Eamon Gilmore (Dún Laoghaire, Labour)

The finalisation at long last of an agreed text for the reform treaty, an important statement of policies and principles for the future of the European Union and the operation of its institutions, is welcome. The Labour Party intends to support the treaty and campaign for a "Yes" vote in the referendum which must be held before Ireland can ratify the treaty. I welcome the Taoiseach's commitment earlier today that the Government will consult the Opposition parties on the manner in which the referendum campaign will be organised and presented to the people. I agree with Deputy Kenny that it is not desirable that Ireland should become the focus for over-anxious people from outside the State during the referendum campaign. I refer to persons who support the treaty and those opposed to it. Irish people will want to decide on the treaty and the referendum without outside interference. We should try to take up a minimum number of the offers of assistance we will undoubtedly receive during the campaign, even if they are welcome and well intended. We do not want the referendum campaign to become a battleground for people who do not have an opportunity to vote on the treaty in their own countries.

While the reform treaty has some deficiencies in terms of its accessibility to the ordinary citizen, it has clear and worthy objectives. It seeks to give legal status to the Charter of Fundamental Rights and to overhaul the European Union's institutions in a manner that will provide effective operating mechanisms for the enlarged Union. It is aimed at enhancing the capacity of the Union to counter cross-border crime, particularly crime relating to drugs, money laundering, trafficking in people and terrorism. It seeks to strengthen the Union's capacity to promote employment, innovation and social cohesion and looks specifically to future challenges and opportunities. It provides for joint policies to end global warming and establishes broadly based policies aimed at ending global poverty. It seeks to strengthen the Union's contribution to international peace, stability and crisis management. It restates the core values and objectives of the Union, including the commitment to peace and universal human rights, the Charter of the United Nations, full employment, the social market economy and public services.

The role of national parliaments in the application of subsidiarity is reinforced and a new citizens' initiative on participation is proposed to enhance transparency and citizen participation. The reform treaty does not transfer new swathes of power from the member states to the European Union, but sets out to make the Union more democratic and simplify its procedures. The powers of the European Union remain limited to those conferred on it by member states to attain objectives which they have in common. The change in balance and focus which is in prospect for the Union is enormous and underpins the various institutional changes being made by the treaty. The enlarged Union will have a new centre of gravity in geographical, cultural and economic terms. As disparities of income and development will be sharper, the concept of cohesion will need to be defined afresh. Community policy and the budget will have to be reshaped and there are likely to be new issues which have not yet been foreseen.

The history of the European Union stretching back to the old EEC is one of a succession of changing circumstances and coping with enormous challenges. I refer to the challenges of making structural changes to the shape of agriculture and heavy industries such as coal and steel in the original European Economic Community. Development and regional issues arose with the accession of states such as Ireland, Portugal, Spain and Greece. The Union has developed projects such as Social Europe and the Single Market. There was the enormous ambition of establishing a single currency. The Community did not flinch from such huge projects and succeeded. Such successes, however, should not blind us to the enormity of the next project, even if they raise expectations in the new member states. The sheer scale of enlargement that has been accomplished, combined with the level of integration established within the existing Union, makes for a far more complex agenda. There are likely to be new issues as yet unforeseen. There will of course be new opportunities, whether in trade and commerce, social intercourse and cultural exchange, in this vast expansion. There is the gain of stabilisation and peace which is the point of it all in the end.

However, if Europe is to place more emphasis in its future deliberations on the management of situations in the foreign, security and defence areas, it is vital that those deliberations be founded on some level of principle as well as strategic interests. In my view, there is a simple and inviolable principle in respect of the war in Iraq. The war is wrong and Ireland was wrong to support it through the use of Shannon Airport. The war was wrong on grounds of international law, wrong on grounds of morality and wrong because it degenerated into an assault against the most basic principles of our common humanity.

If the massive economic entity which is the new Europe is to face the future with confidence, this entity must be able to develop relationships with the rest of the world which are based on principles of justice and respect. Europe stands between the neo-conservative impulses of some leading American policymakers, on the one hand, and the blind hatred of some in the Muslim world on the other. This is a potentially lethal mix, some of whose consequences we have already seen. Unless there are the beginnings of a new dialogue, unless strong security is accompanied by a commitment to justice and solidarity, unless the alienation of the Muslim world is recognised and understood, far worse consequences may lie ahead of us.

I wish to draw attention to one welcome and positive development, namely, that the charter of fundamental European rights will be legally binding. The European Union Charter of Fundamental Rights sets out in a single text, for the first time in the European Union's history, the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU. These rights are divided into six sections: dignity, freedoms, equality, solidarity, citizens' rights and justice. The rights of all to human dignity, to the integrity of the person, to protection from discrimination, to fair and just working conditions, these and many others are set out in the charter in clear and accessible language. Giving the charter legal effect in terms of principle is a fundamental step. Putting flesh on the bones of those principles and turning idealistic commitments into legislative and political action will take time and political will. Debate on the reform treaty, such as there has been over the past few weeks, has centred on the Irish opt-out in the so-called area of freedom, security and justice. However, this ignores the fact that the reform treaty, as we all know and recognise, is very much a repackaged version of the constitutional treaty of a couple of years ago.

The Government has long since published the form of wording it had proposed for a referendum on the constitutional treaty. That form of words allowed for no fewer than 17 areas where an Irish Government would have discretion to opt in or opt out of proposals for European laws, with the exercise of the discretion in every case being subject to the prior approval of both Houses of the Oireachtas.

Issues to be covered by the discretionary procedure at that time were to include: permanent structured co-operation in the area of defence; enhanced co-operation, including, in particular, enhanced co-operation in the criminal law area following the application of the emergency brake; the Schengen protocol and the UK-Ireland common travel area; the extension of qualified majority voting to common foreign and security policy, to the multi-annual financial framework, to areas of social policy, to areas of environment policy, to aspects of family law and to matters subject to enhanced co-operation which normally require unanimity; the extension of those areas of criminal law which can be the subject of EU legislation, including specifically the possible creation of a European public prosecutor; the general passerelle clause — the treaty provision that allows for matters at present subject to unanimity at the Council of Ministers to be in future governed by QMV; and the ratification of any simplified revision of the treaties.

Although the cross-references will be different because we are now dealing with a different text, I would presume that all these matters will remain for decision at national level as to whether we are to opt in or opt out and that the decision in each case will require the prior approval of the Houses of the Oireachtas.

Against that background, a general opt-out in the field of judicial co-operation, criminal matters and police co-operation, with a discretion to opt in to any specific proposal, to be decided on a case-by-case basis, is not a radical departure from what has gone before. The reality is that options and discretions have been part of our constitutional framework in dealing the European Union, its institutions and its laws since 1998. These options and discretions are important. The general rule is that nothing in our Constitution invalidates laws or measures originating in Brussels if they are necessitated by membership of the Union. However, the exercise of an option in an EU treaty is not necessitated by EU membership and, therefore, options and discretions would not be immune from constitutional review in our domestic courts.

A new procedure was therefore adopted for the Amsterdam and Nice treaties which provides that the State may decide to exercise an option available to it under the specific listed treaty articles. However, prior Oireachtas approval is required. The intention of the provision is that once an option is exercised, then laws and measures adopted in pursuance of that option are immune from review on domestic constitutional grounds. Oireachtas approval for the exercise of an option has the effect therefore of removing a particular subject matter from review by the courts on the grounds of unconstitutionality. Hence the importance that should attach to prior Oireachtas scrutiny. Hence also the importance we should attach to examining the effectiveness of our present scrutiny mechanism.

I recognise there has been a radical improvement in the range and quality of the research facilities available to Members of the House. These resources should be harnessed effectively to assist all Oireachtas committees in the matter of EU scrutiny. I intend to ask the Houses of the Oireachtas Commission to conduct or commission an audit of the resources available to Oireachtas Members and committees to assist in an informed, timely and substantial way in the process of scrutinising EU legislative proposals. It would be useful to conduct a comparative analysis by reference to the parliaments of some other member states, including the neighbouring jurisdiction with which we share a common parliamentary and legal tradition.

We would be dishonest if we claimed that our scrutiny procedures have been a resounding success. There is a serious need on the part of the Dáil and Seanad to ramp up our ability to scrutinise the EU, its institutions, its laws and the Government's position on these matters, including the cases in which the Government decides to opt in or opt out of proposals for EU laws in the area of justice and home affairs. It is the case that the Government has itself become a sort of mini-legislature and, subject to the passing of what it expects to be a cursory and very late in the day resolution by both Houses, has the ability to make changes in the law which are of major practical and constitutional significance.

The reform treaty proposes a major new role for national parliaments but I am not at all convinced we adequately discharge our existing role. We need to revisit and substantially improve our European scrutiny functions before taking on board the new agenda proposed by the reform treaty.

The area of criminal law is subject to opt-outs by both the Irish and British Governments for what seem to be understandable reasons. This does not mean that we will not co-operate in this area but rather that we have the choice of deciding, on a case-by-case basis, whether to opt in.

Title IV of the treaty contains a powerful statement of the EU's commitment to deal with cross-border crime. However, the measures proposed in the treaty must be judged within the context of the different criminal legal systems operating in Europe and the different constitutional traditions of the member states. All of us place great importance on our national Constitution. It is a comprehensive document and is the one law of the land that cannot be changed by legislators or by the Oireachtas; only the people may amend it.

The legal and constitutional principles of member states belong either to the common law tradition or to the civil or Roman law tradition. 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 and this is not possible, in general, in Ireland. Continental systems often allow for lengthy detention of persons for investigation and questioning and the principle of habeas corpus is not recognised. Many of the procedures that characterise continental systems would not be possible here without a major change to our Constitution.

All these practices of civil or Roman law are acceptable under the European Convention on Human Rights but are unconstitutional in Ireland. Ireland and the UK insist on adversarial procedures, on the separation of the functions of investigating, on the prosecuting and adjudicating of offences and on the principle that one can only be extradited to face a charge rather than for questioning in custody. This does not mean there is no room for co-operation, harmonisation and even operational initiatives under the aegis of the EU but it does mean we have a right to be cautious.

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 into or out of proposals in this area following decisions taken at national level.

This treaty was preceded by a draft constitutional treaty which was a more easily understood document. I echo the call made by my colleague, Deputy Joe Costello, that the Government should produce a user-friendly version of the treaty so people have a clear understanding of what is in it and are equipped for the debate which will take place rather than relying on the turgid textual reform treaty we have.

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