By-passing the system

A huge rat has just leapt out of the woodwork, with the news that home secretary Clarke is going to Brussels tomorrow to press, inter alia for EU-wide rules requiring phone and e-mail records to be held for up to a year.

Officials are saying that Clarke wanted the EU to adopt the UK's voluntary code for internet service providers requiring most internet data to be held for six months and some phone data for 12 months. Such records are seen as important intelligence and detection aids.

Predictably, and sensibly, the industry, in the form of the Internet Services Providers' Association, is lobbying heavily against the idea, saying that it will not only cost billion but will also clutter their systems by retaining data of no interest to criminal investigations, making it harder to extract relevant data.

This was very much the argument put about the statutory reporting of data relating to money laundering, where the net was drawn so tight that professional advisors have to tell the authorities of even vague suspicions of illegality, on pain of criminal penalty.

The fears have proved well-founded as so much data has been given to the authorities that only a fraction has been investigated and the flow is so huge that very little will be.

That, in itself, is bad enough, but that is not the real story. This comes by comparing details in the Financial Times and from a report in The Times.

The FT tells us that the government hopes that the London bombing "will act as a catalyst for getting agreement to the scheme, which draws on proposals put forward by the UK, Ireland, France and Sweden after last year's bombings in Madrid." The UK wants the proposals, held up by industry lobbying, legal wrangles and the lack of consensus among member states, to be agreed by the end of its six-month EU presidency.

From The Times, however, we learn that tomorrow's meeting of EU justice and interior ministers is an "emergency session", when Britain intends to bypass "the cumbersome proposals" put forward by the EU Commission "which will run into the obstructive meddling of the European Parliament." Instead, it seems, the UK will secure a "quick intergovernmental agreement".

This, at first sight, looks like a rather weak arrangement. An intergovernmental agreement would lie outside the acquis communautaire and would neither be enforceable by the EU commission nor judicable by the ECJ. There would, therefore, be no mechanism for ensuring that other EU member states properly implemented the agreement.

Then the penny dropped. This is exactly the mechanism that was used to introduce the European Defence Agency - originally intended as part of the EU constitution but implemented by way of a Council Decision within the framework of the Maastricht Treaty, as amended by Nice and Amsterdam.

By invoking this mechanism, Clarke can come back to the UK with his new "EU law" and ask for it to be ratified by Parliament on the basis of a single vote, with no scope for amendment, which he will get "on the nod" with the government's in-built majority. He can then implement it at will in the UK.

The central point, of course, is that if Clarke went through the normal legislative system, he would have to resort to an Act of Parliament, which would have to go through all the stages of Readings and Committees, in both Houses. Given its contentious nature, it would take a great deal of Parliamentary time, with no guarantee of success.

By using the "intergovernmental procedure" within the framework of the EU treaties, therefore, Clarke not only bypasses the EU parliament, but our own legislative system, effectively bypassing our own parliament as well. And therein lies one of the greater problems with these treaties – they hand greater power to the executive and reduce the scope for accountability and scrutiny. They are, in effect, a democracy bypass.

Amazingly, The Times argues that: "This is surely right". So much for the media as the guardians of our liberties.