Eleventh Special Report
On 7 December 2018 the Home Affairs Committee published its Eleventh Report of Session 2017–19, Home Office preparations for the UK exiting the EU (HC 1674). The Government’s response was received on 19 February 2019 and is appended to this report.
In the Government’s Response the Committee’s recommendations are shown in bold type; the Government’s response is shown in plain type.
Government response
Introduction
The Government would like to thank the Committee for its report published on 7 December 2018. Since the referendum vote, the Government has negotiated a deal with the EU that protects our union, gives us control of our borders, laws and money, and means that we have an independent trade policy, as well as securing the rights of more than three million EU citizens living in the UK and around one million UK nationals living in the EU.
As the Committee report highlights, the key issues for the Home Office relate to policing and security cooperation, border operation and immigration. The Home Office has put in place arrangements to ensure continuity and cooperation during an Implementation Period, as well as being ready in the undesired scenario in which there is no mutually satisfactory agreement with the EU. Whilst the Committee has expressed concerns with respect to the levels of clarity provided in the Withdrawal Agreement and Political Declaration, we note these documents provide for a smooth and orderly transition and a solid basis for a uniquely close future partnership in the longer term.
We are grateful to the Committee for the valuable scrutiny it has provided. The Government’s response to the Committee’s specific conclusions and recommendations are below.
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)
The Government notes the Committee’s observation on the Withdrawal Agreement.1 During the Implementation Period the UK will continue to participate in all EU law enforcement tools. At an operational level, this will mean that law enforcement cooperation will continue to take place on broadly the same basis as it does now.
In relation to extradition, as the Committee has noted, the Withdrawal Agreement will take account of the constitutional barriers in some Member States in relation to the extradition of their own nationals. Further detail is provided in our response to Recommendation 6 below.
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)
The precise terms of the future relationship between the UK and EU will be a matter for the next phase of negotiations. The priority is to ensure we continue to have the necessary capabilities to work with our EU partners at an operational level in order to keep our citizens safe. To this end, the Political Declaration2 provides a framework for the UK and EU to develop arrangements giving effect to a close and comprehensive relationship, and to begin detailed negotiations on the legal text as soon as possible after the UK’s withdrawal from the EU, in order for them to come into force by the end of 2020.
The text of the Political Declaration provides for the broadest and most comprehensive security relationship that the EU has ever had with another country. It provides a platform for continuing to work closely together on law enforcement and criminal justice; ensuring that we can investigate and prosecute those suspected of serious crime and terrorism; support international efforts to prevent money laundering and terrorist financing; and combat new and evolving threats such as cybercrime.
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)
The Political Declaration provides a framework from which to take forward detailed negotiations on future security cooperation with the EU. The Withdrawal Agreement provides for a 21-month Implementation Period, during which security cooperation will be maintained on broadly the same basis as now, and we will use this time to negotiate a future relationship that protects valuable capabilities and helps to protect citizens in the UK and the EU.
As set out in the Political Declaration, before the UK’s withdrawal from the EU in March 2019, both sides will undertake preparatory work to enable formal negotiations to begin as soon as possible following the UK’s withdrawal from the EU. There will also be a clear programme to deliver this timetable, which will include the structure and schedule of negotiations. This will help ensure that the future relationship comes into force at the end of the Implementation Period, as is the clear intention of both parties in this negotiation.
We would therefore respectfully disagree with the Committee’s assertion that it is not possible to agree and ratify a security agreement by the end of the Implementation Period. The Government has been clear that we are seeking a comprehensive agreement on law enforcement and judicial cooperation in criminal matters, which would apply from the end of the Implementation Period, and that the UK’s proposals, as set out in the White Paper of July 2018, and the text of the Political Declaration are compatible with this objective.
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)
The Withdrawal Agreement ensures the UK can choose to request an extension of the Implementation Period in the scenario that the future relationship is not in place by 1 January 2021. An extension would apply to the entirety of the acquis, as set out in Part IV of the Withdrawal Agreement.
The Government is undertaking extensive preparations in advance of the next phase of negotiations with the EU. For example, DExEU is working closely with departments to put in place appropriate governance structures and to build further our capacity and capability, in order to negotiate an ambitious future economic and security partnership.
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)
The Government respectfully disagrees with the Committee’s assertion on the progress made regarding the UK’s future relationship with Europol. Both the UK and the EU recognise the importance of a continued relationship between respective law enforcement bodies and the text of the Political Declaration includes agreement that the UK and EU will continue our important cooperation through Europol and Eurojust.
The Government has been clear that we are seeking a security agreement which includes continued cooperation with EU agencies – like Europol. We agree with the Committee that an agreement based on existing third country agreements with Europol would not permit the UK to continue to make the same level of contribution to the work of the agency as it does at present, in part due to the sheer volume of activity the UK participates in and the data that the UK shares. The White Paper3 outlined that existing third country agreements with Europol do not provide direct access to Europol’s databases and the streamlined exchange of data; do not allow national experts to be embedded within Europol and do not enable countries to initiate activity in the same way.
As the Committee’s previous report noted,4 it is in the best interests of the EU, UK and Europol for the UK to maintain its ongoing role with the agency, and the Political Declaration provides a platform to achieve such an outcome. However, the precise details of our future relationship with Europol will be a matter for the next stage of negotiations.
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)
As the Committee has previously noted, Article 185 of the Withdrawal Agreement provides for the EU to declare on behalf of some Member States – those with reasons related to fundamental principles of their national law – that they may refuse to surrender their own nationals to the United Kingdom pursuant to a European Arrest Warrant.
Where the fundamental principles of a Member States national law prevent the surrender of their own nationals to the UK and the Member States authorities decide to prosecute a wanted person domestically instead, the trial will take place in the EU Member State concerned. Arrangements for cross-border participation in criminal proceedings vary by Member State. As such, it is likely that in some cases participants will need to travel to those countries to participate, while in other cases participants could provide evidence remotely.
It is already the case that victims and witnesses who are resident in one EU Member State can be asked to participate in trials taking place in another Member State. Such proceedings are supported by provisions of the Victims Directive 2012/29/EU which aims to ensure that victims of crime, regardless of residency status, receive appropriate information, support and protection and are able to participate in criminal proceedings. In particular it requires EU Member States to ensure that their competent authorities can take appropriate measures to minimise the difficulties faced in such circumstances (including the use of video-links). Under the terms of the Withdrawal Agreement, this framework will continue to apply in respect of UK residents for the duration of the Implementation Period.
Support for victims and witnesses participating in criminal proceedings is properly a matter for the country in which those proceedings take place. It would not be appropriate for the UK to offer support, financial or otherwise, to proceedings in individual cases in another country’s criminal justice system. However, under the Victims’ Code, UK residents are entitled to access support services to help them cope with and, as far as possible, recover from the effects of crime. These services are available whether they have reported a crime or not, and at any time, including after the conclusion of the investigation and prosecution.
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)
Both the UK and the EU recognise the importance of continued close and effective operational cooperation on extradition.
That is why the UK and the EU have agreed to establish arrangements enabling the UK and Member States to surrender suspected and convicted persons efficiently and expeditiously. The Political Declaration explicitly provides the basis for agreeing surrender arrangements that include streamlined procedures and time limits, maximising the effectiveness of such arrangements.
As outlined in our response to Recommendation 3, the Government has been clear that we are seeking a comprehensive agreement which would apply from the end of the Implementation Period, and that the UK’s proposals, as set out in the White Paper of July 2018, are compatible with this objective.
In regard to the dispute resolution mechanism for our future relationship, the White Paper made clear that a deep and ambitious level of law enforcement and judicial cooperation will also need to be underpinned by clear safeguards, such as robust governance arrangements, data protection arrangements and the protection of individuals’ rights. The UK will respect the remit of the CJEU in the interpretation of Union law where we directly participate in an EU agency or EU mechanisms.
More recently, the Political Declaration commits the UK and EU to basing arrangements for resolving disputes on those provided for in the Withdrawal Agreement. The primary mechanism for resolving disputes will be through consultation at the Joint Committee with the aim of reaching a mutually agreeable resolution.
8.We welcome the withdrawal agreement 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)
As the Committee has highlighted, under the terms of the Withdrawal Agreement, the UK will continue to use EU tools and data platforms – including SIS II and ECRIS – for the duration of the Implementation Period.
Regarding our future relationship, both sides agree on the value of such cooperation and share the desire to secure strong and effective cooperation in the future. The text of the Political Declaration reflects that the UK and the EU have agreed to continue to exchange information on wanted and missing persons, and on criminal records, and that our future relationship should include capabilities which allow for that. The precise means through which such capabilities are delivered in the future will be a matter for the next phase of negotiations.
We respectfully disagree with the Committee’s assertion that the Government has not given consideration to the risks arising from the loss of these capabilities. The Government has been explicit in evidence to the Committee – and in a number of publications5 – that should these capabilities be lost, our ability to share information quickly will be impacted and that there would be an overall reduction in data flows in both directions.
The Government has outlined to the Committee the contingency arrangements we would rely on should the UK lose access to SIS II. In that scenario, we would revert to using Interpol channels, which was the primary means by which the UK exchanged warnings alerts with EU Member States as recently as 2015 (when the UK connected to SIS II). Interpol provides a secure channel through which to exchange information, on a police-to-police basis. Interpol notices are functionally similar to those available via SIS II in respect of requests for information or action relating to a specific individual and includes missing persons and persons liable for arrest.
However, we are clear that Interpol is not a like-for-like replacement for SIS II. The Government and UK law enforcement highly value this important capability, and that is why we are seeking a future security agreement which maintains this capability.
Regarding an assessment, the Government published ‘EU Exit: Assessment of the Security Partnership6 which compares the Future Security Partnership (as provided for in the Political Declaration) against a no deal scenario. The assessment made clear that in a no deal scenario, the UK would no longer be able to cooperate with the EU using EU law enforcement and criminal justice mechanisms, instead relying on alternative, non-EU mechanisms where they exist. These alternative mechanisms do not provide the same level of capability and would therefore risk increasing pressure on UK security, law enforcement and judicial authorities.
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)
We strongly disagree with the Committee’s assertion that the Government is either complacent or not transparent.
As outlined in our response to the other recommendations, the Government has outlined to the Committee – as well as in a number of publications7 – the implications of various scenarios; including a scenario in which the UK leaves the EU without a deal, or that our future security relationship is based on existing precedent for third country agreements with the EU.
In the course of providing that information to the public and Parliament, we have outlined some of the contingency arrangements that the UK would rely on to continue cooperation with the EU, should the UK leave the EU without a deal. This is not an indication of complacency, but a matter of transparency in the scrutiny of the Government’s contingency planning.
The Government has been clear that it is seeking a Future Security Partnership that protects mutually beneficial aspects of cooperation in this area and ensures that both the UK and the EU can continue to tackle fast evolving security threats. We believe that is in the mutual interest of both the UK and EU in keeping our citizens safe.
UK border preparations
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)
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)
The Home Office is working closely with other Government Departments to develop our future approach at the border. Our planning seeks to maintain and where possible improve border security as well as making the trading process as frictionless as possible in any scenario.
On the movement of goods, the Political Declaration on the framework for the future relationship between the UK and EU recognises that the extent of the UK’s commitments on customs and regulatory cooperation will be taken into account in the future application of related checks and controls. The UK and EU have agreed to use best endeavours to negotiate the detailed agreements that will give effect to the future relationship so that they can come into force by the end of 2020. In the meantime, work has been underway for over two years and we have robust plans in place to ensure the border continues to operate from the day we leave.
The White Paper ‘The UK’s future skills-based immigration system’ sets out the Government’s intention to deliver a future border and immigration system which will improve the smooth flow of legitimate travellers and increase security to protect the UK against threats. After the UK’s exit, and once EU nationals no longer have free movement rights, they will become subject to the same rules as non-EU nationals.
Our future border will be built on three complementary strategic principles – all persons travelling to the UK will need to have some form of permission prior to arrival; we will develop a more sophisticated approach to risk analysis based on an individual’s travel history and compliance data; and we will make greater use of automation to facilitate the passage of low risk, legitimate travellers.
We have already set out our intention to extend the use of eGates to a wider range of nationalities and to continue to allow EU citizens over 12 years of age who possess biometric passports to use them. This will enable the vast majority of EU citizens to continue to enter the UK smoothly, without routine questioning or the need to have their passport stamped.
The future system will be streamlined and use the latest technology to reduce costs and bureaucracy. We are investing in staff and technology ahead of its introduction at the end of the Implementation Period. This will take time, but we have already made significant progress in delivering components of the future immigration system:
- most applications can be made online and more of these are in multi-language format;
- new technology programmes are replacing legacy systems at the border, for immigration applications and immigration enforcement;
- the passport renewal process has been greatly simplified and now allows for the self-uploading of images.
Our border is a national strategic asset and it provides a unique point of intervention to tackle a variety of threats to the UK whilst also facilitating international trade and travel. We will keep our border security provisions under continuous review to ensure we respond flexibly to any changes to the threat picture. We are seeking to build upon and enhance existing security cooperation between the UK and the EU. We are exploring a future border model which delivers national security and helps the UK to compete in the global market.
We continue to assess how the Government’s priorities and the ongoing Brexit negotiations will impact on the workforce and capabilities required in Border Force, ensuring we have the resources and workforce we need to keep the border secure. Border Force has already recruited a Readiness Task Force of circa 300 multi-disciplinary officers to provide operational resilience to the frontline and allow existing staff to undertake EU exit related training. In addition, Border Force is recruiting circa 600 additional Border Force officers to respond to the new requirements it will face as a result of EU Exit. In any scenario, this recruitment will enable Border Force to ensure it has sufficient resilience at the border and begin to develop a pipeline of resource to respond to future requirements as a result of EU exit.
Immigration
11.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)
The Government’s White Paper outlining our proposals for the UK’s future skills-based immigration system was published on 19 December, ahead of the meaningful vote.
The White Paper sets out proposals for a future immigration system which respects the British people’s wish for control, as expressed in the 2016 referendum, while at the same time ensuring that the UK economy can prosper. We will be introducing a new immigration system, which will give priority to the skills a migrant possesses, not their nationality.
In the oral statement accompanying publication of the White Paper, the Home Secretary made it clear that it was the start of a programme of engagement with businesses and employers. We have subsequently introduced an Immigration Bill to end free movement and enable us to put in place the future system which will ensure that we have access to the skills and talents we need after the UK leaves the EU.
1 Published 25 November 2018 - https://www.gov.uk/government/publications/withdrawal-agreement-and-political-declaration
2 Published 25 November 2018 – https://www.gov.uk/government/publications/withdrawal-agreement-and-political-declaration
3 Published 12 July 2018 – https://www.gov.uk/government/publications/the-future-relationship-between-theunited-kingdom-and-the-european-union
4 Conclusion and Recommendation 8 (page 23) – House of Commons, Home Affairs Committee: ‘UK-EU security cooperation after Brexit: Follow-up report’ (24 July 2018) - https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1356/1356.pdf
5 Published 24 May 2018 – https://www.gov.uk/government/publications/technical-note-on-security-law-enforcement-and-criminal-justice
Published 12 July 2018 – https://www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union
Published 28 November 2018 – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759760/28_November_EU_Exit_-_Assessment_of_the_security_partnership__2_.pdf
6 Published 28 November 2018 – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759760/28_November_EU_Exit_-_Assessment_of_the_security_partnership__2_.pdf
7 Published 24 May 2018 – https://www.gov.uk/government/publications/technical-note-on-security-law-enforcement-and-criminal-justice
Published 12 July 2018 – https://www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union
Published 28 November 2018 – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759760/28_November_EU_Exit_-_Assessment_of_the_security_partnership__2_.pdf
Published: 26 February 2019