Chapter 2: Internal security: a shared aim?
A shared aim
7.In September 2017 the Government published its future partnership paper on UK-EU cooperation on security, law enforcement and criminal justice. It argued that it was “in the clear interest of all citizens that the UK and the EU sustain the closest possible cooperation in tackling terrorism, organised crime and other threats to security now and into the future”. The paper therefore called for a relationship between the UK and the EU “that goes beyond the existing, often ad hoc arrangements for EU third country relationships”, concluding that “it is vital that the UK and the EU maintain and strengthen their close collaboration” after the UK leaves the EU.6
8.Giving evidence on 14 June, Sir Julian King, the EU Commissioner for Security Union, also affirmed the “deep, shared self-interest” in continuing the “closest possible cooperation” on security. He noted that, while there might be winners and losers in trade negotiations, “on security, cooperation should be unconditional”.7
The UK Government’s position
9.Cooperation between EU Member States on internal security goes far deeper than any comparable international arrangements. The Government wishes to continue this cooperation once the UK leaves the EU, as part of its proposed “deep and special partnership”.8 The Prime Minister, the Rt Hon Theresa May MP, announced for the first time in her Lancaster House speech in January 2017 that “our future relationship with the European Union [should] include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies”.9
10.In Florence on 22 September 2017 she fleshed out this ambition. She sought “a bold new strategic agreement that provides a comprehensive framework for future security, law enforcement and criminal justice cooperation”, which would be “unprecedented in its depth, in terms of the degree of engagement that we would aim to deliver”. This agreement would be built on “our shared principles, including high standards of data protection and human rights”.10
11.The future partnership paper, which appeared just before the Florence speech, set out the Government’s key proposal: an over-arching internal security treaty between the UK and the EU, to be agreed as part of the ‘Phase 2’ negotiations on the future UK-EU relationship. It claimed that such a treaty on internal security was needed, because it would provide “a legal basis” for continued cooperation, and “could include provisions on scope and objectives; the obligations for each side; and what mechanism should apply to resolve disputes”.11 The proposed treaty would incorporate and replicate existing arrangements such as the European Arrest Warrant, and provide the UK with access to the Second Generation Schengen Information System database (SIS II), as well as some form of continued participation in Europol and Eurojust, the EU agencies for police and judicial cooperation. The Government has also suggested that it hopes to maintain some form of access to the European Criminal Records Database (ECRIS), Passenger Name Records (PNR), and the Prüm databases containing fingerprint, DNA and vehicle registration information.12
12.The Government’s proposals came with a caveat. One of the Government’s overarching ‘red lines’ for the Brexit negotiations is to bring to an end the jurisdiction in the UK of the Court of Justice of the European Union (CJEU): as the Prime Minister also said in her Lancaster House speech, “laws will be interpreted by judges not in Luxembourg but in courts across this country”.13 A year later, in her speech to the Munich Security Conference on 17 February 2018, the Prime Minister indicated that she planned to respect the “remit” of the Court of Justice of the European Union when participating in EU agencies (which would presumably include agencies such as Europol).14 But as we note below, the Government’s ‘red line’ could still restrict the UK’s continued involvement in those security cooperation frameworks where the CJEU acts as a dispute resolution mechanism. Other Government policies, such as the refusal to incorporate the Charter of Fundamental Rights of the European Union in domestic law post-Brexit,15 could also reduce the UK’s room for manoeuvre in specific areas, such as extradition.
The EU’s position
13.In its Brexit negotiating guidelines of April 2017, the European Council stated that “the EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.16 In subsequent guidelines adopted at the December 2017 European Council meeting this position was reaffirmed.17
14.Yet the EU’s substantive contributions to the discussion on UK-EU security, in reacting to the UK Government’s ‘red lines’, have served mainly to underline the difficulties in reaching an agreement. Speaking at the Berlin Security Conference in November 2017, the EU’s Chief Negotiator, Michel Barnier, said that the UK would no longer be a member of Europol post-Brexit and that there would be “no horsetrading” on security. In slides released on 29 January 2018,18 the Commission listed “factors determining the degree of EU cooperation with third countries”. These included the security interest of the EU27; shared threats and geographic proximity; the existence of a common framework of obligations with third countries (for example membership of Schengen, or of the European Economic Area (EEA)); the risk of upsetting relations with other countries; a respect for fundamental rights; the degree to which data protection standards were equivalent; and the strength of enforcement and dispute settlement mechanisms. The principles contained within this presentation were later reaffirmed in the European Council guidelines on negotiations on future relations on 23 March 2018,19 and in the Commission’s updated slides on police and judicial cooperation in criminal matters, published on 18 June.20
15.For Camino Mortera-Martinez, of the Centre for European Reform, “The EU’s main guiding principle for negotiations with the UK is ‘no better out than in’. In justice and home affairs, this means that a non-EU, non-Schengen country cannot have more rights and fewer obligations than an EU Member State or a Schengen country.”21 Sir Julian King also noted that the EU faced “inherently difficult issues”, including in protecting its “strategic autonomy”, while continuing close security cooperation with the UK.22 In a speech to the EU Fundamental Rights Agency, on 19 June 2018, Mr Barnier attacked those in the UK who “want to maintain all the benefits of the current relationship, while leaving the EU regulatory, supervision, and application framework”. He affirmed the “need to cooperate strongly with the UK”, but was clear that such cooperation would be “on a different basis”.23
Sequencing
The draft Withdrawal Agreement
16.On 28 February 2018 the European Commission published a draft Withdrawal Agreement under Article 50 of the Treaty on European Union, setting out the terms of the UK’s exit from the EU. Further iterations of the Agreement were published on 15 and 19 March, and all references are to the 19 March text.24 During the transition period provided for in this Agreement, the UK will remain subject to EU law (Part 4). The text that the two sides have agreed so far permits the UK to continue to participate, during this transition period, in justice and home affairs measures to which it has already opted in before the UK leaves the EU (Article 122(5)).
17.Essentially, this provision means that the UK will retain the responsibilities of a Member State without its current institutional rights. For example, as the text currently stands, the UK will be able to cooperate with Europol during transition, but will lose its place in the organisation’s governance structures. We explore below how the Agreement might affect security cooperation during transition, and consider whether the forms of cooperation established during transition are likely to be reflected in a final future UK-EU agreement on security.
The ‘political declaration’
18.Article 50(2) TEU requires that any Withdrawal Agreement must take account of the framework for the future UK-EU relationship. The framework will be inscribed in a formal ‘political declaration’,25 which the European Council plans to finalise at its meeting on 18–19 October (though this timetable could yet slip). The political declaration will be considered alongside and will be referenced within the Withdrawal Agreement, on which the UK Parliament and the European Parliament will then vote.
19.Although the precise legal status of the political declaration has yet to be clarified, it will form the basis of the Guidelines to be given by the European Council to the Commission to open negotiations with the UK (once it has left the EU) on the future relationship. The UK will need to give its assent to the political declaration, and, as Andrew Duff has written, will be “bound indirectly” by its terms.26 It is therefore in the Government’s interest to ensure that the political declaration accurately reflects its own position. The framework decided in coming months will have an important, if not decisive influence upon the long-term internal security relationship.
The future UK-EU relationship
20.The EU can only commence formal negotiations with the UK on the future relationship once the UK becomes a ‘third country’. Therefore, if an operational gap in security cooperation is to be avoided, any agreements or treaty between the EU and UK on security cooperation will need to be negotiated and ratified between 29 March 2019, when the UK leaves the EU, and the end of the transition period, which is currently fixed for 31 December 2020. We consider the feasibility of reaching agreement within this timescale in more detail in Chapter 6 of this report.
Conclusions
21.Both the UK Government and the European Commission have publicly confirmed that there is a deep shared interest in maintaining the closest possible security cooperation between the UK and the EU after Brexit. Protecting the safety of millions of UK and EU citizens must be the over-riding objective.
22.Security is thus not a ‘zero sum game’: we all stand to gain from agreement, and we all stand to lose if negotiations fail. We therefore agree wholeheartedly with the EU Commissioner for Security Union, Sir Julian King, that security cooperation should be “unconditional”.
23.Neither side, however, has yet approached the negotiations in this spirit. The UK Government’s ‘red lines’, and the EU’s response, appear to have narrowed the scope for agreement. While we do not underestimate the difficulty of the issues facing both sides, the current mindset urgently needs to change.
24.Time is now short: the UK and EU need to agree within the next three months on a political declaration, which will be annexed to the Withdrawal Agreement, and which will determine the shape of future negotiations on security. But the distance between the UK and EU positions is considerable. Negotiators on both sides need to focus now on finding common ground and making pragmatic compromises, in order to achieve the over-riding objective of protecting the safety of UK and EU citizens in years to come.
6 HM Government, Security, law enforcement and criminal justice: a future partnership paper (September 2017), p 2: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/645416/Security__law_enforcement_and_criminal_justice_-_a_future_partnership_paper.PDF [accessed 18 June 2018]
8 HM Government, Joint article: a deep and special partnership (January 2018), https://www.gov.uk/government/news/joint-article-a-deep-and-special-partnership [accessed 18 June 2018]; cf. Q 22
9 Rt Hon Theresa May MP, speech on ‘The Government’s negotiating objectives for exiting the EU’, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 20 June 2018]
10 Rt Hon Theresa May MP, speech on ‘A new era of cooperation and partnership between the UK and the EU’, 22 September 2017: https://www.gov.uk/government/speeches/pms-florence-speech-a-new-era-of-cooperation-and-partnership-between-the-uk-and-the-eu [accessed 24 June 2018]
11 HM Government, Security, law enforcement and criminal justice: a future partnership paper (September 2017), para 38: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/645416/Security__law_enforcement_and_criminal_justice_-_a_future_partnership_paper.PDF [accessed 18 June 2018]
12 HM Government, Framework for the UK-EU Security Partnership (May 2018), p 14: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705687/2018–05-0_security_partnership_slides__SI__FINAL.pdf [accessed 18 June 2018]
13 Rt Hon Theresa May MP, speech on ‘The Government’s negotiating objectives for exiting the EU’, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 20 June 2018]
14 Rt Hon Theresa May MP, ‘Speech at Munich Security Conference’, 17 February 2018, https://www.gov.uk/government/speeches/pm-speech-at-munich-security-conference-17-february-2018 [accessed 23 June 2018]
15 House of Lords Library Briefing, ‘Human Rights Priorities in the Light of Brexit’, LLN-2017–0092, December 2017, p 1
16 European Council, Special meeting of the European Council (Art. 50) (29 April 2017)—Guidelines, p 8: https://www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf [accessed 18 June 2018]
17 European Council, European Council (Art. 50) meeting (15 December 2017)—Guidelines, p 3: http://www.consilium.europa.eu/media/32236/15-euco-art50-guidelines-en.pdf [accessed 23 June 2018]
18 European Commission, ‘Police and judicial cooperation in criminal matters’, 29 January 2018: https://ec.europa.eu/commission/sites/beta-political/files/police_judicial_cooperation_in_criminal_matters_0.pdf [accessed 19 June 2018]
19 European Council, European Council (Art. 50) (23 March 2018)—Guidelines: https://www.consilium.europa.eu/media/33458/23-euco-art50-guidelines.pdf [accessed 18 June 2018]
20 European Commission, ‘Police and judicial cooperation in criminal matters’, 18 June 2018: https://ec.europa.eu/commission/sites/beta-political/files/slides_on_police_and_judicial_cooperation_in_criminal_matters.pdf [accessed 22 June 2018]
21 Camino Mortera-Martinez, ‘Plugging in the British: EU justice and home affairs’, (May 2018), p 1: http://www.cer.eu/sites/default/files/pbrief_plugin_jha_31.5.18.pdf [accessed 3 July 2018]
23 Michel Barnier, ‘Speech at the European Union Agency for Fundamental Rights’, 19 June 2018: http://europa.eu/rapid/press-release_SPEECH-18-4213_en.htm [accessed 22 June 2018]
24 European Commission, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 19 March 2018: https://ec.europa.eu/commission/publications/draft-agreement-withdrawal-united-kingdom-great-britain-and-northern-ireland-european-union-and-european-atomic-energy-community-0_en [accessed 18 June 2018]
25 European Council, European Council (Art. 50) (23 March 2018)—Guidelines, p 3: https://www.consilium.europa.eu/media/33458/23-euco-art50-guidelines.pdf [accessed 18 June 2018]
26 Andrew Duff, ‘A special relationship?’, Policy Network, (14 May 2018): http://policynetwork.org/opinions/essays/a-special-relationship/ [accessed 19 June 2018]