Convention on the Future of Europe/The Irish Times Debate: Arguments for and agaisnt extending the EU's reach into Irish law to include criminal justice.
NO says Minister for Justice Michael McDowell.
There has been a concerted campaign among a small but well-positioned group of integrationists to carve out for the EU a federal state's role in relation to criminal law.
The Corpus Juris project has for some years been advanced to that end.
Briefly, it would create an EU federal criminal law (at first instance restricted to crimes against the financial interests of the EU, but intended to cover other federal-type offences in the longer term) enforced by a European Public Prosecutor (EPP), in which citizens could be investigated, tried and imprisoned by non-jury courts established and administered along continental civil law lines. Ireland has strongly resisted this proposed criminal law competence for the EU.
In the present Convention, however, a less ambitious half-way house is now proposed.
The EPP is again being promoted by the integrationist minority but in isolation from the rest of the Corpus Juris agenda.
Instead, qualified majority voting (QMV) is proposed in relation to certain areas of substantive criminal law and in relation to certain aspects of criminal procedure.
In these areas, the integrationists propose that a qualified majority of member-states should have the power to oblige other member-states and their parliaments to adopt approximated criminal laws and procedures against their wishes. The common law states would not constitute a blocking minority.
Ireland has been opposed to the creation of a competence at EU level which would directly or indirectly lead us into the obligation to accept a criminal law and system of criminal procedure imposed on us from outside.
Instead, we have advocated closest co-operation between member-states in criminal law matters based on the principle that diverse legal systems should offer each other maximum mutual recognition and support.
We are willing to approximate our laws and to create co-operative mechanisms which are compatible with the continued right of the Irish people and parliament to decide the substance of our criminal law and procedure in accordance, of course, with our Constitution.
We are the only member-state of the EU in which individual citizens are guaranteed the constitutional right to due process, exclusion of illegally obtained evidence, to trial by jury in all non-minor cases, to fair bail, to the presumption of innocence, to habeas corpus, and the right to have any law invalidated in the courts which conflicts with his or her constitutional rights - and the right not to have these rights altered except by referendum.
The case for conferring on the EU a competence to oblige us to qualify these rights or to adopt criminal laws and procedures against our wishes is not merely weak - it is not supported by a majority of member-state governments nor called for by a majority of citizens in any member-state.
The fight against cross-border crime needs practical co-operation - not top-down uniformity for its own sake.
We adhere to the need for unanimity in Council decisions in core areas of criminal law and procedure not because we oppose co-operation and mutual support, but because we believe that whatever else the EU may become, it does not need to assume the powers of the member-states in these areas.
YES says barrister Eugene Regan. Should we extend the harmonisation of our criminal justice systems? With Ireland's crime figures showing an annual increase of 22 per cent, this country can surely benefit from cooperating with other EU member-states and adopting the best practices available in Europe in policing and the prosecution of crime.
It is surprising, therefore, that Michael McDowell, as Minister for Justice, is not more open to new ideas for combating crime emerging in Europe.
Most serious crime has an international dimension: be it drug trafficking, illegal immigration or child pornography. The elimination of internal borders throughout the EU has given an added urgency for a greater common effort in dealing with cross-border crime which cannot be tackled by member-states acting alone.
In these circumstances, if harmonisation of the criminal justice systems of EU member-states were considered necessary to achieve more effective policing and crime prevention, one might say why not proceed in this manner?
However, there are no proposals to have wholesale harmonisation of the criminal justice systems of member-states. The Minister for Justice has attempted, nevertheless, to present the issue in such misleading terms. What is emerging from the Convention on the Future of Europe is a modest set of proposals anchored on the principle of mutual recognition of, and mutual respect for, the different justice systems of member-states, rather than harmonisation. Put simply, it means that a decision taken by a court or other relevant authority in one member-state would be recognised and accepted by another member-state. It specifically does not require that all systems are the same.
For the principle of mutual recognition to be implemented effectively there must, however, be a meeting of minds. For example, what are the basic elements of the crimes which each member-state will recognise? Indeed, there is already agreement among all member-states, including Ireland, on the definition of and minimum penalties applicable to practically all forms of serious crime.
Such crimes are now catalogued either in the Europol Convention or the more recently adopted Framework Decisions on the Euro- arrest Warrant and Terrorist Offences, measures which have been endorsed and ratified by the Irish Government.
In addition, there are proposals for the adoption of minimum rules on the admissibility of evidence, the definition of the rights of individuals in criminal procedure in compliance with fundamental rights and on the rights of victims of crime.
These measures are designed to protect the rights of the individual citizen, which must be welcomed.
The adoption of such minimum rules would enhance the willingness of authorities in the different member-states, including Ireland, to more readily lend assistance to each other and to recognise judgments and other orders of their respective criminal courts.
Michael McDowell's objections to such measures are unsustainable. Member-states are agreed that these measures provide the key to more effective policing and prosecution of crime. It is strange that the Minister is alone in not seeing it that way, given Ireland's vital national interest in more effective measures to combat rising crime.
Eugene Regan is a barrister and editor of the Institute of European Affairs book on Cooperation against Crime in the European Union