65.In this chapter we discuss the various existing models of security cooperation between the EU and third countries, and analyse the extent to which they might meet the Government’s ambitions for future UK-EU security cooperation. We look in particular at the feasibility of continued UK involvement in Europol and the European Arrest Warrant after the end of the transition period, and briefly consider whether the UK’s new third country status will bring any security advantages.
66.Despite its opt-in arrangements, the UK has always attempted to influence wider EU justice and home affairs policy. In her speech to the Munich Security Conference on 17 February 2018, the Prime Minister said that “the UK has been at the forefront of shaping the practical and legal arrangements that underpin [the UK and the EU’s] internal security co-operation”. This Committee has also described the UK as 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”, and an influence on the establishment of measures such as Europol and the PNR Directive.
67.Rob Wainwright, out-going Director of Europol, agreed that the UK was “the lead Member State in a number of important projects that coordinate the activities of many Member States, Europol, and others, in the field of modern slavery, for example … and in combating certain forms of large-scale fraud and cocaine-trafficking. The UK is in the driving seat in coordinating highly complex, large-scale multinational operations.”
68.Debbie Price of the CPS said that “if you look at the relationships that our counterterrorism police and prosecutors have all over the world, we have influence because we are at the cutting edge and we perform so well”. Dr Helena Farrand-Carrapico, of Aston University, believed that although the UK had always been seen as a bit of an “awkward partner”, it had “always been able to have a leadership position and shape instruments in EU counterterrorism and cybersecurity, just to mention two”.
69.This leadership role will, of course, become more difficult once the UK is ‘outside the room’, as Lord Evans told us:
“The UK will, obviously, seek to ensure that our voice is heard when Europe is considering its policies in the same way that the British voice is heard when America is considering its policies. But providing advice and influence is very different from being at the table with a vote. Clearly, we will do everything that we can to influence European policies and laws in directions that we think are good for us and for Europe, but at the end of the day they will go into the room and we will not be there.”
70.Rob Wainwright suggested that “the Commission will … insist on some change. That is most likely to be felt in the level of strategic influence.” Dr Anna Bradshaw, of the Law Society, expressed a similar concern: “The possibility exists that post Brexit there may be a change of emphasis. It is difficult to predict … but the key point is that the UK would not be in a position to influence the further direction of human rights considerations in the criminal justice cooperation sphere.”
71.Dr Farrand-Carrapico concluded that the UK should “try to maintain as much as possible our current levels of influence and leadership in the area of security, which means trying to find alternative ways of maintaining our influence”. She argued that it was possible
“to continue having a great amount of influence by doing what the UK has done until now, which is to provide solutions when problems arise. The EU will continue to have problems in the area of security, so if the UK, even outside, recommends solutions and is ahead of the EU, it would be a sound strategy to try to influence the EU.”
Similarly, Rob Wainwright insisted that “we should not underestimate the level of indirect influence which the UK can still enjoy through its very close partnerships around Europe”.
72.In May 2018, the Government released a detailed technical note, outlining various precedents for participation by third countries in EU security and justice tools, including agreements based on existing EU measures, and bilateral arrangements with third countries, but found each of them inadequate for the UK’s purposes. It argued that existing levels of cooperation on individual measures—or lack thereof—could be broken down into the following broad categories.
73.In some cases there is no precedent for an EU agreement with a third country. For example, there is currently no precedent for EU Member States to exchange criminal records with third countries under the European Criminal Records Information System (ECRIS), or any other EU instrument.
74.The EU has concluded agreements with the so-called ‘Schengen Associated States’ that cover a range of internal security measures. Examples include the Schengen Association Agreements which, for instance, facilitate the use of SIS II, and the agreement between the EU, Norway and Iceland on the application of Prüm. It is important, however, to note both that the UK is not fully part of Schengen (though it does participate in the criminal law and policing aspects of the Schengen system), and that the EU has not reached any such agreements with non-Schengen third countries.
75.Camino Mortera-Martinez, of the Centre for European Reform, has argued that there is “no legal base in the EU treaties for a non-EU, non-Schengen country to access Schengen data”, concluding that the UK is unlikely to retain direct access to SIS II—though accepting that it might be easier for the UK to stay “plugged into” non-Schengen databases (such as the Prüm databases or Passenger Name Record). However, Article 7 of the draft Withdrawal Agreement states that at the end of the transition period, the UK shall no longer be entitled to “access any network, any information system, and any database established on the basis of Union law”.
76.Some precedents for EU-third country agreements, in the Government’s words, “deliver a significantly reduced capability”. For instance, existing EU agreements with third countries on extradition “do not provide the same level of capability as the European Arrest Warrant”. The Norway and Iceland extradition agreement with the EU—concluded in 2006 and not yet in force—will leave “a significant capability gap relative to the EAW once implemented. That gap includes, for example, additional grounds for refusal to surrender including for own nationals.”
77.The Government’s technical note also discusses the use of PNR data. Existing EU-third country PNR agreements provide for the transmission of PNR by air carriers, to the relevant competent authorities of the third countries. But they do not provide for the reciprocal exchange of PNR between the authorities of the relevant states and the EU for the purposes of police and judicial cooperation. So, for example, they do not enable relevant third countries to work with EU Member States’ Passenger Information Units (PIUs) to identify travel patterns in the way that Member States are able to do under the PNR Directive.
78.In addition, the technical note addresses third country agreements with Europol, enabling those countries to “contribute to the work of the agency”. Such agreements do not provide third countries with direct access to Europol’s databases (notably the Europol Information System), generally do not permit them to post Seconded National Experts to work with Europol, and do not enable them to initiate activity—especially bilateral activity, such as EMPACT (European multidisciplinary platform against criminal threat) projects, which develop operational action plans to combat crime in priority areas. Europol reviews and quality-assures data exchanged with third countries more than data shared with Member States, and certain intelligence cannot be shared without clearance.
79.In some cases, the Government identifies smaller capability gaps. For example, certain third countries (for instance Norway, Switzerland, the USA, and Montenegro) have agreements with Eurojust that allow them to contribute to the work of the agency, although even in this instance third countries are not able to initiate coordination meetings, cannot nominate a member of the Eurojust College, and do not have full access to the Eurojust Case Management System.
80.Furthermore, while third countries can participate in Eurojust Joint Investigation Teams (JITs), which facilitate the coordination of investigations and prosecutions across multiple jurisdictions, they are unable to establish new JITs (which requires the involvement of two or more Member States) or access funding.
81.Thus the Government’s own analysis suggests that the precedents for third country security agreements with the EU are in varying degrees inadequate. In response, the Rt Hon David Davis MP, writing in The Sunday Times on 10 June, sought to place the onus on the EU to find a better model: “The EU now faces a choice. There are some who wish to use ‘third country precedents’ as a ceiling on cooperation, and who say that if the EU does not already allow for certain types of joint working with non-Member States, it never can.” He continued: “I disagree with these attempts to put conditions on our offer. It would be to put legal technicalities ahead of the practical realities of protecting lives. And weakening British security would necessarily weaken that of the rest of Europe.”
82.We received a large amount of evidence on precedents for third country security agreements, particularly in respect of Europol and the European Arrest Warrant.
83.Several non-EU countries have operational agreements with Europol, including the USA, Canada and Serbia. Under these agreements, third countries may send liaison officers to Europol and participate in analysis projects, but only with the agreement of relevant Member States. They can exchange data but do not have direct access to Europol’s database. They are invited to meetings of Heads of Europol National Units, but cannot attend Europol Management Board and Management Board working group meetings.
84.A new EU Regulation updating Europol’s governance structure and objectives, which the UK opted into, came into force in May 2017. Under the new Regulation, there are two possibilities for UK cooperation with Europol post-Brexit. The first would be an international agreement between the EU and the UK, which the EU would conclude under Article 218 TFEU. The second would be for Europol to conclude an operational agreement with the UK, stating that the UK had obtained an adequacy decision for the purposes of police cooperation.
85.Rob Wainwright suggested that Denmark’s agreement with Europol might offer a model for the UK. Denmark originally secured an opt-out from all JHA measures in 1992, after Danish voters had rejected the Maastricht Treaty in a referendum. This opt-out was maintained in successive protocols to the treaties, and in 2012 Protocol No. 22 granted Denmark a permanent opt-out from almost all EU justice and home affairs legislation adopted after the Lisbon Treaty entered into force in 2009—unlike the UK, Denmark cannot opt into measures on a case-by-case basis. The realisation that this would exclude Denmark from continuing membership of Europol led the Danish Government to call a referendum on ending the opt-out in December 2015—but the Danish public voted to retain the opt-out. As a result, in February 2017, Denmark was designated a third country with respect to Europol. This in turn enabled Europol and Denmark to conclude a bespoke operational agreement.
86.The agreement means that Denmark interacts with Europol on broadly the same footing as third countries. It differs in several ways, however, from typical third country agreements:
87.Nevertheless, as the President of the European Commission, Jean-Claude Juncker, the President of the European Council, Donald Tusk, and the Prime Minister of Denmark, Lars Løkke Rasmussen, emphasised in December 2016, the Denmark agreement does “not … provide access to Europol’s data repositories, or for full participation in Europol’s operational work and database, or give decision-making rights in the governing bodies of Europol”.
88.The hierarchy in status between Denmark and other EU Member States on the one hand, and third countries on the other, may be illustrated by reference to the Joint Parliamentary Scrutiny Group, established under the Europol Regulation, of which the UK Parliament is currently a full member. Under the JPSG’s rules of procedure, adopted in March 2018, “each national Parliament of a Member State applying the Europol Regulation” is represented by up to four members to the JPSG. The JPSG is required to invite observers “from the list of EU Member States that have concluded an Agreement on Operational and Strategic Cooperation with Europol” (in other words, Denmark), and “may also decide to invite, on an ad hoc basis and for specific points on the agenda, observers from … third countries with which Europol has concluded agreements” (which would include the UK). Observers from either category “shall not have the right to take part in the decision-making”.
89.Denmark has been a reluctant participant in the EU’s JHA legislation. But unlike the UK after Brexit, Denmark is an EU Member State, subject to the Treaty’s institutional checks and balances. Indeed, its agreement with Europol is predicated upon Denmark’s continued membership of the EU and Schengen, and its full implementation of the relevant EU Directive on data protection in police matters. Denmark also accepts the jurisdiction of the CJEU, the competence of the European Data Protection Supervisor, and the Charter of Fundamental Rights. In all these respects, the position of Denmark contrasts with the Government’s preferred model for the UK post-Brexit, and the Commission slides published on 18 June explicitly discount the Danish precedent: “The Danish arrangement is not a precedent for the relations with the UK, as Denmark is an EU MS [Member State], Schengen member, accepts full ECJ jurisdiction and the EU data protection legislation.”
90.Despite these differences, we asked the Minister, Mr Hurd, whether the Danish agreement might be a model for the UK. He did not regard the comparison as valid, given the UK’s previous significant contribution to Europol:
“We would not automatically look to Denmark as an example, not least because our situation is different from Denmark’s. Again, this comes back to the central point about our existing weight in the system. The latest data I have seen … is that we are in the top three Member States that contribute intelligence every day to the different databases within Europol. In relation to serious and organised crime, we are the highest contributor of data. Denmark is in a different situation.”
91.Mr Hurd described the Government’s position as follows: “Our proposition is, ‘look, together we’ve made Europol work. The UK is pretty fundamental to that. Can we negotiate a new relationship that allows the UK to maintain its weight in this system and, as far as possible, to influence it?’” He did not go into detail, but clearly wished the UK to retain as much influence as possible. In addition, Mr Hurd felt that the UK should have direct access to Europol databases, arguing that “there would be very significant resource burdens and implications for Europol if it were asked to act in effect as a gateway for indirect access for the UK to Europol databases”.
92.There is likely, however, to be resistance from the EU side to realising the Government’s ambition. Camino Mortera-Martinez told us that she had “been defending the idea of having a bespoke deal on Europol for the UK, including voting rights on the management board. That has been snubbed by most of the people I have talked to in Brussels and welcomed in London.”
93.In our 2016 report on Brexit: future UK-EU security and police cooperation, we argued for an arrangement with Europol that went further than existing operational agreements between Europol and third countries, which would represent a significant diminution in the UK’s security capacity. We therefore support the Government’s aim to secure a future relationship with Europol that as far as possible maintains the operational status quo.
94.Such a relationship would be in the EU’s interest, as well as the UK’s. As Rob Wainwright, the then Director of Europol, told us, the UK has been “the lead Member State” in coordinating “highly complex, large-scale multinational operations”—the EU can ill afford to lose access to UK expertise. The volume of data exchanged between the UK and Europol is such that it is imperative for both sides that early agreement is reached, to support continuing cooperation in the fight against trans-national crimes such as people trafficking, drug smuggling, fraud and terrorism.
95.We are concerned, however, by the Minister’s transactional approach to negotiations on Europol: the UK is indeed a major contributor of data, but the Government should not for that reason underestimate the impact that UK withdrawal will have upon its role and influence in Europol, as in other EU institutions.
96.This impact is illustrated by the fact that the House of Commons and House of Lords will lose the right to membership of Europol’s Joint Parliamentary Scrutiny Group. We call on the Government, in its negotiations with the EU on ongoing security cooperation, to have regard to the ongoing role of the UK Parliament in ensuring democratic oversight and accountability. In the meantime, this Committee looks forward to continuing, as far as possible, to work with other national parliaments and the European Parliament in the JPSG and other interparliamentary fora.
97.The closer the integration that the UK seeks with Europol, the more compromises the Government will have to make. As we acknowledged in our 2016 report, Europol is accountable to the CJEU, and any operational agreement will have to take this into account. Moreover, any agreement is likely to require the UK to remain aligned with EU data protection legislation, and—depending on the level of access to Europol that the UK achieves—to pay into the Europol budget.
98.When the UK leaves the EU it will remain party to the 1957 Council of Europe Convention on Extradition, which provides for the extradition between countries of persons wanted for criminal proceedings or for the carrying out of a sentence. There are three main differences between the EAW and the 1957 Convention.
99.Firstly, the EAW is a “transaction” between judicial authorities that removes the role of the executive. By contrast, applications under the 1957 Convention were made through diplomatic channels, with Secretary of State approval required at a number of points in the process. As we noted in our July 2017 report on Brexit: judicial oversight of the European Arrest Warrant, “Falling back on the 1957 Council of Europe Convention on Extradition would significantly slow down extradition proceedings, since it would mean going back to making routine extradition requests—as well as resolving disputes about extradition requests—through diplomatic channels.”
100.Secondly, the EAW framework imposes strict time limits at each stage of the process, whereas the 1957 Convention does not. Under the Convention, it used to take an average of eighteen months to extradite an individual, partly because there were no time limits. With the introduction of the EAW, average extradition times dropped to 48 days. The cost of extradition has also decreased, by as much as four times.
101.Thirdly, Article 6 of the 1957 Convention provides that states can refuse an extradition request for one of their nationals, but, as we saw above, the EAW framework abolished the own-nationals exception.
102.There are other tools that enable extradition between EU Member States and third countries. The EU has concluded an agreement with Norway and Iceland, countries which are not in the EU but are members of the Schengen area and of the European Economic Area. Negotiations began in 2001 and the agreement was concluded in 2014, but is not yet in force. The provisions of this agreement are largely the same as the EAW, but it includes the option for parties to refuse to extradite their own nationals. The interpretation of the agreement is entrusted to the CJEU (on behalf of the EU) and the competent courts of Norway and Iceland. Article 37 of the agreement, however, seeks to align developing case law, requiring the Contracting Parties to keep it “under constant review”. To this end, “a mechanism shall be set up to ensure regular mutual transmission of such case law”.
103.The Defence Extradition Lawyers Forum warned against falling back on the cumbersome and time-consuming agreements that underpinned extradition arrangements before the EAW was adopted. Nick Vamos also reported that “operationally, the people who deal with extradition requests around Europe will have completely forgotten how the 1957 [Council of Europe extradition] convention is supposed to work”. Indeed, he said that there were “probably only one or two people left in the CPS extradition unit who even remember using the 1957 convention”.
104.The Law Society of England and Wales noted that the 1957 Convention does not include all 27 EU countries, and the Defence Extradition Lawyers Forum said that some Member States had repealed domestic legislation underpinning the Convention. The Law Society suggested that falling back on the Convention would also create problems with Ireland, which before the introduction of the EAW did not apply the Convention between Ireland and the UK, and Spain, “from where traditionally extradition has been difficult”.
105.Mr Hurd argued that a security treaty would include extradition arrangements to replicate the “effective arrangements” currently provided by the EAW.
106.In respect of extradition, the Government has been clear only that it wishes to retain all the benefits of the European Arrest Warrant. There is, however, no precedent for a non-EU Member State securing extradition arrangements equivalent to the EAW. Even the EU’s agreement with Norway and Iceland (which has yet to be brought into force) allows for an ‘own-national’ exemption, analogous to that proposed for the UK during the transition period. It also provides an indirect but influential role for the CJEU.
107.But to fall back on cumbersome pre-EAW extradition arrangements such as the 1957 Council of Europe Convention would lead to delay, higher cost, and potential political interference. This would be a bad outcome for both the UK and the EU.
108.As recently as April 2014 the Prime Minister, then Home Secretary, made a considered case that it was in the UK’s national interest to maintain participation in the European Arrest Warrant. The underlying national interest remains, and by the Government’s own admission, the UK is seeking an unprecedented level of cooperation with the EU. However, there is little sign yet of the realism that needs to go alongside this ambition. The Government needs urgently to commission a full impact assessment of the various possible outcomes of the negotiations, to build up a credible evidence-base for taking what will be difficult, but unavoidable, decisions.
109.We asked some of our witnesses whether the UK’s new status as a third country might bring any opportunities for future security cooperation. Most saw a positive result from Brexit arising only to the extent that the status quo in security cooperation was continued, though Richard Martin pointed to the possibility of a more stringent application of immigration law for criminals from the EU27, once the UK had abandoned freedom of movement: “Post Brexit, not knowing what configuration we get, there is an opportunity to have stronger borders and to have more intervention at borders if we are not in the EU.” The ability to detect such criminals would, however, be partly dependent on the ability to access EU criminal records databases such as ECRIS.
110.Rob Wainwright suggested that after Brexit the UK might act as a bridge between the EU and ‘Five Eyes’ security communities (the USA, the UK, Canada, Australia, and New Zealand):
“There is one opportunity for a future model in which I can see the possibility of a strategic alliance between two very formidable security communities: the European Union and the Five Eyes community. That is quite interesting. Those two have not engaged much directly until now”.
111.As we said above (paragraph 24), time is short: the UK and the EU have just three months in which to reach agreement on the outlines of the future relationship, to inform the ‘political declaration’ that will accompany the final text of the Withdrawal Agreement. But, as we noted in our recent report UK-EU relations after Brexit, “negotiations appear to have stalled”. On 15 May we asked Rob Jones, Director of Future European Policy at the Home Office, to update us on the progress of the negotiations up to that point. It was disquieting to learn that “internal security” had “involved little more than an hour’s discussion with Task Force 50”, the team leading the negotiations on behalf of the Commission.
112.We are concerned that, by mid-May, the UK and EU negotiators had spent little more than an hour discussing the future internal security relationship, despite the obvious mutual interest in making rapid progress. The safety of UK and EU citizens demands that the negotiators turn urgently to this vital task. We call on the Government, with immediate effect, to report regularly to Parliament on progress towards securing agreement on this fundamental aspect of the future relationship.
99 Rt Hon Theresa May MP, ‘Speech at the Munich Security Conference’, 17 February 2018: [accessed 3 July 2018]
100 European Union Committee, (7th Report, Session 2016–17, HL Paper 77), para 27
104 ; cf.
105 ; cf.
106 ; cf.
110 HM Government, ‘Technical Note: Security, Law Enforcement, and Criminal Justice’, pp 2–7: [accessed 18 June 2018]
111 The Schengen Area is currently made up of 26 States, 22 EU Member States and four Associated, non-EU, States: Iceland, Norway, Liechtenstein and Switzerland.
112 Camino Mortera-Martinez, ‘Plugging in the British: EU justice and home affairs’, (May 2018): [accessed 22 June 2018]
113 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, Article 7: [accessed 18 June 2018]
114 HM Government, ‘Technical Note: Security, Law Enforcement, and Criminal Justice’, p 4: [accessed 18 June 2018]
115 In 2010, the EU set up a four-year policy cycle to encourage coherence in tackling serious international and organised crime. The policy calls for effective cooperation among law enforcement agencies, other EU agencies, EU institutions, and relevant third parties. Projects under EMPACT set out operational action plans (OAPs) to combat crime in the areas that have been assigned a priority under this cycle. An OAP is designated for each objective, and Member States and EU organisations work in a coordinated fashion to implement each OAP. Europol, ‘EU Policy Cycle: EMPACT’: [accessed 3 July 2018]
116 David Davis, ‘Look beyond the bluster and the noise—our deal-making with the EU is bearing fruit’, The Times, 10 June 2018: [accessed 20 June 2018]
117 This section draws in part on the House of Lords Library Briefing, ‘Proposed UK-EU Security Treaty’, , May 2018.
118 ; written evidence from Law Society of England and Wales ()
119 Article 25(b) and/or (c) of Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (, 24 May 2016)
122 Europol, Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office, 29 April 2017. [accessed 3 July 2018]
124 European Commission, ‘Declaration by the President of the European Commission, Jean-Claude Juncker, the President of the European Council, Donald Tusk and the Prime Minister of Denmark, Lars Løkke Rasmussen’, 15 December 2016: [accessed 25 June 2018]
125 Established under Article 51 of Regulation 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (, 24 May 2016)
126 Rules of procedure of the Joint Parliamentary Scrutiny Group on Europol, adopted 19 March 2018, Articles 2.1 and 2.2: [accessed 1 July 2018]
127 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (, 4 May 2016)
128 Europol, Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office, 29 April 2017: [accessed 3 July 2018]
129 European Commission, ‘Police and judicial cooperation in criminal matters’, 18 June 2018: [accessed 22 June 2018]
133 House of Lords Library Briefing, ‘Proposed UK-EU Security Treaty’, , May 2018, pp 10–11
134 European Union Committee, (6th Report, Session 2017–19, HL Paper 16), para 73
135 Written evidence from BrexitLawNI ()
136 European Union Committee, (6th Report, Session 2017–19, HL Paper 16), paras 49–54
137 Written evidence from the Defence Extradition Lawyers Forum ()
139 Written evidence from Law Society of England and Wales ()
140 Written evidence from the Defence Extradition Lawyers Forum ()
141 Written evidence from Law Society of England and Wales ()
145 European Union Committee, (17th Report, Session 2017–19, HL Paper 149), para 108