Brian Lenihan Jnr (Dublin West, Fianna Fail)

The new EU reform treaty is an important project for the European Union and Ireland. As Deputies will appreciate, Ireland has benefited substantially from its membership of the Union which has helped us to achieve significant economic success and prosperity.

The economic arguments deployed by Deputy Ó Snodaigh echo the claims made by similar political interests in 1972, when dire predictions were made about the future of the State in the European Economic Community but they were proved entirely groundless in 1972 and in the debates on the Single European Act in 1987 and the Maastricht treaty in 1992. Those who advance economic arguments against the European Union should look at the practical evidence of what has happened in this country since 1973. Our participation in the European Community has had a positive effect in terms of the way Irish people view themselves and contributed in a major way to our national self-confidence. It is, therefore, no surprise that we have consistently been enthusiastic supporters of the European Union.

The reform treaty is not in itself a new text. It is closely derived from the European Union constitution published in 2004. The main purpose of the constitution was to enable the Union to function better and face challenges more effectively. This was linked to the fact that the membership of the Union had increased to 27 members. It is due to increase further as other European countries seek to participate in this beneficial community.

The European Union originated from the Coal and Steel Community followed by economic union after 1957. At no stage has the extensive legal order created in this union been subject to requirements of fundamental rights. As a result of this treaty, a charter of rights will regulate the rights of citizens in the Community legal order. I consider this a significant improvement and something which Irish people should feel comfortable voting to support. While our own constitutional arrangements since 1937 have set out a basic code of fundamental rights, the Community legal order has been exempted. It is welcome in itself that the Community legal order will now have a charter of fundamental rights, although one which in no sense imposes fundamental rights within our domestic legal order. It is a parallel development.

Deputy Ó Snodaigh referred to the question of neutrality. When Eamon De Valera formulated the policy of neutrality for the State in the 1930s, he did so because the international machinery for co-operation had broken down. The League of Nations was unable to safeguard the rights of smaller states or ensure non-interference in peoples' rights of self-determination. The Defence Forces can now participate in European humanitarian efforts such as the protection of displaced persons and refugees in Chad and other parts of Africa. The argument that such involvement infringes neutrality in some sense would be incomprehensible to the people. It is untrue to allege the existence of some kind of sinister battle group. Our soldiers' performance of humanitarian tasks in a remote part of Chad is in the best traditions of the Defence Forces. I fail to see why the neutrality card should be played in every referendum in an attempt to trump this activity.

In a union of 27 or more members it is essential that improvements are made to the workings of the institutions. I have attended several Council meetings in recent years and the participation of a large number of member states represents a fundamental change to the character of the Community which has been overlooked in much of the domestic debate. The changes introduced in the reform treaty to facilitate speedier decision-making should be welcomed.

Justice and home affairs which falls within my area of responsibility is one of a number of topics addressed by the reform treaty. The way in which this topic is dealt with in the treaty has been the subject of some comment in the House, especially with regard to the proposed arrangements for Ireland. I am not certain these arrangements have been properly understood on all sides of the House and I would like to address them specifically in this discussion.

The reform treaty provides generally that decision-making in the field of justice and home affairs will be on the basis of qualified majority voting, QMV. This represents a major change from the current position on police and judicial co-operation in criminal matters where proposals must be adopted by unanimity. It is also important to note that QMV applies under existing EU treaties when it comes to initiatives pertaining to immigration, asylum and judicial co-operation in civil matters. However, under a separate protocol to the treaties, neither Ireland nor the United Kingdom is automatically bound by such measures and has the right to opt into them, either within three months of their introduction as proposals or at any time after they have been formally adopted. There are a number of significant reasons special arrangements currently operate for Ireland and the United Kingdom in respect of QMV instruments. These include the fact that both countries have a common law legal system which is substantially different from the legal systems in place in most EU member states. Additionally, the relevant arrangements are necessary to preserve the common travel area between Ireland and the United Kingdom.

I am sure Deputies will be interested in how the protocol for Ireland and the United Kingdom has operated in practice. I can confirm that Ireland has decided to participate in the vast majority of the measures where the protocol has applied. It has supported and been actively involved in the negotiation of instruments which improve the level of practical police and criminal co-operation throughout the European Union.

Under the provisions of the European constitution, decision-making by QMV was intended to become the norm for practically all justice and home affairs purposes. This would also have been the position for Ireland and the United Kingdom, although our current special arrangements for immigration, asylum and civil judicial co-operation would have been preserved. In the course of the negotiations on the reform treaty the United Kingdom indicated that, in order to safeguard the integrity of its common law system, it wished to have the opt-in arrangements provided for in the protocol extended to all justice and home affairs matters. This was accepted by the European Council at its meeting in June. Given that Ireland's legal system is similar to the United Kingdom's, the European Council afforded Ireland the same facility.

The Government has carefully considered the approach to be adopted by Ireland and considered the various options in detail. We have been concerned that Ireland should not be marginalised when it comes to EU developments. This is clearly an important issue for Ireland and one to which we have attached considerable weight. At the same time, however, we have had to take account of the fact that, when it comes to criminal law and procedure, important aspects of our legal system are different from those of the overwhelming majority of EU member states. This is not simply an academic point because it raises real and practical concerns for this country. For example, judicial involvement in the investigation of offences is extremely limited in Ireland, in accordance with the independent role of the Judiciary under the Constitution. This is not the case in most EU countries where judges participate actively in investigations and frequently decide whether criminal proceedings should be initiated, a function reserved for the Director of Public Prosecutions in Ireland.

A particular issue the Government has had to address is the fact that the United Kingdom has secured an extension of the opt-in arrangements for all justice and home affairs matters. This has had the result of significantly altering the landscape for Ireland when compared to the position that would have applied under the European constitution. The reality of QMV is that Ireland is a small country with a limited number of votes. Without the support of the United Kingdom, we could easily become isolated on proposals which could impact seriously on our legal system, with detrimental effects.

Our most important EU partner in regard to police and judicial co-operation in criminal matters is the United Kingdom. This is hardly surprising, given the unrestricted movement between our two countries by virtue of the common travel area. It is in Ireland's interests to ensure co-operation with the United Kingdom functions to the maximum extent possible, both from a practical point of view generally and to facilitate the operation of the common travel area.

An additional element to which the Government has given consideration is the provision in the reform treaty of an emergency brake to allow a member state to refer a matter to the European Council. The Government has obtained specific legal advice from the Attorney General regarding the emergency brake. His advice is to the effect that it is likely to be available in restricted circumstances only and that important areas of our legal system will not fall within its ambit. A further factor the Government recognized was that, given that the European Council would have to be involved, the number of occasions on which the emergency brake could be operated would almost certainly be very limited.

Having weighed the relevant factors, the Government has decided that it would be appropriate for Ireland to avail of the option provided by the European Council. However, it has also decided that, in keeping with our strong commitment to the European Union, Ireland should make a strong political declaration stating its firm intention to participate to the maximum extent possible in proposals concerning police and judicial co-operation in criminal matters. This declaration which will be published with the new treaty will also state the commitment on the part of Ireland will apply, in particular, to police co-operation. There is no indication that the United Kingdom intends to make a similar declaration.

The Government has also decided not to follow the United Kingdom in seeking special arrangements which could exempt us indefinitely from the application of the jurisdiction of the European Court of Justice in the field of justice and home affairs. Likewise, it has decided to join the protocol to the reform treaty on the application of the Charter of Fundamental Rights. It has also given a commitment that it will review the operation of Ireland's justice and home affairs arrangements after a period of three years. This review would provide an opportunity to assess the impact the measures have had and whether changes might be required.

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