Minister O’Callaghan secures government approval for the findings of the Review of Ireland's opt-in Protocol on the area of freedom, security and justice (Protocol 21)

Minister for Justice Jim O’Callaghan, has today published the findings of a Review of the operation of Protocol 21, a legal mechanism that is part of the Treaties of the European Union and which uniquely provides for Ireland to be able to opt-into measures that relate to the area of freedom, security and justice on a case-by-case basis.

The review was undertaken by the Department of Justice and informed by detailed statistical analysis of relevant legislation, internal and external consultations, and by a targeted consultation process with a range of key stakeholders facilitated by the Institute for International and European Affairs (IIEA).

Minister O’Callaghan noted that:

“The area of freedom, security and justice is one of the biggest achievements of the European Union and is something that as a country, and at an individual level, we benefit greatly from. Ireland is committed to continuing to work with our EU partners to protect and enhance the many benefits it brings.

“That said, we have some unique defining characteristic as a member state. Our membership of a Common Travel Area with the UK and our common law legal system are chief amongst these, and protecting these is essential.

“It is in Ireland’s best interests that we continue to be covered by the terms of Protocol 21 which allows us to opt-into new legislative measure on a case-by-case basis, though I also agree that we must adhere to the undertaking we made to do so to the maximum extent possible.

“This will help demonstrate Ireland’s commitment to protecting and strengthening the EU’s Area of Freedom, Security and Justice.”

The Review recommends that Ireland continue to be covered by Protocol 21. It also recommends that greater adherence be given to the undertaking in Declaration No. 56, which was made by Ireland at the time of the negotiation of the Protocol, and which commits to Irelands participating to the maximum extent possible in all measure covered by the Protocol.

The Review’s headline recommendations, approved by Government, are that:

(i) Ireland should continue to be covered by the terms of Protocol 21; and

(ii) that greater adherence be given to the undertaking in Declaration No. 56 to the Treaties to exercise Ireland’s right under Article 3 of Protocol 21 to take part in JHA measures to the maximum extent possible.

The review also recommends the following additional actions that the Department of Justice should consider further:

(iii) To participate in JHA measures by default, opting out only where concrete and well-defined national interests are at stake.

(iv) To undertake a comprehensive, retrospective review of all the Protocol 21-related measures in which we do not participate and determine whether we can accede to these measures or not.

(v) To consider, to the extent practicable, mirroring via domestic legislation those EU measures which it has not opted into due to administrative constraints.

(vi) To explore the possibility of joining the European Public Prosecutor’s Office.

(vii) To explore the creation of a specialised body to facilitate the processing of mutual assistance and mutual recognition requests in a more efficient way.