CEPOL Regulation: United Kingdom Opt-in

Lord Hannay of Chiswick Excerpts

Monday 3rd November 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, since I am no longer a member of the EU Select Committee—nor chair of its sub-committee on home affairs—which published the excellent report on the draft CEPOL regulation which we are debating this evening, I can give unstinting praise for the crispness and clarity of that report, which bears witness to the effective chairmanship of my noble friend Lady Prashar, who has just introduced it. I can do so without being thought to be purely self-serving. I support its analysis of the Commission’s draft regulation and its conclusion that the United Kingdom should opt in to its further negotiation before the three-month deadline expires on 24 November. I very much hope that the Government will reach the same conclusion and that the Minister will say so when he responds to the debate.

The complexities of the opt-in, opt-out system are mind-boggling, but before we take the easy way out of blaming that on Brussels, I suggest we recognise that these complexities are totally and entirely of our own making. No other member state faces the same complexities to the same extent when negotiating justice and home affairs legislation. No other member state has a substantial proportion of its own supporters in Parliament who will denounce any decision to opt in, even when the Government consider it in the national interest to do so, as a surrender to Brussels and an abdication of national sovereignty. “Oh what a tangled web we weave” could well be our motto when discussing these matters.

As to the CEPOL draft regulation itself, there are, I see, some points with which the Government are not entirely happy and which they seek to change in negotiations now taking place. That is quite normal and it would be unusual indeed if the Government were ready to agree to every word of every Commission draft. In fact, our track record on shaping justice and home affairs legislation has been good, ever since qualified majority voting was introduced in 2009. We support CEPOL: we welcomed its establishment in Budapest, so we surely need to get stuck in to these negotiations as a full participant and without delay. I was slightly baffled by the noble Lord, Lord Patten, who spoke about CEPOL in terms which led me to suppose that, in the brief time since I chaired the sub-committee, it had metamorphosed into one of those dragons which the shining knights of Euroscepticism ride out every day to slay. I was a bit puzzled by references to mission creep in a training organisation which has no executive authority and by the reference to subsidiarity which we, presumably, decided was fulfilled many years ago when we established CEPOL in Bramshill.

Perhaps the Minister will simply confirm that it is entirely a matter for Britain’s police forces to decide whether or not their officers and others in law enforcement agencies go to CEPOL. You cannot be ordered to send your officers to CEPOL: you decide whether they go. Some of those concerns were, therefore, a little wide of the mark. I say that because the binary choice of not joining the new CEPOL, with its new regulation, seems to me a totally disproportionate response to a few relatively minor and detailed blemishes in a draft which has not yet been negotiated. Can we seriously believe that Britain’s national interest would be served by standing outside CEPOL at a time when the international dimension of crime, whether you are talking about drugs, human trafficking, cybercrime, terrorism or many other forms of crime, is on the increase and the need for closer international co-operation is unchallenged? Therefore, the need for officers who understand how other people in the 28-member European Union are operating their procedures is very important. Do we want to deprive our law enforcement officers of the chance to build up their skills and to build up the networks that they will achieve by attending CEPOL courses? That would seem to be, frankly, aberrant.

However, the other part of the binary choice—the idea that we might perhaps rejoin the old CEPOL, as the Government intend to do under their package of 35 justice and home affairs measures, while not participating in the new CEPOL regulation—is, as the report says, hardly likely to be sustainable any more than it will be for Europol or Eurojust. If these judgments are correct, we should stop pretending that the binary choices really exist. Let us face it: we need to be in CEPOL.

Later this month, we shall have the opportunity to debate and to vote on the justice and home affairs measures that the Government believe to be in the national interest to rejoin after triggering the block opt-out. I will support the Government in that debate and will vote for that package. When I listen to the views of the Government’s own supporters who will oppose that course of action and to those of UKIP, which are identical to those of many of the Government’s supporters, I sometimes feel slight despair. They say that their position is a principled one. It is perhaps more accurately described as an ideological one. I suggest that we need to avoid these polarisations. We used to pride ourselves on our pragmatism and our preference for practical solutions. What on earth has become of that pragmatism when we see the mountain of evidence given to your Lordships’ House by lawyers, prosecutors, senior police officers and indeed by the Home Secretary herself about the value of those 35 measures to our own internal security?

That is a debate for another day. Today, I hope that we will hear that the Government intend to opt in to the CEPOL regulation before 24 November.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

I join your Lordships in paying tribute to the noble Baroness, Lady Prashar, for introducing this debate, for the way in which she introduced it and for the excellent report prepared by the committee, and I pay tribute to the members of that committee. This is part of the process that we agreed, that your Lordships’ House would have a say on these measures, when they come forward, and that there should be a report. We have a report, which is very clear in its recommendations, and I will turn to those in my remarks. It was also agreed that your Lordships should have an opportunity to debate, which is what is happening now. Of course, all that should happen before Her Majesty’s Government have actually reached a decision on whether to opt in at this stage. No decision has been made, so the comments that would be made in your Lordships’ House are pertinent, relevant and will be taken very seriously into consideration.

Before I turn to some of the specific points that have been raised, part of the system for considering these matters involves a formal government response to the report and requires the Government to update the House on their position. So while not losing track of the questions that have been raised from around the House, I will just put these remarks on the record.

I am grateful to the noble Baroness, Lady Prashar, and her committee for calling this debate and I am pleased that we have had such a wide-ranging discussion. The Government have not yet decided whether to opt in to this measure at this stage. The arguments are finely balanced. We recognise the work of CEPOL and its current mission to bring together senior police officers from across Europe to encourage cross-border co-operation in the fight against crime. However, we also need to retain national control over the training of our law enforcement agencies, and there are elements of the draft measures that cause us some concerns. 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 at this stage. I should say, of course, that they are open to us at this stage because the previous Government negotiated the justice and home affairs opt-out, so we are simply exercising an opt-out that they provided for us.

I want to be clear that we support CEPOL as it currently operates. CEPOL courses help the UK and UK law enforcement officers to build contacts across Europe, as has been mentioned by a number of noble Lords, and to exchange best practice in fighting crime. The training also provides personal development, strengthens partnerships and develops networks and co-operation, as well as providing the opportunity to share experiences. However, we are worried that some aspects of the new proposals would go beyond that and allow CEPOL and the wider EU to dictate aspects of our police training programmes. That is a very different thing.

The professionalism and training of the police and other law enforcement agencies should be led and developed by those organisations themselves, at a national or local level, and not by the EU. We believe that the focus of an EU-wide law enforcement training strategy should be to encourage member states to collaborate on matters that are mutually beneficial but to avoid telling us how to train our police. Provisions within the existing CEPOL Council decision are more than adequate to encourage member states to work together where appropriate. I am pleased that the committee chaired by the noble Baroness, Lady Prashar, sympathises with our concerns, including her proposals for a national unit and scientific committee. The commission’s proposals give CEPOL a much broader role than it currently has in law enforcement training, significantly expanding the EU’s responsibilities.

The Government believe that it should be for member states to define and determine which law enforcement officers may benefit from CEPOL’s activities. We are not at present convinced of the need for the law enforcement training scheme—known as LETS—and are concerned about the reference to this regulation in the text, which would make LETS legally binding on member states—this addresses the point that the noble Lord, Lord Sharkey, made about outlining the nature of our concerns. I know that several member states agree with us that all references to LETS within the regulation should be removed for this very reason.

Therefore, the question is whether we should opt in and use the vote—we would then have to help negotiate the proposals that concern us—or whether we should stay out for now, still participate in the negotiations, although without a vote, and consider applying to opt in post-adoption. Of course, the proposal is subject to qualified majority voting and co-decision with the European Parliament, so if we did opt in, we could still be outvoted and would then be bound by the outcome even if we did not get the changes that we were seeking.

A decision to stay out at this stage would not necessarily exclude us from CEPOL 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—which was precisely the point that was negotiated by the previous Government when they included that opt-out provision in the JHA. However, the disadvantage of having no vote in the negotiations is one which we are very mindful of, which is the point that the noble Baroness, Lady Smith, raised in her remarks. Even if we were not to opt in, I can assure the House that the UK’s voice will still be heard and listened to in the negotiations. Those negotiations are ongoing; we have officials attending Council working groups on the text as we speak, as they have been doing during this week and last week. That is very clear from Europol, a measure to which the committee of the noble Baroness, Lady Prashar, rightly attaches great importance. There we did not opt in pre-adoption but have secured some quite significant improvements to the text on Europol’s power to request investigation and to the duty of member states to supply it with information. So there are arguments either way. The Government have not yet decided at this stage which option they will propose.

The noble Baroness’s committee has argued that it is inevitable that we must adopt the regulation at some stage. In its view, it would be unworkable for the UK to be bound by the current Council decision, while other member states would be working with the provisions of the new regulation. The committee feels that this would in turn be likely to trigger the procedure under Article 4(a) of Protocol 21 of the Treaty of the Functioning of the European Union, resulting in the UK’s ejection from CEPOL. This regulation would repeal the existing 2005 CEPOL Council decision, to which the noble Lord, Lord Hannay, referred, for those member states participating in the regulation. In accordance with the opt-in procedure under Protocol 21, if the UK does not opt in to the proposal, and if it is subsequently adopted by the rest of the EU, the UK will remain bound by the underlying CEPOL Council decision, as the repeal aspect of the regulation would not apply to the UK.

The UK would be working with CEPOL according to the old Council decision while all other member states work according to the new regulation. Practically speaking, which was the point made by the noble Lord, Lord Hannay, this may not be impossible, especially if the new regulation does not significantly alter the focus of CEPOL. However, if the Commission considers—

[Lord Hannay of Chiswick]

I am sorry to interrupt the Minister, but I wanted to get in before he sat down. I did not suggest that it might not be impossible: I suggested that it might not be possible, which is the exact opposite.

Will the Minister also answer a question that disturbs me? This is not the first time that Home Office Ministers have taken refuge in not declaring their hand at the time of the debate in this House: it is about the third time, in fact. This demonstrates very clearly the ingenuity that Ministers and civil servants are able to put into turning into a meaningless matter the undertakings given by the noble Baroness, Lady Ashton, and by Mr Lidington from another place. The Government manage miraculously to remain poised on the horns of their dilemma until a couple of days after this House has expressed an opinion and then equally miraculously the light shines down from heaven and the Government take a decision, and they are not subject to any scrutiny in this House whatever.

Before he finishes, will the Minister undertake that when the light has shone down from above and the Government have reached a decision, he will come and tell the House what the Government have decided so that we can consider that? This is not a good way of dealing with these matters and the previous examples show just how badly the Lidington/Ashton undertakings are being implemented.

[Lord Bates]

I hear what the noble Lord says, but the advantage of having a debate at the present time is that the committee’s report and your Lordships’ contributions inform the Government’s position. That is beneficial, rather than coming to the House after a decision has been taken by Her Majesty's Government.

I also accept the noble Lord’s point about what is possible and what is impossible. I readily acknowledge that. It is not for us to decide whether it is possible or impossible: it is for the Commission and the other member states to determine whether they are willing to tolerate that or whether they wish to eject us from the process. That is further down the route.