Instruments drawn to the special attention of the House
Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
Date laid: 15 January 2019
Parliamentary procedure: affirmative
These Regulations have been laid by the Home Office as a contingency measure in case of ‘no-deal’ with the EU. The instrument consists of 24 disparate Parts which range over policy areas relating to security, justice and policing matters. Correspondence with the Home Office has not persuaded us that so wide-ranging an instrument, covering policy areas which are individually of significant concern to the House, can be justified. Effective scrutiny is further inhibited by the failure of the Home Office to provide any contextual explanation, with estimated numbers or an indication of the degree of usage, to illustrate the impact of the changes that this instrument addresses. Without such information we cannot determine the significance of a policy change and, as a result, advise the House accordingly.
These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
2.These draft Regulations have been laid by the Home Office as a contingency measure in case of a ‘no deal’ Brexit. They range over a number of policy areas relating to security, justice and policing matters. The instrument was laid with an Impact Assessment (IA) and an Explanatory Memorandum (EM1). At the Committee’s request a revised Explanatory Memorandum was laid on 11 February (EM2). Correspondence with the Government about the instrument is published at Appendix 1. The Regulations transfer a significant number of legislative powers back from the EU to the Home Secretary.
3.The Regulations consist of 24 disparate Parts, some of which include more than one aspect of the topic set out in the heading:
Table 1: Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 Parts
Part |
|
|
2 |
Child Pornography |
|
3 |
Counter-Terrorism |
|
4 |
Cross Border Surveillance |
|
5 |
Drug Precursors and Psychoactive Substances |
|
6 |
Eurojust |
|
7 |
European Agency for Law Enforcement Training (CEPOL) |
|
8 |
European Criminal Record Information System (ECRIS) |
|
9 |
European Judicial Network |
|
10 |
eu-LISA |
|
11 |
Europol |
|
12 |
Exchange of Information and Intelligence between Law Enforcement Authorities and Disclosure in Foreign Proceedings |
|
13 |
Explosive Precursors |
|
14 |
Extradition |
|
15 |
Firearms |
|
16 |
Football Disorder |
|
17 |
Joint Investigation Teams |
|
18 |
Mutual Legal Assistance in Criminal Matters |
|
19 |
Passenger Name Record Data |
|
20 |
Proceeds of crime |
|
21 |
Prüm |
|
22 |
Schengen Information System (SIS II) |
|
23 |
Serious Crime and Fraud |
|
24 |
Miscellaneous–which includes amendments to Acts and SIs on: • Human Trafficking • Licensing • Anti-Social Behaviour • Police Pensions • Investigatory Powers • International Agreements and • Atlas (cooperation between special intervention units). |
Source: Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
4.The rationale for this “portmanteau” approach was not explained in EM1 and, in the absence of any justification, the Sub-Committee took the view that the diverse range of this instrument far exceeded what the House could be reasonably expected to consider in the usual time allotted to debating a statutory instrument. “Bundled” instruments from other Departments have at least had some more obvious connection between their component parts. We therefore asked the Minister, the Rt Hon. Nick Hurd MP, to explain why, on this occasion, the Home Office had chosen to combine so many policy areas into one instrument. The Minister’s reply, published in full at Appendix 1, grouped the component Parts into three broad groups:
(a)Security, law enforcement and judicial cooperation in criminal matters currently underpinned by EU legislation;
(b)Security-related EU regulatory systems for which the Home Office is responsible; and
(c)Domestic legislation on the police and on investigatory powers made deficient by EU exit.
5.While the Minister’s reply provides some insight into the relationship between the items within the three groups, the effects of the changes can differ greatly between individual components. We were not persuaded that so wide-ranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included.
Quality of Explanation
6.The need for contingency arrangements for the possibility of a ‘no deal’ Brexit affects all Departments. Some have responded with large numbers of instruments, others have produced larger instruments that link several related policy areas. A key factor in demonstrating whether policy areas are suitable for combination in a single instrument is how coherently that approach can be justified in the EM. Sub-Committee B recently commended the Health and Safety Executive for an instrument which combined changes to the regulatory regimes for chemicals, biocides and genetically modified organisms because it explained the links and the effects of those changes in a clear and thorough EM.1
7.This was not the case with the explanation originally laid with the instrument, EM1.2 The instrument itself is 75 pages long and EM1 was even longer. It dealt with each component of the instrument separately and took a legalistic approach listing all the individual EU Directives and Regulations that were involved. While we cannot fault the Home Office for the effort it put in, we found the resulting text impenetrable.
8.We therefore asked it to produce a revised version, EM2. This is rather more user-friendly, indicating, for example, that certain provisions deal with potential gaps in the statute book in case of a ‘no deal’ Brexit, that certain provisions make transitional arrangements (so that cases or investigations that are already in progress on exit day can be completed) and that the Regulations introduce a new legal structure to enable extradition under the 1957 Council of Europe Convention in lieu of the European Arrest Warrant. While we appreciate the efforts made by the Home Office to provide a more accessible EM, as with the Minister’s letter, we are left unpersuaded that combining such a wide range of policy areas in one instrument is justified.
Impact of these changes
9.An IA was laid with this instrument. Unfortunately, we found it to be of little practical use. In a few instances it states that a provision has not been used and therefore there is no actual change (for example, Part 7 CEPOL, Part 21 Prüm) but for the most part the impact is categorised as “B2: there could be some practical impacts arising if legislative deficiencies are not addressed through these Regulations”. No information is given about the frequency with which the provision is currently used, whether an alternative route to the information is available at a different cost, or what effect the loss of this intelligence or information will be. Neither the financial nor the societal cost is quantified.
10.The Secondary Legislation Scrutiny Committee’s approach is to consider the practical effects of secondary legislation. We therefore expect an EM to include some contextual explanation, preferably with estimated numbers or an indication of the degree of usage, illustrating how the system will operate differently after the legislative change has happened. Without such information we cannot assess the significance of a policy change and, therefore, advise the House accordingly.
Real world effects
11.When we approached the Home Office for supplementary information on how often the powers affected by the Regulations were currently used and the effect of losing the EU facility, our request was declined, with the argument that:
“… the EU arrangements in question would cease to be available to the UK on exit day in any event–by virtue of the UK having left the EU. Any associated costs (or benefits) to society or industry would therefore be incurred regardless of whether the Regulations are approved.”
12.We have seen this argument advanced in respect of other instruments, and we find it wholly unconvincing.3 The Home Office’s assessment looks only at the moment of transition and ignores how data exchange and the transfer of information about crimes and criminals will operate after exiting the EU. We take the view that the purpose of contingency regulations is to address the consequences of a ‘no deal’ exit from the EU. Any accompanying EM should not be treated simply as an academic exercise dealing only with the moment of transition. As with any other instrument, the House needs sufficient information to understand the context and whether the solution offered by the regulations is an effective one. In order to do that, the House needs practical information on the real world effects before and after exit day.
13.The Home Office’s revised EM, EM2, still adopts this “moment of transition” approach for the most part although it does give a broad-brush outline of the effect of a ‘no deal’ Brexit:
“Should the UK leave the EU without an agreement in March 2019 (the ‘no deal’ scenario), the UK’s access to EU security, law enforcement and criminal justice tools would cease … The UK would rely instead on alternative, non-EU mechanisms, where they exist. The assessment concludes that these mechanisms, which include Interpol and Council of Europe Conventions, would not provide the same level of capability as those envisaged in a deal scenario, and would risk increasing pressure on UK security, law enforcement and judicial authorities. [emphasis added]” (EM2 paragraphs 7.3-7.4)
Such statements raise concerns that cannot be assessed properly without appropriate information on the current scale of usage and how that might change as a result.
Availability of figures
14.Only one Part is described in more detail in EM2, that is, Part 14 of the Regulations which provides a new legal structure to enable extradition requests to operate under the 1957 Council of Europe Convention. Paragraph 12.5 of EM2 notes that in 2017–19 the UK arrested over 1,400 individuals on the basis of European Arrest Warrants and 183 individuals were arrested by other Member States on the basis of such warrants issued by the UK. These figures indicate that the measure is important to international policing.
15.The IA states that, although a replacement system is enabled by this instrument, the new arrangements would “see the cost per incoming extradition case rise” for the operational stakeholders listed and “due to the more complex extradition process set out, it is anticipated that the number of extraditions per year would be lower and each would take longer with resultant implications for outcomes for criminal justice including victims’ interests”. This statement raises concerns but does not put any estimate of scale on the outcome.
16.EM2 instead refers to the Government’s separately published EU Exit: Assessment of the security partnership4 which provides an assessment of the implications of ‘no deal’ in this policy area compared with the proposed Future UKEU Security Partnership.5 That document does provide illustrative examples of the current usage of some of these services:
- “the Second Generation Schengen Information System (SIS II) contains almost 76.5 million alerts in relation to people and objects wanted for law enforcement purposes. In 2017 the UK checked SIS II over 500 million times and there were over 16,000 non-UK hits on UK alerts.”
- “the European Criminal Records Information System (ECRIS) is a secure electronic exchange mechanism that allows EU member states to exchange tens of thousands of pieces of information about criminal convictions. In 2017 the UK sent and received over 163,000 requests and notifications for criminal records. That is over 3,000 a week”
17.However, an article published on the BBC News website provided exactly the sort of impact information that we were looking for:6
“One of the effects of leaving the EU without a deal will be that British police officers will lose access to EU criminal justice tools such as the European Arrest Warrant (EAW), the European Criminal Records Information System (ECRIS), the Second Generation Schengen Information System (SIS II) and the European Investigation Order (EIO).
To handle the loss of these modern tools, the National Crime Agency - which communicates with overseas forces and Europol - has recruited 87 officers to use the much less effective Interpol system and to use other arrangements that are less automated and more labour-intensive.
An International Crime Co-ordination Centre is being set up by the National Police Chiefs Council as part of what is being called Operation Safety Net to help forces with things like international manhunts and missing people inquiries.”
18.We question why this information is available generally but not included in the explanatory material laid before Parliament.
19.We note that the Commons Home Affairs Committee also criticised the Home Office for failing to be transparent on this matter in a report published in December 2018:7
“From the evidence we have received, it is clear that no deal would represent a risk to public safety and security … we do not believe that the Government’s published assessment of the security partnership is a full assessment of the risks that we currently face. Nor do we share the Home Secretary’s view that we will be as safe as we are now if we lose key capabilities or cooperation, or that SIS II is simply “nice to have”. We are extremely concerned that the Government is either being complacent or failing to be transparent about the security implications and it should provide full and accurate information to parliament about the security risks.” (paragraph 48)
Conclusion
20.When reporting on an instrument, it is the practice of the SLSC Sub-Committees to advise the House on areas of doubt and to suggest questions that the House might wish to raise in debate. Because of the lack of information about the policies included in this instrument, we can do little more, on this occasion, than offer a few broad indications about the effect of the Regulations.
21.Some of the Parts (for example, 2, 3, 4, 6) of this instrument entail the UK losing reciprocity–for example, cooperation with EU police and justice counterparts and the loss of information exchange which may (or may not) currently have significant benefits in crime prevention, the obtaining of prosecution evidence or the apprehension of suspects or the proceeds of crime. We would expect some description of how the loss of that information, albeit an unavoidable loss in the event of a ‘no-deal’ Brexit, will affect police and court operations. The EM provides no scale of current usage against which we can measure the loss.
22.Other Parts (for example, 14 and 18) indicate that processes will continue but possibly at a slower pace because the UK will be treated as a ‘third country’. Neither EM1 nor EM2 provide any insight into whether this change matters: will the end result be the same, or do the police risk losing contact with suspects abroad, and will the courts risk evidence arriving too late to be of use in a prosecution?
23.We were sceptical that so wide-ranging an instrument could be scrutinised effectively. With concise, well-focused briefing it might have been possible. Unfortunately, neither EM1 nor EM2 has proved adequate. The lack of contextual detail inhibits a proper understanding of the significance of the impact of the various components of the Regulations. We therefore draw this instrument to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
1 Secondary Legislation Scrutiny Committee (Sub-Committee B), 15th Report, Session 2017–19 (HL Paper 281) on the Draft Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2019.
2 Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, Original Explanatory Memorandum [accessed 19 February 2019].
3 See, for example, our 14th Report, Session 2017–19 (HL Paper 272) in relation to the Draft Kimberley Process Certification Scheme (Amendment) (EU Exit) Regulations 2019 and the Draft Motor Vehicles (International Circulation) (Amendment) (EU Exit) Order 2019.
4 HM Government, EU Exit: Assessment of the security partnership (November 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759760/28_N ovember_EU_Exit_-_Assessment_of_the_security_partnership__2_.pdf [accessed 19 February 2019].
5 As set out in the Political Declaration of 25 November 2018; this is however a basis for future negotiation during the implementation period up to December 2020 rather than detailed agreement, and would not apply in case of no deal.
6 BBC, Brexit: What preparations are being made for a no-deal? BBC (9 February 2019): https://www.bbc.co.uk/news/uk-47029602?intlink_from_url=https://www.bbc.co.uk/news/topics/cwlw3xz0lvvt/brexit&link_location=live-reporting-story [accessed 19 February 2019].
7 Home Affairs Committee, Home Office preparations for the UK exiting the EU (Twelfth Report, Session 2017–19, HC 1674).