Passport-free travel crucial issue in summit

LET business commence

LET business commence. As I write it seems inconceivable that you will not be reading this in the light of a new dawn in the political history of our great neighbour. And the election of a British Labour government means that we should be able to enter the final phase of the Inter-Governmental Conference.

Barely six weeks separate us from the Amsterdam summit. In Brussels there are still two schools of thought about whether we will wrap up agreement on treaty changes on time. Optimists argue that in reality the number of areas where major drafting changes are still seriously problematic are becoming more and more limited.

Crucial among these is how to handle co-operation in justice and home affairs, now known as the Third Pillar of the Union, and, most controversially, the incorporation into the European Treaty of the provisions of the Schengen agreement on passport-free travel.

On this one Ireland finds itself firmly in the British camp, and though London would not admit it publicly, there has been some diplomatic encouragement to the Irish to make the running on the issue (while Britain makes the running in another matter of common concern, the scuppering of the EU-WEU merger proposals).

READ MORE

Ireland's attachment to our common travel area with Britain makes it impossible to sign up to Schengen while Britain remains firmly attached to passport controls

But Irish diplomats have also made the case that as an island nation, the current system serves us well - better passport controls on entry to the State than ID checks in the street, like in the rest of Europe. They also look aghast at the idea of shot pursuit" of criminals across the Border.

The issue is complex because it involves several key aspects of the debate about the future shape of the EU in a very fundamental way. What should he the role of the Community institutions, the Commission, Parliament, and Court, in a realm that has been run almost entirely on an inter-governmental basis?

And how should the Union structure provisions allowing for some member-states to go ahead of more reluctant or less able states while preserving the essential integrity of its decision-making structures and hence the character of the EU as a union of 15?

This question, the shape of "flexibility" or "differentiated integration", is arguably the single most crucial constitutional challenge facing the IGC.

At stake is whether Schengen itself comes into the EU Treaty, with its own decision-making procedures, lock, stock, and barrel, as the Dutch presidency seemed to be arguing initially, or whether Schengen's provisions can be grafted on to the Union's own decision-making structure.

The issue is seen as vital in Dublin, which insists that any use of the EU's institutions and legal framework should always start with a decision of the 15 - the Union is the property of all.

If the 15 fail to agree and 13 wish to proceed, Dublin argues, then there is a case for a system of constructive abstention under which states would abstain on a decision normally requiring unanimity but, in doing so, neither block advance by the others nor commit themselves to the action.

Differentiation should arise only as and when necessary at the level of secondary legislation, rather than being prescribed in the treaty," a recent Irish submission argues.

This would allow the maximum common action and mean that while traditional Third Pillar decisions are taken by one procedure, there would not have to be a separate procedure for Schengen measures, which often overlap.

There is a quite understandable wish on the part of the 13 Schengen countries not to have to renegotiate the Schengen acquis - some 2,000 pages of agreements on procedures and flanking measures associated with the implementation of the free travel area which will have to be appended to the treaty in their entirety.

But the Dutch seem to have accepted the rationale of the Irish case and are working pragmatically in this direction towards a formulation which is also likely to be acceptable to the Blair government.

Separate talks will then have to take place between Britain and Ireland to see how much of the flanking measures both want to adopt and whether, if Ireland wishes to go further than London, which measures in Schengen - might be seen in London as undermining the common travel area.

Which leaves the controversial issue of the role of the institutions and the place of qualified majority voting in the Third Pillar, known as "communitisation". Ireland, along with the 13, is enthusiastic about this. Indeed, Dublin would be keen to see a sole right of initiative for the Commission in Justice and Home Affairs.

That is anathema to the British, however. Diplomatic sources in London suggest that this may he the ground on which the likely new British Foreign Secretary, Mr Robin Cook, who has made many positive noises on other aspects of treaty reform until now blocked by the Tories, decides to demonstrate that Labour is no pushover.

If he does, sparks will certainly fly at Amsterdam.

Patrick Smyth

Patrick Smyth

Patrick Smyth is former Europe editor of The Irish Times