HC Deb 19 January 1998 vol 304 cc739-49

'This Act shall not come into force in the United Kingdom until a report tabled by a Minister of the Crown setting out in detail the new powers of Europol and the legal status of its officers in the United Kingdom has been debated and approved by each House of Parliament.'.—[Mr. Streeter.]

Brought up, and read the First time.

Mr. Streeter

I beg to move, That the clause be read a Second time.

The Second Deputy Chairman

With this, it will be convenient to discuss new clause 43—Police operations in co-operation with Europol'.—The relevant police authorities in the United Kingdom and their officers shall have full criminal and civil legal liability for any police operations affecting United Kingdom citizens they undertake in co-operation with Europol, notwithstanding any immunities granted to Europol staff.'.

Mr. Streeter

We tabled the new clause specifically to probe the Government on their intentions for the new powers concerning Europol. It is fair to say that we are supportive of the general principles behind this part of the treaty. Indeed, my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) had a significant hand in the genesis of the measures some years ago. Conservative Members would of course support any reasonable measure that is intended to bear down on international and organised crime.

The new clause would require parliamentary approval of a report because, although we support its general principle, this part of the treaty, as I am sure that the Minister would be the first to accept, introduces or develops a significant concept whereby we effectively give legal immunity to a whole new class of people from overseas who are operating here. He will also be the first to recognise that there is public concern about the precise legal ramifications.

We had an interesting debate in the Ninth Standing Committee on Delegated Legislation on 4 December, and the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leeds, Central (Mr. Fatchett) sent me an extremely helpful letter on 18 December setting out some details, but I should like to probe the Minister a little more about some of the important legal implications.

We need a clearer idea about the activities that Europol officers will be involved in. Is it intended that legal immunity should cover all those activities, and in what circumstances will it be likely to be waived? What is it intended that a British individual should do if he or she has a complaint about the activities of a Europol officer?

My letter from the Minister's colleague said: Article 38 of the Convention provides that if damage is caused to an individual as a result of incorrect data processing by Europol (for example, if false information provided by Europol led to a British police force detaining a person in London), the remedy lies through action against the Member State in which the damage occurred, in the national courts. If I were a British citizen whose reputation had been damaged or who had been arrested or falsely imprisoned as a result of someone making a major blunder and giving the police the wrong information, I would be very aggrieved to be told that my remedy was to sue France. That prospect does not fill me with great encouragement. I would also ask myself whether legal aid would be available for such an action.

Mr. Menzies Campbell

Certainly not.

Mr. Streeter

Perhaps the hon. and learned Gentleman is right, and it would not be available under the present Government.

I hope that the Minister can clarify the matter. I have not had a satisfactory response to my question about legal redress for citizens who are aggrieved. We need some clarity about the scope of Europol officers' operations. They may not have the power of arrest, but are they allowed, for example, to accompany British police officers in the making of an arrest? In such a situation, one can foresee difficult circumstances arising.

I hope that the Minister will regard the new clause in the spirit in which it was tabled. There are serious legal implications. I am not entirely satisfied that the greatest clarity has yet been forthcoming from the Government. I realise that we are dealing with a new concept, but the Minister will understand that it is important to place on the record in Hansard as much detail as possible about the legal scope available to Europol officers, the ways in which our citizens can be protected and the redress that they will have if things go wrong. I look forward to the Minister's response.

7 pm

Mr. David Heath

New clause 43 stands in my name. This is the third opportunity that we have had to discuss this matter, and I have been increasingly dissatisfied with the responses that I have received. A vital matter of principle is at stake in the extraordinary immunity that will be provided for Europol officers working in the United Kingdom. I am surprised by the insouciance of Labour and Conservative Members, because those immunities will put British citizens at a substantial potential disadvantage. No serious questions have been raised about that by anyone other than myself and my hon. Friends.

The Liberal Democrats have made it clear that we support entirely the additional co-operation that the proposals on Europol represent. We believe that there is a great role for police co-operation between the countries of Europe, and that Europol provides an avenue to achieve that. However, the order that was agreed shortly before Christmas will provide Europol officers with immunity from prosecution, except for traffic offences, in a way that is not, and never would be, available to British police officers in the execution of their duties in this country.

The argument adduced in favour of the order was simply that such immunity is provided as a matter of course to other European organisations that involve more than one country. For obvious reasons, such immunity is provided to organisations that hold Governments to account, but the powers available to police officers relate directly to the civil liberties of individuals or groups of individuals. That is clearly different from the position of officers of, for instance, the OSPAR commission, which we also discussed in the Ninth Standing Committee on Delegated Legislation.

The British public in this country will have no adequate safeguard or redress if they feel that they have been put at a legal disadvantage by the actions of Europol officers. The only safeguard is that the immunity can be waived by the director of Europol. An analogous position would be a police officer having immunity in this country unless his chief constable said that he could be prosecuted. For what reasons can the waiver be granted? It cannot be granted in the interests of justice or the freedom of the individual, but it can be granted in the interests of the operations of the very organisation that the director leads.

The order is a serious erosion of the liberties of the individual. I was surprised, when we raised the matter in the Standing Committee on Delegated Legislation, that the hon. Member for South-West Devon (Mr. Streeter) could not support our position. Indeed, when the order came before the House, it was instructive that only some 30 Conservative Members voted against it, and they were not joined by their Front-Bench colleagues.

The key question that the Minister must answer is why the powers will be given to Europol officers when they would not be given to British police officers. Why did the Foreign Secretary say, in response to a question from me in the Foreign Affairs Committee on 4 November: I would certainly resist any immunity being granted to Europol beyond anything that might be available to the national police"? The very next action of the Government was to do precisely that, and to provide a level of immunity that will not be available to a constable of the Avon and Somerset constabulary or any other force in this country. Why has the position changed?

I hope that the Minister will not employ the tactics used by the hon. Member for Leeds, Central, who resorted to bluster. He advised the Standing Committee on Delegated Legislation that I was the friend of the international criminal for daring to suggest that a British citizen should have the power of redress against a police officer who was acting outside his powers and outside the law. I was told that we were supporting international crime by daring to suggest that the waiver might not be an adequate safeguard.

The Government are mistaken, and this debate is the last opportunity that we shall have to make important points about immunity for Europol officers. For that reason—I do not know whether the hon. Member for South-West Devon intends to press new clause 24 to a Division—I hope to divide the Committee on new clause 43. It is an important matter on which hon. Members should have an opportunity to express their views.

Sir Richard Body (Boston and Skegness)

The new clause concerns the powers of Europol. That phrase has no meaning whatever unless it means powers over the citizens of Europe and this country in particular. We are therefore in the realms of civil liberties. I am sure that the Minister recognises that fact and takes it seriously. I am also sure that he will agree that our police forces have procedures and methods that, while not always perfect, are on the whole superior to those on parts of the continent. It would be appalling if our people were to be subject to the loss of civil liberties of the kind experienced in parts of the continent. That is the fear which some of us have about the extension of the powers of Europol to this country.

We appreciate that when fraud is rampant in the European Union, to the tune of some £6 billion a year, Europol must do what it can to curb it. Although that is an important consideration, it is overridden by the importance of civil liberties. Labour Members seem to have a singular lack of interest in civil liberties, and I am sorry that nobody on the Labour Benches has sought to catch your eye, Mr. Lord, in this short debate, which is very important for civil liberties. New clause 24 was moved with great reasonableness, and I hope that the Minister of State will be equally reasonable and accept it.

Mr. Gerald Howarth (Aldershot)

It has been a characteristic feature of the development of the United Kingdom's relationship with our European partners that various measures have been brought before the House of Commons for us to approve in the name of the British people on the basis that those measures included safeguards for the British people.

Over time, and despite the assurances that Ministers have given the House in good faith, we have found that the European Union has sought to arrogate to itself powers that go beyond the literal interpretation of the various agreements and treaties. I offer as an example the Single European Act 1985. It was understood by the Government of the day, and especially by Baroness Thatcher, the then Prime Minister, that the powers of qualified majority voting would extend only to certain areas of Community competence. Much of her resentment about what happened later arose from the fact that the Community sought to extend its competence beyond the areas to which the British Government thought that it had been confined.

I mention that as a small preamble, because we are debating Europol and the extent to which it will have powers to work in the United Kingdom. As a member of the Home Affairs Select Committee, together with the hon. Member for Battersea (Mr. Linton), I visited the European Parliament before Christmas. We had a meeting with the committee dealing with justice and home affairs, which was also attended by people from other continental parliaments. It became apparent that there are those on the continent who envisage the creation of a European police force.

My hon. Friend the Member for South-West Devon (Mr. Streeter) was right to press the Minister to make it clear to us and to the British people exactly what the British Government understand is being conferred by article K.2 in particular. What powers are to be conferred on Europol? Will he share with us details of how he would react if attempts were made to extend Europol's role beyond co-ordination into acting as a European police force?

I remind the Committee that we must look at the treaty because we are presented with only a short Bill. Needless to say, the treaty is not the No. 1 best seller in W. H. Smith, but it is important that we make sure that people understand what exactly it says. Paragraph 2 of article K.2 states:

The Council shall promote cooperation"— note, "cooperation"— through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam: (a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity". No one would disagree that it is right and proper to co-operate with our continental partners in the pursuit of cross-border crime and to take all necessary steps, particularly on drugs. However, will the Minister say how he understands the meaning of the expression including operational actions of joint teams comprising representatives of Europol in a support capacity"? Does it mean that continental policemen will be attached to units in the United Kingdom and police Birmingham or Aldershot with powers of arrest over our citizens? Labour Members shake their heads, but our people need to know about such matters. I am sick and tired of being told that we should have read the treaty at the time because it was clear that it meant this or that, as happened with the treaties of Rome and Maastricht.

It is incumbent on the Government to anticipate how the treaty might be interpreted in communautaire fashion so that people say, "Article K.2 clearly leads to the creation of a Europewide police force. Did you not understand that? Here it is: 'including operational action of joint teams'." It is important to be clear about what the Government think they are signing up to.

I hope that the Minister will give an undertaking that the Government envisage, and are telling our continental partners that they envisage, that Europol officers will act in an advisory and support role, and that continental policemen will not roam the UK arresting our citizens. If that is what he has in mind, it would help if he told us tonight, so that people understand exactly what the treaty is all about.

7.15 pm
Mr. Menzies Campbell

I had not intended to contribute to this part of the Committee's deliberations, but I have been provoked by the reasonable and well crafted contributions of other hon. Members. I have in mind the fact that recently in Scotland a citizen recovered substantial damages from the chief constable of Strathclyde.

Several officers—seven, I think—were involved in an incident in which the individual concerned received serious injuries in the course of an arrest. The judge, Lord Marnoch, an experienced senior judge in the Court of Session, thought that the injuries went far beyond anything that was reasonable in arrest. He not only found that police officers had not told the truth, but that the pursuer, the Scottish equivalent of the plaintiff, was entitled to substantial damages.

If officers of a non-domestic police force operating under the aegis of Europol had been engaged in such an operation—it is not far-fetched, because the operation's objective was to obtain evidence for a charge relating to the supply of illegal drugs—they would not have been subject to the jurisdiction of the Court of Session, while the domestic officers would have been. That raises important difficulties, not only of practice but of principle. It is those which the Committee is anxious to hear the Minister address.

Paragraph 1(a) of article K.2 refers to competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences". The words specialised law enforcement services of the Member States seem apt to embrace the activities of organisations in other member states equivalent to MI5 or MI6. Can the Minister confirm that immunity would extend to such organisations, and not only to police forces?

Mr. Swayne

I should like the Minister to consider paragraph 2(a) of article K.2, bearing in mind that the treaty requires that such joint operational activity should take place within five years. To what extent would a joint operation undertaken by Europol and British police forces be accountable to the House through the Secretary of State for the Home Department? If activities are undertaken by Europol officers under the aegis of Europol, there is a serious danger that responsibility to the House would be lost.

Mr. Doug Henderson

New clause 24 would make Ministers table a report before the Act came into force. That would delay the Act, which is unacceptable to the Government, but I hope that my comments will offer some reassurance to the hon. Member for South-West Devon (Mr. Streeter) about some of the issues that he raised.

The new clause moved by the hon. Member for Somerton and Frome (Mr. Heath) stipulates that British police forces would be liable for any operations conducted with Europol which affected British citizens. I do not discount the fact that British police forces would be subject to some liability, but those matters have not yet been determined. The terms of the new clause are prescriptive, and they are unacceptable to the Government.

Europol is covered by a convention according to which any change affecting its operations would have to be agreed by unanimity. At the moment, its operations are limited to information-gathering services. If those were to be extended, as the treaty anticipates, the way in which that takes place would have to be prescribed.

In answer to the hon. Member for Aldershot (Mr. Howarth), the Government do not envisage the establishment of a European police force. We do not even have a British police force: we have a number of different ones. We would not want to see any change in that structural relationship. As the Conservative spokesman, the hon. Member for South-West Devon, has made clear, however, we should like to see further co-operation on matters in which Europol could use its work, such as anti-drugs operations. The way in which that happens would have to be agreed in the future.

The hon. Member for South-West Devon also posed the hypothetical question about someone who felt that he or she had been damaged as a result of actions by Europol. I shall have to write to the hon. Gentleman about the legal redress available to a citizen under data protection. It is covered by the Europol convention, not the Amsterdam treaty. I want to take legal advice before I offer the hon. Gentleman a reply, and I undertake to do so as quickly as possible. I am sure that he will appreciate that that matter is not a direct responsibility of the Foreign Office, but more a matter for the Home Office. I shall therefore consult colleagues at that Department before I reply to the hon. Gentleman.

The Amsterdam treaty essentially offers the prospect of an extension of Europol's operations within five years. When that happens, its privileges and immunities will have to be reviewed. At the time of that review, the Government will report to the House in the normal way, via the improved scrutiny arrangements that we have introduced, any conclusions reached. Were any legislation to be required, it would be brought forward by the Government in the normal way.

Until that happens, the convention requires Europol to prevent any abuse of privileges and immunities granted under the provisions of the protocol. It also requires Europol to waive immunity in cases where its use would impede the course of justice. In practice, Europol will be unable to hide behind any immunity.

The hon. and learned Member for North-East Fife (Mr. Campbell) asked whether any services other than normal police services would be covered by Europol. Again, I cannot answer that question, because it is something that would have to considered in any review of an extension of Europol's activities. Consideration would then be given to how it would be appropriate for Europol to work with European police forces, and what type of structure would have to be introduced. At this stage, that has not been determined.

Mr. David Heath

I do not feel that the Minister is entirely the master of this brief. Any waiver of immunity would be issued according to a twofold duty. It would be waived, first, in cases where immunity would impede the course of justice; and, secondly, in ways that did not prejudice the interests of Europol. The interests of Europol therefore become the test against which such a decision is made, which is totally different from any other test in British legislation. Why are Europol officers being treated differently from British police forces? That is in flat contradiction of the assurance that the Foreign Secretary gave the Select Committee on Foreign Affairs.

Mr. Henderson

I am sure that the hon. Gentleman would recognise that Europol officers have limited involvement in current operations. Their work is information gathering, and were that to be extended over a five-year period, as the treaty of Amsterdam anticipates, any such extension would be subject to a debate and agreement by unanimity under the Europol convention. That would allow the Houses of our Parliament to discuss those matters, but it would be wrong to anticipate now the nature of those discussions. An assurance has been given that the immunities and privileges afforded to Europol will be reviewed then.

It is obviously important as a matter of principle that British citizens, and citizens throughout Europe, are protected. When a wrong has been committed there should be effective legal redress for citizens throughout Europe. Such matters will have to be addressed when considering the extension of Europol's work, but I am sure that hon. Members will recognise that I cannot say anything else about that now.

Mr. A. J. Beith (Berwick-upon-Tweed)

In pursuit of the intelligence and information-gathering work that Europol is already engaged in, its officers might be present in the United Kingdom to assist in a major operation. If that operation misfired to such an extent that some citizens had reason to believe that they had been wrongly arrested, wrongly subject to adverse publicity or in some other way damaged, should immunity be waived so that proceedings could he taken against those Europol officers? The head of Europol would then have to decide whether it would be in its interests to allow that, bearing in mind the fact that, for intelligence-gathering reasons, he may not wish the extent to which the force had been involved to be disclosed.

Mr. Henderson

I am sure the right hon. Gentleman recognises that such an example would be dealt with in the next five-year period, when immunities will be reviewed. I hope that he will accept that the principled belief of the Government is that British citizens, in common with citizens throughout Europe, must have the right of redress if a wrong is committed against them by a British police officer or some other law enforcement agency officer. That would be a key point of the review. I do not believe that there is any difference between us on that. Given that the extension of Europol's information-gathering services is not envisaged at this stage, the right hon. Gentleman's argument is somewhat theoretical.

Sir Richard Body

Surely it is generally understood that there will be moves in due course to amend the convention that regulates Europol, in order to extend its powers. Surely I am right to say that, when that revised convention is considered, the House will have no authority or power to ratify those changes, although they may have far-reaching effects.

Mr. Henderson

I thought that I had tried to answer that point. I accept that it is anticipated that there will be some developments along those lines, but any such decisions will have to be agreed by unanimity in the first place. The normal scrutiny conducted by the House would be part of that process. As I have already made clear in previous exchanges on the treaty, in principle I support the extension of our scrutiny procedures to issues covered by the second and third pillars.

My right hon. Friend the Leader of the House will make a more general statement on that subject, probably tomorrow. I hope that that will reassure the hon. Gentleman. If any decision is reached by unanimity which requires a change in British law, that will of course be dealt with through the normal processes of this House.

7.30 pm
Mr. Howard

I had not intended to take part in the debate, any more than did the hon. and learned Member for North-East Fife (Mr. Campbell), but I should be grateful if the Minister would express a view in confirmation or otherwise on my analysis of the situation, which significantly differs from that of the hon. and learned Gentleman and the hon. Member for Somerton and Frome (Mr. Heath).

The provisions in K.2, or article 30 as it will be of the treaty on European Union, make it absolutely clear that the only activities that Europol officers will be able to undertake will be in a support capacity. All operational decisions and operational actions will be taken by law enforcement officers, conventionally the police. Therefore, would it not be the case that, if the set of circumstances identified by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) led to wrongful arrest, the police, who would be responsible for that wrongful arrest, would in the normal event be liable to the citizen and the citizen could obtain compensation from the police force in that way?

If that analysis is right—no doubt the Minister will want to take advice on the matter, but I am encouraged by the signs that I have seen—is it not the case that the new clause to which the hon. Member for Somerton and Frome has spoken is completely unnecessary, because the liability contained in that new clause would follow in any event?

Mr. Henderson

I am grateful to the right hon. and learned Gentleman. I confirm that my interpretation is the same as his in respect of the operation of police activities, and that Europol would be involved in a support capacity to police forces throughout Europe, whatever their internal structure.

The question about wrongful arrest is something that would have to be considered as part of a review process as the activities of Europol were established, even if they are established precisely in the way that the right hon. and learned Gentleman and I have interpreted the provision to intend. There would need to be detailed examination of the way in which Europol officers related to other officers in domestic police forces and of the question of who would carry responsibility for any liability incurred.

Mr. Howard

There are two separate questions, and there is a danger of confusing them. It is a matter of considerable importance, and no doubt an appropriate question for review, whether the body that ultimately pays the compensation is the British police force or Europol. That is clearly significant, and something that would be covered by the review. However, what is of interest to the citizen is that he gets compensation; it does not matter much to the citizen whether he gets it from a British police force or from Europol.

The concern that I suggest we ought to have about the treaty is whether the citizen will get the compensation to which he or she is entitled for wrongful arrest or for any other wrong done to him. The Minister, in the first part of his intervention, confirmed my analysis and my understanding that the citizen would have a right to compensation against the police force or other law enforcement agency in those circumstances. If that is right, it must follow that the new clause is unnecessary, however many questions may need to be considered in the review as to whether the ultimate compensation is paid by the British police force or by Europol.

Mr. David Heath

It is always an edifying sight when a former Secretary of State comes to the aid of a present Minister of State, but I believe that the right hon. and learned Gentleman is mistaken.

If officers acting in a support role require no immunity, why is that immunity not given to officers acting on behalf of the National Criminal Intelligence Service, whose role in respect of provincial police forces is exactly analogous to the role that will be carried out by Europol? Is it not easy to foresee circumstances in which redress to an individual citizen is appropriate as a result of police officers belonging to a local constabulary acting in good faith and blamelessly in the execution of their duties on the basis of information or other material provided by Europol which was not beyond reproach or blameless?

Mr. Howard

No—the analogy with the National Criminal Intelligence Service illustrates the error and the absurdity of the hon. Gentleman's argument. It would be ludicrous to suppose that, in this country, circumstances would arise in which a citizen had been wrongfully arrested and brought an action for wrongful arrest against the police force responsible for the arrest, but the police force said "Not me, Guv. You shouldn't be suing us—you should be suing the National Criminal Intelligence Service." It is simply beyond contemplation that that situation could arise, so the analogy the hon. Gentleman draws is a fanciful one, and is not relevant to the Committee's considerations this evening.

There may well be questions in due course, which is why the Minister is right to point to the need for a review of whether the ultimate source of compensation to the citizen should be the police force or Europol. However, what is important in terms of consideration of the treaty is whether the citizen gets the compensation to which he is entitled. I believe that the citizen would get the compensation to which he was entitled, and that ought to be our concern when considering the treaty. That is why the new clause is unnecessary, and why Conservative Members will not support it if it is pressed to a vote.

Mr. Beith

The former Home Secretary prompts me to say that he did not fully review my earlier point, because he confined his remarks to circumstances in which wrongful arrest had occurred. Other things might take place, and I gave the example of a person suffering adverse publicity because of information leaked by an officer which turned out to be false, or which should not have been leaked in any case, whether true or false, because inquiries were still in progress. That action might have been taken by an officer of Europol and not of the police force involved. One can imagine other cases, involving not a simple case of wrongful arrest, but some other form of culpability directed at Europol officers.

We raise these matters not because we expect Europol officers to behave in that way, but because there must be an ultimate safeguard. That safeguard has been stripped away by the breadth of immunity given to Europol—a scale of immunity not given to British police forces, or to other organisations which assist British police forces such as the Security Service, the National Criminal Intelligence Service, or the National Crime Squad, all of which operate in a role that is in some way similar.

We remain extremely concerned, and I hope that, even if we have not persuaded them to take immediate action, today's debate will send the Government hastening back to interdepartmental consultation on this issue. There is a serious gap and, from his demeanour and the concern he has shown, I believe that the Minister is aware of that gap.

Mr. Streeter

This has been a valuable debate. I thank the Minister for making it clear that the Government have no plans whatsoever to support any concept of a European police force. For reasons given, we cannot support the Liberal Democrats' new clause, but I must tell the Minister that I am not entirely satisfied by his response to the debate. When he writes to me, as he says he will, I hope that he will set out in some detail the answers to some of the questions that I have asked. It is not so much that we want to know what will happen in five years' time; we want to know the limits of the scope of activity in the next five years. We also want to know more about the legal immunity.

I should have thought that, on hearing some of the concerns around the House today, the Minister would ask the Leader of the House of Commons, his right hon. Friend the Member for Dewsbury (Mrs. Taylor) to organise a longer debate on the subject in Government time between now and Easter, so that we can discuss some of the details. It is important that our citizens should be reassured. We want more detail about how the process will work in practice. I am disappointed that the Minister should introduce the measure without having fully thought through its legal implications and ramifications, and seemingly without adequate briefing.

Given all the circumstances, it is not our intention to press the new clause to a Division tonight, but I hope that the Minister has listened carefully and will note that we are not entirely satisfied; we require more information and an opportunity to debate the subject fully in due course. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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