Fifth Report Contents

Scrutiny of international agreements: Police Cooperation and Services Mobility Agreements with Switzerland

Agreements reported for information

Agreement, done at London on 9 December and Berne on 15 December 2020, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Police Cooperation (CP 369, 2021)3

1.The Police Cooperation Agreement between the UK and Switzerland (the Police Cooperation Agreement) was laid on 20 January 2021, and the scrutiny period is scheduled to end on 4 March 2021. It was considered by the Committee on 3 March 2021.

2.When the Police Cooperation Agreement was signed in December 2020, the Security Minister, James Brokenshire MP, said:

“The safety and security of our citizens is the Government’s top priority. Switzerland is an important crime and policing partner and we will use this agreement as a foundation through which to explore further enhancing our law enforcement and criminal justice co-operation. By streamlining information flows between our countries, it will help to equip UK law enforcement with the tools they need to combat all forms of serious crime and terrorism.”4

3.The Swiss Government also issued a press release:

“The agreement includes rules on cross-border cooperation between the respective police authorities responsible for exchanging information or coordinating operations. Its provisions are primarily aimed at combating serious crime, but apply to all forms of crime, including money laundering and organised crime. This aspect is also of mutual interest given that London is one of the world’s largest financial centres along with Zurich and Geneva.”5

4.The Government’s Explanatory Memorandum6 (EM) notes that the Agreement builds on a Memorandum of Understanding (MoU) with Switzerland on Strengthening Police and Other Law Enforcement Cooperation, Combating and Preventing Crime and Terrorism, which was signed in 2019. The MoU was not supplied to us with the Police Cooperation Agreement, but had been previously published by the Swiss Federal Government.7 It was, however, disclosed to us by Home Office officials, on request, on 3 March.

5.As we have previously observed, a Select Committee cannot give an international agreement a clean bill of health if it is not in possession of all the facts.8 On this occasion, and in light of the information published by the Swiss authorities, it appears that the earlier MoU was broadly uncontentious.9

6.We reiterate our recommendation that where an Agreement builds upon, or is supported by, an MoU, it should be disclosed to us at the latest at the same time as the Agreement itself. A lack of transparency in this regard is unhelpful and hinders effective scrutiny.

Contents of the Agreement

7.The Police Cooperation Agreement itself is clearly described in the EM. It sets out the main forms of cooperation facilitated by the Agreement. It commits UK and Swiss authorities to cooperate in tackling all areas of serious and organised crime, including but not limited to weapons and narcotic drugs trafficking, economic crime, terrorism, cybercrime and child sexual abuse.

8.The EM explains that the main ways in which UK and Swiss authorities will do this are, broadly: “the exchange of information; cooperation in the development and use of systems and technology to enhance police information and intelligence exchange; the exchange of best practice; joint professional training and deployment of experts; joint police operations; the use of special techniques to disrupt and combat crime; the adoption of measures to combat illicit drug trafficking, and cooperation via multilateral mechanisms and fora”.

9.The Agreement also sets out the terms and process for the refusal of assistance;10 provides for additional, specific forms of cooperation, such as the detachment of liaison officers to the other Party, and cooperation on the treatment and protection of witnesses, victims, and their families;11 and sets out the Treaty’s provisions on data protection.12 The Agreement stipulates the conditions under which UK agents can operate in Swiss territory, and vice versa, setting out their civil and criminal liability.13

Amendments

10.Amendments can be made by mutual agreement between the Parties. The EM confirms that, in the UK, amendments that are subject to a formal exchange of notes to confirm completion of internal procedures would engage the parliamentary scrutiny process set out in the Constitutional Reform and Governance Act 2010. We await proposals from the Foreign, Commonwealth and Development Office about the identification and notification of all amendments, including those that will be subject to CRAG, in line with our previous recommendations.14

Consultation and territorial scope

11.In respect of consultation and territorial scope, the EM highlights that although the Agreement only applies to the United Kingdom, Article 1 allows it to be “extended to any Crown Dependency and Overseas Territory should this be requested by them in the future”. It also indicates that the Devolved Administrations were consulted on the drafting of this Agreement and that the Home Office, on behalf of the UK Government, “engaged the Devolved Administrations from an early stage in order to seek and accommodate their views, preferences and recommendations throughout the negotiations and drafting process, to the fullest extent possible”. The EM notes that the Devolved Administrations were “content with the final text”.

12.We welcome the Government’s confirmation that the Devolved Administrations were content with the text of the UK-Swiss Police Cooperation Agreement. This reflects the Committee’s previous recommendation that EMs should spell out whether any concerns were raised by the Devolved Administrations and, if so, how they have been addressed. Similarly, as provided in this case, EMs should confirm if no significant concerns were expressed or the Devolved Administrations were content with the final text.

Implementation and entry into force

13.The EM notes that the Agreement does not require any implementing domestic legislation, as existing legislation and common law provides the UK and its operational partners with all necessary powers to implement and comply with the Treaty’s provisions.

14.The EM also states that the Agreement will enter into force either on the date of receipt of the last notification by the UK and Switzerland that their internal procedures for approval have been completed, or on such later date as may be mutually determined and specified in these exchanges of notes. The Swiss Government has suggested that the Agreement “is due to come into force in the second half of 2021”,15 though Home Office officials have confirmed that no specific date for entry into force has been set.

Human rights

15.Finally, the EM notes that the Home Office is of the view that there are “no significant human rights implications resulting from the implementation of this Treaty”. It reaches this conclusion, in part, on the grounds that “the practical implementation of its provisions already fall within the scope of UK operational partners’ existing powers which are themselves all compliant with the UK’s international and domestic human rights obligations”. Clearly, compliance will also depend on the behaviour of the Swiss authorities and in that regard we note that Switzerland is a signatory to the European Convention on Human Rights and the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data.

16.Although Switzerland is a signatory to the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data, we note that it has recently updated its data protection laws. We therefore call on the Government to provide an assessment of the safeguards included in the new Swiss Data Protection Act and how these will apply to the exchange of information under the Police Cooperation Agreement.

17.We report the Police Cooperation Agreement between the UK and Switzerland to the House for information. In particular, we highlight our comments at paragraphs 6, 12 and 16.

Temporary Agreement, done at London on 14 December 2020, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Services Mobility (with Exchange of Letters) (CP 374, 2021)16

18.The Services Mobility Agreement between the UK and Switzerland (the SMA) was laid on 25 January 2021, and the scrutiny period is scheduled to end on 9 March 2021. It was considered by the International Agreements Committee on 3 March 2021.

19.The Agreement enables service providers in the UK to continue to work in Switzerland to deliver a service for up to 90 days a year (and vice versa) without the requirement for a work permit.17 In doing so, the SMA broadly replicates the 90-day permit-free entitlement of EU service providers under the EU-Swiss Agreement on the Free Movement of Persons (the AFMP).18 To ensure continuity between the AFMP ceasing to apply to the UK from the end of the transition period and ratification of the SMA, the Agreement has been provisionally applied since 1 January.

20.The SMA also includes a commitment by the Parties to work towards a comprehensive agreement on the mutual recognition of professional qualifications—but does not preclude the UK and Switzerland from concluding separate agreements in the interim. To help deliver a comprehensive agreement on mutual recognition, Article 15 provides for a joint working group to encourage structured dialogue.

21.It is worth noting that the Agreement is only designed to be temporary “until a longer-term arrangement is agreed”19—it will last for two years, but can be extended should both the UK and Switzerland agree.

22.The SMA also includes an exchange of notes, requiring the UK to endeavour to ensure that the UK’s National Recognition Information Centre assesses whether Swiss vocational education and training qualifications can be deemed equivalent to a UK university degree.20

Relevance of the Agreement to the UK

23.Switzerland is a major trading partner for the UK—the third most important non-EU market after the US and China, and seventh overall for exports.21

24.About 47% of the UK’s trade with Switzerland consists of services.22 The EM states:

“Other Business Services was the top UK services export to Switzerland in 2019, accounting for 51.3% (£6.3bn) of total UK services exports to Switzerland. This included legal, accounting, management consulting and public relations services (£1.8bn), research and development services (£1.2bn), and architectural, engineering, scientific and other technical services (£0.2bn).”

25.The UK has a significant trade surplus in services23 and, consequently, facilitating the entry of UK services providers into Switzerland is crucial to the UK services sector, and the economy as a whole.

26.The SMA is an important Agreement. However, the fact that it is temporary means that it cannot provide long-term certainty for businesses. We urge the Government to set out its plans, including timescales, for negotiating a more permanent mobility arrangement with Switzerland.

Interaction of the SMA with the UK-Swiss Agreement on Citizens’ Rights

27.The SMA complements the UK-Swiss Agreement on Citizens’ Rights (the CRA),24 picking up where the latter left off. While the CRA allows UK and Swiss service suppliers to continue to provide a service and benefit from the 90-day rule if a contract was signed before the end of the transition period, the SMA applies where service provision contracts have been agreed and where implementation has started on or after 1 January 2021.

Amendments

28.Only the Parties may make changes to the Agreement, as governance committees have not been provided for by the SMA. All changes must be made in writing.25 The process for parliamentary scrutiny of amendments is set out in the EM: amendments that are subject to a formal exchange of notes to confirm completion of internal procedures will engage the parliamentary scrutiny process set out in the Constitutional Reform and Governance Act 2010. We await proposals from the Foreign, Commonwealth and Development Office about the identification and notification of all amendments, including those that will be subject to CRAG, in line with our previous recommendations.26

Consultation and territorial scope

29.The EM points out that the SMA applies to the UK and Gibraltar, and that Gibraltar has been consulted on the Agreement. Work is ongoing with Gibraltar to ensure changes to legislation to implement the Agreement are made.

30.On consultation with the Devolved Administrations, the EM merely states that:

“The SMA relates in part to the movement of natural persons which is a matter reserved to Westminster. The other part relates to the recognition of professional qualifications which is a matter devolved to Scotland, Northern Ireland and Wales, and the UK Government routinely updated the Devolved Administrations on the negotiations.”

31.We reiterate our previous recommendation that the explanatory materials accompanying Agreements should spell out whether any concerns were raised by the Devolved Administrations and, if so, how they have been addressed. If no significant concerns were expressed or if the Devolved Administrations were content with the final text, we would also welcome confirmation of this.

Trade in services

32.In its report addressing the UK-Swiss Trade Agreement, Scrutiny of international agreements: Treaties considered on 12 March 2019, the EU Select Committee noted with concern that trade in services, which makes up about half of UK-Swiss trade, had been excluded from that agreement.27

33.In May 2019, as part of the debate on the EU Committee’s report, the Minister set out the Government’s aspiration to seek “a more ambitious agreement” on services within 24 months of the UK’s departure from the EU.28 Only three sector-specific agreements have, however, been concluded to date: on air services, road transport and non-life direct insurance (all presented to Parliament in January 2019).29 In June 2020 the UK and Switzerland declared their joint commitment to negotiating an agreement on financial services, but no date for the conclusion of such an agreement has been set.30

34.It is regrettable that there has been limited progress in securing services agreements with Switzerland and that no comprehensive agreement on services has yet been reached. In fact, it is not clear from the explanatory materials whether the UK Government is seeking to secure a single, comprehensive services agreement.

35.We call on the Government to set out its plans for concluding agreements on services with Switzerland; and what progress, if any, has been made to secure a long-term and comprehensive services agreement. We also request that the Government update the Committee on the UK-Swiss financial services negotiations, given the joint statement on financial services says that “both sides aim to take stock of progress in the negotiations at a meeting before the end of 2020”.

Conclusion

36.We would have drawn the SMA to the special attention of the House, were it not for the fact that the House has already had an opportunity to debate the absence of concrete services provisions in the UK-Swiss Trade Agreement.

37.We report the Services Mobility Agreement between the UK and Switzerland to the House for information. In particular, we highlight our comments at paragraphs 26, 31 and 35.


3 Agreement, done at London on 9 December and Berne on 15 December 2020, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Police Cooperation, CP 369, 2021: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/953710/CS_Swiss_1.2021_Agreement_UK_Swiss_Confederation_Police_Cooperation.pdf [accessed 8 February 2021]

4 Home Office, ‘UK and Switzerland sign new police co-operation agreement’, (15 December 2020): https://www.gov.uk/government/news/uk-and-switzerland-sign-new-police-co-operation-agreement [accessed 4 March 2021]

5 Swiss Federal Department of Justice and Police, ‘Switzerland to deepen police cooperation with the UK’, (15 December 2020): https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-81641.html [accessed 4 March 2021]

6 Home Office, Explanatory Memorandum on the Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Police Cooperation (14 January 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/953711/CS_Swiss_1.2021_Agreement_Police_Cooperation.odt [accessed 4 March 2021]

7 Swiss Federal Department of Justice and Police, ‘Federal Councillor Keller-Sutter on a working visit to London: Switzerland strengthens cooperation with the UK’: https://www.sem.admin.ch/ejpd/en/home/latest-news/news/2019/2019–07-10.html [accessed 4 March 2021]

9 It indicated that the Participants would work together to progress shared priorities, including in relation to: terrorism and its financing; serious and organised crime; criminality using digital tools or cybercrime; money laundering and economic crime; tracing of assets of criminal origin; corruption; trafficking in human beings and smuggling of migrants; sexual exploitation of children and child pornography; illicit trafficking in narcotic drugs and psychotropic substances and precursors; trafficking in weapons and explosives; kidnapping and hostage taking; as well as other crimes, as mutually determined in writing by the competent authorities of both the Participants. It committed the Participants to “endeavour to support the effective exchange of information between competent authorities (including financial intelligence units) in accordance with their respective applicable national laws and regulations” and suggested that a Joint Working Group might be established.

10 Chapter III

11 Chapter IV

12 Chapter V

13 Chapter VI

14 European Union Committee, Scrutiny of international agreements: lessons learned (42nd Report, Session 2017–19, HL Paper 387)

15 Swiss Federal Department of Justice and Police, ‘Switzerland to deepen police cooperation with the UK’, (15 December 2020): https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-81641.html [accessed 4 March 2021]

16 Temporary Agreement, done at London on 14 December 2020, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Services Mobility (with Exchange of Letters), CP 374, 2021: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/953190/CS_Moldova_1.2021_Strategic_Partnership_Trade_and_Cooperation.pdf [accessed 2 February 2021]

17 The 90 days are defined as days of “actual work”. For context, it is worth noting that under the UK-EU Trade and Cooperation Agreement, UK service suppliers can enter the EU without a permit for 90 days in every 180-day period.

18 Swiss Federal Department of Justice and Police, Cross-border service provision (EU/EFTA): https://www.sem.admin.ch/dam/sem/en/data/eu/fza/personenfreizuegigkeit/factsheets/fs-dienstleistungserbringer-e.pdf.download.pdf/fs-dienstleistungserbringer-e.pdf [accessed 4 March 2021]. See also: Agreement between the European Community and its Member States of the one part, and the Swiss Confederation, of the other, on the free movement of persons, OJ L 114 (30 April 2002)

19 Department for International Trade, Explanatory Memorandum on the Temporary Agreement Between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility (25  January 2021) para 3.2: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/955371/EM_CS_Swiss_2.2021_Temporary_Agreement_Services_Mobility.odt [accessed 4 March 2021]

21 Department for International Trade, Explanatory Memorandum on the Temporary Agreement Between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility (25  January 2021) para 3.2: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/955371/EM_CS_Swiss_2.2021_Temporary_Agreement_Services_Mobility.odt [accessed 4 March 2021

22 ONS, ‘UK Trade: all countries, non-seasonally adjusted, April to June 2020’: https://www.ons.gov.uk/businessindustryandtrade/internationaltrade/datasets/uktotaltradeallcountriesnonseasonallyadjusted [accessed 4 March 2021]

23 ONS, ‘UK trade in services by partner country: April to June 2020’: https://www.ons.gov.uk/releases/uktradeinservicesbypartnercountryapriltojune2020 [accessed 4 March 2021]

24 Agreement, done at Bern on 25 February 2019, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Citizens’ Rights following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons Agreement, CP 64, 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/782490/CS_Swiss_5.2019_Citizens.pdf [accessed 4 March 2021]. The European Union Committee reported on this Agreement in its report Scrutiny of international agreements: treaties considered on 19 March 2019 (34th Report, Session 2017–19, HL Paper 321)

25 Article 18

26 European Union Committee, Scrutiny of international agreements: lessons learned (42nd Report, Session 2017–19, HL Paper 387)

27 Agreement, done at Bern on 11 February 2019, between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on Trade, CP 55, 2019: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/780200/CS_Swiss_4.2019_FTA.pdf [accessed 4 March 2021]. The European Union Committee covered this Agreement in its report Scrutiny of international agreements: treaties considered on 12 March 2019 (33rd Report, Session 2017–19, HL Paper 315)

28 HL Deb, 1 May 2019, col 994 [Lords Chamber]

29 Foreign, Commonwealth & Development Office, ‘Switzerland: arrangements from 1 January 2021’: https://www.gov.uk/government/collections/eu-exit-transition-switzerland [accessed 4 March 2021]

30 HM Treasury and Swiss Federal Department Finance, Joint Statement between Her Majesty’s Treasury and the Federal Department of Finance on deepening cooperation in financial services (30 June 2020): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/896778/Joint_Statement_between_Her_Majesty_s_Treasury_and_the_Federal_Department_of_Finance_on_negotiating_a_Mutual_Recognition_Agreement_on_financial_services.pdf [accessed 4 March 2021]




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