Europol Regulation: European Union Opt-In
(11 years, 5 months ago)
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Lord Hannay of Chiswick
That this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA (document 8229/13) (2nd Report, HL Paper 16).
Lord Hannay of Chiswick
My Lords, I beg to move the Motion standing in my name on the Order Paper in my capacity as chairman of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which prepared the report now before your Lordships for endorsement. As the House will know, when we consider reports of the EU Committee, this is normally on a Motion that the House simply takes note of the report. In the case of this report, the Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiations on the Commission’s recently proposed Europol regulation. The reason is that the report deals with a draft measure falling within the area of justice and home affairs, which will apply to the United Kingdom only if the Government exercise their right under a protocol to the EU treaties to participate in its negotiation, adoption and implementation—in other words, to opt into it. They have to do this within three months of the proposal being presented to the Council, which in this case means before 30 July. The committee believes that the Government should opt in, and the Motion invites the House to endorse that view.
In 2011, the Government repeated an undertaking given by the previous Government that time would be found to debate opt-in reports well before the expiry of the three-month period. I am most grateful that they have honoured the undertaking on this occasion by making time available for the debate early enough for them to be able to take into account the views of the House when reaching a decision on whether to opt in.
As many of your Lordships will know from earlier EU committee reports, most recently from the joint report of Sub-Committees E and F on the block opt-out under Protocol 36 to the Lisbon treaty, Europol—the European Police Office—is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. It was originally established in 1995 as an intergovernmental body, and became an EU agency in 2009, following the adoption of a Council decision to that effect. Europol has no executive or coercive powers to conduct investigations or make arrests in the member states, and the Commission’s proposal before your Lordships does not seek to change this. Europol supports the work of member states’ law-enforcement authorities by gathering, analysing and sharing information and by co-ordinating operations.
CEPOL, the European Police College, aims to encourage cross-border police co-operation by bringing together senior police officers from across the EU in training and exchange programmes, among other things. It was established as an EU agency in 2005, following the adoption of a separate Council decision. It is currently based at Bramshill in the United Kingdom, alongside the English and Welsh College of Policing.
The draft regulation we are debating would supersede both the pre-Lisbon Council decisions: the one dealing with Europol and the one dealing with CEPOL. It proposes to merge CEPOL with Europol in the latter’s existing headquarters in The Hague. The new regulation would also enhance some of Europol’s existing powers, in particular regarding the collection of data from member states and its ability to analyse the data more effectively. The Government have expressed concerns in their Explanatory Memorandum about the introduction of a stricter obligation on member states to provide data to Europol. I understand that in fact—this is a point of some interest—law enforcement agencies in the United Kingdom already share, voluntarily, a greater volume of information with Europol than do the agencies of other member states.
Doubts could also arise about Europol’s ability to cope with large volumes of information if it were to be copied in to all bilateral exchanges, as the regulation seeks to make mandatory. I would welcome the Minister’s thoughts on how the Government would address these concerns during the negotiations if they were to opt in to the proposal. The committee’s view, which we expressed in our report, was that the Government would be most effective in pursuing these concerns by participating in the negotiations. In doing so, I would hope that they would bear in mind, in dealing with our own concerns, our clear interest in other member states providing more information to Europol than they do at present. As always, there are two sides to the coin.
With regard to the proposed merger of Europol and CEPOL, your Lordships are probably aware that it has generated a degree of opposition, not least from both the agencies concerned. While the committee accepts, in general terms, the desirability of merging EU agencies if this will produce cost savings without a loss of effectiveness, it did not believe that the Commission had yet made a sufficiently convincing case for the merger in terms of reducing duplication, achieving efficiency savings and increasing effectiveness.
While the Government also appear to have concerns about the proposed merger, they somewhat counterintuitively appear to be unconcerned about the possible relocation of CEPOL to The Hague, following their announcement that the agency’s lease at Bramshill will come to an end in March 2014. I will ask the Minister for further information about the possible relocation of CEPOL, including whether any efforts have been made to retain the location of this agency in the United Kingdom. It now looks more likely that the two agencies will be kept apart, because there is strong opposition not only from the agencies but from quite a number of member states, as expressed in the recent Justice and Home Affairs Council and also in the European Parliament, where the LIBE Committee, which is a kind of opposite number to my sub-committee, is strongly opposed to the merger. Therefore, the likelihood is that CEPOL will be looking for a new home.
Concerns have been raised in the past about the limited parliamentary oversight of Europol. This has been addressed to a degree by the increased scrutiny of the non-operational functions of this agency, as well as of CEPOL, by the European Parliament since the entry into force of the Lisbon treaty in December 2009. In 2010, the Commission instigated discussions about how national Parliaments could be involved in the process of scrutiny and oversight in order at the same time to increase accountability at member state level, thus recognising the shared competences in the justice and home affairs field. I will explain that point. I think that everyone understands that this will be an area of mixed competence as far as the eye can see. It is not even conceivable that member states will hand all that over to the European Union. It is certainly not desirable that they should do so—and it is not going to happen. That means that in an area like this, where there is mixed competence and the issue of parliamentary scrutiny and oversight arises, the only sensible way to proceed is to try to avoid a food fight between the European Parliament and national Parliaments, and to see whether we can get some sort of system in which they operate together on the basis of equality.
My committee and I have played an active role in those discussions from the outset, and have pushed for the development of existing structures to this end, rather than for the establishment of new ones. There are regular meetings of the European Parliament LIBE Committee and the national Parliament Home Affairs Committee. If we build on them, we will avoid the potential costs and duplication that a more freestanding structure could entail. Other national Parliaments have tended to follow our lead in taking this view, and I will continue to state the case in Brussels and elsewhere. In that respect, we find the provisions in the draft regulation extremely welcome. They would increase parliamentary scrutiny of Europol, and its accountability both to the European Parliament and to national Parliaments, and would do so with a light touch, as we have recommended.
Our position on a number of other provisions in the regulation is set out in the report. Some are technical, and I will not weary the House with them. However, there is one to which I should draw attention. It arises in the context of the committee’s recent consideration of the Government’s 2014 block opt-out decision under Protocol 36 to the Lisbon treaty—about which I fear your Lordships will hear a lot in the coming months when we come to debate the committee’s report on this matter, which came out at the end of the previous Session, and when we receive the Government’s response to that report, which the noble Lord, Lord McNally, stated was coming “shortly”. “How short is a piece of string?” is perhaps the same question as, “How long is a piece of string?”. We will find out in due course.
Our witnesses for the Protocol 36 inquiry, the Home Secretary included, were almost unanimously positive about Europol’s role, including the significant benefits it provided for the United Kingdom’s law-enforcement agencies in terms of access to information, analysis, intelligence, co-ordination and support, as well as the efficient and cost-effective arrangement of having access to 40 countries in one place rather than co-operating through a network of bilateral arrangements.
The potential value of Europol has recently been enhanced by the establishment of a Cybercrime Centre within it, in response to the real challenges that cybercrime presents to all of us. If the Government choose to opt in to the regulation that we are debating today, the two Council decisions establishing Europol and CEPOL will simply drop off the list of measures that will be caught if the Government decide to trigger the block opt-out decision. However, four other measures on that list, which Europol informed the committee were “directly connected” with the Council’s Europol decision, will remain on the list. Do not ask me why this has happened or whether it is sensible that it has happened—but it has happened. Can the Minister clarify which of the existing measures are subject to repeal by the new regulation and how would handling any other relevant decision affect handling the block opt-out decision? Are the Government mindful of the need to opt back in to any Europol measures not so repealed, so that no question of lack of coherence arises? Of course, that will occur only if the Government agree to opt in to the Europol regulation, but it is worth going over that ground because there is a potential trap there, which it would be unwise for us to fall into.
My sub-committee plans to keep the present draft regulation under scrutiny. At this stage, only one matter is for decision by the House—whether or not the Government are recommended to exercise the United Kingdom’s opt-in by the end of July. For the reasons I have given, the committee is firmly of the opinion that the Government should do so, in part so that they can play a full and effective role in addressing the concerns that they have expressed, some of which we share, during the negotiations. It would be good to hear from the Minister at the conclusion of the debate whether it is the Government’s intention to opt in to the new Europol regulation. I understand that a parallel debate on this issue in another place has been postponed from the scheduled date of 3 July. Can the Minister say why that has happened and when the debate will be reinstated, presumably before the other place rises on 18 July? Can he assure the House that when a decision is taken on the opt-in, it will be communicated to this House? I beg to move.
Lord Sharkey
My Lords, I start by thanking the noble Lord, Lord Hannay, for the way in which he chaired the committee in the production of the report which forms the basis of this evening’s debate. I also thank the committee’s clerk, Michael Torrance, for his invaluable input into the report.
The noble Lord, Lord Hannay, has set out forcefully the case for agreeing to our committee’s recommendation that the Government should opt in to the new Europol regulation. They have four weeks to do that. I shall not repeat the noble Lord’s arguments in detail, but I want to re-enforce the argument about Europol’s importance to this country’s national security and crime-fighting efforts and to speak about where the clear balance of advantage lies in this debate.
Europol, with its outstanding British director, is a success story for the United Kingdom. In 2010, Operation Golf, a joint operation between Europol and the Met, led to the arrest of seven individuals in the UK and 126 individuals in total for trafficking children; 28 children in the UK were released as a result and 181 children in total. Operation Rescue, a three-year operation launched by the Met and co-ordinated by Europol across 30 countries, led to the discovery of the world’s largest online paedophile network; 670 suspects were identified, 184 arrests were made and 230 sexually exploited children were protected. Operation Veto, an investigation led by Europol across 13 European countries, uncovered an extensive criminal football match-fixing network. A total of 425 match officials, club officials, players and serious criminals from 15 countries are suspected of involvement.
There are other successful case histories. However, Europol’s critical role in helping the UK can be summed up in the words of ACPO, which said:
“Much of our international crime and transient criminals come from Europe and membership of these organisations”—
Europol and CEPOL—
“makes it easier to target them. Removing ourselves from these measures and putting ourselves in the position of having to re-negotiate 26”—
it will now, presumably, be 28—
“treaties on each and every topic, would be a massive step back for UK policing that would benefit no one”.
Lord Foulkes of Cumnock
My Lords, as a member of your Lordships’ European Union Select Committee, I rise to support the Motion of my noble friend Lord Hannay and to follow the eloquent and powerful arguments put forward by him and the noble Lord, Lord Sharkey. They are experts in this area.
I wish to start by reading one of the committee’s recommendations on page 10, which states:
“If the Government were to opt in to the draft Europol Regulation and also exercise the block opt-out we urge them to opt back in to the Council Decisions which fall within the scope of the opt-out and which are connected with Europol’s continued operations, should this prove necessary”.
I do not quote that to criticise the committee, quite the reverse. However, this process of opting in, opting out and opting in again is like hokey-cokey politics in which the Government are indulging. They are dancing to the tune of UKIP and the Eurosceptic right in their party and putting our national security and the fight against crime in jeopardy as a result.
The Europol matter that we are discussing is complicated by the threatened block opt-out, as I said at Question Time today and as the noble Lord, Lord Hannay, mentioned. The noble Lord, Lord McNally, was rather coy earlier when speaking about the differences of view between the two sides of the coalition in the discussions on this matter. We have a Conservative Minister replying to this debate and it will be interesting to hear his response. However, we get a very clear view of the position from the documents that were leaked to the Daily Telegraph, and I wish to quote briefly from one or two of them. A number of measures were binned, where we agreed not to seek to rejoin, which must cause concern.
I say to the noble Lord, Lord Sharkey, that one of the documents refers to,
“37 measures identified by DPM”—
that is, the Deputy Prime Minister—
“as being of less importance”.
One of the measures that Mr Clegg identified as being of less importance was:
“Joint Action … on cooperation between customs authorities and business organizations in combating drug trafficking”.
How can that be identified as being of less importance? Then we come to measures that are undecided. The document states:
“48 measures for Immediate Discussion (Differing Views in the Coalition on Rejoining)”.
There were differing views on whether it should rejoin those measures, having exercised a block opt-out on 133. Should we rejoin the measure on combating child pornography on the internet? Is there any doubt about that? Why is there any discussion about it? Why does one side of the coalition think that we should opt in and another that we should opt out?
Another measure mentioned by the noble Lord, Lord Sharkey, concerns,
“security in connection with football matches with an international dimension”,
where we have seen that police forces acting together have been very effective in passing on information about known troublemakers so that they can be dealt with on the spot. British police officers can go out to matches abroad and offer their help and police officers from other countries can come here and help with identifying troublemakers. However, all this is being put in jeopardy by what the coalition is considering doing because of the pressure of the 133 opt-outs. It is dancing to the tune of UKIP and the Eurosceptic right, which I know the Minister is not part of. I hope that he will take the opportunity to make that clear again today.
I now wish to consider the measures in detail. We are told—the noble Lord, Lord McNally, used this excuse earlier today—that each of them is being looked at and the reason the Government have taken so long to consider the other report of our Select Committee on the opt-out is that the measures are all very complicated. He also said that each one has to be looked at in the national interest. I always get a wee bit worried when the coalition talks about the national interest. It seems to me that it is often a case of what is in the best interests of keeping the coalition in power rather than what is in the national interest. When pressed to explain their thinking, Ministers have said that they look at the measures on a case-by-case basis as far as the national interest is concerned.
There are two key problems with the Government’s plan of action. The first is the cost to the United Kingdom of permanently opting out of some of the measures, with Europol a particular concern, as the report rightly says. The report expresses the view that,
“none of the concerns expressed by the Government … outweigh the benefits to the UK of Europol’s assistance to national police and law enforcement agencies in the fight against cross-border threats (including terrorism) and serious organised crime”.
Therefore, we are putting the fight against terrorism and serious organised crime in jeopardy through this opt-out. Rarely has an all-party report, unanimously agreed by all the members of the sub-committee and the committee, been so damning of the government line.
The second problem is the cost of what the Government hope to retain. Opting back in is not a straightforward process. The noble Lord, Lord Williamson, having been secretary of the European Commission, will know only too well exactly what has to be done. There is no guarantee that negotiations to opt back in would be successful. We might find ourselves locked out permanently of key crime-fighting tools. Ensuring that this does not happen will require a large and wholly avoidable expenditure of diplomatic capital. Our experienced diplomats would have to spend their time persuading the other 27 countries of Europe, now that Croatia has joined, that we should be allowed back in.
The rewards that the Government hope to win by such a policy are largely intangible. The measures they hope to scrap are mostly technical points relating to the definition of certain crimes. What is really driving this agenda is the streak of destructive Euroscepticism that runs through some of the Tory Back Benches. In this instance, it is clear what they mean by the national interest. As I said, the national interest is the interest of a small, bullying minority. David Cameron is trying to paint himself as a national champion, but in fact he is having his arm twisted. It is a clever piece of political spin but it is a disastrous piece of policy that could leave all of us in the United Kingdom dangerously exposed to crime and terror. I hope that the Minister will indicate that the Government will have second thoughts in light of the unanimous report from our Select Committee.
Lord Judd
My Lords, I am very glad indeed to follow the noble Lord, Lord Foulkes, as I find myself in a great deal of sympathy with the argument that he has put forward.
It always seems to me that if one set out to design a nation that was dependent on its relationships with the world in almost every sphere of our significant life in Britain, it would be difficult to think of a better example than the United Kingdom. We live in a totally interdependent world. I believe strongly that the test of political leadership in our country is to demonstrate that we are determined to look to the well-being of the people of these islands of the United Kingdom, but that that can best be done only if we are in a network of international co-operative relationships, of which the European Union is one. It is not a romantic debate about whether one is a European or a Briton; it is hard-headed practical common sense about how we look to the well-being of the British people. Certainly, as far as I am concerned, any thought that we should retreat into being a sort of free-floating raft off the mainland of Europe in the turbulent world in which we live, and that we will somehow then look better to the interests of our people, is a betrayal of the British people and should be dismissed as such.
These matters of security and international crime and the rest are paramount examples of this. We all know that crime is now internationalised on an almost unimaginable scale. We all know that security and terrorism and threats of this kind operate on an international basis. All the new technology at the disposal of the human race makes all this more acute. There is no way in which we can look to the security of the British people without the maximum co-operation of those who are seeking the same objectives for their people in Europe as a whole. Indeed, that should always be a stepping stone to maximum international global co-operation, because that is ultimately the indispensible solution that we must find.
Baroness Smith of Basildon
My Lords, this has been a short but interesting and illuminating debate. Perhaps I may say at the outset how grateful I am to the committee. I found this report and the previous report on the opt-out to be extremely useful, and it should have a much wider audience than only Members of your Lordships’ House. Any debate around European issues is often led by emotion and those with strong views. It often becomes one of those public debates whereby those with strong views seek to persuade others why they are right and it becomes difficult to make a balanced and dispassionate contribution. I have thought for some time that what many people want is for politicians to stop telling them what they should think and why they should agree with them but be given hard facts in a reasoned way and be allowed to make their own judgments. What are the benefits and problems, as well as the potential benefits and potential problems? Both reports are excellent and need a wider audience because they address just those issues in a dispassionate and thoughtful way. Certainly when preparing for today’s debate I found both reports hugely valuable.
It feels slightly odd to be debating an opt-in when so much of the debate and political discussion between now and next May, when the final decision has to be made, is all about the Government’s proposed block opt-out. That will be a much wider opt-out than the decisions on Europol before us today. I have to agree with my noble friend Lord Foulkes that when I was looking at this, “political hokey-cokey” were exactly the words that came into my mind. As he indicated, it is a very expensive hokey-cokey and there is no guarantee that once you have been in and come out you can go in again. For that reason, this is a slightly confused debate to which the reports bring a great deal of clarity.
I have a few questions for the Minister, which developed as I prepared for the debate. I should be interested to know how many other measures are awaiting an opt-in decision by the Government and whether any have been delayed because of the discussions regarding the opt-out. In our discussion on the first report last week on the opt-out, there was some suggestion that there were other opt-in measures that would address some of the concerns that the Government have raised around issues such as the European arrest warrant, but no action has been taken. Because there is an opt-out decision to be taken, proper consideration is not being given to potential opt-ins.
Perhaps I may restate the valid point made by the noble Lord, Lord Hannay of Chiswick, on the other issues connected to Europol that would remain on the Government’s opt-out list, even if the Government opted in. It sounds more like the hokey-cokey all the time, does it not? Even if the Government opt in on the Europol measures, other connected measures would be on the opt-out list. I feel like a character in a play, somewhere between Alice Through the Looking Glass and “Yes Minister”. However, it would be helpful to have some clarity from the Minister on those points. These reports help to make sense of the decision to be made this month and set the issue in a wider context.
The first duty of any Government is the safety and well-being of the public and national security. Over the past decade, we have seen an increase in serious and organised crime that can and has caused severe harm, poses great risk to victims and causes inevitable economic damage. I take note of Europol’s Serious and Organised Crime Threat Assessment made earlier this year, which stated:
“Serious and organised crime is an increasingly dynamic and complex phenomenon, and remains a significant threat to the safety and prosperity of the EU”.
The assessment goes on to state that as society and business become more global, so do the nature of the threat and the risk, particularly regarding the use of new and emerging technology.
The value of Europol as described by other noble Lords is widely accepted. The value of the range of EU police and criminal justice measures is also widely accepted as being of huge benefit in the fight against organised and serious cross-border crime, which is made more dangerous and more complex by its cross-border nature. The noble Lord, Lord Sharkey, illustrated some of that in the cases he mentioned. Dealing with drug trafficking, people trafficking, abduction, money laundering, cybercrime and of course national security and terrorism relies on co-operation, both Europe-wide and nationally.
We have already heard about the main changes proposed by the draft regulation that the UK is being asked to opt into. I do not wish to repeat the detail but in summary, first, are the new commitments around data sharing and enhancing the role of Europol as a hub for information exchange. Second are the proposals for a more robust data protection regime, alongside structural changes in data management and processing, to make better use of the data that are held. Third is improved governance and increased parliamentary scrutiny by national Parliaments and the European Parliament, and proposals for greater accountability. Fourth are the changes to the existing structures by merging Europol and CEPOL; although my reading of the proposed regulation is that it is more of a takeover than a merger.
On the first issue, data sharing is essential. There is little point in co-operation between states if information is not up to date and relevant. However, we understand the concerns that have been raised by the new wording. I should be interested to hear from the Minister the exact reasons for the Government’s concerns on this. The Government consider that information should be shared on a voluntary basis, if I understand their position correctly. That is not unreasonable but is there likely to be an imbalance in information supplied from different countries? The Government have responded that they have concerns about the feasibility. Can the Minister be more specific about what he means by “feasibility”? Perhaps we can have some more detail on that. The committee’s recommendation on this issue seems eminently sensible, given that there are concerns, but I am keen to understand exactly what they are. The committee’s recommendation on negotiation is helpful but I wonder how effective we as a country can be in negotiations, given the Government’s commitment to a block opt-out. That must be a real worry for those negotiating on our behalf in addressing any concerns that the Government have. Obviously, if others around the table think that we are likely to opt out, it is harder to reach agreement. The Government will need to convince them that we are serious about real engagement. That might be a challenge for any negotiators. Paragraph 20 of the report is helpful in seeking to tread through this minefield and makes a very robust recommendation on the course of action that the Government should take in respect of Europol if they decide to exercise the block opt-out.
On the second matter of data protection and better analysis of data, both proposals are welcome but I agree that there is a lack of clarity about the data protection provisions, and that uncertainty will remain until later this month when the directive is to be agreed. The Commission’s document refers to the current legislative set-up preventing Europol being fully effective and equipping member states with the necessary, complete and up-to-date tools. From the report, this appears to be in relation to forensic and operational support and criminal analysis. It also seems that this regulation is needed to tackle the remaining barriers to full co-operation. I certainly welcome the proposals to strengthen the current data protection regime, including those intended strictly to limit the holding of personal information, as well as proposals on the individual’s right to access information held and the availability of compensation for unlawful data processing. It would be helpful to know the Minister’s views on this and whether the Government are satisfied with those proposals.
However, it is the merger of Europol and CEPOL that is perhaps most contentious. Listening to comments from noble Lords around the House this evening, there seems to be little confidence that this will go ahead in the proposed form. As I have already said, it seems to be more of a takeover than a merger, and I am not surprised that both directors have opposed it. That, in itself, would not be the sole basis on which to oppose change but they have raised strong issues of concern. I share the concerns about the financial implications and effectiveness. The Government are wise to be sceptical about the prediction of savings. They themselves know from their mergers of quangos and cuts in organisations that the savings realised on paper are often not so evident in the real world.
We have previously made points in debates in your Lordships’ House about the creation of the National Crime Agency and the dangers that the Government face in not providing transitional costs. We often hear that changes in administration or bureaucracy are going to realise great savings. Obviously savings can be made, but when the rationale for structural change is just to save money, too often there then follows a hunt for cuts to realise the savings that have been promised, while at the same time the process of change swallows up money that could be used to provide services.
The Government’s Explanatory Memorandum provides an assessment of the benefits. It certainly appears that there are good reasons for greater co-operation between the two bodies, although it is worth noting Appendix 2 of the committee’s report, in which the director of CEPOL states that the synergies and co-operation between the two agencies are already excellent. He takes the strong view, with some evidence, that money is not being wasted by duplication. The directors of both agencies raise concerns about the supposed financial savings and the implications of a merger in terms of efficiency.
The second area that the Commission identifies as being made more effective is that of identifying and responding to training needs. Having read the report, the Explanatory Memorandum and the regulations, I share some of the concerns that have been raised about training, not just in terms of the budget but in terms of guaranteeing the quality of training and the priority given to training. This is a dangerous area in which to risk losing effectiveness. I know that the Government have some concerns but I hope that they will not be used as a way to try to derail progress. Perhaps the Minister can confirm that the Government will enter into negotiations on this and report back to your Lordships’ House as those negotiations progress.
One aspect on which I should like to understand the Government’s position is the development of EU centres and the provision of training to fight specific crimes. Looking through the regulations and the other material, I wonder whether the Government have considered or explored with the Commission the possibility of a specialist centre being based in the UK. I would have hoped that the Government would enthusiastically embrace the opportunity of having one of these EU centres in the UK—we already have CEPOL at Bramshill—to further develop and share high-level expertise. Bramshill is a former police college and it has had international respect but it is being sold off. I hope that that does not blind the Government to what could be a real opportunity to extend our influence and share our expertise in policing Europe-wide.
Again, the Minister will have to consider that any negotiations to seek changes in the details of the memorandum and regulations could be damaged by the Government’s intention to seek an opt-out in 2014. I appreciate that having to look at this issue in the shadow of the block opt-out makes such discussions very difficult for the Government, but I would hope—and other noble Lords have echoed this in their comments this evening—that the importance of this issue would focus the Government’s attention on the opportunities of sharing and improving UK law enforcement and policing. There are also some very welcome comments on scrutiny, accountability and good governance.
At the beginning of this debate, I said that a Government’s first duty is to the security and well-being of their citizens. Crime does not stop at Calais. The policing methods of “Dixon of Dock Green” are no longer enough to tackle the complex and intelligent web of serious and organised crime, where the benefits of, and skills derived from, modern technology sit alongside the old-fashioned criminal masterminds. Police officers today are highly trained and they will have to co-operate across borders if we are to be effective in bringing to justice the drug dealers, money launderers, child abusers and all those who traffic in human misery, as well as fighting terrorism and protecting national security.
The decision before the Government is whether to opt in to the new Europol regulations. A very interesting aspect of tonight’s debate has been that there is real support from noble Lords across the House for European and national co-operation to effectively tackle these issues. However, not a single voice has been raised this evening in support of the Government’s proposed block opt-out. I should have thought that, if there were to be such a contribution on this issue, it would have been heard this evening.
As the noble Lord, Lord Hannay, indicated, it is impossible to see this debate in a vacuum. We have to set it against the announcement that the Government want to opt out of all policing and criminal justice measures and then, in the hokey-cokey, try to opt back in to some of them, but we do not know which ones and how many or what the priorities are, and we do not know what the costs will be. As I have made clear, there are very real concerns about the Government’s position and perhaps, more importantly, the way that they have handled this issue. It undermines confidence and weakens our negotiating position when there are very real and serious issues that have to be addressed.
I look forward to the Minister’s response and hope that he can give us some clarity and reassurance on the issue. However, I greatly welcome this debate and, again, pay tribute to the whole committee for its thoughtful, insightful and very readable report.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I am grateful to the noble Lord, Lord Hannay, and the European Union Committee for calling this debate. I am pleased that we have had such a wide-ranging discussion, although some noble Lords have made a little bit of fun with expressions such as “hokey-cokey”. At bottom, the debate has been firmly rooted in the issues that the Government are having to consider and deliberate on. I think that noble Lords have taken their cue from the report and I am therefore extremely grateful to the noble Lord, Lord Hannay, and his committee for the clarity with which the report presents the issues before the Government.
I must say right now that the Government have not decided whether to opt in to the measure at this stage. The arguments are finely balanced. I do not feel that this decision has been overshadowed by any other decision which is also before the Government at this time. The point made in the committee’s report is that Europol and its future is an entirely separate issue. The noble Lords, Lord Judd and Lord Foulkes, referred to the importance of Europol in the fight against cross-border crime.
We also need to protect the independence of our own law enforcement agencies and there are elements in the draft measure which cause us concern. We therefore need to decide whether it would be better to opt in at this stage and use our vote in the negotiations to try to improve the proposal or to stay out for now and reconsider our position once the final text is agreed. Both options are open to us.
In saying that, I want to be clear that we strongly support Europol as it currently operates. As noble Lords have pointed out, we work very closely with it in tackling many serious offences, such as people smuggling and online child abuse. My noble friend Lord Sharkey gave some detailed examples of where Europol has been important in tackling cross-border crime affecting this country. Indeed, the noble Baroness, Lady Smith, also recognised that point of view. Europol provides real benefits to our law enforcement agencies. It is an effective and well run organisation with strong leadership. Indeed, as noble Lords have pointed out, with a Briton as its director, the UK plays an important part.
However, we are worried that some aspects of the new proposals may risk making our law enforcement agencies accountable to Europol, which would be a different thing. Policing is a core function of a sovereign country and must remain a member state responsibility. Perhaps I may illustrate this with an example. I refer to the proposals on police training. I am pleased that the European Union Committee shares our concerns about the proposed merger between the European Police College and Europol. The noble Lord, Lord Hannay, confirmed that in his opening speech. However, the Commission’s proposals go beyond the merger. They would give the Europol academy a much broader role than CEPOL currently has in police training, significantly expanding the EU’s responsibilities in an area that really should be left to member states.
We also have concerns about the stronger obligation to give Europol data, to which I shall perhaps return later in response to contributions. We accept of course that Europol needs good-quality intelligence from member states if it is to do its job properly. This country has a good record in that respect. But the new regulation goes far beyond specifying exactly what must be shared and in what circumstances. It does not allow us to withhold information that would threaten national security or harm an ongoing investigation. That worries us because it seems to undermine the control of member states over their law enforcement intelligence. Another factor we perhaps need to bear in mind is that it also risks overwhelming Europol with data provided by member states without regard to its quality simply to avoid being taken to the European Court of Justice.
Another concern is the provision that allows Europol to ask member states’ law enforcement agencies to carry out investigations. Europol already has some powers in this area but the new regulations strengthen them, which suggests a presumption that a member state will comply with Europol’s request. Any reason for not complying could be subject to challenge before the ECJ. Indeed, my noble friend Lord Sharkey acknowledged that this was a risk. We would have real concerns if that led to the European courts judging our policing priorities.
The committee has argued that we should opt into the text and negotiate out these provisions. That is an option, especially as opting in before 30 July would give us a vote in the negotiations. However, the proposal is subject to qualified majority voting, so if we did opt in we could still be out-voted. We would then be bound by the outcome even if we did not get the changes we were seeking.
It is right to bear in mind that the decision to stay out at this stage will not necessarily exclude us from Europol for ever. We would remain involved in the negotiations and would have another chance to take part once the measure had been adopted. That would give us the advantage of knowing exactly what the regulation would require of us before we signed up to it but with the offset of having no vote in the negotiations.
Lord Foulkes of Cumnock
My Lords, while the Minister is going through these arguments, perhaps he could explain why he has had no support from his own Back-Benchers and why none of the people who gave evidence to the sub-committee supported his point of view? Why has he not been able to persuade anyone inside or outside this House?
Lord Taylor of Holbeach
I am seeking to explain this particular case solely to those who are listening to me at the moment. As I have said, we are not coming to this debate with a set point of view. We are here to listen. We have had the opportunity of considering the report and we will continue to do so. The noble Lord will know that this debate will be looked at and the points made in it will be considered as part and parcel of the Government’s decision on whether to opt-in to the proposal or leave the decision and let the negotiations take their course. That is the Government’s position at this stage: that is what we are considering. This debate is very important because it will help to inform the Government’s decision. I have not come here with a point of view that will determine the outcome of those considerations.
Lord Judd
I am rather confused by what the Minister is saying. Do the Government agree that we best look to our interests on international crime and terrorism by being in an arrangement which ensures maximum European operational effectiveness? If they do agree that that is the case, how will we make sure that the regulation is what it should be if we sit on the sidelines, wait until others have decided and then make up our minds as to whether or not we want to join?
Lord Taylor of Holbeach
I have clearly said that we are not determining whether we will be in the negotiations or sitting and observing them. We are not likely to be passive—this Government are not inclined to be passive—and we shall certainly not be passive on an issue in which this country plays an important part, such as the future of Europol.
I am trying to be even handed on the issue. The Government have not made up their mind. We recognise that there are differences. That is why I have made clear that there are advantages in being a party to the negotiations having opted in, but I also pointed out the disadvantages that we might not achieve what we want to achieve through those negotiations and we would not have the freedom to negotiate from outside if we did not opt in. That is a reasonable position to present and I hope that noble Lords will accept it. There are strong arguments either way and the Government have not yet decided which option they will take.
Let me now deal with some of the points raised by the committee in its report. We agree that the data protection provisions in the regulation should take full account of the draft data protection directive and regulation. We also support appropriate scrutiny of Europol by the European Parliament and national Parliaments, a point made by the noble Lord, Lord Hannay. However, we would need to know how the proposals to disclose classified information to the European Parliament might work.
The noble Lord, Lord Hannay, said that US information is higher than other member states. I can confirm that the UK is currently in the top three countries that provide data. As I have indicated to noble Lords, whether or not we opt in, we will fully participate in negotiations and work closely with member states to seek the necessary amendments to these draft proposals. In response to the question put by the noble Lord, Lord Hannay, on retaining CEPOL, following the announcement of the closure of the Bramshill site, the Government’s priority is now to relocate the College of Policing so that it will be put on as strong a footing as possible to support policing in the UK. Other member states have expressed an interest in accommodating CEPOL, and there seems little point in insisting that it should stay in the UK just for the sake of it. We expect that the new proposal will repeal and replace the existing Europol Council decisions, although this does remain subject to negotiation. No final decisions have been made as to whether the Government will seek to rejoin as part of the wider 2014 opt-out decision. That decision has not been determined.
The noble Lord also asked why the debate scheduled for 3 July in another place was postponed and whether it will be reinstated. In truth, the debate was postponed to give the Government more time to consider the important voice of the opt-in and to reach a final view on it. The noble Lord will be aware that opt-in debates in another place are held on a Motion setting out the Government’s position. As I said earlier, we have not yet reached a decision on what that position will be. However, the Government are clear about their intention to hold a debate on this matter in another place, and such a debate will take place.
Baroness Smith of Basildon
My Lords, I apologise to the noble Lord because he has been generous in giving way. He has said that time will be made for the other place to debate this issue once the government decision has been made. The decision has to be taken by 30 July, which is the last sitting day in your Lordships’ House before the Summer Recess. However, the other place will finish around two weeks earlier. Can I have an assurance that, if the decision is taken between the other place rising and 30 July when this House rises, the noble Lord will make an Oral Statement so that we can debate the issue on the basis of the decision that is made, not the theory of the decision?
Lord Taylor of Holbeach
I imagine that I will be able to tell noble Lords that it is highly probable that a decision will be made before the other place rises, rather than before 30 July. The business of this House is a matter for the usual channels and I place myself in their hands. However, I would want to communicate any decision of this importance to the House and, indeed, to Parliament. I am sure that that will be acknowledged by my noble friends who occupy the usual channels.
My noble friend Lord Sharkey is correct to say that there are numerous examples of good co-operation. He illustrated the virtues of Europol and why, notwithstanding the discussions on whether to opt in or to let it run and then negotiate, it is such an important institution and we support it. I am aware that we share common ground with other member states on some issues, but there are no guarantees. The issues are subject to qualified majority voting and there have not been any detailed negotiations that have allowed us to gain a clear idea of how much support we have for our concerns. Should we not succeed in amending it, we would be bound by the final text, and that is a matter of concern to the Government.
Perhaps I may respond to the noble Lord, Lord Foulkes. I should like to highlight that there are two separate issues here: the block opt-out and the Europol negotiations. The two issues are not being confused and this debate is about the Europol regulation, not the opt-out.
Lord Taylor of Holbeach
If the noble Lord will forgive me, I am going to run out of time.
Lord Foulkes of Cumnock
My notice said that the House would rise at 10 pm, so we have an hour and a half. I wonder if the Minister will think again because the two issues are related. The recommendation I read out indicates that they are related. If you opt in and there is a block opt-out, and then you have to opt in again, there must be a relationship between the two.
The Minister and I know a little about another member state of the European Union, la belle France. The French are just as concerned about their national interest, their policing and the other concerns that he has expressed. Why does he think that they do not have the same anxiety that this Government seem to be expressing?
Lord Taylor of Holbeach
That is exactly the point that I have been trying to lay before the House and why the Government are deliberating carefully on this. It is a matter of common interest across European countries and of measuring that common interest. This is all a worthwhile endeavour but it requires the national interest to be taken into account. That is the background against which the Government are making this decision. Of course, there is a big issue about the general opt-out but this decision stands alone and is being considered by the committee and by the Government on its own merits. I have tried to demonstrate that this is an even-handed consideration of the issue.
I say to the noble Baroness that, whatever our decision, negotiations are important for us in ensuring the operational independence of law enforcement agencies and the security of our citizens. We expect there to be some common ground among member states, such as la belle France, if the noble Lord, Lord Foulkes, was referring to the interests that a number of noble Lords in the Chamber at the moment have. We are committed to ensuring the best possible outcome from these negotiations. We will need to consider the proposals in detail as the negotiations progress but we agree that strong data protection, for example, is important. The regulations here will need to reflect the data protection provisions being negotiated elsewhere. None is likely to change during the negotiating position. The noble Baroness asked how many other measures are awaiting an opt-in. I know of no others but will seek to find out and let her know if there are any.
This good-natured and deep-thinking debate, despite the hokey-cokey allusions, has considered the seriousness of this issue. As the noble Lord, Lord Judd, said, the security of the country requires us to make sure that law enforcement agencies have the co-operation they need from other European countries. I stress that the Government still have an open mind on the issue. We will of course consider the view of your Lordships’ House and the arguments made by noble Lords here tonight very carefully before we make our decision. I assure the House that the Government will ensure that this House, and Parliament are kept informed about that decision.
Lord Hannay of Chiswick
My Lords, this has been a relatively brief debate, and I hasten to assure those faithful few still here that I do not intend to apply Professor Parkinson’s law and use all the time available to wind it up. I think that the common point among all noble Lords who participated was the recognition that serious crime is an international problem now and that we need a great deal of co-operation to deal with it. That really was agreed by everyone. The noble Baroness, Lady Smith of Basildon, said that crime does not stop at Calais. I sometimes think that some of the Government’s supporters believe that crime starts at Calais, but we can leave that on one side. The fact is that it occurs on both sides of the Channel and the perpetrators are more and more imaginative about their use of technology and very rapid and easy travel, and all the other tricks of the trade, and that is why we need this sort of co-operation to deal with it.
I thank the faithful members of the sub-committee that I chair, the noble Lords, Lord Sharkey and Lord Judd, for having participated in this debate. The noble Lord, Lord Sharkey, very helpfully drew our attention to some of the practical consequences of Europol co-operation. Sometimes our debates must seem a bit theoretical, but he brought us firmly back to earth. The noble Lord, Lord Foulkes, who is on the EU Select Committee, was also very convincing.
Even I find this opt-in and opt-out business pretty confusing sometimes. We should remember, if we find it infuriatingly confusing, that it is entirely of our own making. No other member state goes through these agonies. This is an exercise in sadomasochism. I am not contesting it because I know how it came about. The various previous Governments who negotiated these rather complex arrangements were justified in doing so, in my view, but the complications are of our own making, so we should not get too irritated by them even though they are difficult to understand.
To answer a question asked by the noble Baroness, Lady Smith—the noble Lord did not answer it—first, there is the directive on the proceeds of crime, which your Lordships’ committee recommended the Government should opt into. The Government did not opt in, but they have not excluded opting in at the adoption stage. That is the position which the noble Lord described in relation to Europol. Rather more seriously, there is the European surveillance order, in which the Government do not have an opt-in or an opt-out; they have simply failed to implement a piece of European legislation which they agreed to. It came into force throughout the European Union in December last year.
The European surveillance order is actually rather important for British citizens because it provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country: that is, to stay in this country and avoid being taken to, say, some insalubrious jail in Greece where they are kept while awaiting trial. My own view, and that of everybody who participated last week in the very good seminar in which the noble Lord’s colleague, James Brokenshire, participated very positively, is that it is unconscionable that we have not opted into this. Apparently the reason is that the Government did not wish to pre-empt the view they were going to take on the European arrest warrant, but as a result of that decision there are British citizens who are not able to make use of the European surveillance order and be bailed in this country. That number will grow as the delay grows.
Turning to the purpose of the debate—the Europol regulation—I am most grateful to the noble Lord, Lord Taylor, for his habitually calm and friendly presentation of his position. I think I understand the complexities of the timing in the other place. The window of opportunity is rather modest, since the other place goes away on 18 July. It is the normal practice to give it one week’s notice of a government Motion, which takes us to 11 or 12 July, but after all that will be after 5 July, and we all know what is happening on 5 July in the other place on matters European.
I thank the noble Lord for his very helpful response about how he would keep the House informed of a decision by the Government. I am sure that it can be done in a light and easy way. Of course, there is no question of another debate of this sort, but if he could find a way of doing that, it would be really helpful, and I accept his undertakings on that with great thanks.