Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Anderson of Ipswich Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, this country can be proud of its historic contribution to the EU’s joint effort on policing, law enforcement and security. We were not, of course, in at the start of everything. However, we can take credit for a great deal: the policy and legislative framework for countering terrorism, borrowed largely from our own; the reinvention of Europol as a vehicle for intelligence-based policing; the repurposing of Eurojust to accommodate our distinctive prosecutorial systems; the huge contribution made by our courts to resolving conflicts of laws under the Brussels convention and regulation; and the promotion of legislation—notably in relation to the use of data for crime-fighting—where UK influence in the Council and the Parliament gave much-needed emphasis to operational imperatives over some of the more academic notions of privacy.

All this provides a good example of the wider truth, perhaps better understood abroad than at home, that EU membership was not something sinister that others did to us but rather an effective vehicle for the export of British values and traditions to a reunited continent and a wider world. To be fair to the promoters of Brexit, the unravelling of police and judicial co-operation rarely featured in their vision of the sunlit uplands. The debate over the Protocol 36 opt-out had already convinced Theresa May and most others in government that the country’s security was better served inside than outside these EU mechanisms. Part 3 of the TCA was thus, to a large extent, an exercise in damage limitation with few, if any, gains to be expected. It is some comfort that, subject to anything the noble Lord, Lord Evans of Weardale, will say, co-operation between intelligence agencies will continue undiminished outside EU mechanisms.

I had the privilege of serving on the sub-committee that produced this report, chaired with deftness, humour and virtual conviviality by the noble Lord, Lord Ricketts, and serviced by our excellent staff. The litany of committees, contact points, liaison officers and double-keying described in its pages seems to me at least a poor exchange for the seamless operation and strategic leadership that we used to enjoy. Online crime in particular knows no borders, and policing needs to reflect that as far as possible, both at home and internationally. However, while there were predictable disappointments in the TCA, there were negotiating successes too. We have a solid base for closer integration in the future, although that integration is unlikely to be on British terms and its speed will no doubt be a function of political temperature as well as operational need.

I end with a few questions. Can the Minister tell us how the numbers of those being surrendered to the UK are holding up, given the loss of access to SIS II at the end of 2020 and the unwelcome fact that 12 member states, comprising more than half the population of the EU, have declared that they will be invoking their constitutional rules as a reason not to surrender their own nationals to the UK, or to do so only with their consent? Does the Minister know when the EU might, in the interests of its own people as well as ours, withdraw its short-sighted bar to UK accession to the Lugano Convention?

Lastly, Part 3 of the TCA depends on the maintenance of high standards on both human rights and the protection of personal data. Brussels is no doubt looking carefully at two recent consultations, by the Ministry of Justice on human rights reform, and by the DCMS, entitled Data: a New Direction. On data, the Centre for European Reform in a report of 15 November last year wrote:

“There are three scenarios, any one of which could kill the EU’s adequacy decision: the European Court of Justice … ruling that the UK’s intelligence gathering should have prevented the Commission granting adequacy; the Commission choosing to withdraw adequacy because the UK diverges too far from the GDPR in the future; or the UK unilaterally deciding to allow seamless transfers between the UK and third countries, which would probably compel the Commission to revoke the adequacy decision.”


Some of the proposals in the DCMS consultation seem in that context rather close to the bone. So my final question is: what assurance can the Minister give the House that Part 3 of the TCA will not be placed in jeopardy by the weakening of current protections for data and for human rights?

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I join noble Lords in thanking the noble Lord, Lord Ricketts, for securing this debate. I also thank those who contributed to the former European Union Committee’s thoughtful and insightful report Beyond Brexit: Policing, Law Enforcement and Security, which was published in March 2021. I echo his words on Ukraine. It is important that we work with our EU partners, particularly at the moment, and that we are a united force in efforts to support Ukraine and to support the refugees fleeing from Ukraine. I updated the House yesterday on the number of visas issued, which as of yesterday morning was 1,305. That figure is going up rapidly, which is a good thing.

The Government responded to the report at the time, but it is welcome that time has been found to discuss these important matters more fully. The report was informed by the work conducted by the Security and Justice Sub-Committee, which the noble Lord, Lord Ricketts, previously chaired. I pay tribute to the breadth of expertise on that committee, which has been replicated in its successor, the Justice and Home Affairs Committee.

The Security and Justice Sub-Committee’s work was instrumental in supporting parliamentary scrutiny as we sought to consider, and ultimately negotiate, our new relationship with the EU on law enforcement and criminal justice matters. To echo the words of the noble Lord, Lord Ricketts, and others, I am very pleased to be able to speak to this as it informs a lot of the aspects of my work and it has not been much debated in Parliament. Before we start, I also want to echo the points made by the noble Lord, Lord Evans of Weardale, on national security and intelligence sharing. The decisions about that are outwith the TCA and the EU, and that is a very good thing.

I will start with law enforcement and criminal justice in the TCA before responding to some of the points made during this debate. On the deal we secured, the Government were very clear in wanting to deliver a security deal with the EU that gave our law enforcement the tools and the co-operation it needs to keep the public safe. That is what we delivered. The UK-EU TCA was signed in December 2020 and was implemented in domestic law via the European Union (Future Relationship) Act. Part 3 of the TCA established our new law enforcement arrangements, and they are the terms we have been operating under since 1 January 2021. I think noble Lords will bear in mind that this period coincided with a global pandemic, so in some ways time will tell better how this is operating because we have been in such an unprecedented environment.

The agreement was unprecedented for the EU in terms of co-operation with a third country, and through it we were able to secure a high level of co-operation on key capabilities, including: streamlined extradition arrangements, arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies; arrangements enabling the continued, fast and effective exchange of national DNA and fingerprint data and future exchange of vehicle registration data via the Prüm system; arrangements enabling the fast and effective exchange of criminal records data; and arrangements providing for continued transfer of passenger name record data from EU airlines. We were pleased to see that the report broadly welcomed these arrangements and the co-operation that they facilitate.

The operation of the new arrangements has been discussed positively and negatively in the debate. I am pleased to note that during the first meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation, the UK and EU agreed that overall implementation of the law enforcement and criminal justice part of the TCA has gone well and that the agreement is operating effectively. For example, the exchange of DNA and fingerprint data continues. Since connecting to the Prüm biometric data-sharing system in July 2019, the UK has received more than 13,000 DNA and fingerprint matches from EU member states. EU member states have collectively received more than 45,000 matches from UK data over the same period. This allows UK and EU law enforcement to progress serious cases where crime scene evidence would otherwise be unidentified, such as in rape and murder cases.

Significant volumes of criminal record data continue to be exchanged between the UK and EU member states, enabling us to better protect the public. Between April and June 2021, we received around 3,500 conviction notifications from EU member states relating to UK nationals. This compares with around 2,500 notifications for the same period in 2020. UK law enforcement and criminal justice partners also continue to co-operate via EU agencies Europol and Eurojust, including on issues such as small boats. The transfer to the UK of PNR data for flights between the EU and the UK continues. Processing of PNR data during 2021 enabled the disruption of several hundred attempts by organised immigration crime groups to facilitate the illegal entry of individuals to the UK on scheduled flights.

Since the committee’s report was published, a number of the outstanding issues the committee noted have been resolved. The Partnership Council, the mechanism for supervising and overseeing operation of the TCA, has been established and met for the first time in June 2021. The Specialised Committee on Law Enforcement and Judicial Cooperation has also been set up and met for the first time in October 2021. The agenda and minutes were made available to Parliament and published on GOV.UK.

As foreseen in the TCA, we have signed working arrangements with Europol and Eurojust. These came into effect last year and set out the practical and operational detail of co-operation under the TCA, putting operational co-operation with these institutions on a firm footing for the future. We have also made important progress concerning the evaluation of our DNA and fingerprint capabilities under the Prüm system, as required by the TCA.

While the terms of our co-operation with EU member states may have evolved, shared threats remain ever present. Clearly, Russia’s invasion of Ukraine, a flagrant breach of international law and norms, is a stark reminder of that. I hope I have made it very clear to noble Lords that the UK is firmly committed to co-operating with our EU partners on matters of shared security. The TCA puts us in a very strong position from which to move forward.

I turn now to some of the specifics raised by a number of noble Lords, in no particular order. I think the most commonly asked question was about our disconnection from SIS II. The EU took the position throughout negotiations on the TCA that it was legally impossible for a third country outside the Schengen area to participate in SIS II. That means we have returned to co-operating with EU member states via Interpol, as we did before 2015, and bilateral channels, as we have done throughout with other international partners outside the EU.

Having now returned to Interpol channels, we are routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. We are also investing in longer-term technical capabilities to support law enforcement and data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

The noble Lords, Lord Anderson, Lord Ricketts and Lord Paddick, and maybe others, asked about Interpol and double-keying. We are committed to working with the wider international community to ensure that Interpol continues to be an effective tool for law enforcement co-operation. For example, the Government secured commitments at the meeting of G7 Interior Ministers in 2021 to enhance the effectiveness and operational value of Interpol’s tools and capabilities.

On the differences between data being available via Interpol versus what was previously possible with SIS II —I think this goes some way to answering the question from the noble Lord, Lord Ponsonby—there is an automated upload of incoming Interpol circulations to domestic systems. Information is available via policing systems within the hour of receipt. If the NCA is notified that a case is urgent, specific alerts can be uploaded to domestic systems more rapidly. As noble Lords touched on, we are also investing in longer-term technical capabilities to support law enforcement data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

On progress on I-LEAP, the first priority of the programme is to further enhance connectivity to Interpol. We recently launched two pilots that are testing I-LEAP’s real-time connection to Interpol alerts on subjects of interest in a live environment. Its gradual rollout to UK policing will commence later this year, following the conclusion of the two pilots.

Several noble Lords referred to the new extradition arrangements we have put in place. The agreement with the EU provides for streamlined extradition arrangements based on the exchange of warrants between judicial authorities, similar to the EU’s arrangements with Norway and Iceland. They will enshrine key domestic extradition safeguards that were previously not contained in the EAW, or European arrest warrant, framework decision. This includes making it clear that a person cannot be surrendered if their fundamental rights are at risk, if extradition would be disproportionate or if they are likely to face long periods of pretrial detention. We estimate that these new arrangements are functioning well. Since January 2021, arrests on extradition requests between the UK and the EU and vice versa have continued, and cases are proceeding through the courts.

On extradition disruption, there are some very specific issues concerning a handful of member states’ operation of the new extradition arrangements. These issues have largely been resolved. Where this remains live with one member state, we continue to engage to resolve this as swiftly as possible.

The noble Lord, Lord Anderson, asked about bars on extradition of own nationals. They are a common feature of arrangements outside the EAW, which neither the UK nor the EU sought to retain during the Brexit negotiations. That is why the TCA enables countries with a relevant fundamental principle or practice of their domestic law to refuse to extradite their nationals to face trial or serve a sentence.

Through the TCA we have ensured that alternative paths to justice are available for those who want to face trial. The agreement provides for a mechanism whereby a person could be extradited to the UK, face trial then return to their home country to serve their sentence.

The noble Lord, Lord Hannay, asked about statistics on this. The NCA, the National Crime Agency, is responsible for the collation and publication of data relating to extradition requests to and from the UK and EU member states, and it publishes the data on an annual basis. The last set of data was published in May 2021, and I understand that the next set is due to be published in spring 2022.

Noble Lords asked about the extension to the Prüm evaluation period and whether the EU could suspend Prüm co-operation. The EU and the UK mutually agreed to trigger the provisions in the TCA, which had foreseen that an extension might be necessary. Prüm DNA and fingerprint exchanges are continuing as normal. Following the visit of the EU evaluation team to the UK on 23 to 25 November last year, I remain confident that the UK will satisfy the requirements of the EU evaluation in this area and retain access to DNA and fingerprint exchange capabilities.

The noble Lord, Lord Ricketts, asked why the UK does not exchange vehicle registration data with EU member states under Prüm. We are working with the DVLA and UK policing partners to prepare our systems for connection. The UK will be required to undergo a pre-connection evaluation, including test exchanges and a pilot run, when the time comes.

The implementation period for PNR data transfers has been extended. We agreed an implementation period while the UK scopes, designs and implements a capability that meets the new and unique requirement in the TCA for deletion of EU PNR data that does not need to be retained.

The noble Lord, Lord Ricketts, and other noble Lords also asked about Europol and Eurojust. The agreement provides for a relationship with Europol and Eurojust that reflects the scale of our contribution to the work of the agencies and facilitates continued close and effective co-operation. For example, it preserves the UK’s access to Europol’s core capabilities, including the presence of a UK liaison bureau in agency headquarters and access to the agency’s valuable multilateral co-ordination and analytical functions. It also demonstrates the UK and EU’s intent to ensure that data exchanges happen as quickly as possible.

On our relationship with Europol, which both the noble Lord, Lord Ricketts, and my noble friend Lord Davies of Gower asked about, the UK co-operates closely with Europol via the terms of the TCA as well as the UK-Europol working and administrative arrangement, in a way which protects and enhances respective capabilities.

I am running out of time, but I want to say something about Russia and the relationship with Interpol. We will continue to work with Interpol to uphold the organisation’s integrity and to ensure that members are not able to misuse its systems for illegitimate purposes. We are confident that, with strong, continuous support from the UK and our international partners, Europol’s robust checks and mechanisms will be sufficient to prevent misuse of its systems by any member.

The noble Lords, Lord Anderson and Lord Ricketts, asked about data adequacy. Our data protection standards were rightly recognised in our adequacy decisions secured in June of last year. We remain committed to high data protection standards, and this commitment is reflected in the data protection safeguards incorporated into the TCA. Adequacy decisions complement the TCA, which delivers a comprehensive package of capabilities that ensure that we can continue to work with counterparts across Europe to tackle serious crime and terrorism, protecting the public and bringing criminals to justice.

On Part 3 of the TCA—law enforcement and criminal justice provisions—we agree that good data protection underpins international law enforcement co-operation, which is why the UK is firmly committed to maintaining high data protection standards now and in the future. Co-operation under Part 3 is not dependent on adequacy, and there is no legal link between the two. This would have been unprecedented for an agreement of this nature. The noble Lords, Lord Hannay and Lord Ricketts, asked a pertinent question on DCMS data reform. The EU rightly recognised our standards during the adequacy assessment process, but, as the European Data Protection Board and the European Commission have reiterated, a third country does not need identical legislation to be considered equivalent.

I turn finally—as I am out of time—to the Lugano Convention. The noble Baronesses, Lady Goudie and Lady Hamwee, and the noble Lord, Lord Ponsonby, asked about this. The UK’s application to accede to the convention is sensible and pragmatic, and forms a good basis for continued civil judicial co-operation. It is clearly in the mutual interests of the UK and EU/EFTA citizens, families and businesses. It is an international agreement specifically open to third parties with no requirement for single market membership, and the UK meets all the criteria for accession. Switzerland, Norway and Iceland have consented to the UK joining but, on 23 June last year, the European Commission issued a formal diplomatic note to the Swiss depositary, stating that the European Commission was

“not in a position to give its consent”

to UK accession. This means that the depositary cannot at present invite the UK to join. Several member states see value in our accession to the Lugano Convention and express warm support while others are still undecided or, we might say, lukewarm. We will continue to engage with EU member states about our Lugano application but, given the EU’s stated position, it does not seem likely that they will consider our application at this time.

In concluding, I thank noble Lords, particularly the noble Lord, Lord Ricketts, not only for their contribution during the debate but for the insight, dedication and hard work that has gone into producing the Beyond Brexit report.

[Lord Anderson of Ipswich (CB)]

Before the Minister sits down, she made a most intriguing reference when discussing extradition to a small handful of states where specific problems had presented themselves, and to one state, if I heard right, where those problems continue. Is she able to be any more specific?

[Baroness Williams of Trafford (Con)]

I wondered if the noble Lord might intervene on that. Yes: it is Cyprus.