Europol Regulation: European Union Opt-In

Lord Hannay of Chiswick Excerpts

Monday 1st July 2013 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

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 on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA (document 8229/13) (2nd Report, HL Paper 16).

[Lord Hannay of Chiswick]

My Lords, I beg to move the Motion standing in my name on the Order Paper in my capacity as chairman of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which prepared the report now before your Lordships for endorsement. As the House will know, when we consider reports of the EU Committee, this is normally on a Motion that the House simply takes note of the report. In the case of this report, the Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiations on the Commission’s recently proposed Europol regulation. The reason is that the 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 into it. They have to do this within three months of the proposal being presented to the Council, which in this case means before 30 July. The committee believes that the Government should opt in, and the Motion invites the House to endorse that view.

In 2011, the Government repeated an undertaking given by the previous Government that time would be found to debate opt-in reports well before the expiry of the three-month period. I am most grateful that they have honoured the undertaking on this occasion by making time available for the debate early enough for them to be able to take into account the views of the House when reaching a decision on whether to opt in.

As many of your Lordships will know from earlier EU committee reports, most recently from the joint report of Sub-Committees E and F on the block opt-out under Protocol 36 to the Lisbon treaty, Europol—the European Police Office—is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. It was originally established in 1995 as an intergovernmental body, and became an EU agency in 2009, following the adoption of a Council decision to that effect. Europol has no executive or coercive powers to conduct investigations or make arrests in the member states, and the Commission’s proposal before your Lordships does not seek to change this. Europol supports the work of member states’ law-enforcement authorities by gathering, analysing and sharing information and by co-ordinating operations.

CEPOL, the European Police College, aims to encourage cross-border police co-operation by bringing together senior police officers from across the EU in training and exchange programmes, among other things. It was established as an EU agency in 2005, following the adoption of a separate Council decision. It is currently based at Bramshill in the United Kingdom, alongside the English and Welsh College of Policing.

The draft regulation we are debating would supersede both the pre-Lisbon Council decisions: the one dealing with Europol and the one dealing with CEPOL. It proposes to merge CEPOL with Europol in the latter’s existing headquarters in The Hague. The new regulation would also enhance some of Europol’s existing powers, in particular regarding the collection of data from member states and its ability to analyse the data more effectively. The Government have expressed concerns in their Explanatory Memorandum about the introduction of a stricter obligation on member states to provide data to Europol. I understand that in fact—this is a point of some interest—law enforcement agencies in the United Kingdom already share, voluntarily, a greater volume of information with Europol than do the agencies of other member states.

Doubts could also arise about Europol’s ability to cope with large volumes of information if it were to be copied in to all bilateral exchanges, as the regulation seeks to make mandatory. I would welcome the Minister’s thoughts on how the Government would address these concerns during the negotiations if they were to opt in to the proposal. The committee’s view, which we expressed in our report, was that the Government would be most effective in pursuing these concerns by participating in the negotiations. In doing so, I would hope that they would bear in mind, in dealing with our own concerns, our clear interest in other member states providing more information to Europol than they do at present. As always, there are two sides to the coin.

With regard to the proposed merger of Europol and CEPOL, your Lordships are probably aware that it has generated a degree of opposition, not least from both the agencies concerned. While the committee accepts, in general terms, the desirability of merging EU agencies if this will produce cost savings without a loss of effectiveness, it did not believe that the Commission had yet made a sufficiently convincing case for the merger in terms of reducing duplication, achieving efficiency savings and increasing effectiveness.

While the Government also appear to have concerns about the proposed merger, they somewhat counterintuitively appear to be unconcerned about the possible relocation of CEPOL to The Hague, following their announcement that the agency’s lease at Bramshill will come to an end in March 2014. I will ask the Minister for further information about the possible relocation of CEPOL, including whether any efforts have been made to retain the location of this agency in the United Kingdom. It now looks more likely that the two agencies will be kept apart, because there is strong opposition not only from the agencies but from quite a number of member states, as expressed in the recent Justice and Home Affairs Council and also in the European Parliament, where the LIBE Committee, which is a kind of opposite number to my sub-committee, is strongly opposed to the merger. Therefore, the likelihood is that CEPOL will be looking for a new home.

Concerns have been raised in the past about the limited parliamentary oversight of Europol. This has been addressed to a degree by the increased scrutiny of the non-operational functions of this agency, as well as of CEPOL, by the European Parliament since the entry into force of the Lisbon treaty in December 2009. In 2010, the Commission instigated discussions about how national Parliaments could be involved in the process of scrutiny and oversight in order at the same time to increase accountability at member state level, thus recognising the shared competences in the justice and home affairs field. I will explain that point. I think that everyone understands that this will be an area of mixed competence as far as the eye can see. It is not even conceivable that member states will hand all that over to the European Union. It is certainly not desirable that they should do so—and it is not going to happen. That means that in an area like this, where there is mixed competence and the issue of parliamentary scrutiny and oversight arises, the only sensible way to proceed is to try to avoid a food fight between the European Parliament and national Parliaments, and to see whether we can get some sort of system in which they operate together on the basis of equality.

My committee and I have played an active role in those discussions from the outset, and have pushed for the development of existing structures to this end, rather than for the establishment of new ones. There are regular meetings of the European Parliament LIBE Committee and the national Parliament Home Affairs Committee. If we build on them, we will avoid the potential costs and duplication that a more freestanding structure could entail. Other national Parliaments have tended to follow our lead in taking this view, and I will continue to state the case in Brussels and elsewhere. In that respect, we find the provisions in the draft regulation extremely welcome. They would increase parliamentary scrutiny of Europol, and its accountability both to the European Parliament and to national Parliaments, and would do so with a light touch, as we have recommended.

Our position on a number of other provisions in the regulation is set out in the report. Some are technical, and I will not weary the House with them. However, there is one to which I should draw attention. It arises in the context of the committee’s recent consideration of the Government’s 2014 block opt-out decision under Protocol 36 to the Lisbon treaty—about which I fear your Lordships will hear a lot in the coming months when we come to debate the committee’s report on this matter, which came out at the end of the previous Session, and when we receive the Government’s response to that report, which the noble Lord, Lord McNally, stated was coming “shortly”. “How short is a piece of string?” is perhaps the same question as, “How long is a piece of string?”. We will find out in due course.

Our witnesses for the Protocol 36 inquiry, the Home Secretary included, were almost unanimously positive about Europol’s role, including the significant benefits it provided for the United Kingdom’s law-enforcement agencies in terms of access to information, analysis, intelligence, co-ordination and support, as well as the efficient and cost-effective arrangement of having access to 40 countries in one place rather than co-operating through a network of bilateral arrangements.

The potential value of Europol has recently been enhanced by the establishment of a Cybercrime Centre within it, in response to the real challenges that cybercrime presents to all of us. If the Government choose to opt in to the regulation that we are debating today, the two Council decisions establishing Europol and CEPOL will simply drop off the list of measures that will be caught if the Government decide to trigger the block opt-out decision. However, four other measures on that list, which Europol informed the committee were “directly connected” with the Council’s Europol decision, will remain on the list. Do not ask me why this has happened or whether it is sensible that it has happened—but it has happened. Can the Minister clarify which of the existing measures are subject to repeal by the new regulation and how would handling any other relevant decision affect handling the block opt-out decision? Are the Government mindful of the need to opt back in to any Europol measures not so repealed, so that no question of lack of coherence arises? Of course, that will occur only if the Government agree to opt in to the Europol regulation, but it is worth going over that ground because there is a potential trap there, which it would be unwise for us to fall into.

My sub-committee plans to keep the present draft regulation under scrutiny. At this stage, only one matter is for decision by the House—whether or not the Government are recommended to exercise the United Kingdom’s opt-in by the end of July. For the reasons I have given, the committee is firmly of the opinion that the Government should do so, in part so that they can play a full and effective role in addressing the concerns that they have expressed, some of which we share, during the negotiations. It would be good to hear from the Minister at the conclusion of the debate whether it is the Government’s intention to opt in to the new Europol regulation. I understand that a parallel debate on this issue in another place has been postponed from the scheduled date of 3 July. Can the Minister say why that has happened and when the debate will be reinstated, presumably before the other place rises on 18 July? Can he assure the House that when a decision is taken on the opt-in, it will be communicated to this House? I beg to move.

[Lord Sharkey]

My Lords, I start by thanking the noble Lord, Lord Hannay, for the way in which he chaired the committee in the production of the report which forms the basis of this evening’s debate. I also thank the committee’s clerk, Michael Torrance, for his invaluable input into the report.

The noble Lord, Lord Hannay, has set out forcefully the case for agreeing to our committee’s recommendation that the Government should opt in to the new Europol regulation. They have four weeks to do that. I shall not repeat the noble Lord’s arguments in detail, but I want to re-enforce the argument about Europol’s importance to this country’s national security and crime-fighting efforts and to speak about where the clear balance of advantage lies in this debate.

Europol, with its outstanding British director, is a success story for the United Kingdom. In 2010, Operation Golf, a joint operation between Europol and the Met, led to the arrest of seven individuals in the UK and 126 individuals in total for trafficking children; 28 children in the UK were released as a result and 181 children in total. Operation Rescue, a three-year operation launched by the Met and co-ordinated by Europol across 30 countries, led to the discovery of the world’s largest online paedophile network; 670 suspects were identified, 184 arrests were made and 230 sexually exploited children were protected. Operation Veto, an investigation led by Europol across 13 European countries, uncovered an extensive criminal football match-fixing network. A total of 425 match officials, club officials, players and serious criminals from 15 countries are suspected of involvement.

There are other successful case histories. However, Europol’s critical role in helping the UK can be summed up in the words of ACPO, which said:

“Much of our international crime and transient criminals come from Europe and membership of these organisations”—

Europol and CEPOL—

“makes it easier to target them. Removing ourselves from these measures and putting ourselves in the position of having to re-negotiate 26”—

it will now, presumably, be 28—

“treaties on each and every topic, would be a massive step back for UK policing that would benefit no one”.

--- Later in debate ---

[Lord Taylor of Holbeach]

That is exactly the point that I have been trying to lay before the House and why the Government are deliberating carefully on this. It is a matter of common interest across European countries and of measuring that common interest. This is all a worthwhile endeavour but it requires the national interest to be taken into account. That is the background against which the Government are making this decision. Of course, there is a big issue about the general opt-out but this decision stands alone and is being considered by the committee and by the Government on its own merits. I have tried to demonstrate that this is an even-handed consideration of the issue.

I say to the noble Baroness that, whatever our decision, negotiations are important for us in ensuring the operational independence of law enforcement agencies and the security of our citizens. We expect there to be some common ground among member states, such as la belle France, if the noble Lord, Lord Foulkes, was referring to the interests that a number of noble Lords in the Chamber at the moment have. We are committed to ensuring the best possible outcome from these negotiations. We will need to consider the proposals in detail as the negotiations progress but we agree that strong data protection, for example, is important. The regulations here will need to reflect the data protection provisions being negotiated elsewhere. None is likely to change during the negotiating position. The noble Baroness asked how many other measures are awaiting an opt-in. I know of no others but will seek to find out and let her know if there are any.

This good-natured and deep-thinking debate, despite the hokey-cokey allusions, has considered the seriousness of this issue. As the noble Lord, Lord Judd, said, the security of the country requires us to make sure that law enforcement agencies have the co-operation they need from other European countries. I stress that the Government still have an open mind on the issue. We will of course consider the view of your Lordships’ House and the arguments made by noble Lords here tonight very carefully before we make our decision. I assure the House that the Government will ensure that this House, and Parliament are kept informed about that decision.

[Lord Hannay of Chiswick]

My Lords, this has been a relatively brief debate, and I hasten to assure those faithful few still here that I do not intend to apply Professor Parkinson’s law and use all the time available to wind it up. I think that the common point among all noble Lords who participated was the recognition that serious crime is an international problem now and that we need a great deal of co-operation to deal with it. That really was agreed by everyone. The noble Baroness, Lady Smith of Basildon, said that crime does not stop at Calais. I sometimes think that some of the Government’s supporters believe that crime starts at Calais, but we can leave that on one side. The fact is that it occurs on both sides of the Channel and the perpetrators are more and more imaginative about their use of technology and very rapid and easy travel, and all the other tricks of the trade, and that is why we need this sort of co-operation to deal with it.

I thank the faithful members of the sub-committee that I chair, the noble Lords, Lord Sharkey and Lord Judd, for having participated in this debate. The noble Lord, Lord Sharkey, very helpfully drew our attention to some of the practical consequences of Europol co-operation. Sometimes our debates must seem a bit theoretical, but he brought us firmly back to earth. The noble Lord, Lord Foulkes, who is on the EU Select Committee, was also very convincing.

Even I find this opt-in and opt-out business pretty confusing sometimes. We should remember, if we find it infuriatingly confusing, that it is entirely of our own making. No other member state goes through these agonies. This is an exercise in sadomasochism. I am not contesting it because I know how it came about. The various previous Governments who negotiated these rather complex arrangements were justified in doing so, in my view, but the complications are of our own making, so we should not get too irritated by them even though they are difficult to understand.

To answer a question asked by the noble Baroness, Lady Smith—the noble Lord did not answer it—first, there is the directive on the proceeds of crime, which your Lordships’ committee recommended the Government should opt into. The Government did not opt in, but they have not excluded opting in at the adoption stage. That is the position which the noble Lord described in relation to Europol. Rather more seriously, there is the European surveillance order, in which the Government do not have an opt-in or an opt-out; they have simply failed to implement a piece of European legislation which they agreed to. It came into force throughout the European Union in December last year.

The European surveillance order is actually rather important for British citizens because it provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country: that is, to stay in this country and avoid being taken to, say, some insalubrious jail in Greece where they are kept while awaiting trial. My own view, and that of everybody who participated last week in the very good seminar in which the noble Lord’s colleague, James Brokenshire, participated very positively, is that it is unconscionable that we have not opted into this. Apparently the reason is that the Government did not wish to pre-empt the view they were going to take on the European arrest warrant, but as a result of that decision there are British citizens who are not able to make use of the European surveillance order and be bailed in this country. That number will grow as the delay grows.

Turning to the purpose of the debate—the Europol regulation—I am most grateful to the noble Lord, Lord Taylor, for his habitually calm and friendly presentation of his position. I think I understand the complexities of the timing in the other place. The window of opportunity is rather modest, since the other place goes away on 18 July. It is the normal practice to give it one week’s notice of a government Motion, which takes us to 11 or 12 July, but after all that will be after 5 July, and we all know what is happening on 5 July in the other place on matters European.

I thank the noble Lord for his very helpful response about how he would keep the House informed of a decision by the Government. I am sure that it can be done in a light and easy way. Of course, there is no question of another debate of this sort, but if he could find a way of doing that, it would be really helpful, and I accept his undertakings on that with great thanks.