Summary of Conclusions and recommendations
Introduction
1.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. (Paragraph 36)
2.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. (Paragraph 37)
3.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. (Paragraph 38)
4.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. (Paragraph 39)
5.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. (Paragraph 40)
Europol and Eurojust
6.We welcome the Government’s decision to opt into the new Europol Regulation. In addition to the substantive reasons we gave in our 2013 report for recommending that the Government should opt into the draft Europol Regulation, the UK’s forthcoming exit from the EU means there is now an additional, strategic value in remaining a full member of Europol and its Management Board during a period when the modalities of the UK’s future partnership with the EU on police and security matters are under negotiation. (Paragraph 50)
7.Our witnesses were unequivocal in identifying the UK’s future relationship with Europol as a critical priority. They also made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs. The Government will therefore need to devise and secure agreement for an arrangement that protects the capabilities upon which UK law enforcement has come to rely, and which goes further than the operational agreements with Europol that other third countries have been able to reach thus far. (Paragraph 68)
8.Bearing in mind the contribution the UK makes to Europol, and the mutual benefit to be derived from a pragmatic solution, we regard this as a legitimate objective for the UK to pursue in negotiations with the EU-27. Achieving it, however, may be problematic: there seems likely to be a tension with other policy goals on both sides, notably in regard to the role of the supranational EU institutions. To the extent that Europol remains accountable to these institutions—and we note that the direction of travel in the new Regulation is towards enhancing that accountability—this could present a significant practical hurdle to sustaining the level of cooperation that might otherwise be advantageous to both sides. In 2014, the Government said it would “never put politics before the protection of the British public.” In our view, that calculation has not changed, and we urge the Government to work towards a pragmatic solution that protects the safety of the people of the United Kingdom. (Paragraph 69)
9. 10.A third-country agreement with Eurojust involving a Liaison Prosecutor, for which precedents already exist, may come closer to meeting the UK’s needs than the equivalent precedents for third country-agreements with Europol. This may therefore be a fruitful avenue for the Government to explore in the forthcoming negotiation. Ideally any such agreement would provide for closer cooperation than has thus far been available to other third countries—for example by providing access to the Eurojust Case Management System. As with Europol, however, the role of the supranational EU institutions in providing accountability and oversight for Eurojust’s activities may present a political obstacle to forging the sort of partnership that would best meet the UK’s operational needs. (Paragraph 83) 11.We share the Director of Public Prosecution’s concerns regarding the length of time it could take to negotiate an agreement with Eurojust, and the importance of avoiding an operational gap. (Paragraph 84) 12.Our witnesses were optimistic about the prospect of retaining access to Joint Investigation Teams, based on the model that already exists for certain third countries to participate in JITs with the agreement of all other participants. We recommend that the Government explores the practical steps that would be needed to allow the UK to benefit from a similar arrangement, with a view to pursuing that objective in a future negotiation. (Paragraph 85) 13.As recently as 2014 and 2015, the Government and Parliament judged that it would be in the national interest for the UK to participate in flagship EU data-sharing platforms such as the Second Generation Schengen Information System, the European Criminal Records Information System and the Prüm Decisions. We see no reason to change that assessment, not least as the threat from terrorism in particular has escalated further—and the EU has responded, for example by adopting the Passenger Name Record Directive earlier this year. (Paragraph 119) 14.Access to EU law enforcement databases and data-sharing platforms is integral to day-to-day policing up and down the country. Were the UK to lose access to them upon leaving the EU, information that can currently be sourced in seconds or hours could take days or weeks to retrieve, delivering an abrupt shock to UK policing and posing a risk to the safety of the public. The UK therefore has a vital national interest in finding a way to sustain data-sharing for law enforcement purposes with the EU-27. (Paragraph 120) 15.The starting point for the UK in seeking to negotiate access to these tools is different from that of any other third country, both because of the UK’s pre-existing relationship with the EU-27 and because of the value it can add through the data it has to offer. We therefore accept the Government’s view that the precedents for access to EU data-sharing tools by non-EU and non-Schengen members may fail to capture the range of options that could be available to the UK. With that in mind, we believe there is a strong case for the Government to pursue a bespoke solution and seek access to the full suite of data-sharing tools on which the UK currently relies, as well as those it is still planning for. (Paragraph 121) 16.At the same time, we recognise that the two data-sharing tools that witnesses identified as the top priorities for the UK—SIS II and ECRIS—are also those for which there is no precedent for access by non-EU (ECRIS) or non-Schengen (SIS II) countries. The price of accessing these databases has thus far been membership of the EU and/or Schengen. Therefore a UK negotiating objective of seeking continued access to these vital tools would be particularly ambitious. (Paragraph 122) 17.With regard to Passenger Name Records, the Government should explore the precedents for EU agreements with third countries. We note, however, that losing access to intra-EU PNR data would be a serious handicap, and that the CJEU’s ruling on the EU-Canada PNR agreement does not bode well for the EU’s ability to conclude similar agreements promptly and reliably in future. (Paragraph 123) 18.The European Arrest Warrant is a critical component of the UK’s law enforcement capabilities. We see no reason to revise our assessment—and that of the Government in 2014—that the 1957 Council of Europe Convention on Extradition cannot adequately substitute for the European Arrest Warrant. Accordingly, the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible. The length of time it has taken to implement that agreement—which was signed a decade ago but is still not in force—is, however, a cause for concern. An operational gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk. (Paragraph 141) 19.Although the EU’s agreement with Norway and Iceland contains the option of applying the nationality exception in Article 7, it is not self-evident that the UK should seek to negotiate an equivalent provision in any future extradition agreement with the EU, bearing in mind the loophole that such an exemption can create. At the same time, it is conceivable that the EU-27 may not be willing to waive the right to refuse to extradite their own nationals outside the framework of the EAW and without the concept of EU citizenship that underpins it. (Paragraph 142) 20.The scope of our inquiry has necessarily been limited to the most significant measures facilitating police and security cooperation. We note, however, that measures in this area are part of a complex and interconnected network of agreements and arrangements that can be difficult to compartmentalise. For example, high-profile measures such as the European Arrest Warrant may work more satisfactorily alongside complementary measures such as the European Supervision Order. It follows that the Government’s approach to negotiations will need to take account of the risk that relinquishing less well-known measures could undermine the effectiveness of tools that are higher up the list of priorities. (Paragraph 156)Data Sharing for Law Enforcement Purposes
Criminal Justice Tools