Cross-border co-operation on policing, security and criminal justice after Brexit Contents

2Cross-border security

The Trade and Co-operation Agreement

9.For as long as a border has existed on the island of Ireland, criminals have exploited its “porous” nature and the police have had to deal with various forms of cross-border crime.21 Cross-border criminality includes the intentional use of the border to evade detection and capture and a disregard for its existence when committing criminal acts. It takes many forms, from serious and organised criminals engaging in drug trafficking, human trafficking, and smuggling across the border, to offenders traversing the border in the course of committing crimes, such as burglary.22 Policing co-operation has therefore “long been a necessary tool” to combat cross-border crime.23

10.The Committee heard that, in recent years, EU-level mechanisms had provided a basis, and complemented existing platforms, for co-operation between UK and Irish law enforcement agencies.24 Before the end of the transition period, the UK participated in more than 40 EU measures aimed at supporting and increasing security and criminal judicial co-operation within the EU.25 Of those measures, we heard that the European Arrest Warrant, the European Criminal Records Information Exchange System (ECRIS), the Second-Generation Schengen Information System (SIS II) and Europol were particularly important in enabling effective cross-border policing and criminal justice co-operation between UK and EU law enforcement agencies.26

11.Owing to its departure from the EU, the UK was scheduled to lose full access to many of those mechanisms when the transition period ended on 31 December 2020. The UK and EU therefore needed “to agree a new basis on which to extradite people between the UK and the EU; to exchange law enforcement data; and to facilitate co-operation between law enforcement and criminal justice agencies”.27 Effective co-operation between UK and Irish law enforcement agencies depended on agreement on these matters, because, as the Committee heard, a failure to agree a future relationship deal would have led to a reliance on outdated and cumbersome extradition and intelligence sharing processes (see Chapters 3 and 4).

12.In evidence to the Committee in November 2020, before an agreement was reached with the EU, the Government explained that law enforcement agencies would have to use Council of Europe Conventions, such as the 1957 European Convention on Extradition and the 1959 Convention on Mutual Assistance in Criminal Matters.28 Also giving evidence before the agreement of the TCA, Naomi Long, Minister for Justice in the Northern Ireland Executive, argued that law enforcement agencies in the UK should not have to rely on “old systems and processes that have been superseded by better arrangements using modern IT processes”.29 She discussed the sophistication of serious and organised crime, pointed out that many of the Council of Europe Conventions were outdated having been developed in the 1950s, and concluded that “we cannot combat 2020 crime and security threats using 1950s tools”.30

13.Naomi Long highlighted the value of the UK and EU agreeing a future security partnership. She observed that co-operation between operational partners north and south of the border was often facilitated by EU measures and had “helped significantly in the fight against crime and organised crime on the island of Ireland and further afield”.31 She told us effective north-south co-operation on the island of Ireland protects both the UK and EU:

It is important that we have seamless justice across the island. That is important for the security of the UK as a whole, as well as for Ireland as a whole. It also aids security in Europe, because none of us should be blind to the fact that, while Northern Ireland may be an island off an island off the coast of the EU, it is nevertheless a very attractive place for people who are involved in crime and criminality to try to either bury their profits or, indeed, make new connections.32

14.The UK and EU agreed a new security partnership as part of the TCA announced on 24 December 2020. Part Three of the TCA sets out new arrangements for UK and EU law enforcement, crime agencies, and judicial authorities to co-operate on the surrender of suspects, share intelligence and participate in joint operations. Academics giving evidence to the Committee concurred that the new Justice and Home Affairs measures in the TCA represented a good compromise by the two parties to continue policing, security, and criminal justice co-operation.33 We heard how the agreement provided a better foundation on which to continue security co-operation within the Common Travel Area compared with a non-negotiated outcome.34

15.Colin Murray, Reader in Public Law, Newcastle Law School remarked that the arrangements in the TCA represented “what you might call a ‘keeps the lights on’ deal in terms of justice and security”.35 Gemma Davies, Associate Professor, Northumbria Law School agreed that “a no deal would have been very significant in this area”.36 She commented that the UK and the EU had “secured co-operation that, not in all fields but in some fields, is as close as is conceivable”, when considering the UK’s red line in relation to the role of the Court of Justice of the European Union and the EU’s red line of not undermining its internal legal order.37 She added that the agreement “represents a working compromise, but there are some real issues, particularly in relation to loss of real-time data”.38

16.When questioned on the effects of the new arrangements on operational capabilities in late January 2021, law enforcement and crime agencies informed us that the arrangements in the TCA were at that point working well. PSNI Assistant Chief Constable, Mark McEwan told the Committee that the arrangements in the TCA were having no discernible operational impact for the PSNI, including on policing co-operation with An Garda Síochána.39 Steve Rodhouse, Director General of Operations, National Crime Agency agreed that “the mechanics look positive”, although he said that it was “early days”.40

17.Robin Walker MP, Minister of State, Northern Ireland Office informed us that the TCA addressed concerns heard by the Committee that criminals operating on the island of Ireland could have benefitted from cumbersome extradition processes and delays in intelligence sharing, if no deal had been reached:

Clearly it is early days, and we want to make sure that the new arrangements can bed in long term and work effectively, but the TCA did cover many of the areas about which I know your Committee was concerned and that we discussed earlier. Our assessment so far is that it has had no impact on bilateral operational co-operation for law enforcement. Indeed, it has provided an opportunity, potentially, for further co-operation in due course.41

18.We welcome the fact that the UK and EU have agreed a new security partnership as part of the agreement of the Trade and Co-operation Agreement. At the time of the inquiry hearings, Brexit had had no discernible operational impact on cross-border policing and the ability to co-operate with partners in the EU has been maintained. Before the announcement of the agreement, we had heard concerns that a failure to secure a deal on security could have led to a reliance on cumbersome extradition and intelligence sharing processes. The agreement mitigates these concerns and, importantly, provides a foundation for the continuation of UK and Irish law enforcement agencies’ well developed means of co-operating to maintain the security of the Common Travel Area.

Cross-border criminality

19.Arrangements providing for effective and efficient co-operation between UK and Irish law enforcement agencies are critical because the cross-border threat from organised crime gangs on the island of Ireland is constantly shifting. Steve Rodhouse, Director General of Operations, NCA told us that “organised criminals are inherently agile and innovative and will look to exploit weaknesses wherever they occur”.42 Co-operation and communication are key to bringing such criminals to justice. The PSNI is currently investigating more than 80 organised crime gangs operating in Northern Ireland, 16 of which they assess are operating with a particular focus on the exploitation of border areas.43 The PSNI also stated that mobile organised crime gangs based in Ireland continue “to have a substantial impact on acquisitive crime offence levels in Northern Ireland”.44

20.The effects of Brexit on cross-border criminality on the island of Ireland, as well as between Northern Ireland and Great Britain, are uncertain. Crime agencies believe that cross-border criminality is unlikely to increase significantly in the short term following the end of the transition period, but the longer-term effects of changes to statuses of borders within the Common Travel Area are unclear. Simon Byrne, PSNI Chief Constable, told us in November 2020 that in the short term “not a lot will change in terms of patterns of criminal behaviour”.45 Steve Rodhouse agreed, stating that intelligence gathered by the NCA indicated “a wait-and-see principle within organised criminality” on how they might adapt their illicit activities following the end of the transition period.46

21.Following the announcement of the TCA, PSNI Assistant Chief Constable, Mark McEwan said that the lack of tariff differentials as a result of the agreement was welcome and that “it is less obvious now, perhaps, as to where those opportunities for organised criminality may come”.47 The Assistant Chief Constable told us that it was “a bit early to tell” how organised crime gangs might respond to changes as a result of Brexit but that law enforcement agencies were working together to closely monitor any changes in attempts to exploit the Common Travel Area:48

We have a significant focus on… exploitation of the Common Travel Area and the movement of people, whether it is illegal immigration, clandestine movement or human trafficking. We have considerable focus on that with partner agencies and, in all these things, we are well linked into the UK-wide mechanisms for dealing with them.49

22.Steve Rodhouse agreed with the Assistant Chief Constable and also noted that covid restrictions were reducing movements of people, which a lot of organised crime revolves around.50 He added that the NCA had not noticed a significant change in organised crime activity since the introduction of the TCA and end of the transition period, but stated “I need to be realistic here. We know that organised criminals are agile and inventive, and will find ways to exploit a situation for their benefit. It would be wrong to ignore that possibility”.51

23.Organised crime gangs smuggle people into Great Britain by various routes using small boats, lorries, ferries and other modes of transport.52 Steve Rodhouse told us that relatively small numbers of people are currently trafficked into Great Britain via the island of Ireland. However, he warned that traffickers could exploit that route if their perceptions of relative levels of the security at different borders change.53 The PSNI and Border Force also identified the risk that vulnerable persons might be trafficked through Northern Ireland, if perceptions of the effectiveness of borders shift.54

24.In January 2021, PSNI Assistant Chief Constable, Mark McEwan told the Committee that there was some early evidence of organised crime gangs adapting their criminal routes following changes in the status of borders within the Common Travel Area:

We have seen some activity around the new transport routes, particularly from Dunkirk to Rosslare. That was intercepted by An Garda Síochána in terms of people moving from, I believe, Syria. There was also a cash seizure… we are starting to see organised criminality adapt to the new routes and new opportunities, as we would expect.55

Paul Morgan CBE, Senior Director, Border Readiness Directorate, Border Force informed us that Border Force would be monitoring closely “ferry routes coming in directly from the continent to Ireland, and the situation there in terms of onward movement to Northern Ireland across the land border”.56 He said the Agency had seen no evidence yet of increased criminality across these routes but cautioned that it was too early to say whether there will be any significant change.57

25.Law enforcement and crime agencies told us that, so far, they were satisfied that their ability to co-operate with partner agencies in the EU to tackle the agile activities of serious and organised crime gangs had been maintained through replacement mechanisms for co-operation agreed as part of the TCA (discussed further in Chapter 3 and 4).58 Assistant Chief Constable, Mark McEwan said that the PSNI had experienced no operational impact on cross-border policing co-operation with An Garda Síochána since the introduction of the TCA.59

26.When questioned in November 2020 on the Government’s efforts to disrupt human trafficking into and within the Common Travel Area, Robin Walker highlighted “excellent cross-agency collaboration to tackle the trafficking of vulnerable people”.60 He pointed out that that included co-operation with Irish law enforcement agencies, which entailed “close working, through the auspices of the CTA [Common Travel Area] Forum on sharing information”.61 In March 2021, he expanded on how the CTA Forum helped to tackle human trafficking:

The Common Travel Area Forum is a bilateral meeting held regularly between senior UK and Irish Government officials to provide oversight of the CTA and its associated reciprocal rights and privileges. The forum is jointly chaired by a Home Office director-general and their Irish counterpart, and is only attended by officials. It operates in co-ordination with other intergovernmental arrangements. Forum members work closely together on border security, identifying and preventing those who seek to abuse arrangements from entering the CTA. Our joint programme of work includes increased data sharing and operational co-operation.62

27.In the course of giving evidence to our inquiry, Minister Walker pointed to other bodies and fora that exist to tackle cross-border criminality across the Common Travel Area. This includes well-established north-south co-operation on island of Ireland through forums such as the Joint Agency Task Force and the Annual Cross Border Organised Crime Conference.63 Mark Larmour, Director, Northern Ireland Office, told us that it was important to recognise that “there is a very good, strong framework for north-south co-operation, particularly between law enforcement agencies”.64 These structures, supported by, though not dependent upon, the British-Irish Intergovernmental Conference framework, are not subject to direct change as a result of Brexit.65 The British-Irish Intergovernmental Conference met in May 2019, when security co-operation was on the Conference’s agenda, but it has not met since.66 In March 2021, Minister Walker told us that the Government was keen to focus on its “deep and broad shared bilateral interests” with the Irish Government “now that the TCA had been secured”.67

28.Patterns of behaviour by smugglers and organised crime gangs on the island of Ireland have not changed significantly following the end of the transition period, but there is no room for complacency. We therefore welcome law enforcement and crime agencies’ assurance that the high level of cross-border operational capability has been retained through replacement co-operation mechanisms agreed in the Trade and Co-operation Agreement.

29.Cross-border arrangements providing for effective security co-operation across the Common Travel Area are to the mutual benefit of all on these islands. The importance of bodies and fora such as the Joint Agency Task Force, the Annual Cross-Border Conference on Organised Crime, the Common Travel Area Forum and where appropriate the British-Irish Intergovernmental Conference cannot be overestimated in their use in supporting and developing co-operation between law enforcement on both sides of the border countering cross-border criminality and for security co-operation (and other issues) between the UK and Ireland more widely. The Government and the Irish Government must agree to convene the British-Irish Intergovernmental Conference (either virtually or physically) as soon as possible, and no later than the end of June 2021, to discuss security co-operation, as part of wider ongoing efforts to minimise the opportunities for organised crime gangs to exploit the Common Travel Area. The Government and the Irish Government should build on established practice for supporting cross-border co-operation to minimise the opportunities for organised crime gangs. Steps must be intelligence-led and have a clear operational purpose. The Government should also work proactively with the Executive to ensure that the PSNI and the National Crime Agency are fully equipped to identify and address specific organised crime threats.

Specialised Committee on Law Enforcement and Criminal Justice Co-operation

30.The TCA establishes a UK-EU Specialised Committee on Law Enforcement and Judicial Co-operation to address matters covered by Part Three of the agreement (Law enforcement and judicial co-operation in criminal matters).68 The Institute for Government has explained that the Specialised Committee will “oversee the functioning of this part of the agreement and the provisions can be reviewed if both sides agree. It will also oversee any disputes”.69

31.Professor Valsamis Mitsilegas, from the School of Law at Queen Mary University of London, told our Committee that any complex questions on the “functioning, monitoring and implementation” of the new arrangements for law enforcement and judicial co-operation would be sent to the Specialised Committee for examination.70 He added that there is much work to be done on the Specialised Committee and urged “the UK to be fully committed, to send its experts and to try to get some concrete solutions to the most pressing problems as soon as possible”.71 Gemma Davies, Associate Professor, Northumbria Law School argued that the Specialised Committee should have devolved representation as

the committee will likely be integral to developing Part III and looking at where cooperation needs to be enhanced. The needs of the devolved nations will be best served if they have representation.72

32.Gemma Davies outlined that there were areas in the agreement that provide scope for enhancing co-operation in future, “particularly between the UK and Ireland, through the possibilities of bilateral agreements”.73 Professor Mitsilegas agreed that the arrangements in the TCA evidenced “a dynamic situation” with regard to security co-operation between the UK and EU.74 He added that closer co-operation in the future will be contingent on “some sort of common understanding as to the extent to which the UK will be seen to be compliant with the development of future EU legislation in the field”.75

33.Minister Walker stated that the Government would “work closely with the devolved Administrations to determine an appropriate role for them in TCA governance structures”.76 He added that no decisions had yet been taken on the membership of the Specialised Committee but outlined the Government’s view that Specialised Committees established by the TCA should not formally begin their work until the EU has completed its ratification of the agreement.77

34.The Specialised Committee on Law Enforcement and Criminal Justice Co-operation will have a crucial role in developing and monitoring the law enforcement, security and criminal justice arrangements in the Trade and Co-operation Agreement. This important work would benefit from the formal input of devolved representatives. When the Specialised Committee is established, the Government must invite representatives from the Northern Ireland Executive to participate in the Committee (on the same basis as they do within the Executive) to allow them to articulate their perspective on security co-operation on the island of Ireland.

21 See: Q55; Q56 (Simon Byrne, Chief Constable, Police Service of Northern Ireland); and Kramer, A., Dickson, R. & Pues, A., Evolving Justice Arrangements Post-Brexit, August 2019, p. 5

22 See: Kramer, A., Dickson, R. & Pues, A., Evolving Justice Arrangements Post-Brexit, August 2019, p. 50; Police Service of Northern Ireland (CBC0004); Q74 (Simon Byrne, Chief Constable, Police Service of Northern Ireland)

23 Kramer, A., Dickson, R. & Pues, A., Evolving Justice Arrangements Post-Brexit, August 2019, p. 50

24 For example, see: Dr Amanda Kramer and Dr Rachael Dickson (CBC0009); UK- Irish Criminal Justice Co-operation Network (CBC0005); Q121 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive); Colin Murray & Dr Clare Rice (CBC0010).

25 The UK-EU future relationship negotiations: process and issues, House of Commons Library, March 2020, p. 83

26 Police Service of Northern Ireland (CBC0004)

27 The UK-EU future relationship negotiations: process and issues, House of Commons Library, March 2020, p. 83

28 See: Northern Ireland Office (CBC0011); Q204 (Robin Walker MP, Minister of State, Northern Ireland Office).

29 Q121 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

30 Q121 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

31 Q121 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

32 Q135 (Naomi Long MLA, Minister of Justice, Northern Ireland Executive)

33 See Q215; Q216

34 See Q215; Q216

35 Q215 (Colin Murray, Reader in Public Law, Newcastle Law School, Newcastle University)

36 Q215 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

37 Q215 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

38 Q215 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

39 Q257 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

40 Q346 (Steve Rodhouse, Director General of Operations, National Crime Agency)

41 Q350 (Robin Walker MP, Minister of State, Northern Ireland Office)

42 Q94 (Steve Rodhouse, Director General of Operations, National Crime Agency)

43 Q74 (Simon Byrne, Chief Constable, Police Service of Northern Ireland)

44 Police Service of Northern Ireland (CBC0004)

45 Q81 (Simon Byrne, Chief Constable, Police Service of Northern Ireland)

46 Q94 (Steve Rodhouse, Director General of Operations, National Crime Agency)

47 Q254 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

48 Q254 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

49 Q254 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

50 Q315 (Steve Rodhouse, Director General of Operations, National Crime Agency)

51 Q315 (Steve Rodhouse, Director General of Operations, National Crime Agency)

52 Q98 (Steve Rodhouse, Director General of Operations, National Crime Agency)

53 Q98 (Steve Rodhouse, Director General of Operations, National Crime Agency)

54 See: Police Service of Northern Ireland (CBC0004); Q315 (Paul Morgan CBE, Senior Director, Border Readiness Directorate, Border Force)

55 Q266 (Assistant Chief Constable, Mark McEwan, Police Service of Northern Ireland)

56 Q315 (Paul Morgan CBE, Senior Director, Border Readiness Directorate, Border Force)

57 Q315 (Paul Morgan CBE, Senior Director, Border Readiness Directorate, Border Force)

58 See: Q246 (Assistant Chief Constable, Mark McEwan, Police Service of Northern Ireland); Q268 (Assistant Chief Constable, Mark McEwan, Police Service of Northern Ireland); Q343 (Steve Rodhouse, Director General of Operations, National Crime Agency); Q346 (Steve Rodhouse, Director General of Operations, National Crime Agency)

59 Q257 (Mark McEwan, Assistant Chief Constable, Police Service of Northern Ireland)

60 Q170 (Robin Walker MP, Minister of State, Northern Ireland Office)

61 Q170 (Robin Walker MP, Minister of State, Northern Ireland Office)

62 Q359 (Robin Walker MP, Minister of State, Northern Ireland Office)

63 Q172 (Robin Walker MP, Minister of State, Northern Ireland Office)

64 Q210 (Mark Larmour, Director, Northern Ireland Office)

65 Colin Murray & Dr Clare Rice (CBC0010)

67 Q387 (Robin Walker MP, Minister of State, Northern Ireland Office)

69 Institute for Government, UK-EU Future Relationship: the deal; Law and Justice; 29 December 2020

70 Q222 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

71 Q247 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

72 Gemma Davies (CBC0015)

73 Q215 (Gemma Davies, Associate Professor, Northumbria Law School, Northumbria University)

74 Q216 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

75 Q216 (Professor Valsamis Mitsilegas, School of Law, Queen Mary University of London)

76 Q390 (Robin Walker MP, Minister of State, Northern Ireland Office)

77 Q390 (Robin Walker MP, Minister of State, Northern Ireland Office)




Published: 28 April 2021 Site information    Accessibility statement