JUSTICE and home affairs have hardly registered in the debate on the Lisbon referendum despite huge reservations raised by the Government during the treaty’s negotiations.
This is largely due to the decision of Ireland and Britain to fight for an opt-out clause on the most controversial new judicial measures.
The Government’s recent white paper on the treaty said it remains one of the few areas in the Lisbon agreement where significant additional issues have been included on top of the ill-fated constitution published in Dublin four years ago.
The new provisions cover policing, criminal law, asylum seeking and security.
They extend the remit of the European Court of Justice to scrutinise criminal law and introduce continent-wide powers to target the resources of terrorists.
The white paper admits, with regards the reach of the union, it “substantially amends the current provisions in the area of freedom, security and justice”.
The clause we negotiated with Britain allows us to opt in or opt out of the new measures, which has made it an easier sell.
These were secured because the criminal justice systems shared by Britain and Ireland are based on common law and different to those operated elsewhere in Europe.
However, in signing the treaty the Government stated clearly that it wants to play as full a part as possible.
“The Government has decided that Ireland should make a political declaration stating its firm intention to participate to the maximum extent possible in proposals concerning judicial co-operation in criminal matters and police co-operation,” it said.
Campaigners for a no vote said the opt-out measure has only served to remove the new powers from public scrutiny.
However, because the Government has already signalled its intention to opt in wherever it can the no camp said the justice issue will ultimately take effect in Ireland without debate.
The yes side says the treaty is needed to bring the existing laws under the European Court of Justice which will provide greater safeguards for protecting human rights.
What it involves:
The white paper does not sell this aspect short when it says while the Lisbon treaty leaves many general policy measures untouched it “substantially” changes the area of justice and home affairs.
It marks a watershed for the union because it is the first time it has dipped its toes in the shark-infested waters of criminal law.
It will now be able to cast its eye over prosecuting, policing and investigating certain crimes.
The treaty also endeavours to get countries to amend their laws to eliminate major differences in how crimes are interpreted.
It allows for:
* The expansion of the EuroJust institution to allow it further coordinate investigations bridging two or more countries and initiate investigations.
* The potential creation of a European Public Prosecutor, in the style of the DPP, to pursue cases with union-wide implications and bring cases to national courts.
* The creation of a union-wide crime against Europe to prosecute those who threaten its assets and financial stability.
* A commitment to standardise laws in different countries and where possible to make it easier to take similar cases in different jurisdictions.
* Arrive at minimum sanctions for certain offences including money laundering, drug-trafficking, corruption, terrorism or computer crime.
* Grant greater powers to the European Court of Justice to bring criminal matters under its jurisdiction, after a five-year transitional period.
* The powers given to EuroJust, EuroPol (police service) and the European Public Prosecutor can be strengthened or amended with the agreement of member states and the Council of Europe.
* Union-wide standards on the rights of the victims of crime and the ability of courts to use certain types of evidence.
* The European Council, which represents national parliaments, will define the strategy in this area.
And proposals no longer have to come solely from the commission but can be generated by 25% of member states acting together.
THE opt-in/opt-out arrangement has shelved the debate on one of the most important issues to be included in the treaty.
Anti-Lisbon group the People’s Movement said this effectively gives the Government the right to sign up to any of new terms without ever returning to the people via a referendum.
There are wider concerns about how this area is rich in potential, but scant on exact descriptions about how any of the new measures will operate.
Across the board there are no details in the treaty about how any of these systems or blueprints for what will be the function of the new offices.
Generally there are questions about why the new measures are necessary and why it was decided to increase the scope of the justice and home affairs section since the fallen “constitution” was negotiated in Dublin four years ago.
While it will be up to the Council of Europe to establish or extend the roles of the European Police Prosecutor, EuroJust or EuroPol, but this will not be subject to a general vote in this country. Effectively the treaty allows a sleigh-load of presents to be brought down the chimney, but once they are in our living room we will have little control over when they are opened or who plays with them.
In addition, we have signalled our intention to opt-in as much as possible especially in the area of police co-operation but to what level information will be exchanged and who will have access is open for negotiation.
IN EFFECT we have been given the best deal of all, we can join up to the areas which we agree with and steer clear of those we do not.
In the area of policing the yes side has pointed out the need for closer co-operation among forces in different countries as criminal operations become increasingly international.
This is particularly evident inareas of human trafficking, drug smuggling, organised crime and computer fraud.
They have pointed to the success of the European arrest warrant system at bringing fugitives to justice. And this treaty builds on clauses already permitted under agreements dating back 14 years.
Also the benefits of sharing information would prevent a repeat of recent court cases where known eastern European criminals lived here undetected and subsequently committed violent crimes.
While there is concern about the melding of criminal laws with continental countries we are buffered from these because of the special exemptions negotiated.
With regard to future changes it will take a unanimous decision of the Council of Europe to introduce the European Public Prosecutor and also to rule on what its mandate should be. This means we will effectively have a veto.
At a European level the Convention on the Future of Europe debated the sensitivities of these justice issues.
The convention said the treaty reinforces existing checks for controlling borders and processing asylum seeking — and this will not have a significant affect on the existing Schengen protocol which provides for the unique border agreements between Ireland and Britain.
Ireland will review the operation of the justice arrangements after three years, which means we are not immediately bound by any changes we find distasteful.
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