Conclusions and recommendations
Policing and security cooperation
1.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. (Paragraph 10)
2.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. (Paragraph 12)
3.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. (Paragraph 21)
4.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. (Paragraph 22)
5.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. (Paragraph 26)
6.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. (Paragraph 32)
7.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. (Paragraph 33)
8.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. (Paragraph 41)
9.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. (Paragraph 48)
The UK border system
10.We are extremely concerned by the lack of any clarity on what the customs and border arrangements in the future partnership might be, and therefore what the Home Office and the rest of Government should be preparing for. The political declaration does not reconcile the Government’s objectives of achieving an independent trade policy and frictionless trade, and provides no assurance that there will not be additional checks and controls at the border. (Paragraph 57)
11.We welcome the agreement between the UK and EU that there will be a transitional period, and the commitment to keep trade between the UK and EU tariff-free after the transition period ends. We are disappointed, however, by the political declaration’s ambiguity regarding the future scale of checks and controls at the border. The wide range of outcomes allowable under the declaration will make it extremely challenging for the Home Office to make preparations for UK border operations after transition ends. Given the Home Office’s track record in hiring people and developing IT systems, any significant programmes of work will need to begin immediately. The Home Office should provide us with a statement outlining the programmes it will need to carry out to transition successfully to whatever the new system will be, and when they will deliver them by. (Paragraph 60)
12.It is deeply unhelpful and unsatisfactory that Parliament will not be able to consider the Government’s immigration proposals in advance of the vote on the 11 December. We have consistently expressed significant concerns about the long delays to the paper’s publication, given that immigration was an issue that was so central to the referendum campaign in 2016. Based on the evidence we have seen, we were left with the clear impression that the continued delays in publication of the White Paper have been exacerbated by confusion over who is driving the policy between the Home Office and the Prime Minister. The Government has provided a distinct lack of information on its immigration proposals, and of time for Parliament to consider them before the vote on the deal. This is an unacceptable way for the Government to operate. (Paragraph 64)
Published: 7 December 2018