Mr. John Finnegan:

I thank the Senator very much. The points she makes are very valid and I would take them nearly as advice. She is right that a lead agency can be very useful. We are at a very early stage here and when we are thinking about transposing this directive when it takes its final form, establishing lead responsibility, if it is possible, could be a very valuable thing to do.

The Senator also made a very good point on another issue. Expressly, the Commission has said it is tightening the definitions so that they are harmonised. At the moment, with what one might call looser definitions, different member states have ended up with different interpretations. There is obviously a risk that tightening something also narrows it, which may exclude something one wanted to include. That is exactly the sort of scrutiny that will be needed as we follow this through the Council, and as the Dáil and Seanad continue to follow this also, in order that we do not have unintended effects as we try to tighten and refine our definitions.

The questions the Senator is raising are powerful and go to the heart of what will have to be decided in Council. It is the interaction between this legislation and our criminal law because the ideas of mens rea, negligence and criminalising, as the Senator stated, a breach of the precautionary principle would represent a change in our criminal law. That is exactly the sort of issue we are at the start of addressing with the Department of Justice.

It is worth noting that we are in a particular position as a member state because with the exit of the United Kingdom, Ireland, unlike just about any other member state, has a common law system. This means there is a significant difference between our criminal justice system and those of other member states. In recognition of this, Articles 1, 2 and 4a of Protocol 21 on the position of what was then the United Kingdom and Ireland in respect of the area of freedom, justice and security, which is annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, states that we actually have an option not to take part in this measure, if it proves impossible to reconcile that with our common law criminal justice system. All I can say on that is that the full implications of the measure are still being considered. Necessary legal advice will be obtained from the Attorney General’s office in due course. That will give us a clear sense as to whether Ireland will be able to participate and how we can participate in it. If it is proposed to participate, it is a matter that will be formally considered by Government and thereafter by both Houses of the Oireachtas.

We made a declaration at the time of that protocol indicating that we intended to opt in to this type of area to the maximum extent possible. That approach will be adopted here. However, the Senator raises very difficult and important issues, including that something drafted and legislated for in a system in another member state does not automatically work here. We need to ensure the language has the intended effect. More work will be done on that and we will return to the Government and Oireachtas on that question.