Documents considered by the Committee on 13 November 2017 Contents

43The European Police College: the Government’s post-adoption opt-in decision

Committee’s assessment

Politically important

Committee’s decision

Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union

Document details

(a) Commission Communication: Establishing a European Law Enforcement Training Scheme

(b) Proposal for a Regulation establishing a European Union agency for law enforcement cooperation (CEPOL), repealing and replacing Council Decision 2005/681/JHA

Legal base

(a) —

(b) Article 87(2)(b) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(a) (34842), 8230/13, COM(13) 172

(b) (36238), 12013/14, COM(14) 465

Summary and Committee’s conclusions

43.1The 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. The UK has participated in CEPOL since its inception in 2000.608

43.2Document (a) is a Commission Communication dating back to 2013. It proposes a comprehensive European Law Enforcement Training Scheme (“LETS”) to equip police and other law enforcement officers, regardless of their rank, with the skills and knowledge needed to tackle cross-border crime more effectively. Document (b) is a proposed Regulation put forward by the Commission in 2014. It aligns CEPOL’s 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 enables CEPOL to implement a new training approach based on LETS. It also repeals and replaces a 2005 Council Decision on which CEPOL was previously based.

43.3The proposed Regulation was subject to the UK’s Title V (justice and home affairs) opt-in Protocol (Protocol 21 to the EU Treaties), meaning that the UK would only be bound by the new Regulation if the Government decided to opt in. In light of concerns expressed by the Government at the time that the proposal 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”, our predecessors recommended in September 2014 that the Government’s opt-in decision should be debated before the three month deadline for opting in at the outset of negotiations expired in November 2014.609 They made clear that the debate should address the consequences of not opting into the proposed Regulation for the UK’s continued participation in CEPOL.

43.4The Government failed to schedule an opt-in debate and only informed our predecessors of its decision not to opt into the proposed Regulation in March 2015, four months after the opt-in deadline had expired. The then Minister for Policing (Mike Penning) confirmed that the UK would continue to remain bound by the 2005 CEPOL Decision, adding:

“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.”610

43.5Our predecessors made clear in March 2015 that the Government’s reticence to expose itself to scrutiny by the House and be held accountable for its opt-in decision was unacceptable. They noted that there was some uncertainty as to the political and practical feasibility of remaining part of CEPOL on the basis of the 2005 Council Decision and said:

“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.”

43.6The Regulation was formally adopted in November 2015.611 The changes to CEPOL’s mandate and governance took effect on 1 July 2016.

43.7The Minister for Policing and the Fire Service (Mr Nick Hurd) now writes to inform us that the Government “is not minded” to opt into the Regulation post-adoption, adding:

“From a domestic UK policing training perspective, the Government is not convinced of the benefits of CEPOL. Its penetration across UK policing as a whole is limited: around 100 UK senior officers attend CEPOL courses every year. Many more law enforcement officers attend our UK domestic College of Policing. Existing networks, cooperation and working relationships will largely be maintained between our forces and their opposite numbers in other EU Member States, and the College of Policing’s own International Academy will continue to work with other countries’ forces.”

43.8He considers that any increase in CEPOL activity would “increase the pressure on College of Policing resources at a time when it is already facing the need to reduce costs, and divert resources away from other support to policing in the UK”. Although the College of Policing “is still engaging with CEPOL”, the Minister anticipates that the Commission may initiate the procedure set out in Article 4a of the UK’s Title V opt-in Protocol to eject the UK from CEPOL. He continues:

“If the Commission does start ejection proceedings, I do not intend to challenge the inoperability decision in this case—although we would want to ensure the correct process is followed. The Government accepts that the differing management board roles, responsibilities and voting rights in this Regulation compared to the 2005 Decision could make CEPOL ‘inoperable for other Member States or the Union’.”

43.9The Minister’s letter raises more questions than it answers.

43.10The Minister tells us that the Government “is not convinced of the benefits of CEPOL” because the training it provides has limited penetration across UK policing as a whole. We note that the Regulation increases the pool of police officers able to take up CEPOL training since access to training will no longer be determined by rank. Moreover, in 2013, the Association of Chief Police Officers concluded that UK participation in CEPOL was worthwhile, noting that “Given the global nature of crime, any facility that assists in cross training and the sharing of experiences and ideas across the EU is intrinsically a good thing and a positive force in UK policing”.612 Can the Minister assure us that UK policing supports the Government’s recommendation not to opt into the new CEPOL Regulation now that it is in force?

43.11The Minister anticipates that once the Government’s decision not to opt into the new CEPOL Regulation becomes public, the Commission may initiate the procedure to eject the UK from CEPOL. If this were the Commission’s intention, it is difficult to understand why it has not yet acted, given that the Regulation has been in force since July 2016. Nor is it clear what incentive the Commission has to act, given that the UK will be leaving the EU in March 2019. We ask the Minister whether the Commission has intimated that it intends to act and has only refrained from doing so pending confirmation from the Government that the UK is not opting in.

43.12The Government told our predecessors in 2015 that Article 4a of the UK’s Title V opt-in Protocol “sets a very high threshold for ejection” and that a measure must be inoperable, “not merely inconvenient or difficult to operate”. It made clear that these were “tough tests for the Commission to meet”. Despite this, the Minister says that he does not intend to challenge the UK’s ejection from CEPOL if the Commission initiates the Article 4(a) procedure. We understand that there is no precedent for the use of this procedure. As this is the first time that it may be used, we expect the Government to take a rigorous approach, not least to mitigate any risk that the procedure could be used to eject the UK from other EU Agencies, notably Europol.613 We ask the Minister whether he considers the “very high threshold for ejection” can be met in this case, given that the College of Policing “is still engaging with CEPOL” despite the UK’s non-participation in the CEPOL Regulation. We also ask him to clarify whether the Government’s preference is for the UK to remain bound by the 2005 Council Decision and continue to engage with CEPOL until exit day, or to cut itself loose sooner.

43.13If the UK is ejected from CEPOL, the Article 4a procedure includes provision for the UK to bear any “direct financial consequences” which are “necessarily and unavoidably incurred” as a result of its ejection. What assessment has the Government made of the nature and scale of the financial consequences which the UK may be required to bear?

43.14A decision to eject the UK from CEPOL would have domestic consequences. As the 2005 Council Decision would “no longer be binding upon or applicable to” the UK under Article 4a(2) of the UK’s Title V Protocol, it would not become part of the body of “retained EU law” under the Act withdrawing the UK from the European Union. If the Commission does not initiate the Article 4a procedure, we ask the Minister to confirm that the 2005 Council Decision would become part of retained EU law and to indicate whether he considers that it would be appropriate to use the correcting powers which clause 7 of the European Union (Withdrawal) Bill would confer on Ministers in this case.

43.15The CEPOL Regulation includes provision for third country participation in CEPOL’s work.614 We would welcome further information on the Government’s plans for future cooperation with CEPOL once the UK leaves the EU and has third country status.

43.16As the CEPOL Regulation is now in force, we are clearing it and the accompanying Commission Communication from scrutiny. We do so in the knowledge that past scrutiny of the Regulation has been beset by persistent delays and mishandling on the part of the Government which our predecessors described as “reprehensible”. We expect the Minister to respond promptly to the questions we have raised, failing which we will invite him to do so in person. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.

Full details of the documents

(a) Commission Communication: Establishing a European Law Enforcement Training Scheme: (34842), 8230/13, COM(13) 172.

(b) Proposal for a Regulation establishing a European Union agency for law enforcement cooperation (CEPOL), repealing and replacing Council Decision 2005/681/JHA: (36238), 12013/14, COM(14) 465.

Background

43.17The Reports listed at the end of this chapter provide a more detailed overview of the proposed Regulation and its lengthy scrutiny history.

43.18The new CEPOL Regulation adopted in November 2015 repeals and replaces the 2005 CEPOL Decision. As the UK has not opted into the CEPOL Regulation none of its provisions, including those repealing and replacing the 2005 Decision, apply to the UK. The UK therefore remains bound by the 2005 CEPOL Decision.

43.19The UK’s Title V (justice and home affairs) opt-in Protocol makes provision for the UK to be ejected from a measure in which it currently participates (in this case the 2005 CEPOL Decision) if it would be inoperable for other Member States or the EU because the UK has chosen not to opt into a subsequent amending measure (including one that repeals and replaces the earlier measure). The procedure for ejecting the UK from the CEPOL Decision is set out in Article 4a of the Protocol. It can only be initiated by the Commission and must be agreed to by the Council acting by a qualified majority of Member States participating in the CEPOL Regulation. The Council may also decide that the UK should bear “the direct financial consequences, if any, necessarily and unavoidably incurred” as a result of its ejection from the 2005 CEPOL Decision.

The Minister’s letter of 20 July 2017

43.20The Minister apologises for the delay in writing to us “due to uncertainties arising as a result of the EU Referendum and more recently due to Purdah”. He reminds us that the Government decided not to opt into the proposed CEPOL Regulation at the outset of negotiations in 2014 and says that the Government “is minded not to opt into” the Regulation now that it has been adopted and is in force.

43.21The Minister sets out the reasons for the Government’s decision:

“From a domestic UK policing training perspective, the Government is not convinced of the benefits of CEPOL. Its penetration across UK policing as a whole is limited: around 100 UK senior officers attend CEPOL courses every year. Many more law enforcement officers attend our UK domestic College of Policing. Existing networks, cooperation and working relationships will largely be maintained between our forces and their opposite numbers in other EU Member States, and the College of Policing’s own International Academy will continue to work with other countries’ forces.

“The Regulation would require the UK to establish a ‘national unit’ to manage our relationship with CEPOL. We resisted this mandatory obligation during the negotiation but were not able to remove it. The national unit would need to supply CEPOL with the information necessary for it to carry out its tasks, respond to requests for information and advice from CEPOL, contribute to CEPOL’s effective communication and cooperation, and contribute to and promote CEPOL’s work programmes.

“CEPOL recognises that national units will play a bigger role in the future and will never simply be ‘suppliers of information’ but will be ‘the main vehicle for the conception and delivery of CEPOL activities’. The College of Policing currently acts as the CEPOL co-ordinator for the UK and is obliged to participate in CEPOL’s Governing Board. Any increase in CEPOL activity would therefore increase the pressure on College of Policing resources at a time when it is already facing the need to reduce costs, and divert resources away from other support to policing in the UK.”

43.22The Minister explains that the UK may be at risk of being ejected from CEPOL:

“The date of application of the new Regulation was 1 July 2016. Once the Government’s decision becomes public, the Commission may start proceedings under Article 4a (2) of Protocol No. 21 to the Treaties to eject the UK from the 2005 CEPOL Decision. However, at the moment we have not been ejected and the College of Policing is still engaging with CEPOL. If the Commission does start ejection proceedings, I do not intend to challenge the inoperability decision in this case—although we would want to ensure the correct process is followed. The Government accepts that the differing management board roles, responsibilities and voting rights in this Regulation compared to the 2005 Decision could make CEPOL ‘inoperable for other Member States or the Union’.”

Previous Committee Reports

Thirty-seventh Report HC 219–xxxvi (2014–15), chapter 3 (18 March 2015), 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).


608 CEPOL was established in 2000 and was co-located with the College of Policing for England and Wales at Bramshill in Hampshire. The Government announced the sale of the Bramshill site in December 2012 and made clear that CEPOL would be required to relocate. Budapest was agreed as CEPOL’s new base in May 2014.

609 See para 22 of the Explanatory Memorandum submitted by the then Minister for Modern Slavery and Organised Crime (Karen Bradley) 7 August 2014.

610 See his letter dated 12 March 2015 to the Chair of the European Scrutiny Committee.

612 See the ACPO report of 25 January 2013, Assessing the Impact of a UK Opt-out of EU Third Pillar Criminal Law and Policing Measures under the Lisbon Treaty. ACPO has since been replaced by the National Police Chiefs’ Council (established in April 2015).

613 See chapter xx (38261 and 38815) of this Report. The Government does not intend to opt into proposed changes to the Europol Regulation which are linked to the creation of a European Travel Information and Authorisation System and would establish a “watchlist” of criminal suspects. Any lowering of the threshold for applying the Article 4a procedure could potentially be used to eject the UK from Europol.

614 Article 34 of the CEPOL Regulation makes provision for third country participation in CEPOL based on “working arrangements” agreed with CEPOL.




20 November 2017