The future of EU internal security after 2014: Will the UK remain a major player?

Introduction

As Director of Europol, the European agency in charge of supporting Member States investigations of serious crime and terrorism, and as British national, I have good reason to be interested in the future role and influence of the UK in the European internal security area after 2014. The creation and strengthening of a European Area of Freedom Security and Justice is one of the main objectives of the European Union today. I believe it is also one of best examples of EU adding value to the lives of European citizens.

The decisions made in this field by the UK and its European partners affect issues ranging from organised crime, drug trafficking and terrorism to migration and border security. These decisions directly affect millions of citizens: their security, their safety and their basic freedoms, not least in the UK which is among the European countries most affected by threat from organised crime and terrorism.

In 2014 the British government will have to make an important decision, which will have a long-lasting impact on the UK’s ability to respond to these threats and to influence the EU’s internal security policies. 

Tonight I am not going to give any advice to the British government or Parliament on how it should decide in this matter.  I have heard rational arguments on both sides of the debate.  In the end it is a political decision, of course. I am bound by my profession as a civil servant and police chief and have enough experience to know that I should refrain from straying directly into political affairs. But my job does expect me to make my part of the EU work effectively and, for Europol at least, that means ensuring the strongest possible cooperation with Member States (MS). This is not driven by the grand designs of the Great European Project. Rather, in straight business terms, by the mandate given to Europol and its Director – to help Member States fight organised crime and terrorism.  In fulfilling that mandate we are, quite simply, stronger with the UK as an active partner than not.  And I think the benefit flows both ways.

As I travel round the EU making the case for increased partnership with Europol – ultimately for the benefit of MS themselves – always wary of coming over as that caricature of Big Government once painted by Ronald Reagan when he said that “the nine most terrifying words in the English language are, ‘I’m from the Government and I’m here to help.’” “I’m from the EU and I’m here to help” doesn’t grab the attention of many policemen around Europe, I can tell you.  

More than most, the police community is a pragmatic, conservative one with a culture developed over 200 years. It doesn’t easily embrace change and it tends to work with what it knows best rather than what might be better. Not just in the UK but, more or less, across Europe, with possible exception of some environments in the newest Member States in central and eastern Europe, where they are more used to radical change thrust upon them in the last 20 years.

The process of establishing Europol, therefore, as a mainstay of the police community in Europe, has been difficult. The decision to create the agency was a political one 20 years ago – it certainly did not come from the grassroots. Over that 20-year period we’ve had to fight for every last inch of our place in the community and earn every last drop of respect for our work. It’s not been easy – and still we haven’t succeeded.  But signs now are better than ever before. We have done that by keeping our feet on the ground, staying tightly focused to our mandate, and only doing things that genuinely make a difference.

My point is – at least in my world, the EU works. I genuinely believe that and say the same to any audience in any Member State. But it does so by having a clear mandate and capability to add real value to citizens’ lives.  

It’s for the UK to decide its future in the EU, also in relation to Europol, but I can show that it would miss something, at least, by no longer being an active part of our agency.  How much that matters in the end is for others to decide. 

Meantime, in context of tonight’s debate, allow me to accentuate the positive in terms of the UK’s engagement in this area of EU. At strategic level, despite its particular position (opt-in/opt-out) in the EU decision-making process, the UK often sets the EU agenda in internal security. At operational level, the UK law enforcement community has played a leading role in very many, major transnational criminal investigations, many of them supported by Europol. The UK is one of the most active and best supporting Member States at Europol. 

Why is it so progressive in this way?  Pragmatic reason, largely - because UK strategy to fight organised crime and terrorism is founded on belief that international cooperation plays an essential part – these threats are, by their very nature, transnational and becoming more so with the growth in illegal cyber activity. UK knows that it cannot do this job alone anymore. In climate of financial austerity, it also must search for most cost-effective ways of doing international business. It has decided – rightly – that, as a multilateral hub for law enforcement cooperation in Europe, we offer better value-for-money access to cooperation mechanisms than much more expensive other options – e.g. bilateral links. UK has closed a number of bilateral posts in Europe in last 2 years and transferred work to its liaison office at Europol. Other Member States are doing the same.
 

Why 2014?

I will return to these points shortly, but first here’s a brief reminder of why 2014 matters and of the UK position in the EU decision-making in the field of internal security after Lisbon.

Since the establishment of EU JHA cooperation under the 1992 Maastricht Treaty, police and judicial cooperation in criminal matters remained outside the mainstream of European integration: It was governed by unanimity in Council and the European Court of Justice (ECJ) had almost no power to review decisions. The UK therefore retained a veto. 

Mindful of the national interest and keen to preserve sovereignty in such a sensitive area, successive British governments have also agreed with their European partners to retain the option to choose, on an ad-hoc basis, to participate or not in new EU measures proposed in this field. This opt-in facility, which was granted to the UK and Ireland under the Amsterdam Treaty in 1997, also meant that the UK could decide to participate in measures where the ECJ had no jurisdiction.  

Under the Lisbon Treaty, which came into force in December 2009, the UK’s participation in EU JHA legislation is now governed by 2 protocols, which have more or less maintained the status quo: Protocol 19 concerning Schengen - the UK is deemed to be participating in the police and judicial cooperation measures of the Schengen acquis in which it already takes part, unless it decides to opt-out – and Protocol 21 concerning the JHA area - decisions in JHA will not apply to the UK unless it decides to opt-in.

However, those technical arrangements for the UK cannot hide the fact that the Lisbon Treaty has substantially increased the powers of European supranational institutions in proposing and enforcing EU legislation in the JHA field. This has an important impact for the UK and for the future of EU internal security policy.

The Lisbon Treaty included a shift from unanimity to Qualified Majority Voting (QMV) in the Council of Ministers on the vast majority of crime and policing legislation, meaning no more veto for individual Member States, put the European Parliament on an equal footing with the Council and perhaps more importantly, after a transitory period of 5 years (which ends in December 2014), the jurisdiction of the ECJ will apply fully over all the EU Justice and Home Affairs areas. This means, for example, that the Commission will have the right to take Member States to the ECJ for failing to implement EU JHA legislation (“infringement actions” under art. 258 TFEU). And it means that Member States can no longer opt out of the Court’s jurisdiction. This would apply to the UK, should it decide to opt into legislation in policing and criminal justice. 

The protocol on transitional provisions annexed to the Lisbon Treaty sets 1 June 2014 as a deadline for the UK to decide whether to accept the normal jurisdiction of the ECJ in the field of police and justice criminal matters. If it does not, all former legislation in police and justice cooperation in criminal matters will no longer apply to the UK as of 1 December 2014. This is known as the “block opt-out” of June 2014. The body of EU laws covered by this includes significant pieces of legislation which form the backbone of the European internal security architecture (around 133 pieces of legislation, including Europol and the European Arrest Warrant (EAW)).

But this “block opt-out” is diminishing in size because even before June 2014, once a pre-existing measure is amended, the court’s normal jurisdiction applies and the UK must decide whether it wishes to participate on a case by case basis. This will be the case for a number of EU laws, for example on terrorist financing and money laundering, which are the subject of proposed new measures currently. It will also be the case for the EU’s judicial body Eurojust, the European Police College (CEPOL), and yes, for Europol as well.  So the clock already ticks for us. Let me explain why. 
 

Europol new Regulation

As a result of another consequence of the Lisbon Treaty, the European Commission will present a proposal for a new legal basis for Europol in January 2013. This will have major consequences for the agency: the drafting of the Europol Regulation is an opportunity to make the agency better fit to face the new demands of fighting organised crime and terrorism, for example in cyber space. 

Under the ‘opt-in’ deal the UK will have 3 months to decide if it wants to participate in the adoption and application of this proposal. If it does, there will be no possibility to opt out later. If the bill is adopted, the UK will be bound by it and will have to accept the jurisdiction of the ECJ over the matter.  If it does not, the UK will still be allowed a place at the negotiating table but it will have no vote and therefore a reduced ability to shape the proposal. But this is not only about the drafting of the legislation; it is also about the operational cooperation which that legislation foresees. So, if the UK does not participate, the UK law enforcement community will have to withdraw staff from the agency, and face a reduced influence at the agency, with the resulting negative impact on operational coordination with European partners. 

So this does matter – not least for the future of my agency and, I believe, for the future capability of the UK to operate effectively on the international stage in combating OC and terrorism. How much would be lost in reality?  Well, let’s take a look at what the UK currently does in this sector of the EU. 
 

The UK is often setting the EU agenda in internal security

The UK’s contribution to policy-making in EU internal security is invaluable. Without doubt it is one of the most influential Member States in shaping European internal security legislation. Let me give you a couple of examples.

Post 9/11, when EU Ministers urgently considered how to respond, an overhaul of the Schengen Information System (SIS) emerged as a priority. The UK subsequently provided the lion’s share of the functional requirements for SIS II, based on the Police National Computer and the UK’s own border protection system. The EU Member States agreed on the requirements for SIS II based largely on UK proposals, despite the fact that the UK is outside the Schengen area. The technical implementation of SIS II has been a different story. That’s another matter.

During the British Presidency of the EU in 2005, the UK pushed for the adoption of Council Conclusions on the concept of Intelligence-led policing (ILP) and a European Criminal Intelligence Model (ECIM). Seven years later, this concept can not only be found in almost all EU strategic documents relating to police cooperation but it has also become the cornerstone of the serious organised crime threat assessment (SOCTA) carried out by Europol. At domestic level intelligence-led policing is now considered best practice and a growing number of Member States and candidate countries to the EU implement it. No exaggeration to say that this British model is now a main feature of policing across Europe.

A more recent example is the current proposal to establish an EU Passenger Name Records (PNR) system. Initially, the Commission proposal excluded internal EU flights but, after a UK initiative during summer 2011, the proposal has now been amended to include them.

Meanwhile, very important other measures in the JHA sector are on horizon. Amongst them, a possible new EU Terrorist Finance Tracking System (TFTS), a policy issue always very close to British hearts. In normal circumstances, officials in Home Office, Security Services, would certainly be preparing to deliver major influence on the dossier in Brussels. Perhaps they will still, but opt-out won’t make that any easier.
 

Operational benefits

The UK derives significant operational benefits from engagement in this area. Organised crime and terrorism threats are by nature transnational and know no border. As director of Europol and former International Director of SOCA I’ve seen enough evidence of that. 

Europol’s latest Organised Crime Threat Assessment (the 2011 OCTA) found that organised crime is becoming increasingly diverse in its methods and structures. The emerging criminal landscape is marked increasingly by highly mobile and flexible groups operating in multiple jurisdictions and criminal sectors, and aided, in particular, by widespread, illicit use of the Internet. More than ever before, strong levels of cooperation exist between different organised crime groups, transcending national, ethnic, and business differences. The connection between terrorism and organised crime networks is also becoming more blurred. Terrorist and violent extremist activities are, in some cases, financed through crime or organised crime activities. 

These new trends provide a new rationale for the EU to strive for more effective coordinated action at EU level. Certainly not less. So a more globalised threat surely demands a more joined up response between governments.  Few people doubt this. As I said earlier the UK law enforcement community is acutely aware of this fact and has traditionally been at the forefront of EU police cooperation. 

With Europol this means the UK playing an increasingly progressive role in extracting optimal value from Europol’s unique capabilities. The UK, and increasingly others, recognises that we offer something that they haven’t got themselves and cannot acquire elsewhere. This is, for example, a set of intelligence databases on organised crime and terrorism, unique in its pan-European scope and detail, increasingly powerful in identifying criminal connections across borders.  SOCA now routinely interrogates these databases with all new cases, yielding a hit rate of between 10-20%. That means in a high number of cases we are able to offer SOCA unique intelligence about an aspect of their investigation which was not already known, e.g. links between the SOCA target and criminals elsewhere in Europe. Following a recent visit by the Metropolitan Police Service (MPS) Commissioner, the MPS is in the process of doing the same thing. Databases such as this simply don’t exist anywhere else.

We offer a breadth of expertise in every form of organised and terrorist activity drawn from the diversity of our workforce.  We employ experienced law enforcement officers from every major law enforcement agency in Europe – in total we have almost 800 people now, from approx 40 countries.  Some of them are the leading experts in their field in Europe and, on a daily basis, are adding real value to individual investigations.

Our staff base includes 140 liaison officers from those countries – a unique arrangement, found nowhere else in the world. They all carry the full operational authority of their home country, are co-located with themselves and our analysts and experts, are using a purpose-made secure information exchange system that we have developed and now rolled out to every agency in Europe. And they are using this capability and our information to facilitate around 14,000 cross-border operations each year. We offer an operational hub truly different in its scale and impact than anything else in Europe.

An example of our common work is Operation Rescue (child pornography), which focused on an online paedophile network of up to 70,000 members worldwide operated by a forum coordinator and an internet server based in the Netherlands. The server was seized by Dutch police allowing for forensic examination of it by Europol analysts and their colleagues in UK and the Netherlands.

In 2010, Europol experts cracked the sophisticated security features that were built into the server and then uncovered this huge network of suspected child sex offenders, working with the UK authorities in particular. Europol analysts could piece together the activities of the forum, identifying its members worldwide and issue over 4,200 intelligence reports, allowing police authorities in those countries to track down the offenders involved and potential victims. In parallel similar work was carried out in the UK. 

Latest figures from the results of this intelligence work and operational coordination are that 800 suspects have been identified, 184 arrests already made and 252 children, as victims of these terrible crimes, identified and rescued from further harm. The UK played a major role in particular in the Child Exploitation and Online Protection Centre (CEOP), while Europol’s unique contribution in this case came from our digital forensic analyst (cracking the software code after others in the Netherlands and UK failed), our analysis in identifying a world-wide network, and ability to coordinate police action across 32 countries. 

Another example is Operation Golf (trafficking in human beings), a Metropolitan Police investigation involving a Romanian criminal group based in the UK and Romania. The criminal group was involved in the trafficking and exploitation of Romanian children who were “acquired” in Romania, brought to the UK and then used to produce money by carrying out thefts and begging, mainly in London. Their identities were also used to carry out benefits and other fraud.

From intelligence, the Metropolitan Police was aware that the criminal organisation valued each child at about 20,000 Pounds Sterling. On average, the organisation made 160,000 Euros of illicit income per annum per child. The visible criminal activities took place in the UK but the organisation itself was based across several countries, involving the UK, Romania, France and Spain. So the MET decided to share intelligence with Europol.

Over a two-year period, Europol was able to support the operation by coordinating operational meetings, facilitating the exchange of intelligence and help coordinating simultaneous enforcement activity in the UK, Romania, Spain and France. Europol’s powerful IT systems and analytical support enabled the Metropolitan Police to identify other significant members of the organisation based in several EU countries.

Outcome: 115 arrested: 90 in UK and 25 in Romania, 268 trafficked children identified in UK, 45 children located and rescued, the criminal organisation disbanded and 4 million benefit fraud identified and stopped in the UK.

A pro-active use of European police cooperation instrument such as Europol helps UK law enforcement to more effectively disrupt criminal networks and make UK citizens safer. Similar benefits felt in other EU Member States as a result of UK engagement.
 

Conclusion

To conclude, my experience as a practitioner is that in order to increase efficiency in the fight against crime and terrorism, and at a time when cybercrime is growing exponentially especially, we need more European cooperation in police and justice.  I don’t call for much more legislation, if any – we have enough to be getting on with. But let’s use it to its full potential. This assessment is widely shared by the law enforcement community across Europe and especially in the UK where the law enforcement authorities are leading the trend in terms of international cooperation. 

Perhaps there are a few idealists among my former colleagues in the UK who pro-actively engage with Europol because they believe in the European integration project, but I haven’t found many. They simply do it because they are pragmatic and Europol’s support delivers tangible benefits in terms of disrupting more organised crime networks and putting more crooks behind bars. I guess they know as much as I do the value of the UK remaining closely involved in European police and justice cooperation instruments, in order to add value in fighting crime and terrorism. They are not in it to please the Commission or even the British Director of Europol – simply to help themselves in protecting British citizens.

The same logic applies to the UK’s role in EU JHA policy-making: the UK is a respected player at strategic level and its influence over the development of an area of freedom, security and justice in Europe has been remarkable so far. British citizens are safer and better protected when the UK is fully engaged in policy-making at EU level because EU legislation is better as a result.

UK engagement is also necessary to ensure that fundamental rights and individual liberties are fully enshrined in the design of EU internal security policies.

So the UK’s commitment to this field of EU policy will also help to safeguard the liberties held dear in the UK, in a longstanding tradition going back to Habeas Corpus, and enriched by one of the illustrious spiritual fathers of UCL, the philosopher and social theorist Jeremy Bentham. 

Protecting EU citizens in an Area of Freedom, Security and Justice for all is certainly a component of any European democratic project that respects national sovereignty and diversity. To defend these ideas while at the same time protecting British citizens from the threats of organised crime and terrorism, the UK should not lose its capacity to influence EU law making. To do that, it must remain at the heart of the decision-making process. 

Further Resources

• Download the full text in PDF.
• Read a commentary in Statewatch.
• See our media gallery for images.

Rob Wainwright gave this speech on 23 May 2012 at UCL, as part of the Institute's EU Public Policy series, organised in cooperation with the UCL School of Public Policy.