Brexit: the proposed UK-EU security treaty Contents

Chapter 1: Introduction

1.In our December 2016 report, Brexit: future UK-EU police and security cooperation, we outlined the areas for future security cooperation that we believed the Government should prioritise in its negotiations with the EU.1 These included agencies, mechanisms and resources such as Europol, Eurojust, the second generation Schengen Information System (SIS II), the European Criminal Records Database (ECRIS), Passenger Name Records (PNR), the Prüm Database, and the European Arrest Warrant (EAW).

2.In this report we examine the Government’s proposal to negotiate a treaty between the UK and the EU that would provide an overarching legal basis for continued cooperation in these vital areas of internal security. We build on and update our 2016 findings by assessing how the negotiations up to this point have dealt with internal security. Our primary concern is the long-term UK-EU security relationship, but we also touch on the draft Withdrawal Agreement, the first iteration of which was published on 28 February 2018, and in particular on the arrangements proposed for security cooperation during the transition period, from 30 March 2018 to 31 December 2020. We consider how the Government might prioritise particular areas of cooperation when negotiating the shape of the future relationship, in the face of EU27 concerns about third-country involvement in its security structures. We ask whether a treaty is indeed the best means for the Government to achieve its aims. We look at cross-cutting issues such as data protection and human rights, and their possible effects on a future agreement on security. And we analyse the specific circumstances of Northern Ireland, raising as yet unresolved concerns about the security of what will be the UK’s sole land border with the EU (though similar issues will arise in respect of the border between Gibraltar and Spain).

3.The focus of this report is on internal police and security cooperation rather than external defence and foreign policy cooperation, which is likely to be the subject of a separate agreement between the UK and EU.2 It is also important to note that national security is a Member State, not an EU competence. Article 4 of the Treaty on European Union (TEU) requires the EU to respect Member States’ “essential State functions, including … safeguarding national security”, adding that “national security remains the sole responsibility of each Member State”. Title V (Area of Freedom, Security and Justice3), Article 72 of the Treaty on the Functioning of the European Union (TFEU) further states that “this Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. In many areas, such as intelligence gathering and sharing, we would expect extensive cooperation between security and police forces of the UK and the remaining 27 Member States to continue, regardless of any agreement between the UK and the EU.4

4.However, Article 73 TFEU provides that Member States are also free to “organise between themselves” any forms of cooperation and coordination for the safeguarding of national security, and the EU now plays a key role in fostering cooperation between Member States. On 7 March we heard from the then Director of Europol, Rob Wainwright, that Europol had been taking an ever-greater role in tackling terrorism and cybercrime, and was invited by the French government to support the investigation into the Paris terror attacks of 2015: “That was the first time Europol was invited by such an important Member State to provide such significant support in an investigation of a major terrorist attack.”5

5.This report is part of a series of Brexit-themed inquiries launched by the European Union Committee and its six Sub-Committees following the referendum on 23 June 2016, which have sought to shed light on the main issues likely to arise in negotiations on the UK’s exit from, and future partnership with, the European Union. It draws on a series of evidence sessions that the Home Affairs Sub-Committee held between 7 March 2018, when the inquiry was launched, and 14 June 2018, when Sir Julian King appeared before the Sub-Committee.

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

1 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77)

3 The term ‘Area of Freedom, Security and Justice’ was introduced by the Treaty of Amsterdam and reproduced in the Lisbon Treaty, which incorporated the previous ‘third pillar’ arrangements into the EU treaties (see Box 1). Nevertheless, the term ‘Justice and Home Affairs’ (JHA) remains in common use, and is generally adopted in this report.

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