Policing Minister Brandon Lewis has warned that although the UK will be leaving the European Union (the ‘EU’), “the reality of cross-border crime remains”. In some respects, it is unsurprising that the Government has announced its intention to opt-in to an EU regulation that supports a new Europol framework. However, this move may appear at odds with current aspirations to “take back control” from EU institutions. In the prelude to the triggering of Article 50 and the planned departure from the EU, what does this opt-in mean for the future of UK law enforcement operations within Europe?

What is Europol?

The name Europol suggests a smaller, Eurocentric relative of Interpol, the International Criminal Police Organisation. In fact it stands for the European Police Office and, unlike Interpol (an independent network of police agencies), Europol is formally mandated and regulated by the EU and its bodies. Europol’s mission under Article 88 of the Treaty on the Functioning of the European Union is:

“to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy”.

Europol therefore operates as a hub, sharing information with law enforcement authorities within EU Member States and providing them with operational support.

What is the effect of opting in to the new Europol framework?

By opting in to the regulation, the Government would be further committing the UK to cooperation with Europol. Key features of the new framework are the increased accountability of the agency to the EU (in particular, a clear mandate to the EU Internet Referrals Unit and the European Cybercrime Centre), and the reiteration of Europol’s strict data protection regime, in line with the General Data Protection Regulation and the Directive for the police and criminal justice sector (also introduced this year). The Europol Strategy 2016-2010 sets out a shift in Europol’s “strategic emphasis”, away from “laying the foundation of increased capability” and towards a “full-scale delivery of operational service and impact”. In sum, with greater power and resources for Europol comes the prospect of greater EU integration.

This presents a number of problems. First, some are worried that signing up to the new regulations is an attempt to drag the UK back into the EU through the back door or subvert the referendum result. Second, were the UK to withdraw from the EU, it is unclear what role it could or indeed should have within the Europol network. In a Commons debate held in October, Brandon Lewis stressed the Home Office’s “determination to ensure the security and protection of the people of this country”. However, this was amidst rising concern that without Europol, the UK would forfeit a number of important resources for fighting internationally mobile crime with a European dimension, such as the European Arrest Warrant mechanism, which provided a basis for a “swift, and indeed cost-effective, extradition process across Member States” (see Aine Kervick’s blog: Brexit means Brexit but what about the European Arrest Warrant?).

Opting in to the new Europol framework would not significantly change our current relationship with the agency. However, what the move does indicate is the Government’s willingness to maintain at least our current level of commitment. But what form would this take?

Membership vs Agreement

In its governance structure and mission, Europol is a creature of the EU for the benefit of Member States, with whom it works intimately via a designated Europol National Unit. Consequently, the UK currently enjoys direct access to Europol’s database (in particular, the Schengen information system, ‘SIS’) and a high level of support in terms of facilitating the exchange of information, operational analysis, expertise and technical support, and the generation of strategic reports based on intelligence from Member States. In addition, Europol hosts awareness-raising events for EU law enforcement agencies. Through its presence in the European Parliament, and the other EU bodies which hold Europol to account, the UK also has a say in how it is governed. These are all immensely valuable assets and opportunities which UK policing agencies would be reluctant to abandon unilaterally, particularly in the context of the threat of terrorism.

Is there perhaps a middle-way which might provide the best of both worlds? For instance, countries and other entities outside the EU may still enter into an agreement with Europol. These agreements are either “strategic” (limited to the exchange of general intelligence, and strategic and technical information) or “operational” (exchange of information including personal data).

Norway, Switzerland and Iceland, for example, have all established operational agreements with Europol. It is entirely possible that upon exiting the EU, the UK will seek to adopt the same approach. However, as a consequence, all current benefits would be significantly diminished. Europol rules would probably still apply but the UK would lose an important channel of representation via the EU. Moreover, Norway’s agreement allows either party a unilateral right to “suspend its obligations”. While this provides Norway with an opt-out should it no longer wish to cooperate with Europol, at the same time, Europol has the power to block Norway’s access to a substantial body of cross-border intelligence.

This is not to say that operational agreements are without bite. Last year Norway secured the arrests of five individuals associated with the distribution of malware while working as part of a Europol initiative to combat computer crime. In Iceland, four individuals were found to be connected to an international human trafficking organisation as part of Europol’s ‘Ciconia Alba’ operation. Cooperation between these non-EU countries and Europol is partly facilitated by their being in the Schengen Area. Schengen countries have extra capabilities to pursue crime across each other’s borders; capabilities which the UK, a non-Schengen country, would not enjoy if it switched to an operational agreement.

There is a clear incentive for countries within Europe to assist each other in tackling international crime, an incentive that will certainly endure whether or not the UK remains a member of the EU. Nonetheless, it is difficult to see how the UK’s international crime fighting abilities will not be damaged by the increasing separation from Europol which would result from an operational agreement.

Conclusion

The new framework is effectively an assimilation of Europol’s governance and operations, with the EU and its bodies. Understandably, some perceive this as further evidence that Europol functions as a sort of ‘EU Police’. However, the benefits of Europol as an information sharing nucleus should not be underplayed, and the Government should think very carefully about how the UK can retain its influence with the agency, as well as maintaining crucial access to SIS.

Also looming on the post-Brexit horizon are numerous practical questions. For instance, what will be the fate of Europol’s British employees, including its director Rob Wainwright? Will the English language continue to be used by law enforcement agencies communicating within Europol? What will be the impact of the UK withdrawing its funding?

Such issues have been kicked into the long-grass for the time being as the plan to opt-in to the new regulation still awaits consideration by the House of Lords EU scrutiny committee before it can receive Parliamentary approval. The Government must then notify the European Commission of its decision. If the opt-in is then adopted, there will be all to play for once Article 50 is triggered, and Britain must begin to redefine its international policing identity within Europe.