Brexit: Proposed UK–EU Security Treaty (European Union Committee Report) - Motion to Take Note

Part of the debate – in the House of Lords at 6:25 pm on 16th January 2019.

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Photo of Lord Jay of Ewelme Lord Jay of Ewelme Chair, EU Home Affairs Sub-Committee 6:25 pm, 16th January 2019

My Lords, it is a pleasure to be speaking in the calm and thoughtful end of the Palace of Westminster. As chair of the EU Home Affairs Sub-Committee, which prepared this report, I thank the Members and staff of the sub-committee, and our specialist adviser, Professor Steve Peers, for their support and advice.

This report was published on 11 July last year, six months ago, and we received the Government’s response in September. But much has happened in those six months, and many of the issues we covered in our report, such as the Government’s ambition to negotiate an overarching security treaty with the EU, have been largely overtaken by events. So I will not rehearse those issues at length this evening. Instead, I will focus on the key issue of UK-EU security co-operation, and reflect on one or two more recent events.

Of course, much has happened in the last 24 hours, too. But none of it, alas, makes the future any less opaque; nor, at least at this stage, does it greatly change the options before us. The analysis and recommendations in our report remain valid. In our report, we supported the Government’s three principal areas for future UK-EU security co-operation—extradition, partnerships with EU agencies such as Europol, and access to law enforcement databases—and considered how the UK’s engagement with the EU in each of these areas may be affected during the transition period and under the future UK-EU security relationship.

We emphasised:

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”.

We further stressed:

“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”.

The EU Commissioner for Security Union, Sir Julian King, told the committee that,

“security cooperation should be unconditional”,

and I agree with that. I pay tribute to the excellent work carried out by Sir Julian King as our commissioner, and to President Juncker, who does not always get much of a mention, for giving the British commissioner a portfolio of real substance at a time when he could easily have made him a cypher.

As noble Lords will know, the withdrawal agreement and political declaration were agreed by negotiators in the closing weeks of last year. Let us assume that they remain valid, although I suspect the political declaration, at least, may change in the weeks ahead. First, I will say a word about the transition period. Under the terms of the November 2018 withdrawal agreement, the UK would continue to participate in EU agencies, mutual recognition instruments and information-sharing mechanisms until the end of the transition period. The UK would not, however, be able to participate in the management bodies of EU agencies or opt in to new measures in the areas of freedom, security and justice, although the EU may invite the UK to co-operate in such measures under the conditions set out for co-operation with third countries.

Extradition arrangements could also be disrupted. Article 185 of the withdrawal agreement would authorise EU 27 states such as Germany to refuse to extradite their nationals to the UK during the transition period in accordance with their domestic constitutional requirements. Germany apart, we do not know how many will do so. While the practical impact of that change remains unclear, including on cases pending on the date of the UK’s withdrawal, the Government must surely publish a contingency plan that addresses any disruption to UK extradition arrangements. We urge them to do so.

As for the future relationship, the political declaration envisages,

“a broad, comprehensive and balanced security partnership”,

for law enforcement and judicial co-operation. However, as the European Union Select Committee’s report on the withdrawal agreement and political declaration noted,

“this may fall short of the Government’s ambition for a single comprehensive treaty”.

In any case, as our report concluded, it is unlikely that an overarching internal security treaty can be agreed before the end of 2020.

The Select Committee’s report also noted that:

“The depth of the future relationship in law enforcement and judicial cooperation … will depend on ‘an appropriate balance between rights and obligations’ and on the UK’s willingness to continue to follow EU rules and to accept that the CJEU, as the sole interpreter of EU law, will have continuing influence over the application of those rules”.

Can the Minister confirm the Government’s view of the role of the CJEU after we leave the European Union?

Extradition arrangements after the end of the transition period look increasingly insecure. The Government aim, rightly in our view, to retain all the benefits of the European arrest warrant. 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. This would be a bad outcome for both the UK and the EU. Perhaps unsurprisingly, as no non-EU member state is currently a participant, the political declaration does not mention the European arrest warrant. The declaration states simply that “effective arrangements” on extradition will be established. We urge the Government to bring forward detailed proposals as soon as possible.

It would be in the interests of both the UK and the EU to secure a future relationship with Europol that as far as possible maintains the operational status quo. We were hugely impressed by the evidence we received on the sheer volume of data exchanged between the UK and Europol on transnational crimes. It makes early agreement necessary.

The committee is concerned by the Government’s “transactional approach” to Europol negotiations. Simply because the UK is a major contributor of data to Europol, the Government should not underestimate the impact of Brexit on the UK’s role and influence within Europol. The political declaration states that the UK and EU will identify how the UK will co-operate with Europol and Eurojust. That is good as far as it goes, but it does not go very far. Both agencies are essential for UK law enforcement; I hope that the Minister will confirm that.

Future UK-EU security co-operation will be underpinned by an agreement on data. If the UK loses access to EU security databases, information that can be retrieved almost instantaneously may take days or weeks to access, creating a hurdle for policing and a threat to public safety. The political declaration suggests that the UK and EU seek reciprocal arrangements for exchanging passenger name record—PNR—data and DNA, fingerprint and vehicle registration data through the Prüm system. These are extremely valuable to UK law enforcement. We welcome that.

The declaration also contains commitments to consider other arrangements for data exchange that could “approximate” EU mechanisms, but there is no mention of either the SISSchengen Information SystemII or the European Criminal Records Information System, or ECRIS, database, to which no non-EU country currently has access. This is worrying and I would welcome the Minister’s comments.

I will say a word about Ireland. Close co-operation between the United Kingdom and Ireland on security matters is fundamental. The appointment last year of the deputy chief constable of the PSNI as Garda Commissioner is welcome and imaginative. I hope that the Minister can assure us that, whatever happens, this essential close co-operation between the United Kingdom and Ireland on security matters will continue.

In their response to the committee’s report, the Government agreed with our conclusions about the importance of maintaining UK involvement in JHA measures during the transition period and our assertion that security is not a zero-sum game. The Government also agreed that existing third-country relationships with agencies such as Europol are an inadequate model for the UK’s security needs and that falling back on pre-EAW extradition arrangements would not be desirable. The Government disagreed, however, that a comprehensive security treaty would be too difficult to agree before the end of the transition period. In November 2018, we wrote to the Government asking for further clarity on the basis for their assertion that a comprehensive treaty could be negotiated more quickly and provide more flexibility than a series of ad hoc agreements. We also asked what planning the Government had done to avoid an operational cliff edge at the end of the transition period. I much look forward to a reply to that letter.

We cannot, alas, rule out leaving the European Union without a deal, although, as I have said in other debates in your Lordships’ House, I believe that that would be a disastrous outcome. As the European Union Select Committee highlighted in its Brexit: Deal or No Deal report:

“A complete ‘no deal’ outcome would be deeply damaging for the UK. It would bring UK-EU cooperation on matters vital to the national interest, such as counter-terrorism, police, justice and security matters, nuclear safeguards, data exchange and aviation, to a sudden halt”.

None the less, on all these matters, it is essential that internal security practitioners prepare for an operational cliff edge in the event of no deal or at the end of the transition period. We therefore commend the contingency work undertaken by the Crown Prosecution Service, National Crime Agency, Metropolitan Police and others in planning for these possibilities.

Much of the debate about the implications of Brexit is arcane, but the potential implications of Brexit for security are only too clear. The security of our citizens here, and indeed in the EU, is at stake. Brexit risks dismantling agreements and arrangements that have been built up over a generation, and which work. It is no wonder that so many of those who gave evidence to us—the police, members of the legal profession and the Director of Public Prosecutions—were genuinely and seriously concerned about the possible implications of Brexit not only for their work but for the security of our citizens.

I hope that the Minister can give us a convincing assurance that she and the department recognise the challenges that Brexit poses for the security of our citizens and will do their utmost to meet them, whatever the future holds. I beg to move.