Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020
(3 years, 12 months ago)
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Baroness Williams of Trafford
That the draft Regulations laid before the House on 13 October be approved.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the House will be aware that the Government have been preparing for the end of the transition period on 31 December. This statutory instrument forms one of the legislative changes that we are making as part of these preparations to ensure the law is clear and accessible on cross-border law enforcement and criminal justice matters.
I hope it is clear from the statutory instrument and accompanying documents not just what the regulations do, but also what they will not do. These regulations are required under any EU exit scenario. They will not enact the outcome of any negotiations; in that sense, they are scenario agnostic. Instead, they will provide legal and operational clarity on the handling of live law enforcement and criminal justice cases and procedures at the end of the transition period. They will ensure that the UK has a fully functioning statute book.
They will do this in three ways. First, they will make the changes needed in UK law to give full effect to the separation provisions contained in the withdrawal and separation agreements with the EU and the EEA-EFTA states. These provisions concern ongoing cases and procedures at the end of the transition period and place reciprocal obligations on the UK, EU and EEA-EFTA states regarding their handling. For example, should UK authorities receive a European investigation order—an EIO—from an EU member state or vice versa and be unable to execute it before the end of the transition period, there will be a legal obligation to finish executing that request under the EIO procedure after the transition period ends. Ensuring these separation provisions are in place for this and other EU measures will enable the orderly completion of those ongoing cases and procedures.
Secondly, and in a similar vein, they will make the necessary amendments in UK law to give full effect to the related data provisions contained within these agreements. These provisions concern data accrued before the end of the transition period or under the separation provisions and will provide clarity for operational partners on the handling of those data. As an example, where a European Criminal Records Information System—ECRIS—request for criminal record information is made by the UK to an EU member state, or vice versa, before the end of the transition period and the information is received after the end of the transition period as a result of that request the restrictions on the use of personal data under ECRIS will still apply.
Thirdly, the regulations will address a number of deficiencies that would otherwise arise at the end of the transition period, for example, where new EU law has come into force during the period since the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 were passed. Addressing these remaining deficiencies will ensure that the UK has a fully functioning and relevant domestic statute book at the end of the transition period.
Overall, the scope of this statutory instrument is narrow. It gives full effect to the separation provisions contained in the withdrawal and separation agreements by making the necessary technical changes in UK law. This will provide legal and operational clarity on the handling of live law enforcement and criminal justice cases at the end of the transition period and will therefore enable the UK to meet its legal obligations under these agreements. I am sure noble Lords will agree that that is essential.
The safety and security of our citizens is the Government’s top priority and this statutory instrument helps to support that. I commend these regulations to the House. I beg to move.
Lord Reid of Cardowan (Lab)
My Lords, first, I thank the Minister, who I think is aiming for the Stakhanovite prize for her endeavours at the Dispatch Box.
I say right at the beginning that it is a bit of an obfuscation for the Minister to say that the regulations are scenario-neutral. They are in the limited sense, in that whatever the nature of the deal, they will be put through, but of course they are being introduced in the whole context of Brexit, which is the biggest change imaginable in the scenario for law enforcement and counterterrorism. The Minister’s allusion to the neutral scenario reminded me that one old philosopher used to say, “We have free will”, but, as he pointed out, we do not have free will in circumstances of our own choosing. So the regulations might be scenario-neutral but they are in the wider scenario of Brexit, and that is what I want to refer to today.
Obviously, as the Minister implied, I, like others in the House, will not oppose these regulations. It is in all our interests to have confidence in our law enforcement capabilities and operations after Brexit. Therefore, I do not intend to oppose them but I want to make some observations.
The first and most obvious to everyone is the desperate lack of time available for our law enforcement agencies to adjust to any new framework or operational procedures. It is obvious that we are now only weeks away from the end of the transition period and still the two parties—like children in the playground playing “Don’t push me or I’ll push you”—are issuing statements every week without any word of substantial advance in them. Meanwhile, our law enforcement and security services still do not know what legal regulatory framework they will be operating under after New Year’s Day. Nor do they know what the practical impact or implications of any security and criminal justice deal will be for their ability to keep the public safe.
Will the Minister therefore tell us how the Government have engaged with our law enforcement agencies or, for that matter, with their European counterparts to ensure that the appropriate arrangements will be in place so that relevant cases can be actioned with confidence and not delayed or stopped? Later, I will refer to ECRIS, the European Criminal Records Information System, to which the Minister referred. Obviously, we need confidence that outstanding cases will not grind to a halt, as that would diminish our ability to tackle criminality and prevent terrorism.
The second issue arising from this timing pressure is the uncertainty caused. We do not know, even at this stage, whether we will have a deal or no deal. Regardless of the assertions that this measure is scenario-neutral, it will have an effect on the practical application and operational capabilities of our law enforcement agencies. In November, the Minister—not the noble Baroness but the Minister in the House of Commons—rather blithely told the House that if negotiations
“do not conclude successfully, we will move back to pre-existing tools and powers.”—[Official Report, Commons, 5/11/20; col. 528.],
as though this was, again, scenario-neutral. But presumably those pre-existing powers and tools were less effective and less satisfactory than the subsequent arrangements made within the European Union, otherwise there would have been no point in adopting the new arrangements. To reinforce that point, Mr Martin Hewitt, the chair of the National Police Chiefs’ Council, laid out the consequences, and I could not put it more concisely myself. He said that
“the loss of some or all of the tools will mean that, even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined-up working with European partners more cumbersome.”
That could not be plainer. Does the Minister therefore accept that a failure to conclude negotiations successfully will inevitably involve a deterioration in our capacity to combat crime and insecurity, as laid out by Mr Martin Hewitt, who presumably knows a little bit about these matters? I have some specific questions for the Minister. In her opinion, what is the likelihood of that situation arising? What contingency plans are in place for the loss of these vital tools? What is the certainty regarding Europol arrangements or the Schengen Information System? What about the loss of the European Criminal Records Information System, which effects about 4,000 requests every month? If I understood the Minister correctly, applications that are already in that system will continue. I accept that, but what about the 4,000 a month that will happen after 1 January 2021? What are the arrangements and availability of information for those? What are the details of the fast-track extradition arrangements, which are to replace capabilities enjoyed under the European arrest warrant? Is it not the case that diminished capabilities on data and information sharing would seriously damage the fight against crime, terrorism and insecurity?
The fact that such questions remain unanswered at this late stage indicates just how precarious the position is. As I said at the beginning, I am not opposing this. Today’s regulations are necessary, but they are not sufficient to inspire confidence or engender certainty that our agencies will maintain the standards of law enforcement that they have hitherto reached in order to fulfil our legal commitments on law enforcement and counterterrorism. That is why I give them my very qualified support.
Lord Mackay of Clashfern (Con) [V]
My Lords, it is a privilege to follow my fellow countryman, who has such experience of the Home Office and its capacity to prophesy and made a very notable analysis of the Home Office in his time. I propose to restrict myself to dealing with this statutory instrument, rather than with prophecy.
When I saw this instrument on the list, since I was not involved in any Bill, I thought that I should participate. Although I have a fairly general knowledge of the criminal laws of the United Kingdom, I felt a profound difficulty when I looked at this instrument, until I came to the bottom of the last page of the Explanatory Note and the reference to the Explanatory Memorandum.
I congratulate the Home Office on the dramatic clarity of this document and the way it directs us to the sources of the provisions. As the Minister has said, these are contained in the withdrawal legislation relating to the withdrawal agreements from the EU, EEA and EFTA, with the powers given in statute to deal with the deficiencies that might arise in retained EU law. As a result, it is easy to check that the provisions have direct statutory authority or are reasonable exercises of the power given to Ministers to deal with deficiencies in retained EU law. The inclusion of material with no legal effect was a judicious use of the author’s clarity of exposition. It is also welcome that the instrument has been agreed by the relevant devolved Administrations.
I hope that this vitally important area of the law will be consolidated at the appropriate time. I congratulate the Minister on the clarity with which she introduced this statutory instrument, and I thank her for it.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern, but I disagree quite strongly with him. We have had a lot of these statutory instruments coming through, some of them excruciatingly boring, and we use them as an opportunity to talk about much wider issues. Some are actually quite dangerous and some—this is one—are really quite messy. The Explanatory Memorandum admits as much. The statutory instrument jumps around dozens of different areas of law enforcement co-operation with the EU and makes little tweaks here and there to try to fix deficiencies for when we finally leave the EU. I accept that we need this sort of statutory instrument but, quite honestly, I do not see the clarity here.
One thing we saw throughout the last few months of the pandemic was the confusion, particularly for the police, over the advice from the Prime Minister and the later comments and suggestions from Ministers interpreting it, versus the rules and the actual law. There was a lot of confusion and the police overstepped the mark quite a lot. I basically feel, although I do not have much confidence in our law enforcement agencies, that they were not to blame—it was actually the Government. They presented so many confusing scenarios that the police did not really have much chance to enforce the law. What will the Government do to make sure that this is a clear law, properly understood by the police and security services, so that we do not see the abuses we have seen over the past nine or 10 months? What plans do the Government have to bring consolidating legislation—to put it all in one place and reduce the chaos? It simply is not fair on the police that the Government throw out this stuff and do not give them the time, as the noble Lord, Lord Reid, suggested, or the clarity to be sure that they are not breaking the law when they try to apply this.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble Baroness, Lady Goudie, has withdrawn, so I call the noble Baroness, Lady Ritchie of Downpatrick.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb. I thank the Minister for her explanation of these regulations. Although she says they are limited, they cover quite a wide range of law enforcement and security issues, including some 50 regulations on important work on cross-border surveillance, extradition and exchange of information and intelligence between law enforcement authorities, EU agencies such as Eurojust and Europol and EU security databases. It has become apparent to us, to follow what was said by the noble Baroness, Lady Jones, that the withdrawal Act was actually quite skeletal: we are filling out all the various sectors and sectoral areas through the use of statutory instruments.
While I acknowledge the need for these regulations, I have some questions for the Minister. I have been told that there is total lack of certainty regarding the UK’s future security and law enforcement relationship with the EU. We are some five weeks away from the end of the transition period and our law enforcement agencies still do not know what legal and regulatory framework they are winding down to, nor the practical day-to-day impact of any security and criminal justice deal—or, indeed, no deal at all. What will be their ability to keep the public safe, because that is always the issue when we concentrate on law enforcement? Will the Minister indicate whether there has been any movement from uncertainty to certainty in such matters? I know the Minister said that this is simply about legal and operational clarity and does not deal with the negotiations, but are any of the law enforcement issues or policies part of the discussions in the negotiations?
I am reminded of what the chief constable for Northern Ireland told the Northern Ireland Affairs Committee in the other place: with the end of the transition period just a few months away, there are concerns about how the PSNI can track people and how to move information around to keep communities safe. They have the added difficulty of the implications of the internal market Bill and the impact on the withdrawal agreement and the potential creation of a hard border with the EU on the island of Ireland, and thus that intersection with the Northern Ireland protocol. What thought has been given to those issues, in terms of law enforcement and security separation issues after we leave the EU?
There is also the added complication of the customs posts in Belfast, Larne and Warrenpoint. What will be the law enforcement and security role in those? The PSNI, as the local law enforcement agency in Northern Ireland, does not seem to have any information on how to deal with this. I am sure that the noble Lord, Lord Reid of Cardowan, as a former Secretary of State for Northern Ireland, will know how important the PSNI is to maintaining good security and good policing in Northern Ireland on a cross-community basis. Could the Minister provide an update on this matter? Could she also outline whether there has been any resolution around the National Crime Agency? It believes that reduced UK ties with EU instruments will damage UK security since maximum co-operation is essential to address sophisticated international threats. What is the current position? Albeit that these regulations are limited, they open up Pandora’s box—hence my list of questions.
I understand from some research that the UK is still seeking access to Europol databases, as if it never left the EU. What is the situation with data sharing, as I understand that the PSNI has been presented with challenges in this area? Apparently the UK Government want to be a de facto member of the Schengen Information System, without being an actual member, to gain access to information on migrants, border security, terrorism and other areas of law enforcement. Has there been or will there be an agreement on law enforcement, criminal justice and data-sharing arrangements? Will the UK also remain engaged with the European Global Navigation Satellite Systems Agency, which manages Galileo, the EU’s satellite system, which provides encrypted services for police and border control?
It is patently clear that leaving the EU will have a substantial impact on UK security, given the close co-operation established over many years in policing, crime prevention and criminal justice. That level of evidence base must not be allowed to wither on the Brexit vine.
Lord Garnier (Con) [V]
My Lords, the noble Baroness, Lady Ritchie, always informs our debates. One of the fears that I had during the Brexit debate before the referendum was that if we left the EU, we would damage the co-operation, and its speed and effectiveness, between the law enforcement and investigatory agencies of the United Kingdom and the remaining 27 states. Since we joined the EU, the bilateral assistance that our agencies have given individual EU countries and vice versa has only improved. Although there have been some glitches and a few eccentric decisions flowing from the use of European arrest warrants, the EAW system, as well as the wider international assistance in law enforcement and co-operation between the security services, has worked well to our mutual benefit.
I agree with my noble and learned friend Lord Mackay of Clashfern; my noble friend the Minister has clearly explained the ambit and purpose of these regulations. They should ensure that, when translated into our national law, they will be every bit as effective as before and deal with any deficiencies in retained EU law. There is a list of about 20 separate areas of law enforcement activity covered by these regulations in which we have, as a member of the EU, co-operated with other EU countries. No one can doubt their continuing importance to our own and our shared protection from the activities of the most serious criminals.
It is clearly vital that these regulations should be in force before 31 December this year and I doubt that the regulations themselves are controversial. The Government’s intentions are clear and understood. That said, the noble Lord, Lord Reid of Cardowan, has made some pertinent points. However, I should like my noble friend the Minister to reassure me that, even when we have finally left the EU in the new year, the practical and operational work covered by the current legal framework will not diminish in volume and quality.
Terrorists, money launderers, cyber criminals and human traffickers will exploit any lack of international co-operation. They do not care or mind whether we are in or out of the EU. Investigations into their activities, and their prosecution with evidence gathered from both sides of the channel, must carry on without reduction or legal impediment after 31 December with the same, and even increased, operational vigour as they have until now. Departure from the EU is no reason for any alteration in our approach or metaphorically to cut the wires between the United Kingdom and the EU 27.
Lord Bhatia (Non-Afl) [V]
My Lords, the Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020 allow for the implementation of the separation provisions in the UK-EU withdrawal agreement relating to law enforcement and security co-operation. Although the UK has left the EU, it continues to participate in a range of EU law enforcement and criminal justice co-operation schemes. This participation will continue until the end of the transition period.
The Home Office states that this SI has three functions. First, while the EU withdrawal agreement Act implemented the withdrawal agreement, this SI would make the “necessary further, specific amendments” to give full effect to the LECJ separation provisions in the agreements. The separation provisions require the continued application of EU measures in cases still ongoing at the end of the transition period. Secondly, the regulations amend UK law to give effect to provisions which require the preservation of relevant law on criminal justice data and information collected prior to the end of the transition period. Thirdly, as the body of EU law relating to LECJ co-operation either ceases to apply in the UK or is transferred into “retained EU law” at the end of the transition period, the regulations would make amendments to “address deficiencies” in the retained law. For that purpose, the current regulations would amend the two regulations passed in March 2019 to take account of EU law which has come into force since they were made.
On 18 November, the Minister for Security said that scope of the regulations was “narrow” and they would be required under any scenario in which the UK had left the EU. He went on to say that this SI
“will provide legal and operational clarity regarding the handling of live law enforcement and criminal justice related cases and procedures at the end of the transition period, and will ensure that the United Kingdom has a fully functioning statute book.”—[Official Report, Commons, Fifth Delegated Legislation Committee, 18/11/20; col. 3]
Lord Mann (Non-Afl)
My Lords, having listened to the Minister and read in detail the documentation, I can recall what I said in the House of Commons 18 months ago and privately, as well as publicly, on many occasions at the time, when I was one of a tiny handful of enthusiastic backers of the agreement that the European Union made with the British Government of the time, which Parliament chose to reject. I said that there is no such thing as a no-deal scenario because this means thousands of deals, but those will have to be done separately and in isolation. One of the problems with that is that there will be so many.
In the context of these changes—which I do not oppose—will the Minister tell us how many separate agreements will be required, purely from the scope of these regulations? Are we talking about bilateral deals with each country, or are we talking about a single deal on a range of different issues with the European Union? Will those deals be in place from 1 January? Do we have the capacity? We have had all sorts of complications, because of Covid, in terms of how we work. One thing Covid has not done is make negotiations easier; it has made them more difficult. It is harder to get people and it is harder to fix meetings for decisions of any kind to be made. When they are multilateral and require negotiation, if we do not have a deal—though I suspect that we will probably end up with one, and I feel that is the way things are moving—are all the individual deals required in place to allow law enforcement to act as it did? I suggest that that is not possible: the capacity to do that in that timescale is not possible.
Will we potentially have the following scenario from January? The Home Secretary and the NCA previously described an earlier operation against organised crime, in which the NCA had managed to break into phones in some way, as the most successful in the history of policing in this country because we managed pretty simultaneously, across many different European countries and in this country, to arrest many hundreds of serious organised criminals. As I understood from what the Home Secretary and the NCA said at the time, these were people who were involved in major crimes—gun crimes and the rest—who were significant and dangerous criminals, and that happened across Europe, including in this country. Are the arrangements going to be in place that would allow a new such operation to begin seamlessly on, say, 2 January?
Will there be criminals in this country whom we have problems extraditing to another country because a deal will not have been negotiated with that other country by the time we get to January? Will there be criminals whom we wish to bring back from other countries—from Spain, France or wherever—to face the prospect of justice in this country, where we might not be able to do so because the agreements are not in place? Would I be right in thinking—as some of these agreements will be very technical and complex—that the presumption has been for a long time that any changes that might come would actually be in the light of a deal, and so would be negotiated over a much longer and more rational time period, rather than forced through in an incredibly short period simply to hold the system together?
Will there be bits of information that we cannot access purely because we do not have a deal in place, in a no-deal scenario? As I said—and I am sure that the Minister will agree—there is no such thing as no deal; it merely means that the deal on these issues has not been concluded because there has not been the opportunity to finish and finalise it, since we do not even know if we need it, as that is dependent on whether we get the bigger deal.
I appreciate that this is not the responsibility of the Minister—although it will be part of her department’s problem and the Ministry of Justice’s problem—but it is the problem of government and it is the problem of Parliament, because a scenario that allows criminals more freedoms than the law would wish to give them, simply because of jurisdictions crossing borders, is not—I think I can say without equivocation—what anybody voted for or perceived would happen.
The taking back of control that I and others argued for, voted for and won a referendum on was predicated precisely on the ability to do the things that we want to do and have international agreements in place. As I say, I was very relaxed with what was described as the Theresa May deal—I always tried to describe it as the European Union deal because that was the other party to it—because we would have avoided all these problems. I suspect that I am not the only person in this Chamber now who was of that view. However, we were a tiny majority, unfortunately, and we were unable to persuade any party. We failed the people there—I apologise for my part in that failure—but we tried. At least we recognised that this is probably for the British people the single biggest problem. No politician would be able rationally to explain, “Well, the criminal got away with it because we don’t have the agreement in place because we’ve not had the time to get the agreement in place. We will do but we can’t do so, sorry, come back next year and we’ll try again.”
Are those dangers or am I overstating the risk? I do not think that I am, having heard the Minister and read the documentation. There is a problem, which therefore suggests that, even with this deal at this current stage, the deal that can be agreed would have bigger positives for the country than the so-called no-deal option. That would mean thousands of further deals having to be negotiated, including many in the immediate future; we do not have a good capacity for that, and no one could have the capacity to do that.
Lord Paddick (LD) [V]
My Lords, I thank the Minister for introducing these regulations.
The stream of worrying statutory instruments dealing with our final severing of links with the EU at the end of the transition period continues. We have already debated regulations that will weaken UK border security; now, we have regulations that deal with the end of co-operation with the EU on a whole range of criminal law, investigatory powers, policing and criminal justice issues. When a similar raft of regulations, which these regulations amend, was debated, the Secondary Legislation Scrutiny Committee, as it put it,
“published a critical report because the 2019 Regulations bundled together a large number of topics without adequate information on any of them.”
Here we are again, with one SI containing 50 regulations relating to a wide range of law enforcement and security issues.
The regulations cover extremely important issues, such as cross-border surveillance, extradition, the exchange of information and intelligence, Eurojust and Europol, and security databases such as the Schengen Information System—SIS II—and the European Criminal Records Information System, or ECRIS.
The Minister explained the purposes of these regulations and the noble Lord, Lord Bhatia, repeated them so I see no point in repeating them again. However, I share the concerns expressed by many other noble Lords this afternoon. It is 36 days until the end of the transition period. Let me remind the House what these regulations are about. At the moment, there are arrangements in place to allow law enforcement and security services to follow dangerous criminals, including terrorists, across borders. So if the National Crime Agency has undercover officers following a gang involved in people smuggling, for example, they can pursue them across the channel and across the EU. As things stand, that ability will end on 31 December.
At the moment, rapid extradition from the EU to the UK, including of a country’s own nationals, can be achieved using the European arrest warrant. As things stand, that will end on 31 December.
At the moment, information and intelligence can be shared between law enforcement authorities in the UK and those in the EU. This includes the Prüm database, which allows rapid electronic matching of fingerprints and DNA samples found at any crime scene in the UK with those in databases of criminals held across the EU. As things stand, we will no longer have access to these databases come 31 December.
At the moment, the SIS II database is in place, which triggers an alert when someone travelling across an EU border is wanted or of interest to the police or security services. It also provides information about what action border security officials should take. As things stand, we will lose access to that database from 1 January.
At the moment, Eurojust co-ordinates investigations and prosecutions involving more than one country by helping to resolve conflicts of jurisdiction, for example. As things stand, we will no longer be a member of Eurojust on 1 January.
Finally, Europol co-ordinates law enforcement activity across the EU to deal with serious and organised crime, such as drug and people trafficking, terrorism and cybercrime. Crucially, it produces threat assessments in these areas, which pose the most serious criminal threats to the EU and the UK. These are used to prioritise law enforcement activity. As things stand, the UK will go from being one of the agenda-setting countries in Europol to having observer status. I say, “as things stand”, but we have only 35 days to prevent these things.
Can the Minister give us a detailed account of which, if any, of these measures, which are vital to the security of the UK, are likely to still be in place on 1 January? Let me help her a little. The BBC reported last week that the UK wanted to maintain the same access to Prüm, SIS II and the other EU databases that are vital to our security, but that the EU says that those are not on offer to non-EU members. We know from the experience of Norway and Iceland that non-EU members cannot be part of the European arrest warrant, and the second-class alternative they have does not allow extradition of a country’s own nationals. Even that took over a decade to negotiate and come into force. So can the Minister confirm that whatever security treaty the UK is able to negotiate with the EU will not include access to EU databases or the European arrest warrant?
Metropolitan Police Assistant Commissioner Neil Basu, Britain’s top counterterrorism officer, told the BBC last week that the UK will be less safe without an EU security deal in place. Is it not the case that the UK will be less safe whatever security deal is agreed, or if no security deal is agreed, as it will not include access to EU databases and the European arrest warrant? I am sure these regulations—all 50 of them—are necessary, but they provide a stark reminder of what we are losing as a result of leaving the European Union.
Lord Rosser (Lab) [V]
I too thank the Minister for her explanation of the content and purpose of these regulations. They make amendments to UK law to give effect to the separation provisions relating to law enforcement and criminal justice co-operation contained in the withdrawal and separation agreements. They provide for the winding down of cross-border judicial and police cases in progress at the end of the transition period, including by requiring that data protection arrangements will continue to apply to any information required before the end of this year. In that particular sense, the provisions of these regulations are effectively time-limited. The regulations also amend the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 since they address new developments since the 2019 regulations were made, including in relation to the application of the Prüm directive to the UK.
The Government argue that these regulations are necessary to ensure a smooth transition to alternative arrangements regarding the handling of live cases and procedures at the end of the transition period. The reality is that the regulations provide little clarity or certainty to either the people of this country over the arrangements applicable from 1 January next year, or to our law enforcement and security services, who still do not know, five weeks from the end of the transition period, what legal and regulatory framework they will be winding down to, or what the practical day-to-day impact of any security and criminal justice deal, or no deal, will be on their ability to keep our people safe—a responsibility which is surely one of the most important priorities for any Government.
On cross-border data sharing and information sharing, lowering current capabilities would be very damaging and would adversely affect our country, hindering our ability to receive alerts, search for criminal records and extradite criminals. My noble friend Lord Reid of Cardowan referred to a letter published last week to the Select Committee on Home Affairs from the chair of the National Police Chiefs’ Council, which said that
“the loss of some or all of the tools will mean that, even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined up working with European partners more cumbersome.”
Could the Minister do something that the Security Minister in the Commons failed to do three times, and say whether the Government agree or disagree with that assessment by the chair of the National Police Chiefs’ Council?
Could the Government also say in their response what assessment they have made of the scenario that British law enforcement will find itself in on 1 January—in five weeks’ time—in light of concerns about the effectiveness of contingency arrangements and the clear view of police leaders on the need to retain EU tools to retain current levels of operational effectiveness? Could the Government tell us what capabilities we will have after the end of the transition period in relation to the Schengen Information System, SIS II, which we use extensively and appear set to lose?
Could the Government tell us what fast-track extradition arrangements there will be to replace existing capabilities from which we currently benefit under the European arrest warrant? What will replace the loss of the European Criminal Records Information System, affecting 4,000 requests every month? What will our position be after the end of the transition period in relation to Europol and future partnership working on law enforcement across Europe, which has been so effective? What will the position be in relation to future access to a passenger name records database, providing information on terrorists and criminals trying to enter our country, and the Prüm database for DNA, fingerprints and vehicle registration data?
The specific regulations we are debating are needed to fulfil our legal commitments on law enforcement and criminal justice separation provisions. But to have law enforcement, counterterrorism and security services winding down operations, knowing that some will not be wound up again and that some, if there is a deal, may or may not be wound up again to effective levels in the new year, is hardly a satisfactory situation to be in when we are talking about the safety and security of our citizens. In addition, the uncertainty is causing focus in our law enforcement agencies to concentrate less on day-to-day priorities in order to address this uncertainty over what arrangements will be applicable after the end of this year.
Along with other noble Lords who have spoken in this debate, I await the Government’s response to the points and questions raised, including by myself, and will be looking for meaningful assurances, not unsubstantiated statements of hope, that our law enforcement agencies and security—[Inaudible]—protect us all.
Baroness Williams of Trafford (Con)
I have to tell the noble Lord, Lord Rosser, that he was cut off just at the appropriate moment, as he was about to finish. I thank him and all noble Lords for their contributions to this debate and their constructive approach to the regulations, although many noble Lords did not talk about the regulations at all; they took this opportunity, and rightly so, to talk about other issues around the end of the transition period. I also thank my noble and learned friend Lord Mackay of Clashfern, who never fails to impress me, for explaining the whole thing in a few sentences. I was glad to hear that echoed by my noble and learned friend Lord Garnier.
As demonstrated by the debate, there is consensus on the need to provide operational and legal clarity at the point of transition for our operational partners. Doing so enables the orderly completion of ongoing cases and procedures. It is also evident that there is support for the Government meeting our legal obligations under the withdrawal and separation agreements. This is exactly what the statutory instrument does.
The noble Lord, Lord Paddick, bemoaned the 50 different elements to the SI. Interestingly and unusually, there were no comments on this from the Secondary Legislation Scrutiny Committee. The noble Lord, Lord Reid, talked about the lack of time. I cannot deny that time is pressing; we need to establish and conclude these things before 31 December.
The noble Lord, Lord Mann, asked me a question about how many deals. It is impossible to say at this point. The focus is clearly to reach agreement, which we are working intently to achieve. I cannot comment beyond that. My noble and learned friend Lord Garnier made the correct point that criminals do not care whether we are in or out and will exploit any softening of co-operation. That is absolutely correct. I reassure my noble and learned friend that we will continue to work closely with our European partners to tackle our shared security threats and promote the safety and security of our citizens.
We have been negotiating an agreement on law enforcement and criminal justice to equip our operational partners on both sides. There is a good degree of convergence on the operational capabilities that the UK and EU have been negotiating, and we have been able to make progress since we began negotiating legal texts. It is clearly in the interests of both sides to reach an agreement.
The noble Lords, Lord Reid and Lord Rosser, talked about a day-one non-negotiated outcome. We must continue to prepare for all possible scenarios at the end of the transition period. In the event that it is not possible to reach an agreement, the UK has well-developed and well-rehearsed plans in place. They involve transitioning and co-operation with EU member states to alternative non-EU arrangements by the end of the transition period, where available. Broadly speaking, they would mean making more use of Interpol, Council of Europe conventions and bilateral channels. They are tried-and-tested mechanisms, which the UK already uses for co-operation with many non-EU countries. Interpol was the primary means by which the UK exchanged warnings and alerts with EU member states as recently as 2015, and we continue to work closely with the police and other law enforcement and criminal justice agencies in the UK, as well as the devolved Administrations, to ensure that we are ready for a range of possible outcomes at the end of the year.
The negotiators have been in contact almost every day since 22 October and they are continuing to work intensively to bridge the gaps that remain between us. There has been some progress in recent days but, as the noble Lord, Lord Reid, pointed out, time is now very short. We have been consistently clear that if we cannot reach an agreement that fully respects UK sovereignty, we will leave on Australia-style terms and prosper in doing so.
Law enforcement partners have been working for some time to transition to Interpol channels. We have established and funded the International Crime Coordination Centre to drive readiness. Alongside extensive domestic preparations, we are engaging bilaterally with member states.
The noble Lords, Lord Paddick, Lord Reid and Lord Rosser, talked about the loss of SIS II. We recognise the mutual loss of capability that UK non-participation in SIS II entails. As I have said, Interpol channels provide a tried and tested mechanism for exchanging alert information. It remains the primary means by which EU member states share information with partners within the EU and globally that do not have access to SIS II. We are committed to making our use of Interpol channels as effective as possible. All Interpol circulations received by the UK are now routinely made available at the front line for police and border officers. Measures such as the Extradition (Provisional Arrest) Act give our officers the power to act effectively on information received. The noble Lord, Lord Reid, asked about bilateral agreements as a fallback for losing SIS II. As I have said, there is extensive engagement around EU member states’ ability to use Interpol channels if no agreement can be reached on SIS II.
The noble Lord, Lord Paddick, referred to Neil Basu’s comments. The safety and security of our citizens is the Government’s top priority. If it is not possible to reach an agreement with the EU, the UK has well-developed and well-rehearsed plans in place. Broadly speaking, we would have to make more use of Interpol, Council of Europe conventions and bilateral channels. We want to continue to be a global leader on security and one of the safest countries in the world.
The noble Lords, Lord Reid and Lord Rosser, referred to the letter from Martin Hewitt. There is a good degree of convergence in what the UK and the EU have been negotiating in terms of operational capabilities. On law enforcement, it is self-evidently in the interests of both sides to reach an agreement that equips operational partners on both sides with capabilities to protect citizens and bring criminals to justice. We continue to work closely with the police and other law enforcement agencies in the UK to ensure that we are ready for a range of outcomes at the end of the year. As regards his comments on SIS II, we have always said that there will be some mutual loss of capability in the event that the UK no longer had access to it. That is why we offered to reach an agreement with the EU that delivers a similar capability. The European Commission has consistently maintained that it is not legally possible for a non-Schengen third country to co-operate through SIS II but we have maintained our offer to that end.
Noble Lords talked about the loss of the European arrest warrant and the diminishing of safety to that end. We have left the EU and the EAW is used exclusively by EU member states. Our proposals include greater safeguards than those within the European arrest warrant and the UK will continue to be, we hope, one of the safest countries in the world.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Ritchie, talked about Europol and Eurojust. We are not seeking membership of either agency. That is not how third-country arrangements with these agencies work. In line with the UK approach, our legal text provides for co-operation between the UK and Europol, and the UK and Eurojust, to facilitate multilateral law enforcement and criminal justice co-operation. The type of relationship that we are proposing is in line with third-country precedents, going beyond those only where it is in our mutual interests to do so.
The noble Baroness, Lady Ritchie, also talked about the Northern Ireland protocol. We are committed to implementing our obligations under the withdrawal agreement, and published a Command Paper in May that sets out the approach we will take. We have also laid secondary legislation to implement aspects of the withdrawal agreement to help provide certainty for businesses and citizens in Northern Ireland, to ensure that the statute book is fully functioning for the end of the year, and to discharge our obligations under the protocol.
As for our engagement with the devolved Administrations, the collaborative work with them on the secondary legislation programme covering devolved matters required for EU exit and during the transition period has been a success, with around 300 UK Government SIs laid with the agreement of the devolved Administrations. We have made no secondary legislation without the consent of the devolved Administrations.
We have engaged constructively with the devolved Administrations on readiness legislation, including sharing a list of all expected SIs to the end of the transition period that legislate in areas of devolved competence. Regular forums are held with them, at both official and ministerial level, for legislation to be discussed and any concerns raised. I know that the Home Office regularly meets about 20 delivery partners to review the preparations and monitor any risks, including any in relation to the PSNI.
The noble Lord, Lord Rosser, asked about transfers of passenger name records post transition period. In the event of a non-negotiated outcome, we will engage directly with all EU airlines operating to the UK to conclude arrangements for the transfer of PNR data to the UK in compliance with UK law requiring disclosure of data. The proposed agreements will set out the data protection safeguards operated by the UK that can enable EU airlines to disclose data in compliance with EU data protection legislation. It is a decision for each airline whether to conclude a data transfer agreement with the UK. In the event of a negotiated outcome, where there is a legally binding international agreement on PNR between the UK and the EU, transfers from EU airlines can continue without any issue. I hope that I have covered all the points that noble Lords have made, and I commend the regulations to the House.