Brexit: future UK–EU security and police cooperation Contents

Chapter 1: Introduction

Background

The purpose of this inquiry

1.The Secretary of State for Exiting the European Union has identified “maintaining the strong security co-operation we have with the EU” as one of the Government’s top four overarching objectives in the forthcoming negotiations on the UK’s exit from, and future relationship with, the European Union.1 This must be right: protecting the lives of its citizens is the first duty of Government, and in fulfilling this duty the UK Government currently benefits greatly from close and interdependent police and security cooperation with EU institutions and member states. The common threats facing the UK and its neighbours require the closest possible police and security cooperation to be sustained into the future, after the UK leaves the EU. We therefore expect this to form an essential part of negotiations on the UK’s future relationship with the European Union, with the UK and the EU-27 sharing an interest in ensuring that there is no diminution in the level of safety and security afforded to their citizens.2

2.In this report, we examine the most significant tools that currently facilitate police and security cooperation between the United Kingdom and the European Union and explore the options available to the Government for retaining or replacing them when the UK leaves the EU. We present our witnesses’ views on the level of priority they attach to the retention or replacement of particular tools and capabilities; offer our own conclusions and recommendations with regard to the UK’s negotiating objectives in this area; and signpost some of the challenges that lie ahead.

3.In view of the importance that the Government now rightly attaches to this aspect of the UK’s withdrawal from the EU, it is striking that this subject did not attract a commensurate level of attention in the referendum campaign, from either side. We hope that our report will help draw attention to the issues at stake, as well as making a constructive contribution to the development of the UK’s negotiating position.

4.We make this report to the House for debate.

The EU Committee’s work

5.Following the referendum on 23 June 2016, the European Union Committee and its six sub-committees launched a coordinated series of short inquiries, addressing the most important cross-cutting issues that will arise in the course of negotiations on Brexit.3 The pace of events means that these inquiries will be short, but within this constraint, we are seeking to outline the major opportunities and risks that Brexit presents to the United Kingdom.

6.Our inquiries will run in parallel with the work currently being undertaken across Government, where departments are engaging with interested parties, with a view to drawing up negotiating guidelines. But while much of the Government’s work is being conducted in private, our aim is to stimulate informed debate, in the House and beyond, on the many areas of vital national interest that will be covered in the negotiations. As far as possible we aim to complete this work before March 2017.

The evolution of UK-EU cooperation on Justice and Home Affairs

7.The UK currently enjoys what the Government has described as a “special status” in relation to EU cooperation on Justice and Home Affairs (JHA) matters.4 Specifically, it has negotiated the right to “opt in” to EU measures in this area, allowing the Government to decide, on a case-by-case basis, whether it is in the national interest to participate. When the UK does not choose to opt in, it is not bound by the EU measure in question.5

8.The practical implication of this is that cooperation on police and security matters between the UK and the EU is already limited to those measures that successive UK Governments have assessed to be in the national interest, rather than extending to the full spectrum of EU activity in those areas.6

9.The starting point for this inquiry is therefore different from that in other policy areas. Each police and criminal justice measure that the UK participates in was, by definition, the subject of a positive decision and assessment when the UK first joined it (or re-joined it in the case of measures pre-dating the Lisbon Treaty7).8 Accordingly, there is a higher probability that continuing participation or an adequate replacement will remain in the UK’s national interest post-Brexit.

10.In the sections that follow, we briefly recap the trajectory of UK-EU cooperation on Justice and Home Affairs policy, in order to set the scene for the choices now facing the Government.

TREVI and the Treaty of Maastricht

11.Cooperation on Justice and Home Affairs (JHA) first became a formal part of EU activity with the entry into force of the Treaty of Maastricht in 1993. Until then, European ministers of justice and the interior had cooperated under the auspices of the TREVI group,9 an intergovernmental forum that met and deliberated outside the formal framework of the European Economic Community (EEC). Cooperation on JHA matters under the Maastricht Treaty was subject to decision-making by unanimity in the Council of Ministers, with a limited role for the supranational institutions (the European Commission, the Court of Justice of the European Union, and the European Parliament).

The Schengen Area

12.In a separate development in 1985, five of the then 10 EEC Member States, not including the UK or Ireland, signed the Schengen Agreement, which provided for the gradual abolition of internal border controls and a common visa policy.10 A borderless Schengen Area was created in 1995, based on the Schengen Implementing Convention agreed in 1990. The aim was to provide greater freedom from border controls for movements of goods, persons and services, alongside compensating measures to enhance customs and police cooperation.

The Treaty of Amsterdam

13.The Treaty of Amsterdam, which entered into force in 1999, created the concept of an Area of Freedom Security and Justice (AFSJ). Policy-making on AFSJ measures was to include a greater role for the supranational institutions and the option to adopt measures by Qualified Majority in the Council of Ministers.

14.The UK and Ireland negotiated a Protocol to the Amsterdam Treaty that allowed them to control their level of participation in AFSJ measures by choosing, on a case-by-case basis, whether to opt into measures proposed by the European Commission in the area of immigration and asylum, border controls, and civil and family law.11 Police and judicial cooperation in criminal matters remained subject to decision-making by unanimity in the Council of Ministers with a limited role for the supranational institutions, obviating the need for an opt-in arrangement.

15.The Amsterdam Treaty also included a separate Protocol integrating the Schengen acquis (body of law) into the EU Treaty framework.12 When that Protocol was agreed, the UK and Ireland did not participate in any aspect of the Schengen acquis. Accordingly, the Protocol confirmed that the UK and Ireland were not bound by the Schengen acquis, but they were given the right to request to take part in some or all of the provisions of the acquis, as well as the right to apply to join measures deemed ‘Schengen-building’.

16.Following the entry into force of the Treaty of Amsterdam, the Council of Ministers approved a request from the UK to participate in some aspects of the Schengen acquis, leading to the adoption of two Council Decisions accepting and implementing the request.13 The UK now participates in the policing and criminal justice aspects of the Schengen acquis, but not in the immigration aspects.

The Treaty of Lisbon

17.The Treaty of Lisbon, which entered into force in December 2009, merged police and judicial cooperation in criminal matters into the main EU structures for cooperation on Justice and Home Affairs, creating Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU).

18.New, post-Lisbon Title V measures are agreed through the so-called Ordinary Legislative Procedure. This means they are adopted by Qualified Majority Voting (QMV) in the Council of Ministers and the European Parliament must also agree each proposal.14 The other supranational institutions also have full powers in respect of JHA measures under Title V: the Court of Justice of the European Union (CJEU) has jurisdiction over such measures, and the European Commission has the power to initiate infringement proceedings (under Article 258 TFEU). Special transitional provision was made, however, for the approximately 130 police and criminal justice measures adopted prior to the entry into force of the Lisbon Treaty. The infringement powers of the Commission under Article 258 TFEU and the usual powers of CJEU would not apply to these measures until a transitional period of five years had elapsed, i.e. until 1 December 2014.

19.As with the Amsterdam Treaty, the Lisbon Treaty included a dedicated Protocol on the position of the UK and Ireland. That Protocol extended the UK’s right to opt in to measures on a case-by-case basis to all Title V measures, including new, post-Lisbon proposals relating to police and criminal justice cooperation.15 In a separate Protocol, the UK also secured the right to decide, by 31 May 2014, whether or not the UK should continue to be bound by the approximately 130 pre-Lisbon police and criminal justice measures—in other words, it had the option of exercising a ‘block opt-out’. Should it choose to continue to be bound by the measures, the UK would be accepting a bigger role for the CJEU and the European Commission than was envisaged when the measures in question were first agreed under the pre-Lisbon framework.16

Recent Developments

20.In July 2013, following debates and votes in both Houses of Parliament,17 the UK Government notified the Council of Ministers that the UK had decided to exercise the block opt-out from the pre-Lisbon police and criminal justice measures with effect from 1 December 2014. At the same time, it indicated that the UK would seek to re-join 35 of those same measures, accepting that the enforcement powers of the European Commission and full CJEU jurisdiction would apply in respect of those 35 measures from 1 December 2014.18

21.On 1 December 2014 the UK re-joined 35 pre-Lisbon police and criminal justice measures, following a second round of debates and decisions in both Houses of Parliament.19 The timings were designed to avoid an operational gap between the date on which the block opt-out took effect and the point at which the UK re-joined the smaller sub-set of measures.20

22.Further details on these recent developments can be found in a series of contemporaneous reports published by this Committee.21

What is at stake

23.The sequence of events described above means that when the UK leaves the European Union, it will in principle also leave the 35 pre-Lisbon police and criminal justice measures that two years ago were deemed “vital” by the then Home Secretary, now the Prime Minister, in order to “stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”.22 In November 2014 she warned the House of Commons that failure to re-join those 35 measures “would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe”.23

24.When it leaves the EU, the UK will in principle also be poised to leave the police and criminal justice measures that it has chosen to opt into since the Lisbon Treaty entered into force in December 2009. These number around 3024 and include measures such as the 2016 Passenger Name Record Directive, the Prüm Decisions, and the European Investigation Order.25

25.Among the witnesses from whom we took evidence for this inquiry, we found considerable consensus about the EU tools and capabilities that should in their view be retained or adequately replaced. Europol, Eurojust, the Second Generation Schengen Information System, the European Arrest Warrant, the European Criminal Records Information System, the Prüm Decisions and Passenger Name Records were consistently listed among our witnesses’ top priorities. In the chapters that follow, we review these and selected other measures underpinning police and security cooperation within the European Union and examine the options and precedents for securing access by the UK to those tools and institutions from outside the EU.

26.In light of the evidence we have heard over the course of our inquiry, we make three crucial observations.

27.First, our witnesses emphasised time and again that the UK has been a leading protagonist in driving and shaping the nature and direction of cooperation on police and security matters under the auspices of the European Union.26 The infrastructure that exists in this area, from Europol to the Passenger Name Record Directive—as well as that which does not (as yet) exist, such as the European Public Prosecutor—in part reflect the UK’s significant influence and agenda-setting. The same can be said of the overall balance struck between security and other policy ends (for example in relation to data protection and privacy).

28.One of the challenges for the future, therefore, is whether, and if so how, the UK can retain that sort of influence among its European neighbours and allies when it is no longer a full member of the EU structures in which the strategic direction of travel is set. The National Crime Agency observed that “there are a number of countries within the EU that show real leadership in this area and the UK is one of them. We may lose some of that influence”.27 Bill Hughes, former Director-General of the Serious Organised Crime Agency (2006–2010), also warned us that “the UK is seen as a major and leading partner. That will change”.28

29.How effectively that challenge is met may in turn have a consequential effect on the UK’s standing in other fora, for example among the ‘Five Eyes’.29 The National Crime Agency told us that “one of issues of concern for our ‘Five Eyes’ partners, for instance, is that the lack of the UK at Europol will impact on their relationships too, because sometimes they can use us as a proxy for getting work done if we are doing joint work together”.30

30.A second theme running through much of the evidence we received was what our witnesses perceived as a mutual interest in sustaining police and security co-operation between the UK and the EU. Helen Ball, the Metropolitan Police Service’s Senior National Coordinator for Counter-Terrorism Policing, told us that she was “absolutely clear that police forces throughout Europe, their Governments and their security and intelligence agencies understand the threat and the way we need to work together to mitigate it”.31 Sir Julian King, European Commissioner for the Security Union, told us that there was “a new shared awareness of the nature of the threat” among EU member states, citing as an example Estonia, “which would not normally imagine that its nationals would be caught up in extremist Islamic terrorism”, but which had two citizens killed in the attack on the promenade in Nice on 14 July 2016.32 He observed that “Daesh does not make a distinction between one country and another on whether they are in or out of Schengen, or indeed whether they are in or out of the European Union”.33 The Government was confident that the UK had “great expertise in these areas and we must assume that they would want to continue co-operation on areas such as this where, frankly, there is no economic downside from the point of view of the EU and where, if anything, there is every advantage to continue with, if not exactly the same arrangements, then those that would move towards the current arrangements”.34

31.We anticipate that even with the utmost good will on both sides, and a recognition of the mutual interest at stake, there may be practical constraints on how closely the UK and the EU-27 can work together in future if they are no longer bound by the same rules, enforced by the same supranational institutions. From the perspective of the EU-27, institutions such as the CJEU and the European Parliament—from which the UK would be seeking to remove itself—provide oversight and the checks and balances around many of the measures underpinning police and security cooperation.

32.Lord Kirkhope of Harrogate observed that “if we were not in the EU and the ECJ’s [CJEU’s] competences are not removed from Europol or any other agency, we would have to find a way in which to try to absent ourselves from the ultimate determinations of the ECJ”.35 The Government emphasised that in future, laws would be made at Westminster, not in Brussels, and those laws would be interpreted “not by the European Court of Justice but by the British courts”.36 They concluded that “therefore any new arrangements that have to be put in place or which may be put in place after we withdraw have to be the subject of bespoke adjudication arrangements”.37 Whether the EU-27 are likely to be willing to devise that kind of arrangement in order to facilitate cooperation with the UK is open to question. We also observe that any international treaty underpinning future cooperation between the UK and EU in this area would in principle remain open to interpretation by the CJEU, as the CJEU has jurisdiction to interpret the treaties that the EU signs with third countries.38

33.A third theme to emerge in the course of our inquiry is the importance of ‘equivalence’, especially in relation to data protection. Any kind of data-sharing between the UK and EU will probably require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU.39 Although the UK is currently bound by EU standards, and is therefore likely to comply with them comfortably at the point when it leaves the EU, this could pose a problem in future as EU policy continues to develop and rules are updated while the UK is no longer at the table to influence the pace and direction of change.

34.Our witnesses pointed out that this concern could also be said to apply more generally, in respect of any EU measures to which the UK negotiates continued access. Tony Bunyan, of Statewatch noted that “every year there is a whole package of measures going through” the EU in this area. If the UK is “not part of that decision-making, you have to go along with things in time, and it is all right now when it is recent, but in time you will not want to be part of some of these things”.40 UK negotiators will therefore also need to consider future-proofing any arrangements made at the point of exit, in order to help mitigate that risk.

35.Finally, although the short time-frame for our inquiry has prevented us from exploring the cost implications of different options for future arrangements, we note that the UK has incurred considerable sunk costs in setting up some of the existing arrangements. For example, the IT costs of implementing the Prüm Decisions are expected to be £13 million. We also note that in at least one instance—the European Arrest Warrant—the cost of replicating that capability outside the EU is expected substantially to exceed (by a factor of four) the cost of operating the EU measure.41 Some of these cost considerations were rehearsed in the Command Papers published by the Government ahead of the UK re-joining 35 police and criminal justice measures in December 2014.42

Conclusions

36.We welcome the statement by the Secretary of State for Exiting the European Union that “maintaining the strong security co-operation we have with the EU” is one of the Government’s top four overarching objectives in the forthcoming negotiations on the UK’s exit from, and future relationship with, the European Union. The arrangements currently in place to facilitate police and security cooperation between the United Kingdom and other members of the European Union are mission-critical for the UK’s law enforcement agencies. The evidence we have heard over the course of this inquiry points to a real risk that any new arrangements the Government and EU-27 put in place by way of replacement when the UK leaves the EU will be sub-optimal relative to present arrangements, leaving the people of the United Kingdom less safe.

37.The UK has been a leading protagonist in shaping the nature of cooperation on police and security matters under the auspices of the European Union, as reflected in EU agencies, policy and practice in this area. Upon ceasing to be a member of the EU, the UK will lose the platform from which it has been able to exert that influence and help set an EU-wide agenda. This could have the effect of tilting the balance in intra-EU debates—for example in debates on the appropriate balance between security and privacy in relation to data protection—in a way detrimental to the UK’s interests. Although our report focuses on the individual tools and capabilities the UK should retain or replace upon leaving the EU, we judge that the Government will also need to consider how it can attempt to influence the EU security agenda—which inevitably will have implications for the UK’s own security—in future. This may mean trying to remain part of certain channels and structures, or finding adequate substitutes.

38.The UK and the EU-27 share a strong mutual interest in sustaining police and security cooperation after the UK leaves the EU. In contrast to other policy areas, all parties stand to gain from a positive outcome to this aspect of the Brexit negotiations. This could, however, lead to a false sense of optimism about how the negotiations will unfold. For example, it seems inevitable that there will in practice be limits to how closely the UK and EU-27 can work together if they are no longer accountable to, and subject to oversight and adjudication by, the same supranational EU institutions, notably the CJEU.

39.There must be some doubt as to whether the EU-27 will be willing to establish the ‘bespoke’ adjudication arrangements envisaged by the Government, and indeed over whether such arrangements can adequately substitute for the role of the supranational institutions from the perspective of the EU-27. We anticipate that this issue may pose a particular hurdle for negotiations on the UK’s future relationship with EU agencies such as Europol, and also affect the prospects for maintaining mutual recognition of judicial decisions in criminal matters. It seems conceivable, therefore, that the Government will encounter a tension between two of its four overarching objectives in the negotiation—bringing back control of laws to Westminster and maintaining strong security cooperation with the EU. In our view, the safety of the people of the UK should be the overriding consideration in attempting to resolve that tension, and we urge the Government to ensure that this is the case.

40.The need to meet EU data protection standards in order to exchange data for law enforcement purposes means that after leaving the EU, the UK can expect to have to meet standards that it no longer has a role in framing. More generally, the police and criminal justice measures that the UK currently participates in and may continue to have a stake in are liable to be amended and updated with the passage of time, when the UK is no longer at the table to influence the pace and direction of change. In preparing for negotiations, the UK Government will therefore need to explore from the outset how any agreement struck with the EU-27 at the point of exit can address this prospect, and the attendant risk to the UK.


1 HC Deb, 12 October 2016, col 328

2 See also European Union Committee, Brexit: parliamentary scrutiny (4th Report, Session 2016−17, HL Paper 50), in particular paragraphs 20-22, outlining the four phases of withdrawal and the scope of formal negotiations under Article 50, covering a) a withdrawal treaty, and b) the framework of a future relationship.

3 See European Union Committee, Scrutinising Brexit: the role of Parliament (1st Report, Session
2016–17, HL Paper 33)

4 HM Government, The UK’s cooperation with the EU on justice and home affairs, and on foreign policy and security issues (9 May 2016), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/521926/The_UK_s_cooperation_with_the_EU_on_justice_and_home_affairs__and_on_foreign_policy_and_security_issues.pdf [accessed 1 December 2016]

5 In the case of measures building on those parts of the Schengen acquis in which the UK already participates, it has the right to opt out rather than the right to opt in.

6 This is also true of other aspects of Justice and Home Affairs cooperation, such as immigration and asylum policy.

7 See paragraphs 10 to 21.

8 Or in the case of Schengen-building measures, when it chose not to exercise its right to opt out.

9 The TREVI group was established following the Rome European Council in December 1975, and provided a forum for Home Affairs and/or Justice Ministers to meet. It was initially focused on combating terrorism, but its remit was later extended to include police cooperation, organised crime and illegal immigration.

10 The original five were Germany, France, Belgium, Luxembourg and the Netherlands. Today there are 26 members of the Schengen Area, including all of the EU member states except the UK and Ireland, and four non-EU countries: Iceland, Liechtenstein, Norway and Switzerland. Bulgaria, Romania, Croatia and Cyprus have yet to be admitted as full members of the Schengen Area.

11 Protocol No 4, Treaty on European Union, on the position of the United Kingdom and Ireland,
OJ C 340 (10 November 1997). The Common Travel Area (CTA) between the UK and the Republic of Ireland dates back to the establishment of the Irish Free State in 1922, and permits nationals of CTA countries to travel freely within the CTA without being subject to passport controls.

12 Protocol No 2, Treaty on European Union, integrating the Schengen acquis into the framework of the European Union, OJ C 340 (10 November 1997)

13 Council Decision 2000/365/EC, 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis, OJ C 430/1 (1 December 2014) and Council Decision 2004/926/EC, 22 December 2004 on the putting into effect of parts of the Schengen acquis by the United Kingdom of Great Britain and Northern Ireland, OJ C 430/6 (1 December 2014)

14 There are some exceptions: measures concerning operational police cooperation and the establishment of a European Public Prosecutor’s Office (EPPO) were made subject to a Special Legislative Procedure, which continues to require unanimity in the Council of Ministers and provides a lesser role for the European Parliament.

16 Protocol No 36 , Article 10, Treaty on European Union, on transitional provisions , OJ C 115 (consolidated version of 9 May 2008)

17 The House of Lords debate took place on 23 July 2013. See HL Deb, 23 July 2013, col 1233.
The House of Commons debate took place on 15 July 2013. See HC Deb, 15 July 2013, col 770

18 The 35 measures the Government would seek to re-join were listed in Home Office, Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union, Cm 8671 July 2013, pp 9–12: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235912/8671.pdf [accessed 6 December 2016]

19 Command paper 8897 set out an updated list of the 35 measures the UK would re-join, slightly amended from the original list Home Office, Decision pursuant to Article 10(5) of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8897, July 2014, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326698/41670_Cm_8897_Accessible.pdf [accessed 16 December 2016]. The House of Commons debate took place on 10 November 2014. See HC Deb, 10 November 2014, col 1233. The House of Lords debate took place on 17 November 2014. See HL Deb 17 November 2014, col 327

20 HL Deb, 8 May 2014, col 1622

21 Further details can be found in: EU Select Committee, EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012−13, HL Paper 159) and EU Select Committee, Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013−14, HL Paper 69)

23 HC Deb, 10 November 2014, cols 1224, 1228, 1229

24 At the time of writing, there were 30 measures in this category, not including the Prüm Decisions, or 34 including measures that the UK considered to have content engaging its JHA opt-in, again excluding the Prüm Decisions.

25 For a full list of UK opt-in decisions taken between December 2009 and October 2015, see: Home Office, Decisions taken: JHA (Title V) opt-in and Schengen opt-out decisions, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515125/2016-optin-webpage-update.pdf [accessed 6 December 2016]

26 Q 11, Q 20, Q 23, Q 26, Q 28. In oral evidence on the Security Union, 15 November 2016 (Session 2016–17), Q 11, Sir Julian King, Commissioner for the Security Union, told us that the UK had “a long and deep track record of engagement” and that last year, the UK was “in the top four in introducing new cases into the Europol system”, “in the top five in its use of the Europol-based systems, the top four in its engagement in the terrorist finance tracking system, and the top three in using the Europol information systems, particularly the law enforcement data network, where in fact, it was top in 2015.”

29 An intelligence-sharing alliance between the UK, USA, Canada, Australia and New Zealand.

31 Q 48. See also Q 23

32 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), Q 5 (Sir Julian King).

33 Oral evidence on The Security Union, 15 November 2016 (Session 2016–17), Q 2 (Sir Julian King).

36 In related evidence, Professor Peers noted that the CJEU would still have jurisdiction to interpret the treaties which the EU signs with non-EU states, which could in practice have an impact on the UK (Q 10)

38 Although a Court of Justice of the EU ruling on a future EU treaty with the UK would not be directly binding on the UK, it could still have an indirect effect on the UK to the extent that the EU-27 are bound by that ruling. On this point, see also 10.

42 Foreign and Commonwealth Office, Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union, Cm 8671, July 2013 : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235912/8671.pdf: [accessed 6 December 2016] and Home Office, Decision pursuant to Article 10(5) of Protocol 36 to The Treaty on the Functioning of the European Union, Cm 8897, July 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326699/41670_Cm_8897_Print_Ready.pdf [accessed 6 December 2016]




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