather reluctantly, I suspect - allowed the UK to opt out of all 130 measures en bloc and subsequently selectively opt in again.
Protocol 36 gives expression to that particular deal. Therefore, at the latest, six months before the expiration of the Lisbon transitional period, the United Kingdom could make a notification. The effect of that notification would be that all 130-odd measures would cease to apply to it. The United Kingdom could then at any time afterwards notify the Council of its wish to participate in the measures - in other words, to opt back in - but subject to certain procedural requirements.
Let us recall the basic difference between the Protocol 21 opt-out and the Protocol 36 opt-out. The Protocol 21 opt-out is an open-ended forward-looking opt-out applying to all JHA matters proposed and adopted from 1 December 2009 onwards - basically, forever - with guaranteed ease of opt-in should we want it. The Protocol 36 opt-out, which is the one we are talking about today and which only the United Kingdom has, applies backwards to a finite number of measures, approximately 130, adopted before 2009 in the field of police and judicial co-operation in the criminal law field, all of which must be opted out of en bloc, with the United Kingdom joining some of them, but only under certain procedural conditions. I may return to these later. That is the difference between Protocols 36 and 21.
With regard to why Ireland did not negotiate a Protocol 36 opt-out, we had no need to. We opted in to the Protocol 21 opt-out only to protect ourselves from a situation in which there might be an absence of a heavyweight negotiating partner in there with us on justice and home affairs proposals; it was no more than that. We have no issue with the Commission or with the Court of Justice, or with their being given an expanded role. Therefore, we had no need whatsoever for a Protocol-36-type arrangement. The measures adopted prior to 2009 had been adopted with the United Kingdom sitting around the table with everyone else. Therefore, Ireland's perceived need for a heavyweight negotiating partner had been met with regard to those particular measures.
The next question relates to why the United Kingdom is exercising this opt-out now. There is no obligation whatsoever for the United Kingdom to exercise its Protocol 36 right to opt-out of these 130 measures. Protocol 36 gives the United Kingdom a right, but it does not impose an obligation on it. Second, the decision to exercise the opt-out appears to have been made for domestic political reasons, not for any real practical reasons. To be frank, it is because of pressure emanating from the Conservative Party backbenches with regard to these measures, objections to an increased role for the Commission and the Court of Justice and ironically, given that they are now going to propose opting back into it, particular objections to the European arrest warrant framework decision. Apparently, the Liberal Democrats made it pretty much a red-line issue that it wanted to see an opt-in to that.
With regard to the timing of the opt-out, the five-year transition period provided for in the Treaty of Lisbon expires on 30 November 2014. At that point, the Commission and the Court of Justice get their extra powers under the Lisbon treaty. The protocol requires notification by the United Kingdom to opt in, at the latest, six months before that, 31 May 2014. That is the deadline. Obviously, if the United Kingdom intends to opt back into many measures, that must be negotiated with the Commission and the other member states, leaving sufficient time. Any parliamentary approval required must also be obtained. This seems to be the reason the United Kingdom is acting now.
Why has so much concern been expressed about the exercise of the opt-out? The simple answer to that is that the framework of much co-operation that goes on in the field of justice and home affairs is now European and because the United Kingdom is a large state within the European Union, much concern has been raised by the prospect of its opting out of any of that co-operation. Those concerns are far from being expressed outside the United Kingdom alone. The House of Lords produced a report in April this year which stated that the government had not made a convincing case for exercising the opt-out and that opting out would have significant adverse negative repercussions for the internal security of the United Kingdom and the administration of criminal justice there, as well as reducing its influence over this area of EU policies. Therefore, this is deeply controversial not just outside the United Kingdom, but inside the United Kingdom also. That conclusion was reached prior to the declaration of the measures the United Kingdom would opt back into, but nonetheless it gives some indication of the concerns.
On whether Ireland has reason to be particularly concerned in this regard, yes it has. The Minister for Justice and Equality, Deputy Shatter, was so concerned about this that he spoke out in public on the matter and was quoted in The Irish Times and the Financial Times, in an attempt, I think, to discourage the United Kingdom from exercising this option. He cited in particular security worries associated with the situation in Northern Ireland. The relationship between the United Kingdom and Ireland in the field of police and judicial co-operation in criminal matters is based on a complex matrix, a kind of Gordian knot of rules. Some of them are domestic, some are European and some are domestic rules implementing European rules. It is a complex situation and the effect of the United Kingdom jettisoning co-operation under a total of 130-plus EU measures in this field, without opting back into any of them, would have serious consequences for the ongoing co-operation between the United Kingdom and Ireland in this area. Therefore, we have a right to be concerned about this.
Three factors come into play here. One concerns what the United Kingdom will opt back into. Since 9 July, we know what it intends to opt back into. We do not know it will be able to do so, but we know what it intends to opt back into. The second factor is how long the United Kingdom will remain outside the protocol. There will be a gap, but how long will that gap be? Will it be one second or a couple of months? This is important to Ireland. The third factor concerns how much notice we are given. We are getting a year's notice, at least in regard to what it intends to opt back into.
It is important to point out that we should not exaggerate the implications. Much of the co-operation that goes on between Ireland and the United Kingdom is executive-to-executive co-operation. That will not be jeopardised by the Protocol 36 opt-out. Second, even in so far as co-operation based on legal measures is concerned, this is a finite list of measures. Protocol 36 has no application to any measures adopted or amended after 1 December 2009. Third, not all of the measures are particularly significant. Fourth, the United Kingdom will try to opt back into and re-participate in the measures that are most significant to Ireland.
That said, some of the measures in the opt-out are hugely significant. The two I would put at the top of the heap in that regard are the European arrest warrant and the Europol measure. The UK's re-entry cannot be guaranteed. Therefore, we must be ready for problems in this regard. More specifically, there is a need for three things. There is a need for a plan B in case negotiations in respect of any of the 35 opt-ins do not go according to plan. If the United Kingdom gets into some but not all of them, we must be ready for that. Above all, we need to be concerned about the European arrest warrant, because we do not want extradition co-operation between Ireland and the United Kingdom breaking down. The vast bulk of persons surrendered to Ireland by other EU member states under the European arrest warrant system are surrendered by the United Kingdom - over 80% of them. This is a serious issue as far as Ireland is concerned.
With regard to what we should do if negotiations break down, we need to be ready with alternative bilateral arrangements, renewed statutory provisions based on the 1957 European Convention on Extradition or a new agreement at European level. We must have something ready and have a plan B. We also need to mind the gap. No matter what happens, even if we get a complete opt-in, there will be a time lapse between the United Kingdom's opting out and its opting back in. We need to be prepared for that. We also need to think about the implications of those measures the United Kingdom is not going to opt into - approximately 100 measures. These are not the most significant measures in regard to Ireland. Many of them have to do with administrative co-operation, in which it does not matter that much whether the United Kingdom is present. However, we must do a comprehensive survey of those instruments and be ready for UK absence from them.
With regard to how Ireland would like to see the United Kingdom exercise its opt-out, I am tempted to say that Ireland would have preferred the United Kingdom not to exercise its opt-out at all, on the grounds that there is no objective, practical need for this as police and judicial co-operation in the criminal field is working fine and there are many disadvantages to its opting out. However, there are some things we do not get to choose in life. On 9 July, Theresa May, the UK Home Secretary, announced the UK Government's intention to opt out of 130 measures and to opt back into 35 of them.
On whether there are particular measures Ireland is particularly interested in seeing the United Kingdom opt back into, the answer is "Yes." Broadly speaking, the areas we are concerned about are the European arrest warrant; arrangement of mutual assistance measures; Europol; some drugs and organised crime measures; measures concerned with information exchange; and measures concerned with databases of criminal records and false documents. I am happy to be able to say that going by Theresa May's statement on 9 July and the associated command paper 8671, which is worth looking at, the United Kingdom is going to try to negotiate its way back into measures in all of these fields. From an Irish point of view, if the United Kingdom succeeds in doing that, a great deal of the damage that might otherwise have been done will be avoided.
What specifically is the United Kingdom opting back into?
The European arrest warrant is number one. Above and beyond anything else on the list, that is what we want to see it successfully rejoin as quickly as possible, because the whole framework of extradition co-operation is based on that. The earlier legislation on this has been repealed; it is just not there anymore. Therefore, if the European arrest warrant system is gone, we do not have anything to fall back on at the moment. Will there be any potential problems in the UK getting back into the European arrest warrant? Perhaps there might be, because the British Parliament is in the course of adopting the Anti-Social Behaviour, Crime and Policing Bill 2013, in which it is unilaterally introducing a number of restrictions on the operation of European arrest warrants. It may well be that those restrictions are in accordance with EU law, but if not, how will the Commission react? Does it risk a breakdown in the negotiations? We will have to see. I am cautiously optimistic about the UK getting back in, for the simple reason that the UK is a big prize to have in the European arrest warrant system and I think the Commission will want it back in. However, I am only cautiously optimistic.
The UK is only opting back into Europol as long as that organisation is not given the power to direct national law enforcement agencies to initiate investigations or share data conflicting with the UK's national security. That is a big restriction on any agreement to go back into Europol. On the other hand, Europol is the crown jewel of police and judicial co-operation in the criminal law field, so having the UK outside of it is almost unthinkable. The Commission has a big decision to make on this. Does it want to proceed with developing Europol the way it wants to see it develop, or does it want the UK in? It looks as if it will not get both, so we will have to wait and see what happens. The UK is opting back into the other measures that I mentioned, such as mutual assistance for drugs and organised crime, so we can be reasonably happy with that situation.
The procedural requirements are important. The Schengen Agreement is the border busting treaty at European level, and we are not party to it. If the UK were to opt back in to the Schengen Agreement, that would require unanimous agreement by all of the other member states, which they can refuse for any reasons they wish, so it will be tougher for the UK to get back into Schengen measures. As we are not in the agreement, we do not need to worry about that. The non-Schengen measures just need Commission approval to go back and I think the UK can rely on the goodwill of the Commission for that. It needs to worry about the Commission for things like the European arrest warrant, Europol and so on.
The final point is about whether there is any danger in the UK not being allowed to re-enter any of the measures. We have to bear in mind the procedural questions that I just mentioned. I think we can rely on the goodwill of the Commission in this regard, but there is no room for complacency because much can go wrong between now and the end of 2014. The Commission will change at the end of 2014 and I do not know how long it will take the new Commission to adjust to its new role and what the attitude of the new members of the Commission will be. There will also be European Parliament elections as well, although that is less of an issue. Greece will have the Presidency of the Council in the beginning of 2014, and the role of the Presidency will be crucial in shepherding along the negotiations between the UK, the other member states and the Commission. We can hardly blame Greece if its attention is elsewhere during this time, so we have to see how things work out and we need to be ready for any eventuality. I apologise for being far longer than five minutes, but hopefully that will provide committee members with some idea of what is happening.