Brexit: UK-EU Security (EUC Report)

Lord Condon Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord Condon (CB)]

My Lords, I have the honour of serving on the EU Sub-Committee on Home Affairs, so ably chaired by the noble Baroness, Lady Prashar. She has set out eloquently the main points in our report. In view of the time and what other speakers have said, I am not going to go over the same ground, rather I will try to emphasise from a former police background what I think are some of the important things we should be considering.

There are many exciting aspects to leaving the European Union. It will create exciting opportunities for the country, but this area is not one of them. Leaving the EU will open no new doors for police co-operation and it will create no new opportunities. It does not create space for us to become a better and bigger global partner in this area. That is not, I hope, a lack of imagination, resolve or determination on my part. As the report shows, it is the result of a forensic examination of the current position and the prospects as we leave the European Union. The Government will have to work extremely hard in their negotiations if there is not going to be a diminution in the safety and security of our citizens.

I spent quite a lot of the second half of my police career encouraging and setting up many of the embryonic stages of police co-operation in Europe, in particular in two posts. The first was as the chief constable of Kent Police, when I worked extensively on the planning for the Channel Tunnel right through from its inception to its completion, as well as the important establishment of two land frontiers with France at either end of the tunnel, concentrating on the juxtaposition of controls and working with European police forces in a very detailed way. Then, as commissioner for seven years in London, I encouraged and helped to set up Europol in the mid-1990s. I saw it through the early years of its birth, development and establishment.

When I retired in 2000 police co-operation around Europe was important, but it certainly was not a day-to-day activity and it did not challenge or get in the way of day-to-day policing. What we learned from our expert witnesses was how much has changed in the intervening time—developments in technology, the internet and mobile telephony; the threat from asymmetric terrorism and how terrorism has changed; and the movement of people throughout and into Europe, with 3 million EU citizens living in the United Kingdom. Police co-operation throughout Europe has moved from the nice and important to the essential day-to-day. That co-operation is woven into the fabric of day-to-day policing up and down our country.

I hear what the noble Lord, Lord Wasserman, said about other threats, but European co-operation, through full membership of Europol with unhindered access to the various databases, Schengen II, criminal records, Prüm, passenger name records and so on, and access to and use of European arrest warrants, Eurojust and all the other police and justice infrastructure means that everyday policing up and down the country relies on these very important relationships, institutions and databases, whether it is a terrorism detective in Scotland Yard or the National Crime Agency working on a sophisticated inquiry to thwart a terrorism threat, or a young patrol officer in Leeds, Bristol or Manchester stopping a vehicle and within seconds being able to check on vehicles, people and property in a way that only a few years ago would have been unthinkable. As the noble Lord, Lord Paddick, said, things are done in seconds now that previously took days, weeks, months, or never got done. We should not underestimate how European co-operation on policing is, to use a horrible phrase, mission critical to everyday policing in this country.

I know that the Prime Minister is fully aware of that importance. As Home Secretary and Prime Minister, whenever she has spoken about Brexit she has emphasised the importance of strong and close co-operation. In the debate in the other place on 18 January about the implications for police and security, the Police Minister who opened the debate, the Brexit Minister who closed it and every single speaker was unanimous about the importance of this subject and maintaining the closest possible links.

Paragraph 11.7 of the Brexit White Paper sets out unequivocally that we need strong and close future co-operation—so far so good in recognising the importance of the subject. Where I digress slightly from the view of the noble Lord, Lord Wasserman, and from the Government is that I believe there is an overreliance in government circles on two facts that are constantly prayed in aid as reasons why we should be optimistic for the outcome of any negotiations. The first is mutual dependency. We all want to combat terrorism and serious crime. We all want to stop paedophiles and cybercrime. Surely that mutual interest will drive us to find a solution to these challenges. The second thing, which the Government constantly state, is that the United Kingdom has been at the heart of these co-operative arrangements and designed many of them, leads them and is a major user of them. The almost unspoken assertion is that the European Union cannot do without us. I fear there is an element of complacency that mutual dependency and the fact we are currently at the heart of these measures will see us through. The noble Lord, Lord Wasserman, is right that police throughout Europe have a can-do mentality and will want to find a way through this, but there are major impediments to progress that other noble Lords have already mentioned.

The first is the jurisdiction of the European Court of Justice. Police officers in any part of Europe can ruin people’s lives by their actions. In the most extreme circumstances they can and do take people’s lives. It is vital that their actions—acting alone, in collaboration or on a major operation—are subject to scrutiny and the highest challenge through political structures, accountable structures and most certainly through legal structures and the courts. Europol, the various databases, the infrastructure for the European arrest warrants and Eurojust are all quite properly subject to the jurisdiction of the European Court of Justice and, increasingly, to the European Parliament, the Commission and its institutions. We are pulling out of those. We want to be a member of the policing club with all the benefits, but at the moment we are saying that we are not going to adhere to or accept the jurisdiction that there currently is over those important mechanisms. The second important area, which could be a major impediment, is data protection standards, which other noble Lords have already spoken of. At the moment we are signed up to and quite properly part of the implementation of those data protection standards, but we will be leaving the club and our involvement with them.

How should we move forward? Clearly we must find a satisfactory way through this if we are to protect our citizens and our good friends in Europe. Section 12 of the Brexit White Paper talks about avoiding disruptive cliff edges and the consideration of phasing in the new arrangements. If ever there was a subject matter that should rely on those sentiments it is police co-operation and our membership of the infrastructure that delivers it. It is in the interest of the United Kingdom, the European Union and all their citizens that we maintain the status quo for as long as possible. There is no rush and no rhyme or reason why we should seek to unscramble or destabilise these arrangements—quite the reverse. It should be a government position and, I hope, an EU position that we should maintain the current infrastructure and the status quo for as long as possible. If that means being creative around accepting the jurisdiction of the European Court of Justice over some of these issues for a period of time, let us find a way to ensure that that takes place. Anything less than the status quo will be a diminution of the safety and security of our citizens. As we move forward, we must stay in the club on these issues and maintain the status quo for as long as possible. We know, however, that there has to be change, and in negotiating and preparing for that change, the United Kingdom negotiators should willingly offer progress on three important issues.

First, we must pay a reasonable contribution to Europol and for the databases and the European arrest warrant and infrastructures—all of that. Why would we not want to pay our way? We must make it clear up front that we will pay reasonable and sensible contributions for all of those institutions and databases.

Secondly, we should willingly show that we are going to match or exceed data protection standards. We can easily make the financial contribution. I say that even though it is not my money, but we can make that work. Data standards are something that we can make work relatively easily, and in recent weeks and months we have worked with the EU and signed up to four important developments on data protection: first, a general regulation on data protection for EU citizens; secondly, a general directive on law enforcement in the European Union; thirdly, a privacy shield signed between the European Union and the United States to enable data sharing primarily commercially between us; and fourthly, an umbrella agreement signed between the EU and the United States for law enforcement purposes. It is that fourth issue—the umbrella agreement that the EU has signed with the US—that is a model that will perhaps show us the way forward. We will certainly have to show that, in terms of data protection standards, we are matching or exceeding the EU standards that we are currently signed up to.

Thirdly, the most intractable problem is finding an acceptable way through once we have shown that we are no longer subject to the jurisdiction of the European Court of Justice. Other noble Lords have already pointed out that the White Paper and the Government have accepted that dispute resolution mechanisms will have to be developed. That is one area where I currently cannot see a way forward. However, I am sure that there will be a way forward; and that when we come out of the jurisdiction of the European Court of Justice, we will have to show that we accept there has to be an adequate replacement.

As others have said, voters in the referendum last year did not really have a chance to consider these issues, but I am sure that if they had, they would not have wanted to make it easier for terrorists, paedophiles or serious criminals. It is in the interests of both the UK and the EU to maintain the status quo for as long as possible. However, as we move forward from that, the new arrangements will mean that we have to pay our way, maintain data protection and find dispute resolution mechanisms. I am honoured to serve on the sub-committee. I hope that we have made a contribution that the Government will find helpful and that, as we move forward, we will continue to seek ways to help the Government find a way through this vital topic for our country.