I thank the Chairman. I am conscious of the time constraint. I have a script prepared, some of which is informative and expansive and it would, therefore, be a waste of time to deal with some of the matters which are in the script. These can be examined by members at a later stage. I want to get to the meat of the matter if possible.
On 12 December I wrote to the Chairman requesting that the committee should meet to consider an issue of fundamental importance, namely the suggestion contained in the report of Working Group X, chaired by Deputy Bruton, that there should be a radical widening of the application of qualified majority voting, QMV, and co-decision with the European Parliament to very significant areas of measures concerned with the criminal law and the law of criminal procedure which applies in the member states of the Union. The final report of the working group is set out at tab 1 of the folder I have distributed to Members.
It is appropriate to set out a brief overview of the development of European Union involvement in the justice and home affairs areas. I do that over the next two pages of my written text and I do not propose to deal with it now. However, some people may find it useful as a short chronology of how we reached the current position, the steps that have been taken and the stage at which these were taken by the institutions of the European Union in relation to justice and home affairs matters in general and criminal law matters in particular.
It is obvious that the EU competence in criminal law matters has been limited and primarily conducted at an intergovernmental level up to now. I suggest a number of reasons for that approach, namely: the power of the state to investigate, try and punish its citizens is a central aspect of sovereignty; the coercive power of criminal legislation and enforcement can only be safely entrusted to institutions which are constitutionally regulated, democratically accountable and historically and culturally acceptable to citizens as their legitimate organs of government; the relationship between member states and citizens is intimately bound up in criminal law and procedure and the social contract between citizens and member states is central to the power of the state to punish its citizens; the very character of a state is, in many respects, defined by its criminal law and procedure; and the EU consists of member states with widely differing systems of criminal law and criminal procedure based on wholly different histories and constitutional concepts of due process, judicial function, status of the parties, etc.
The current arrangements for dealing with JHA matters have been the subject of integrationist criticism from a variety of sources, mainly the Commission, and, more stridently, some people in the European Parliament, which is seeking a strong legislative role in criminal matters. In addition, some academic lawyers have been critical of the arrangements. The main points they have made are: lack of democratic control - that is a reference to the reduced role of the European Parliament because JHA matters are now dealt with primarily at an intergovernmental level; lack of judicial control - that is a reference to a reduced role of the European Court of Justice; inefficiency in the operation of the complicated procedures - that is a reference to the reduced role of the Commission and the need for unanimity; and the existence of opt-outs leading to different approaches in different member states in virtually all aspects of justice and home affairs matters.
There are two broad strategic options open to the European Union in respect of future development. One is to attempt to provide a treaty basis for a federal type EU criminal law and for a uniform law of criminal procedure for federal type offences. That approach would, broadly speaking, involve the establishment of a common system of offences and procedural laws in respect of those areas of the criminal law in which the European Union would be given competence by treaty, much as the American federal institutions have certain criminal law functions. Ireland has consistently opposed that approach.
The alternative strategy is, broadly speaking, to leave issues of criminal law and the law of criminal procedure as areas of competence for member states, subject only to treaty provisions designed to bring about minimum conditions of inter-operability, mutual recognition of judicial decisions and co-operation in relation to judicial and police activity between member states. Ireland has consistently supported and engaged positively in that approach.
That second co-operative strategic approach to judicial and police co-operation has led to the adoption of many valuable co-operative measures, the establishment of institutions such as Europol and Eurojust and the introduction of framework decisions in relation to, among other things, drug trafficking, extradition, mutual enforcement of fines, mutual enforcement of criminal confiscatory orders and the European arrest warrant.
It is important that we look at what is being proposed and cooked up, so to speak, at European level so that we understand what is in the pipeline. The European Union has been considering clear integrationist projects and plans for a much more elaborate EU role in respect of criminal law and criminal procedure, in line with the first of the two strategies, that is, the federal type strategy, to which I referred.
One such proposal, which has been much discussed, although recently held in abeyance, is the corpus juris proposal. The text of that proposal is set out at tab 2 of the documents I have circulated. In essence, the corpus juris project is one under which a federal EU competence in criminal law would be established, in the first instance at any rate, to deal with crimes affecting the financial interests of the EU itself. Some of my JHA ministerial colleagues have spoken of the need to gradually extend the scope of corpus juris.
The proposal would allow for the creation of federal offences against the financial interests of the European Union, prescribe punishment for such offences, provide for the establishment of a federal system of prosecutors appointed by the EU and establish a system of federal criminal courts consisting of three judges without any jury, thus providing for an entirely new EU system of criminal law analogous, in some ways, with the system of federal criminal law in the United States of America. Of course, in America they have jury trials even for federal offences.
Another project strongly canvassed at Commission level at present is the European public prosecutor proposal. This is a derivative element of the corpus juris project and was proposed in part 2 of the corpus juris document, to which I have just referred. The EPP proposal would allow for a European public prosecutor to investigate and criminally prosecute persons in member states’ national courts for offences against the financial interests of the Union. Ireland has consistently opposed the adoption of these projects. We are by no means alone in that regard and a majority of Justice and Home Affairs Ministers are strongly opposed to either of these projects.
The Group X report records division of opinion on such proposals and does not come down firmly on one side or the other as to whether a legal basis for such an office should be created by treaty among the EU member states in the context of the envisaged constitutional treaty. Nonetheless, it remains the case that the Group X report, if adopted, would clearly create a treaty basis for the adoption of the substance of the corpus juris proposal and-or the EPP proposal based on QMV, qualified majority voting.
At present, a process is in train which will lead to the publication of a Green Paper on the prosecution process in member states. It is clear from this process that the corpus juris project is still a live issue. In these circumstances, we must carefully consider whether the underlying intention or likely effect of the adoption of the Group X report would be to clear the constitutional way for the adoption of the federal type EU criminal competence on the basis of QMV, along the lines of the progressive implementation and extension of the corpus juris project.
There are many suggestions in the Group X report which, I believe, most members of the committee and most Irish people would warmly support. I will cite two examples, though there are many more in the report with which I agree. The first and possibly most fundamental reform is the adoption of a common general legal framework to substitute for the existing three pillar framework of the EU. In that way, it is suggested that all the treaty provisions concerning the areas of freedom, security and justice could be brought together under a single title in the proposed new treaty. In that context, the classic EU legislative instrument of directives would replace existing third pillar instruments such as decisions, framework decisions and conventions. I support that proposal.
A second proposal which deserves strong support is that, in the area of immigration policy and those of asylum, refugees and displaced persons, qualified majority voting and co-decision with the European Parliament would apply. It is abundantly clear that in a Europe of free movement of citizens, a strong competence in these areas should be grounded on a solid and workable treaty base. I agree with the remarks made by Deputy Bruton on the previous occasion. In a Europe of 25 member states, unanimity is too high a bar to set for effective action which requires a fairly uniform response across the entire Union.
The most constitutionally significant proposal in terms of the competence of member states in justice and home affairs matters is the proposal by Working Group X that QMV and co-decision with the European Parliament should be made the order of the day where binding EU directives or regulations harmonising criminal law and criminal procedure are concerned. The Group X report proposes that the Union institutions should, on the basis of QMV, be given competence to prescribe the substance of criminal law in relation to criminal acts and penalties in "certain fields of crime" provided that one of two criteria - that the crime in question is both of a particularly serious nature and has a cross-border dimension or that it is directed against a shared European interest which is the subject of a common policy of the Union - is met.
The report goes on to provide a treaty basis for approximation of elements of criminal procedure in respect of procedures with transnational implications or where such approximation is justified by a requirement for effectiveness in the area of police and judicial co-operation. If a treaty basis were to be provided for the approximation of criminal procedure or of substantive criminal law in respect of the categories of offences mentioned above, it is quite likely that the scope of the competence would be similar to that prescribed for the European arrest warrant under Tab 3. Alternatively, the scope could be that prescribed for Europol under Tab 4. Those lists represent a very large portion of the substantive criminal law of member states relating to murder, rape, drug offences, corruption, extortion, racist crimes, financial fraud, etc.
If an EU competence was created in these areas by the treaty, and if the unanimity rule were abandoned in favour of QMV, then, having regard to Ireland's experience in relation to the European arrest warrant, it would be more probable than not that significant areas of Ireland's constitutional and statutory law relating to criminal law and the law of criminal procedure would become capable of being amended against the wishes of the Irish people and/or the Parliament in a manner which would bind Ireland as a matter of European law and Irish constitutional law. At present, the potential scope of framework decisions and their potential implications for the substantive criminal law and the law of criminal procedure of member states is circumscribed by the right of each member state to exercise a veto under the unanimity rule.
In Ireland's case, before I attend a Justice and Home Affairs Council meeting and agree to a framework decision which requires unanimous support, I must first secure a resolution of each House of the Oireachtas under Article 29.4.6. Bearing in mind the extraordinarily wide scope of some proposals already made for framework decisions in relation to substantive criminal law - we dealt with some of them, drugs law, racist crime etc., on the last occasion - and criminal procedure, any attempt to widen the EU competence in this area would need cast iron guarantees as to the rights of member states to decide on core elements of their criminal and constitutional law if they were to have any chance of political acceptance, particularly in member states where ratification of the forthcoming Intergovernmental Conference treaty provisions would require referendum.
A significant deficiency of the Group X report is its failure to describe any mechanism whereby a QMV procedure in this area would adequately protect the existing rights of member states to preserve the substance of their domestic criminal law and related procedural matters dealing with fundamental rights, due process, etc. While the Group X report is obviously not an exercise in treaty draftsmanship - I did not expect it would be - the crucial question for Ireland is whether there is any plausible potential treaty provision that could preserve our constitutional and statutory system of criminal law and procedure from unwelcome outside interference if it is not a unanimity procedure backed up by approval of both Houses of the Oireachtas. Perhaps some other wording could be inserted in the treaty which would enable us to say "No, that is too far. We do not agree with that, we will not accept that and we insist on jury trial or the current Irish system of bail in respect of offences which come within the two criteria referred to in the report".
It is perhaps understandable, but not acceptable, that most proposals for framework decisions presuppose the existence of the continental system of criminal law rather than that which exists in the EU's common law states. Even in the current context of a requirement for unanimity, it is remarkable how little serious consideration is given at the preliminary drafting stage to the implications of most proposals for the member states, such as Ireland, which have common law systems. There is no reason to suppose that this underlying attitude would do anything other than become more pronounced if the common law states were to lose their veto. They would not constitute a blocking minority in a QMV system. We would not be in a position, even if we joined with Britain, Malta and Cyprus, to say no simply on the basis of numbers in the European Union.
It cannot be over-emphasised that the existing constitutional safeguards in relation to the adoption of framework decisions, namely, that both Houses of the Oireachtas must formally resolve to approve a proposal from the Irish Government to join in a unanimous decision adopting them, would be swept away in their entirety by the introduction of QMV with or without co-decision by the European Parliament. The likelihood that the Irish people would in a referendum abrogate these safeguards is doubtful.
I will now deal with the European Convention on Human Rights. In the area of safeguards, the report refers to the European Convention on Human Rights and the European Charter and implies that the safeguards in those instruments should be sufficient. The major problem for Ireland in that regard is that our existing constitutional protections go much further than the ECHR. Some of the differences in the various legal systems include availability of jury trial. In addition, evidence can be given in written form in most continental systems, something that is not possible, in general, under our system. Continental systems often allow for lengthy detention for investigation and questioning and such procedures would not be possible here without a major change to our Constitution. All these practices are acceptable under the European Convention on Human Rights, but are unconstitutional in Ireland.
The ECHR does not guarantee many of the core features of the criminal process guaranteed by the Constitution. Jury trial is not guaranteed by the ECHR. Lengthy detention for pre-trial investigation and investigating magistrates are compatible with the ECHR but adversarial trial is not guaranteed. Radically different concepts on the admission of evidence, the rights of the accused and the standard of proof are also compatible with the ECHR. The fact that the EU is obliged to comply with the ECHR under Article 6, and with the charter if the treaty gives it formal status, does not mean that there would be any constitutional guarantee of the maintenance of many fundamental features of the criminal process mandated by the Constitution and Irish law.
Having regard to the superiority of EU law over the domestic constitutional and statute law of member states, the conferring of criminal law competence on EU institutions on the basis of QMV would create a legal basis for the EU to substantially abrogate existing Irish constitutional protections in the criminal law area against the wishes of the Irish people. I say that in the context of the corpus juris project which is a live proposal to say that in relation to crimes against the financial interests of the European Union, jury trial is not to be permitted. In addition there should be no appeal to the Irish Supreme Court following a decision of the court established under the corpus juris proposal. I wish to make it clear that procedures we would consider normal would, if the corpus juris proposal were incorporated and if the treaty basis for it were adopted and QMV put in place, be swept away. It is clear that we are dealing here with complex issues which bear directly on Ireland’s constitutional and statutory system of criminal law and procedure and on what I have described as the social contract which is central to the power of any state to apply penalties to its citizens.
Group X has had a difficult task to perform. It has discharged that task with commitment and with the clear objective of moving forward decisively and, in certain respects, quite radically. Much of what it has proposed is positive and to be welcomed. In some areas, however - many of which I have identified in my statement - I believe that what it proposes is a bridge too far. I do not see our citizens being ready at this time to put themselves in the position where some of the fundamental characteristics of our criminal law and procedure are determined not by their own democratically elected Government but, at more distance, by the European Commission.
My reservations are not to be taken as reservations about the need to tackle transnational crime in the most effective way we can as I have no reservations about this. I am totally convinced and supportive of the idea that modern transnational crime can only be tackled by means of effective international co-operation within the European Union and indeed more widely. This will be best achieved by means of effective international co-operation between states rather than through measures which would ultimately seek to diminish the role of individual states in determining the shape and composition of the legal regimes which apply to criminal wrongdoing within their own borders. The former approach is likely to be embraced with enthusiasm and is likely to produce early results. The latter is much more likely to be dogged by debates on issues of principle at the expense of real progress.
It has been suggested by some commentators that the Irish position in relation to these matters is somehow negative and lacking in ambition or courage. Others have suggested that the potential implications of the proposals under consideration are being deliberately exaggerated for effect. While everyone is entitled to his or her views and ambitions for the EU project, it is important, especially in the context of a proposed constitutional treaty, that we should all appreciate just what is and what is not at issue in the course of our deliberations.
It is perfectly respectable and, arguably, far more realistic to acknowledge that the EU is not a federal state with federal democratic and judicial institutions, and with effective checks and balances appropriate to the creation of a treaty basis for an expanding corpus of federal criminal law and federal law of criminal procedure. That is neither a negative nor a minimising view of the EU. I suggest that it is an honest and practical estimate of the current position.
It is equally respectable to argue that the EU is characterised and enriched by political, legal and cultural diversity. Such a viewpoint broadly upholds the existing strategic balance in the EU on JHA matters in which member states retain their national parliaments' competence in the areas of criminal law and procedure while improving constantly the levels of co-operation and inter-operability necessary for achievement in the areas of freedom, justice and security envisaged at the Tampere Council.
Today's proceedings are intended to stimulate and foster reflection and debate on the likely potential implication of the creation of an EU treaty basis for QMV in the area of criminal law and procedure. My view is that today is the beginning of a process rather than the end of it. The intention is to stimulate national awareness of the issues involved. I am grateful to the committee for taking this valuable and, possibly, unprecedented opportunity to bring the European debate closer to home.
