Where’s the Justice in That?

 

Everyone is fairly used to the EU being involved in more and more areas of their lives from consumer protection to competition policy to the environment. Most of this legislation is based on historical powers or competences related to the development of a single market for goods and services. However since Lisbon the EU is now involved in a whole host of what many may see as even more sensitive decisions in the fields of Justice and Home Affairs. For years these areas were known in Euro jargon as “The Third Pillar” with the core of Europe being the first pillar of social and economic policies and the second security and defence policy. While the ultra sensitive area of security and defence remains effectively subject to unanimity a huge slew of policies in the area of Justice and Home Affairs have been, since the Lisbon Treaty, subject to Qualified Majority Voting by member states with the Commission proposing laws and an equal say for the European Parliament.

This is important stuff affecting a huge amount of our ordinary lives. The EU and most notably the Commission have been busy beavering away on a whole host of directives and regulations since these new arrangements came in to force. The Irish Government would, with some justification, say that Ireland and the UK have an opt out from measures in this area and this is true. Indeed one Commission insider described it as a fantastic piece of negotiation, but what exactly is on the way and what is it we want to opt out of and why?

The basic idea of EU action in this area is the desire to create an area of “Freedom, Security and Justice” a concept going back to the Treaty of Amsterdam in 1996. The EU has long felt that areas such as organised crime, terrorism, illegal immigration, drug smuggling and human trafficking needed a coherent cross border approach. This is seen as a natural balance to the freedom of movement the EU has long guaranteed. In the run up to Lisbon and the previous constitutional treaty there was some debate about Justice and Home Affairs but generally this important area receives little public attention (a notable exception was a debate at the now defunct National Forum on Europe in 2005).

Vivienne Reading is the EU Commissioner in the area and she is responsible for a full legislative programme covering a vast area of policies ranging over the right to a lawyer, European Arrest Warrants, the right to a translator for accused persons and much more. Since Lisbon the EU Parliament also has a say and the Council of Ministers must also vote on any proposal. While areas like immigration and visas are arguably recognised as well established at the EU level it is areas such as the criminal law that might surprise people in terms of some of the proposals coming forward. The Lisbon treaty provided for the extension of majority voting to, Union-wide recognition of judgments and judicial decisions; preventing and settling conflicts of jurisdiction between Member States; and facilitating cooperation between judicial and equivalent authorities in relation to criminal proceedings and en­forcement of decisions.

So Ireland can opt out or indeed opt in at any time which can be useful. Ireland stated at the time of Lisbon that it wanted to opt in but the day to day picture is somewhat different. In reality the UK is the heavy hitter in terms of negotiations and dangling the remote possibility that it would cede anything in this highly sensitive area.

The European Arrest Warrant was a major development in this field and has created significant interest due to the Du Plantier case (due to French law allowing for extra territorial prosecution). Other measures have been introduced since to in many ways try and balance this rather egregious provision. Many of these seem to make complete sense such as the right of an accused to translation. Maybe one of the more basic and simpler ones on the agenda is the right to access a lawyer, but maybe it’s not so simple.

Here again it seems Ireland may opt out. This appears, like a lot in this area, to be due to differences in the respective systems in different countries and when the presence of lawyer becomes necessary. However it may seem odd to many people that Ireland is effectively against such a right in the EU. This surely is the problem; little of these extremely important and arguably cutting edge issues receive very much attention in Ireland at all. It could even be argued some of the issues at stake are as important as the economic debates we are having at the moment as they concern our individual liberties and freedoms. So whether it’s the media or Government would it be too much to expect somebody to please start talking about all of this?