Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Paddick Excerpts

Friday 11th March 2022 Lords Chamber

[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.