Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020
(Limited Text - Ministerial Extracts only)
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Baroness Williams of Trafford
That the draft Regulations laid before the House on 13 October be approved.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the House will be aware that the Government have been preparing for the end of the transition period on 31 December. This statutory instrument forms one of the legislative changes that we are making as part of these preparations to ensure the law is clear and accessible on cross-border law enforcement and criminal justice matters.
I hope it is clear from the statutory instrument and accompanying documents not just what the regulations do, but also what they will not do. These regulations are required under any EU exit scenario. They will not enact the outcome of any negotiations; in that sense, they are scenario agnostic. Instead, they will provide legal and operational clarity on the handling of live law enforcement and criminal justice cases and procedures at the end of the transition period. They will ensure that the UK has a fully functioning statute book.
They will do this in three ways. First, they will make the changes needed in UK law to give full effect to the separation provisions contained in the withdrawal and separation agreements with the EU and the EEA-EFTA states. These provisions concern ongoing cases and procedures at the end of the transition period and place reciprocal obligations on the UK, EU and EEA-EFTA states regarding their handling. For example, should UK authorities receive a European investigation order—an EIO—from an EU member state or vice versa and be unable to execute it before the end of the transition period, there will be a legal obligation to finish executing that request under the EIO procedure after the transition period ends. Ensuring these separation provisions are in place for this and other EU measures will enable the orderly completion of those ongoing cases and procedures.
Secondly, and in a similar vein, they will make the necessary amendments in UK law to give full effect to the related data provisions contained within these agreements. These provisions concern data accrued before the end of the transition period or under the separation provisions and will provide clarity for operational partners on the handling of those data. As an example, where a European Criminal Records Information System—ECRIS—request for criminal record information is made by the UK to an EU member state, or vice versa, before the end of the transition period and the information is received after the end of the transition period as a result of that request the restrictions on the use of personal data under ECRIS will still apply.
Thirdly, the regulations will address a number of deficiencies that would otherwise arise at the end of the transition period, for example, where new EU law has come into force during the period since the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 were passed. Addressing these remaining deficiencies will ensure that the UK has a fully functioning and relevant domestic statute book at the end of the transition period.
Overall, the scope of this statutory instrument is narrow. It gives full effect to the separation provisions contained in the withdrawal and separation agreements by making the necessary technical changes in UK law. This will provide legal and operational clarity on the handling of live law enforcement and criminal justice cases at the end of the transition period and will therefore enable the UK to meet its legal obligations under these agreements. I am sure noble Lords will agree that that is essential.
The safety and security of our citizens is the Government’s top priority and this statutory instrument helps to support that. I commend these regulations to the House. I beg to move.
Baroness Williams of Trafford (Con)
I have to tell the noble Lord, Lord Rosser, that he was cut off just at the appropriate moment, as he was about to finish. I thank him and all noble Lords for their contributions to this debate and their constructive approach to the regulations, although many noble Lords did not talk about the regulations at all; they took this opportunity, and rightly so, to talk about other issues around the end of the transition period. I also thank my noble and learned friend Lord Mackay of Clashfern, who never fails to impress me, for explaining the whole thing in a few sentences. I was glad to hear that echoed by my noble and learned friend Lord Garnier.
As demonstrated by the debate, there is consensus on the need to provide operational and legal clarity at the point of transition for our operational partners. Doing so enables the orderly completion of ongoing cases and procedures. It is also evident that there is support for the Government meeting our legal obligations under the withdrawal and separation agreements. This is exactly what the statutory instrument does.
The noble Lord, Lord Paddick, bemoaned the 50 different elements to the SI. Interestingly and unusually, there were no comments on this from the Secondary Legislation Scrutiny Committee. The noble Lord, Lord Reid, talked about the lack of time. I cannot deny that time is pressing; we need to establish and conclude these things before 31 December.
The noble Lord, Lord Mann, asked me a question about how many deals. It is impossible to say at this point. The focus is clearly to reach agreement, which we are working intently to achieve. I cannot comment beyond that. My noble and learned friend Lord Garnier made the correct point that criminals do not care whether we are in or out and will exploit any softening of co-operation. That is absolutely correct. I reassure my noble and learned friend that we will continue to work closely with our European partners to tackle our shared security threats and promote the safety and security of our citizens.
We have been negotiating an agreement on law enforcement and criminal justice to equip our operational partners on both sides. There is a good degree of convergence on the operational capabilities that the UK and EU have been negotiating, and we have been able to make progress since we began negotiating legal texts. It is clearly in the interests of both sides to reach an agreement.
The noble Lords, Lord Reid and Lord Rosser, talked about a day-one non-negotiated outcome. We must continue to prepare for all possible scenarios at the end of the transition period. In the event that it is not possible to reach an agreement, the UK has well-developed and well-rehearsed plans in place. They involve transitioning and co-operation with EU member states to alternative non-EU arrangements by the end of the transition period, where available. Broadly speaking, they would mean making more use of Interpol, Council of Europe conventions and bilateral channels. They are tried-and-tested mechanisms, which the UK already uses for co-operation with many non-EU countries. Interpol was the primary means by which the UK exchanged warnings and alerts with EU member states as recently as 2015, and we continue to work closely with the police and other law enforcement and criminal justice agencies in the UK, as well as the devolved Administrations, to ensure that we are ready for a range of possible outcomes at the end of the year.
The negotiators have been in contact almost every day since 22 October and they are continuing to work intensively to bridge the gaps that remain between us. There has been some progress in recent days but, as the noble Lord, Lord Reid, pointed out, time is now very short. We have been consistently clear that if we cannot reach an agreement that fully respects UK sovereignty, we will leave on Australia-style terms and prosper in doing so.
Law enforcement partners have been working for some time to transition to Interpol channels. We have established and funded the International Crime Coordination Centre to drive readiness. Alongside extensive domestic preparations, we are engaging bilaterally with member states.
The noble Lords, Lord Paddick, Lord Reid and Lord Rosser, talked about the loss of SIS II. We recognise the mutual loss of capability that UK non-participation in SIS II entails. As I have said, Interpol channels provide a tried and tested mechanism for exchanging alert information. It remains the primary means by which EU member states share information with partners within the EU and globally that do not have access to SIS II. We are committed to making our use of Interpol channels as effective as possible. All Interpol circulations received by the UK are now routinely made available at the front line for police and border officers. Measures such as the Extradition (Provisional Arrest) Act give our officers the power to act effectively on information received. The noble Lord, Lord Reid, asked about bilateral agreements as a fallback for losing SIS II. As I have said, there is extensive engagement around EU member states’ ability to use Interpol channels if no agreement can be reached on SIS II.
The noble Lord, Lord Paddick, referred to Neil Basu’s comments. The safety and security of our citizens is the Government’s top priority. If it is not possible to reach an agreement with the EU, the UK has well-developed and well-rehearsed plans in place. Broadly speaking, we would have to make more use of Interpol, Council of Europe conventions and bilateral channels. We want to continue to be a global leader on security and one of the safest countries in the world.
The noble Lords, Lord Reid and Lord Rosser, referred to the letter from Martin Hewitt. There is a good degree of convergence in what the UK and the EU have been negotiating in terms of operational capabilities. On law enforcement, it is self-evidently in the interests of both sides to reach an agreement that equips operational partners on both sides with capabilities to protect citizens and bring criminals to justice. We continue to work closely with the police and other law enforcement agencies in the UK to ensure that we are ready for a range of outcomes at the end of the year. As regards his comments on SIS II, we have always said that there will be some mutual loss of capability in the event that the UK no longer had access to it. That is why we offered to reach an agreement with the EU that delivers a similar capability. The European Commission has consistently maintained that it is not legally possible for a non-Schengen third country to co-operate through SIS II but we have maintained our offer to that end.
Noble Lords talked about the loss of the European arrest warrant and the diminishing of safety to that end. We have left the EU and the EAW is used exclusively by EU member states. Our proposals include greater safeguards than those within the European arrest warrant and the UK will continue to be, we hope, one of the safest countries in the world.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Ritchie, talked about Europol and Eurojust. We are not seeking membership of either agency. That is not how third-country arrangements with these agencies work. In line with the UK approach, our legal text provides for co-operation between the UK and Europol, and the UK and Eurojust, to facilitate multilateral law enforcement and criminal justice co-operation. The type of relationship that we are proposing is in line with third-country precedents, going beyond those only where it is in our mutual interests to do so.
The noble Baroness, Lady Ritchie, also talked about the Northern Ireland protocol. We are committed to implementing our obligations under the withdrawal agreement, and published a Command Paper in May that sets out the approach we will take. We have also laid secondary legislation to implement aspects of the withdrawal agreement to help provide certainty for businesses and citizens in Northern Ireland, to ensure that the statute book is fully functioning for the end of the year, and to discharge our obligations under the protocol.
As for our engagement with the devolved Administrations, the collaborative work with them on the secondary legislation programme covering devolved matters required for EU exit and during the transition period has been a success, with around 300 UK Government SIs laid with the agreement of the devolved Administrations. We have made no secondary legislation without the consent of the devolved Administrations.
We have engaged constructively with the devolved Administrations on readiness legislation, including sharing a list of all expected SIs to the end of the transition period that legislate in areas of devolved competence. Regular forums are held with them, at both official and ministerial level, for legislation to be discussed and any concerns raised. I know that the Home Office regularly meets about 20 delivery partners to review the preparations and monitor any risks, including any in relation to the PSNI.
The noble Lord, Lord Rosser, asked about transfers of passenger name records post transition period. In the event of a non-negotiated outcome, we will engage directly with all EU airlines operating to the UK to conclude arrangements for the transfer of PNR data to the UK in compliance with UK law requiring disclosure of data. The proposed agreements will set out the data protection safeguards operated by the UK that can enable EU airlines to disclose data in compliance with EU data protection legislation. It is a decision for each airline whether to conclude a data transfer agreement with the UK. In the event of a negotiated outcome, where there is a legally binding international agreement on PNR between the UK and the EU, transfers from EU airlines can continue without any issue. I hope that I have covered all the points that noble Lords have made, and I commend the regulations to the House.