The development of European criminal law should not be driven by regulations and directives from Brussels, but ought to remain a matter of co-operation between member-states, a UCD law professor told the Forum on Europe in Dublin Castle yesterday.
Criticising a report from a European Convention working group chaired by Mr John Bruton TD, Prof Finbarr McAuley said inter-governmental co-operation on criminal law should be pursued through international conventions and protocols, followed by appropriate domestic legislation.
Admitting there was a "paper mountain" of unratified conventions, he said this reflected the fact that the required level of mutual trust and understanding had not yet been achieved.
"Trust and understanding in this area cannot be artificially induced and should accordingly be left to develop spontaneously, as member-states come to appreciate the increasingly trans-border dimension of criminal justice in the modern world."
The introduction of qualified majority voting in this area could lead to policy developments that were unacceptable to individual member-states. "Were that to happen, we would be facing an even more dismal prospect of a second paper mountain of laws honoured mainly in the breach, rising alongside the existing pile of unratified conventions."
The former Taoiseach, Mr Bruton, said the question was whether existing constitutional arrangements, whereby decisions in this area are taken by unanimity, would deliver the results demanded under a system where one had to get the unanimous agreement of an enlarged European Union of 25 states.
"We are only recommending a departure from unanimous decision-making in the Council of Ministers on substantive criminal law when three conditions are met:
Firstly, the crime in question is of a particularly serious nature.
Secondly, it has a cross-border dimension.
And thirdly, the crime must be listed in the treaty as a crime."
Ms Deirdre de Búrca of the Green Party said the changes proposed by the Bruton working group gave priority to the efficiency of decision-making procedures over the need for democratic accountability. She called for a Europe-wide legal aid fund and strengthening of the powers of the European Ombudsman to investigate human rights violations.
Meanwhile, speaking in Warsaw at a conference on EU enlargement, the Minister of State for European Affairs, Mr Dick Roche, said the Government was open to "carefully-defined treaty change" in the area of justice and home affairs where this was shown to be both strictly necessary and clearly beneficial.
"This is an area where the people of Europe want effective action, but rightly expect that civil liberties and long-established procedures will be respected."