CEPOL Regulation: United Kingdom Opt-in

Lord Sharkey Excerpts

Monday 3rd November 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, CEPOL is a good thing and our membership of it benefits the United Kingdom. Your Lordships’ EU Select Committee believes that to be the case for the reasons set out so clearly by our chair, the noble Baroness, Lady Prashar. The Government believe this also. It would be a bad thing if the UK were to cease to be a member of CEPOL. It would be completely absurd for the UK to be the only member state not to be part of CEPOL. As things stand, that is precisely what will happen if we do not opt into the new CEPOL regulation.

I know that the Government have some reservations about the current draft of this new regulation, and so does the committee. I think we share the view that the proposed regulation goes beyond the scope of the existing regulation in ways that are not desirable. In particular, the Government are rightly concerned that the new, broader mandate would extend CEPOL’s training function to police officers of all ranks, to Customs officers and to other, unspecified, agencies dealing with cross-border issues. There are other concerns as well, to do with the contribution to CEPOL’s work programmes and the establishing of a CEPOL scientific committee. However, these concerns are not ship-sinkers. They are eminently resolvable by the usual processes of negotiation. There is no reason to believe that the Government would find it unusually difficult to have their concerns addressed, nor to believe that, in the unlikely event that these concerns were not addressed, that would merit leaving CEPOL.

The fact is that there is, as there has always been, a very strong case for UK membership of CEPOL. The details of the draft regulation, amended though we would like them to be, do not change that position. I think the Government will accept, as the committee’s report suggests, that we will opt in to this new regulation at some stage. The question we are really debating is the not unfamiliar one of whether we should opt in now or after adoption and before entry into force. It does seem rather perverse to deny ourselves a position at the formal negotiating table when it is certain that we will opt in to a final regulation anyway. What is the benefit to the UK of doing that? What are the dangers to the UK in the new draft that cannot be negotiated away? What are the dangers that outweigh exclusion from CEPOL? If the Minister disagrees with opting in to the proposed regulation now, perhaps he can say why it is better to be outside formal negotiation if we will opt in later, as we surely must.

As the noble Baroness, Lady Prashar, has already mentioned, the committee’s report also notes that the Government have chosen not to opt in to the proposed new Europol regulation. The Government have excluded themselves from formal negotiations over the text and we see no benefit in this. Of course, if we eventually failed to opt in we would almost certainly find ourselves excluded from Europol, which is surely an entirely unthinkable outcome. The deadline for opting in to the proposed CEPOL regulation is in 21 days’ time, on November 24. The UK should, and would, benefit from being at the negotiating table while the text is being finalised. Since it is unthinkable, I hope, that we will not opt in eventually, that is where we should be now: at the negotiating table.

Of course, I accept that the whole topic of opting in—or not—to JHA measures has not been a simple one for the Government. The Government have, on occasion, been very slow in providing the House and its committees with the information necessary for proper scrutiny. In fact, they seem to have got into the habit of providing information very late and, sometimes, on the day of a debate. The noble Baroness, Lady Prashar, has already noted the latest example of this. I believe the Government provided, three hours ago, the explanatory memoranda—due on October 16—of the two draft Council decisions to do with the block opt-out and rejoins which need to be adopted before the end of this month. Will the Minister say why there has been such a delay?

All in all, the Government’s handling of the Protocol 36 block opt-outs and rejoins has generated very much more heat than light. However, I hope the Government will not allow their past, and perhaps present, difficulties in this area to colour their attitude to the Motion before us. In particular, I hope that the controversy over the European arrest warrant among some Tory Back-Bench MPs will have no influence on the Government’s decision on the CEPOL or Europol opt-ins. I wholeheartedly agree with the Home Secretary that the European arrest warrant is a vital and necessary law enforcement tool, but so is our participation in Europol and so is our participation in CEPOL. I urge the Government to accept today’s Motion. More than that, I urge the Government to opt in to the proposed CEPOL regulation without delay.

--- Later in debate ---

[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.

[Lord Sharkey]

I am sorry, but I am not quite clear about whether the Government will bring back the issue to this House once they have made a decision on whether to opt in or not.

[Lord Bates]

The decisions that are made on these matters are ordinarily communicated by Written Ministerial Statement. If, through the usual channels, the business managers and the committee, there is scope for something more than that, of course we stand willing to comply with what the House requires and to show it due respect. But that is the normal course through which information is communicated on decisions of this nature.

However, if the Commission considers that UK non-participation makes CEPOL inoperable, it could seek to have us ejected from CEPOL, from the 2005 decision. The provisions in Article 4a(2) of the protocol clearly set this out. Clearly, this depends on a number of questions that are currently hypothetical: whether we opt in before 24 November; whether, if we do not opt in then, we do so post-adoption; and whether, if we do not, the Commission tries to trigger the ejection mechanism. But if things got that far, it would be important to note that the protocol sets what seems to be a very high threshold for ejection. It requires the measure to be “inoperable”, not merely inconvenient or difficult to operate, and it must be inoperable for the other member states, not just for the UK. These are tough tests for the Commission to meet. However, that is an argument to be had if and when we get to that stage. We are a long way from there at the moment.

With reference to the draft Europol regulation, as the committee is aware, we decided not to opt in at the outset, but committed to opting in post-adoption if certain conditions are met. I must stress that, at this stage, no decision to opt in has been made and no such decision will be made until negotiations are complete and the regulation is adopted. At that point, the full process for considering a post-adoption opt-in will be followed, which, as the committee is aware, can take several months. However, as mentioned above, and without pre-judging the final outcome, I can say that I am pleased with the current progress of the negotiations.

I realise that time is running out. I will deal with some of the matters raised and if I cannot deal with them all, I will of course respond in writing to the noble Baroness in the first instance and copy that letter to all other noble Lords who have contributed to the debate. Some specific points were raised by the noble Lord, Lord Sharkey, and my noble friend Lord Patten. My noble friend brings immense expertise to this having, in another place and in another guise, been a particularly fine Policing Minister in the Home Office. The particular issue of concern is the proposal for CEPOL to assess the impact of existing law enforcement training policies and initiatives and to promote the mutual recognition of law enforcement training in member states and related existing European quality standards.

We have a particular problem with this because, from the time between Bramshill closing and the CEPOL negotiations, we now have an excellent College of Policing, which is doing tremendous work among police forces in this country. To keep it in context—noble Lords asked about this—the attendance at CEPOL courses was typically around 100 officers per year at Bramshill. That has now gone. We are talking about the College of Policing, but also recognise that in Bramshill we have an asset, and there were associated running costs. That is going to front-line law enforcement in this country.

Other issues that were raised related to the timeliness of communications. The noble Baroness, Lady Prashar, and the noble Lord, Lord Judd, raised this in very serious terms. I will take it away and reflect on it. It is not always within our hands as to when we get documents and how to pass them on. However, I should like to sit down with the committee to understand how we can improve our performance, between officials at the Home Office, Ministers, and the committees, to ensure that committees are able to do their job of scrutiny in a proper way. I accept the reprimand, apologise and promise to look at that more closely.

Some Members, including the noble Lord, Lord Judd, referred to the Lisbon justice and home affairs opt-out. As I have said, that is an opt-out of the previous Government’s making. We are simply exercising our right to do it. It does not seem necessarily a bad thing that if you have a piece of regulation before you and you are not entirely happy with it, then you can undertake the genuine, sincere and vigorous negotiations happening at the present, and reserve judgment on whether you choose to opt into the final draft until you have seen the final text.

The noble Lord, Lord Patten, also referred to the fact that we need to work much better at cross-border co-operation in policing and serious crime. We recognise that that is a very important area. That is why we have taken the approach that we have towards Europol and the arrest warrant. We recognise, as the noble Baroness, Lady Smith, said in her remarks, that ensuring the safety and security of the people in this country is the first priority of every Government. We should do that, but we can do so not necessarily by signing up to everything, but by being discerning because we have been given the opportunity to do that.

I covered interdependence. We accept that we need to co-operate and that is an ongoing thing. I very much accept that we are in this together and that, as the noble Lord, Lord Judd, said, we need to co-operate. However, we can have meaningful input into the negotiations ongoing in Brussels with our position as it is. I do not think it is an ideological position. It is one that looks at different issues and treats them in different ways, raising legitimate concerns about CEPOL while recognising its very good work, taking a slightly different approach with Europol, and a different approach to the European arrest warrant. That is a balanced and broad approach. However, I assure your Lordships that we will take into account and re-read all the contributions made in the debate. Again, I thank the committee for the work it has prepared, which we can draw upon.