Preparing for the end of the Transition Period Contents

3Policing and law enforcement cooperation

49.The future relationship negotiations have not just been about a trading relationship. A very important element of the future relationship and in preparations for a secure border relates to how the UK will have some form of law enforcement and judicial cooperation in three main areas: access to EU databases and the ability to exchange data relating to fighting crime (including the Schengen Information System (SIS) II, Prüm and ECRIS), a relationship with EU wide bodies such as Europol and Eurojust, and some form of replacement for the European Arrest Warrant.95

50.Both sides had red lines that put constraints on how close this relationship could be: the EU has said it would be determined by precedent for a third country that is outside Schengen. The UK has insisted on there being no role for the Court of Justice of the EU (CJEU) and had not wanted to include a commitment to the protection of fundamental rights in the agreement, and from the start said it would not seek to be part of the European Arrest Warrant. It has requested a data adequacy decision for the purpose of law enforcement, in addition to the general data adequacy decision under the General Data Protection Regulation (GDPR). The National Crime Agency (NCA) has said

If the European Commission do not award Data Adequacy before the end of the Transition Period there would be a direct impact on all UK Law Enforcement agencies to facilitate efficiently inward information transfers from the EU and we would be reliant on MS authorities applying the alternative tests to transfer data to the UK, such as appropriate safeguards. These alternatives are less efficient, and would require additional demonstration by UK law enforcement of the standards that are in place before the data is transferred.96

While technically outside and separate to the negotiations, it was hoped that a decision on data adequacy from the EU would be granted before the end of 2020. This has not so far happened.

51.Given these parameters, and the likely outcomes, the UK has made preparations in anticipation of not having the same level of access or cooperation with EU-wide tools for law enforcement. The National Police Chiefs Council (NPCC) has established an International Crime Coordination Centre (ICCC), in order to provide advice and identify tools available for police forces to tackle international criminality, and is working with Government and other operational partners to “identify and ensure a range of contingency measures are in place when the UK officially leaves the EU.97 Martin Hewitt, Chair of the National Police Chiefs’ Council, has said

As an overarching principle, the loss of some or all of the tools will mean that, even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined up working with European partners more cumbersome.98

52.The National Crime Agency has increased its work with Interpol in order to try to compensate for the loss of access to the SIS II real time data, although Interpol notices are not automatically integrated with the Police National Computer as SIS II data is. The NCA has recruited 60 additional officers to manage the manual inputting required to make sure Interpol notices are routinely circulated, and to review current SIS II Alerts to determine which could also be circulated via Interpol. On 9 December 2020, the National Audit Office reported that the Home Office plans to remove all SIS data from all its systems on 31 December 2020, and that “the implications of replacing this key data source for the programme’s stakeholders are yet to be worked through.”99

53.In a letter to the Home Affairs Committee, the NCA said UK law enforcement makes “extensive use of Europol’s significant and unique capabilities” and that the UK makes “widespread operational use of Europol analytical and coordination services across all serious and organised crime threat areas”.100 The NCA believe that if there is a security agreement then this should allow the UK to continue to post Liaison Officers to Europol and enable information exchange through a UK Liaison Bureau. However, it would no longer be able to second national experts to Europol and will no longer attend the Europol Management Board, so “can no longer exert influence over the future focus and prioritisation of threats within the agency”.101 It is not clear what level of access the UK could have to the Europol databases such as the Europol Information System and the Secure Information Exchange Network Application (SIENA).102

54.The UK and the EU have agreed to negotiate a surrender agreement similar to the one that Norway/Iceland has with the EU, to replace the European Arrest Warrant.103 This has been described by the PSNI Chief Constable as the “least worst option”104 and by the National Police Chiefs Council (NPCC) as preferable to the alternative of falling back on the 1957 Council of Europe Convention on extradition.105 Under the Norway/Iceland Surrender Agreement, several EU member states have said they would not extradite their own nationals to Norway or Iceland,106 which is not the case under the European Arrest Warrant107 and Germany, Austria and Slovenia have already indicated they will not extradite their own nationals to the UK.108 The UK needs to plan for other EU countries to have similar restrictions for extraditing their nationals to the UK. Dr Amanda Kramer, School of Law, Queen’s University Belfast, has said that while there is “a relatively high likelihood” of an arrangement being in place at some point “I would not be optimistic that this would come into place by the time that Brexit takes place”. She said it could be quicker than the negotiation for Iceland and Norway, but there are “significant issues” to resolve and “That could take quite a bit of time.”109

55.There are particular concerns about maintaining good law enforcement cooperation between the UK and Ireland. Simon Byrne, Chief Constable, PSNI, said that, while criminals exploiting the border is not new, he feared that the Common Travel Area (CTA) could provide a “soft underbelly” for people wishing to exploit it for smuggling drugs, firearms, people, contraband, or “to exploit tariffs [ … ] depending on where that ends up.”110 A major concern is the ability to continue to exchange data cross border. Simon Byrne described data access without a data adequacy decision as:

a difficult situation where we do not get full access to the current tools and intelligence flows, I have described it as imagining a world where you are going from Wi-Fi to a modem; in other words, you will still have connectivity but it will take a lot longer.111

56.Another concern is the space filled by the European Arrest Warrant. If there is no substitute in place and the relationship reverts back to that under the 1957 Council of Europe Convention on extradition which will lengthen the time it takes to extradite people, and where extradition was a political decision rather than a judicial one as it is under the EAW.112

57.In addition to the alternatives to EU side mechanisms that could be lost, the PSNI are looking at developing a crime centre, where relevant agencies are brought together “under one roof to get almost like a force-multiplier effect of our intelligence, our experience and our tactics”113 Regarding cooperation with police in Ireland, Simon Byrne, Chief Constable, PSNI, has said that he hoped something like the Joint Investigation Team, which is a Europol initiative, could be negotiated between two countries.114 Assistant Chief Constable Mark McEwan, Lead for EU Exit, PSNI, said “We have a long-established relationship with An Garda Siochána and that operates at a number of levels” including very close local arrangements allow for day-to-day cooperation. He said this allowed the PSNI “to build relationships and develop faster-flowing information and intelligence flows with our colleagues in the Garda.”115 Assistant Chief Constable McEwan said this is particularly important in the border area, where there are communities “living their daily lives on both sides of the border” and that it was important to support those communities:

We need to do everything we can to support them and to ensure we are able to maintain the likes of that information-sharing around missing persons and other community safety things that impact on people’s lives, as well as the organised crime aspects.116

When asked about the sharing information with counterparts in Ireland if there is no data adequacy decision in place by 1 January, Robin Walker, Minister of State, Northern Ireland Office, said:

The first point is that we want to get a data adequacy agreement working in both directions that will allow that in the most effective way. If you were to envisage a scenario where that was not possible, we would then have to look at what we might be able do on a bilateral level to facilitate arrangements to have conversations under the information sharing that takes place under the CTA Forum, etc.117

58.Cooperation on law enforcement and policing is an important part of the UK’s future relationship with the EU and the loss of access to certain databases and sources of information that we have made great use of is a cause of concern. While it remains to be seen how close any agreement will be, there will need to be provisions in place on day one to ensure that the UK border is secure and safe. The Government, police, and agencies, such as the National Crime Agency, have clearly anticipated what tools they are unlikely to have at their disposal after the end of the transition period and designed alternatives where possible but it is not clear if those alternatives will be in place on 1 January 2021. For example, it is unlikely that there will be an EU-UK Surrender Agreement ready to replace the European Arrest Warrant and it is not certain that there will be a data adequacy decision for law enforcement purposes in place. The fall-back systems for exchanging data are slower and more cumbersome. The Government needs to monitor carefully the time it takes for the alternatives to bed in and prove their effectiveness.

59.The UK has a 300-mile land border with an EU member state on the island of Ireland. The Police Service of Northern Ireland and An Garda Siochána have developed ways of sharing information and intelligence which is important for countering cross-border crime. The UK must explore all possibilities available, including the possibility of bilateral arrangements, in order that law enforcement agencies in Northern Ireland and Ireland can continue to cooperate in this way on 1 January 2021.

95 Qq67–68, Qq374–375, Q407, Helena Farrand Carrapico (FRE0040), Valsamis Mitsilegas (FRE0041), Steve Peers (FRE0042),

97 National Police Chiefs Centre, International Crime Coordination Centre, accessed 15 December 2020

99 National Audit Office, Digital Services at the Border, 9 December 2020, para 3.2

102 Camino Mortera-Martinez, “Brexit and police and judicial co-operation: Too little, too late?”, Centre for European Reform, 9 November 2020; Europol Information Exchange, accessed 15 December 2020

103 HMG, The Future Relationship with the EU: the UK’s Approach to Negotiations, CP 211, February 2020, para 51; Professor Steve Peers (FRE0042)

104 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q82

105 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q60. See also Camino Mortera-Martinez, “Brexit and police and judicial co-operation: Too little, too late?”, Centre for European Reform, 9 November 2020

106 Crown Prosecution Service (FRE0066). Austria, Czech Republic, France, Germany, Slovakia, and Slovenia have declared an absolute bar on extradition to Norway. Others have declared conditional nationality bars where “an own national will be surrendered, but only if there is a guarantee that they will be returned to the member state to serve a sentence if convicted.” Article 185 of the Withdrawal Agreement already allows EU member states the option of not surrender their nationals to the UK during transition.

108 Crown Prosecution Service (FRE0066)

109 Oral evidence taken before the House of Lords EU Security and Justice Sub-Committee on 17 November 2020, HL (2019–21), Q40

110 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q5. See also oral evidence taken before the House of Lords EU Security and Justice Sub-Committee on 17 November 2020, HL (2019–21), Q32

111 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q60

112 Oral evidence taken before the House of Lords EU Security and Justice Sub-Committee on 17 November 2020, HL (2019–21), Q29, Q40

113 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q55

114 Oral evidence taken before the Northern Ireland Affairs Committee on 4 November 2020, HC (2019–21) 766, Q70

115 Oral evidence taken before the House of Lords EU Security and Justice Sub-Committee on 17 November 2020, HL (2019–21), Qq28–29

116 Oral evidence taken before the House of Lords EU Security and Justice Sub-Committee on 17 November 2020, HL (2019–21), Q28

117 Oral evidence taken before the Northern Ireland Affairs Committee on 25 November 2020, HC (2019–21) 766, Qq186–187




Published: 19 December 2020 Site information    Accessibility statement