Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)
(2 years, 9 months ago)
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Lord Ricketts
That this House takes note of the Report from the European Union Committee Beyond Brexit: policing, law enforcement and security (25th Report, Session 2019–21, HL Paper 250).
Lord Ricketts (CB)
My Lords, we are debating today one aspect of the security of the United Kingdom: the state of law enforcement and judicial co-operation with the EU. But we are doing so against the backdrop of Russia mounting the most serious aggression that we have seen in Europe since the Second World War. Every day, we see new horrors on our television screens. I regret personally that we have had so little time to debate these momentous events in this House, with just one debate in the last two weeks, but they put everything else into perspective and I believe that they are relevant to the debate that we are having today.
More than ever, we need both close co-operation with our neighbours to keep our own citizens safe and effective arrangements to enable desperate refugees to be able to come safely to this country. These objectives are intrinsically linked, as has been shown by the tensions with the French authorities over recent days over what I regard as the wholly inadequate arrangements that have been made in and around Calais for the reception of desperate Ukrainian families. Given the number of traumatised Ukrainian citizens now leaving the country, this flow of refugees is bound to continue for months, or conceivably years. We need to be working well with our EU partners if we are to avoid damaging the climate of confidence that is so important for good law enforcement and judicial co-operation.
To turn to the specific issues that we are debating today, our report formed part of a suite of reports by the European Union Committee. As a first-time chairman of a committee, I am most grateful for the wise counsel and friendly support that I received at all times from the noble Earl, Lord Kinnoull. The Security and Justice Sub-Committee must be one of the few in your Lordships’ House that never met in person. We came into being in April 2020 and had an entirely virtual existence until we were disbanded in March 2021, having published this report. I am grateful to all members of the committee, who adapted with great good humour to the oddities of the Teams environment. I am also grateful to our clerk team, about whom I will have a little more to say in winding up.
Our committee report was based on an intensive three-month scrutiny that we did at the end of 2020 and the beginning of 2021. We heard from a range of expert witnesses and from the Home Office Minister Kevin Foster, which was very helpful. We drew on a wealth of evidence that we had amassed during the year in which we watched the negotiation of the trade and co-operation agreement with the EU. We had a most helpful session with the then Home Office Minister of State James Brokenshire. I wish to put on record our thanks for his unfailing courtesy and support of our work in the committee, together with that of Home Office officials.
To turn to the substance of the report, my first point is that we welcomed the fact that an agreement had been reached which avoided an abrupt end to the years of effective co-operation that British policing had enjoyed with EU counterparts. We were very conscious when we produced the report that we were just at the start of implementing a series of complex and often novel measures and that it would be vital to scrutinise how they worked out in practice. I noted from the Government’s response to our report of 15 June 2021, for which we were grateful, that
“the indications so far are that, in general, the new arrangements are working well in practice.”
A similar comment came in the agreed statement from the first meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation of 19 October 2021, which said that
“overall, implementation … had gone well and that the agreement was operating effectively.”
Those are somewhat lapidary comments and I see the main purpose of today’s debate as giving the House more detail on how these various measures are working out in practice. I know that other noble Lords more qualified than me will delve into individual issues such as the successor arrangements to the European arrest warrant and the important area of EU-UK family law, which is vital to the lives of so many of our citizens, so I will concentrate on three other themes.
The first is the UK’s access to the EU databases and alerting systems, which British police relied on so heavily prior to our withdrawal. That is dealt with in detail in chapter 2 of our report. We welcomed the agreement that allowed the EU to continue access to the Prüm database of fingerprints and DNA. We noted, however, that this was subject to an
“evaluation visit and pilot run”
conducted by the EU into the UK’s handling of Prüm data. The deadline for this was 1 September last year; it was then extended to June 2022. Perhaps the Minister could assure us that the UK will meet all the requirements for continued access to Prüm, which remains vital, as I understand it, for crime scene investigations in this country.
One other important aspect is whether and how the UK will mirror changes made by the EU to the Prüm system. I quote paragraph 82 of our report:
“The Government told us that it will be a matter of ‘choice’ whether or not it remains aligned to EU legislation as it evolves.”
This is not a theoretical point. The Commission has already brought forward a regulation that would substantially reform the way the Prüm system works, including expanding it to cover facial recognition. Depending on how the Commission’s draft fares, the Government could soon be faced with that choice on whether to align. A process for doing that is set out in the trade and co-operation agreement, but will the Minister commit that the Government will keep the European Affairs Committee and the Justice and Home Affairs Committee closely in touch with their thinking, given the consequences of a decision not to align as the Prüm system evolves?
Our report welcomed the provisions in the trade and co-operation agreement for continued access to crime scene data through ECRIS and to passenger name record data on people arriving on flights from the EU, although I think that we are still operating under a derogation on passenger name recognition, which cannot go on indefinitely. However, we had more serious concerns about the alternative arrangements in place for the UK replacing those that were available under the SIS II—Schengen Information System II— information-sharing system. That was the system that UK police consulted over 600 million times in 2019. We concluded that the loss of SIS II by UK law enforcement
“leaves the most significant gap in terms of lost capability.”
The Government told us that they would be relying instead on the Interpol I-24/7 database. That requires EU member states to enter their alerts into both SIS II and the Interpol system, the so-called double-keying arrangement. Much therefore depends on the continued willingness of individual police officers to undertake that extra work. A recent report by the Centre for Britain and Europe at the University of Surrey, titled Border Trouble?, based on a lot of interviews with current law enforcement officers, contained some worrying evidence. One officer was quoted as saying that there were
“big question marks about whether Interpol would, over time, continue to give us the amount of detail as we had under SIS”.
Another commented that
“there is a huge absence of information that we previously relied upon”.
Could the Minister tell us whether the UK is indeed continuing to get the same volume of alerts and information from EU partners through the I-24/7 system? Could she also update the House on progress in ensuring very rapid transfer of information from I-24/7 to the police national computer? We were told that this would happen
“via policing systems within minutes … and … at the border within 24 hours”,
but for Border Force officials 24 hours feels like quite a long time in terms of delay in access to data. That covers the points that I wanted to make on access to systems.
Secondly, on data handling, the Home Office’s track record on handling personal data is frankly not flawless. Yet the importance of maintaining the highest possible standards is apparent from the fact that the whole of our justice and law enforcement co-operation with the EU could be put at risk if there was a “serious and systemic deficiency” in the protection of personal data by either party. Now that the UK is no longer a member of the EU, we are held to an even higher standard of personal data protection than when we were a member, because we do not have the so-called national security carve-out available to EU member states. The actions of the ECJ in twice knocking down EU/US data protection agreements shows the risks. Could the Minister assure us that the UK continues to be fully in line with the EU’s requirements for data handling for law enforcement?
Thirdly and finally, I turn to the state of the UK’s relations with Europol and Eurojust. We noted that the agreement enabled us to continue a close working co-operation, as the US and Canada have. I see that we now have in place a working arrangement for UK liaison officers. What we have lost inevitably is any role in the strategic management and administration of the two organisations. Could the Minister update us on how effective the co-operation with Europol and Eurojust is turning out to be? It might also be interesting for the House to hear what the impact on Interpol co-operation is in relation to the current sanctions on Russia, given that Russia is of course a member of the Interpol system.
That brings me back to the most important issue for our debate today: the continued scrutiny that will be necessary on practice as it evolves as these measures are used. I hope that the Government will provide the necessary information for that to both the European Affairs Committee and the Justice and Home Affairs Committee, so ably chaired by the noble Baroness, Lady Hamwee. The trade and co-operation agreement offers a set of arrangements that should in principle give us a good level of co-operation, but so much depends on not words on pages but operational contacts between individual law enforcement colleagues and the continuation of the habits of close working formed while we were a member. The climate of confidence in handling related issues such as refugees is also relevant. The challenge will be to maintain that level of practical problem-solving and good will in the years ahead. I beg to move.
Lord Bilimoria (CB)
My Lords, the security of the country always has been and always must be the number one priority of any Government, so I welcome the European Union Committee report, Beyond Brexit: Policing, Law Enforcement and Security.
Clearly, the trade and co-operation agreement that we negotiated with the European Union is very basic. It is almost the extreme opposite of the recently concluded Australia free trade agreement, which is probably the most comprehensive, wide-ranging, in-depth, modern free trade agreement in the world, covering every aspect. With the TCA, we have a lot to build on.
Part 3 of the TCA on law enforcement and judicial co-operation in criminal matters sets out the detailed, complex arrangements enabling effective co-operation on a range of policing and criminal justice measures. The committee welcomed a lot of the provisions, including the continuation of sharing passenger name record data, continued UK access to EU databases covering fingerprints, DNA and criminal records—these are absolutely essential—and the commitment to the rule of law and the European Convention on Human Rights. All of this is fine, but here is the big “but”: the agreement does not provide the same level of collaboration that existed when the UK was a member state. The best example is that involvement in Eurojust and Europol will no longer include a role in their overall management or strategic direction.
One of the most significant consequences of the UK now being a third country is the loss of access to the Schengen Information System—SIS II. The real-time access that it provides to data, persons, objects of interest, wanted people and missing people was completely and rightly emphasised by the committee. The effectiveness of alternatives comes nowhere near to it. Can the Minister confirm that that is the case and that the Government accept it? Again, the committee rightly said that lots of areas need to be kept under review.
Brexit has been concluded and yet it still comes up time and again, not least because the Northern Ireland protocol still needs to be resolved. The former Canadian Prime Minister Pierre Trudeau once said to his American neighbours:
“Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast … one is affected by every twitch and grunt.”
Whether we like it or not, the European Union is by far our biggest trading partner, right on our doorstep, next to us. Having a defence and security relationship is absolutely crucial. The 2021 integrated review of security, defence, development and foreign policy barely mentioned the European Union. Will the Minister confirm that?
As president of the CBI, I would like to focus on the national cyber strategy. I recently chaired a meeting with GCHQ. Why are the Government not doing more to promote the fantastic free resources that exist from GCHQ to help businesses of all sizes make the right decisions and be more prepared and resilient when it comes to cybersecurity? Cyberattacks are devastating, and now, with the Ukraine situation, it is even more likely that we will be hit by them. Will the Government do more to promote these amazing free-of-charge resources?
To conclude, I remember that during the Brexit negotiations I spoke to one of our most senior police officers in the country. This individual said, “If people realised what is at stake when it comes to security in our relationship with the European Union, they would be very concerned.” The Ukraine situation has now exacerbated this. We now need to build on our TCA and on the security relationships we have with the EU. The one word which stood out for me in the pandemic was “collaboration”—it is collaboration that works.
Baroness Goudie (Lab)
My Lords, I thank the noble Lord, Lord Ricketts, who chaired this committee in a masterclass way throughout Covid. I also thank the clerks and the technical staff of this House, because without them this report would not be here today. We had a marvellous period of time when we did not see each other but no meeting was missed and there were no real technical problems. I thank everybody who assisted us on that.
The Lugano Convention is not exclusively an EU measure. On the contrary, it creates common rules regarding jurisdiction and the enforcement and recognition of civil, commercial and family judgments across the EU and most of EFTA. It was concluded in 1988 as an international agreement and was given effect in the United Kingdom in 1991. However, the United Kingdom left it with Brexit. It can rejoin the convention, but only with the unanimous agreement of all the parties.
I support the United Kingdom’s intention to seek membership, but it is most unfortunate, to say the least, that the Government waited until April 2020. Accordingly, there has been an entirely avoidable hiatus between the end of the Brexit transition period and the safety net provided by the Lugano Convention and reciprocal enforcement. As the Government acknowledged, this means that issues relating to jurisdiction, recognition and enforcement are becoming more complex, in particular in child abduction cases and difficult family law and maintenance cases, and when one partner or another absconds, or both live in a different place and the children are here.
I have two questions. First, what are the reasons for this damaging delay? Secondly, what steps are the Government taking to engage with the EU, and in particular Denmark, to reach a satisfactory and speedy resolution? In the circumstances we have seen in the last few weeks, it is even more important that we come to a conclusion and that it is accepted.
Lord Anderson of Ipswich (CB)
My Lords, this country can be proud of its historic contribution to the EU’s joint effort on policing, law enforcement and security. We were not, of course, in at the start of everything. However, we can take credit for a great deal: the policy and legislative framework for countering terrorism, borrowed largely from our own; the reinvention of Europol as a vehicle for intelligence-based policing; the repurposing of Eurojust to accommodate our distinctive prosecutorial systems; the huge contribution made by our courts to resolving conflicts of laws under the Brussels convention and regulation; and the promotion of legislation—notably in relation to the use of data for crime-fighting—where UK influence in the Council and the Parliament gave much-needed emphasis to operational imperatives over some of the more academic notions of privacy.
All this provides a good example of the wider truth, perhaps better understood abroad than at home, that EU membership was not something sinister that others did to us but rather an effective vehicle for the export of British values and traditions to a reunited continent and a wider world. To be fair to the promoters of Brexit, the unravelling of police and judicial co-operation rarely featured in their vision of the sunlit uplands. The debate over the Protocol 36 opt-out had already convinced Theresa May and most others in government that the country’s security was better served inside than outside these EU mechanisms. Part 3 of the TCA was thus, to a large extent, an exercise in damage limitation with few, if any, gains to be expected. It is some comfort that, subject to anything the noble Lord, Lord Evans of Weardale, will say, co-operation between intelligence agencies will continue undiminished outside EU mechanisms.
I had the privilege of serving on the sub-committee that produced this report, chaired with deftness, humour and virtual conviviality by the noble Lord, Lord Ricketts, and serviced by our excellent staff. The litany of committees, contact points, liaison officers and double-keying described in its pages seems to me at least a poor exchange for the seamless operation and strategic leadership that we used to enjoy. Online crime in particular knows no borders, and policing needs to reflect that as far as possible, both at home and internationally. However, while there were predictable disappointments in the TCA, there were negotiating successes too. We have a solid base for closer integration in the future, although that integration is unlikely to be on British terms and its speed will no doubt be a function of political temperature as well as operational need.
I end with a few questions. Can the Minister tell us how the numbers of those being surrendered to the UK are holding up, given the loss of access to SIS II at the end of 2020 and the unwelcome fact that 12 member states, comprising more than half the population of the EU, have declared that they will be invoking their constitutional rules as a reason not to surrender their own nationals to the UK, or to do so only with their consent? Does the Minister know when the EU might, in the interests of its own people as well as ours, withdraw its short-sighted bar to UK accession to the Lugano Convention?
Lastly, Part 3 of the TCA depends on the maintenance of high standards on both human rights and the protection of personal data. Brussels is no doubt looking carefully at two recent consultations, by the Ministry of Justice on human rights reform, and by the DCMS, entitled Data: a New Direction. On data, the Centre for European Reform in a report of 15 November last year wrote:
“There are three scenarios, any one of which could kill the EU’s adequacy decision: the European Court of Justice … ruling that the UK’s intelligence gathering should have prevented the Commission granting adequacy; the Commission choosing to withdraw adequacy because the UK diverges too far from the GDPR in the future; or the UK unilaterally deciding to allow seamless transfers between the UK and third countries, which would probably compel the Commission to revoke the adequacy decision.”
Some of the proposals in the DCMS consultation seem in that context rather close to the bone. So my final question is: what assurance can the Minister give the House that Part 3 of the TCA will not be placed in jeopardy by the weakening of current protections for data and for human rights?
Lord Davies of Gower (Con)
My Lords, I begin by congratulating the committee on producing such a detailed and operationally relevant report that highlights the essential areas of operational policing, particularly where this concerns international cross-border working. I realise that we have moved on, but I make no apology for returning to the issue of the Schengen Information System, which concerned me greatly during the months leading up to the trade and co-operation agreement in December 2020.
There can be no doubt that, in adopting the Interpol database in lieu, the UK reduced itself to accepting a far less efficient and effective real-time system. As the report points out, the effectiveness of the Interpol system relies heavily on the willingness of EU states to additionally upload the same information on to it that they circulate on the SIS. Indeed, one senior police officer remarked to the committee that this was a significant loss of capability in terms of access to data.
It was also interesting to note the need to make technical improvements to the UK system so that the Interpol system is available to front-line law enforcement in minutes, as opposed to hours. I am therefore very keen to hear from the Minister what action has been taken to improve those technical issues and what information, if any, is available to identify any loss of effectiveness which may have been encountered by the surrendering of the SIS.
It was encouraging to note the warm remarks from law enforcement on the agreement on Prüm, allowing the exchange of information in relation to DNA, fingerprints and other essential data. However, future alignment in relation to Prüm is less clear.
As someone who worked in organised policing for many years in eastern Europe, I was saddened to note the remarks on the UK’s future role in Europol. Professor Mitsilegas remarked that he did
“not think it will be the same, which it is a great shame, because Europol is a great example of the UK’s influence in justice and home affairs”,
a
“model of intelligence-led policing that has largely been exported from the UK to the EU, and now, sadly, you are a third country.”
Another witness also
“regretted the diminished influence the UK would have as a third country in Europol”,
saying:
“This is a clear demonstration of that operational downgrade, and it is particularly unfortunate in the context of Europol, because the UK has played such a significant role in the future direction and intelligence-led policing focus of Europol.”
Mr Rodhouse of the NCA highlighted in particular that the UK would not
“be part of the Europol management board in the future”—
something that I bitterly regret, and I support all those comments.
Can the Minister give me and, indeed, the House an assurance that while we still have the UK Liaison Bureau, our relationship with Europol will be even further improved as we head into uncharted territory with issues on our borders with organised criminality as a result of the implications of the war in Europe and refugees fleeing hostilities?
This is an excellent report and gets to the nub of the matter in relation to problems raised as a result of our exiting the European Union. I am pleased to have been able to highlight just a couple of them and look forward to what the Minister has to say in reply.
Baroness Hamwee (LD)
My Lords, although time is short, I want to acknowledge the splendid work of all the committee staff. It is invidious to pick out one, but I shall be invidious. I have become much more aware than I used to be how much a committee relies, without knowing it, on its committee assistant—in our case, the wonderful Amanda McGrath, whose title is now committee operations officer of the Justice and Home Affairs Committee. We also had a splendid chairman. As you would expect, the noble Lord, Lord Ricketts, deployed his powers of diplomacy and ability to find forms of words that left everyone satisfied.
To go straight to the impact of one aspect of legal procedure post Brexit—already referred to, but it merits emphasis—I give three examples. Pre Brexit, an English claimant involved in an Italian road traffic accident would have issued his claim against the motor insurer out of the English courts. Now, he might get a judgment that the Italian courts will not enforce. Following an accident at work in Sweden with Danish defendants, there is a good argument for jurisdiction in England, and the victim, who suffered head and lower limb injuries, would not need to travel, but again, there are enforcement problems because of procedural rules on the causation of injury in Denmark. Thirdly, the variation of an English maintenance order following a divorce five years ago is in court because of the uncertainty in the UK about the law regarding jurisdiction for maintenance claims. These three are all current examples of the time, money and emotional energy that is expended, and the involvement of the higher courts sorting out jurisdiction problems.
Well before we left the EU, legal practitioners foresaw problems for their clients—it is important to emphasise this: this is not a lawyer’s point—arising from the loss of the Brussels regulation, particularly in the areas of family law, child maintenance, international child abduction, divorce and personal injury. At the time of the negotiations, the Government, in the person of the then Advocate-General for Scotland, were sanguine about the workability—the user-friendliness, if you like—of what our report describes as
“a more complex and less effective web of international conventions and instruments.”
That web includes the Hague conventions—better than nothing, but far better is the Lugano convention, but that requires all current members to agree to UK membership. One member is the EU as an entity, not the member states; it has not agreed.
I wrote to the chairman of the relevant committee of the European Parliament before the decision but when it seemed to be coming over the horizon, committee to committee, urging its support for EU acceptance, as the citizens of all EU member states are affected, as much as UK citizens. He replied, quoting the Commission, that it recalled that
“the Lugano Convention supports the EU’s relationship with third countries which have a particularly close regulatory integration with the EU.”
Regulatory integration: this is the block.
The Brussels office of the UK law societies, to which I am very grateful, said that it “can’t complain about the MoJ’s commitment”, but that the position is affected by the state of the relationship between the UK and the EU, in particular, regarding Northern Ireland. Other noble Lords have referred to that relationship. Apparently, it thought that when France no longer holds the presidency of the Council, the Czech and Swedish presidencies which are to come will be more amenable.
What a sorry position. It is individuals who suffer. I know that this is not a Home Office responsibility, but, answering for the Government, I hope the Minister can comment in a positive fashion.
Lord Evans of Weardale (CB)
My Lords, I congratulate the committee on a very insightful and positive report. I also give credit to the Government for the trade and co-operation agreement, which has avoided some of the most acute risks that came about to information sharing through the departure from the European Union. In particular, I cite the European arrest warrant, which was one of the most important of the measures for international co-operation, and certainly had national security benefits, as well as routine policing benefits. The new arrangements at least ensure some hope that that sort of arrangement can continue.
I also give a lot of credit to the outcome with regard to PNR data, given that, in my view, the EU has always had a rather disproportionate focus on data protection issues in comparison with the many other national and public goods that need to be considered.
Nevertheless, it is quite hard to see an upside in the overall arrangements as they now exist in comparison with the ones that were previously in place. For instance, I note the creation of the national contact point for policing liaison internationally, which has a strange similarity to the arrangements that were in place before 2009 when Europol was fully integrated into the EU structures.
The report does not address national security co-operation and information sharing at the intelligence level for the clear and straightforward reason that intelligence sharing is not a Community area of competence. Again, I give credit to successive Governments for ensuring that intelligence co-operation stayed outside the European Community’s competence. There were pressures in the other direction, but successive Governments were robust in ensuring that we maintained control of our national security; for a variety of reasons, that has turned out to be exactly the right decision. The UK therefore remains within the non-EU intelligence-sharing arrangements in Europe. I am sure that this goes a long way to ensuring that relevant national security information that is important to us but also important to our European friends will continue to flow. The UK has always been an active and influential participant in those structures; I am sure that that continues to be the case.
The area that continues to concern me is that we are no longer a voice in policy development in Europe. For instance, if you look at the PNR arrangements, the lobbying of the UK some years ago was an influential part of those structures and agreements being implemented. There is therefore a heavy responsibility on the Government to ensure that we continue to make the case as effectively as we can; that we are forward-leaning in our engagement with the European structures; and that we use the TCA as a foundation on which we can continue to build because there is no question but that our security in the United Kingdom is heavily dependent on our secure environment and neighbourhood, and that we need to ensure that our security, allied to that of our European neighbours, is as well integrated as it can possibly be.
Lord Hannay of Chiswick (CB)
My Lords, the report we are debating, so well introduced by my noble friend Lord Ricketts—I was his predecessor but three as chair of that sub-committee—may be a bit dated, unfortunately like most of the reports we debate these days, but it brings home one very salient point: our country’s internal security is closely bound up with that of the rest of Europe, and the battle against serious international crime will be won only if we co-operate closely together. That has been the view of this House since the joint reports produced by the committees chaired by the noble Lord, Lord Bowness, and me in 2013-14. I hope that the Minister will confirm that this remains the Government’s view, now encapsulated in the welcome internal security provisions of the trade and co-operation agreement with the EU.
Of course, we have lost quite a bit of that co-operation along the way. Other noble Lords have referred to what we have lost: full membership of Europol and Eurojust; automatic access to the Schengen Information System; and, most damaging of all, participation in the European arrest warrant. There are quite a few disbenefits there for the new Minister for Brexit Opportunities to reflect on. The fact that several member states of the EU will not extradite to us indicted criminals who are wanted for committing crimes here and vice versa, which was provided for by the EAW system, is a real loss. Can the Minister say how many cases of a refusal to extradite have been experienced in the first year of the operation of the new arrangements and how well the replacement arrangements are working, in particular with Ireland? In that context, how will the Government handle the fact that Ireland is admitting Ukrainian refugees without a visa whereas we are insisting on them having a visa but we are both in a common travel area? How will that work?
There are also two important loose ends waiting to be tied up if the TCA package is to be complete. They are both currently covered by temporary interim arrangements, one of which cannot be prolonged beyond the middle of this year. The first, as several noble Lords have mentioned, are the Prüm provisions for exchanging vital crime-fighting DNA and number-plate information. The second is the passenger name recognition system for airline passengers, to which my noble friend Lord Evans referred; when I chaired the sub-committee, we played an active part in pressing the EU to bring these provisions into force. Can the Minister tell the House what the state of play is on tying up those two loose ends? Can she confirm that it is the Government’s firm determination to see the process successfully completed?
This leaves perhaps the trickiest aspect of all: how to ensure that effective co-operation continues as the EU’s law enforcement machinery and our own evolve. The JHA machinery is not static; nor are the activities of the international criminals whose aim is always to keep one or more steps ahead of the law and its enforcement. How is our co-operative machinery, with several moving parts, to be handled in future? Are the processes provided for under the TCA, with its cat’s cradle of joint committees, adequate and prepared to take the strain and ensure that we do not just drift apart through inadvertence? Improvised co-operation on the spur of the moment during some pressing crisis is surely not going to be the best way to achieve that. Can the Minister tell us how this aspect is being provided for and what the possible consequences would be if the UK’s overall data-processing arrangements caused us to be considered no longer adequate? The noble Lord, Lord Anderson, referred to that.
Finally, how do the Government intend to keep Parliament—in particular your Lordships’ European Affairs Committee, on which I have the honour to serve—informed and consulted about what is going on in this vital area?
Lord Paddick (LD)
My Lords, I thank the European Union Committee for its thorough report on the impact of Brexit on policing, law enforcement and security. As noble Lords might expect, I intend to concentrate on crime and policing. Quite remarkably, in the five minutes she was given, my noble friend Lady Hamwee comprehensively covered the civil law implications.
There is good news and some worrying news. I remember that, at a meeting of the All-Party Parliamentary Group on Policing before Brexit, we were briefed by the senior officer responsible for Brexit at the National Crime Agency on the likely consequences of Brexit for policing and security. He gave a very depressing account. So, as I say, there is some good news and some worrying news as far as the comparison with what was predicted is concerned. In particular, the continued access to DNA, fingerprint and vehicle data through Prüm—it is subject to a pilot; I share the concern of the noble Lord, Lord Ricketts, about when that might be completed—is something that we might not have expected to keep.
Although the Government have secured an extradition agreement to replace the European arrest warrant in under a year, where it took Norway and Iceland a decade, as anticipated it is only a partial replacement. On the replacement, I am somewhere between the enthusiasm expressed by the noble Lord, Lord Evans of Weardale, and the dismay of the noble Lord, Lord Hannay of Chiswick. A total of 10 EU states have confirmed that they will not extradite their own nationals to the UK, and two more will extradite only following a political decision to extradite, rather than a wholly judicial one, as the noble Lord, Lord Anderson of Ipswich, mentioned. Concerns when we were in the European Union about a lack of protection for UK citizens subject to European arrest warrants appear to be made worse by the new arrangements. A theme during my remarks will be whether noble Lords should be delighted that things are not as bad as we thought or whether they are better than expected. However, I agree with the noble Lords, Lord Evans of Weardale and Lord Anderson of Ipswich, that security service co-operation has always been on a bilateral basis, and will continue to be, and will be largely unaffected by Brexit.
Going back to the arrest warrant, it appears that EU courts could refuse to extradite suspects to the UK if they are concerned about the UK judicial system, but UK courts could not do the same if they had concerns about the judicial system of an EU state, under the terms of the new agreement. It is clearly a second-class arrangement compared with the European arrest warrant.
As predicted by the senior officer from the National Crime Agency, involvement in Europol and Eurojust has gone from the UK being in the driving seat on strategy and priorities for these organisations to being in a similar position to non-EU members of the EEA; that is, being involved but not participating in such decisions.
Again, as anticipated, the UK will no longer have access to the Schengen Information System, SIS II, and the workaround sounds worrying. Instead of details of wanted and missing persons, terrorism suspects and other alerts being instantaneously available to operational law enforcement officers through the police national computer, the new arrangements rely on EU states double-keying the information into the Interpol I-24/7 system, as the noble Lord, Lord Ricketts, mentioned. Although work is in train to establish an automated system to transfer the data from the Interpol system to the PNC in the UK, relying on EU states to invest significant resources to double-key data into a system that they do not need seems a big risk. Even if they see the need, if the UK is to reciprocate by entering data into the Interpol system, there is no guarantee that they will do so, or do so in 100% of cases, and within a reasonable timeframe, when they have access to the same data via SIS II.
There is also the overarching risk around data adequacy. Although the agreement with the EU is not dependent on data adequacy decisions, it can be suspended if, as the noble Lord, Lord Ricketts, said, either party demonstrates a serious and systematic deficiency in respect of the protection of personal data, including where this has led to a
“relevant adequacy decision ceasing to apply.”
Again, as anticipated, as a third country the UK is held to a higher standard on data protection than a member state, as other noble Lords have said, but no longer able to benefit from the national security exemption which applies to EU states. In that respect, the use of bulk data by the security services may be of concern, and concerns have been raised in the past about the handling of data by the Home Office. The European Data Protection Supervisor has published an opinion on the trade and co-operation agreement which expresses concern about some of the data protection safeguards in this area.
In relation to data protection, perhaps more than any other aspect of Brexit, despite leaving the EU, the UK will have to comply with current and future EU regulation, or risk losing access to data that is vital to our security and the effectiveness of our law enforcement agencies.
Some of the anticipated devastating impacts of Brexit on the security of the UK have been overcome in some respects, mitigated in others, and are in a precarious state in relation to some other important issues. The need for close and continued parliamentary scrutiny is clear, and this report is an important start to that process. However, as the noble Lord, Lord Ricketts, has said, much depends on the operational working and co-operation of law enforcement officers. British police officers have always had a can-do attitude, but I remain concerned that EU-UK agreements may yet thwart UK law enforcement officers’ willingness to achieve pre-Brexit levels of performance.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Lord, Lord Ricketts, for his introduction to this report. It is a comprehensive report, even though it is a year old. The introduction of his speech today was particularly appropriate, putting the details in the report into the wider context of the terrors and horrors that we are seeing in eastern Europe as we speak.
This area of concern was not necessarily one which received the most headlines when the Brexit deal was being negotiated and agreed, but as we have heard today, it is crucial, and stark warnings were given at the time about the challenges that it would create. The noble Lord, Lord Anderson, described the TCA as a damage limitation exercise, and the noble Lord, Lord Paddick, said that it was not as bad as it might have been.
Although this report and its subjects can appear to be quite technical, they are vital for front-line policing and for keeping people safe. Neil Basu, while head of counterterrorism policing, warned that none of the replacements for lost EU tools was as good as the security protocols that we had in place. I was struck by the quote in paragraph 65, from Assistant Chief Constable Ayling, who describes the arrangement for Interpol access to replace SIS II as one that
“falls a long way short of the benefits provided by SIS II. However, it is sufficient, in that it enables us to discharge our responsibilities effectively, and it delivers a mechanism whereby we can cooperate.”
It is a difficult reality if we have to accept what is sufficient rather than what is optimal.
I welcome the deal that was reached. The report outlines some of the strengths of the co-operations that it is has allowed us to replicate, in areas such as passenger name records data and criminal records data. The report was published this time last year, so this is an opportunity for the Minister to update the House on how the negotiations have proceeded since then. The simple headline concern is that the tools we have lost access to—namely, SIS II—have left law enforcement trying to work with slower, more cumbersome systems.
On Interpol, can the Minister give an update on the Government’s success in persuading European partners to double-key information, which means duplicating work, as the noble Lords, Lord Ricketts, Lord Paddick and Lord Davies of Gower? The Committee said:
“We did not receive any clear evidence from the Government on how it planned to secure such commitments from EU member states to do so.”
Also on Interpol, can the Minister give an update on the technical improvements which are under way to reduce the time of uploading Interpol notices on to the police national computer?
Last month, an update on the I-LEAP programme was published by the accounting officer for the Home Office. The update says that:
“The I-LEAP programme will provide new alerting digital platform capabilities to police and border officers in the UK, and to their equivalents in partner countries, enabling increased opportunities at the national border or within country to identify persons and objects of interest to law enforcement agencies … In the longer-term I-LEAP will also enable real-time bilateral alert exchange with key international partners who share the UK’s interest in further strengthening alert-sharing capabilities.”
The question for the Minister is: how long is “in the longer-term” in this context?
On feasibility, the I-LEAP update states that the Government’s proposal is
“to conclude one bilateral agreement with another State every year from 2023 at the earliest”.
It goes on to say that the
“I-LEAP programme is heavily dependent upon the UK securing bilateral agreements with other countries and that this may impact the realisation of the programme’s benefits.”
Does the Minister believe that the Government will reach that target? How is preparation going and have bilateral talks started yet?
Moving on to civil and family questions, I thank my noble friend Lady Goudie and the noble Baroness, Lady Hamwee, for setting them out in more detail than I can do now. Basically it is about the application to the Lugano Convention. I understand that we are remaining a member of the Hague convention. What is the position now? My noble friend Lady Goudie and the noble Baroness, Lady Hamwee, asked about Denmark and the EU with regard to their reaction to our application. I shall just mention that, as I have said in other contexts, I sit as a family magistrate and one of the things I do is reciprocal enforcement of maintenance orders. This is specifically when we are trying to enforce maintenance orders within the EU and outside it. That work is continuing, but it is a bureaucratic process, and I look forward to the Minister’s reassurance. It certainly should not get any more complicated because it is very complicated at the moment to do procedural enforcement. I thank the noble Lord, Lord Ricketts, for his report.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I join noble Lords in thanking the noble Lord, Lord Ricketts, for securing this debate. I also thank those who contributed to the former European Union Committee’s thoughtful and insightful report Beyond Brexit: Policing, Law Enforcement and Security, which was published in March 2021. I echo his words on Ukraine. It is important that we work with our EU partners, particularly at the moment, and that we are a united force in efforts to support Ukraine and to support the refugees fleeing from Ukraine. I updated the House yesterday on the number of visas issued, which as of yesterday morning was 1,305. That figure is going up rapidly, which is a good thing.
The Government responded to the report at the time, but it is welcome that time has been found to discuss these important matters more fully. The report was informed by the work conducted by the Security and Justice Sub-Committee, which the noble Lord, Lord Ricketts, previously chaired. I pay tribute to the breadth of expertise on that committee, which has been replicated in its successor, the Justice and Home Affairs Committee.
The Security and Justice Sub-Committee’s work was instrumental in supporting parliamentary scrutiny as we sought to consider, and ultimately negotiate, our new relationship with the EU on law enforcement and criminal justice matters. To echo the words of the noble Lord, Lord Ricketts, and others, I am very pleased to be able to speak to this as it informs a lot of the aspects of my work and it has not been much debated in Parliament. Before we start, I also want to echo the points made by the noble Lord, Lord Evans of Weardale, on national security and intelligence sharing. The decisions about that are outwith the TCA and the EU, and that is a very good thing.
I will start with law enforcement and criminal justice in the TCA before responding to some of the points made during this debate. On the deal we secured, the Government were very clear in wanting to deliver a security deal with the EU that gave our law enforcement the tools and the co-operation it needs to keep the public safe. That is what we delivered. The UK-EU TCA was signed in December 2020 and was implemented in domestic law via the European Union (Future Relationship) Act. Part 3 of the TCA established our new law enforcement arrangements, and they are the terms we have been operating under since 1 January 2021. I think noble Lords will bear in mind that this period coincided with a global pandemic, so in some ways time will tell better how this is operating because we have been in such an unprecedented environment.
The agreement was unprecedented for the EU in terms of co-operation with a third country, and through it we were able to secure a high level of co-operation on key capabilities, including: streamlined extradition arrangements, arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies; arrangements enabling the continued, fast and effective exchange of national DNA and fingerprint data and future exchange of vehicle registration data via the Prüm system; arrangements enabling the fast and effective exchange of criminal records data; and arrangements providing for continued transfer of passenger name record data from EU airlines. We were pleased to see that the report broadly welcomed these arrangements and the co-operation that they facilitate.
The operation of the new arrangements has been discussed positively and negatively in the debate. I am pleased to note that during the first meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation, the UK and EU agreed that overall implementation of the law enforcement and criminal justice part of the TCA has gone well and that the agreement is operating effectively. For example, the exchange of DNA and fingerprint data continues. Since connecting to the Prüm biometric data-sharing system in July 2019, the UK has received more than 13,000 DNA and fingerprint matches from EU member states. EU member states have collectively received more than 45,000 matches from UK data over the same period. This allows UK and EU law enforcement to progress serious cases where crime scene evidence would otherwise be unidentified, such as in rape and murder cases.
Significant volumes of criminal record data continue to be exchanged between the UK and EU member states, enabling us to better protect the public. Between April and June 2021, we received around 3,500 conviction notifications from EU member states relating to UK nationals. This compares with around 2,500 notifications for the same period in 2020. UK law enforcement and criminal justice partners also continue to co-operate via EU agencies Europol and Eurojust, including on issues such as small boats. The transfer to the UK of PNR data for flights between the EU and the UK continues. Processing of PNR data during 2021 enabled the disruption of several hundred attempts by organised immigration crime groups to facilitate the illegal entry of individuals to the UK on scheduled flights.
Since the committee’s report was published, a number of the outstanding issues the committee noted have been resolved. The Partnership Council, the mechanism for supervising and overseeing operation of the TCA, has been established and met for the first time in June 2021. The Specialised Committee on Law Enforcement and Judicial Cooperation has also been set up and met for the first time in October 2021. The agenda and minutes were made available to Parliament and published on GOV.UK.
As foreseen in the TCA, we have signed working arrangements with Europol and Eurojust. These came into effect last year and set out the practical and operational detail of co-operation under the TCA, putting operational co-operation with these institutions on a firm footing for the future. We have also made important progress concerning the evaluation of our DNA and fingerprint capabilities under the Prüm system, as required by the TCA.
While the terms of our co-operation with EU member states may have evolved, shared threats remain ever present. Clearly, Russia’s invasion of Ukraine, a flagrant breach of international law and norms, is a stark reminder of that. I hope I have made it very clear to noble Lords that the UK is firmly committed to co-operating with our EU partners on matters of shared security. The TCA puts us in a very strong position from which to move forward.
I turn now to some of the specifics raised by a number of noble Lords, in no particular order. I think the most commonly asked question was about our disconnection from SIS II. The EU took the position throughout negotiations on the TCA that it was legally impossible for a third country outside the Schengen area to participate in SIS II. That means we have returned to co-operating with EU member states via Interpol, as we did before 2015, and bilateral channels, as we have done throughout with other international partners outside the EU.
Having now returned to Interpol channels, we are routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. We are also investing in longer-term technical capabilities to support law enforcement and data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.
The noble Lords, Lord Anderson, Lord Ricketts and Lord Paddick, and maybe others, asked about Interpol and double-keying. We are committed to working with the wider international community to ensure that Interpol continues to be an effective tool for law enforcement co-operation. For example, the Government secured commitments at the meeting of G7 Interior Ministers in 2021 to enhance the effectiveness and operational value of Interpol’s tools and capabilities.
On the differences between data being available via Interpol versus what was previously possible with SIS II —I think this goes some way to answering the question from the noble Lord, Lord Ponsonby—there is an automated upload of incoming Interpol circulations to domestic systems. Information is available via policing systems within the hour of receipt. If the NCA is notified that a case is urgent, specific alerts can be uploaded to domestic systems more rapidly. As noble Lords touched on, we are also investing in longer-term technical capabilities to support law enforcement data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.
On progress on I-LEAP, the first priority of the programme is to further enhance connectivity to Interpol. We recently launched two pilots that are testing I-LEAP’s real-time connection to Interpol alerts on subjects of interest in a live environment. Its gradual rollout to UK policing will commence later this year, following the conclusion of the two pilots.
Several noble Lords referred to the new extradition arrangements we have put in place. The agreement with the EU provides for streamlined extradition arrangements based on the exchange of warrants between judicial authorities, similar to the EU’s arrangements with Norway and Iceland. They will enshrine key domestic extradition safeguards that were previously not contained in the EAW, or European arrest warrant, framework decision. This includes making it clear that a person cannot be surrendered if their fundamental rights are at risk, if extradition would be disproportionate or if they are likely to face long periods of pretrial detention. We estimate that these new arrangements are functioning well. Since January 2021, arrests on extradition requests between the UK and the EU and vice versa have continued, and cases are proceeding through the courts.
On extradition disruption, there are some very specific issues concerning a handful of member states’ operation of the new extradition arrangements. These issues have largely been resolved. Where this remains live with one member state, we continue to engage to resolve this as swiftly as possible.
The noble Lord, Lord Anderson, asked about bars on extradition of own nationals. They are a common feature of arrangements outside the EAW, which neither the UK nor the EU sought to retain during the Brexit negotiations. That is why the TCA enables countries with a relevant fundamental principle or practice of their domestic law to refuse to extradite their nationals to face trial or serve a sentence.
Through the TCA we have ensured that alternative paths to justice are available for those who want to face trial. The agreement provides for a mechanism whereby a person could be extradited to the UK, face trial then return to their home country to serve their sentence.
The noble Lord, Lord Hannay, asked about statistics on this. The NCA, the National Crime Agency, is responsible for the collation and publication of data relating to extradition requests to and from the UK and EU member states, and it publishes the data on an annual basis. The last set of data was published in May 2021, and I understand that the next set is due to be published in spring 2022.
Noble Lords asked about the extension to the Prüm evaluation period and whether the EU could suspend Prüm co-operation. The EU and the UK mutually agreed to trigger the provisions in the TCA, which had foreseen that an extension might be necessary. Prüm DNA and fingerprint exchanges are continuing as normal. Following the visit of the EU evaluation team to the UK on 23 to 25 November last year, I remain confident that the UK will satisfy the requirements of the EU evaluation in this area and retain access to DNA and fingerprint exchange capabilities.
The noble Lord, Lord Ricketts, asked why the UK does not exchange vehicle registration data with EU member states under Prüm. We are working with the DVLA and UK policing partners to prepare our systems for connection. The UK will be required to undergo a pre-connection evaluation, including test exchanges and a pilot run, when the time comes.
The implementation period for PNR data transfers has been extended. We agreed an implementation period while the UK scopes, designs and implements a capability that meets the new and unique requirement in the TCA for deletion of EU PNR data that does not need to be retained.
The noble Lord, Lord Ricketts, and other noble Lords also asked about Europol and Eurojust. The agreement provides for a relationship with Europol and Eurojust that reflects the scale of our contribution to the work of the agencies and facilitates continued close and effective co-operation. For example, it preserves the UK’s access to Europol’s core capabilities, including the presence of a UK liaison bureau in agency headquarters and access to the agency’s valuable multilateral co-ordination and analytical functions. It also demonstrates the UK and EU’s intent to ensure that data exchanges happen as quickly as possible.
On our relationship with Europol, which both the noble Lord, Lord Ricketts, and my noble friend Lord Davies of Gower asked about, the UK co-operates closely with Europol via the terms of the TCA as well as the UK-Europol working and administrative arrangement, in a way which protects and enhances respective capabilities.
I am running out of time, but I want to say something about Russia and the relationship with Interpol. We will continue to work with Interpol to uphold the organisation’s integrity and to ensure that members are not able to misuse its systems for illegitimate purposes. We are confident that, with strong, continuous support from the UK and our international partners, Europol’s robust checks and mechanisms will be sufficient to prevent misuse of its systems by any member.
The noble Lords, Lord Anderson and Lord Ricketts, asked about data adequacy. Our data protection standards were rightly recognised in our adequacy decisions secured in June of last year. We remain committed to high data protection standards, and this commitment is reflected in the data protection safeguards incorporated into the TCA. Adequacy decisions complement the TCA, which delivers a comprehensive package of capabilities that ensure that we can continue to work with counterparts across Europe to tackle serious crime and terrorism, protecting the public and bringing criminals to justice.
On Part 3 of the TCA—law enforcement and criminal justice provisions—we agree that good data protection underpins international law enforcement co-operation, which is why the UK is firmly committed to maintaining high data protection standards now and in the future. Co-operation under Part 3 is not dependent on adequacy, and there is no legal link between the two. This would have been unprecedented for an agreement of this nature. The noble Lords, Lord Hannay and Lord Ricketts, asked a pertinent question on DCMS data reform. The EU rightly recognised our standards during the adequacy assessment process, but, as the European Data Protection Board and the European Commission have reiterated, a third country does not need identical legislation to be considered equivalent.
I turn finally—as I am out of time—to the Lugano Convention. The noble Baronesses, Lady Goudie and Lady Hamwee, and the noble Lord, Lord Ponsonby, asked about this. The UK’s application to accede to the convention is sensible and pragmatic, and forms a good basis for continued civil judicial co-operation. It is clearly in the mutual interests of the UK and EU/EFTA citizens, families and businesses. It is an international agreement specifically open to third parties with no requirement for single market membership, and the UK meets all the criteria for accession. Switzerland, Norway and Iceland have consented to the UK joining but, on 23 June last year, the European Commission issued a formal diplomatic note to the Swiss depositary, stating that the European Commission was
“not in a position to give its consent”
to UK accession. This means that the depositary cannot at present invite the UK to join. Several member states see value in our accession to the Lugano Convention and express warm support while others are still undecided or, we might say, lukewarm. We will continue to engage with EU member states about our Lugano application but, given the EU’s stated position, it does not seem likely that they will consider our application at this time.
In concluding, I thank noble Lords, particularly the noble Lord, Lord Ricketts, not only for their contribution during the debate but for the insight, dedication and hard work that has gone into producing the Beyond Brexit report.
Lord Anderson of Ipswich (CB)
Before the Minister sits down, she made a most intriguing reference when discussing extradition to a small handful of states where specific problems had presented themselves, and to one state, if I heard right, where those problems continue. Is she able to be any more specific?
Baroness Williams of Trafford (Con)
I wondered if the noble Lord might intervene on that. Yes: it is Cyprus.
Lord Ricketts (CB)
My Lords, I thank all the participants in our debate this morning, which has been substantive and wide-ranging. The details are certainly technical, but the subject is vital for the security of citizens in this country and in the EU. I start by thanking the Minister. We are all aware of the huge load that she is carrying with three major pieces of legislation on her plate and a series of late nights this week; yet, I hope she will not mind me saying, she was her usual cogent, comprehensive and collegial self at the Dispatch Box this morning, and we have covered a great deal of ground.
Secondly, as the noble Baroness, Lady Hamwee, has also done, I want to thank the staff of our committee: our clerk, Simon Pook, our legal adviser ,Tim Mitchell, our policy assistant, Genevieve Richardson, and our committee assistant, Amanda McGrath. They took on a large extra burden due to the fact that we only ever met virtually; I think that is true for staff throughout the House. They were themselves working from home, often not in ideal conditions. Many of them had to re-role as IT technicians as well as using their other skills. The House owes our staff a real debt for the load that they have carried during this extraordinary period.
I will not prolong the debate but pick out just three or four very brief themes: first, the importance of sustaining practical co-operation at the operational level and the risk that we may pull apart over the years because we are not part of the management and administration of these EU measures and instruments. Secondly, a number of noble Lords made the point that the TCA is a foundation on which we can build closer co-operation in areas where there are gaps at the moment. Thirdly, it is a fragile foundation in the sense that, as the noble Lords, Lord Anderson, Lord Paddick and others have said, it does depend on continued EU confidence in the UK’s high standards, both in human rights legislation and in data protection; I hope that is something that the Government will continue to bear very much in mind.
There are a number of continuing areas of concern such as family law, which the noble Baroness, Lady Hamwee, explained to us so clearly, and the operation of the surrender agreement, all of which underlines the need for this House and its committees to continue to scrutinise this important area of co-operation and all the different arrangements that we have discussed today.