CEPOL Regulation: United Kingdom Opt-in

Baroness Prashar Excerpts

Monday 3rd November 2014 Lords Chamber

Moved by

[Baroness Prashar]

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 of the European Parliament and of the Council establishing a European Union agency for law enforcement training (CEPOL), repealing and replacing the Council Decision 2005/681/JHA (document 12013/14) (3rd Report, HL Paper 52).

[Baroness Prashar (CB)]

My Lords, I move the Motion standing in my name on the Order Paper as chairman of the European Union Committee sub-committee on Home Affairs, Health and Education which prepared the report on the UK opt-in to the draft CEPOL regulation to which this Motion relates.

As your Lordships know, when the House considers reports of the European Union Committee, it is normally on a Motion that the House takes note of the report. In this case, the Motion invites the House to agree to the committee’s recommendation. The reason is that this 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 in to it. They have to do this within three months of the proposal being presented to the Council, which means before 24 November. The committee believes that the Government should opt in now, and the Motion invites the House to endorse that view. The Government have undertaken that time will be found to debate opt-in reports well before the expiry of the three-month period. I am therefore grateful that they have made time available for this report early enough for them to be able to take the views of the House into account.

CEPOL is the European police college. It brings together senior police officers from across the EU and aims to encourage cross-border co-operation in the fight against crime and the maintenance of public security and law and order through training and exchange programmes and the sharing of research and best practice. Until September this year, it was located at Bramshill in Hampshire; in September, it moved to Budapest.

Despite its important role, CEPOL is less well known than Europol, which is a much larger EU agency for co-operation in law enforcement and whose aim is to achieve a more secure Europe by supporting member states in their fight against serious organised crime and terrorism. CEPOL and Europol are separate bodies set up under different Council decisions. In March 2013, the Commission put forward a new regulation for Europol, one of whose objects was to merge CEPOL with Europol. That regulation, too, was subject to the United Kingdom opt-in. Some of your Lordships were present on 1 July 2013 when the committee’s report on that regulation was debated. Those who spoke shared the committee’s doubts about the desirability of such a merger. The Government too had concerns, and so did the director of Europol. The director of CEPOL also opposed the merger, and it was rejected by the European Parliament. Finally, in March this year, the Council decided against the merger. The provision relating to CEPOL was therefore deleted from the Europol regulation.

The Commission has now brought forward a separate regulation dealing only with CEPOL, and it is this separate regulation which we are considering tonight. It is the Government’s practice in their Explanatory Memoranda dealing with measures subject to the UK opt-in to give no indication of whether they are inclined to opt in. Instead, they say simply that they consider such measures on a case-by-case basis. That is what they said last year in relation to Europol. Two months after the debate they said that they would not opt in to the Europol regulation—and by then it was, in any case, too late for them to do so.

In the case of CEPOL regulation we have at present no indication from the Government of what their intentions are, unless the Minister can tell us when he responds. There are, in the Committee’s view, very good reasons why the Government should opt in now to the CEPOL regulation. Cross-border co-operation in the fight against crime and the maintenance of public security and law and order have never been more important. Senior UK officers have much to learn from their colleagues in other member states—and perhaps even more to contribute.

The Government have concerns about the Commission’s proposals to widen CEPOL’s remit: these are listed in paragraphs 16 to 18 of the report. We have some sympathy with some of these concerns, but the committee is of the view that the Government should opt in now, as this will give the message that the Government intend to continue to support and be part of CEPOL. It will also give the Government a formal place at the negotiating table when attempts are made to amend the Commission’s draft. In other words, the Government would be better placed to make their views and concerns known in the course of negotiations if they have opted in.

Opting in to CEPOL regulation is important, but opting in to the Europol regulation is critical. Europol is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. Yet, as I said, the Government declined to opt in to the Europol regulation during the three-month window, preferring to say that they would wait until after the regulation was adopted and consider again whether to opt in. In the case of both CEPOL and Europol, if the Government do not ultimately opt in to the relevant regulations, the consequences will be serious. We explain the reasons in paragraphs 20 to 23 of our report and these reasons have been accepted by the Government.

Not opting in would thus initially result in the UK remaining bound by the decision giving CEPOL its existing powers while other member states will be bound by a regulation with a different constitution and wider powers. This would mean that the other member states would have the power to decide that the measures setting up these agencies will cease to apply to this country. There is every likelihood that they will do so. The United Kingdom would, in effect, be expelled from both agencies.

Two years ago, Rob Wainwright, the highly regarded British director of Europol, told my committee that if the UK stopped participating in Europol:

“It would increase the risk of serious crimes, therefore, going undetected or not prevented in the UK”,

and that, as the UK is a common destination for drug and people trafficking,

“any diminution of the UK’s capability to deal with those problems would clearly increase public safety risk”.

The consequences if the UK were to leave Europol would, in his words, be “pretty disastrous”.

I seek three assurances from the Minister. First, that the Government will opt in to the CEPOL regulation; secondly, that they will do so within the three-month period, before 24 November; and, thirdly, that they will opt in to the Europol regulation as soon as possible after it is adopted, and, in any case, before it comes into force.

I also take this opportunity to put another matter before your Lordships. Four weeks from today is 1 December, the fifth anniversary of the entry into force of the Lisbon treaty, and the day on which the Government’s decision to opt out of all justice and home affairs measures takes effect. It is also the day on which the Government would like to opt back in to 35 of those measures. This, I need hardly remind your Lordships, is a matter of great importance, and the Government have undertaken that this House will debate it well in advance. On 27 September the Commission published the final list of those 35 measures, annexed to a draft decision which will enter into force on 30 November and extend the application of those measures by a week.

We should have received, by 16 October at the latest, the Government’s memorandum explaining the meaning and purpose of this proposal and their attitude to it. Had we done so, we would have considered it at our meeting on 22 October. We were unable to look at it then, or on 29 October. We received the memorandum less than three hours ago, so there is little prospect of our scrutinising the draft decision on 5 November, which is our last meeting before the Recess. We are frequently told how seriously Ministers take their scrutiny obligations. Therefore, I should be glad to have the Minister’s explanation of why, in a matter of such great importance and urgency, the Government have, despite repeated reminders, failed in their duty to the committee and to this House. I beg to move.

--- Later in debate ---

[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.

[Baroness Prashar]

My Lords, I thank all Members of the House for their contribution to the debate and for their positive comments about the report and the work of the EU Select Committee, for which I am very grateful. I have listened very carefully to the Minister and welcome the fact that he is willing to discuss the timetable to ensure that there is better engagement with the committees on timing. I also listened carefully to what the Minister said about the pros and cons of opting in now or later and the process. I must say that I find that unsatisfactory. I am disappointed that we have not had a clear answer on the Government’s intention. I urge the Minister to think about that, because the committee weighed the pros and cons and recommended that it would be wiser to opt into the regulation now rather than later.

Having said that, what is clear from the tone of the debate is that there is disappointment about the process, but we also have to take account of the context within which opt-ins are being discussed. The noble Lord, Lord Judd, talked about the culture and the importance of working together. It is important also to register the broader point within which the debate about opt-ins is taking place.

I thank the Minister for his response and I beg to move.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

Is the noble Baroness withdrawing the Motion?

[Baroness Prashar]

No.

Motion agreed.