Brexit: the proposed UK-EU security treaty Contents

Chapter 3: Current UK-EU security cooperation

Overview

25.EU justice and home affairs (JHA) policy aims to protect internal security and fight criminal activity that crosses national borders. It does this by promoting cooperation between Member States and through supranational institutions established by the EU, such as Europol. It also promotes the principle of mutual recognition in criminal matters. Box 1 provides a brief background to the development of EU JHA policy.

Box 1: A brief summary of European cooperation on Justice and Home Affairs

European cooperation on Justice and Home Affairs matters originated in the early 1970s, following a number of terrorist attacks such as that on the 1972 Munich Olympic Games. In December 1975, the various justice and interior Ministers of the (then EEC) Member States established the TREVI Group,27 an intergovernmental committee that met biannually outside the formal EEC framework. Although it focused on coordinating an effective anti-terrorism response, it gradually began to consider wider cross-border policing and security issues. It met regularly until it was superseded by the Maastricht Treaty in 1993.

The Maastricht Treaty formally brought Justice and Home Affairs cooperation into the EU’s structure under the auspices of the so-called Third Pillar. Cooperation remained primarily intergovernmental: legislation was adopted by unanimity in the Council; each Member State enjoyed a veto; and there was no oversight by the EU’s other institutions, the Commission and the (then) European Court of Justice.

In 1999 the Amsterdam Treaty introduced the concept of an ‘Area of Freedom, Security and Justice’. Immigration and asylum, border controls and the areas of family and civil law moved into the First Pillar (the UK and Ireland negotiated an opt-in arrangement governing participation in any subsequent measures),28 and the Third Pillar was renamed ‘Police and Judicial Cooperation in Criminal Matters’; cooperation remained intergovernmental.

The Treaty of Lisbon entered into force on 1 December 2009. It collapsed Maastricht’s three-pillar structure and applied uniform institutional arrangements across the EU. Almost all JHA matters are now dealt with by Qualified Majority Voting (QMV)29 in the Council, with the European Parliament enjoying equal rights with the Council in the Ordinary Legislative Procedure.30 Both the Commission and the CJEU enjoy their full EU Treaty powers to oversee Member States’ cooperation in this field.

The UK and Ireland negotiated a new Protocol to the Lisbon Treaty (Protocol 21), which allowed them to control their participation in JHA measures. As the post-Lisbon adoption of most JHA measures no longer required unanimity in the Council, the UK Government could not block them alone; however, if the Government of the day objected to the proposed legislation it could choose not to participate.

Today, the EU’s JHA acquis covers a wide-ranging spectrum of police, judicial criminal, civil and family law matters. The EU has legislated to create a complex system of cooperation in criminal and civil legal matters that interacts with and is interwoven into the EU’s and the Member States’ constitutional and institutional frameworks—not least because this EU legislation is interpreted and applied uniformly by the CJEU.

26.Some EU Member States have attempted to strike a balance between holding on to certain existing powers and sharing others with the rest of the EU. Thus the UK and Ireland have negotiated an opt-out from various measures, and, as Chapter 4 shows, Denmark has agreed a bespoke relationship with Europol that enables it to maintain its permanent opt-out of JHA measures. The UK currently does not participate in EU justice and home affairs measures by default. With the ratification of the Lisbon Treaty in 2009, the UK secured an automatic opt-out from all new measures, but is permitted to opt into those that it decides are in its interest.

27.The UK also secured the right to decide whether to continue to be bound by EU police and criminal justice measures that it had already agreed to under the pre-Lisbon ‘third pillar’ arrangements.31 In 2014 the Government decided to opt out of all measures pre-dating the Lisbon Treaty, but immediately opt back into 35 of them.32 This chapter outlines the JHA measures that the UK uses most frequently, and describes their current operational importance.

Key JHA measures

28.In our December 2016 report, Brexit: future UK-EU police and security cooperation, we highlighted a number of measures in which the UK now participates, and which, we suggested, the Government should aim to “retain or replace” once the UK leaves the EU.33 The evidence received during the current inquiry suggested that the UK’s priorities for a future security relationship had changed little since we published that report:

Key principles of JHA cooperation

29.As we have already noted, all EU Member States retain responsibility for safeguarding national security: there are thus strict limits to EU competence in the areas of internal security and many aspects of criminal law. Moreover, considerable cooperation, for instance between security services, takes place outside formal EU frameworks, not only between Member States, but between Member States and third countries. Nevertheless, the EU and its Member States have developed various routes to ensure greater cooperation, to many of which the UK has actively contributed. The most important routes to closer cooperation are outlined in Box 2.

Box 2: Existing UK-EU cooperation on policing and criminal law: an overview

EU law in this field can be broken down into five main areas. Mutual recognition in criminal matters refers to judicial cooperation based on the shared legal values of all the EU Member States, particularly those articulated in Article 2 TEU. Cooperation is founded on the principle of mutual respect for each Member State’s legal system. This, in turn, leads to the automatic recognition of relevant court orders issued by each Member State’s judiciary. The system is overseen by the Court of Justice of the European Union (CJEU).

In this area, the UK participates in the European Arrest Warrant (fast-track extradition),46the European Investigation Order (the exchange of evidence),47 mutual recognition of freezing and confiscation orders,48 mutual recognition of non-custodial sentences (for example, criminal fines),49 mutual recognition of custodial sentences (which means that sentenced persons can be transferred)50 and mutual recognition of pre-trial supervision orders.51 It also applies an EU law on taking account of criminal sentences handed down in another Member State.52

The UK also participates in the EU legislation on trafficking in persons,53 child abuse54 and attacks on information systems.55

In the field of legislation setting minimum standards for criminal procedural rights, the UK has opted into two of the six56 EU laws: one dealing with interpretation and translation for foreign language suspects57 and another introducing a right to information for defendants.58 It has also opted into the Directive on crime victims’ procedural rights.59

As for EU agencies, the UK participates in Europol and Eurojust. The UK Government decided not to opt into the proposed Regulation re-establishing Eurojust, but might opt into it post-adoption.60

Finally, with regard to the exchange of information, the UK participates in the law enforcement aspects of the Schengen Information (known as SIS II), which contains alerts on persons subject to a European Arrest Warrant or otherwise wanted or under surveillance by the authorities, as well as stolen objects like cars and passports. It also participates in ECRIS (the European Criminal Record Information System), the Prüm system (exchange of fingerprints, licence plate information and DNA records), and the law on passenger name records.

Operational importance of existing arrangements

30.A consequence of the opt-in is that every EU police and criminal justice measure in which the UK participates has been the subject of a positive decision by the Government to join, based on its perceived benefit to the UK.61 Most of our witnesses were supportive of current arrangements.62 Rob Wainwright told us that in an “ideal world there would be no change to the UK’s current arrangements” with Europol, though he suggested that this scenario was “not realistic”. It would therefore be “essential” to preserve as much operational cooperation between the UK and EU as possible.63

31.Several witnesses cited the number of people who had been extradited to or from the UK since the introduction of the EAW. Nick Vamos, former Head of Extradition at the CPS, said that “we are talking about 2,000 people a year or more being surrendered from the UK to the EU, and 200 to 300 coming back”.64 Richard Martin informed us that “pre-2004, before we had the legislation, we extradited 60 people a year on average under the old convention. From 2004 to now, we have extradited over 10,000 people into Europe”.65

32.In our report Brexit: future UK-EU security and police cooperation, we noted that access to EU law enforcement databases and data-sharing platforms was integral to day-to-day policing, and that the loss of access could pose a risk to the safety of the public.66 The UK currently has access to the most significant EU databases and agreements facilitating data-sharing among EU law enforcement agencies. Richard Martin told us that law enforcement officers in the UK accessed SIS II 539 million times in 2017, and that tools such as SIS II and ECRIS were vital for keeping communities in the UK safe. He also said that “data flow” facilitated by ECRIS, where criminal records were checked in the UK and then again “with our European partners and vice versa”, had led to “sex offenders being put on sex offender registers”.67

33.Steve Smart highlighted not only the size of the EU JHA datasets, but the extent of the UK’s contribution to them:

“If we look at the Schengen Information System II, SIS II … as of the end of 2017 there were 765 million alerts68 in relation to people and objects sitting on that dataset. It is a very big dataset and very important to us. There were 1.2 million alerts in circulation that had been put on there from the UK. In 2017 … we had 5,000 hits on UK alerts.”69

34.Though witnesses including Lord Evans and Robert Hannigan, former Director of GCHQ, underlined that intelligence should remain outside the remit of any UK-EU security treaty, they acknowledged the importance of access to such databases for the security services’ efforts against organised crime and terrorism.70 Lord Evans said:

“You cannot understand the counterterrorism work of MI5 in isolation from the law enforcement and policing work because we have an extremely interrelated model between the intelligence agencies and the police. The dependence of the law enforcement community on Europol, the European Arrest Warrants, law enforcement cooperation and so on was therefore extremely important to the overall efforts that we made collectively, although MI5 was not itself a member of Europol because we are not a law enforcement agency.”71

35.The Government has also highlighted EU databases. As recently as 2015 it opted into the Prüm system, describing it as “in the national interest as it would help us to identify foreign criminals and solve serious crimes”,72 and more recently it opted into the proposed Regulation on interoperability between EU information systems,73 which aims to integrate police and judicial cooperation, asylum and migration databases so that they can be used more efficiently by law enforcement authorities.

36.Indeed, the operational benefit of the JHA instruments is so significant that witnesses were in many cases unable to identify adequate alternatives. In the words of Richard Martin, “If we lost the Schengen Information System, one of the areas that the Government are working on is whether we would use a thing called I-24/7, the Interpol database, which is slightly different. It is suboptimal compared to what we have now, but it is a database.”74

37.He continued:

“If the UK’s access to [JHA] measures is switched off, [it] is going to be very difficult. Government will have to negotiate with the European Union about what access we have and what systems we will be left with. There is no real alternative if we lose SIS II, other than I-24/7, because there is nothing else that people input into, even though they input in a very limited way. We would have to rely on partners if we lost all the European tools.”75

38.Witnesses also suggested that other EU Member States derived a significant benefit from security cooperation with the UK, confirming the finding of our December 2016 report: “The UK and the EU-27 share a strong mutual interest in sustaining police and security cooperation after the UK leaves the EU.”76 The Rt Hon Nick Hurd MP, Minister of State for Policing and the Fire Service, was confident that “mutual interest is accepted and understood by our operating partners at Member State level. I know that from my own contacts with Interior Ministers; they absolutely get this argument, because they are living with the risk day to day.”77

39.In a statement on 19 June, the Director of GCHQ, Jeremy Fleming, provided striking corroboration of the Minister’s arguments. He noted that the threats facing western democracies were “complex and … global and none of us can defend against them alone. They require a pooling of resource, expertise, and, critically, data, so that we can investigate and disrupt our adversaries.” He then underlined the contribution of UK intelligence services to European security: “In the last year we’ve played a critical role in the disruption of terrorist operations in at least four European countries. Those relationships, and our ability to work together, save lives.”78

Conclusions

40.In our December 2016 report, Brexit: future UK-EU security and police cooperation, we concluded that the arrangements currently in place to facilitate police and security cooperation between the UK and EU Member States were “mission-critical” for the UK’s law enforcement agencies. That conclusion remains valid today.

41.Police and security cooperation are also mission-critical for the EU and its 27 remaining Member States. As the Director of GCHQ, Jeremy Fleming, said in a statement released on 19 June, intelligence provided by UK agencies saves European lives.

42.Given the UK’s significant operational dependence on EU systems and databases, we welcome the Government’s decision to opt into the proposed Regulation on interoperability between EU information systems.


27 TREVI stands for Terrorisme, Radicalisme, Extrémisme et Violence Internationale, but the name derived from its first meeting in Rome, which took place near the Trevi Fountain.

28 Protocol (No 4) to the Treaty of Amsterdam on the position of the United Kingdom and Ireland (1997)

29 Exceptions to this general rule include measures concerning operational police cooperation (Article 87(3), Treaty on the Functioning of the European Union, OJ C 326 (consolidated version of 26 October 2012) and those concerning the establishment of a European Public Prosecutor’s Office (Article 86(1) Treaty on the Functoning of the European Union. Both Articles apply a ‘special legislative procedure’ under which the Council must act unanimously.

31 European Union Committee, EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159)

32 See our two reports on the UK’s 2014 Protocol 36 decision: EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159); and 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).

33 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 37

34 Ibid., para 141

35 Q 103, Q 94; cf. Q 2, Q 11, Q 62, Q 72, written evidence from BrexitLawNI (PST0007), Law Society of England and Wales (PST0006), Law Society of Scotland (PST0009) and the Centre for European Studies (PST0005)

36 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 68

37 Q 99; cf. Q 62; Q 94; Q 96, written evidence from the Law Society of England and Wales (PST0006), Law Society of Scotland (PST0009), BrexitLawNI (PST0007) and the Centre for European Studies (PST0005)

38 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 82

39 Q 107, written evidence from Law Society of Scotland (PST0009); cf. Q 105

40 Q 11, Q 21, Q 24; written evidence from Law Society of England and Wales (PST0006)

41 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 123

44 Written evidence from the Centre for European Studies (PST0005), Q 59

45 Q 59; cf. Q 11; Q 72; written evidence from the Centre for European Studies (PST0005)

46 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18 July 2002)

47 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130/1, 1 May 2014)

48 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2 August 2003); and, Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328/59, 24 November 2006). A proposed draft Regulation replacing this legislation is currently passing through the EU’s legislative institutions (Document 15816/16).

49 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327/27, 5 December 2008)

50 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327/27, 5 December 2008)

51 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L 294/20, 11 November 2009)

52 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ L 220/32, 15 August 2008)

53 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101/1, 15 April 2011)

54 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335/1, 17 December 2011)

55 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (OJ L 218/8, 14 August 2013)

56 The UK does not participate in: (i) the Directive on access to lawyer in criminal and EAW proceedings (Directive 2013/48/EU, OJ L 294/1, 6 November 2013)); (ii) the Directive on the presumption of innocence (Directive (EU) 2016/343, OJ L 65/1, 11 March 2016); (iii) the Directive on procedural safeguards for children (Directive (EU) 2016/800, OJ L 132/1, 21 May 2016) and (iv) the Directive on the right to legal aid (Directive (EU) 2016/1919, OJ L 297/1, 4 November 2016).

57 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280/1, 26 November 2010)

58 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142/1, 1 June 2012)

59 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315/57, 14 November 2012)

60 Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust), (COM(2013) 535 final. This Committee produced a report arguing that the UK should opt in to this proposal: The Eurojust Regulation: Should the UK opt-in?, (4th Report, Session 2013–14, HL Paper 66)

61 House of Lords Library Briefing, ‘Proposed UK-EU Security Treaty’, LLN-2018–0058, May 2018, p 1

62 Q 2, Q 11, Q 21, Q 24; Q 59, Q 62, Q 65, Q 71, Q 72, Q 94, Q 96, Q 99, Q 103, Q 105, Q 107, written evidence from BrexitLawNI (PST0007), Law Society of England and Wales (PST0006), Law Society of Scotland (PST0009) and the Centre for European Studies (PST0005)

66 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 120

68 This is a historical figure for the total number of records (‘alerts’) held in the SIS II database. According to the European Commission, each alert “consists of three parts: firstly a set of data for identifying the person or object, subject of the alert, secondly a statement why the person or object is sought and thirdly an instruction on the action to be taken when the person or object has been found”. See European Commission, ‘Alerts and data in the SIS’: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system/alerts-and-data-in-the-sis [accessed 17 June 2018].

72 HC Deb, 16 November 2015, HCWS336

73 Proposal for a Regulation of the European Parliament and of the Council on establishing a framework for interoperability between EU information systems (police and judicial cooperation, asylum and migration), COM(2017) 794

76 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77), para 38

77 Q 82; cf. Q 96, written evidence from Law Society of Scotland (PST0009)

78 GCHQ, ‘GCHQ Director addresses NATO on shared security threats’, 19 June 2018: https://www.gchq.gov.uk/news-article/gchq-director-speaks-about-security-cooperation-nato-headquarters-brussels [accessed 22 June 2018]




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