Colm Brophy (Dublin South West, Fine Gael) | Oireachtas source

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: Proposal for a Council Decision authorising Member States to sign, in the interest of the European Union, the Third Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, a copy of which was laid before Dáil Éireann on 4th December, 2025.

I thank the Leas-Cheann Comhairle and the House for facilitating this motion today. I welcome the opportunity to address the Dáil on Ireland's opt-in to an EU proposal for a Council decision authorising member states to sign, in the interest of the European Union, the third additional protocol to the European Convention on Mutual Legal Assistance in Criminal Matters. Ireland has an option, provided for in Article 3 of Protocol No. 21 annexed to the Treaty on the Functioning of the European Union, to opt in to individual proposals in the area of freedom, security and justice. Protocol No. 21 provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, with the three-month period for this proposal ending on 17 December 2025. Ireland can also accept a proposal at any time after it has been adopted, under Article 4 of Protocol No. 21, but in such cases, Ireland will not be in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration, appended to the EU treaties, of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

Opting in now under Article 3 emphasises Ireland’s commitment to strengthen the ability of states to respond effectively to crime by improving and supplementing the mutual assistance procedures set out in the European Convention on Mutual Assistance in Criminal Matters, as well as its first two additional protocols. The third additional protocol was drafted by the Council of Europe’s Committee of Experts on the Operation of European Conventions on Co-Operation in Criminal Matters, drawing on lessons from the Covid pandemic and the growing reliance on digital tools in international judicial co-operation. Member states, including Ireland, participated and contributed to its development.

The third additional protocol enhances the ability of member and partner states to tackle crime more effectively in a rapidly evolving political, social and technological landscape. It supplements the original convention and its first two protocols, adapting them to today’s challenges. Key improvements include the simplification and acceleration of mutual legal assistance procedures, a broader scope for requesting assistance, an expanded use of electronic communication and video conferencing, the authorisation of technical surveillance tools, and the introduction of time limits.

Ireland supports the third additional protocol and views it as a valuable instrument for strengthening mutual legal assistance in criminal matters. While further technical and policy work is necessitated before Ireland will be in a position to sign and ratify the measure, it is anticipated that Ireland will do so as soon as is practicable. The proposal seeks to authorise member states to sign the third additional protocol. In fact, it was already opened for signature at the Conference of Ministers of Justice in Valletta, Malta, in September of this year. Sixteen states signed, including Belgium, Germany, Greece, Lithuania, Luxembourg, Malta, Portugal, Romania and Sweden. In the circumstances in which many have already signed, member states have questioned the necessity for this Council decision and the Commission’s competence with respect to the measure. Member states have expressed significant concerns as to the approach taken by the Commission and the precedent this may create going forward. This issue will form the substance of negotiations as the measure is discussed in Brussels in the coming months. Ireland very much shares these concerns and, therefore, it is essential that we have a credible and influential voice at the table in these negotiations. This is best achieved by opting in now to the proposal under Article 3.

The Department of Justice, Home Affairs and Migration requested advice from the Office of the Attorney General regarding the implications of a proposed decision to opt in to this proposal. The Office of the Attorney General did not indicate any constitutional or legal impediment to an opt-in under Article 3 or Article 4 in the written advices, although the wider issue of the lack of clarity as to the Commission’s competence in exercising its powers with respect to this international agreement is raised. In this regard, Department of justice officials will continue to participate actively in the negotiations in Brussels on this and any other issues raised to ensure the final text of the Council decision works well for Ireland and the EU as a whole.

Criminal activities continue to evolve and are becoming increasingly cross-border in nature. The third additional protocol will support Council of Europe member states to combat crime by introducing several important updates aimed at modernising and streamlining mutual legal assistance procedures. Ireland has made a firm commitment to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible. Opting in to this proposal now will allow us to stay in step with our European partners in the criminal justice sphere and demonstrate our commitment to combating cross-border crime and fighting impunity. Furthermore, it will ensure that Ireland continues to build a strong, credible and influential voice among European partners. The Government has no hesitation in commending this motion to the House.

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