Europe's Council of Ministers has given the green light to mandatory biometrics on passports but, strangely enough, has refused to let biometric-mad Britain join in. This leaves the country that's keenest to tag the whole of its population as one of the few members of the EU that won't have to fingerprint all its citizens from 2008. Theoretically.
Refused leave to opt in to the measures, the UK issued a tetchy unilateral statement saying: "The United Kingdom recalls that, under the Protocols on the position of the United Kingdom and Ireland and on integrating the Schengen acquis into the framework of the European Union, it has the right to take part in the adoption of this measure. It regrets that it has been denied that right.
"The adoption of this measure is without prejudice to the United Kingdom's legal position, and its right to take such steps in accordance with that position as it considers necessary."
The position as of the Council decision on Monday is that the EU now has a standard for security features and biometrics in passports, with a couple of exceptions, notably the UK, Ireland and Denmark. The European standards are being brought in in 18 months time for facial biometric, and three years fingerprint, and the participating countries will cooperate on the development and implementation of these standards. The UK meanwhile is set to collect more biometrics than the EU requires, facial, fingerprint and iris, on more people (the whole population, rather than just passport, although the EU is planning standards for ID cards). But the UK passport could conceivably diverge from the EU one in terms of standards, and the UK could even be vulnerable to legal challenges from Brussels, both on how it proposes to deal with registration other EU citizens, and on the database aspects of the ID scheme.
The weird scenario of Europe declining to force the UK, despite the UK's express wishes, to fingerprint everybody appears to arise because of the UK's special position regarding the Schengen Treaty, which was intended in part to progressively dismantle internal border controls. The UK and Ireland participate in the law enforcement and judicial cooperation aspects of Schengen, but not in those relating to frontiers. And security and biometrics of passports relate to frontiers.
Legal considerations probably underpin the Council's decision to exclude the UK. A Statewatch legal analysis recently suggested that the passports regulation exceeds the EU's powers, while an open letter to the European Parliament from Privacy International, European Digital Rights and Statewatch called for Parliament to oppose the creation of a Europe-wide database, to reject mandatory fingerprinting and to reserve the right to question the legality of the measure.
The Council pressured Parliament to accept the regulation, but as adopted by the Council it states that the biometric features should only be used to verify the authenticity of the document and "the identity of the holder by means of directly available comparable features when the passport or other travel documents are required to be produced by law." This is not as tough as the Parliament would have wanted, but still - at least for now - rules out the network check the UK Government intends to use for the ID scheme. Even in the case of identity cards, the UK may find itself out on a limb when the EU starts to define standards. Again, there is significant opposition to links to databases here, and the UK's views on privacy and data protection could easily diverge from any consensus Europe arrives at.
On the way into the ID scheme David Blunkett boasted that the UK would be in the lead (more than a little reckless, considering how good we aren't at implementing bleeding edge systems), but at the moment it looks rather more like the UK is moving out onto a limb. It may be possible to negotiate some kind of deal that gets the UK back into the EU passport mainstream, but the divergence now serves to indicate that the Blair Government's view of Brussels as some kind of legislative pick and mix where we can take the stuff we like and leave the rest, is unsustainable. The UK Government's explanation of the way forward to the UK Parliament, should it have one, will prove interesting. ®