Review backs Ireland’s EU justice ‘opt-in’
The Government has accepted the two main recommendations of a Department of Justice review of an opt-in protocol on EU justice issues that is part of the Lisbon Treaty.
The review has recommended that Ireland should continue to be covered by Protocol 21, which enables it to opt into measures that relate to the area of freedom, security, and justice on a case-by-case basis.
The , published by Minister for Justice Jim O’Callaghan yesterday (26 May), also recommends “greater adherence” to an undertaking given at the time of the negotiation of the protocol by Ireland to participate “to the maximum extent possible” in all measures covered by the protocol.
National interests
The review also recommends other measures that the department should consider further – including participating in all EU justice and home-affairs measures by default, opting out only where “concrete and well-defined national interests” are at stake.
It also recommends a “comprehensive, retrospective review” of all Protocol 21-related measures in which Ireland does not participate to determine whether it can accede to these measures or not.
The report also urges the Government to consider mirroring in domestic legislation any EU measures that it has not opted into due to administrative constraints.
It also calls for Ireland to look at the possibility of joining the European Public Prosecutor’s Office and to explore the creation of a specialised body to facilitate the processing of mutual-assistance and mutual-recognition requests in a more efficient way.
Common law
The report points out that, from Ireland’s perspective, the protocol “has served and continues to serve” two overarching policy functions:
- Helping to maintain the Common Travel Area (CTA) with Britain, and
- Protecting key features of Ireland’s distinctive common law.
Minister O’Callaghan said that Ireland was committed to continuing to work with its EU partners to protect and enhance the “many benefits” the EU had brought in freedom, security, and justice.
“That said, we have some unique defining characteristics as a member state. Our membership of a Common Travel Area with the UK and our common-law legal system are chief amongst these, and protecting these is essential,” he stated.
Since Brexit, the protocol now applies only to Ireland, although Denmark has a separate protocol, under which it opts out of all EU legal instruments linked to the justice area.
High score for police measures
The review finds that Ireland has opted into the measures relating to police co-operation and judicial co-operation in civil matters at a relatively high rate (almost or a little over 70% in both instances).
The rate for measures linked to judicial co-operation in criminal matters is slightly lower (60%), while the rate for measures relating to asylum and immigration is just 28%.
The report says that the relatively low level of participation for migration issues may have reflected concerns about the maintenance of the CTA.
“However, current EU developments have somewhat changed that policy calculation, and Ireland’s decision to opt into the Migration and Asylum Pact will significantly alter the above calculation,” it states.