Appendix 3: Call for evidence
The House of Lords EU Home Affairs Sub-Committee, chaired by Lord Jay of Ewelme, has launched an inquiry into Brexit and the proposed UK-EU security treaty.
The House of Lords EU Committee and its six Sub-Committees are conducting a coordinated series of short inquiries looking at the key issues that will arise in the negotiations on Brexit. This inquiry will examine the practical and legal challenges for negotiating a security treaty with the EU, and what such a treaty might cover. The Sub-Committee is looking at internal police and security cooperation rather than external defence and foreign policy cooperation.
This is a public call for written evidence to be submitted to the Sub-Committee. The deadline is Friday 25 May. The Sub-Committee values diversity and seeks to ensure this wherever possible. How to submit evidence is set out later in this document, but if you have any questions or require adjustments to enable you to respond, please contact the staff of the Sub-Committee. We look forward to hearing from a range of interested individuals and organisations.
Inquiry focus
The Sub-Committee is examining the Government’s proposal to negotiate a treaty between the UK and the EU that would provide a legal basis for continued cooperation on security. In its future partnership paper on future security, law enforcement and criminal justice cooperation, the Government stated that “it is 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”, and called for a partnership between the UK and EU “that goes beyond the existing, often ad hoc arrangement for EU third country relationships”. In her speech to the Munich Security Conference on 17 February 2018, Prime Minister Theresa May 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”. EU Member States currently enjoy levels of cooperation and mutual recognition that go deeper than any comparable international collaborations; the Government has supported the idea that a UK-EU treaty would provide “a legal basis” for continued cooperation.
The European Commission’s paper on police and judicial cooperation in criminal matters identifies the following principles for a future partnership with the UK to combat terrorism and international crime: the EU’s interests must be protected; a non-Member State cannot have the same rights as Member States (there must be a balance of rights and obligations); and the EU must continue to have autonomy in making decisions. Security and justice are areas of shared competence for the EU. This means that both the EU and its Member States may adopt legally binding acts in this area. However, the Member States can do so only where the EU has not exercised its competence or has explicitly ceased to do so. An agreement between the EU and a third country in an area of shared competence is known as a “mixed agreement”. This means that it is concluded both by the EU and by the Member States of the EU, which must give their consent.
The Committee is seeking evidence on the following questions in particular:
Shape of future arrangements
- What are the most important aspects of the current security cooperation relationship between the UK and EU, which the Government should seek to maintain?
- In an ideal world, what is your vision of the “closest possible cooperation” on security cooperation between the UK and EU post-Brexit?
- What should be the scope of the proposed UK-EU security treaty? Are there any issues that might not be best covered by this type of arrangement?
Transition or implementation period
- Can we expect existing security arrangements to be maintained during the transition or implementation period?
- Is the UK likely to be permitted to work within existing EU security frameworks during the transition or implementation period, for example Europol?
- What, if any, legal provisions will be required in order to achieve a successful transition or implementation period with regard to security cooperation?
Other modes of cooperation
- In the event that the UK leaves the EU without any deal in place on security cooperation, what does the UK stand to lose? How likely do you believe this outcome to be?
- Are there any existing models, either within the EU or elsewhere, for a future UK-EU security relationship?
- What fall-back options would be available to the Government should the UK fail to reach an agreement with the EU?
Structure of future cooperation
- Do you think that it will be possible for the UK to continue to have access in some way to the EU’s structures for security cooperation, for example Europol?
- Are there any instances in which the EU can share data with a third country that does not have an adequacy decision? What is the legal basis for that to happen?
- To what extent do you think the Government’s ‘red line’ on CJEU jurisdiction limits the post-Brexit options available to the UK for security cooperation?
- Do you see a need for new institutions to be established to facilitate security cooperation between the UK and EU and vice versa, once the UK leaves the EU?
Ratification
- Can you see any potential delays to the ratification of a security treaty?
- Would any such delays pose the risk of a cliff-edge in operational capacity?
Post-Brexit influence
- Do you have any concerns about how the UK and EU will be able to cooperate on identifying, agreeing, and tackling commonly shared security risks when the UK is no longer part of the EU?
- Will the UK lose the influence that it wields in security cooperation, once it is no longer part of the EU?
- Do you expect the UK’s level of influence on security cooperation in Europe to change post-Brexit? Do you see any opportunities to improve upon the security relationship between the EU and the UK following Brexit?
- Would involvement with EU structures for security cooperation post-Brexit mean that the UK would find it more difficult to cooperate with third countries–for example, the USA?
Northern Ireland
- Do you believe that the land border between the UK and Republic of Ireland will pose particular challenges for security cooperation post-Brexit?
Submissions need not address all questions.