A report published by the Home Affairs Committee in Parliament warns of “serious legal, constitutional and political obstacles” in the way of achieving continued close policing and security co-operation post-Brexit. Entitled ‘UK-EU Security Co-operation After Brexit’, the document cautions that these issues need to be resolved “as a matter of urgency” or the UK’s future policing and security capabilities risk being “seriously undermined”.
The detailed report welcomes the Conservative Government’s objectives for a Security Treaty designed to replicate current co-operation on Europol, the European Arrest Warrant and data sharing on criminality, but at the same time criticises the Conservative administration for “complacency over the timetable” and warns about the complexity of the negotiations.
The Home Affairs Committee is calling for security and policing negotiations to begin immediately, and also calls upon the Government and the European Commission to show flexibility. The Committee argues that the EU should not try to restrict co-operation to existing third country models, and that the UK should not be rigid about artificial red lines. The Committee argues that both parties should be ready to extend the transition period, as it’s highly likely to take longer than two years to resolve new legal arrangements for extradition and data sharing.
In addition, the Committee warns that the Government “risks sleepwalking into a crisis” by appearing to assume that the shared UK-EU interest in security co-operation will lead to the swift and easy agreement of complex legal and constitutional problems.
Yvette Cooper MP, chair of the Home Affairs Committee. commented: “Given the scale of cross-border crime, trafficking and terrorism threats, we need security and policing co-operation now more than ever, but there’s a serious risk that we will lose some of the vital data and extradition arrangements if there isn’t urgent work conducted by both the UK and the EU to deal with the trickiest issues.”
Cooper continued: “We agree with the Government that the European Arrest Warrant, Europol capabilities and database access should be replicated in full, and that this is in Europe’s interests, too, but just because we all want something, it doesn’t mean that it will happen unless enough work is put in ahead of time to overcome the genuine legal, constitutional and political obstacles we’ve uncovered.”
Embellishing this theme, Cooper went on to state: “We’re extremely concerned that neither the Government nor the European Commission is focusing enough attention on this area of Brexit in order to sort these problems out in time. Yet the consequences of running out of transition time before the Security Treaty is in place are immensely serious, both for the UK and Europe. Losing or weakening extradition arrangements could mean being unable to extradite rapists like Zdenko Turtak, who fled back to Slovakia but, using the European Arrest Warrant, was returned to face a long prison sentence. Losing or weakening data access could prevent the police service from gaining the vital information they need to catch dangerous criminals or keep victims safe.”
Easing the red line
Cooper asserted that Prime Minister Theresa May appears to have eased the Court of Justice of the European Union’s (CJEU) red line when it comes to security co-operation. “That’s welcome and essential if we’re to be able to replicate current co-operation after Brexit,” outlined Cooper, “but other tricky problems remain unresolved. We need much more detail and flexibility from both the Government and the European Commission.”
According to Cooper and her colleagues on the Home Affairs Committee, much more urgency needs to be given to this whole area. “Otherwise, we risk sleepwalking into a crisis. That’s why the Committee is ringing the alarm bell before it’s too late. Policing co-operation, extradition arrangements and data sharing are too important to either lose or diminish. The costs of failure are unthinkable.”
The Home Affairs Committee concludes that the UK should seek to maintain its security capabilities in full after Brexit – including Europol membership, replicating the provisions of the European Arrest Warrant and retaining full access to EU data sharing mechanisms – and that the Government is right to aim to secure those in a Security Treaty separate from the other negotiations.
The Committee asserts that the Government should be honest about the complex technical and legal obstacles to achieving such a close degree of co-operation as a third country. As far as the Home Affairs Committee’s concerned, it’s crucial that the negotiations in this area start imminently. The Government and the EU must be ready to extend the transition period for security arrangements beyond the proposed end date of December 2020.
Europol and the European Arrest Warrant
With growing cross-border crime, there can be no substitute for UK access to Europol’s capabilities and services. Maintaining this access should be a key priority in the Brexit negotiations.
Current EU proposals for the UK to lose its role on the Europol Board during the transition period are a real concern. Disrupting Europol’s governance arrangements next March, in advance of a wider negotiation for the new relationship, would not benefit anyone’s security or safety.
The UK and the EU should work to negotiate a bespoke relationship. Existing Europol models for co-operation with non-EU countries would involve a reduction of security capabilities. The Prime Minister’s willingness to accept the CJEU is “welcome and essential” towards securing the closest possible partnership.
The efficiency and effectiveness of the European Arrest Warrant is “beyond doubt”. Being forced to fall back on the 1957 European Convention on Extradition after Brexit would be a “catastrophic outcome”.
Establishing a new extradition agreement is vital, but that process faces serious legal and constitutional obstacles. For example, Germany and Slovakia currently have constitutional bars against extraditing their own citizens to a non-EU country. That would have shielded Zdenko Turtak from extradition from Slovakia to face trial and imprisonment for a violent rape that occurred in Leeds two years ago.
Data gathering and sharing
The Home Affairs Committee agrees with the Government that the sharing of criminal data, including full access to the Second Generation Schengen Information System (SIS II) and other EU databases, must continue after Brexit.
However, the Committee is concerned that there are likely to be significant judicial and legal obstacles and delays to securing a data adequacy agreement and reaching the data protection standards needed to maintain access to those databases. This could include increased examination by the EU of our surveillance and interception regime as we will no longer benefit from the national security exemption for Member States.
The Government could also encounter problems because of its decision not to incorporate Article 8 of the EU Charter of Fundamental Rights into UK law to exempt immigration cases from the Data Protection Bill.
In summary, then, the Home Affairs Committee is concerned that the Government is “worryingly complacent” about the UK’s future access to EU data.
Given the uncertain prospects for a comprehensive deal on law enforcement co-operation, there’s no alternative to contingency planning for the loss of some or all EU security measures. In the belief of the Home Affairs Committee, the Government should dedicate a substantial proportion of the £3 billion Brexit planning fund to policing and security co-operation, including publishing detailed impact assessments of different scenarios, along with fully-costed plans for contingency arrangements.
Pragmatism on both sides
The Home Affairs Committee argues that success in this area of Brexit will require pragmatism on both sides. The EU should not be so inflexible that it confines co-operation to existing models, but the UK should not be rigid about its own red lines, including the future jurisdiction of the CJEU.
The Committee agrees with Home Secretary Amber Rudd that a ‘no deal’ outcome in the sphere of security should be unthinkable, but isn’t convinced that the Government has a clear strategy to prevent the unthinkable from becoming a reality. The Committee has moved to express “serious concerns” about the apparent lack of investment and interest in contingency planning in this area.
The detailed report concludes that it’s time for the Government to flesh out the details of the ‘bespoke deal’ it says it hopes to secure in this area, and to be transparent with both the public and Parliament by explaining how it proposes to address the potential pitfalls and obstacles that the Committee has duly identified.