The Government faces an important decision tomorrow on whether to accept an opt-out along with the UK from justice provisions of the new European Union reform treaty. A summit next week will complete negotiation of the treaty, in which proposals to pool more sovereignty on cross-border crime, terrorism and immigration loom large.
The case for opting out is made to preserve the common travel area between Ireland and Britain and to protect the integrity of the common law legal system shared by the two countries. Regrettably, it appears the Government is set to accept these arguments. The case for opting in underlines the political dangers of losing influence in the EU by being indelibly associated with eurosceptic UK in a field of growing importance which Ireland would lose the opportunity to shape.
Three separate issues are involved: the Schengen system of free movement, the EU's justice and home affairs legislation and the role of the European Court of Justice. The Schengen system of passport-free travel has been developed to facilitate free movement and has worked very effectively. But because the UK refuses to participate the case for Ireland's exemption still makes sense in human and legal terms given the separate common travel area between Britain and Ireland. Schengen is now likely to be developed further, and those involved are unwilling to concede further flexible opt-outs to Britain for fear that the whole system could be undermined. So there will be an increasing cost for not participating in and influencing the system as it develops.
The same principle applies even more so to the whole field of justice and home affairs. Growing international terrorism, cross-border crime such as drugs and people-trafficking, and immigration have pushed the EU into developing policies and structures capable of jointly managing these issues.
The treaty introduces more majority voting on them and foresees substantial future policy development, which has widespread popular support. The political case for participating fully in this process is strong. It would allow Ireland help frame such policies, going along with the mainstream in doing so, and being able to preserve existing benefits of their application.
The legal case against this is weak, although it draws on conventional thinking in the Department of Justice, the Attorney General's office and the legal profession. Sufficient means to protect individual rights are available through European law if the will is there.
A similar political argument applies to the role of the European Court of Justice. The treaty gives it jurisdiction over police and judicial co-operation in criminal matters, but not over measures adopted before it enters into force. Britain will be allowed opt out permanently from such measures, but Ireland is not offered that concession.
It would be politically dangerous for Ireland to go along with the justice and home affairs opt-out because this would reduce Irish influence in the developing EU mainstream. Ireland's political independence from Britain has been reinforced by EU membership and should not be jeopardised by an unnecessary and undesirable exclusion.