Brexit: UK-EU Security (EUC Report)

Baroness Prashar Excerpts

Tuesday 7th February 2017 Lords Chamber

Moved by

[Baroness Prashar]

That this House takes note of the Report from the European Union Committee Brexit: future UK–EU security and police cooperation (7th Report, HL Paper 77).

[Baroness Prashar (CB)]

My Lords, it is a real pleasure to open this evening’s debate, and I am grateful to the noble Lords who will contribute to it. We often talk about bringing expertise to bear when we explain what this House has to offer. That expertise will be very much in evidence this evening when we hear from a number of former practitioners, including: two former commissioners and a former deputy assistant commissioner of the Metropolitan Police; former Home Office Ministers and advisers; former Members of the European Parliament; a former justice of the Supreme Court; and my distinguished predecessor, the noble Lord, Lord Hannay. I thank the members of my sub-committee and its excellent clerk, Julia Labeta, for their hard work and commitment in ensuring that the report was produced in time for consideration.

In their White Paper The United Kingdom’s Exit from and New Partnership with the European Union, the Government emphasise that:

“The safety of the UK public is the top priority”,


and that must be right. It is also why we chose to look at police and security co-operation as the first of our Brexit-related inquiries and explore the options available to the Government for retaining or replacing them when the UK leaves the European Union. We wanted to make a constructive contribution to the development of the UK’s negotiating position and inform both parliamentary and public debate.

In view of the importance that the Government attach to the security and police co-operation aspects of the UK’s withdrawal from the European Union, we were very struck by the fact that in the referendum campaign these had not received the attention they deserved from either side. It is tempting to regard this as a technical subject that can be left to the practitioners. The evidence we heard during our inquiry left no room for doubt that the European Union tools and institutions used by our law enforcement agencies are integral to the day-to-day work of police forces and prosecutors up and down the country. What is more, the nature of the threats we face, particularly from terrorism, has made cross-border co-operation essential. Our own country’s security is enhanced by living in a secure neighbourhood, and we will therefore always have an interest in the internal security policies of our nearest neighbours, even after we leave the European Union, and they in ours.

On the whole, that point is well understood, but it appears to have led to a slight sense of complacency, not necessarily in the Government, and certainly not in the practitioners from whom we heard, but in public debate about how negotiations on this aspect of our future relationship with the European Union will unfold. There seems to be a sense that, because the UK and the EU 27 share a strong mutual interest in sustaining police and security co-operation, a positive outcome is inevitable. However, having examined the practicalities of arriving at that positive outcome, we were not quite so sanguine, and for that reason I was not surprised to see the Government’s White Paper listing,

“the way in which we cooperate on criminal … justice matters”,

among areas where a phased process of implementation may be required.

The vital thing to bear in mind is that, when it comes to police and criminal justice measures, we have already been through a mini-Brexit. The UK exercised its block opt-out of pre-Lisbon police and criminal justice measures in 2014, and then rejoined a smaller subset of 35 measures. As noble Lords who took part in the scrutiny of and debate on that exercise will recall, each of those measures was thoroughly assessed, including in the two Command Papers published by the Government as part of that process. The 35 measures we opted back into were judged to be in the national interest, and deemed “vital” by the then Home Secretary, now the Prime Minister, in order to,

“stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”.

Since the Lisbon treaty came into force, we have chosen to opt into some 30 further police and criminal justice measures, each individually assessed on their merits, including the passenger name record directive, the Prüm decisions, and the European investigation order.

Although the inquiry’s mission was to look for opportunities and risks from Brexit, we had to conclude that, in this area, we were mainly looking at risks. This was because, in contrast to other policy areas and as a result of the UK’s justice and home affairs opt-out, each of the measures that the UK participates in was, by definition, the subject of a positive decision and assessment when the country first joined—or rejoined—it, and those assessments were unlikely to have changed in the intervening few years. The word “suboptimal” came up time and again when witnesses described the options for future arrangements.

Our inquiry looked at the main tools and institutions that underpin our police security co-operation with the European Union, and there was a clear consensus among our witnesses on the measures they would like to see retained or adequately replaced. Europol, Eurojust, the second-generation Schengen information system, the European arrest warrant, the European criminal records information system and the passenger name record were consistently listed as top priorities. Broadly speaking, measures fell into two categories: those where there were precedents for securing access to those tools or to credible substitutes from outside the EU, and those where no such precedents exist, or where the precedents that do exist would not be sufficient to meet the UK’s operational needs.

Europol fell into this latter category. Our witnesses made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs. We therefore concluded that the Government will need to devise, and secure agreement for, an arrangement that protects the capabilities upon which UK law enforcement has come to rely, and goes further than the operational agreements with Europol that other third countries have been able to reach thus far. While our report was in preparation, a bespoke arrangement was agreed for Denmark. I would be grateful if the Minister could tell us more about that arrangement and how relevant it may be to the UK’s future needs.

On Eurojust, we judged that the third-country agreements that exist, particularly those which involve liaison prosecutors, may come closer to meeting the UK’s needs than the precedents for third-country agreements with Europol. That is not to say that a lift-and-shift model would suffice, since any such agreement would ideally provide for closer co-operation than has thus far been available to other third countries—for example, by providing access to the Eurojust case management system. We were concerned that the role of the supranational EU institutions in providing accountability and oversight of the activities of Europol and Eurojust could present a political obstacle to forging the sort of operational partnership that might otherwise be advantageous to both the UK and the EU 27. I hope that the noble Lord, Lord Kirkhope, may be able to say more about that, as his evidence on this point was particularly helpful.

On data sharing for law enforcement, we were concerned to find that the two data-sharing tools that witnesses identified as the top priorities for the UK—the Schengen information system and the European Criminal Records Information System—were also those for which there is no precedent for access by non-European Union or non-Schengen countries. The law enforcement community was emphatic about how absolutely vital those tools were to its work. The National Crime Agency described the Schengen information system as,

“an absolute game-changer for the UK”.

We did, however, accept the Government’s argument that the starting point for the UK in seeking to negotiate access to these tools was different from that of any other third country because of the UK’s pre-existing relationship with the EU 27 and the data it has to offer. Therefore, we consequently recommended that the UK should seek access to the full suite of data-sharing tools on which it currently relies, as well as those it is still planning for, while recognising that this would be a particularly ambitious objective.

Will the Minister clarify the remarks of the Secretary of State for Exiting the European Union in the other place last Thursday, when he appeared to imply that the UK would withdraw from the Prüm decisions after we leave the EU? Are the Government saying that they will not seek continued access to Prüm after we leave, even though both Houses voted in favour of UK participation, on their recommendation, barely a year ago?

I turn to the European arrest warrant. We saw no reason to revise our assessment, and that of the Government in 2014, that the 1957 Council of Europe Convention on Extradition could not adequately substitute for the European arrest warrant. We therefore concluded that the most promising precedent for the Government to pursue would be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the European arrest warrant’s provisions as far as possible. However, we were discouraged to see how long it had taken to negotiate and implement that agreement. Therefore, the European arrest warrant may well be a candidate for an interim arrangement, bearing in mind that we cannot afford an operational gap.

We received less evidence on the other criminal justice measures, and in any event could not examine them in the same level of detail. It is, however, reassuring that the Justice Select Committee in the House of Commons has launched an in-depth inquiry into the criminal justice measures. The lesson we did take away was that some of the lower-profile criminal justice measures complement the higher-profile ones—for example, the European supervision order helps to mitigate some of the less satisfactory aspects of the European arrest warrant. Therefore, the Government need to be mindful of the risk that relinquishing less well-known measures could undermine the effectiveness of tools that are higher up in the list of priorities.

During the course of our inquiry, some overarching themes emerged. One was a real sense of achievement, sometimes tinged with sadness, when looking back at the UK’s record in helping to build and shape the EU’s institutions, policies and practice in this area. Major components of the current landscape, from Europol to the passenger name record directive, reflect the UK’s influence and agenda setting. The Government will therefore need to examine what structures and channels they need to remain part of, or adequately replace, if they are to continue to influence the EU’s security agenda in the future.

The second theme that emerged was the tension between two of the Government’s objectives—that is, withdrawing from the jurisdiction of the European Court of Justice and maintaining strong security co-operation with the European Union. It seemed to us that, even with the utmost good will on both sides, there would in practice be limits to how closely the UK and the EU 27 could work together if they were no longer accountable to, and subject to oversight and adjudication by, the same supranational European Union institutions, especially the European court.

A third theme to run through much of the evidence was the need to meet EU data protection standards to be able to exchange data for law enforcement purposes with European partners after we leave the EU. At the point of exit, when we have identical standards, this may not be such a problem, but over time the UK can expect to have to keep up with standards that it no longer has any role in framing or influencing. More generally, the police and criminal justice measures that the UK is currently part of, and may continue to have a stake in, are liable to be amended and updated with the passage of time when the UK is no longer at the table to influence the pace and direction of change. We recommended that the Government should explore from the outset how any agreement reached with the EU 27 at the point of exit could address this prospect.

With reference to the last two points, noble Lords will have seen that the Government’s White Paper devotes quite a bit of attention to dispute resolution mechanisms and the Government’s intention to seek,

“a new approach to interpretation and dispute resolution with the EU”.

There clearly are precedents for adjudication mechanisms and international arbitration in trade agreements, but it is not clear that arrangements along those lines would address the issue that the committee raised about the link between deep police and security co-operation—for example, the ability to search each other’s police databases—and a common framework for oversight and accountability, such as that currently provided by the supranational EU institutions. Could the Minister tell us more about how the Government see the link and what implications it might have for the level of co-operation we can sustain in future?

I also invite the Minister to tell us a little more about what she expects to be negotiated as part of the withdrawal agreement and what would be part of discussions on the framework for a future relationship. For example, one might assume that extracting the UK from agencies such as Europol and Eurojust would be part of a withdrawal agreement, but could she shed some light on what other aspects of the current arrangements would fall within the scope of Article 50 narrowly construed?

Finally, the Government’s White Paper mentions the great repeal Bill and the Government’s intention that,

“wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before”.

Could the Minister please explain how she envisages the process of converting EU law into domestic law working in the area of police and criminal justice?

I look forward to the Minister’s reply and to the contributions of noble Lords.

--- Later in debate ---

[Baroness Prashar]

My Lords, I thank the Minister for her response. It is reassuring to hear that the Government are committed to effective co-operation on these issues. The expertise around the House on this issue was very evident in the wonderful contributions to the debate. I very much hope that the Government pay heed, consult and talk to people who have that expertise when they proceed with their negotiations. That said, I thank everybody who has supported this debate.

Motion agreed.