Europol Regulation: European Union Opt-In

Baroness Smith of Basildon Excerpts

Monday 1st July 2013 Lords Chamber

I support the noble Lord, Lord Hannay, in the proposition that he has put to the House. I can say clearly—we have heard it from the other Benches—that on a cross-party basis Sub-Committee F is fully behind the noble Lord, and we hope that the House will respond accordingly.

[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.

--- Later in debate ---

[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.