Brexit: the proposed UK-EU security treaty Contents

Summary of conclusions and recommendations

Internal security: a shared aim

1.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. (Paragraph 21)

2.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”. (Paragraph 22)

3.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. (Paragraph 23)

4.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. (Paragraph 24)

Current UK-EU security cooperation

5.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. (Paragraph 40)

6.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. (Paragraph 41)

7.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. (Paragraph 42)

Security cooperation during the transition period

8.Operational continuity and the security of both the UK and the EU would be seriously undermined were there to be an abrupt end to cooperation in March 2019. We therefore welcome the agreement of both the UK Government and the EU that UK participation in those JHA measures in which the UK currently participates should be extended during the transition period. We note, however, that the draft Withdrawal Agreement would prevent the UK from opting into new JHA proposals, unless these build on or amend existing measures. (Paragraph 52)

9.The transitional arrangements contained in the draft Withdrawal Agreement would also disbar the UK from retaining a governance role in Europol, Eurojust and on the boards of JHA data-sharing frameworks. From this diminished position, the UK will be unable to influence policy and decision-making, and this in turn could make it more difficult to secure long-term access. (Paragraph 53)

10.In our July 2017 report, Brexit: judicial oversight of the European Arrest Warrant, we expressed concern over how the issue of own-nationals would be addressed in any transition period. That concern has now materialised, and the inclusion of Article 168 of the draft Withdrawal Agreement, which would allow EU27 States to refuse to extradite their nationals to the UK during the transition period, in accordance with domestic constitutional requirements, is significant, illustrating the disengagement in police and judicial cooperation between the UK and EU27 that will begin on the day that the UK leaves the EU. (Paragraph 62)

11.At the same time, the practical impact of Article 168 upon the UK’s extradition requests is unclear. We therefore urge the Government to ascertain the precise effect of Article 168 of the Withdrawal Agreement on the UK’s extradition arrangements, including on cases pending on the date of the UK’s withdrawal. We shall look again at this issue in coming months, and in the meantime recommend that the Government publish a contingency plan, addressing the effect of any disruption to the UK’s extradition arrangements. (Paragraph 63)

12.We agree with our witnesses that it would be counterproductive for the Government to retaliate against any EU Member State that decided not to extradite own-nationals to the UK by refusing to extradite British citizens to that country, as provided for by Article 168 of the draft Agreement. Such a course of action might appear politically opportune in the short term, but could be detrimental to the UK’s security. It could also jeopardise the good will that will be needed if a successful outcome is to be achieved in negotiations on the long-term security relationship. (Paragraph 64)

The UK as a third country—consequences for security cooperation

13.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. (Paragraph 93)

14.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. (Paragraph 94)

15.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. (Paragraph 95)

16.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. (Paragraph 96)

17.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. (Paragraph 97)

18.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. (Paragraph 106)

19.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. (Paragraph 107)

20.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. (Paragraph 108)

21.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. (Paragraph 112)

A security treaty?

22.We support the Government in prioritising three areas for future UK-EU security cooperation:

23.Witnesses to this inquiry presented arguments both for and against the Government’s preferred option of negotiating a single, comprehensive treaty to cover all these areas. On balance, however, we consider that the Government’s objective is unlikely to be achievable, given the time that has been taken to negotiate EU agreements with third countries in the past, and the range and complexity of the available models and precedents. We also note that the principle that ‘nothing is agreed until everything is agreed’ increases the risk inherent in seeking to negotiate a single security treaty. In effect, all the eggs would be in one basket. (Paragraph 125)

24.In addition, there would be a strong temptation, within a security treaty, to prioritise a few achievable and significant goals, and some of the synergies between the various instruments in the EU toolkit could be lost. (Paragraph 126)

25.The Government therefore needs to adopt an evidence-based approach. It should analyse on a case-by-case basis the value of maintaining access to each of the tools that it has already opted into, making its findings public wherever possible. (Paragraph 127)

26.The Government also needs to be realistic about what it can achieve, not least because the EU has given little indication that it will be prepared to negotiate a bespoke treaty instead of a series of agreements on security. Whatever the approach adopted, any UK-EU agreement will be judged less on its form than on its success in protecting the security of the UK and EU27. (Paragraph 128)

27.The best should not be the enemy of the good: if a comprehensive treaty cannot be agreed, the safety of the people of the UK and EU27 means that a series of ad hoc security arrangements could help to mitigate reduced operational capacity. Time is short, and both sides urgently need to show pragmatism and flexibility if they are to reach agreement. (Paragraph 129)

28.We note that a comprehensive security treaty could be deemed to be a ‘mixed agreement’. While this would not have important consequences domestically, it would result in a more complex, time-consuming and risky process of ratification by the EU and its Member States. We call on the Government to explain what consideration it has given to this issue in bringing forward its proposals for a comprehensive security treaty. (Paragraph 151)

29.Continued data-sharing is critical for future UK-EU security cooperation. Were the UK to lose access to the EU’s security databases, information that today can be retrieved almost instantaneously could take days or weeks to access, creating not only a significant hurdle to effective policing but a threat to public safety. (Paragraph 152)

30.We support in principle the Government’s objective of securing a cross-cutting agreement on data protection. But this means that the sequencing of the negotiations will be vital: if future security cooperation is to be effective, the Government must reach an agreement on data before agreeing a security treaty. (Paragraph 153)

31.We note also that negotiations on data-sharing are notoriously complex. So while we acknowledge the advantages of a cross-cutting agreement on data protection, we stress that this should not come at the expense of an agreement on security. (Paragraph 154)

32.Given the hurdles ahead, we are concerned that there is no mechanism in the draft Withdrawal Agreement for extending it, either in whole or in part, beyond the end date of 31 December 2020. We call on the Government and the EU to consider options for allowing such an extension, at least in respect of key security measures, where any interruption to ongoing operational cooperation could cost lives. (Paragraph 155)

33.In the meantime, internal security practitioners should prepare for the possibility of an operational cliff-edge. We commend the contingency planning undertaken by the Crown Prosecution Service, the Metropolitan Police and the National Crime Agency, in case the UK loses access to databases and other frameworks for security cooperation at the end of the transition period. (Paragraph 156)

34.Setting aside the arguments for and against retaining the European Charter of Fundamental Rights in UK law, any perceived reduction in the rights enjoyed by criminal suspects in the UK could have a significant operational impact on those working to protect the country’s security. This is underlined by the European Commission’s latest slides on police and judicial cooperation, which identify continuing UK adherence to the European Convention on Human Rights (and compliance with relevant judgments of the European Court of Human Rights) as key safeguards for any UK-EU agreements in this area. (Paragraph 157)

35.The Government needs urgently to explain how fundamental rights will be protected after Brexit, and how these protections will cohere with the proposed security treaty. Otherwise it risks delaying an agreement on internal security, leading to an operational cliff-edge. (Paragraph 158)

36.We welcome the Prime Minister’s statement that the UK will “respect the remit” of the Court of Justice with regard to EU agencies, including those in the field of internal security. Time is now short, and the security of the UK and EU demands flexibility. A security treaty that required the UK courts to take account of decisions of the CJEU (and vice versa) might be more acceptable to the EU—and might therefore be negotiated more quickly—than an entirely bespoke solution. (Paragraph 159)

37.We note also that continuing dialogue, at all levels, will be needed to support the future UK-EU security relationship. This will require an increased emphasis on cultivating relationships, both formal and informal, to compensate for the UK’s absence from decision-making bodies. We call on the Government to explain the means by which it intends to support such dialogue and embed it in the UK-EU security relationship. (Paragraph 160)

Northern Ireland and the proposed security treaty

38.Security forces in Northern Ireland and the Republic of Ireland have a decades-long history of cooperation in combating terrorism and cross-border crime, and over recent years in particular the Police Service of Northern Ireland and An Garda Síochána have developed ever greater mutual confidence and respect. While we are confident that this informal cooperation will continue, we also note the evidence of the Police Service of Northern Ireland that EU instruments, databases and agencies have become increasingly important in providing formal mechanisms for cooperation. (Paragraph 169)

39.It is thus vital for both sides that any UK-EU treaty or agreements should support ongoing security cooperation, including (particularly in light of the ongoing case before the CJEU) effective extradition arrangements between the UK and Ireland. Here, perhaps more than in any other aspect of security cooperation, the negotiations should not be treated as a ‘zero sum game’, but as an opportunity to develop a partnership that will benefit both sides. (Paragraph 170)

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