41.Europol is the EU agency that supports the law enforcement agencies of the EU Member States by providing a forum within which Member States can cooperate and share information. It does not have executive or coercive powers to conduct investigations or make arrests in Member States. Instead, it supports the work of Member States’ law enforcement agencies by gathering, analysing and sharing information and coordinating operations. Sir Julian King, Commissioner for the Security Union, cited what became known as Opération Fraternité as an example:
“After the Brussels and Paris attacks, the French and Belgian authorities came to Europol—in practice, to the counterterrorism cell—shared information with it and asked it to work through that information to see whether it could provide any extra context or leads. It did that work. In particular, through its network of international contacts, including with the United States, on terrorist finance tracking, it was able to generate literally hundreds of new leads, which were fed back to the Belgian and French authorities and contributed to the progress they made in tracking down the perpetrators of those attacks.”
42.Europol’s headquarters are in The Hague, in The Netherlands, where seconded Europol Liaison Officers from all 28 EU Member States and certain third countries are co-located and work alongside Europol’s own staff. Rob Wainwright, a UK national, has been Director of Europol since 2009. According to the Government, “the UK uses Europol more than almost any other country”.
43.Europol was originally established as an intergovernmental body in 1995, and became operational in 1999. It currently operates on the basis of a Council Decision adopted in 2009, which re-established Europol as an EU agency funded through the EU budget. That Council Decision was one of the 35 pre-Lisbon police and criminal justice measures that the UK chose to re-join in December 2014.
44.The arguments for UK membership of Europol were rehearsed and tested in detail at the time of the 2014 decision, including in reports from this Committee and in the Impact Assessments published in the Government’s July 2013 and July 2014 Command Papers.
45.Earlier this year, a new Europol Regulation was adopted. The new Regulation will supersede the previous Council Decision, and is due to come into force in May 2017. This Committee produced a report on the new draft Europol Regulation shortly after it was published, recommending that the Government should opt in. The Government chose not to opt in to the new Regulation prior to its adoption, but is entitled to apply to opt in post-adoption. On 14 November 2016 the Government announced that it intended to opt into the new Regulation.
46.The Government suggested in its Memorandum that much of the content of the new Regulation “is about putting existing practice on a firm legal footing”. However, the Regulation does make changes to the governance of Europol—for example by including a Commission representative on the Management Board—and to the mechanisms through which Europol is held accountable, for example by creating a Joint Parliamentary Scrutiny Group through which national parliaments and the European Parliament may scrutinise Europol’s activities.
47.The Government argued in its Memorandum that opting in would enable the UK to:
“ … maintain our current access to law enforcement intelligence from other EU Member States which is held in Europol, and to the analysis and links made by Europol in cross-border cases for the remaining time that we are in the EU. We would also maintain a seat on the Management Board, which would help us steer the direction of Europol and help protect the UK’s interests during this period.”
48.The National Crime Agency (NCA) made a similar point in evidence to our inquiry, suggesting that “if we do not sign up to it by Christmas, we will be out of Europol on 1 May 2017. If we do sign it, that in effect will give us the period of the Article 50 negotiations to work out how we conduct our work in the European context going forward.” In their view, the UK would also be in stronger position to negotiate on other priorities—such as the EAW or SIS II—”if we are still members of Europol”.
49.For its part, the European Commission has indicated that it very much welcomes the Government’s announcement that the United Kingdom would look to exercise its opt-in. Sir Julian King, Commissioner for the Security Union, added that “the UK’s continued engagement in Europol as an agency in all its facets and its information systems is, I believe, good for the UK and good for everybody engaged”.
50.We welcome the Government’s decision to opt into the new Europol Regulation. In addition to the substantive reasons we gave in our 2013 report for recommending that the Government should opt into the draft Europol Regulation, the UK’s forthcoming exit from the EU means there is now an additional, strategic value in remaining a full member of Europol and its Management Board during a period when the modalities of the UK’s future partnership with the EU on police and security matters are under negotiation.
51.The UK law enforcement community continues to attach a very high priority to UK membership of Europol. The National Crime Agency (NCA), who are leading on Brexit for UK law enforcement, listed a UK opt-in to the new Europol Regulation as their most immediate priority—”the alligator nearest the boat”. They also identified “membership of Europol or an alternative arrangement” as their most important priority among all the JHA measures that the UK would be poised to leave behind upon exiting the EU. The Metropolitan Police Service’s National Coordinator for Counter-Terrorism Policing, Helen Ball, told us that “if we were to exit Europol without replacing it with at least as good a system for information and intelligence sharing and working together as currently exists, it would be a risk I would be concerned about”.
52.In May 2016, the Government noted that although certain non-EU countries such as the US, Norway and Albania have agreements with Europol to allow them to work together, the process to conclude such agreements “is lengthy” and “measured in years, not months”. It also highlighted a number of “important differences” between what Europol provides to third country operational cooperation partners with which it has agreements, and what it provides to full EU members.
53.Sir Julian King noted that after the new Europol Regulation comes into effect in 2017, there will be a shift in how Europol’s relationships with third countries work, and that future agreements between Europol and third countries will be formal international agreements, negotiated, from the EU side, on the basis of the powers in Article 218 TFEU.
54.Bill Hughes, former Director-General of the Serious Organised Crime Agency (SOCA), explained that Europol had two types of non-EU partners: “One is strategic co-operation partners, which include Russia, Turkey and Ukraine. There is no transmission of personal data, for obvious reasons, and there are limits and constraints around that.” The second category was operational co-operation partners, including the United States, Australia, Canada, Colombia, Norway, Switzerland, and most countries in the western Balkans: “Operational co-operation partners are part of the club but they are not in the top tier. They get certain access to information and intelligence and the ability to share that, but they are not on the management board and have no say.”
55.The NCA took the view that the types of arrangements that have thus far been made to allow third countries to cooperate with Europol from outside the EU would not be sufficient to meet the UK’s needs. David Armond, Deputy Director-General, told us: “I do not think that we can look at the arrangements for Norway, Iceland or other partners and say that would do for us”.
56.The NCA emphasised that if the UK opted for an operational partnership with Europol, it would lose access to the Europol Information System. The Europol Information System (EIS) pools information on suspected and convicted criminals and terrorists from across the EU. In the absence of access to the EIS, the NCA told us: “All our inquiries would have to be made on a law enforcement to law enforcement basis through liaison, rather than us having direct access to the system. That would be a major issue.” They also warned that operational partners like the United States “do not have any influence in terms of what Europol does or how it does it.”
57.Dr Paul Swallow agreed that non-EU members were “definitely a second-league tier”, while Lord Kirkhope of Harrogate told us that “at the end of the day, those third-country agreements do not provide for the same level of co-operation or access”.
58.Lord Kirkhope drew our attention to the length of time it might take to agree a new framework for the UK’s future relationship with Europol: “It has taken five to seven years to negotiate any Europol co-operation agreements … it takes even longer when we are dealing with the exchange of data—the actual specifics—where nine to 12 years is an average”.
59.He also highlighted the position of Denmark, which by virtue of its block opt-out does not participate in the adoption or application of any post-Lisbon JHA legislation, including Europol: “A short time later it is asking, ‘Please can we come back to the Europol arrangements?’ The Commission’s latest comment to Denmark is that a third-country co-operation agreement will not be on the table for it for the foreseeable future.” The Government told us that they would be “looking at what happens with Denmark with great interest”.
60.The NCA proposed that the UK “should not look at precedent; we should look at something more than that”. As this would be the first time that a Member State had left the European Union, the UK “should be aiming for access and a partnership that is different from and closer than currently exists for any other non-member state”.
61.The Government seemed willing to entertain this proposition, emphasising that, as the UK leaves, it will be “a known partner, and a known commodity to our partners in Europol and we have a relationship with them that has been built up through our years of being full members of Europol and the EU”. In the Government’s view, this meant that the UK had a different starting point from which to open negotiations. As a result, “it is very right, and very possible, for us to have a bespoke solution”.
62.Other witnesses, however, pointed to the practical impediments to devising something close to full membership of Europol for the UK after it leaves the EU. Lord Kirkhope warned that the “big problem” would be that Europol was accountable to EU institutions, “including acceptance of the competence—in interpretation terms at least—of the ECJ”. At the same time, “in many people’s minds, one of the great advantages of getting out of the EU is that we get rid of the ECJ and its competence and control over us”. He questioned whether it would be “feasible or practical” to think that the other side in the negotiation would be prepared to discard the accountability and the controls that they were obliged to have now—to the Commission, the CJEU and the Parliament: “Are they going to abandon those to do a deal with us which allows us full access and confidence within the organisations and fully to serve within them?”
63.Professor Steve Peers, of the University of Essex, drew our attention to a second practical constraint, namely that the UK’s data protection framework would have to be assessed if the UK wished to participate in Europol as a third country. The UK would have to make sure that its data protection standards were “roughly equivalent” to European Union standards—a requirement that the EU “cannot easily negotiate away”, given that high levels of data protection are enshrined in the EU’s Charter of Fundamental Rights. This constraint would continue to apply in the future, as EU law was amended, even if the UK were no longer at the table to discuss such changes. Sir Julian King, Commissioner for the Security Union, also told us that in order to secure an operational agreement with Europol in future, “the Commission will have to certify that the third country has the right levels of data protection”.
64.On the other side of the equation, witnesses identified two main factors that were likely to count in the UK’s favour in any negotiation, namely the contribution that the UK has made and continues to make to Europol, and the changing nature of the threat from terrorism and organised crime.
65.Bill Hughes, former Director-General of SOCA, suggested that the EU side in any negotiation would be aware of “how much information the UK contributes, and how valuable that is”. He noted that the UK was using as much as 40% of the capacity of the Secure Information Exchange Network Application (SIENA)—the main conduit for all operational information passing to and through Europol. The NCA pointed out that the UK was also “the second-largest contributor in Europe” to the Europol Information System, and that it led on “four or five” of the 13 EMPACT projects, which coordinate actions by Member States and EU organisations against threats identified by Europol in its Serious and Organised Crime Threat Assessment.
66.Bill Hughes was also hopeful that decision-makers in Europe would be mindful of the changing nature of the threat:
“Crime will continue and it is getting worse. Cybercrime is becoming a major issue; human trafficking and slavery are terrible issues. Many of them start beyond our borders but impact on the UK. They also start beyond the EU’s borders but impact on the EU.”
67.Helen Ball, the Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing, told us that the direction of travel had been towards more cooperation rather than less: “As we saw attacks come closer to home in Europe, we were already working to increase our relationships with European police forces, to work more jointly together and share more information”.
68.Our witnesses were unequivocal in identifying the UK’s future relationship with Europol as a critical priority. They also made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs. The Government will therefore need to devise and secure agreement for an arrangement that protects the capabilities upon which UK law enforcement has come to rely, and which goes further than the operational agreements with Europol that other third countries have been able to reach thus far.
69.Bearing in mind the contribution the UK makes to Europol, and the mutual benefit to be derived from a pragmatic solution, we regard this as a legitimate objective for the UK to pursue in negotiations with the EU-27. Achieving it, however, may be problematic: there seems likely to be a tension with other policy goals on both sides, notably in regard to the role of the supranational EU institutions. To the extent that Europol remains accountable to these institutions—and we note that the direction of travel in the new Regulation is towards enhancing that accountability—this could present a significant practical hurdle to sustaining the level of cooperation that might otherwise be advantageous to both sides. In 2014, the Government said it would “never put politics before the protection of the British public.” In our view, that calculation has not changed, and we urge the Government to work towards a pragmatic solution that protects the safety of the people of the United Kingdom.
70.Eurojust is an EU agency tasked with supporting and strengthening co-ordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States. This can involve facilitating requests for mutual legal assistance (MLA), facilitating the execution of European Arrest Warrants, bringing together national authorities in co-ordination meetings to agree an approach to specific cases, and providing legal, technical and financial support to Joint Investigation Teams (JITs).
71.Eurojust’s headquarters are in The Hague, in The Netherlands, where 28 seconded National Members (one from each Member State) form the College of Eurojust, which is responsible for the organisation and operation of the agency. The College elects a President, currently the National Member for Belgium. Eurojust operates through National Desks, which are small teams of representatives from each Member State, headed by the National Member. National Desks function as single points of contact between the 28 Member States to facilitate multilateral cooperation.
72.Eurojust was established by a 2002 Council Decision, which was amended in 2003 and 2009. All three Council Decisions were among the 35 pre-Lisbon police and criminal justice measures that the UK re-joined in December 2014. The arguments for UK membership of Eurojust were rehearsed and tested in detail at the time of the 2014 decision, including in reports from this Committee and in the Impact Assessments published in the Government’s July 2013 and July 2014 Command Papers.
73.In July 2013 the European Commission published a proposal for a new Regulation concerning Eurojust, which would repeal and replace the existing Eurojust Council Decisions. It also published proposals for the establishment of a European Public Prosecutor’s Office (EPPO) tasked with prosecuting crimes against the EU’s financial interests. Against the advice of this Committee, the UK did not opt into the proposal reforming Eurojust. The UK also did not opt into the proposed EPPO. Neither proposal has yet been adopted by the remaining Member States.
74.The Crown Prosecution Service (CPS) told us they were heavy users of Eurojust, listing it among their top priorities for any forthcoming negotiation on Brexit. Alison Saunders, the Director of Public Prosecutions, highlighted the ability to do things in real time, and to work multilaterally rather than bilaterally, as the most useful features of the agency: “It means that we can deal with cases in real time and decide who has what evidence, how we will work together, whether we have a Joint Investigation Team, and who takes priority in the investigation.” She added that being in a neutral space, with translation, provided “real-time flexibility and the ability to talk to a number of member states immediately rather than doing it bilaterally”. Her comments were endorsed by the Crown Office and Procurator Fiscal Service (COPFS), which highlighted Eurojust’s role in convening problem-solving or operationally thematic seminars. Stephen Rodhouse, representing the National Police Chiefs’ Council and the Metropolitan Police Service, also described Eurojust as a “hugely valuable facility for bringing member states together on high profile investigations where facilities such as translation and the access to legal advice were hugely significant”.
75.The CPS and National Crime Agency both emphasised the significance of Joint Investigation Teams (JITs) to the UK. The Director of Public Prosecutions explained that the UK currently participated in 31 JITs—making the UK one of the biggest users of the facility—and told us that the CPS considered them “absolutely vital”. David Armond, Deputy Director-General of the National Crime Agency, described JITs as “immensely important and successful”, explaining that a JIT might be pulled together “specifically for an investigation on an organised crime group which is committing crimes that affect seven jurisdictions … the best outcome might be the prosecution of one element in Spain and some arrests and prosecutions in the UK, and maybe some in America”. He noted that the UK had also established JITs for thematic reasons, in order to increase the impetus and level of work against a new crime threat.
76.Eurojust has co-operation agreements with a number of third countries, and Liaison Prosecutors from the United States of America, Switzerland and Norway. Alison Saunders told us that Liaison Prosecutors were “able to engage in many instances in much the same way.” She noted, however, that Liaison Prosecutors were not part of the Eurojust management board, and therefore could not influence the strategic direction of the agency. More importantly from the CPS’ perspective, they do not have access to the Eurojust case management system, which currently allows the CPS “to cross-check any cases or investigations that we have against the Eurojust database” in order to establish whether to engage other Member States. Stephen Rodhouse also warned that a future bilateral or ad hoc arrangement would probably be “suboptimal to the arrangement we have in place”.
77.Lord Kirkhope drew our attention to what it might mean in practice to lose influence on the strategic direction of policy in this area, noting that the UK had “consistently opposed” the establishment of a European Public Prosecutor, with considerable success. He anticipated that “if we are not members of the EU and not subject to Eurojust in any way, we will have no power over what is put in place”. The Crown Office and Procurator Fiscal Service warned that if the UK is no longer at the decision-making table of institutions such as Eurojust and so involved in the framing of EU justice legislation, “new instruments are likely over time to reflect the civilian systems of mainland Europe so that even if UK participation in a particular arrangement is legally or politically possible, there may be an absence of ‘fit’ with the UK’s adversarial systems”.
78.The Government told us that it was “exploring all the options for Eurojust once we leave the EU.” It highlighted the Norwegian, Swiss and American precedents for posting Liaison Prosecutors to Eurojust without being members of the EU, noting that “these kinds of arrangements can be put in place”. It also emphasised that a lot of work “goes on at bilateral level”, and that Eurojust, though important and useful, “is not the only thing going on in this area”.
79.The Director of Public Prosecutions was less sanguine, noting that although under bilateral arrangements, the UK had liaison prosecutors in a number of European countries, “they do not do what Eurojust does, which is to facilitate the multi-national co-ordination that is so important”. She also emphasised that the UK had prosecutors in some European countries but not all: “Nor could we because there would be a cost issue in putting a prosecutor in each of the 27 Member States and it would be quite difficult”.
80.The Director of Public Prosecutions also expressed concern about the length of time it might take to reach an agreement similar to that from which Switzerland or the United States now benefit. She told us that Switzerland had started negotiations in 2008, but “put in a prosecutor only last year: 2015”. Even third countries without liaison prosecutors had experienced protracted discussions—Liechtenstein and Moldova took five and six years respectively to negotiate their bilateral agreements with Eurojust. The DPP acknowledged that “all of them were in a different position from us, because they started out as non-Eurojust members”, but emphasised that it was unclear how long a future negotiation with the UK might take.
81.The Director of Public Prosecutions was less concerned about future access to JITs, noting that “you do not necessarily have to be member of Eurojust to have Joint Investigation Teams”, and that although there might be a need to review and adapt domestic legislation and revisit funding, “it could be done”. The NCA also anticipated that the UK would be able to continue working in Joint Investigation Teams as a third country, even if it were “slightly more complicated” than at present. Professor Peers told us that there was a framework already for Norway, Iceland and Switzerland, and that it would not be “particularly surprising or outrageous” to suggest the UK could participate on a similar basis.
82.The timeliness and effectiveness of the work of the Crown Prosecution Service rely on the ability to work multilaterally and in real time with partners in the EU—a capability currently provided by the UK’s membership of Eurojust. A continuing close partnership with Eurojust is therefore likely to be essential.
83.A third-country agreement with Eurojust involving a Liaison Prosecutor, for which precedents already exist, may come closer to meeting the UK’s needs than the equivalent precedents for third country-agreements with Europol. This may therefore be a fruitful avenue for the Government to explore in the forthcoming negotiation. Ideally any such agreement would provide for closer cooperation than has thus far been available to other third countries—for example by providing access to the Eurojust Case Management System. As with Europol, however, the role of the supranational EU institutions in providing accountability and oversight for Eurojust’s activities may present a political obstacle to forging the sort of partnership that would best meet the UK’s operational needs.
85. Our witnesses were optimistic about the prospect of retaining access to Joint Investigation Teams, based on the model that already exists for certain third countries to participate in JITs with the agreement of all other participants. We recommend that the Government explores the practical steps that would be needed to allow the UK to benefit from a similar arrangement, with a view to pursuing that objective in a future negotiation.
43 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), , (Sir Julian King).
44 HM Government, , para 1.16
46 European Union Committee, (13th Report, Session 2012–13, HL Paper 159); European Union Committee, (5th Report, Session 2013–14, HL Paper 69); HM Government, Decision pursuant to Article 10 of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8671, July 2013: 1 December 2016]; HM Government, Decision pursuant to Article 10(5) of Protocol 36 to the Treaty on the Functioning of the European Union, Cm 8897, July 2014: [accessed [accessed 1 December 2016]
47 Regulation 2016/794, 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, (24 May 2016)
48 European Union Committee, (2nd Report of Session 2013–14, HL Paper 16)
49 Letter from Brandon Lewis MP, Minister of State for Policing and the Fire Service to Lord Boswell of Aynho, Chairman of the European Union Select Committee, House of Lords, 14 November 2016:
50 Cabinet Office, Explanatory Memorandum on the UK Government’s intention to opt in to 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 (November 2016), para 17: [accessed 7 December 2016]
51 Ibid. para 19
54 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), , (Sir Julian King).
56 . See also
59 HM Government, , para 1.17
61 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), and ,
(Sir Julian King).
68 Ibid. As this report went to press, there were reports that the Commission had put forward a proposal for consideration by the Danish Government, ‘EU offers Denmark backdoor to Europol’, EU Observer (8 December 2016): [accessed 9 December 2016]
75 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), , (Sir Julian King)
78 European Multidisciplinary Platform against Criminal Threats.
82 HC Deb, 10 November 2014,
83 Joint Investigation Teams are a tool in their own right, and consist of judicial and police authorities from at least two Member States, who conduct a specific cross-border criminal investigation for a limited period. Council Framework Decision 2002/465/JHA on Joint Investigation Teams was also among the 35 pre-Lisbon police and criminal justice measures that the UK re-joined in December 2014.
84 Council Decision 2002/187/JHA, 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (6 March 2002) and Council Decision 2009/426/JHA, 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, (4 June 2009). See also Council Decision 2003/659/JHA, 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, (29 September 2003)
85 European Union Committee, (13th Report, Session 2012–13, HL Paper 159); European Union Committee, (5th Report, Session 2013–14, HL Paper 69); HM Government, Decision pursuant to Article 10 of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8671, July 2013: [01 December 2016]; HM Government, Decision pursuant to Article 10(5) of Protocol 36 to the Treaty on the Functioning of the European Union, July 2014, Cm 8897: [accessed 1 December 2016]
86 Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust),
87 Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office,
88 European Union Select Committee, (4th Report, Session 2013–14, HL Paper 66)
89 By virtue of Section 6(5)(c) of the EU Act 2011, the UK’s participation in the EPPO would require a referendum and an Act of Parliament.
92 Written evidence from the Crown Office and Procurator Fiscal Service (), p 3
99 Written evidence from the Crown Office and Procurator Fiscal Service (), pp 3–4