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Murkier and murkier…

Posted by Richard Monday, October 25, 2004

Blunkett, according to The Times, today – and other sources – is insisting that Britain will not accept a common EU asylum and immigration system with its own processing centre, visas and border guards.

That much we know already but it now appears that the Home Office has confirmed that he is giving up Britain’s national veto on asylum policies.

From the way this is framed in The Times, "giving up the veto would mean asylum and immigration initiatives would no longer have to be agreed unanimously by the 25 member states, but decided by majority voting."

That clearly indicates that the "colleagues" are invoking Art 67, but confusion now arises with the government claiming that Britain would retain the right to opt out of any policies it didn’t like. This, it says, is tantamount to a veto.

On the Westminster Hour on BBC Radio 4 yesterday, MacShane was asked about this, and he referred to having negotiated an "opt-in", suggesting that any policy initiatives would not apply to the UK unless is specifically decided to adopt them.

Thus does the story get murkier and murkier, for there do not appear to be any "opt-outs" or "ins" written into the treaty. The only reference that would seem to be relevant is a Declaration appended to the Nice Treaty (No. 16), which states that the "Conference":

agrees that foreign policy considerations of the Union and the Member States shall be taken into account…
This is not an opt-out (or in) and, in any case, a declaration has no legal effect. If this is what the government is relying on, then it is on very thin ice indeed.

Moreover, there is a very nasty little bit tucked away in Declaration 5 of the Nice Treaty, stating that "The High Contracting Parties", in relation to adopting QMV for asylum and immigration policies, "will… endeavour to make the procedure applicable from 1 May 2004 or as soon as possible thereafter…".

On the face of it, therefore, Blair actually committed to making asylum and immigration policies subject to QMV when he signed the Nice Treaty – but hey, who reads the declarations?

We are not helped, though, by David Davis, the shadow home secretary, who is cited as saying: "This is the action of a gullible government. Once we give up the veto, we will see the development of a whole body of European law which will put inexorable pressure on us to give up any opt-out clauses."

One suspects that Davis is equally in the dark as, unless we are told differently, there do not seem to be any "opt-out" clauses. It looks like the Mail on Sunday could have a point after all.