Documents considered by the Committee on 18 March 2015 - European Scrutiny Contents

3 The European Police College

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; further information requested; recommendation for opt-in debate in European Committee B made on 3 September 2014
Document details(a) Commission Communication: Establishing a European Law Enforcement Training Scheme

(b) Draft Regulation establishing a European Union agency for law enforcement training (Cepol), repealing and replacing Council Decision 2005/681/JHA

Legal base(a) —, (b) Article 87(2)(b) TFEU; co-decision; QMV

Document numbers

Home Office

(a) (34842), 8230/13, COM(13) 172; (b) (36238), 12013/14, COM(14) 465

Summary and Committee's conclusions

3.1 The European Police College — CEPOL — is an EU Agency based (since September 2014) in Budapest. It provides training for senior police officers on the European dimension of policing.

3.2 Document (a) is a Commission Communication proposing a comprehensive European Law Enforcement Training Scheme ("LETS") to strengthen cross-border law enforcement cooperation and broaden access to all officials with responsibility for law enforcement, regardless of their rank. Document (b) is a draft Regulation which would establish a new legal base for CEPOL, align its structure and governance with the principles set out in the Common Approach on EU decentralised Agencies agreed by the Commission, Council and European Parliament in July 2012, and enable CEPOL to implement a new training approach based on LETS. The draft Regulation is subject to the UK's Title V (justice and home affairs) opt-in. It would repeal and replace a 2005 Council Decision on which CEPOL is currently based.

3.3 In light of concerns expressed by the Government that the draft Regulation would extend CEPOL's current mandate and "limit the flexibility for Member States to decide how police and other border and law enforcement training should be delivered", we considered that an opt-in debate was warranted and that it should take place before the Government notified its opt-in decision to the Council Presidency. The deadline for the Government to notify its opt-in decision expired on 24 November 2014.

3.4 We also asked the Government to:

·  clarify its position on subsidiarity, given that its view that "the professionalism and training of the police and other law enforcement agencies should be led and developed by those organisations themselves, at a national or local level", and its opposition to an increased role for the EU, might suggest that there was no justification for further EU action[2]; and

·  explain whether it would be legally or politically feasible for the UK to continue to take part in CEPOL, on the basis of the current 2005 Council Decision, if the UK were to decide not opt into the draft Regulation.

3.5 Nearly four months after the expiry of the deadline for opting into the draft Regulation, the Minister for Policing, Criminal Justice and Victims (Mike Penning) writes to inform us that the Government has decided not to opt in and to address the questions raised in our earlier Reports.

3.6 The Government's delay in notifying us directly of its opt-in decision, and its failure to schedule an opt-in debate, are reprehensible and unacceptable. The Government has failed to "ensure full transparency and accountability of opt-in decisions", despite the commitment it made to Parliament in January 2011 to do so.[3] Although the Minister tells us that the Government takes debate recommendations "very seriously" and seeks to schedule debates "in a timely manner", the evidence during this Session is entirely to the contrary. There have been persistent delays in scheduling debates and, as in this case, no compelling reasons given to explain the Government's evident reticence to expose itself to scrutiny by the House and be held accountable for its decisions. We will be looking to the next Government not only to re-affirm the commitments made to Parliament by the Minister for Europe in his Written Ministerial Statement of 20 January 2011, but to demonstrate that there is the political will to honour them.

3.7 The Minister's letter makes no reference to the possibility that the UK may seek to opt into the draft Regulation once it has been adopted, or to the negotiating objectives the Government intends to pursue in the meantime to ensure that UK interests are protected. When the Government provides its next update, we expect to hear how active a role the UK is playing in negotiations, what changes it is seeking to the draft Regulation, and whether, if achieved, the Government would be willing to contemplate a post-adoption opt-in.

3.8 We note the Government's view that CEPOL, in its current role, "plays an important role and adds value". We ask the Minister to ensure that any changes to CEPOL's existing mandate remain consistent with the principle of subsidiarity and add value to, rather than supplant, Member States' primary responsibility for law enforcement and training.

3.9 As the Minister's letter indicates, there remains some uncertainty as to the political and practical feasibility of remaining part of CEPOL on the basis of the 2005 Council Decision rather than the new Regulation (if adopted). We expect the Government to provide a detailed analysis of the options available to the UK to continue to participate in, or otherwise cooperate with CEPOL, once the draft Regulation has been adopted and the question of a possible post-adoption opt-in arises.

3.10 We note the Minister's opposition to the inclusion in the draft Regulation of a provision on the location of CEPOL. As we have previously stated, we consider that the UK position will be difficult to defend in future, in light of the UK's support for a 2014 Regulation expressly confirming Budapest as the new "seat" for CEPOL. We look forward to hearing how negotiations evolve on this aspect of the draft Regulation.

3.11 Pending further information from the Minister, as well as the regular updates he has promised on the progress of negotiations, the draft Regulation and Commission Communication remain under scrutiny.

Full details of the documents: (a) Commission Communication: Establishing a European Law Enforcement Training Scheme: (34842), 8230/13, COM(13) 172; (b) Draft Regulation establishing a European Union agency for law enforcement training (Cepol), repealing and replacing Council Decision 2005/681/JHA: (36238), 12013/14, COM(14) 465.


3.12 Our earlier Reports, listed at the end of this chapter, provide a detailed overview of the Commission's original proposal to merge Europol and CEPOL (which has been abandoned, following opposition in the Council and the European Parliament), its Communication setting out the content and objectives of LETS, and the content of the draft CEPOL Regulation.

3.13 Whilst expressing support for the work of CEPOL, the Government voiced reservations about:

·  the extension of CEPOL's mandate to encompass a broader range of law enforcement officers from all ranks, not just senior police officers;

·  the expansion of CEPOL's tasks to include the development of "common curricula" on cross-border criminal phenomena, the assessment of the impact of EU-related law enforcement training policies and initiatives, the management of EU funding to support capacity-building in third countries, and promotion of the mutual recognition of law enforcement training and European quality standards; and

·  the inclusion of a provision establishing in the draft Regulation establishing Budapest as the "seat" (location) of CEPOL, since this would give the European Parliament a right of co-decision on the location of an EU Agency.

3.14 The Government also considered that the requirement to designate a National Unit to cooperate with CEPOL would represent an additional burden for the UK's current national contact point (the College of Policing) at a time of budgetary restraint and cost-cutting.

The Minister's letter of 12 March 2015

3.15 The Minister (Mike Penning) confirms what we have seen elsewhere — in the Government's Fifth Annual Report on the UK's Title V opt-in and Schengen opt-out Protocols (published in February 2015), and in its Balance of Competences Report on EU police and criminal justice matters (published in December 2014) — that the Government has decided not to opt into the draft Regulation. He apologises for the delay in informing us of the Government's position and notes that the House has been informed by means of a separate Written Ministerial Statement.[4] He continues:

    "I apologise that no date has been set for the debate you recommended. We take ESC debate recommendations very seriously and seek to schedule debates in a timely manner, but unfortunately this is not always possible."

3.16 Turning to the Government's position on subsidiarity and the justification for EU action, the Minister recognises the importance of cooperation between law enforcement agencies across Europe:

    "We consider that CEPOL plays an important role and adds value in providing training in matters with an EU dimension that affect policing. However, it is also vital that we protect the autonomy of UK law enforcement agencies which must be able to determine what training they provide to their officers."

3.17 The Minister confirms that the UK will remain bound by the 2005 CEPOL Decision if it does not opt into the new Regulation after it has been adopted. He continues:

    "The UK would be working with CEPOL according to the old Council Decision, while other Member States work according to the new Regulation.

    "Practically speaking, this may not be impossible, especially if the new Regulation does not significantly alter the focus of CEPOL. 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) through the provisions set out in Article 4a(2) of Protocol 21 of the JHA opt-in Treaty.

    "Clearly, this depends on a number of questions that are currently hypothetical: whether we opt in post-adoption; and whether, if we do not, the Commission seeks to trigger the ejection mechanism. However, should we reach that stage, it would be important to note that the Protocol sets 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. But we are a long way from that point at the moment."

3.18 The Minister reiterates the points he has made in earlier correspondence concerning the inclusion of a provision in the draft Regulation stipulating the location of CEPOL. He explains that the Government only supported such a provision in a Regulation adopted in 2014, providing for CEPOL to move from its previous base at Bramshill, in the UK, to Budapest, as it was amending the 2005 CEPOL Decision which already included a provision on the location of CEPOL. He adds:

    "This was an exceptional decision, based on the fact that the change had to be made by legislation. However, our general position remains that the seat of an EU Agency should be determined by common accord of the Governments of the Member States, as laid down in Article 341 of the Treaty on the Functioning of the European Union."

3.19 The Minister undertakes to provide regular updates on the progress of negotiations.

Written Ministerial Statement

3.20 The Minister's Written Ministerial Statement, published on 12 March 2015, restates the Government's concerns about the draft Regulation and concludes:

    "The Government believe that the focus of an EU-wide law enforcement training strategy should be to encourage Member States to collaborate on matters that are mutually beneficial but to avoid mandating training requirements. The Government do not want the police and other UK law enforcement agencies to be accountable to an EU Agency and we need to be satisfied that our training and other operational priorities are not subject to EU determination.

    "The option to opt into this measure post-adoption remains open to the UK and Government will make a decision on that when the final text has been agreed."

Previous Committee Reports

Ninth Report HC 219-ix (2014-15), chapter 5 (3 September 2014) and Twenty-first Report HC 219-xx (2014-15), chapter 1 (19 November 2014). Our Third Report HC 83-iii (2013-14), chapter 1 and chapter 14 (21 May 2013) is relevant.

2   Letter of 12 November 2014 from the Minister for Policing, Criminal Justice and Victims (Mike Penning) to the Chair of the European Scrutiny Committee. Back

3   Written Ministerial Statement of 20 January 2011 by the Minister for Europe (Mr David Lidington). Back

4   HC Deb, col. 32WS, 12 March 2015. Back

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Prepared 27 March 2015