Documents considered by the Committee on 13 November 2017 Contents

44Europol: the Government’s 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

Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol)

Legal base

Article 88 TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(38252),—

Summary and Committee’s conclusions

44.1Europol is at the forefront of the EU’s response to international crime and terrorism. Founded as an intergovernmental organisation in 1995 and operational since 1999, Europol became an EU Agency in 2009. It provides analytical and operational support to Member States’ national law enforcement authorities, enhancing their capacity to tackle security threats which have a cross-border dimension. Since 2009 Europol has been led by Rob Wainwright, the former head of the international division of the UK’s Serious and Organised Crime Agency (now the National Crime Agency). To facilitate the rapid exchange of criminal intelligence, strategic and operational information, Europol’s staff work alongside liaison officers seconded to its headquarters in The Hague by EU Member States and other partner countries or organisations. Europol uses its intelligence-gathering and analytical capabilities to support more than 40,000 international criminal investigations each year, identify and assess emerging security threats, and develop and disseminate expertise on law enforcement. Europol officers may take part in Joint Investigation Teams but have no direct powers of arrest and no authority to use coercive measures.615

44.2After three years of negotiation, a new Regulation updating Europol’s governance structure, objectives and tasks was adopted in May 2016 and took effect on 1 May 2017. The Regulation was subject to the UK’s Title V (justice and home affairs) opt-in, meaning that it would only apply to the UK if the Government decided to opt in. The then Coalition Government decided not to opt in when the Commission presented its initial proposal for a new Regulation in March 2013, but made clear that it wished the UK to remain part of Europol and intended to play an active role in negotiations with a view to securing changes which would enable the UK to opt in at the end of the negotiating process once a final text had been agreed. In July 2013, the House endorsed a motion stating 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”.616

44.3The Justice and Home Affairs Council agreed a general approach on the proposed Regulation in June 2014 setting out its position ahead of negotiations with the European Parliament. The UK had no right to vote on the general approach but the then Government considered that “significant improvements” had been made to the provisions concerning the initiation of criminal investigations and the sharing of information with Europol. It reiterated its commitment to ensuring that “Parliament is able to give its view on a post-adoption opt-in before any such decision is finalised”.617

44.4Negotiations with the European Parliament were concluded at the end of 2015 and the Regulation was formally adopted in May 2016. The principal objective of the new Europol Regulation is to strengthen mutual cooperation between national law enforcement authorities and enhance their operational effectiveness in preventing and combating terrorism and serious crime affecting two or more Member States. Europol will continue to develop its role as “a hub for information exchange”, gathering criminal intelligence and producing strategic analyses and threat assessments. The Regulation also seeks to “enhance the democratic legitimacy and accountability of Europol” through the inclusion of new provisions on the scrutiny of its activities by the European Parliament and national parliaments.618 In April, the Conference of Speakers of national parliaments across the EU established a Joint Parliamentary Scrutiny Group to monitor Europol’s activities.619

44.5The previous Government wrote to inform our predecessor Committee of the Government’s intention to opt into the new Europol Regulation last November, noting:

“Opting in will maintain operational continuity for UK law enforcement ahead of the UK exiting the EU, ensuring our Liaison Bureau at Europol is maintained, and that law enforcement agencies can continue to access Europol systems and intelligence. This decision is without prejudice to discussions on the UK’s future relationship with Europol when outside the EU.”620

44.6Our predecessors’ earlier Report (listed at the end of this chapter) provides an overview of the negotiations which led to the adoption of the Regulation and the then Government’s reasons for recommending that the UK should opt in. The proposed opt-in decision was debated in European Committee B on 12 December 2016 and the Government’s motion endorsed by a Resolution of the House agreed on 14 December. The final part of the motion expressed support for “the Government’s assessment that Europol provides a valuable service to the United Kingdom and opting in would enable the United Kingdom to maintain its current access to the Agency, until the United Kingdom leaves the EU”.621

44.7The European Commission was notified of the UK’s request to opt into the new Europol Regulation on 16 December 2016 and confirmed UK participation in March this year. In his Written Ministerial Statement, the then Minister for Policing and the Fire Service (Brandon Lewis) explained:

“Opting into the new Regulation means that the UK will remain a full member of Europol when the new Regulation comes into force on 1 May. It also demonstrates our commitment to work together with our European partners to fight crime and prevent terrorism now and when we leave the EU.”622

44.8As our predecessor Committee noted, the Government’s decision to opt into the new Europol Regulation not only safeguards the UK’s continued participation in Europol while it remains a member of the EU but has wider implications for the UK’s relationship with Europol once it leaves the EU. The Government has repeatedly made clear that maintaining cooperation with EU partners in the fight against crime and terrorism is a priority. To cite but a few examples, in her Lancaster House speech the Prime Minister stated:

With the threats to our common security becoming more serious, our response cannot be to cooperate with one another less, but to work together more. I therefore want our future relationship with the European Union to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.”623

44.9In its White Paper, The United Kingdom’s exit from, and new partnership with, the European Union, the Government said that it would “seek a strong and close future relationship with the EU, with a focus on operational and practical cross-border cooperation”.624 The Secretary of State for Exiting the European Union (Mr David Davis) told the House last year that, in negotiating the future relationship, the Government would seek to “keep our justice and security arrangements at least as strong as they are” and “as far as possible to replicate what we already have”.625 He has also indicated that “we are not the supplicant, either in this negotiation or in what follows”, describing the UK as “the intelligence superpower in Europe” and “critical to the defence of Europe from terrorist threat”.626

44.10The then Minister for Policing and the Fire Service (Brandon Lewis) told the House in April that that it was “difficult to see how it would be in anyone’s interest for our departure from the EU to result in a reduction in the effectiveness of security, law enforcement and criminal justice cooperation [….] We will leave the European Union, but nobody voted to be less safe”.627 In considering “how we should interact with the EU security, law enforcement and criminal justice toolkit from outside the EU”, the Government would not “look […] to replicate any other nation’s model”.628 He told our predecessors that “the position we build outside the EU will be unique to Britain”.629

44.11The Government’s future partnership paper, Security, law enforcement and criminal justice published in September highlights Europol’s importance as “a central source of analysis and expertise” and as a “platform for liaison and joint action” which multiplies the national capabilities of each of its members. It says that the UK will seek “a bespoke relationship with Europol as part of a future partnership between the UK and the EU” but does not explain how that relationship would differ from the UK’s current membership of Europol.630 We ask the Government:

44.12As the Regulation is now in force, we clear it from scrutiny. We nonetheless expect the Government to respond to our questions promptly and may return to this issue in in the light of those responses. 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

Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA: (38252),—.

Background

44.13Once the UK leaves the EU, it will be a third country for the purposes of EU law. The new Europol Regulation includes a number of provisions dealing with Europol’s relationship with third countries. These provisions enable Europol to exchange information (excluding personal data) with the authorities of third countries on the basis of informal “working arrangements”.633 These working arrangements must include express provisions empowering the EU Court of Auditors and the EU’s Anti-Fraud Office (OLAF) to carry out audits and investigations to protect the EU’s financial interests.634 Information provided to Europol may include a restriction specifying the purposes for which it may be used or limiting access (including its onward transfer).635

44.14The Europol Management Board is responsible for identifying the third countries with which there is an operational need to exchange personal data.636 The Regulation stipulates that Europol may only do so if one of the following conditions has been met:

44.15There are limited circumstances in which Europol may transfer personal data to a third country even though one of these conditions has not been met, but only if authorised to do so by its Executive Director on a case-by-case basis (authorisation cannot be given for “systematic, massive or structural transfers”) or (for a longer period) with the agreement of Europol’s Management Board and the European Data Protection Supervisor. Europol is required to keep detailed records of all transfers of personal data to third countries.639

44.16Third countries are able to send liaison officers to Europol’s headquarters in The Hague but must cover their accommodation and other costs.640

44.17All Europol’s existing agreements with third countries have been concluded under the 2009 Europol Council Decision. These agreements fall into two categories: strategic agreements (concluded with Russia and Turkey) which provide for the exchange of information but exclude personal data and operational agreements (concluded with Albania, Australia, Bosnia and Herzegovina, Canada, Colombia, the former Yugoslav Republic of Macedonia—“FYROM”, Iceland, Liechtenstein, Moldova, Monaco, Montenegro, Norway, Serbia, Switzerland, Ukraine and the USA) which include provision for the transfer of personal data.

44.18All the agreements include dispute settlement provisions but their content varies. Most envisage “consultations and negotiations” between the parties (Albania, Bosnia and Herzegovina, Liechtenstein, Moldova, Montenegro and Serbia) or an arbitration panel if the parties are unable to reach an amicable settlement (Australia, Colombia, FYROM, Iceland, Monaco, Norway and Switzerland). The agreement with Canada envisages consultations between the Parties whilst the agreement with the United States provides for oversight in accordance with the Parties’ own laws and procedures and using their own administrative, judicial or supervisory bodies.

44.19None of these agreements confers jurisdiction on the European Court of Justice to interpret their provisions or resolve disputes. Although the Court has no formal jurisdiction, its rulings in the rapidly evolving area of EU data protection law may nevertheless be influential, in practice, in determining whether the Parties are complying with the data protection standards set out in the agreements. A failure to comply may be grounds for terminating the agreements—they all include provision for termination by either Party with three months’ notice (six months for the agreement with Switzerland).

44.20Uniquely, the Court does have jurisdiction to settle disputes concerning the validity and interpretation of an Agreement on Operational and Strategic Cooperation concluded between Europol and Denmark shortly before the new Regulation took effect. Although a Member State of the European Union, for the purposes of this Agreement Denmark is considered to be a third (non-EU) country since, under the terms of Denmark’s Protocol to the EU Treaties, it is unable to participate in the new Europol Regulation. The Agreement establishes a legal framework for cooperation between Denmark and Europol but builds on Denmark’s participation in the EU’s institutions, including the Court of Justice. For this reason, it is unlikely to serve as a precedent for the UK’s future relationship with Europol.

Previous Committee Reports

Twenty-first Report HC 71–xix (2016–17), chapter 1 (23 November 2016). See also our predecessors’ earlier Reports on the Agreement between Europol and Denmark: Thirty-fifth Report HC 71–xxxiii (2016–17), chapter 12 (15 March 2017) and Thirty-ninth Report HC 71–xxxvii (2016–17), chapter 8 (19 April 2017).


615 Further information about Europol is available on the Europol website.

616 See Hansard, HC Deb, 15 July 2013, cols. 863–83 and the Government’s Written Ministerial Statement of 18 July 2013, HC Deb, col. 129WS.

617 See the Explanatory Memorandum of 7 July 2014 submitted by the then Minister for Modern Slavery and Organised Crime (Karen Bradley).

618 See recitals (2) and (58) and Article 51 of the new Europol Regulation.

619 The Conclusions of the Presidency of the Conference of Speakers can be found on the Ipex website.

620 See the letter of 14 November 2016 from the then Minister for Policing and the Fire Service (Brandon Lewis) to the Chair of the European Scrutiny Committee.

621 See the motion agreed to by the House on 14 December 2016.

622 See the then Minister’s Written Ministerial Statement of 28 March 2017.

623 See the transcript of the Prime Minister’s Lancaster House speech.

624 See the White Paper.

625 See Hansard, HC Deb. 10 October 2016, col 55 and HC Deb. 1 December 2016, col 1650.

626 See Hansard, HC Deb. 17 January 2017, col. 801.

627 See Hansard, HC Deb 20 April 2017, col 420WH.

628 See Hansard, HC Deb. 18 January 2017, col. 959.

629 See the then Minister’s Explanatory Memorandum of 21 March 2017 on the draft Agreement between Europol and Denmark.

630 See the future partnership paper, Security, law enforcement and criminal justice.

631 See the Government’s future partnership paper, Enforcement and dispute resolution.

632 The then Coalition Government opted out of all EU police and criminal justice measures adopted before the Lisbon Treaty took effect on 1 December 2009, including Europol, but re-joined 35 of these measures which it considered to be in the UK’s national interest.

633 See Article 23 of the new Europol Regulation.

634 See Article 66(4) of the new Europol Regulation.

635 See Article 19 of the new Europol Regulation.

636 See recital (35) and Article 11 of the new Europol Regulation.

637 The adequacy decision is based on Article 36 of Directive (EU) 2016/680 on the protection of personal data processed for law enforcement purposes.

638 See Article 25 of the new Europol Regulation.

639 See Article 25(5)-(8) of the new Europol Regulation.

640 See Article 8 of the new Europol Regulation.




20 November 2017