Dr. Gavin Barrett:

On the consequences of the UK position if it does not get back in, I agree it is possible there might be bilateral agreements between the UK and Ireland. There is also a question of European law and whether it is appropriate to replace measures like that at European or at Irish level, in other words, a bilateral agreement between the other member states or between the European Union as a whole and the UK rather than just bilateral measures between Ireland and the UK. Replacing the European arrest warrant will create some major difficulties for Ireland in some respects. I do not think it is advisable that we go back to the previous position either because it was less certain in its result and very cumbersome and lengthy. A bilateral arrangement will be far more open to constitutional challenge in that Article 29.4 will not apply whereas it does apply to the framework decision. There is far more room for the decision to become more cumbersome, more difficult, more awkward and less certain in its result if it is replaced, even if it is possible to replace it with bilateral arrangements. Yet, we may have to do that if negotiations do not go as planned. I am hopeful that it will not come to this and the British Government does not seem to intend that it will, but we will have to see how the negotiations work out.

On the question of concerns about human rights, things have worked out a bit better than they seem but I agree with those concerns. I was concerned that in the European arrest warrant framework decision there is no explicit provision on human rights. It is provided for in the preamble in that it is mentioned, but that is as far as it goes. This is typical of co-operation as it started off because it was a co-operation between executives, and executives and departments of justice all over Europe have their own priorities. We are seeing much more of a balance at this stage between rights and repression. There is a need to have repressive measures but there is also a need to have measures to provide rights. It is very important to achieve a balance between the two. That is why I am happier to see all this area opened up and dealt with on a communautaire basis and with appropriate judicial control. However, there is one restriction relating to judicial control which relates to enforcement measures and the police. The European Court of Justice does not have rule in this regard.

On the question of a slowing down of development in justice and home affairs, Europe is consensus-driven. There is qualified majority voting in many measures at European Union level. This is not so much the case in the area of JHA but it exists to a certain level. Even where there is consensus or where there is provision for qualified majority voting, there is always the feeling that it is better not to outvote the other member states because if one state outvotes the others, they, in turn, will outvote that state the next day. There is always a drive for consensus at European level. The United Kingdom pulling back on measures will act as a retarding influence on the European Union because the other member states will want to see the United Kingdom with them. Ireland would have reason to be concerned about the United Kingdom not participating as fully as possible, and not even participating as fully as possible as it does now, with regard to policing and judicial co-operation in the criminal law field. At the moment, we have an opt-out with an opt-in with regard to ongoing measures. Both the UK and Ireland are opting in to a great deal of measures. By and large, they do not opt-in to certain measures that they would perceive as not being compatible with justice co-operation. I understand we are not proposing to opt-in to the European investigation order, but by and large we opt-in. Europe in general and Ireland in particular would have reason to be concerned if the United Kingdom changed that attitude. We are not just talking about protocol 36 but also protocol 21.