Richard North, 05/07/2014  

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A debate next week in the Commons seems set to produce some sparks, as the vexed issue of the 133 Justice and Home affairs opt-outs in the Lisbon Treaty comes before the House.

This is Protocol 36 of the Treaty, which set a deadline of 31 May 2014 for the government to decide whether the UK should continue to be bound by approximately 130 police and criminal justice (PCJ) measures, or whether it should opt-out of some of all of them. The decision would then take effect from 1 December 2014.

This is not, as some newspapers are saying, the date when the government must take the final decision. The decision has already been taken, and was published in July 2013. The 1 December is the date on which the UK decision takes effect, whence all 133 provisions cease to apply to the UK, bar the 35 to which the government has opted in (subject to Commission/Council approval).

Ministers signed off a list of 35 measures, subsequently reduced to 33 (with those so far accepted by the Commission listed here in the Annex). They include the notorious European arrest warrant. It is the earlier prevarication of the UK government, and informal linkage with the as-yet undisclosed "reform" agenda,  that has confused just about everybody, including the House of Lords select committee, and irritated other member states.

Now, in a muddled piece with a thoroughly misleading headline, The Times is adding fuel to the fire by claiming that "David Cameron has secretly agreed to work towards the transfer of more policing powers". He has done no such thing.  The claim is based on this confidential document about the opt outs, going back to 16 June. But the reference is to an additional comment, in which the UK has stated it is to decide on whether to participate in a Europe-wide DNA database sharing scheme by 1 December next year.

This is actually nothing to do with the current batch of opt-back-ins. The Times is eliding entirely separate matters and confusing the issues (Press Association report here). We are looking at a technical decision to be made by the UK government, as to whether to take part in the Prüm convention

This is a treaty on the exchange of police information, whereby some EU member states have granted each other access rights to their automated DNA analysis files, automated fingerprint identification systems and vehicle registration data. It was not originally an EU measure, but started off life as a separate treaty agreed in 2005 by Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria and implemented in 2008.

Now, the EU has adopted the measure as its own, via Council Decision 2008/615/JHA of 23 June 2008, making it one of the 133 provisions from which the UK subsequently decided to opt out, before the deadline for full implementation. The Government apparently decided to opt-out for fear of infraction proceedings costing many millions for a measure it is not yet able to implement.

The UK has thus decided not to exercise its immediate opt-back-in option, but is nevertheless being asked whether it wants to re-join, which seems to make the Times report rather over-blown. Downing Street is making it clear that: "The home secretary has always been clear that the UK is not currently in a position to join Prüm and no further decision will be taken until an impact study has been completed". Hence the government will not be in a position to make a decision until December next year.

Thus, all we actually have is the government has told the Commission that it will make a decision in 18 months time on whether to rejoin or not – not exactly what you might think worthy of a front-page lead story (pictured top).

Nevertheless, there are technical and administrative problems associated with joining the scheme, to say nothing of serious human rights and data protection issues. But the nub of this story seems to be that we are finding out about these things from leaked EU documents, rather than from our own government.

The bigger issue, though – which The Times seems to have missed altogether - is that the "colleagues" seem to be blackmailing the UK. Until we decide on Prüm, they are refusing access to the Eurodac system. This is a database of fingerprints of applicants who have applied in any member state for asylum, and illegal immigrants who have been picked up within EU member state territories.

This database is an essential tool in making the Dublin Regulation work, without which the UK will have serious difficulty in detecting and then deporting asylum seekers who have already been processed by another EU member state.

Thus, we seem to be in a position where effective cooperation on illegal immigrants and asylum seekers is dependent on the UK signing up to a much wider DNA database, with widespread implications over the entire justice system.

And that, it would seem, is something we should be seeing on the front pages of our newspapers – except that it has not even been reported.


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