Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

No, we have to opt in by 30 July. This is a unique procedure to Ireland and the UK. No other EU member state has this. An instrument like this would normally be negotiated at Council level and at official level for agreement to be reached between Ministers on the form of the proposal as agreed by member states at government level. The democratic check on that is twofold. If a Minister does something quite daft, they are accountable to their parliament. The accountability issue is the European Parliament. It is now a co-decision maker which is why we have specialist committees in the European Parliament to deal with justice issues.

Instead of Ireland being automatically part and parcel of the justice area, we have an opt-in and opt-out position. Some of the justice matters dealt with by continental European Union member states are incompatible with certain constitutional safeguards. These are all areas of co-operation between member states. We preserved the opt-in to ensure we would not find ourselves compelled to be party to something we could not be. For example, there is an EU measure regarding matrimonial property after a divorce. We have a specific provision in our Constitution relating to divorce. Accordingly, we cannot automatically be a party to matrimonial property arrangements agreed at European level if they are incompatible with our constitutional article on divorce. Another reason is our judges do not have investigative functions such as those in France or Italy. There are areas of criminal law that are simply incompatible between a common law jurisdiction and a continental one.

The decision is not about the committee endorsing the specific directive and its provisions. It is about agreeing in principle we should opt in because Ireland should continue to be part of Europol. The Government has the responsibility to negotiate. Then there is the accountability to European Parliament. No instrument can be adopted without the European Parliament’s agreement. We have been doing this for some years. With every such instrument that I have presented to the committee, when there is an opt-in, I have not asked the committee to adopt it in its final form. There has not been an instrument that we have opted into which has not been amended and improved through the negotiation process at European level.