UK-EU security cooperation after Brexit Contents

2Current security arrangements and Brexit objectives

Introduction

6.The UK’s security relationship with the EU covers various forms of operational and strategic cooperation, including the exchange of a wide range of criminal data and intelligence, speedy extradition arrangements, and collaboration between Member States’ policing agencies on cross-European investigations. EU cooperation on justice and home affairs (JHA) has evolved from optional strategic cooperation to formal inclusion in the EU treaties. Over the years of its EU membership, the UK has negotiated a bespoke arrangement on JHA, which has allowed for its selective participation in measures considered to be in the national interest.

7.Using a special ‘protocol’ agreed during the Lisbon Treaty negotiations, the Government decided to opt out of all EU police and criminal justice measures agreed before December 2014, and then requested that year to remain part of 35 measures, including those related to the UK’s membership of Europol and its use of the European Arrest Warrant.1 These forms of cooperation—commonly referred to within EU institutions as ‘internal security’—are distinct from EU foreign and security policy, which seeks to preserve peace and strengthen security on an international level, including through diplomacy and peacekeeping missions.2 This report focuses on law enforcement aspects of the EU’s justice and home affairs policy.

8.Member States have also retained a certain amount of independence from the EU on activities in the interests of national security: The Treaty on European Union (TEU) states that “national security remains the sole responsibility of each Member State”—although the scope of this exception has not been clearly defined in EU law.3

9.Two key foundations underpin EU cooperation on JHA. First, under the ‘mutual recognition’ of judicial decisions, certain rulings made by judges throughout the EU are implemented with a minimum of procedure and formality, meaning that they are treated differently from those made by non-EU courts.4 Second, common data protection standards allow for ‘real time’ access to EU-wide data held on a variety of people and objects, including wanted criminals, individuals requiring surveillance, missing people and vehicles, stolen passports, and criminal convictions from EU courts.

Key forms of security cooperation with the EU

10.This report considers three key forms of cooperation in detail:

11.A number of additional measures and agencies were referenced by witnesses to this inquiry. These included the European Investigation Order, an EU legal instrument aimed at speeding up inter-state assistance in criminal investigations; and Eurojust, the EU agency responsible for coordinating cross-border investigations and prosecutions, which provides funding for law enforcement agencies to work together in Joint Investigation Teams. We have chosen to focus this inquiry on the three areas of cooperation most commonly identified by the Government, law enforcement agencies and inquiry witnesses as crucial to the UK’s policing capabilities. Other issues relating to security at the border were covered in our recent report, Home Office delivery of Brexit: Immigration.5

The Government’s negotiating objectives

12.The Government’s official position on security cooperation was first set out in September 2017, in a ‘future partnership paper’ on security, law enforcement and criminal justice. It was then clarified in a speech by the Prime Minister to the Munich security conference on 17 February 2018. As of today, the Government’s stated objective in the Article 50 negotiations is to maintain the UK’s existing policing and security capabilities, as part of its future relationship with the European Union.6

13.The future partnership paper states that “it is in the clear interest of all citizens that the UK and the EU sustain the closest possible cooperation in tackling terrorism, organised crime and other threats to security”. The Government proposes that “new, dynamic arrangements” for cooperation “should allow both parties to continue and strengthen their close collaboration on internal security” after Brexit. It calls for a partnership that “goes beyond the existing, often ad hoc arrangements for EU third-country relationships in this area”, drawing on legal models for cooperation in other areas, such as trade.7

14.The Government proposes that the UK and EU should negotiate “a strategic agreement that provides a comprehensive framework for future security, law enforcement and criminal justice cooperation”. It states that this should be achieved through a new security treaty, which would provide a clear legal basis for continued cooperation. It says that this will need to include:

15.The Government suggests that such a model would be “underpinned by shared principles”, such as a “high standard of data protection and the safeguarding of human rights”, and that it would provide for dispute resolution over, for example, “interpretation or application of the agreement”. Such a mechanism would also need to be compatible with the Government’s oft-stated aim, reiterated in the paper, that “the UK will no longer be subject to direct jurisdiction of the CJEU [Court of Justice of the EU]” after Brexit.8

16.The Policing Minister told us in January that the Government’s “broad intention” in policing and security cooperation was to “emerge from these negotiations with an outcome that is as close to the status quo as possible”. He said that the Government will also seek “a treaty that allows us to have the kind of relationship where we continue to work together in the way that we worked together in the past”.9

17.On 17 February, the Prime Minister delivered a speech to the Munich security conference, calling for the UK and EU to “do whatever is most practical and pragmatic” to ensure collective security, to demonstrate “real creativity and ambition”, and to avoid allowing “competition between partners, rigid institutional restrictions or deep-seated ideology to inhibit our co-operation and jeopardise the security of our citizens”.10 While acknowledging that there is no precedent for the sort of security relationship that the Government seeks, she argued that there is “no legal or operational reason why such an agreement could not be reached”, and said:

[ … ] if the priority in the negotiations becomes avoiding any kind of new co-operation with a country outside the EU, then this political doctrine and ideology will have damaging real world consequences for the security of all our people, in the UK and the EU.11

18.The Prime Minister said that a future security treaty “must preserve our operational capabilities”, but will also need to fulfil three further requirements: it must be “respectful of the sovereignty of both the UK and the EU’s legal orders”, providing for a “strong and appropriate form of independent dispute resolution”; it must “recognise the importance of comprehensive and robust data protection arrangements”; and it must “ensure that as the threats we face change and adapt—as they surely will—our relationship has the capacity to move with them”.12

19.In the same speech, the Prime Minister said that “when participating in EU agencies the UK will respect the remit of the European Court of Justice”, but argued that a “principled but pragmatic solution” would be required, in order to “respect our unique status as a third country with our own sovereign legal order”.13

20.We welcome the objectives set out by the Government for negotiations with the European Union. We agree that there is a shared interest in continued policing and security cooperation, and we also agree that this requires pragmatism on both sides. Neither side should allow dogma to prevent solutions that are in the interests of our common security. In addition, both sides may need to be flexible about the timetable for transition. The EU should not be inflexible and try to restrict cooperation to existing third country models or existing precedents, and the UK should not be rigid about artificial “red lines” that could prevent effective cooperation. There is too much at stake, in terms of security and public safety, for either side to allow future cooperation to be diminished.

Specific objectives in key areas of cooperation

21.The Government has repeatedly reiterated its desire to maintain its current relationship with Europol, and its future partnership paper says that it will be “seeking a bespoke relationship” with the agency.14 The Home Secretary told us last year that she hoped that the UK would be able to “replicate, to a large degree, what we already have: a much more engaged, dynamic relationship”, when compared with the associate member status of countries such as the USA or Australia.15 The Policing Minister also expressed optimism about maintaining a closer relationship with the agency than other third countries, stating: “We are a very major stakeholder in Europol, which is why we think the incentives are aligned to try to negotiate an outcome that is as close to the status quo as possible”.16 The UK’s future relationship with Europol is explored in further detail in Chapter 3.

22.We welcome the Government’s intention to maintain the intensive participation of the UK in Europol after Brexit, and we agree that the UK should be aiming for a bespoke arrangement rather than adopting existing third country arrangements. However, we urge the Home Office to set out precisely what it is aiming for in legal and operational terms; particularly in relation to the role of the CJEU. We believe that the value of the UK’s participation in Europol—both to the UK and EU—means that the best outcome would be for the UK to retain what is effectively full membership of Europol. This should include direct access to Europol databases and the ability to lead joint operations—although we set out some of the likely obstacles to achieving this aim in Chapter 3. If the Government’s aim falls short of full membership of Europol after Brexit, it should say so, and explain why. The Government should also further clarify whether the engaged, dynamic relationship it is seeking would preserve its current capabilities in full.

23.The Government’s future partnership paper on security and law enforcement referred to the European Arrest Warrant as one aspect of the internal security “toolkit” assembled by Member States, but did not refer to it within its proposals for a new partnership in this area. The Home Secretary, Rt Hon Amber Rudd MP, told us in October 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”.17 Full participation in the EAW is currently restricted to Member States of the EU. The Policing Minister said in January that the EAW is “one of the tools in the toolbox that we want to preserve, and we want to preserve that capability as close to the existing status quo as possible”.18 The EAW is examined in Chapter 4 of this report, which considers the future of the UK’s extradition arrangements with the EU.

24.Ministers are right to stress the vital importance of maintaining the sophisticated and efficient extradition arrangements made possible by the European Arrest Warrant. We believe that the best criminal justice outcome for both the UK and the EU would be for the current extradition arrangements under the European Arrest Warrant to be replicated after Brexit. However, we are concerned that the Government has been insufficiently clear about its intentions. There remains excessive uncertainty about whether the Government is seeking ongoing full participation in the European Arrest Warrant (unprecedented for a non-EU member state), a replication of existing third party arrangements, or a bespoke agreement. If it is the second or third option that the Government seeks, it must explain why, and be forthcoming and frank in setting out the additional constraints that this would place on the UK’s extradition capabilities, as well as the time needed to negotiate them. It must also provide more clarity about its intended relationship with the CJEU in this field.

25.The Policing Minister confirmed to us in January that it was the Government’s intention to “stay in all of the existing information databases”.19 These are described in detail in Chapter 5 of this report. The Government’s future partnership paper does not specify which systems might be prioritised in the Brexit negotiations, but it provides the most detailed arguments in favour of retaining access to SIS II, which enables authorities to enter and consult alerts on missing and wanted individuals and lost and stolen objects, including clear instructions on what to do when the person or object has been found.

26.We welcome the Government’s ambition to retain the same full access to EU databases, and urge them to set out their plans more formally, in relation to SIS II, Prüm, PNR, ECRIS and the Europol Information System.

27.We commend the Prime Minister for her commitment to maintaining a close security relationship with the European Union, and we agree that the UK should seek to maintain its capabilities in full after Brexit. This means seeking to retain Europol membership, replicating the provisions of the European Arrest Warrant, and retaining full access to EU data-sharing mechanisms. However, we believe Parliament should be given more clarity over the Government’s precise intentions in each area. If its detailed negotiating objectives would result in inferior arrangements in practice, then Parliament should have the opportunity to debate those objectives.

28.While replicating existing arrangements would be the most desirable outcome, we also believe that the Government should be honest with the public about the complex technical and legal obstacles to achieving such a close degree of cooperation as a third country, as we explore in detail in this report.

Transitional arrangements

29.This report focuses predominantly on the UK’s long-term future security relationship with the EU, although the status of security cooperation immediately after 29 March 2019 remains uncertain. In September, the Prime Minister proposed an “implementation period” of around two years, during which the UK “should continue to take part in existing security measures”. The Government has indicated that it is willing to accept the jurisdiction of the CJEU during that time,20 and the Prime Minister has stated that the framework for this “strictly time-limited period” would be “the existing structure of EU rules and regulations”.21

30.The EU’s proposals for a “transition period” also suggest extending the full EU acquis, with a proposed end date of December 2020, but without giving the UK rights to participate in decision-making during that period. The Commission’s draft withdrawal agreement provides for ongoing data exchange and the use of the European Arrest Warrant, but it explicitly states that the UK will not be involved in the decision-making of agencies.22 This generates uncertainty about the UK’s relationship with Europol during transition. In November, Michel Barnier, the EU’s lead Brexit negotiator, said that on 30 March 2019, “the United Kingdom will, as is its wish, become a third country when it comes to defence and security issues”, and will no longer be a member of Europol.23

31.The two parties are yet to reach agreement over a number of matters, including whether the UK would be able to opt into new JHA measures during the transition or implementation period. The EU wants to limit the UK’s opt-in to amendments or replacements to the JHA measures in which it currently participates; the UK, according to press reports, wants to be able to opt into new initiatives during this period.24

32.We welcome the commitment of the UK Government to continue taking part in existing security measures during a transition period, and the commitment of the EU to extend effective Member State status to the UK during this time. It is important that these commitments are translated into legal text as swiftly as possible. However, the European Union’s proposals for this period would seemingly not allow the UK to retain its governance role in Europol, nor opt into new criminal justice initiatives during that period, unless they build on or amend existing measures. Given the UK’s unique and substantial contribution to policing and security cooperation in Europe, we urge the EU to reconsider. Disrupting Europol’s governance arrangements next March, in advance of a wider negotiation about how the new relationship should work, would not benefit anyone’s security or safety. Restrictions on Europol membership, or on participation in new measures during transition, would not be conducive to developing a future security relationship that is as dynamic as exists now. More importantly, an inferior relationship would be a gift to all those who wish to do us harm.

33.Both the UK and the EU are right to distinguish these negotiations from other elements of the future partnership, and we agree with the Government that the two parties should conclude a separate, comprehensive security treaty. Nevertheless, it is crucial that the negotiations start imminently. We are concerned that there may be significant hurdles in the way of preserving the UK’s existing capabilities, even if it is the intention of all parties to do so. Moreover, given the complex technical and legal obstacles that it must overcome, the Government and the EU must remain open to extending the transition period for security arrangements beyond the EU’s proposed end-date of December 2020.


1 Council of the European Union press release, UK’s block opt-out and partial re-opt-in to the ex-third pillar acquis, 1 December 2014

2 European Union website, Foreign & Security Policy, accessed 14 February 2018

4 Koen Lenaerts, Fourth Annual Sir Jeremy Lever Lecture: The Principle of Mutual Recognition in the Area of Freedom, Security and Justice, 30 January 2015

5 Home Affairs Committee, Home Office delivery of Brexit: immigration (HC421), 14 February 2018

9 Oral evidence taken on 23 January 2018, Q121

15 Oral evidence taken on 17 October 2017, Q47

16 Oral evidence taken on 23 January 2018, Q148

17 Oral evidence taken on 17 October 2017, Q45

18 Oral evidence taken on 23 January 2018, Q157

19 Oral evidence taken on 23 January 2018, Q117

23 European Commission, Speech by Michel Barnier at the Berlin Security Conference, 29 November 2017




Published: 21 March 2018