21 Reforming Europol
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8229/13
+ ADDs 1-6
COM(13) 173
| 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
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| Legal base | Articles 88 and 87(2)(b) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 18 July 2013
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| Previous Committee Reports | HC 83-ix (2013-14), 10 July 2013;
HC 83-vii (2013-14), chapter 1(26 June 2013); and
HC 83-iii (2013-14), chapter 1 (21 May 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
21.1 The draft Regulation, which would establish a new legal base
for cooperation between Member States' law enforcement authorities
and Europol, is subject to the UK's Title V (justice and home
affairs) opt-in. The Government, anticipating that the draft
Regulation would attract strong Parliamentary interest, offered
an opt-in debate on the Floor of the House which we accepted.
In advance of the debate, which took place on 15 July, the Minister
for Security (James Brokenshire) wrote to inform us that the Government
intended to recommend not opting into the draft Regulation
within the three month period available to the UK to notify an
opt-in decision, but to play an active part in negotiations and
seek changes which would enable the Government to recommend opting
in once it had been adopted. He did not expect the draft Regulation
to be agreed before 2015, at the earliest.
21.2 Meanwhile, the Minister alluded to the Home
Secretary's Oral Statement to the House on 9 July in which she
expressed the Government's intention to exercise the UK's block
opt-out of 130-odd pre-Lisbon EU police and criminal justice measures
and to seek to rejoin 35 of them, including the 2009 Council Decision
establishing the current basis for cooperation with Europol.
Our Eleventh Report of 10 July 2013 set out the reasons for the
Government's recommended approach and raised some further questions.
The Minister's letter of 18 July 2013
21.3 The Minister (James Brokenshire) confirms that
the Government does not intend to opt into the draft Regulation
at the negotiating stage and responds formally to the issues we
raised in our Eleventh Report.
21.4 Turning first to the timing of the Government's
notification of its recommended approach in advance of the debate,
he observes:
"I am grateful for your acknowledgement that
the Government has met the commitment in the Code of Practice
to notify its position to the Committee in time for you to discuss
it and report it to the House in advance of the debate. However,
you express disappointment that we did not give you our position
seven days before Monday's debate and ask whether the absence
from the Code of any commitment to that target is "an indication
that the Government does not believe it can be met." I accept
that the Government should provide its position to the Committee
as soon as it can. But the important thing, as the Code recognises,
is that we do so in time for the Committee to consider it and
report on it to the House, thus contributing to effective scrutiny.
I am pleased that we have been able to meet that commitment on
this occasion and will make every endeavour to do so on future
proposals."
21.5 We asked the Minister to confirm whether the
UK could expect to be ejected from Europol if the Government's
conditions for opting in post-adoption were not met and, if so,
what steps the Government had taken to ascertain whether, and
on what other terms, the UK would be able to cooperate with Europol.
He replies:
"This is a hypothetical question at this stage
as we intend to engage fully in the negotiations with the aim
of getting the amendments we seek and thus being able to opt in
post-adoption. However, as your report notes, we have always
been clear that our long-term membership of Europol does depend
on our eventual participation in the new measure.
"We expect the negotiations on the new proposal
to be lengthy, and do not expect to need to consider a post adoption
opt-in for at least two years. The Government has therefore not
yet considered in detail how we might continue to cooperate if
we were unable to opt in at that stage. That said, we know some
other Member States share some of our concerns about the text,
and have confidence that those concerns will be listened to during
negotiations. We will consider this question later on in the
negotiations if it looks as if we would not be able to recommend
a post-adoption opt-in."
21.6 We drew the Minister's attention to Article
276 TFEU which provides that the Court of Justice shall have "no
jurisdiction to review the validity or proportionality of operations
carried out by the police or other law enforcement services of
a Member State or the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order
and the safeguarding of internal security" and asked whether
he considered that this provision would adequately safeguard the
operational independence of UK law enforcement authorities if
they decided to refuse a Europol request to initiate a criminal
investigation. He explains:
"[T]he Government is 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 debateable whether a
decision to refuse to open an investigation would constitute 'operations
carried out by the police.' By definition, no operation would
have been carried out."
21.7 Finally, we invited the Minister to indicate
whether the restoration of the provisions in the current Europol
Decision that exempt Member States from the obligation to supply
data to Europol where doing so might endanger national security,
an ongoing investigation or the safety of individuals would meet
the Government's concern about the scope of the obligation to
share information under the draft Regulation. The Minister confirms
that:
"this would meet our most important concerns
about the data sharing obligations. However, we do have difficulties
with many other aspects of these provisions. These include, for
example, the requirement to copy all bilateral exchanges to Europol
and the deletion of the stipulation that information sharing be
on the Member State's 'own initiative'. We will use the negotiations
to seek improvements here as well."
Conclusion
21.8 We thank the Minister for his letter and
his undertaking to provide regular updates as negotiations progress.
We ask him to ensure that they address the reasons given by the
Government for deciding not to opt into the draft Regulation at
this stage, as well as any other significant changes to the Commission's
proposal. We also ask the Minister to provide progress reports
on discussions with the Commission and other Member States on
the Government's recommendation to rejoin the 2009 Europol Council
Decision.
21.9 The Minister suggests that it would be premature
to embark on a detailed consideration of whether, and on what
terms, the UK would be able to cooperate with Europol in the event
that the Government is unable to recommend opting in once the
draft Regulation has been adopted, describing this as "a
hypothetical question." We disagree. We think that an assessment
of all the possibilities for future cooperation with Europol,
including outside the legal framework proposed by the Commission,
would be helpful in determining whether or not participation in
the draft Regulation would be advantageous for the UK. We therefore
urge the Government to embark on such an assessment and to share
its analysis with us. Meanwhile, the draft Regulation remains
under scrutiny.
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