Deputy Jim O'Keeffe asked me to explain how Article 29 and scrutiny by both Houses will relate to the material with which we are dealing and similar measures in the future. Framework decisions come within the rubric of Article 29 because a framework decision obliges Ireland to have a law, once it is adopted, which conforms with it. It is not generally appreciated that that is of constitutional significance.
Our obligations under the EU treaties are to modify, as required, constitutional arrangements in this country. If the Minister for Justice, Equality and Law Reform goes to a JHAC meeting and concurs in the making of a framework decision which imposes thereafter on Ireland an obligation to conform with it, it prevents the Oireachtas from having a law which is inconsistent with the framework decision. That circumscribes the operation of the Oireachtas. It also requires the State in certain cases to bring its law into conformity with the framework decision. It is important to understand that framework decisions, as opposed to other decisions, are binding upon the State as to their outcome, if not as to the exact method of implementation. This is the reason it is important that both Houses and the committees appreciate that a framework decision is not entered into by me lightly because it curtails domestic discretion in the area covered by it.
When framework decisions are in draft form, as is the case with the ones we are now considering, I scrutinise them very carefully as do my departmental officials with a view to determining whether we are satisfied with their terms. I am conscious in that process that in the last analysis under Article 29 my capacity to indicate Ireland's agreement and thereby effectively to join in a unanimous decision will require bringing each of the Houses with me. For this reason, resolutions will have to be tabled in each House to approve the terms of any framework decision we propose to enter into.
It may well be that in some cases the issues concerned are fairly straightforward and non-controversial. In those circumstances, I do not envisage them being debated at great length in either House. It may well be that a report produced following consideration of a proposal by this or another committee to which it has been referred, for example, the Committee on Justice, Defence, Equality and Women's Rights once it is established, will satisfy parties in the Oireachtas to the extent that a lengthy debate on the issue will not be required when the proposal comes before each House. Effectively, this would mean that the Houses would be in a position to note that the Committee on European Affairs has already examined the matter, reported on it and recorded no objection to it. In such circumstances, the debate could well be fairly short.
In other areas, for instance, the European arrest warrant which was considered in a very rushed manner and into which the Houses, at committee level at any rate, were not given an opportunity to inquire, there may be justification for much lengthier consideration. It is a matter of horses for courses as to the degree, nature and location of scrutiny.
On Deputy Jim O'Keeffe's question regarding my general attitude to framework decisions, since they are instruments which are binding upon us and have the effect of requiring us to conform to them as a matter of constitutional duty from now on, I must clearly signal them both at national and European level. I will not enter into agreements on framework decisions lightly, nor simply for window dressing purposes or because they contain obvious measures. In the last analysis I am only interested in framework decisions which are necessary to advance the issue they address. I am also very conscious of the principle of subsidiarity. This means that if there is no problem, I do not want to be offered a solution. In that context, I am clearly signalling that we will not go through the hoops of debating framework decisions unless they are clearly necessary for the approximation of laws among the member states of the European Union.
The Deputy asked me whether Ireland would adopt a constructive approach to measures emanating from the Commission and if we would be in a position to offer amendments. I assure him this will most certainly be the case. The first thing we will consider at governmental and departmental level with regard to any proposal for a framework decision is whether it is necessary and within the competence of the European Commission. However, allowing that there will be cases where the issue does lie within the competence of the Commission, we will then decide whether it is something we believe is best left unregulated or for the member states to decide through their own laws.
I emphasise that two different systems of criminal law operate in the European Union, our system of common law and the continental civil law or Code Napoleon system. Frequently, one size does not fit all. Our system of criminal justice is substantially different from the continental model and, therefore, one must make allowance for that difference when one sets out on the task of creating some system of approximation. This difference is not just a matter of history. In many cases it is a matter of fundamental values, an issue to which I will return in a moment when I address the question raised by Deputy Andrews.
I assure Deputy Jim O'Keeffe that this is an area to which I pay the closest possible attention. It is of constitutional importance from our point of view. There is no question of Ireland being pushed or pressurised into doing something we do not consider sensible, reasonable or in our interests. As this area is governed by unanimity - I envisage it will remain such - Ireland makes a free choice and decides whether to opt in or out.
The European Commission has between 200 and 300 staff working on justice and home affairs issues. From time to time they hold seminars, produce position papers, Green Papers, White Papers and so on. Monitoring what is happening and assessing the desirability of what is or is not proposed at any given stage requires this country to expend a considerable amount of resources. I assure the Deputy that in so far as we participate in preliminary discussions, behind the scenes negotiations, seminars and working groups these matters will be given very serious consideration. Ireland is not likely to go down a particular path on the basis that it is more convenient than not to do so, it would be embarrassing to do otherwise or we would stand out if we stood up for what we believed to be our own interests in respect of criminal law.
Turning to Deputy Andrews's comments, while I do not want to discuss the Flood tribunal here, I take his point. He is talking about standards of proof and it is the case that tribunals operate according to the civil standard of proof, which is proof on the balance of probabilities. It is also the case that the Criminal Assets Bureau legislation operates on that same standard, in other words, if it is alleged in court that assets which are the subject of a dispute before the court are or are not the proceeds of crime, the standard of proof under the Criminal Assets Bureau legislation is proof on the balance of probabilities.
In the context of criminal law, Ireland requires and always will require proof beyond reasonable doubt. No framework decision will change our position on this cornerstone of our system of law. We will not put people in prison on the basis of balance of probabilities. We will not allow by the back door any measure from the European Union to dilute that fundamental guarantee that no Irish citizen spends a day in jail unless it is proved beyond reasonable doubt that he or she is guilty. While I accept that is a high standard of proof, nonetheless it is a standard from which we do not intend to deviate.
Likewise, the presumption of innocence is a constitutional value here, subject to the fact that in certain cases presumptions can be made. Proof beyond reasonable doubt under our Constitution and the presumption of innocence are two sides of one coin. We do not intend to dilute either of those principles as a matter of Irish constitutional law, domestically or through the back door of any EU instruments.
In relation to the common law offence of bribery, I will not invent new crimes where old ones will do. This process is part of the programme for Government. I will begin the process in the next number of weeks to bring about that common law offences and statutory offences will form part of a single criminal code. To the extent that things are lost in the swirling mists of common law history, it is my intention to initiate the process during the life of this Government whereby all Irish criminal law is put on a statutory basis.