Oireachtas Joint and Select Committees
Wednesday, 25 September 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Proposed UK Block Opt-Out of JHA Measures: Discussion
The next issue is a briefing on the proposed United Kingdom block opt-out of justice and home affairs measures, including any possible implications for Ireland. On behalf of the joint committee, I welcome Dr. Gavin Barrett, senior lecturer at the school of law, University College Dublin, and thank him for his attendance.
Before we commence, I will advise of the position regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect parliamentary practice to the effect that where possible they should not criticise or make charges against any persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
The format of the meeting is that Dr. Barrett will make a brief opening statement, after which we will have questions from members.
Dr. Gavin Barrett:
I thank the joint committee for its invitation to address this meeting. If I speak for too long, I ask members not to hesitate to interrupt.
The topic the joint committee kindly invited me to address is the proposed United Kingdom justice and home affairs block opt-out, including any possible implications for Ireland. I presume members have copies of the speaking note I prepared. I considered the best approach to the briefing would be to list a number of questions on the proposed opt-out for discussion.
I will address the following questions together. Why does the United Kingdom have a protocol 36 opt-out? How does this differ from the Irish protocol 21 opt-out, with an opt-in? Why did Ireland not negotiate an outcome that reflected the position of Britain in this regard? The story of the UK opt-out begins with the considerable advances in justice and home affairs co-operation which were made with the treaty of Lisbon in 2007 and its subsequent entry into force in December 2009. The Lisbon treaty effectively resulted in the abolition of the intergovernmental third pillar of the European Union governing police and judicial co-operation in criminal matters and a switch to the more normal, so-called Community method of decision making. In plain language, this meant a more exclusive role for the Commission in proposing and enforcing legislation and a broadened and more normal form of jurisdiction for the European Court of Justice.
Changes of this nature are by and large welcome for Ireland. Commission proposals mean that the interests of the European Union as a whole are taken into account, rather than only those of large member states. Moreover, legislation is better enforced and a role for the European Court of Justice by and large means the application of European Union law becomes more uniform. To sweeten the pill, protocol 36 provided for a five year transition period during which the European Court of Justice and Commission enjoyed only their old powers in respect of pre-2009 measures. In the UK, with its deeply ingrained history of euroscepticism, the changes rang alarm bells and, as a result, two protocols were negotiated, one forward-looking, the other backward-looking.
Members should be reasonably familiar with the forward-looking protocol 21, which involved the famous opt-out, with an opt-in, in respect of justice and home affairs measures. According to this protocol, the United Kingdom would not take part in the adoption of justice and home affairs measures proposed after the Lisbon treaty and such measures would not be binding on the UK. The opt-in aspect of the protocol is two-pronged. In the first instance, the UK could notify within three months of a measure being proposed that it wanted to take part in the adoption and application of any such proposed measure and would be entitled to do so. The second limb of the opt-in was that even if the UK did not give such notification, it could, at any time after the adoption of a justice and home affairs measure, notify that it wished to accept the measure and it would be allowed to do so. The forward-looking protocol 21 was, therefore, a permanent opt-out, with a double opt-in possibility.
What was Ireland's position on protocol 21? Confronted with the prospective absence of the largest common law country in the European Union from an indefinite number of justice and home affairs measures and thus the possibility of being in a very weak negotiating position, Ireland, despite not having any real reservations either about the Commission or European Court of Justice, also negotiated and secured essentially the same deal. Ireland's opt-out is little different from that of Britain's, although it is slightly more limited as it does not apply, for instance, to anti-terrorist measures to freeze funding. It is also more easily escapable in that all we must do is notify in writing that we no longer want to be covered and that is the end of the matter. We declared an intention at Lisbon to review the operation of our adherence to protocol 21. Our declared attitude is also different from that of Britain because we declared at Lisbon an intention to opt into everything possible. None the less, our overall position in respect of measures proposed and adopted subsequent to the Lisbon treaty is similar to that of the United Kingdom in that we have an opt-out and two opt-ins. I do not need to remind members that there are also constitutional provisions relating to this in the form of Article 29.4.7° and 8°.
The forward-looking protocol 21 did not fully address the UK's concerns at Lisbon because Britain also looked back at more than 130 measures in justice and home affairs co-operation that had been agreed in the period between the Maastricht treaty of 1993 and 2009. The UK argued that these measures had been adopted at a time when the involvement of the Commission and European Court of Justice had not been envisaged. At this point, the UK sought to review the issue of whether it was still interested in continuing to adhere to these measures given the changed role for the Commission and European Court of Justice. The other member states - rather reluctantly, I suspect - allowed the UK to opt out of all 130 measures en bloc and subsequently selectively opt in again.
Protocol 36 gives expression to that particular deal. Therefore, at the latest, six months before the expiration of the Lisbon transitional period, the United Kingdom could make a notification. The effect of that notification would be that all 130-odd measures would cease to apply to it. The United Kingdom could then at any time afterwards notify the Council of its wish to participate in the measures - in other words, to opt back in - but subject to certain procedural requirements.
Let us recall the basic difference between the Protocol 21 opt-out and the Protocol 36 opt-out. The Protocol 21 opt-out is an open-ended forward-looking opt-out applying to all JHA matters proposed and adopted from 1 December 2009 onwards - basically, forever - with guaranteed ease of opt-in should we want it. The Protocol 36 opt-out, which is the one we are talking about today and which only the United Kingdom has, applies backwards to a finite number of measures, approximately 130, adopted before 2009 in the field of police and judicial co-operation in the criminal law field, all of which must be opted out of en bloc, with the United Kingdom joining some of them, but only under certain procedural conditions. I may return to these later. That is the difference between Protocols 36 and 21.
With regard to why Ireland did not negotiate a Protocol 36 opt-out, we had no need to. We opted in to the Protocol 21 opt-out only to protect ourselves from a situation in which there might be an absence of a heavyweight negotiating partner in there with us on Justice and Home Affairs proposals; it was no more than that. We have no issue with the Commission or with the Court of Justice, or with their being given an expanded role. Therefore, we had no need whatsoever for a Protocol-36-type arrangement. The measures adopted prior to 2009 had been adopted with the United Kingdom sitting around the table with everyone else. Therefore, Ireland's perceived need for a heavyweight negotiating partner had been met with regard to those particular measures.
The next question relates to why the United Kingdom is exercising this opt-out now. There is no obligation whatsoever for the United Kingdom to exercise its Protocol 36 right to opt-out of these 130 measures. Protocol 36 gives the United Kingdom a right, but it does not impose an obligation on it. Second, the decision to exercise the opt-out appears to have been made for domestic political reasons, not for any real practical reasons. To be frank, it is because of pressure emanating from the Conservative Party backbenches with regard to these measures, objections to an increased role for the Commission and the Court of Justice and ironically, given that they are now going to propose opting back into it, particular objections to the European arrest warrant framework decision. Apparently, the Liberal Democrats made it pretty much a red-line issue that it wanted to see an opt-in to that.
With regard to the timing of the opt-out, the five-year transition period provided for in the Treaty of Lisbon expires on 30 November 2014. At that point, the Commission and the Court of Justice get their extra powers under the Lisbon treaty. The protocol requires notification by the United Kingdom to opt in, at the latest, six months before that, 31 May 2014. That is the deadline. Obviously, if the United Kingdom intends to opt back into many measures, that must be negotiated with the Commission and the other member states, leaving sufficient time. Any parliamentary approval required must also be obtained. This seems to be the reason the United Kingdom is acting now.
Why has so much concern been expressed about the exercise of the opt-out? The simple answer to that is that the framework of much co-operation that goes on in the field of Justice and Home Affairs is now European and because the United Kingdom is a large state within the European Union, much concern has been raised by the prospect of its opting out of any of that co-operation. Those concerns are far from being expressed outside the United Kingdom alone. The House of Lords produced a report in April this year which stated that the Government had not made a convincing case for exercising the opt-out and that opting out would have significant adverse negative repercussions for the internal security of the United Kingdom and the administration of criminal justice there, as well as reducing its influence over this area of EU policies. Therefore, this is deeply controversial not just outside the United Kingdom, but inside the United Kingdom also. That conclusion was reached prior to the declaration of the measures the United Kingdom would opt back into, but nonetheless it gives some indication of the concerns.
On whether Ireland has reason to be particularly concerned in this regard, yes it has. The Minister for Justice and Equality, Deputy Shatter, was so concerned about this that he spoke out in public on the matter and was quoted in The Irish Timesand the Financial Times, in an attempt, I think, to discourage the United Kingdom from exercising this option. He cited in particular security worries associated with the situation in Northern Ireland. The relationship between the United Kingdom and Ireland in the field of police and judicial co-operation in criminal matters is based on a complex matrix, a kind of Gordian knot of rules. Some of them are domestic, some are European and some are domestic rules implementing European rules. It is a complex situation and the effect of the United Kingdom jettisoning co-operation under a total of 130-plus EU measures in this field, without opting back into any of them, would have serious consequences for the ongoing co-operation between the United Kingdom and Ireland in this area. Therefore, we have a right to be concerned about this.
Three factors come into play here. One concerns what the United Kingdom will opt back into. Since 9 July, we know what it intends to opt back into. We do not know it will be able to do so, but we know what it intends to opt back into. The second factor is how long the United Kingdom will remain outside the protocol. There will be a gap, but how long will that gap be? Will it be one second or a couple of months? This is important to Ireland. The third factor concerns how much notice we are given. We are getting a year's notice, at least in regard to what it intends to opt back into.
It is important to point out that we should not exaggerate the implications. Much of the co-operation that goes on between Ireland and the United Kingdom is executive-to-executive co-operation. That will not be jeopardised by the Protocol 36 opt-out. Second, even in so far as co-operation based on legal measures is concerned, this is a finite list of measures. Protocol 36 has no application to any measures adopted or amended after 1 December 2009. Third, not all of the measures are particularly significant. Fourth, the United Kingdom will try to opt back into and re-participate in the measures that are most significant to Ireland.
That said, some of the measures in the opt-out are hugely significant. The two I would put at the top of the heap in that regard are the European arrest warrant and the Europol measure. The UK's re-entry cannot be guaranteed. Therefore, we must be ready for problems in this regard. More specifically, there is a need for three things. There is a need for a plan B in case negotiations in respect of any of the 35 opt-ins do not go according to plan. If the United Kingdom gets into some but not all of them, we must be ready for that. Above all, we need to be concerned about the European arrest warrant, because we do not want extradition co-operation between Ireland and the United Kingdom breaking down. The vast bulk of persons surrendered to Ireland by other EU member states under the European arrest warrant system are surrendered by the United Kingdom - over 80% of them. This is a serious issue as far as Ireland is concerned.
With regard to what we should do if negotiations break down, we need to be ready with alternative bilateral arrangements, renewed statutory provisions based on the 1957 European Convention on Extradition or a new agreement at European level. We must have something ready and have a plan B. We also need to mind the gap. No matter what happens, even if we get a complete opt-in, there will be a time lapse between the United Kingdom's opting out and its opting back on. We need to be prepared for that. We also need to think about the implications of those measures the United Kingdom is not going to opt into - approximately 100 measures. These are not the most significant measures in regard to Ireland. Many of them have to do with administrative co-operation, in which it does not matter that much whether the United Kingdom is present. However, we must do a comprehensive survey of those instruments and be ready for UK absence from them.
With regard to how Ireland would like to see the United Kingdom exercise its opt-out, I am tempted to say that Ireland would have preferred the United Kingdom not to exercise its opt-out at all, on the grounds that there is no objective, practical need for this as police and judicial co-operation in the criminal field is working fine and there are many disadvantages to its opting out. However, there are some things we do not get to choose in life. On 9 July, Theresa May, the UK Home Secretary, announced the UK Government's intention to opt out of 130 measures and to opt back into 35 of them.
On whether there are particular measures Ireland is particularly interested in seeing the United Kingdom opt back into, the answer is "Yes." Broadly speaking, the areas we are concerned about are the European arrest warrant; arrangement of mutual assistance measures; Europol; some drugs and organised crime measures; measures concerned with information exchange; and measures concerned with databases of criminal records and false documents. I am happy to be able to say that going by Theresa May's statement on 9 July and the associated command paper 8671, which is worth looking at, the United Kingdom is going to try to negotiate its way back into measures in all of these fields. From an Irish point of view, if the United Kingdom succeeds in doing that, a great deal of the damage that might otherwise have been done will be avoided.
What specifically is the United Kingdom opting back into?
The European arrest warrant is number one. Above and beyond anything else on the list, that is what we want to see them successfully rejoin as quickly as possible, because the whole framework of extradition of co-operation is based on that. The earlier legislation on this has been repealed; it is just not there anymore. Therefore, if the European arrest warrant system is gone, we do not have anything to fall back on at the moment. Will there be any potential problems in the UK getting back into the European arrest warrant? Perhaps there might be, because the British Parliament is in the course of adopting the Anti-Social Behaviour, Crime and Policing Bill 2013, in which it is unilaterally introducing a number of restrictions on the operation of European arrest warrants. It may well be that those restrictions are in accordance with EU law, but if not, how will the Commission react? Does it risk a breakdown in the negotiations? We will have to see. I am cautiously optimistic about the UK getting back in, for the simple reason that the UK is a big prize to have in the European arrest warrant system and I think the Commission will want them back in. However, I am only cautiously optimistic.
The UK is only opting back into Europol as long as that organisation is not given the power to direct national law enforcement agencies to initiate investigations or share data conflicting with the UK's national security. That is a big restriction on any agreement to go back into Europol. On the other hand, Europol is the crown jewel of police and judicial co-operation in the criminal law field, so having the UK outside of it is almost unthinkable. The Commission has a big decision to make on this. Does it want to proceed with developing Europol the way it wants to see it develop, or does it want the UK in? It looks as if it will not get both, so we will have to wait and see what happens. The UK is opting back into the other measures that I mentioned, such as mutual assistance for drugs and organised crime, so we can be reasonably happy with that situation.
The procedural requirements are important. The Schengen Agreement is the border busting treaty at European level, and we are not party to it. If the UK were to opt back in to the Schengen Agreement, that would require unanimous agreement by all of the other member states, which they can refuse for any reasons they wish, so it will be tougher for the UK to get back into Schengen measures. As we are not in the agreement, we do not need to worry about that. The non-Schengen measures just need Commission approval to go back and I think the UK can rely on the goodwill of the Commission for that. They need to worry about the Commission for things like the European arrest warrant, Europol and so on.
The final point is about whether there is any danger in the UK not being allowed to re-enter any of the measures. We have to bear in mind the procedural questions that I just mentioned. I think we can rely on the goodwill of the Commission in this regard, but there is no room for complacency because much can go wrong between now and the end of 2014. The Commission will change at the end of 2014 and I do not know how long it will take the new Commission to adjust to its new role and what the attitude of the new members of the Commission will be. There will also be European Parliament elections as well, although that is less of an issue. Greece will have the Presidency of the Council in the beginning of 2013, and the role of the Presidency will be crucial in shepherding along the negotiations between the UK, the other member states and the Commission. We can hardly blame Greece if its attention is elsewhere during this time, so we have to see how things work out and we need to be ready for any eventuality. I apologise for being far longer than five minutes, but hopefully that will provide committee members with some idea of what is happening.
I had the opportunity in previous committees to hear Dr. Barrett's presentations. As always, his analysis is very much valued here. In his reasons for these events, he listed the rise of UKIP and the concern of Conservative Party backbenchers about the dominance of Europe. We all agree that we need European and international co-operation to tackle human trafficking and drugs trafficking, and the use of the Internet to promote criminality. Clearly we need that level of co-operation between our police forces. One of the issues that comes up is that not every member state has the same data protection measures, so we are trying to balance the need for civil liberties versus the need for co-operation and security to tackle real threats to all of our people. Are there any valid concerns about that balance expressed by Conservative Party backbenchers, or is it more a symbolic expression of independence from Europe that means they wish to have control over their national security apparatus?
Dr. Gavin Barrett:
That is a very legitimate question. I would say "Yes". Historically, much of the co-operation that has taken place at justice and home affairs level, and police and judicial co-operation at European level has been driven by the various executives. That is less the case now, because we have a more community-based system, even though the European Community is not there anymore. There is more involvement of the European Parliament and the other institutions. Previously, these issues were very much dominated by the Council. National governments tend to have their own priorities. The Schengen Agreement was always a kind of a balance. On the one hand, it liberated matters as border controls were removed, but on the other hand, in order to compensate for the removal of border controls, we got increased judicial and police co-operation. Ireland and the UK proposed to opt into the repressive measures, but not into the border busting measures. It is something I have always been a little bit uncomfortable about, because the two measures were meant to march in lock-step with one another. For the time being, that does not arise anyway, because we just do not have the financial means to set up the likes of the Schengen information system, which is a computerised database.
I think that it is important that we opt in to measures other than repressive measures. We also have measures under judicial co-operation that guarantee rights of individuals, such as victims' rights, the rights of accused persons and so on. That balance has not always been the correct one in the past, but proposals are being made on measures for victims' rights, bail and so on, and it is important that we in Ireland consider very carefully the need to opt into not just the repressive measures, but also the measures that guarantee rights.
There have been valid concerns on the part of Conservative Party backbenchers. The European arrest warrant is not a perfect instrument. The biggest problem with the arrest warrant concerns proportionality. I mentioned that the largest number of surrenders by another state in the European Union comes from the United Kingdom. I did not mention the largest number of surrenders to another state by Ireland, because that is not the UK, but to Poland. That is the case in virtually every state in the EU and this is because the Poles require the surrender of persons in respect of offences which can be absolutely trivial. These are tiny offences which do not even justify the cost of sending persons back to Poland. Why exactly that is the case is a matter of Polish law and practice, but it has led to some fairly ridiculous situations materialising and that is a concern. The UK is trying to deal with proportionality in its legislation. I would be interested to see how acceptable it is to the European Commission in writing the proportionality rule into UK legislation. Proportionality is a principle of European Union law, so I think there should be some rule for its application, but we will have to wait and see on that.
The other concern in the UK has been in respect of persons who are being surrendered and detained for a long pretrial period in another country, but when the trial comes up, it is decided there is no case to answer and the person is returned home. In principle, that is alright but the person has a couple of months of his life in a prison in a foreign country. That is a matter of concern as well, and these concerns are legitimate. I note from Theresa May's talk that what she proposed to do was to take advantage of the proposed legislation at European level, whereby it will not be normal to imprison people like that anymore and they will have a right to be released. It is interesting that she sees the solution as being at a European level.
I would not say that the concerns of the Conservative Party backbenchers are entirely without foundation, but there tends sometimes to be an exaggerated focus on the problems and not sufficient acknowledgement of the advantages. An example would be the attempted bombing of the Shepherd's Bush tube station.
One of the perpetrators fled to Rome immediately afterwards and was surrendered back to the United Kingdom within a matter of weeks. This would not have happened without the European arrest warrant. I refer also to a very prominent case some time ago, which we all remember, of an individual who fled to France with a minor. That individual was returned to the United Kingdom by virtue of an arrest warrant. I agree that, as with any measures, there are concerns and I share some of those concerns. However, whether those concerns justify turning one's back on the entire European arrest warrant system is a different matter. I am not sure if it was politics or common sense that prevailed in the UK. I suspect it was politics but we have reason to be grateful for that.
I thank Dr. Barrett for a really comprehensive overview which is very helpful to the committee. Following from Deputy Mac Lochlainn's question, I am interested in the consequence for Ireland of the UK position, which whatever the motivation, clearly is the necessity to have ready a plan B in the shape of bilateral agreements with the UK if that country does not decide to opt back in to measures such as the European arrest warrant.
I refer to the effect on the development of justice and home affairs, JHA, measures generally. Dr. Barrett highlighted that there may be a slowing down of development or expansion of Europol's powers. I can see the advantages and disadvantages to this. There was a strong view in Irish criminal justice circles for a long time that opting in generally to JHA measures was going to water down protections for the accused in Irish law and, much as some of the Tory back bench concerns were valid, those were very valid concerns. I agree with Dr. Barrett that at EU level there has been in more recent years a better focus on rights, not only of accused persons but also of victims. Initially at least, it did appear that we would be diluting our constitutional protections and due process by opting in to everything. I am interested in this idea of the slowing down of development of JHA. Does Dr. Barrett regard this as a real issue not just in terms of Europol? For example, a motion is to be before the House on the European public prosecutor's office. Will this measure be affected by virtue of the UK opt-out?
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.
I welcome Dr. Barrett to the meeting. Dr. Barrett referred to domestic political reasons for the UK exercising the opt-out clause. He also referred to the issue of the eurosceptics. Any of us who have valid concerns and who want to ask questions are often dismissed as eurosceptics. I regard myself as very pro-Europe but I also have concerns and views on issues and I have the democratic right to ask questions about the direction being taken by Europe. However, people like me are often dumped into one corner, as it were, by certain others.
Dr. Barrett spoke about the balance between the rights of victims and issues of human rights. In my view, at a European level, certain victims are not included sufficiently and there is always a political aspect. Dr. Barrett referred to one of the people involved in the London bombings who was extradited from Italy within weeks. However, I would make a counter-argument. An Oireachtas motion looked for co-operation on the Dublin-Monaghan bombings. We asked the British Government for co-operation but we received none. Some victims are more equal than others. It is important to have a balance and that every victim and every citizen of Europe is treated with equality and respect.
I refer to the point about extradition arrangements with Poland. It seems that the reasons for extradition to Poland are very petty. The Polish Government pays for the extradition so there is no cost to the Irish taxpayer. For example, a person wanted for non-payment of a fine in Poland and is living in Ireland is extradited for that offence. I do not agree with the Polish law but that is their right. Many people outside of political circles may not be aware of this Polish law.
Dr. Gavin Barrett:
I hope that was clear in my answer to a question from another member.
I have sympathy with regard to some of the criticisms relating to the operation of the European arrest warrant framework decision in particular. However, many of the concerns expressed in respect of that decision were actually somewhat exaggerated. I am of the view that such concerns were ideological in nature. In other words, there was a tendency to look at everything bad about the framework decision without considering the positive side. I can do no better than refer to the report of the relevant select committee of the House of Lords in that regard. I actually appeared before that committee before it made its decision, although I am not sure I had too much to do with the conclusion it reached. The committee in question stated at the time that the UK Government had not made a convincing case for exercising the opt-out and that its approach would have negative repercussions for internal security, the administration of criminal justice and the UK's influence in Europe. The Lords select committee was quite damning with regard to the prospect of the use of the Protocol 36 opt-out. That raises a question as to why the United Kingdom has been choosing to exercise this opt-out. I do not see the practical reasons for doing it. I am of the view that the UK authorities approach is being driven by ideological rather than practical reasons. Judging by its report, the House of Lords select committee shares that view.
There is no doubt that rights such as those relating to equality and respect are imperative. These rights need to be respected. One of the things about the European arrest warrant is that it is an almost quasi-automatic procedure. If, therefore, Ireland sought the extradition or surrender of somebody who was suspected of being involved in the Dublin and Monaghan bombings, there is a procedure available under the arrest warrant. Previously, it would have been a great deal more difficult in that regard and it would have been possible to introduce many challenges to a request that an individual be surrendered. I do not really want to discuss that matter because I am not aware of any particular individuals who might be subject to European arrest warrants.
Dr. Gavin Barrett:
I see. The Deputy would obviously be more familiar with that than I would. I agree 100% with what he said about the need for equality and respect right across the European Union. One of the advantages of the European arrest warrant is that it introduces more equality.
There are cost implications in the sense that if an arrest warrant is put through the courts here an individual might be fully entitled to free legal aid - why would he or she not be so entitled? - and the Garda would be obliged to locate that individual in the first instance. There are all sorts of costs involved. I am not sure who pays for flights but I will take the Deputy's word for it that in the cases to which he referred, it was the Polish Government. I suspect that rather a lot of man hours, court hours, police hours and lawyer hours are spent on this matter in Ireland. It would be better for all concerned if, perhaps, there were not quite as many requests in respect of really trivial offences emanating from Poland in particular.
I thank Dr. Barrett for coming before us. We really appreciate his input. We might keep in contact with him. If there are which he might like to bring to our attention, I invite him to do so. I am particularly interested in the 100 issues in respect of which the UK is not going to opt back in. Dr. Barrett stated that we should maintain a watching brief in respect of those issues in the event that something might arise which would have serious implications for us.
Dr. Barrett keeps including the caveat in respect of if the UK tries to opt back in and whether it will be successful in that regard. There is always a risk that it may not be successful but, as he also stated, the chances are that it probably will be successful in its efforts in this regard.
I thank Dr. Barrett for his comprehensive presentation, which was extremely interesting and from which we learned a great deal. We will suspend proceedings until 2 p.m. at which time we will receive a briefing on the draft fourth programme of law reform.