Oireachtas Joint and Select Committees

Thursday, 26 February 2015

Joint Oireachtas Committee on European Union Affairs

Possible Exit of UK from European Union: Discussion (Resumed)

2:00 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I remind members to ensure their mobile telephones are switched off completely for the duration of the meeting, as they cause interference with the broadcasting equipment, even when left in silent mode.

The committee continues its series of meetings considering critical issues for Ireland in the event that our neighbour, the United Kingdom, decides to exit the European Union. The Prime Minister, Mr. David Cameron has promised a referendum on this question if he is returned to power following a general election. The committee decided to examine this issue now in view of the potential impact on this country and on the many Irish citizens living in the United Kingdom. Our discussion will focus on the Lisbon treaty protocols and the future of Irish opt-outs in the context of a UK exit from the EU and also on criminal justice issues such as EU policing and judicial co-operation. Today we will hear from Professor Imelda Maher and Mr. Eugene Regan, SC. I welcome both expert witnesses.

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.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.

I invite Professor Maher to address the committee.

Professor Imelda Maher:

I thank the Chairman and members of the committee for affording me the opportunity to speak today. I have been asked to speak about EU treaty protocols. I sent the briefing notes to the clerk of the committee just before lunch.

I will briefly outline the most relevant protocols in respect of the relationship between Ireland and the UK. The reason for doing this in the context of a discussion of BrExit is that they are primarily concerned with control of migration and borders. Should the United Kingdom chose to leave the EU, the Northern Irish Border would become significant for the EU as it would become an external EU border. This would then raise considerable challenges for the open borders policy between the United Kingdom and Ireland as articulated in the common travel area. There are three protocols of note and another I will mention in passing.

First, Protocol 19 relates to the Schengen acquis. Schengen is an international convention designed to remove internal borders and establish a common external frontier. This means it also establishes common visa, asylum and immigration policies. Implementing measures known as the Schengen acquis were adopted on these policies and these were incorporated into the EU treaties and into EU law by the Amsterdam treaty, which is now part of EU law. There are special rules for Ireland and the UK in regard to Schengen as the only two member states that have not signed the convention. Others such as Bulgaria, Croatia, Cyprus and Romania have signed but are not fully incorporated into it. The relationship between the UK and Ireland and the Schengen provisions is addressed mainly in Protocol 19.

Ireland and the United Kingdom - throughout my address I will refer to Ireland but members should read it as Ireland and the United Kingdom - may at any time request to take part in some or all of the Schengen acquis.The Council of Ministers decide on this request on the basis of unanimity of the Schengen member states and the requesting state. The significance of this provision is that Ireland can only participate if the other member states agree to it unanimously.

Where Ireland has opted in to part of the Schengen acquisand a new proposal in that field is introduced, Ireland can give notice to the Council of Ministers that it will opt out but can withdraw that notice at any time up to the adoption of the measure. This opt-out is tempered by a set of procedures in Article 5 described as "fiendish" by Stephen Peers, a leading authority in the field. The purpose of the procedures is to protect the coherence of the Schengen acquis. The risk for Ireland is that the underlying Schengen acquiscould be dis-applied to it and Ireland would have to bear any direct financial consequences of this should the decision be that Ireland's opt-out from the amending measure would cause too much incoherence for the system. Should Ireland chose to opt from an amending measure, having opted into it, the stakes are very high.

Protocol 20 recognises the special travel arrangements in place between Ireland and the United Kingdom. It first recognises that the UK can continue to exercise border controls and then that the United Kingdom and Ireland can have special arrangements for the movement of people between them. As long as this common travel area exists, then according to the protocol Ireland can also have border controls.

There are two consequences to note from this. First, as Protocol 20 states, the other member states can impose border checks on people coming from Ireland and the United Kingdom. Members no doubt have experienced this when they travelled to the Schengen area. Second, the exemption for Ireland to impose border controls only applies as long as the UK and Ireland maintain their common travel area. This is important should the UK exit the EU.

Protocol 21, a protocol on freedom, security and justice, provides an opt-in for the UK and Ireland in regard to measures adopted under an EU court's rulings on Title V Part III of the Treaty on the Functioning of the European Union, that is the measures adopted in regard to the creation of the area of freedom, security and justice, AFSJ, dealing with border checks, asylum, immigration, judicial co-operation in civil and criminal matters and police co-operation. This is different from the Schengen Protocol, as the UK and Ireland have a right to opt-in.

Ireland notifies the President of the Council of Ministers in writing within three months of a proposal going to Council that it wants to take part. Its participation cannot be vetoed. Even if Ireland does not participate in the measure, it can subsequently opt-in with the Commission outlining to the Council what arrangements are necessary for Ireland to comply with the measure. Note, a measure can be adopted after a reasonable time without Ireland or the UK, even if they have notified of their wish to opt in, if in practical terms it is not possible to adopt the measure with them taking part.

Where the UK or Ireland opt-out of a measure, then the Council holds a full discussion of the possible effects of such non-participation. Any member state can ask the Commission to examine the situation on the basis of Article 116 of the Treaty on the Functioning of the European Union. Under this provision if the Commission thinks a member state's laws, administrative practices or procedures are distorting competition in the internal market and that distortion needs to be eliminated then the Commission consults the member state. If the consultation does not work, then directives or any other appropriate measures can be adopted under the ordinary legislative procedure.

What this means is that an opt-out decision, in what I believe would be fairly exceptional circumstances, may lead to legislation being adopted if the decision is deemed to distort competition in the internal market. The reason for this opt-out for Ireland seems to have been driven by concerns about the integrity of the common law system and differences with the civil law traditions dominant in other member states and by the fact the UK was going to opt out.

In declaration 56, Ireland affirms its commitment to the AFSJ and indicates it will participate to the maximum extent. Ireland can, at any time, notify the Council in writing that it no longer wishes to be covered by this protocol, and if it does so then the normal treaty provisions apply. This protocol is not applicable to Ireland in regard to Article 75 on the Treaty on the Functioning of the European Union, which sets down rules on freezing funds and financial assets in order to combat and prevent terrorism.

What is the relationship between these protocols? The question of whether a measure is part of Schengen or the AFSJ is significant because, if the Schengen agreement applies, Ireland does not have a right to opt in, which it does have in regard to the AFSJ. There is a substantive overlap, however, between the Schengen acquisand Title V, Part III, and this has been litigated before the European Court of Justice, by the UK in particular. An example is case C-137/05 on Frontex.

If a measure is covered by the Schengen acquis, then it is governed by the Schengen protocol. What has happened is that the court has interpreted this relatively broadly to include complementary measures, that is, any measure that “builds on” the acquis. The term “builds on” is one that would give a lawyer nightmares because it is very fuzzy. It means the precise nature of the relationship between the two protocols is not entirely clear.

Let us consider the UK opt-out protocol in passing. Under Protocol 36, governing transitional provisions, the UK had the choice to opt out of pre-Treaty of Lisbon measures on police and judicial co-operation within five years. As members are probably well aware, it did so and now has opted back in to a large number of measures, the most important of which for Ireland is the European arrest warrant. Ireland did not have this opt-out in the treaty.

The next topic is Ireland and the protocols. Laffan and O'Mahony suggest that Ireland and the UK have opted into measures on civil co-operation, asylum and irregular migration but to a limited extent on visas, border controls and legal migration. They participate in almost all criminal and policing provisions of Schengen and in respect of irregular migration. I have three thoughts on this. First, as the common travel area is significant for relations between the UK and Ireland, it might be worth considering what Mr. Justice Hogan had to say about it in Pacherov. the Minister for Justice and Equality in 2011. At one point, he referred to the “legal archaeology” required to get to the bottom of the common travel area:

While in theory both Irish and British citizens are entitled to arrive here free from immigration control by virtue of the common travel area, increasingly in practice such passengers who arrive by air from the UK are required to produce their passports (or, at least, some other form of acceptable identity document) in order to prove to immigration officers that they are either Irish or British citizens who can avail of the common travel area. Whatever about anyone else, Joseph Heller [who, as members know, wrote Catch-22] certainly would have approved.

This suggests greater clarity on the common travel area would be desirable.

Second, if the UK exits the EU, regard has to be given to a three-way dynamic: the relationship between Ireland and the EU, the relationship between Ireland and the UK, and the relationship between the UK and the EU. It might be useful in this regard to consider the analogy, albeit imperfect, of the Nordic Passport Union and the Nordic Police Cooperation Agreement, whereby free movement is ensured for Norway and Iceland with the other Nordic countries although they are not in the EU. However, they are in Schengen, which the UK is unlikely to join in an EU exit scenario.

Third, these two comments suggest a mini-Schengen may be the best way forward for the UK and Ireland should the UK leave the EU.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank Professor Maher.

I welcome back Mr. Eugene Regan. He is on familiar territory. I invite him to address the committee, after which we will bank questions.

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.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I thank Mr. Regan. Both presentations were very interesting. I remind members that the committee is only considering the implications for Ireland of a UK exit from the EU. We should not comment on the merits of a referendum in other member states for obvious reasons.

Photo of Colm BurkeColm Burke (Fine Gael)
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In the UK elections to the European Parliament, many of the people elected were not pro-Europe to a large extent. If there were a vote in the morning in the UK, it might decide to leave the EU. There will be a long debate on the matter and the UK will seek a very much reformed EU. However, if the UK decided it was not happy with the package being offered, what would be the consequences from the point of view of the Six Counties and the complications that would arise regarding them? It would be difficult for us to handle the issue.

Issues arise in the important and changing area of patents. The view is that the unified patent court will be based in the UK. How will it be dealt with? There are advantages from Ireland's perspective to the patent court being based there. If it goes ahead, and then the UK decides it does not like the package on offer, where would it leave us if we have established a structure for all of Europe in the UK?

Photo of Eric ByrneEric Byrne (Dublin South Central, Labour)
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I have great problems with this issue, which we have been debating for a while. It is almost a fog, an if-and-but situation being repeated constantly. Although some people have told us there will definitely be a referendum, we do not know if there will be because the Prime Minister, David Cameron, must get an overall majority. We have been examining whether it is possible. The politicians in Northern Ireland will have a role, particularly the Unionists, given that Sinn Féin, as eurosceptics, will presumably opt out of the debate. Maybe Sinn Féin might opt in, for the first time, in addressing a very serious issue in the European context. There is also a potential role for Scotland. It is very difficult to address the implications of England opting out of Europe. Is it possible to bring the UK out of Europe? What, precisely, are the reforms?

The process would take years. First, Mr. Cameron would have to win an overall majority in the election, after which some sort of negotiations could start. Presumably, it would take years for the British Parliament to debate the exact reforms they are seeking. Then, there would be a long debate in Europe on whether or not it is possible. If the EU concedes, the unravelling or opting out would take years. I do not want to be disrespectful to anybody. We have regular representation from the British Embassy at these meetings. The British ambassador might convey to Mr. Cameron that the committee had deliberated on the issue and that speaker after speaker after speaker had pointed out that the negative effects for Great Britain and Ireland would be so damning that Mr. Cameron should review his position.

Situations have evolved recently. Ireland was way ahead of the British when we extended employment rights to citizens of Romania and Bulgaria, and the British went ballistic about these so-called "welfare tourists". We saw what happened at the airports when they were all coming for work. The Irish Government has just created 70,000 new Irish from 160 countries in the world. It is widely accepted internationally that immigrants are incredibly productive and involved in seeking employment and that they do not come to sponge on the welfare system. Switzerland recently held a referendum on immigration and passed a law to restrict immigration using quotas. Since then, they have realised it is not operable. Would it be worth reminding the British of this?

The Acting Chairman mentioned the House of Lords, for which I have great respect, and this provoked me into thinking that it does an extremely good job of analysing the EU process. Maybe, at the end of the whole set of debates, we should engage with the House of Lords on the issue. Of all the intellectuals and business people who have come here to discuss this, not one has predicted a positive outcome from what the UK intends to do. I would like us to compile all our documentation and go to the House of Lords and engage with them, or invite them here to engage with us. We must engage with them in order to achieve clarity at the end of this debate.

Photo of Aideen HaydenAideen Hayden (Labour)
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I will go back to basics. The word "Schengen" is tossed around a lot, and although I thought I understood it, having listened to Professor Maher, I realise I do not. Professor Maher said the Schengen accord removes internal borders and establishes a common external frontier and, thus, common visa, asylum and immigration policies. The reason the UK would not consider entering Schengen was the immigration aspect of it. Given that I am not an expert in European law, protocol 21 is new to me. From both presentations, it appears that it covers many of the areas that Schengen covers. Both Ireland and the UK have a right to opt into it and the UK has opted into a number of the areas. Immigration remains the area that seems to cause the UK the most difficulty. Am I correct?

Mr. Eugene Regan:


Photo of Aideen HaydenAideen Hayden (Labour)
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Good. It is complex from a legal perspective. I have a nerdy question. In the section of her paper on opting in or opting out, Professor Maher said, "The reason for this opt-out for Ireland seems to have been driven by concerns about the integrity of the common law system and differences with the civil law traditions dominant in other member states and by the fact the UK was going to opt out". Anybody listening to this on television would wonder what Professor Maher meant by it. Both witnesses mentioned the issue of civil and common law jurisdictions and suggested that, given that both Ireland and the UK are common law countries, we should remain together in a common law bloc. Did I understand this correctly? Could the witnesses be more specific on why is it important? Mr. Regan made a point that any change to the existing system would have implications for commercial law. This would not have occurred to me. Could he expand on it?

My final question relates to the changing security situation that Europe is facing, particularly from Islamic State.

Is it possible that the greater security challenge we are facing will have an impact on how Britain treats the negotiations on the common travel area and border control issues?

Photo of Kathryn ReillyKathryn Reilly (Sinn Fein)
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Professor Maher suggested that a mini Schengen arrangement might be the best option for the UK and Ireland should the UK leave the EU. What would such an agreement look like, and would it affect measures such as the joint visa arrangements agreed between Ireland and the UK in 2014 to allow visitors from long haul markets such as China and India to move freely between the two jurisdictions? In David Cameron's speech in January 2013, he discussed the possibility of a new treaty for Europe. What kind of treaty could that be, taking account of what the UK wants?

My final question is not linked to British exit from the EU but I would like to hear witnesses' opinions on it none the less. Some time ago I read an article outlining the potential for a British exit from the European Court of Human Rights, ECHR. What would be the potential for a British exit from the EU and the ECHR?

Photo of Derek KeatingDerek Keating (Dublin Mid West, Fine Gael)
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I welcome the witnesses and apologise for my late arrival to the meeting.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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There were interesting comments all around. In regard to protocols, the people who drew them up in the first place did not intend to make it easy to either exit from or opt into them. Opting out after opting in is obviously a very complicated process. The area of policing and criminal law is hugely complicated and it could waste a considerable amount of European time.

A new European structure will emerge in the event of an exit. It could change irrevocably the entire European architecture, based as it is on provisions made in the past, the expectations at the foundation of the European Union and, in particular, the expectations of the founding fathers of the European Union. It would virtually impossible to reconstruct Europe if one country were to opt out, possibly followed by other countries.

Several members referred to the existence of euroscepticism. The committee is examining that issue separately to understand the real reasons for it, and not simply the reasons that happen to be convenient at any particular time. It remains to be seen how that issue can be addressed but, like other issues, it will have huge implications for the European Union.

Taking into account the protocols and the issue of policing and criminal law, the creation of a new border in the event of the UK opting out will have serious implications for trade and travel. It has been suggested that Ireland could also opt out. I shudder to think of some of the ideas that have been put forward as reasonable. They are not reasonable. Sadly, this debate is taking place against the backdrop of a serious economic downturn across Europe. The discussions that take place in that sort of environment are not necessarily the best in terms of long-term planning. Europe has a tragic history in that regard and all of us should do what we can to avoid reaping that whirlwind.

Mr. Eugene Regan:

I will begin, and if I miss any points I ask members to come back to me. On the question of the Six Counties and the implications of having a border with the free trade area, a British exit would require provision to be made for a common travel area, but it might be a difficult task to maintain it in that new context. In regard to the unified patent court and where its institutions are to be located, the best answer is that the European police training college was supposed to be located in the United Kingdom but I understand that is no longer being proposed. That may a fallout from the furore that has emerged in the area of justice, policing and criminal law.

In regard to Deputy Byrne's comments on the general election in the UK, of course it is a theoretical question, and the issue will only crystallise after the election. There is also a Scottish dimension. There might be another referendum in Scotland should the United Kingdom exit the EU. There is no clear indication as to what the UK Government wants, but David Cameron has at times indicated that out of the four freedoms, he wants to make changes in regard to the free movement of labour and people. Other countries have a problem with such changes because the relevant provisions were embedded in the European Union from its outset. It is also important for Ireland and Irish people living in the UK that there be no impediment to free movement. The focus has turned to the notion of welfare tourism and the benefits attributed to workers when they move between member states. Angela Merkel indicated that she was open to considering measures in that regard. This type of response may help to defuse many of the issues that have arisen.

Schengen is a tricky area. It was Tony Blair who decided that the UK should be seen to be more positive towards Europe at a particular point in time and, while not opting into Schengen, the UK opted into the policing and criminal law provisions of Schengen. We followed suit. Schengen was brought into the European Union under the Maastricht treaty, but there remains a set of Schengen measures in criminal law and policing - please do not ask me to list them - which we have opted into without also opting into other normal post-Lisbon treaty measures on criminal law. It is a very complex area. We have opted into that aspect of the Schengen Agreement but not into the free movement aspects.

In regard to the impact of changing security provisions on the debate about co-operation on criminal law, we have seen that time and again.

The Olympic Games massacre gave rise to the setting up by the member states of the TREVI group, which attempted to exchange information and have countries work together in this area. The 9-11 attacks resulted in the adoption of the European Arrest Warrant. The warrant worked effectively in the more recent London bombings to extradite the responsible parties from Italy, and they were convicted in the UK. Those types of thing do change. Denmark is looking at the exercise of a protocol similar to Ireland, and the recent terrorist acts in the country may have an impact on that. That always has an impact. The criminal justice area and the EAW are not the real concern about the Union in the UK. Some changes are needed and those concerns could be assuaged. Free movement, immigration and what is termed "welfare tourism" are the kernel of the concern.

There was a question about the European Court of Human Rights. In many ways, the issues that have given rise to concerns and adverse political comment in respect of Europe have concerned ECHR judgments in Strasbourg rather than the European Court of Justice in Luxembourg.

Professor Imelda Maher:

I read something Professor David Phinnemore, professor of European politics at Queens University, Belfast, wrote in anticipation of such a question. He points out that 25% of Northern Ireland's non-UK trade is with Ireland. We have been talking a great deal about people, but the customs question is also important. He also notes the dividend from the peace agreements. A total of €150 million in grants will be given to Northern Ireland by the EU between 2014 and 2020. I suspect, given the Deputy's comment about how long all this will take, that this money will be spent before the UK has left the EU, but it is still a sizeable sum. There is also the issue of cross-Border workers. Many people move between North and South and there is significant commercial activity around the Border. Professor Phinnemore's concern is that there is not enough discussion about the Northern Irish dimension in the Great Britain debate because it is so small relative to the rest of the UK. Nonetheless, that raises issues, particularly in Ireland.

The other context that ties into that is the negotiations around TTIP and CETA. The free trade agreements with the US and Canada need to be factored into the trade and commercial aspect of this debate.

There will be a referendum, but there are two kinds of referendum on Europe in the UK context. One is the political promise by the current Prime Minister to hold a referendum should he be elected following the next election, and that is what is focusing the mind. That is the Brexit dimension, with which we are concerned. However, there is also the EU Act from 2011, which guarantees a referendum in the event of substantial treaty change in the Union. Mr. Cameron has been doing his best to avoid getting embroiled with that legislation, but that avoidance can only last for so long. That is not particular to the current government; it would have to be dealt with by any government. At some point, the UK will have to bite the bullet on that. That legislation is complicated, with lists of items that have to be included in order to decide, but it will trigger a referendum at some point. I hope that is clear enough.

With regard to the patent court, location can shift. I hope that is not complicated. I had not realised they were going to be there.

We are cognisant of the idea of the weakening of relations across the UK and the disintegrating union after the Scottish referendum, and this needs to be factored in, especially if Scotland votes "Yes". Professor Sionaidh Douglas-Scott, a Scottish national based in Oxford, has written about this and reflected on it considerably. It might be necessary to talk to the Scots as well as to the House of Lords.

The Deputy's point about this taking years is important, and my advice to the committee would be not to let it take years and years. Ireland has a particular voice to present in the EU context should the UK vote to exit and one of the statements Ireland will want to make is that Article 50 should not drag on, so that the exit takes too long, because it will pay a higher price for a delay than any other country. That is a fair comment to make in this context.

Photo of Eric ByrneEric Byrne (Dublin South Central, Labour)
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There was a suggestion, which I ran with, that business needs certainty for investment in England. If the exit was to take the time I expect, would it further damage British independence?

Professor Imelda Maher:

Business dislikes uncertainty, and most people dislike circumstances of uncertainty politically.

Photo of Eric ByrneEric Byrne (Dublin South Central, Labour)
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Should Ireland benefit from that uncertainty?

Professor Imelda Maher:

The question for me, then, as an academic lawyer, is what the role of law is at times of uncertainty. It is twofold. One is to create a framework within which decisions can be prepared for. If there is a referendum, we will all know that there will be one in due course. There is a fog, but the committee is attempting even within this context to clarify what are the parameters of the fog and how far it spreads. We can, therefore, put a framework around the questions we need to address. Certain preparatory work can be put in place to address that. The paradox for law is that the other thing it must provide is flexibility, because there has to be a sense in which the framework is sufficient to lay down parameters but not so rigid and tight that there cannot be flexibility to respond to the concerns around uncertainty that will emerge, and that we cannot predict.

Photo of Eric ByrneEric Byrne (Dublin South Central, Labour)
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Are there lessons to be learned from the Swiss decision to introduce quotas for immigrants? Can the UK can learn from the abandonment of the quotas?

Professor Imelda Maher:

I was aware that the Swiss had a successful referendum and that this would have implications for relations with the EU. I do not know what those implications are. The Union cannot ignore a democratic vote. I am not sure how it will play out domestically in the Swiss context. One would hope that the UK will learn from this. The relationship is complex. One cannot operate exclusively within a domestic context because we are interdependent, and that has to be factored in. One of the dilemmas in the debate in the UK is the inability to embrace that interdependency beyond the UK.

The question of common law and civil law is one of the first things a common law student learns. What I hear in the Deputy's question in part is a question about whether we, as common lawyers, are being precious. I have sympathy for that view but, on the other hand, a basic example of how they differ is that judges in many civil law countries are civil servants and, therefore, their entire status and their relationship with the state is different from what it is in the common law system, under which there is no question that they are in any way integrated into the administrative structures of the state in that way. That is a fundamental distinction, and that is why, as I understand it, Ireland did not sign up for the European Investigation Order - because it would have allowed for direct contact between judges, which would not be appropriate at all and which would be incoherent in a common law system. We should not overplay the card, as my colleague suggested, but, none the less, there are moments at which the differences are profound, and we need to be mindful of that.

I was asked what a mini Schengen agreement would look like. The MOU on the visa that has come in is a big step towards that.

The common travel area had no law at all for a while. Sometimes it is a good thing to have no law and one does not always have to have rules. Helpful guidelines that allow for great flexibility can be perfectly satisfactory. However, the moment comes when these things have to be reviewed and politics dictate a need for greater certainty. In respect of the CTA, that moment has arrived.

The ECHR is mentioned in the Good Friday Agreement. If the UK walks away from the ECHR there is a very serious problem to be addressed.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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There are a couple of other issues. The Professor has just touched on the implications for the Good Friday Agreement and another question is on the possibility of dual citizenshipvis-à-visNorthern Ireland.

A couple of other things come to mind. I remember being in Brussels at a meeting just before the economic downturn really hit. Many economic and legal experts were there and there were predictions of doom and gloom all around the place. As a nation, we were being blamed for a lot of the woes that had befallen the entire EU, though there were other people who blamed the European Union for all the woes that had fallen on Ireland. Some things do not change. It was pointed out that the real problem was the inflexibility of the European Central Bank vis-à-visexchange rates in a context where no country could devalue. There was a theory that the euro was overvalued, which it probably was at the time, but it was also said that each member state had no control. This was not true because they could have introduced currency controls at any time they wanted. The theory opposing that was based on the belief that to do so in a particular way would cause an implosion but that did not happen. We have currency controls now, as well as a reduction in the value of the euro so all those issues should appear resolved.

The fundamental problem for the future of the EU is the degree to which individual member states seem to look at themselves and see that the Union is no longer in accord with their views and ambitions. The question then arises as to whether their ambitions are in accord with the Union. The conclusion they come to is that a loose economic arrangement is the ideal scenario for the future. However, they forget that such a thing existed before the EU and it was deemed not to have worked.

No matter which way we look at this situation it is not a good place to be. There are serious implications for Ireland, for Britain and for the EU. It behoves all of us to apply ourselves to identify how the issues that are causing the concern can best be resolved. The founding fathers of the EU had a different vision altogether and they were clear as to what they wanted. They had history close to their elbow when they made their decisions and that was a very convincing factor for people at the time. Perhaps Professor Maher would address that.

Professor Imelda Maher:

That is a significant question. The EU is often compared to a bicycle as it has to keep going or it will fall over. I dislike this analogy as it suggests it is more fragile than it really is. The EU is a more robust organisation than it is given credit for. That does not mean it cannot change and, as the Chairman has said, it has changed radically.

I note the Chairman's reference to the founding fathers. They wanted a European political community but they failed to get it as they could not get it past the French. Instead they ended up with the European Economic Community. The EEC was a compromise at the time but we now see it as a success and often the compromises we have to make are an indicator of success, especially so in the context of so many member states having to work together.

Mr. Eugene Regan:

There was a question on the difference between the common law and civil law systems. I will not go into too much detail on this, but some examples include the admissibility of evidence; availability of bail, which is an important matter in connection with the European arrest warrant with the UK; and administrative penalties. There is an administrative court system in many member states but we generally have criminal penalties instead of administrative penalties. We also do not have prosecuting judges here. All of these things were considered fundamental problems but the reality is that where we have not opted into a measure we are likely to opt into after the event. Such problems can be resolved and the Commission has usually found a way to accommodate the common law system. That is why I consider the opt-out is not really necessary.

Since our entry in 1973, Europe has displayed a remarkable ability to resolve what appear to be intractable problems. The most obvious one recently, and I accept that it has not yet been fully resolved, is the euro crisis, where progress is being made. There have been many debates in Europe on a lot of difficult issues but the outcomes have demonstrated that different interests can work together. The cohesion of the European Union is remarkable and I suspect it will find an imaginative solution to the issue of the threatened UK withdrawal. In my opinion, the matter will be resolved with a solution that stops short of the withdrawal of Britain from the European Union.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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The committee will soon meet with Mr. Bill Cash, MP, who has an interest in these matters and is not known for his support of the European institutions. The committee will also be meeting Baroness Quin and Mr. Brendan Halligan in the next couple of weeks. On Tuesday 3 March, the Irish ambassador to Great Britain, Mr. Dan Mulhall, will meet members of the UK House of Lords for lunch. It should be interesting as he has a particular grasp of the issues, as have the members of the House of Lords who generally have been more supportive of the European Union institutions than has the House of Commons.

I thank the witnesses for their very interesting submission. We always like to rely on the legal advice in these situations because we can always go back and say we heard it from you.

The joint committee went into private session at 3.20 p.m. and adjourned at 3.25 p.m. until 2.30 p.m. on Thursday, 5 March 2015.