Brexit: Proposed UK–EU Security Treaty (European Union Committee Report)
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as many noble Lords have alluded to this evening, a week is a long time in politics—and it is only Wednesday. As the noble Lord, Lord Jay, rightly pointed out, we are the calm and thoughtful end of Parliament, and the debate has absolutely reflected that this evening. I am grateful to all those who have spoken. I also take the opportunity to thank the EU Home Affairs Sub-Committee for producing this very good report, Brexit: the Proposed UK-EU Security Treaty. I am grateful for the variety of comments that were made and I echo the point made by the noble Lords, Lord Browne of Ladyton and Lord Kennedy of Southwark: we do not debate this topic nearly enough. It is the most important aspect of our exit from the EU and I totally agree with the noble Lords on that point.
The noble Lords, Lord West and Lord Kennedy, and the noble Baroness, Lady Massey, commented on the fantastic arrangements we have in our co-operation with the EU. I would go further and say that we have led the way in many of the arrangements that we now have. They are absolutely right to be concerned about what that change will mean. It is, in my job, the biggest concern that I have. It is our duty to deliver on the instruction from the British people to leave the European Union, and the best way to do that is obviously with a good deal.
One thing that we should note at the outset is that we are in the happy position of having a good degree of consensus across the political parties and across the two Houses, if not about anything else at least as to what we are looking to achieve from any exit deal from the EU. We all want to protect the operational capabilities that help the police, law enforcement and prosecutors to do their job of protecting the public and bringing criminals to justice. We believe that the UK and the EU have a mutual interest in that outcome. The noble Lord, Lord Kennedy, talked about the Costa del Crime and clearly there is a mutual interest there, given the number of UK nationals who found—and indeed find—themselves there. We also have a good degree of consensus around what the most important operational capabilities are.
Notwithstanding the week’s events, the report of the noble Lord’s committee stands the test of time—I agree with his point on that—and it raises issues that we will inevitably have to answer as part of our exit. The Government of course agree with the committee’s observation that protecting the safety of millions of UK and EU citizens must be the overriding objective. The committee has highlighted the importance of current security, law enforcement and criminal justice co-operation between the UK and the EU. We recognise that, and have said explicitly that the shared tools, measures and capabilities that have been developed over the last 40 years have been proven to save lives. While we accept that our relationship will change as a result of leaving the EU, the firm view of this Government is that working together through different structures should not be at the expense of protecting the public.
On the question of security co-operation during the implementation period, should we enter an implementation or transition period as provided for in the withdrawal agreement, the UK would continue to participate in the existing EU justice and home affairs tools and would also be able to choose to take part in any measures amending or updating them. The UK would no longer be an EU member state during the implementation period, as the noble Lord, Lord Jay, said. In response to one of the points made by the committee, we absolutely do not underestimate the impact of leaving the EU on the UK’s role in EU institutions. Of course we recognise that relinquishing our membership will carry consequences. However, as set out in the withdrawal agreement, common rules would remain in place and representatives or experts from the UK would continue to participate in the meetings of EU agencies and bodies such as Europol, where the presence of the UK is necessary and in the interest of the Union, or where the discussion concerns Acts addressed to the UK and its citizens.
In the political declaration that was published alongside the withdrawal agreement, the UK reached a deal with the EU that would deliver the broadest and most comprehensive security relationship that the EU has ever had with another country. That would include a framework for our future internal security co-operation. All the operational capabilities on which we would wish to co-operate with the EU in future are within scope of that framework. The future relationship envisaged in the framework would enable us to continue to work closely together on law enforcement and criminal justice; keep people safe in the UK, across Europe and around the world by exchanging information on criminals and tackling terrorism, as noble Lords have said; ensure that we can investigate and prosecute those suspected of serious crime and terrorism; support international efforts to prevent money laundering and counterterrorist financing; and allow us to work together to combat new and evolving threats such as cybercrime.
The text agreed by the UK and the EU also references specific capabilities that we had already agreed should form part of that future relationship, including: the exchange of passenger name records so that we can continue disrupting criminal networks involved in terrorism, serious crime and modern slavery; the exchange of DNA, fingerprint and vehicle registration data, ensuring that law enforcement agencies can quickly investigate and prosecute criminals and terrorists; fast-track extradition to bring criminals to justice quickly wherever they have committed a crime; and continued co-operation with Europol and Eurojust. There is also a commitment to examine further areas of co-operation such as the exchange of information on missing and wanted persons and objects and on criminal records.
Overall, the text of the political declaration reflects a shared commitment on the part of the UK and the EU to a high level of future co-operation in relation to internal security. It is a positive first step that we must build on during the next phase of negotiations, turning those commitments into detailed legal text. When it comes to what that detailed legal text should look like, the noble Lord’s committee took the view with regard to the form of our future agreement that the Government needed to show realism about what could be achieved in the timescale available—and he made that point this evening. The committee concluded that time is short, and that it would be preferable for the Government to seek a number of ad hoc security agreements rather than a single, comprehensive one. In their response, as he knows, the Government disagreed with that conclusion.
In our view, the capabilities developed by the EU and its member states are mutually reinforcing, from the initial stages of identification and investigation of a suspect through to arrest, prosecution and prisoner management. As the committee highlighted, there are synergies between different EU tools, with many working together to provide an integrated system to identify, pursue and prosecute criminals and terrorists. That is one reason why the Government consider that a piecemeal approach based on ad hoc agreements would have a more limited value than an overarching, comprehensive agreement on internal security. We also expect a comprehensive agreement of the kind that the Government have proposed to help ensure that we maintain a dynamic relationship in this area that can meet the evolving threats faced by the UK and the EU. In contrast, ad hoc agreements on individual capabilities would likely be static and frozen in time, even as technologies and threats change.
We are very clear on what will make for an efficient negotiation in the time available. The UK’s proposals that were set out in last year’s White Paper would allow co-operation to take place on the basis of existing EU measures, with negotiations focusing principally on the overarching provisions and safeguards in a comprehensive agreement. In our view, this would lead to a faster and more efficient negotiation than having to tackle the same issues over and again in a collection of agreements on individual capabilities.
Lord West of Spithead
I am slightly confused. The Minister mentioned that this would be done in a piecemeal way and that that was slightly better. Now she is talking about an overarching agreement. What are we actually going for, piecemeal or overarching?
Baroness Williams of Trafford
We are going for overarching. I think the point I made was that we disagreed over an ad hoc approach, and that moreover we wanted an overarching approach. I will just look at my notes to make sure that I am not contradicting myself; I hope I am not.
Lord Browne of Ladyton
My Lords, I am reluctant to intervene on the Minister—I think we are all conscious of the time—but I have been listening carefully to what she has said, and she seems to have represented the provisions of the political declaration as being agreed. I am not going to go through all its paragraphs but I have copied down three active verbs from three of them, and they are very important. One of them is “consider further”, one is,
“work together to identify the terms for the United Kingdom’s cooperation”,
and the third is “consider how”, and whether,
“the United Kingdom could contribute”.
To me, that does not imply or state agreement on anything; it just says, “We can talk about these things”. They are all aspirational. Nothing is agreed and, set against Michel Barnier’s clear and specific speech in Vienna in June last year, it cannot be agreed. Some of the issues that the Minister has suggested can be agreed cannot legally be agreed by the EU because we are not part of the ecosystem.
Baroness Williams of Trafford
My Lords, I hope noble Lords will forgive me; I talked about the political agreement as it stands. I am talking about this at a certain point in time—with cognisance of what is happening in another place—so I am talking about the Government’s hopes and aspirations. We have conducted the debate so far in an utterly civilised manner, which is refreshing, so I hope that the noble Lord will accept this in that context.
Lord Soley
I am sorry to interrupt the Minister, but she needs to follow up on the “ad hoc” bit. In her answer to the point from the noble Lord, Lord Ricketts, I originally understood her to say that the Government were looking at an ad-hoc arrangement on the European arrest warrant, yet she now seems to be saying something different. Maybe she needs to take this away and come back on it. This is very important because the European arrest warrant is not something we can do quickly.
Baroness Williams of Trafford
If the noble Lord will indulge me, I will talk about the European arrest warrant when I answer points raised by noble Lords. Perhaps that will clarify it; if it does not, I will come back to noble Lords in writing.
The noble Lords, Lord Jay and Lord West, and my noble friend Lord Kirkhope all talked about data. I made the point earlier about the huge data flows that come from the UK across to the EU. I absolutely accept the point and share their view on the importance of continued data sharing following our withdrawal from the EU. The EU, with the UK and its member states, has established unrivalled mechanisms for the exchange of law enforcement data on a daily basis, as the noble Lord, Lord West, pointed out. Our operational partners have made clear to this and other Select Committees how crucial this data is in our efforts to fight cross-border crime and prevent terrorism.
On the UK securing an agreement on data protection with the EU, we start from a position of trust in each other’s standards and regulatory alignment on data protection. The Data Protection Act 2018—which the noble Lord, Lord Kennedy, and I were involved in—and the adoption of the general data protection regulation strengthened UK data protection standards. I can quite safely say that we often surpass what is required of EU states. We were also one of the first countries to successfully implement the law enforcement directive. This provides a unique starting point for an extensive agreement on the exchange of personal data that builds on the existing adequacy framework. We believe that the EU’s adequacy framework provides the right starting point for the arrangements that the UK and the EU should agree on data protection, and the political declaration notes that the adequacy decision will form the basis of future data transfers between the UK and the EU. It also outlines that the Commission is committed to starting this assessment as soon as possible after exit day, with the intention to have a decision in place by the end of 2020; that commitment is relevant to the committee’s concerns about the sequencing of negotiations on data and security.
The committee and the noble Lord, Lord Jay, also reiterated the concern about the cliff edge and there being no mechanism in the draft withdrawal agreement for extending the implementation period. Both the UK and the EU agree that the implementation period has to be time limited, and the legal text sets an end date of 31 December 2020. However, the withdrawal agreement now also includes the possibility to extend the implementation period by mutual agreement of the parties. The committee highlighted the possibility of a security cliff edge, whether at the end of March or at the end of the implementation period. As the House would expect, the continued safety and security of both UK and EU citizens remains our top priority. This is why we are preparing for all eventualities, including the no-deal scenario that we are all seeking to avoid.
As part of our planning for such a scenario, we are preparing to move co-operation to alternative, non-EU mechanisms which we already use for co-operating with many non-EU countries. Broadly speaking, this would mean more use of Interpol, Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. They are tried and tested avenues, so we are in a slightly different position in this area compared to those areas in which we are having to put in place new and unprecedented arrangements. We are none the less clear that these contingency arrangements will not be like-for-like replacements of the EU tools and would result in a reduction of mutual capability.
Baroness Williams of Trafford
Will the noble Lord indulge me, as I am really running out of time? I have not said half of what I wanted to say. If the House will allow me to have a few additional minutes, I will write to noble Lords on any outstanding points.
The Government’s White Paper outlined that our future security relationship should be underpinned by appropriate safeguards, including respect for human rights—which the noble Lords, Lord Anderson and Lord Kennedy, and the noble Baroness, Lady Ludford, spoke about—comprehensive data protection arrangements and robust, appropriate governance arrangements. The UK is committed to membership of the European Convention on Human Rights and we believe that an agreement should include a mutual commitment to individuals’ rights. We are clear that we will remain party to the ECHR after leaving the EU. In line with this, the text of the political declaration recognises that appropriate reciprocal safeguards must be put in place to ensure that individual rights are protected and disputes can be effectively resolved. It is also clear that our future relationship must include an appropriate balance of rights and obligations; safeguards must be appropriate to the level of co-operation taking place.
I will now turn to some specific points raised; I will go over time. The noble Lord, Lord Jay, the noble Baroness, Lady Ludford, and others talked about there being no reference to SIS II or ECRIS in the political declaration. The noble Lord, Lord Bach, who talked about policing, raised concerns that the UK would be less safe without them. Under the terms of the withdrawal agreement, we will continue to use EU tools and data platforms, including SIS II and ECRIS, for the duration of the transition period. The political declaration text reflects that the UK and the EU have agreed to continue to exchange information on wanted or missing persons and objects and on criminal records, and that our future relationship should include capabilities which allow for that.
A number of noble Lords voiced their concerns about the European arrest warrant, and whether we will still be able to use it. Basically, the UK and the EU have agreed to establish arrangements enabling the UK and member states to surrender suspected and convicted persons efficiently and expeditiously. The political declaration also provides the basis for agreeing surrender arrangements, including streamlined procedures and time limits maximising the effectiveness of such arrangements. Both the UK and the EU recognise the importance of continued, close and effective operational co-operation on extradition. The legal vehicle through which co-operation in this and other areas will be delivered will be for the next phase of negotiations. I hope that answers the noble Baroness, Lady Massey, and the noble Lords, Lord Anderson, Lord Kennedy and Lord Jay.
The noble Lords, Lord Jay and Lord Kennedy, talked about security co-operation in Ireland and Northern Ireland and its historical importance. I totally agree with them on the importance of that. The comprehensive security partnership we are seeking with the EU will include the Republic of Ireland, ensuring that this important co-operation can continue.
The noble Lord, Lord Jay, and the noble Baroness, Lady Smith of Newnham, talked about the role of the CJEU after exit. The UK has said that, while it will be outside the direct jurisdiction of the CJEU, it is prepared to make commitments with respect to the CJEU as set out in the White Paper. This is reflected in the political declaration, in which we have made it clear that the closer and deeper the partnership, the stronger the accompanying obligations.
The noble Lords, Lord Ricketts, Lord Soley, Lord Browne of Ladyton and Lord Bach, and the noble Baroness, Lady Smith of Newnham, talked about contingency planning. We are working intensively with operational partners to ensure we are ready and well placed to make best use of the alternative channels with EU member states. We are not complacent and will continue to work closely with them as we put those plans into action.
I am sorry to go back to the European arrest warrant, but the noble Lord, Lord Jay, asked about live cases. The requests we have made will be a matter for EU member states. The Home Office and our operational partners are engaging with our counterparts in EU member states to find out how they intend to handle live cases at the point we leave. Our overall objective in this area, shared by our counterparts in Europe, is to minimise disruption to operational work. The legislation is quite clear on incoming requests. Under the Extradition Act, if we make an arrest on an EAW the court proceedings have to continue under that part of the Extradition Act. In these cases as well, our overall aim will be to ensure that cases are handled without disruption.
I have run out of time. There are a number of questions that I have yet to address. This has been an excellent debate. I hope the other place has listened to the civilised way we have conducted ourselves. I will write to noble Lords fully on the questions I have not yet answered. I thank noble Lords for taking part in the debate.