Proposed Europol Regulation

James Brokenshire Excerpts

Monday 15th July 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I beg to move,

That this House takes note of European Union Document No. 8229/13 and Addenda 1 to 6, a draft Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA; and agrees with the Government that the UK should opt into the Regulation post-adoption, provided that Europol is not given the power to direct national law enforcement agencies to initiate investigations or share data that conflicts with national security.

The motion sets out the position that the Government intend to take on the new Europol regulation, which the Commission published at the end of March. The motion makes clear our view that we should not opt into the regulation now but only after it is adopted, provided that the two conditions set out in the motion are met. Those are that the regulation does not empower Europol to direct national law enforcement agencies to initiate investigations and that it does not require them to share data that conflict with national security. To join the regulation with those requirements in it would not be acceptable.

In making the recommendation, the Government had two choices. We could opt into the new Europol regulation by the initial deadline of 30 July—in other words, within three months of its publication. That would give us a vote in the negotiations, but would mean that we were bound by the final text even if it contained measures that we could not support. Alternatively, we could wait until the negotiations were finished and then make a decision, knowing exactly what we would be signing up to. That is the approach that the Government are recommending tonight.

In saying that, I recognise, of course, the important help that Europol gives us in the fight against cross-border crime. I have seen that at first hand and I know it has played a crucial role in helping the police catch some very serious criminals. For instance, Operation Rescue brought together law enforcement authorities from 13 countries to tackle an online paedophile network. Europol cracked the security features on the network’s server, which allowed law enforcement to identify the offenders. As a result, 121 suspects were arrested in the UK and 230 children were protected from abuse.

[Keith Vaz (Leicester East) (Lab)]

I join the Minister in praising the work of Europol, which I visited four weeks ago. I saw the superb work that is being done. Is it not better that we should be part of the discussions, influencing them, rather than just accepting the new architecture after it has been arranged?

[James Brokenshire]

I hope to assure the right hon. Gentleman that we will be there, influencing and seeking to negotiate the measure. We may not be opting in at the outset, but that should not in any way, shape or form be taken as the UK Government’s not wishing to seek to influence the measure and create the changes that we believe are necessary for us to consider a subsequent opt-in, post adoption.

The right hon. Gentleman will want to congratulate Rob Wainwright, whom he spoke to on his recent visit, on the important job that he is doing to make Europol an effective, well-managed and widely respected organisation in the fight against international crime.

We can point to other examples. Operation Golf, which has been cited several times previously in this House, was a joint UK-Romania investigation team targeting a specific Romanian organised crime network. Offences associated with the network included human trafficking, money laundering, benefit fraud, perverting the course of justice, theft, and handling stolen goods. Europol provided analytical support and facilitated real-time checks on its systems, and 126 individuals were arrested in the UK. Europol’s help in Operation Seagrape led directly to the identification of bank accounts used by a people-smuggling gang based near Dunkirk. French, Belgian and British agencies worked jointly to target a specific organised crime group, and 36 arrests were made. It is for those reasons that the Government believe that it is in the national interest to seek to rejoin the current arrangements for Europol agreed back in 2009 as part of the 2014 decision. That was made clear in our discussions in the previous debate.

However, that is not the matter before us now. Instead, we need to decide whether to opt into the new regulation, which sets down new rules and powers for Europol and, we believe, would change its relationship with member states in some quite troubling ways. Our first concern is with the proposals on data exchange. The Commission wants member states to share more data with Europol. That is a good idea in principle; after all, Europol can only be as effective as the information it holds. However, a strong legal obligation to supply it with data, as proposed in the draft regulation, is a different matter. It would undermine member states’ control over their own law enforcement intelligence, which we regard as absolutely fundamental.

Even more worrying is the fact that the draft regulation does not exempt member states from providing information even if it could damage national security, or endanger ongoing operations or an individual’s safety. These protections are explicit in the existing instrument governing Europol but absent from the new proposal. That is a significant change. The proposal also strengthens Europol’s power to request investigations. It can already do this to some extent, but the new proposal creates a presumption that member states will comply with a request. It also strengthens their duty to give reasons if they decide not to do so. That is particularly worrying because any reasons could be subject to challenge before the European Court of Justice.

The European Scrutiny Committee has asked whether article 276 of the treaty on the functioning of the European Union would protect us from having a refusal challenged in the Court. We are not convinced that it would. Article 276 prevents the Court from reviewing

“the validity or proportionality of operations carried out by the police or other law enforcement services”.

It is highly debatable whether a decision to refuse to open an investigation would constitute

“operations carried out by the police”

because, by definition, no operation would have been carried out. We therefore do not think that article 276 provides enough protection against the Court’s involvement. This creates a real risk of the European Court being able to second-guess our policing priorities. That would simply be unacceptable. Policing is a core function of a sovereign state and it must remain a member state responsibility.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister raises two concerns that I share to some extent. Presumably other member states have also had these concerns. What conversations has he had with them about whether other countries will be joining us to try to get this changed?

[James Brokenshire]

My hon. Friend makes an important point. Discussions have already taken place and member states have voiced concerns. Our certainty faces a challenge because, as I will come on to say, there is an element of risk with regard to what will happen, given that there is qualified majority voting and the European Parliament can make a co-decision. Given the significance of the issues, it is right that we wait to see what the final measure looks like before deciding whether to opt in. I think that that is the right approach, which is why we tabled the motion. However, as I told the Chair of the Home Affairs Committee, that does not mean that we will not engage in active discussions with member states, the Commission and others in order to seek to influence this measure as it is negotiated.

I have discussed the proposal personally with senior law enforcement officials from across the UK. Like us, the law enforcement community supports Europol as it is now, but the senior officers I spoke to agreed that our issues with the new text are real and serious.

On the Opposition’s amendment, the Government agree entirely that it is right to consult chief constables and law enforcement partners as part of this process. We have consulted senior law enforcement officers from across the UK, including the Metropolitan police and policing partners from Scotland and Northern Ireland. However, I ask the House to reject the amendment, because ultimately this is a decision for Parliament and the amendment does not contemplate Parliament coming to a view on whether we should opt in post-adoption.

Some hon. Members may argue tonight that we should opt into this proposal and negotiate out the elements that cause us concern. The problem with that is that the proposal is subject to qualified majority voting and we cannot guarantee that we would get the changes we need. We could quite easily be outvoted in Council, and then we would be bound by the final text, even if it contained elements we could not accept.

The Government are not prepared to take risks on something as important as this, which goes to the very heart of our law enforcement. We therefore intend not to opt in at this stage, but to remain fully engaged in negotiations and work with other member states and the European Parliament to push for the changes we need.

We know that member states and the EU institutions value our experience in this area. We have already had indications that others recognise our concerns and are prepared to work with us to try to find a solution.

We do not expect the regulation to be agreed much before the end of 2015. When it is agreed, we will consult Parliament on it again, depositing the final text with an explanatory memorandum, and, as this House knows from the handling of the human trafficking directive, we will be able to hold another debate at that time.

I stress that the Government’s position has no immediate implications for our participation in Europol. As I have said, we believe it is in our national interest to seek to rejoin the existing Europol legal instrument as part of the 2014 decision process. By doing so we will retain our full membership of the organisation throughout the negotiations, so nothing will change for the foreseeable future.

[Mr Dominic Raab (Esher and Walton) (Con)]

The Minister is setting out cogently the scrutiny being exercised by the Government and the pros and cons. If we cannot remove the supranational whistles and bells, what contingency planning or negotiations are in place so that, if we do not opt back in, we can still retain operational co-operation, which, whatever anyone’s views from an ideological standpoint, most people would regard as important?

[James Brokenshire]

I heard my hon. Friend speak in the preceding debate about the importance of continuing operational co-operation. Members from all parties recognise the transnational nature of crime and the subsequent operational need for law enforcement divisions from all European member states to be able to collaborate and co-operate in order to fight it. We certainly believe that, because of the way in which Europol can bring a number of member states together in one space, it is the most effective way to proceed, provided that the appropriate safeguards are met when the measure is finally concluded and negotiated, and that they reflect the concerns that my hon. Friend raised in the previous debate about extensions into supranational competency. The Home Secretary also made clear in the previous debate her views on a European police force.

Subject to those safeguards being introduced, we believe that a reformed Europol measure is the optimum way forward, but it is clearly open to us to negotiate individual operational relationships with other member states. However, in our judgment, the nature of Europol and the intelligence work that it conducts in support of member states’ law enforcement agencies mean that our emphasis will be on seeking to influence the measure and to be in a position to opt into it following its adoption, provided that the appropriate safeguards are achieved. Again, that will be subject to further parliamentary scrutiny, and to the potential for a further debate in this House, to assess and analyse the provisions and to ensure that the appropriate safeguards are provided.

We wish to remain part of Europol, and will do so provided we get the amendments that we need, but we cannot support it at any price. We will not put our sovereignty and security at risk by committing ourselves in advance to a proposal that, as drafted, poses significant risks to both. The Government’s approach shows that we are serious about international police co-operation and about protecting the autonomy of our law enforcement agencies. I urge the House to support the motion tonight.

--- Later in debate ---

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure to follow the hon. Member for Stroud (Neil Carmichael). He should not apologise for making a brief speech: they are most welcome in the House after seven hours debating the European Union. It is not the length but the quality of what he has to say that matters.

The hon. Gentleman is absolutely right that everyone who has spoken so far supports Europol—one wonders what we are debating—and is full of praise for Rob Wainwright, who is one of the very few British people to head a European organisation. Everyone who has spoken has been full of praise for an organisation that can look back at a history of co-operation between all European countries. I had the privilege of visiting Europol five weeks ago, and meeting Rob Wainwright and looking at the various methods by which countries co-operate. It was fascinating, and I would urge every Member of the House to go. The Select Committee on Home Affairs will probably go later this year, during our inquiry into international crime and terrorism.

Europol basically has an office for every European country, with its police officers present in those offices. If people wish to try to track down criminals who have left this country and gone to other countries, our office can be contacted. Those officers then cross the corridor—literally—and hand the information to a police officer in another country. Almost immediately the information is transmitted to that other country, so while the serious and organised criminals are out there trying to commit crimes, here we have an organisation that is working to cut through the red tape of the European Union and producing some superb results. As the Minister said, not only did Operation Golf—the operation that brought together our police force and the Romanian police—result in many strands of human trafficking being disrupted, but we caught real criminals. That was a great benefit to both countries.

I heard what the shadow Minister said about the Association of Chief Police Officers, and he is absolutely right: we should take into consideration what ACPO is saying. He is right to draw the House’s attention to the fact that ACPO has written to the Prime Minister and others about its concerns. However, at the end of the day, such decisions are matters for this House and those who sit in it. Although ACPO can be helpful in providing advice to this House and to Ministers, ultimately it is we who need to make the decision.

The debate comes down to this point. We need to opt in because Europol is a successful organisation—one that actually catches international criminals and disrupts criminal networks. In the area of Europol dedicated to monitoring the internet, I saw how, almost hourly, ACPO officials can view sites that are dedicated to supporting and encouraging terrorism. If we did not have organisations like Europol, our job in this country and the job of our police service would be much more difficult.

However, I think the Government are making a mistake in this motion. I supported the Government in the last vote because the Government accepted the amendment of the Chairs of the Select Committees and allowed us the opportunity to scrutinise the opt-out arrangements—and, we hope, the opt-in arrangements—when we have finished our scrutiny. The mistake that has been made is this: if we are not at the table influencing the way in which Europol 2, if we can call it that, will develop, I feel that we will not do justice to the police services in this country and we will not do justice to what we want to see happen in the fight against international crime.

We need that seat at the table if we are to influence the new architecture of the fight against international crime. That view has been put forward not just by ACPO but by others who seek to try to influence how this develops. Frankly, if we are not there and are not able to participate in those discussions, we will not be able to influence what the new architecture will look like.

[James Brokenshire]

I hope I can assure the right hon. Gentleman that we will be there and will remain fully engaged in the negotiations so that we are able to influence them. For the reasons he highlights, although we might not be opting in at the outset, I can assure him that the influence and the focus will be there and time will be spent to exert influence in a positive way. I recognise the right hon. Gentleman’s point; we are very cognisant of it.

[Keith Vaz]

I am not saying that Ministers, officials and UKRep will not be working very hard, but there is a big difference between opting in and being right at the top of and part of the process, and being able to engage in influence: they are two quite different things. The view of the officials I met at Europol was that they really needed to be there, and they could not understand why we were not going to be there, taking part in these deliberations and discussions.

Another one of the Minister’s arguments is “If we are there, it has to go to qualified majority voting”. He could ask the Minister for Europe about this, but I think he will find if he looks at the figures that we are almost always on the winning side when it comes to QMV. I do not know whether he has the figures, whether his officials could give him them or whether he could tell us about them if he makes a winding-up speech, but unless things have changed in the last 10 years, when a British Minister sits at a table where European issues are being discussed and it goes to a vote, we are almost always on the winning side.

I think we will be on the winning side on this particular issue because it is to do with policing and we are hugely respected for the work we do in the fight against international crime. I think the Minister’s argument is weak when he effectively says “We are afraid of the results at the European Council and we cannot take a risk because we might lose”. Of course we might lose, but I think we can make these arguments, especially because we have a British head of Europol, who has recently been confirmed for another term—four years, I think—in office.

I urge the Minister to think again. He says we are going to have some influence and be engaged, but it is really not the same if we are going to be on the sidelines and exert influence only after all the negotiations are over. I think people will accept the words of a British Minister who would be widely respected on the justice and home affairs agenda. He would be able to put his views forward in his articulate and intelligent way while sitting at a meeting. He will obviously draw on the efforts of ACPO, but I agree with the hon. Member for Cambridge (Dr Huppert) that ACPO is not the be-all and end-all of policing.

You will remember, Mr Speaker, although I do not want to draw you into the debate, when the 42 days issue was being discussed we were all told, “ACPO and the police service all want the House to vote for 42 days. It is everything that everyone has always wanted so we all have to vote for it”—until, of course, it changed its mind and we did not follow that approach. We hugely respect ACPO and all the people in it, but at the end of the day we need to make this decision. I very much hope that the Minister will think again and allow us the opportunity to be there at the top table, influencing these discussions.

--- Later in debate ---

[James Brokenshire]

With the leave of the House, Mr Speaker, may I thank right hon. and hon. Members for their contributions in this short debate? Let me be clear that our recommendation in the motion is about participation in a future measure governing Europol; it has no impact on our current participation in Europol, which does benefit our law enforcement agencies. That point was made by everyone who has contributed to this debate: the Chair of the Select Committee, the right hon. Member for Leicester East (Keith Vaz); and my hon. Friends the Members for Stroud (Neil Carmichael), for Cambridge (Dr Huppert), for Northampton North (Michael Ellis) and for Cheltenham (Martin Horwood). That highlights the issues at hand in respect of the benefits that accrue from our current relationship.

I underline the fact that nothing that the Government have proposed reduces our commitment to tackle cross-border crime. However, we cannot risk the operational independence of our law enforcement agencies, and we need to ensure appropriate safeguards within the text so that that does not happen. I say very clearly to right hon. and hon. Members that we will play an active role in negotiations to ensure that we achieve our negotiating aims, which will allow us to opt in post-adoption. In response to the challenge from the right hon. Member for Leicester East, we consider that it is possible to achieve key negotiating objectives, even when we have not opted into a proposal before the negotiations. We have already done that on a number of measures, and we are clear about the influence that can be applied, and that is precisely what we will do. As I said, we consulted a number of our operational colleagues across the UK when considering the proposal. They all agree about the value of Europol as it currently operates, but not at any cost.

[Jim Shannon (Strangford) (DUP)]

rose—

[James Brokenshire]

The hon. Gentleman was not here at the beginning of the debate, so he may not have heard what I said.

[Jim Shannon]

In Northern Ireland, we face a particular threat from dissident republicans. What assurance can the Minister give me as the MP for Strangford that we will not lose the ability, through Europol, to address the threat of terrorism at home and globally, because dissident republicans have contacts in other countries?

[James Brokenshire]

If the hon. Gentleman had been here to hear my opening speech, he would know that we have discussed our approach with the Police Service of Northern Ireland as well as other operational partners across the UK. While we are not seeking to opt in at this stage, we wish to negotiate and seek to influence so that we are in a position to opt in post-adoption, with the red lines.

The hon. Gentleman should accept that the information- sharing provisions in the EU document could put our national security at risk by virtue of the fact that we would not be able to control the information provided to Europol, which is precisely why we have sought to take this approach, with national security in mind. The law enforcement community shares our concerns about the risks that would be posed if we were directly tasked by Europol to undertake operations or to provide increased amounts of information to it without the necessary safeguards.

It is not the case that as a result of the approach that we have taken we have given up our seat at the table. We shall continue to play a full part in negotiations, attending the discussions and working with member states that share our concerns to seek to deliver a text that we can rejoin. Ultimately, this is a political decision for the Government, with appropriate scrutiny from Parliament. That is why we will consult and listen to the views of our law enforcement partners across the UK, but ultimately this a decision for Government and Parliament, which is why the motion is framed in this way.

Opting in at this stage poses too great a risk to our security and the autonomy of our law enforcement agencies, but once the text has been negotiated we intend to opt in if we secure the changes set out in the motion, and we will consult Parliament before doing so. Our position on the proposal is sensible and pragmatic, reflecting the need for effective co-operation and the importance of protecting our sovereignty and security. I urge the House to support the Government motion.

Question put, That the amendment be made.