Summary
The UK and the EU share a deep interest in maintaining the closest possible police and security cooperation after Brexit: protecting the safety of millions of UK and EU citizens must be the over-riding objective.
Negotiations on security are not a ‘zero sum game’: we all stand to gain from agreement, and we all stand to lose if negotiations fail. As the EU Commissioner for Security Union, Sir Julian King, told us, security cooperation should be unconditional.
But time is short, and neither side has yet approached the negotiations in this spirit. The UK Government’s ‘red lines’, and the EU’s response, appear to have narrowed the scope for agreement. Both sides now need to focus on finding common ground and making pragmatic compromises.
Operational continuity is vital, and we welcome the agreement of both the UK Government and the EU that UK participation in EU justice and home affairs measures should continue during the transition period, from March 2019 to December 2020.
We note, however, that the terms of the transition agreement would disbar the UK from retaining a governance role in EU agencies, reducing its influence on policy and decision-making. We note also that Article 168 of the Withdrawal Agreement would authorise EU27 States to refuse to extradite their nationals to the UK during the transition period, in accordance with domestic constitutional requirements. The practical impact of this change is unclear, and we shall look further at it in coming months. In the meantime, we recommend that the Government publish a contingency plan, to include the effect of any disruption on UK extradition arrangements.
We support the Government’s aim to secure a future relationship with Europol that retains as far as possible the operational status quo, on both sides. But we are concerned by the Government’s transactional approach to negotiations on this issue: the fact that the UK is a major contributor of data to Europol should not lead the Government to underestimate the impact of Brexit upon the UK’s role and influence in Europol, as in other EU institutions.
The closer the integration that the UK seeks with Europol, the more compromises the Government will have to make. Any agreement will have to take account of the accountability of Europol to the Court of Justice of the EU, and is likely to require continuing alignment with EU data protection legislation, as well as budgetary contributions.
The Government has been clear that it wishes to retain all the benefits of the European Arrest Warrant. But this is unlikely to be achievable: even the EU’s agreement with Norway and Iceland (which has yet to be brought into force) allows an ‘own-national exemption’. It also provides an indirect but influential role for the CJEU. Compromises will be needed—the alternative is to fall back on the 1957 Council of Europe Convention on Extradition, which would lead to delay, higher cost, and potential political interference.
We support the Government in prioritising three areas for future UK-EU security cooperation: extradition; access to law enforcement databases; and partnerships with EU agencies such as Europol. The Government seeks to realise these objectives by negotiating a single, comprehensive treaty.
We have, however, seen no evidence that sufficient progress has yet been made towards negotiating a comprehensive security treaty. On balance, given the time taken to negotiate EU agreements with third countries in the past, and the range and complexity of the available models and precedents, we believe that it is unlikely that such a treaty can be agreed in the time available.
The Government therefore needs to adopt an evidence-based approach, showing realism about what it can achieve in the time available. Any UK-EU agreement will be judged less on its form than on its success in protecting the security of the UK and EU27. If a comprehensive treaty cannot be agreed, a series of ad hoc security arrangements could help to mitigate reduced operational capacity.
Future UK-EU security cooperation will have to be underpinned by an agreement on data-sharing. We support in principle the Government’s objective of securing a cross-cutting agreement on data protection, but negotiations on data-sharing are notoriously complex, and we stress that pursuit of a cross-cutting agreement on data should not come at the expense of an agreement on security.
We also note that any perceived reduction in the rights enjoyed by criminal suspects in the UK could have a significant operational impact on those working to protect the country’s security: the Government needs urgently to explain how fundamental rights will be protected after Brexit, and how those rights will cohere with the proposed security treaty.
Given the hurdles ahead, we are concerned that there is no mechanism in the draft Withdrawal Agreement for extending it, either in whole or in part, beyond the end date of 31 December 2020. We call on the Government and the EU to consider options for allowing such an extension, at least in respect of key security measures, where any interruption to ongoing operational cooperation could cost lives.
In the meantime, we commend the contingency planning being undertaken by the Crown Prosecution Service, National Crime Agency, Metropolitan Police and others to prepare for the possibility of an operational ‘cliff-edge’.
Security forces in Northern Ireland and the Republic of Ireland have a decades-long history of cooperation in combating terrorism and cross-border crime. While we are confident that informal cooperation will continue, we note that the EU instruments, databases and agencies have become increasingly important in providing formal mechanisms for cooperation. It is vital for both sides that any UK-EU treaty or agreements should support this cooperation, including effective extradition arrangements between the UK and Ireland.