Mr. Deaglán Ó Briain:

I would like to go first. Much of the detail was directed at my colleague from the Commission but some issues were raised to which I would like to respond.

On the questions posed by Deputy Eric Byrne, our addressing this issue during our Presidency did not take place in a vacuum but part of our success in persuading all member states to sign up to a set of conclusions to ask the Commission to take forward the debate was to be scrupulous not to mention any other member state. We took the view that there is the potential for problems to emerge in any member state and that all of us should be open to looking at those, to external scrutiny and to dealing with those type of problems.

In terms of the Roma, for example, which is topical, it is clear we failed seriously in that regard and the Minister, the acting Garda Commissioner and the Taoiseach have apologised. The Minister has given clear directions that we must address the type of issues that arose, particularly the lack of cultural competence within public sector organisations. She addressed that point in the Seanad earlier on Committee Stage of the Irish Human Rights and Equality Commission Bill in terms of how we will go about doing that, including the need for an assessment to be carried out on the needs of Roma people living in Ireland, and how we address those, with an obvious link in terms of how we improve the way we engage with the Traveller community and learn one from the other. That is an example of a failure the State acknowledges, and is dealing with the problem, and in that sense it is clearly outside the scope of this sort of mechanism, which is about grievous problems that arise where the member state perhaps is not dealing with it. I do not believe we have anything to worry about in that regard, although the situation those two families faced is serious and traumatic. It will take a long time for the children, and the families, to come to terms with it but I understand the three apologies were very well received.

The Deputy mentioned judges. I mentioned at the end of my opening statement how one would put a methodology in place to assess the standards of compliance with the rule of law and European values in member states, and judges are an interesting example. The type of approach we have been taking is to look at specific issues, such as the independence of the Judiciary, and examining a methodology in terms of how one assesses that at three levels - structure, process and outcome. Structure would be to ask a country if it has a statement in its constitution or equivalent that the judiciary is independent that is, pass or fail. Process is the way they are appointed. We have had debate here on that and there are proposals to put in place a judicial council. Therefore, we have already recognised that there is work to be done. The final one is the outcome. Is the public confident that justice is fair and impartial? Once judges sit on the Bench, regardless of how they are appointed, are they politically independent? Are commercial companies, including foreign companies, confident that justice will be fairly and competently administered? I believe we pass on all of those. The point is that it is that outcome we are looking at rather than worrying about issues that are peculiar to a member state that the member state may have already recognised it needs to address or issues that are an emotionally important part of its sense of identity or its constitutional tradition. We could also look at whether the member state has a written or an unwritten constitution, for example, an elected president or a constitutional monarchy. Those are outside the scope of what the European Union can address because they are not really important. What is important, and I will not mention any member state, is whether a member state with a constitution or a hereditary monarchy is a functioning democracy. That is the question.

Deputy Seán Crowe asked what we mean by the rule of law and whether it is just about applying formalistic rules. There was a discussion during our Presidency on exactly what we were talking about. There is a need to be clear on what we are talking about, and there are different academic definitions. Without boring members with all the details, there is a thick and a thin definition and the thin definition is that the rule of law is about following the rules. It does not matter what the rules are, and that is clearly not an appropriate definition for the European Union. The thick definition, and there is a good deal of detail on this in the speech the then Minister gave at our conference in May 2003 which I can pass on to members if they are interested, is bound up with values, protecting fundamental rights and justice systems that function effectively to protect the rights of the individual rather than just following the rules, whatever they may be.

In terms of centralising power in the Commission, the Commission is the guardian of the treaties. That role is particularly important for small member states, and the Commission was asked by all the member states' justice Ministers to take forward debate and come back with a communication in terms of how it would take these issues forward.

To respond to Deputy Murphy's point, we all have different laws. This is about putting in place something to deal with or head off crises where fundamental European values to which every member state has signed up are in danger of not being adhered. Issues that relate to the particular approach of individual member states are completely outside of that, and even if it wanted to the Commission cannot start examining them.

Matters such as our divorce regime, issues in respect of abortion and so on are completely outside the proposal, even if they were not already clearly protected by the protocol to the Lisbon treaty, for example.