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

Lord Ricketts Excerpts

Friday 11th March 2022 Lords Chamber

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.