Review of Ireland’s opt in Protocol on the area of freedom, security and justice recommends continued use

Originally negotiated between the EU, Ireland, and the UK, Protocol 21 is a flexibility mechanism that allows Ireland to opt in to EU Justice and Home Affairs (JHA) measures on a case-by-case basis, rather than being automatically bound by them. This “opt-in” arrangement originally applied to both Ireland and the UK but now applies only to Ireland following Brexit. Protocol 21 enables Ireland to maintain the Common Travel Area with the UK and protect its common law legal system. At the time of negotiation, Ireland declared its intent to participate in JHA measures as fully as possible, especially in police cooperation and has opted into many such measures. See a list of migration-related legislation and Ireland’s opt-in status here. A review of the Protocol was carried out in 2012-2013 which recommended its continued use as well as another future review. A second review of the Protocol’s operation, originally scheduled for 2018, was delayed due to Brexit and has now been completed to inform the Government’s decision on its continued use. The review included a survey of relevant government departments, as well as a stakeholder consultation process.

The Review finds that since the Lisbon Treaty in 2009, Ireland appears to have shown a more cautious approach to using its opt-in rights under Protocol 21 than before, often choosing to opt in to JHA measures only after they are fully negotiated. Despite this caution, Ireland has maintained a reasonably high overall participation rate, opting into 57% of major JHA legislative instruments. However, recent EU policy shifts, including Ireland’s decision to opt into the Migration and Asylum Pact, are expected to significantly change this pattern.

Ireland’s EU legislation participation by policy area
Measures on police cooperation and civil judicial cooperation	70-73%
Criminal judicial cooperation	60%
Asylum and immigration	28%*

*Participation in asylum and migration legislation is low likely due to concerns about preserving the Common Travel Area with the UK

The Review found that it can appear that opt-in decisions do not always follow any readily intelligible principle that is consistently applied. While the Review acknowledged the role of Protocol 21 in maintaining the Common Travel Area, it also questioned whether a gap in immigration and asylum policy between Ireland and the UK would have major impacts on the Common Travel Area as it applies only to British and Irish citizens. However, it found that to protect the common law system, there is a strong justification for retaining Protocol 21. It found that the policy underlying use of the Protocol should be to opt in to the greatest extent possible, and to clearly communicate a coherent rationale when deciding not to participate in measures.

The Review’s headline recommendations are that:

• Ireland should continue to be covered by the terms of Protocol 21; and
• There is greater adherence to the undertaking 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:

• To participate in JHA measures by default, opting out only where concrete and well-defined national interests are at stake.
• 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.
• To consider, to the extent practicable, mirroring via domestic legislation those EU measures which it has not opted into due to administrative constraints.
• To explore the possibility of joining the European Public Prosecutor’s Office.
• To explore the creation of a specialised body to facilitate the processing of mutual assistance and mutual recognition requests in a more efficient way.