NOTE: This article originally appeared in The Law Society Gazette on December 21, 2017.
Last week the UK government announced plans to launch a new national economic crime centre (NECC), which promises to tackle ‘the most serious cases of economic crime’. This is a grand promise. Given that 'the most serious cases of economic crime' will almost invariably require investigation far beyond the UK border, it is troubling that Michel Barnier, the European Commission’s chief negotiator, has stated that the UK will no longer be a member of the European intelligence agency Europol after it leaves the European Union.
Europol was established in 1995 to support law enforcement agencies of EU member states by providing a forum to cooperate and share information. It cannot conduct its own investigations or make arrests, but instead works with member state law enforcement bodies to co-ordinate operations. Europol, as its name suggests, is a decidedly European organisation: it is funded entirely through the EU budget, and seconded officers from all member states work side-by-side its headquarters in The Hague, The Netherlands.
Barnier’s position on the UK’s future relationship with Europol is therefore understandable—no longer having a seat at the Europol table is the 'logical consequence' of Britain’s decision to rescind its membership of the EU, and 'become a third country when it comes to defence and security issues'. In other words, the UK cannot have its cake and eat it.
This development would be less concerning were it not for the significant emphasis placed by both the government and enforcement agencies on the importance of information sharing in the fight against international organised crime. The UK currently uses Europol more than any other member state and the National Crime Agency has identified continuing membership of Europol as its most pressing priority in tackling serious organised crime—the 'alligator nearest the boat'.
Although third-country agreements between Europol and non-EU countries have been negotiated in the past, offering varying levels of access to Europol intelligence and resources, the process of reaching such agreements has often been painfully lengthy. In any case, the consensus among UK law enforcement agencies is that such an agreement 'would not be sufficient to meet the UK’s…needs'.
Until the UK leaves the EU, the UK’s future relationship with Europol remains subject to ongoing negotiation. But the message from UK law enforcement—in particular, from those dealing with areas such as serious fraud, cybercrime, international terrorism and money laundering—is clear and consistent. Today more than ever, cross-border intelligence sharing, facilitated by institutions such as Europol, is vital to the UK’s success as a nation in investigating and prosecuting organised crime. The government claims that the new NECC will allow for a 'more targeted, intelligence-led focus on high risk economic crime'. The lengths the government is prepared to go to maintain access to Europol will be an important indicator of its true commitment to tackling 'the most serious cases of economic crime'.