Joe Costello (Dublin Central, Labour)

I am delighted the Government is now fully supportive of the charter as a legally binding document and will fully opt in to its provisions. This is welcome and a decisive and distinctive difference between the positions of the Irish and British Governments.

The most controversial area is the Title IV provisions on justice and home affairs matters, the area subject to opt-outs by the Irish and British Governments. Title IV contains a strong statement of the European Union's commitment to deal with cross-border crime. It lists such crimes as terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

Cross-border criminal activity has been a major threat to law and order in the Republic. Much of the burgeoning drugs and guns industry in Ireland is imported from Britain and the European mainland. Trafficking in women and children has a strong cross-border dimension. Only strong cross-border co-ordination and co-operation by the institutions and personnel of the criminal justice system can combat international organised crime. The measures proposed in the reform treaty seek to maximise police investigative and judicial co-operation. However, the measures proposed in the treaty must also be judged in the context of the different criminal legal systems operating in Europe and the different constitutional traditions of the member states.

Every member state has a national constitution, even the United Kingdom, although its constitution is largely unwritten. All of us place great importance on our national constitutions which have enormous and fundamental importance in our everyday lives and define sovereignty. This is equally true of the Irish Constitution which is a comprehensive document and the one law of the land that cannot be changed by legislators in the Oireachtas — only the people may amend it.

The legal and constitutional principles upon which the constitutions of member states are based vary significantly but, from the point of view of the detailed legal systems they enshrine or adopt, they fall into one or another of two camps — the common law tradition and the civil or Roman law tradition which prevails in continental Europe. There are other variations — Ireland has a written constitution while the United Kingdom does not; some EU states are highly federalised, while others are centralised, and so on. However, the Roman law-common law distinction is crucial and, in respect of the criminal code, very marked.

Among the key differences between the two traditions is the general availability in common law jurisdictions of jury trial and the absence of such general availability in civil law jurisdictions. Furthermore, evidence can be given in written form in most continental systems, something that in general is not possible in Ireland. Continental systems often allow for lengthy detention of persons for investigation and questioning and habeas corpus is not recognised. Many of the procedures that characterise continental systems would not be possible here without a major change to the Constitution. While this does not mean there is no room for co-operation, harmonisation and even operational initiatives under EU aegis, it means we have a right to be cautious.

The most innovative measure under this heading in the reform treaty is the proposal for a European public prosecutor with wide powers to investigate, prosecute and "bring to judgment". The draft Article 69 states the European prosecutor shall "exercise the functions of prosecutor in the competent courts of the member states" in regard to certain serious crimes. Clearly, the proposed office of public prosecutor would be difficult to square with the existing common law system in Britain, and even more difficult to square with the common law system in Ireland which has an extra constitutional dimension. Given that the jurisdiction of the European Union and its institutions in the area of criminal law is both ambitious and potentially expandable, it seems prudent to retain a discretion, as we have at present, to opt in or out of proposals in this area following decisions taken at national level.

The Labour Party has had several initiatives with regard to the exercise of certain options and discretion, including its initiative on the scrutiny Bill which was presented following the Nice treaty. I particularly emphasise the need to bolster and resource the power of scrutiny that resided in the Oireachtas Joint Committee on European Affairs. Unless we can demonstrate to the people that we will properly scrutinise the extra legislative developments taking place under these treaties, we will be severely criticised for not doing our duty properly. I ask the Minister to ensure the committee is re-established and that it will have the necessary resources, personnel and powers to carry out its job properly.

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