Mr. Eugene Regan:

I thank the Chairman. It is very nice to be at the meeting. It is much more comfortable sitting on the other side of the room, but here goes.

I have been asked to address the issue of the co-operation in policing and criminal matters in the context of a UK withdrawal from the EU and the consequences it might have for this area. I do not believe the UK will withdraw from the EU. Recent experience in this very area of policing and criminal law matters might serve as a guide to how the debate on UK withdrawal will crystallise. The reality is that there was a furore in the UK regarding the European arrest warrant, other matters concerning policing and EU criminal law matters. It centred on the European arrest warrant and the frailties in the framework decision adopted in 2002. There was criticism of other aspects of that area. When the UK Government chose to exercise the blackout option, provided in the Lisbon treaty and to which Professor Maher has referred, and thus withdrew from approximately 130 measures, it recognised the reality of the matter and the importance of the measures to policing and internal security in the UK. It chose to opt back in to 35 of the key measures. This demonstrates that, notwithstanding the reservations in the UK about the EU, it has the capacity and pragmatism to recognise that it is in its own interest to work within the EU framework.

Let me give a little historical background on the policing and criminal law area. Historically, Ireland and the UK were on opposing sides. The great debates of the early years of membership were mainly on the Common Agricultural Policy and disputes about green pounds and devaluations. However, in the area of policing and criminal law matters, the two countries followed the same path, as we did in regard to asylum and immigration. There is no area in which the two countries have co-operated as closely as in this area. This co-operation dates back to 1972, the year of the Munich Olympics outrage. The TREVI group was formed, and the UK and Ireland were involved in that when it was set up at the European Council meeting in Rome in 1975. The European arrest warrant was introduced after the events of 11 September 2001. The British Home Secretary suggested the idea of mutual recognition.

The UK contribution in this area has been very important. We have worked alongside the UK because of the common law tradition and concerns about how development in this area would affect the common law system. Bearing in mind the process involving the Maastricht, Amsterdam and Lisbon treaties, one notes it is only at the time of the production of the Lisbon treaty that this area was brought into the first pillar of the EU and made subject to the full involvement of all the institutions, that is, the Commission proposing legislation, parliamentary co-decision and, of course, the jurisdiction of the European Court of Justice. There was a delay in respect of the latter. It was five years after the introduction of the Lisbon treaty that the European Court of Justice was to have full jurisdiction in this area. Hence the move to qualified majority voting and the European Court of Justice jurisdiction. This is why the UK chose to extend the Protocol 21 opt-out to the criminal law area. Ireland followed suit. Members will remember there was a debate in the Seanad and Dáil on this when Ireland decided to follow the UK on this. It was opposed by the Opposition but there was a compromise, which was that the opt-out would be reviewed after five years. That review has taken place.

The UK opt-out is entirely different, however. Protocol 36, a decision to opt out en blocfrom all new measures, was exercised by the UK Government in 2013.

That was announced by the UK Government on 24 July 2013. At the same time, it identified a number of key measures it wished to opt back into. That was adopted last November and passed by the House of Commons. However, what is fundamentally important in this is the Irish influence in that debate and the fact that it was highlighted by the Irish Government that the consequences of the UK exercising this opt-out and not opting back into the European arrest warrant, in particular, and into other measures would create fundamental difficulties for co-operation between the two countries, not only in the area fighting crime but, especially, the area of terrorism and in the context of Northern Ireland. That had a very persuasive effect in ensuring that the House of Commons voted through the measures to opt back into the 35 measures, including the European arrest warrant.

There has always been a concern in Ireland - Professor Imelda Maher identified it - in regard to our common law system and this is why Ireland chose to apply protocol 21 to policing and criminal matters. The reality is that since that extension, Ireland has opted into the vast majority of measures. In terms of those into which we have not opted, it is not for reasons that go to our criminal law system, or our particular common law system, but it has more to do with organisation and administration. After five years, it has become apparent that protocol 21 is not really necessary in terms of protecting the features of our criminal law system, which were initially of concern.

When I say that the United Kingdom has recognised the importance of the measures in policing and criminal law, there was a House of Lords report on the issue of the opt-out in 2004. Many representations were made to the House of Lords, in particular in regard to the European arrest warrant but also on the whole range of measures. The conclusion of that report was that opting out of policing and criminal justice measures would have significant adverse negative repercussions for the internal security of, and the administration of criminal justice in, the UK.There was a recognition in the UK of the importance of these measures and of the acquis, as it were, in all of this, and that it was important to the UK itself.

Professor John Spencer, who is an expert in this whole area, considered that if the opt-out and opting back in were to go ahead, which is the case, that would essentially be a purely paper exercise. He suggested the opt-out would make no difference whatsoever because the key measures were included in the measures to which the United Kingdom was opting back into. After 40 years of progress and treaty changes, which reflect the common concerns of member states in the area of organised crime, terrorism and the importance, at a European level, of co-operation in the detection, investigation and prosecution of crime, the UK recognised that for it to exit out of these areas was a leap in the dark and was not in its interests.

In the event of a UK exit, which is theoretical question, and whether it is a real question will depend on the May general election, a void will not be created. The fact is that Article 50 of the Treaty of European Union provides specifically for a mechanism for withdrawal of any member state. It specifically states that the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal and taking account of the framework for its future relationship with the European Union. In addition, the treaty shall cease to apply to that state in question from the date of entry into force of the withdrawal, so even in the extreme situation of a withdrawal, it would have to be an orderly one. The UK is bound by the treaties until such time as such an exit would happen and to enter into an agreement providing for that procedure for withdrawal.

If there was a UK withdrawal it would not just affect the criminal law areas but it would also affect the civil law area, in particular there are specific regulations, for example, on the recognition and enforcement of judgments in civil and commercial matters. There are also the European accounts preservation orders. All of these are very important measures in the civil law field but they fall into this rubric and chapter in regard to criminal law.

If there was not an orderly withdrawal, the question of the arrangements would arise. Would individual member states, like Ireland, have to enter into bilateral treaties with the UK? One would have to have serious doubts that would be possible because the EU now has a competence in this area of policing and criminal law matters and I do not think member states would be at liberty to enter into bilateral arrangements. It would be a recipe for disaster if there were no orderly procedures for an exit in that unlikely event.

Prime Minister David Cameron is reported recently as saying that people would rather have a choice between staying in a reformed Europe or getting out rather than the false choice of today which is to stay in Europe with which they are not satisfied or to leave. The issue and the agenda is more reform and renegotiation of certain terms of the existing treaties. In terms of terms of the criminal law area, even though the EU arrest warrant has been a topical political potato in the United Kingdom, it is more to do with immigration and welfare tourism. That is where the focus of any re-negotiation seems to be moving.

Ireland's position has been made clear by the Minister for Foreign Affairs and Trade and the Taoiseach that Ireland's interests lie in the UK remaining within the EU. In the area of policing and criminal law matters, as common law countries, there is no doubt about the common interest we have in shaping EU policies in this area and working within the framework which has been created by the EU over the past 40 years.

In terms of reform, the criticisms of the European arrest warrant by the UK and in the political debates which have occurred are not entirely unjustified. It was an instrument adopted rather hurriedly after 9/11. It is not perfect legislation and it has created considerable problems in terms of excessive usage and the protection of persons who are extradited. Even though it has worked effectively and efficiently, there is scope for revising and improvement of that instrument. Those types of reforms might resolve many of the issues that might arise, and have arisen, in regard to the issue of UK withdrawal from the EU.

I will leave it at that. I hope I have not exceeded my time.