UPDATED: The European Scrutiny Committee is Ill-Informed on European Criminal Justice

This post was originally published under the title “The Oireachtas is Ill-Informed on European Criminal Justice”. For reasons explained in the afterword below, the title has been changed to the present one.

This week the Oireachtas announced, with some fanfare, a report on Police and Judicial Co-operation and the Fight Against Cross-Border Crime. The report manages the ignominious feat of being both forward-looking and dated at the same time. Drafted between May and December of this year, it seeks to provide a summary of EU criminal justice co-operation to date, an overview of Ireland’s role in that co-operation and some recommendations for the future. The report is to be congratulated for highlighting the somewhat hypocritical stance Ireland takes in relation to EU criminal justice – whereby the state is often at the forefront of action to deepen co-operation while only opting into measures on a selective basis. Its conclusion that Ireland should co-operate in a positive fashion with EU criminal justice while protecting the integrity of the state’s legal system is also broadly welcome. However, there the praise must end and the questions begin. The first notable peculiarity is the report’s somewhat bizarre language. It refers to the “indigenous legal system” and the “life-frame of the Stockholm Programme”. The European Arrest Warrant is referred to as the “warrant pan European”. Most unusual is the term “cyclical throwback” which sounds like it belongs in a baseball playbook rather than a parliamentary report. EU law is difficult enough to grapple with without commentators coining obscure neologisms. The report’s use of archaic jargon and the odd Latin idiom merely adds unnecessary confusion to its already complicated subject matter.

The report is woefully out of date despite its purported focus on future co-operation. A key example – EU legislation on the rights of defence – demonstrates the point. The report notes that the Commission proposed a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union. It comments that this proposal is “yet to be adopted” – implying that the proposal might be adopted in the future. This, however, cannot be the case as the Lisbon Treaty retired the framework decision as a form of legislation and in any event a separate programme of legislation has been proposed on this subject. There is no mention of the Roadmap adopted by the European Council in November 2009 to replace the proposed framework decision. The report does mention translation rights and makes reference to a “draft Directive” which will “have to be voted by the Council of Ministers as part of the ordinary legislative procedure”. While awareness of the new law-making process is of course welcome, the report is ignorant of the fact that the Directive on the right to interpretation and translation in criminal proceedings was adopted and published on 20 October 2010.

Other areas of the report also provide a selective history. The section on Irish reticence to become further involved in the Schengen arrangements raises the spectre of border checks between North and South without any mention of the attempt by the British government to end the common travel area last year. The report discusses and indeed labours Ireland’s involvement in  the European Arrest Warrant – the first operational measure of note adopted in EU justice and home affairs. However, there is no discussion of Ireland’s decision to opt-in to the Directive on the right to interpretation and translation or to opt-in to the proposed Directive on combating sexual exploitation. Nor is there any mention of the proposed European Investigation Order, or the agreed but not yet adopted Directive on human trafficking (to which Ireland has also opted-in). The ommission of any discussion of these measures render the report quite dated as an exploration of Ireland’s involvement in EU criminal justice.

These flaws should not just be of concern for anoraks. A Protocol to the Lisbon Treaty seeks to ensure that fundamental principles of Irish law are not adversely affected by EU criminal justice. The protection afforded by the Protocol is dependant on the Dáil and Seanad being able to scrutinise proposed EU criminal justice measures – especially if Ireland opts into them. Effective scrutiny requires Deputies and Senators to have up to date and accessible analysis of proposed laws. The Joint Committee on European Scrutiny is therefore to be commended for turning its attention to the important matter of EU criminal justice. Nonetheless,  a press release about criminals fleeing to sunnier climes is little more than populist pandering if the report it heralds is a jargon-riddled document that is out of date even before it is published.

Afterword: Private correspondence in response to this post has highlighted the need to distinguish in this case between the European Scrutiny Committee and the Oireachtas as a whole. Scrutiny of EU criminal justice has been passed to the Justice Committee which has debated each of the opt-in decisions that were ommitted from the European Scrutiny Committee’s report. Those debates can be found here and evidence better-informed discussion than the report critiqued above. For that reason, the title of this post has been amended to reflect that it is the European Scrutiny Committee that has been ill-informed. This begs the question as to why the European Scrutiny Committee requested and published a report in an area where responsibility for scrutiny has been delegated to another committee? It seems clear that were such a report required it should have been requested by the Justice Committee (or requested of the Justice Committee by the European Scrutiny Committee). Furthermore, the deficiencies in the report are even more glaring given the work being carried out by the Justice Committee. The result is the European Scrutiny Committee chasing undeserved headlines while the Justice Committee labours quietly in the background. The effective operation of the Oireachtas is undermined by a lack of communication between committees. An adage about the right hand and the left hand certainly comes to mind.

UPDATED: The European Scrutiny Committee is Ill-Informed on European Criminal Justice

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