5.As we have detailed in earlier reports, the UK’s full participation in efforts to tackle cross-border threats has resulted in the existence of 40 areas of cooperation between the UK and the EU over security, law enforcement and criminal justice.
Whether in a deal or no deal scenario, the Home Office will need to ensure that the UK:
6.Our latest report on this subject concluded that the European Commission should recognise the existing deep level of security cooperation between the UK and EU, and not treat the UK as any other third country. It also stated that the Government needed to do much more to agree a comprehensive security deal with the EU, including setting out its policies on the UK incorporating the EU Charter of Fundamental Rights into UK law (to facilitate data protection) and respecting the remit of the European Court of Justice (part of the Court of Justice of the EU, or CJEU). The Government responded that it agreed with us about the importance of maintaining deep security cooperation with the EU; that it would respect the remit of the CJEU relating to agencies, and that it would seek a data adequacy decision to allow data-sharing to continue.
7.More recent evidence has reaffirmed the importance of agreeing a deal which facilitates ongoing cooperation on policing and security. In October 2018, the Director General of the National Crime Agency, Lynne Owens, told us that, without access to EU tools or a planning period that allows for “sensible negotiation” with bilateral partners, there is “a risk that this country will be less safe as a result.” This view was endorsed by DAC Richard Martin of the Metropolitan Police Service and National Police Chiefs’ Council, who said that “entrepreneurs of crime” will “exploit any gap that they can find in the market”, and will “certainly exploit it across borders”. He warned that “if we were not to get a deal, then we will not be as safe as we currently are.”
8.Lynne Owens also described the significant loss of capability were tools like SIS II and the European Arrest Warrant to be lost. She explained that “At the moment, if they [officers] stop somebody on the streets of the UK, they conduct a PNC [Police National Computer] check or indeed they sit from within National Crime Agency buildings and do the same”. In a no deal situation, “the best that we can come up with is a very manual system. It is that individual officer ringing into a point of contact in the National Crime Agency, who will then ring a third country. When policing is under pressure, that is quite a big ask of a frontline officer”. The Minister of State for Policing and the Fire Service, Rt Hon Nick Hurd MP, confirmed to us in November that many of the tools that the police and security forces would have to use if the UK left without a deal, such as Interpol systems, would be less efficient and effective than the ones they currently use.
9.The withdrawal agreement published in November provides for policing and security cooperation to continue in most respects through the transition period. The UK would be able to use tools such as the European Arrest Warrant, access EU data systems such as SIS II, and participate in joint investigations until the end of the transition. The agreement also provides for a short winding down period after transition; for example, SIS II alerts and information will be provided up to three months after the end of the transition period, providing the ‘hit’ was raised beforehand. There would be some restrictions, for example an EU member state may refuse to execute a European Arrest Warrant against its own citizens during the transition period, in which case the UK could declare that it will not surrender nationals to that state (we outline concerns about this loss of capability below). Overall, however, UK policing and security agencies would retain the tools they currently use during the transition period.
10.We welcome the fact that the withdrawal agreement allows the UK to retain access to most EU law enforcement tools during the transition period, although we remain concerned about the limitations on extradition, as outlined in our previous reports and set out further below.
11.The political declaration provides little clarity about the extent of UK-EU policing and security cooperation after transition. The declaration states that the future relationship will provide for:
“comprehensive, close, balanced and reciprocal law enforcement and judicial cooperation in criminal matters, with a view to delivering strong operational capabilities.”
It also highlights that the UK will be a non-Schengen third-country that does not provide for the free movement of persons, and it makes it clear that the closer and deeper the partnership the UK wants with the EU, the stronger the accompanying obligations will be. For example, this will take account of the degree to which the UK will respect the integrity of EU dispute resolution processes and the role of the CJEU in interpreting EU law. The political declaration does not explain exactly how this balance will be achieved, and it is likely that further negotiations will be required in order to agree the precise degree of future cooperation. The Home Secretary, Rt Hon Sajid Javid MP, told us in November 2018 that the discussions on the future security arrangements had not yet begun, but that he believed that the political declaration provided a solid basis for negotiations and a firm indicator of the scope of a future relationship.
12.We are seriously concerned about the lack of detail in the political declaration about the future security and policing relationship. The declaration allows for a wide range of scenarios and varying degrees of cooperation, depending on the trade-offs the UK Government is willing to make. This level of uncertainty is not in the interests of law enforcement in either the UK or the EU. We are disappointed with the EU’s position that the UK cannot have access to a number of crucial security and policing mechanisms, but we are also concerned that the terms of the withdrawal agreement and political declaration will weaken the UK’s negotiating position in attempting to secure its priorities, including access to these mechanisms in the future.
13.The Government proposed in September 2017 that the UK and the EU should negotiate a new security treaty providing a “comprehensive framework for future security, law enforcement and criminal justice cooperation” and a clear legal basis for continued participation. The Government was looking to have a security treaty agreed by March 2019, in other words by the time the UK left the EU. The then Home Secretary, Rt Hon Amber Rudd MP, told us in October 2017 that she was “optimistic that we can reach a treaty with the EU, which will include Europol, European Arrest Warrants, and the various structures and databases”. However, the Policing Minister indicated to us in November 2018 that any security treaty might be included as part of a wider agreement, including trade arrangements. Negotiations on a final agreement will have to be completed quickly, given that the transition period ends on 31 December 2020. There are a number of factors that might influence how long it takes to negotiate and ratify a treaty. For example, if the subject matter does not fall under the ‘exclusive competence’ of the EU, then individual EU member states’ national and regional parliaments would all need to ratify any agreement. These are known as ‘mixed agreements’. It is very likely that a security treaty would fall into this category, since the EU has designated freedom, security and justice as areas of ‘shared competency’ between the EU and member states. In July, the House of Lords’ EU Committee’s Home Affairs Sub-Committee agreed that a security treaty would probably be a mixed agreement, and the Home Secretary admitted to us recently that, depending on its scope, any treaty might need to be ratified by member states.
14.It is therefore likely that, by the end of the transition period, a future security agreement or treaty will require agreement by the European Council, the European Parliament and the national and regional assemblies of all EU member states. This will be challenging to achieve: according to the Institute for Government, there are currently 12 legislative elections scheduled across EU27 countries between November 2018 and the end of 2020. In addition, elections for the European Parliament take place in May 2019, and the current European Commission’s term of office expires in October 2019. Overall, the Institute for Government concluded that very little progress is likely to be made on determining the future relationship between the UK and EU in 2019, leaving only one full year to negotiate and then fully ratify any deal.
15.The withdrawal agreement does include the option for the UK to request to extend the transition period once, for up to two years. The evidence we received suggests that an extension of the transition period is likely be required to avoid a cliff edge in security. In December 2017 Sir Alan Dashwood QC, Emeritus Professor of European Law, University of Cambridge, told us:
“Since most of the competences in the field of security are EU competences—not exclusive ones but the EU has competence in this field—even if ratification by all of the 27 may take a very long time, it sometimes takes two to three years to get in a full set of ratifications.”
16.The withdrawal agreement does not include provision for specific pillars of the withdrawal agreement, such as security provisions, to be extended in isolation from the whole suite of transitional arrangements. Therefore any requirement to extend the security transitional arrangements would have to be considered in the context of the wider trade and economic partnership and negotiations.
17.There is a possibility that the European Commission could provisionally apply any treaty, so that it comes into effect immediately while EU member states ratify it. This would only apply to areas that are exclusively EU competencies, such as negotiating a customs union or establishing competition rules for the single market, unless member states agree otherwise.
18.The Home Secretary was not able to give us an indicative timeline, or even confirm that this was planned for, as regards to the security negotiations and ratification process, and referred the question to the Department for Exiting the European Union. He told us:
I could not tell you exactly how long it would take. It would have to go through ratification I am sure, through our own Parliament of course, but the European Parliament. Depending on its scope, there would have to be even more ratification processes than that.
19.The Home Secretary also told us that detailed discussions on the future security partnership had not yet begun and would not start until next year. The Home Secretary nevertheless expressed confidence that a deal could be done in the time available, because of the unique starting point, with the UK and the EU having been partners in this area for so long.
20.The EU’s track record for negotiating such extensive agreements suggests that it will be extremely challenging to conclude the future security partnership in the time available, even if the transition period is extended for the maximum two years. For example, the EU took five years to negotiate the Comprehensive Economic and Trade Agreement (CETA) with Canada, and then two more years to ratify it.
21.We are extremely concerned at the lack of progress in the negotiations on future security cooperation and the significant risk of a capability gap in future if this is not resolved before the transition period expires. Much debate on the withdrawal agreement has focused on the backstop for the border between Northern Ireland and the Republic of Ireland. There is no such backstop for security cooperation between the UK and the EU, and yet the Home Office does not appear to have worked out a basic timetable outlining when a treaty would need to be agreed and the various milestones it would have to reach to get approval from all the required bodies. Based on the evidence we have received, it will be near-impossible for a security treaty to be negotiated and ratified by December 2020. We are dismayed by the Government’s failure to plan adequately for the continuity of future security cooperation with the EU.
22.We are also disappointed that there is no provision to extend transitional security cooperation arrangements, independently of the trade arrangements, until a new relationship is in place. We are concerned that crucial security issues could end up being overshadowed by wider trade and economic considerations and timetables.
23.Our previous reports on security and policing cooperation have focused on three main areas: Europol, extradition (the European Arrest Warrant), and EU data systems such as SIS II and ECRIS. We now consider each of these in turn.
24.Europol is an EU law enforcement agency based in The Hague in the Netherlands, which provides support and coordination functions to member states and non-EU partners. The withdrawal agreement states that UK participation and cooperation in Europol would continue during transition. Articles 62 and 63 provide for investigations to continue throughout the transition period and beyond, if begun before the end of the transition period. To support this, for cases that start before the end of the transition period, the UK would be allowed to use the Europol SIENA system for one year after transition ends. The political declaration does not confirm what level of participation the UK will have in Europol and Eurojust after the transition period ends; it simply recognises the value in operational cooperation and states that the UK and EU will work together to identify the terms for UK cooperation via Europol and Eurojust. The Home Secretary told us in November that, despite the lack of detail in the political declaration and its non-binding nature, he still believed this provided a solid indication of the likely future relationship given the significant contribution the UK makes to Europol.
25.We recommended in March that the Government should do all it can to achieve the negotiating objective of a future relationship with Europol that maintains the operational status quo in full. We also recognised how difficult this might be to achieve, given that the closest another country has come to negotiating an operational agreement with Europol still falls short of this ambition (in this case Denmark, which is an EU member state). The Government agreed with our recommendation, stating that existing third country agreements with Europol would not provide the UK with the same kind of capability and influence as it currently enjoys; it therefore intends to negotiate a new agreement that goes beyond existing precedents for third country cooperation with Europol.
26.We welcome the confirmation in the withdrawal agreement that the UK will continue to participate in Europol activities throughout transition. We are very concerned, however, that the Government is no closer to achieving its goal of the UK having a future relationship with Europol that goes beyond the agency’s existing agreements with other countries. The political declaration contains no detail on the UK’s future relationship with Europol, and we urge the UK Government and European Commission to set out what its intention is for the future relationship in this area. If the negotiations fail to deliver a bespoke arrangement between the UK and Europol that maintains existing capabilities, it will mean a security downgrade and a failure of the Government in achieving its objectives for the negotiation.
27.The European Arrest Warrant (EAW) has been operational since 2004. It is a simplified procedure through which EU member states can issue a warrant for arrest and extradition, which is valid throughout the bloc. Warrants are subject to strict time limits: final decisions in the extraditing country must be made within 60 days of arrest, or within 10 days if the defendant consents to the surrender. Other advantages of the EAW over standard extradition arrangements include member states’ inability to refuse to surrender their own nationals; much more limited grounds for refusal; and the absence of ‘double criminality’, which means that the offence does not have to be an offence in both countries for the extradition to take place, provided it is sufficiently serious. The EAW is significantly faster and cheaper than its predecessor arrangements, based on the 1957 European Convention on Extradition. According to the Institute for Government, an extradition takes 48 days under the EAW, whereas the average extradition under the Convention takes a year.
28.The withdrawal agreement provides for the UK to continue using the EAW during transition, and any requests made through the EAW system before the transition ends will be honoured. However, it also states that a member state may refuse to execute a warrant for one of its own nationals during transition, in which case the UK could declare that it will not surrender UK nationals to that EU state. Similar restrictions already apply under the 1957 Convention, on which the UK might have to rely in a ‘no deal’ scenario: the Home Office told us in November that around 18 or 19 states might refuse to extradite their own nationals under the Convention. The legal basis for extradition between the UK and the Republic of Ireland under the 1957 Convention is also unclear. The Government told the European Scrutiny Committee in 2014 that Ireland had repealed the relevant legislation. The Policing Minster denied this was the case in November, so we requested details of the advice he has received to the contrary. He is yet to respond to this request. The CPS previously estimated the number of member states with bars on extraditing their own nationals outside the EAW at 22. The total number of own nationals extradited to the UK under the European Arrest Warrant from 2010 to 2016 was 333, with the most common offences being drugs trafficking, rape, grievous bodily harm, fraud and child sex offences.
29.The political declaration states that the UK and EU should establish effective arrangements based on streamlined procedures and time limits to allow the surrender of suspected and convicted persons efficiently and effectively. These arrangements may include provisions for the UK and member states to waive the requirement to demonstrate double-criminality, and determine whether the extradition arrangements should be applicable to their own nationals or for political offences.
30.Our previous report outlined our concerns about the ‘own nationals’ exemption, which means that some member states cannot extradite their own nationals outside the EU. In November, the Policing Minister told us that the Government was examining alternatives to extraditing EU nationals from EU member states with these exemptions, including the possibility that the member state will prosecute the crime instead. When we asked whether this would require UK victims of crime to travel to EU countries for trials, possibly spending months in another country to see the process through, we were not given a clear answer, with the Minister responding that the emphasis would be on “bringing justice to bear in that city”.
31.It is unclear how long negotiations over extradition arrangements will take. Iceland and Norway began negotiations over extradition arrangements with the EU in 2001 and, despite being members of the Schengen agreement, only came to agreement in 2014. It has still not been fully ratified. As outlined in our previous report, it also has significant shortcomings compared to the EAW. In July Claude Moraes MEP, the Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, told us that the UK might be able to negotiate a deal similar to the Norway/Iceland agreement, but he argued that clarity was urgently needed on how the UK would respect the European Court of Justice and resolve disputes. Our previous reports have highlighted this trade-off—namely that the closer the UK wants to remain to the status quo, the greater the role the EU is likely to demand for the CJEU. The Home Secretary told us in November that it would be possible to negotiate a new extradition arrangement before the transition period ends.
32.We remain extremely concerned about the ‘own national’ exemption that will apply to UK-EU extradition during the transition period. It is unclear whether this will require victims of serious crimes committed in the UK by EU nationals, including murder, rape and child sexual abuse, to travel to EU countries to participate in criminal trials. If this is likely to be the case, the Government needs to be open with the public and Parliament about the implications for access to justice for victims, and set out what practical arrangements it will put in place to support the prosecutions of EU nationals in their own countries, including support for victims and witnesses.
33.Our previous reports have highlighted our concerns about the significant legal and constitutional obstacles to negotiating an extradition arrangement that is equivalent to the EAW. We are concerned that the Home Office is overly-optimistic about how easy it will be to negotiate a replacement process to take over once transition ends, given how long it has taken Norway and Iceland to negotiate a parallel agreement, as Schengen countries. Negotiations might be particularly challenging if the Government is seeking an alternative dispute resolution mechanism from the CJEU.
34.The EU’s data-sharing tools are a central aspect of member states’ cooperation in policing and security, allowing for a wide range of information to be exchanged on a ‘real-time’ basis. This includes data on suspects wanted for arrest or questioning, stolen vehicles, missing people, criminal records, DNA and fingerprint data, and criminal offences and structures. Key European data systems include:
For more information on these systems, please see our previous reports.
35.The Government has been emphatic about the value gained from these tools, and its response to our March report reiterated the fact that the ability of law enforcement agencies to transfer data both within the EU and with third countries was important to our collective security. The withdrawal agreement states that data and information will continue to be exchanged during the transition period, and the UK will be able to continue accessing EU data systems. As we outlined in previous reports, countries outside the EU require an “adequacy decision” from the European Commission to allow for the exchange of personal data with EU member states. The political declaration states that the EU will begin its assessment of the UK during the implementation period, with a view to adopting relevant adequacy decisions. In the same timeframe, the declaration states that the United Kingdom will take steps to ensure comparable facilitation of personal data flows to the Union. EU law will continue to apply to the “stock” of personal data until adequacy decisions have been granted, after which time UK domestic rules on personal data protection will apply. Our previous reports have highlighted the process of gaining a data adequacy decision will not necessarily be quick or straightforward.
36.The political declaration does not state that the UK will continue to access all data systems to which it currently has access, nor does it make that an objective or aspiration. It states that there will be reciprocal arrangements for timely, effective and efficient exchanges of Passenger Name Record (PNR) data and results of processing of such data stored in respective national PNR processing systems, and of DNA, fingerprints and vehicle registration data (Prüm). There is also consideration made for sharing of other data between law enforcement authorities, and between judicial authorities in criminal matters.
37.The political declaration does not provide for access by the UK to SIS II, the system to exchange data on missing and wanted individuals and lost and stolen objects, and ECRIS, the database containing information on convictions made in other member states. The Prime Minister indicated on 15 November, prior to the conclusion of the political declaration, that it was her intention to deliver continued access:
There are two further areas of exchange of information that I and the Home Secretary believe are important—SIS II and the European Criminal Records Information System—and we will take those matters forward with the European Union in our further negotiations.
38.Instead, the declaration envisages capabilities that might “approximate” those systems. Multiple witnesses have emphasised to us the importance of SIS II, and our previous report said that it was crucial to our law enforcement and border security capabilities. SIS II contains 76.5 million records and was checked over 500 million times by the UK last year. DAC Martin reiterated its value to us in October:
We probably have over 200,000 people missing at some point during the year on average. An officer puts that missing person on to a police national computer here and it automatically goes on to SIS II, so even if that person goes abroad, at least there is a way for us to track, measure and do those things. If we do not have SIS II, we will have to develop some form of matrices that will allow us to decide who we should put on the system. How many of those 200,000-odd people are we going to put on each time in a very manual system? As I said before, it just slows everything down and makes it much clunkier, so there is a big impact on the frontline.”
39.In November, the Policing Minister agreed that a loss of these databases, in the event of a no-deal or a lack of agreement before the end of transition, would be a step backwards. He suggested that there would be workarounds and other systems, such as the Interpol I-24/7—acknowledging that these might not provide the same functionality, but would allow the police and security forces to continue to operate.
40.Both the Home Secretary and the Policing Minister told us in November that there is mutual interest in the UK continuing to have access to EU databases, since the UK is such a large contributor of information to these systems. As our previous reports have noted, however, ongoing access is unlikely to be easy to negotiate: there are no existing models for third country data exchange covering the degree of data-sharing in criminal justice that the UK will be seeking after Brexit. SIS II is likely to be particularly challenging, as access is currently limited to EU member states and Schengen countries, and the UK was previously denied access to the Schengen Visa System on the basis that it does not participate in the migration aspects of Schengen. Even recent EU agreements over much more limited levels of data exchange with the US and Canada have encountered major legal obstacles, with the CJEU taking a strict approach to privacy and data protection rights.
41.We welcome the withdrawal agreement’s confirmation that the UK will be able to access EU data systems throughout the transition period. We also welcome the direct reference to the Prüm and PNR databases in the political declaration. We are seriously concerned, however, about the absence of any reference to SIS II or ECRIS and the lack of detail on wider data sharing. We are extremely disappointed by arguments made from within the EU that ECRIS should only be available to EU member states and that SIS II should only be open to member states or countries within the Schengen Area. We are also very concerned that Home Office Ministers are not taking seriously enough the risks arising from losing these capabilities. It is clear from the evidence we received that there can be no substitute for SIS II, and our previous reports highlighted the significant risks that would be created if we lose access to it. A failure to retain access to SIS II and ECRIS would be a significant downgrade of our policing and security capability at a time when cross border crime and security threats are increasing. UK agencies check SIS II over 500 million times a year and there is no adequate contingency. Losing access would, as the police have warned, make us less safe. It is crucial that the Home Office plans for a possible cliff edge in data exchange after the transition period ends, and publishes a full and detailed risk assessment of the impact of losing access.
42.On 28 November, the Government published the document “EU Exit: Assessment of the security partnership” with an accompanying Written Ministerial Statement in which the Brexit Secretary stated that the analysis “compares the Future UK-EU Security Partnership as set out in the political declaration with a no deal scenario.”
43.However, the assessment acknowledges that, where the political declaration is uncertain about the precise outcome of negotiations, it “uses as a reference point the Government’s position set out in the White Paper on the Future Relationship between the UK and the EU”. The White Paper proposed a closer maintenance of existing mechanisms than that hitherto achieved in the negotiations. For example, the White Paper proposes “access to systems that allow for a timely and efficient response to these alerts through SIS II” and “continued participation in ECRIS”, neither of which are referred to in the political declaration. Moreover, the assessment is explicit that it makes no attempt to address the “immediate legal and operational uncertainty with the risk of operational disruption and potential security implications” that would arise in the event of no deal.
44.The Minister of State for Immigration, Rt Hon Caroline Nokes MP, wrote to us on 20 November acknowledging that “co-operation between the UK and the EU would be negatively affected in a no deal scenario, both in terms of the quality and quantity of how we currently work together”.
45.The Immigration Minister also wrote that if we had to stop using SIS II, “we would adapt by reverting to using Interpol channels insofar as possible”. Senior police told us the extent of the security downgrade this would entail. Lynne Owens described the Interpol contingency as “a much clunkier system than the one we currently operate”.
46.While SIS II contains 76.5 million alerts, automatically flags information to European policing partners and permits discrete markers so that an individual’s movements can be monitored, the Interpol equivalent (I-24/7) has a fraction of the alerts in circulation and would require partners to “actively check the Interpol notices”. Richard Martin told us that due to “time delays and snags that build in … from a practical point of view it does have a massive impact”. He also quoted research to us that suggested losing access to ECRIS would mean a response to a request about a foreign national’s criminal history would take an average of 66 days, compared to 10 days under ECRIS. Lynne Owens warned of the risk that “this country will be less safe” as a result of losing access to EU tools without a period to plan bilateral replacements. DAC Martin stated that “if we were not to get a deal, then we will not be as safe as we currently are”.
47.However, the Home Secretary told us that “we will be as safe—if we are talking about the SIS II system, for example, as we were just now.” He told us: “In terms of keeping our country safe, SIS II is a nice to have but our country is still safe even if, for whatever reason, we did not get access to that system.” The Home Secretary said that he was “very confident” that the UK would be able to work with the EU to access the type of data contained on SIS II.
48.From the evidence we have received, it is clear that no deal would represent a risk to public safety and security, and that the gaps in the current political declaration also signify considerable risks to our future security in the Government’s current agreement. Based on that evidence, we do not believe that the Government’s published assessment of the security partnership is a full assessment of the risks that we currently face. Nor do we share the Home Secretary’s view that we will be as safe as we are now if we lose key capabilities or cooperation, or that SIS II is simply a “nice to have”. We are extremely concerned that the Government is either being complacent or failing to be transparent about the security implications and it should provide full and accurate information to parliament about the security risks. There is far too much complacency on this issue, on the part of both the UK Government and the EU.
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Published: 7 December 2018