Brexit: UK-EU Security (EUC Report)

Lord O'Neill of Clackmannan Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord O'Neill of Clackmannan (Lab)]

My Lords, I am very pleased to follow the noble Lords, Lord Paddick and Lord Condon. It was rather like being on the committee, in the sense that we had a succession of police officers, some of whom were retired and some still in harness, so to speak. They come out with a consistent line, and this was exemplified by the last two contributions. As a relatively new member of the committee, I thank the noble Baroness, Lady Prashar, for the way in which she was able to conduct the business and ensure that those of us who were the lowest of lay people—if I may put it that way—were able to follow the proceedings, which were very intense and helpful, and were greatly assisted by the clerk and her staff.

As has been said, it would have been helpful if we had been able to have had a more sensible debate in the course of the referendum campaign. In fact, one has to say—although it would, perhaps, not be said from the Benches opposite—that the Home Secretary at the time could have played a more significant role in drawing attention to some of the difficulties that leaving would have. We have now begun to see some attention being given to them, but I do not have too much faith in last week’s White Paper wish list. It has nodded in the direction, but it has not really given us anything like the kind of response to the points that have already been made this evening.

It is fair to say that we are beginning to appreciate the complexity and significance of the EU’s role in security and police co-operation. This questions the assertion that we had to leave to secure our borders or to take back control of our laws and justice, because we see that so much of what is operating in our system at present is dependent upon this EU co-operation and will be made that much more difficult by our leaving. Witnesses repeatedly provided us with evidence of how much more difficult it will be to protect ourselves, and indeed our fellow European citizens, if we do not have full access to the agencies which our membership of the EU affords. I will look at two areas where our benefits and influence will be lost when we leave. These are not areas where the words “hard” or “soft” Brexit have much relevance. We are dealing here with not national advantage or for that matter old score-settling, but simply matters which contribute to the operation of justice and our mutual security. I shall deal with Europol and Eurojust.

In 2014 a predecessor EU sub-committee recommended that the UK opt into what was then the new Europol regulation. Eventually, before Christmas last year, the Government did so. This will certainly put us in a better place when we come to negotiate our exit from the EU. These negotiations may not be as easy as some would imagine, since the UK’s involvement in Europol is of a greater order than that of third countries such as the US, Norway and Albania: I do not put those in any particular order of significance. The Government has said—it has been quoted already but it bears repeating—that they would never put politics before the protection of the British public, but how is this going to be achieved in the context of the way in which Europol is moving, as envisaged in the new regulation?

The Government wish to free us from supranational European institutions, yet the new regulation seeks greater accountability of Europol, involving the Commission presence on the management board and a joint parliamentary scrutiny group involving reps from national parliaments and the European Parliament. If this is to be the case, and if we always have the bogey of the European Court of Justice in the background, so hated by the Brexiteers, UKIP-pers and the rest—it is difficult in these areas to distinguish one from another—it will create very great problems when it comes to getting a deal we can sell to this House and the other place.

The significance of Europol as a source of information and intelligence and as a means of co-operation was repeatedly stressed to us and we were told that these would be terribly dangerous to lose. Some access is afforded to countries which are not part of Europol but which enjoy third-country or third-party status. There are two forms; the first, which consists of strategic co-operation, includes Russia, Turkey and Ukraine, is limited and excludes personal data. Then, the US, Australia, Canada, Colombia, Norway, Switzerland and some of the Balkan states are operational partners but, as has been stressed, they are not on the board and do not determine the future way in which policy will develop. Indeed, it could be argued that Norway and Iceland might be classified as having Championship status, as against the Premier League status enjoyed by the 28 at the present moment.

This is not going to be good enough for a country which uses 40% of the capacity of SIENA, the Secure Information Exchange Network Application. This is the main data-protection conduit for information passing through Europol. We are the second-largest contributor to the European information system. We lead on four or five of the 13 EMPACT projects, co-ordinating member states and EU organisations against Europol-identified serious organised crime threat assessments. These are areas of great significance for the agencies and for the UK. All these would have to be conducted under data-protection protocols over which we will have no say. If we are on board, if we are alongside, we will not necessarily have any means of influencing this. There may well be areas in which we have significant knowledge. Of course, we may make enemies in the course of this—by being a wee bit,

“smarter than the average bear”,

as Yogi Bear would say, we may put noses out of joint and scores will have to be settled. They could that much more easily be settled if the offending party is not in the room when the decisions are taken.

Such contributions and organisational involvement are crucial to the security and policing of the 27. I am conscious of what the noble Lord, Lord Condon, said about us being a wee bit complacent—that maybe they cannot do without us, that the 27 will look favourably upon us—but what will have to be arrived at are rather more pragmatic arrangements than have been envisaged hitherto. Also, we will have to recognise the examples of countries that have tried to negotiate their way into a position of good standing. For example, Denmark has had great difficulty in returning to Europol after its block opt-out, which has been at the expense of third-party status. Third-party status would appear to be very difficult to achieve quickly. We cannot find much consolation in precedent to suggest a speedy solution. As the noble Lord, Lord Condon, says, if we can skilfully stay in the club while we are trying to negotiate a deal, we may get the best of both worlds. But that will require a degree of skill being shown by our negotiators and it remains to be seen whether we have people with the requisite skills or whether a sufficiently high priority will be placed on this as against the economic and trade considerations, which, despite the words of the White Paper, will tend to be the areas that attract most attention. Accommodating the European Court of Justice could well be anathema for the more zealous Brexiteers.

As the report says, Eurojust is the agency responsible for,

“supporting and strengthening coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States”.

This covers mutual legal assistance, European arrest warrants, the joint investigation teams and the provision of,

“legal, technical and financial support”.

Much has been made of the suggestion that we will somehow come out of this Brexit process not having to pay the subscriptions, but I imagine that if we are going to command any attention or sympathy we will have to pay our way, and we may have to pay our way at a rather greater rate than is enjoyed by the normal members. That is very often the case with people who want to be, as it were, county members of particular clubs. We might want to be the offshore member of the arrangement.

These negotiating priorities are going to be difficult to achieve. People have stressed the advantages of co-operation and the opportunities to work multilaterally through joint investigation teams. There are arrangements for third countries and liaison prosecutors but they are of a different order from those enjoyed by the management board members such as the UK, and any new arrangements are likely to be inferior to what we now have. The cost of providing 27 UK liaison prosecutors and the time likely to be necessary to secure the appropriate provisions will be daunting. Switzerland took seven years. Those large population centres of Liechtenstein and Moldova took five and six years respectively for bilaterals to be achieved.

I come back to the point made by the noble Lord, Lord Condon. It may be that while we are going through these negotiations it will be status quo ante and therefore it will be okay for a wee while. We might even think about re-joining in the intervening period. These problems are not necessarily insuperable but they will be difficult. The solutions will be complex and, even with the best will in the world, they will take time. We do not know what the impact will be on crime fighting and terrorism fighting in Europe, and on the international justice and security system. These things remain to be seen.

That is perhaps the single most worrying aspect of the outcome of our studies: we do not really know. We see pious words in White Papers, written because the court told the Government to write them—“This will be our third or fourth priority. This will be very important” —but we do not know the negotiating stances. We will not know for some considerable time how long the negotiations will take. We will certainly need far more information, perhaps on a quarterly basis, about what is happening.

I would like to think that a report of this quality will not be allowed to gather dust and that we will return to this subject repeatedly. This is perhaps my rather rough experience in the place along the road but there is nothing that officials dislike more than having their feet held to the fire by Select Committees, whose repeated returning to the subject means that they know almost as much about it as the officials do. I am not saying that I know as much about it as the officials do, but to paraphrase FE Smith, I may not be any the wiser but at least I am better informed than I was before. I am very grateful for the opportunity to have participated.