Beyond Brexit: policing, law enforcement and security

Charley Coleman

On 11 March 2022, the House of Lords is due to debate the European Union Committee’s report Beyond Brexit: policing, law enforcement and security (26 March 2021). The Government responded to the committee on 15 June 2021.

Background

Part three of the Trade and Cooperation Agreement (TCA) forms the basis of cooperation between the UK and the EU on law enforcement and judicial cooperation in criminal matters. The TCA is the deal agreed between the UK and the EU that forms the basis of their future relationship following Brexit. The TCA was agreed in December 2020 and was applied provisionally from 1 January 2021 but formally entered into force on 1 May 2021.

Part three of the TCA allows the UK to maintain different levels of access to certain EU databases, for example DNA and fingerprint data can continue to be exchanged through the Prüm system subject to certain restrictions and preconditions. As a third country, the UK has lost access to the Schengen Information System (SIS II) and will not be a member of Europol. However, the TCA does enable UK liaison officers to be present in Europol’s headquarters to facilitate cross-border cooperation. The UK’s access to the European Arrest Warrant is replaced under the TCA by extradition arrangements “akin to the EU’s Surrender Agreement with Norway and Iceland”.

The operation of the TCA is overseen by the Partnership Council and a number of specialised committees, including the Specialised Committee on Law Enforcement and Judicial Cooperation, which addresses matters covered by part three. Article 776 of the TCA itself provides for a joint review of the implementation of the agreement every five years. Article 691 allows for part three to be “jointly reviewed in accordance with article 776 or at the request of either party where jointly agreed”. Under article 692, “each party may at any moment terminate this part by written notification through diplomatic channels”. Should that happen part three would “cease to be in force on the first day of the ninth month following the date of notification”.

Part three of the TCA: European Union Committee’s report

The House of Lords European Union Committee published its report, Beyond Brexit: policing, law enforcement and security, on 26 March 2021, three months after the provisional application of the TCA started. The European Union Committee has since been succeeded by the European Affairs Committee.

The European Union Committee described the provisions of part three of the TCA as “detailed and sometimes complex arrangements enabling effective cooperation on a range of policing and criminal justice measures”. The committee said that it broadly welcomed the provisions of part three which allowed for the continued sharing of passenger name record data and for the UK’s continued access to EU databases covering fingerprints, DNA and criminal records. It argued that these played “an essential part” in cooperation between the UK law enforcement counterparts in the EU. The committee also described part three, title VII’s, provisions on surrender as “ambitious and unprecedented, for a non-EU, non-Schengen country, in establishing a streamlined process for the extradition of criminals and criminal suspects between the UK and the EU States”. However, it said that the “untested arrangements” concerning “the liberty of the individual” merited continued scrutiny by Parliament. The committee also welcomed the provisions of the TCA that “tie collaboration between the UK and the EU to the parties’ ongoing commitment to the rule of law, the European Convention on Human Rights, and data protection rights”.

The committee said the agreement would allow the UK to continue its involvement with Europol and Eurojust in a way “that reflects its status as a country outside the EU, but with a continuing close relationship on law enforcement and criminal justice”. It said it was similar to arrangements agreed with the US and Canada. As such, the UK would continue to share data and expertise. However, the committee said the UK would “no longer have a role in the overall management of those agencies, or a say in their strategic direction”. The committee argued there was potential to develop the UK’s relationship with Europol and Eurojust under the auspices of the Specialised Committee on Law Enforcement and Judicial Cooperation. It called on the Government to report to relevant select committees “at least annually, on the development of UK’s important relationships with Europol and Eurojust”.

However, the committee said it was an “unavoidable consequence” of the UK’s position outside of the EU that the TCA did not provide for the “same level of collaboration that existed when the UK was a Member State”. It also noted that the UK’s “influence and leadership” in shaping enforcement and judicial cooperation in EU law would come to an end.

The committee described the UK’s loss of access to SIS II as “one of the most significant consequences of the UK’s new third country status”. It said the importance of real-time access to data under SIS II had been raised “repeatedly” in evidence it had received. The committee said that the effectiveness of the substitute—the Interpol I-24/7 database—depended upon EU member states being willing to upload the same information to this database, as well as technical improvements to UK systems to make I-24/7 data “available to its frontline law enforcement in minutes, not hours”. The committee recommended that the Government reported to relevant committees of both Houses on progress in improving uploading Interpol alerts onto the police national computer and on progress in encouraging EU member states to “double-key” data into Interpol databases.

The committee said that there were a number of factors that meant it was “cautious about drawing firm conclusions” about the effectiveness of the agreement in practice. These included:

the provisions are detailed and complex, and many of them are untried;
the capacity of UK law enforcement agencies to share key data is subject to an EU evaluation of how the UK handles that data;
if the UK chooses not to stay aligned with EU data protection rules in the future, this could risk the agreement’s suspension, or even termination;
the UK’s data protection regime could be successfully challenged in the courts, triggering a dispute between the parties;
the data protection arrangements set out in the agreement that seek to insulate it from any future loss of data adequacy are yet to be tested; and
the operational effectiveness of the extradition arrangements, which replace the European arrest warrant.

In regard to the TCA’s wider review clause, and part three’s own review provisions, the Committee said it believed Parliament would want to be consulted during these processes:

Alongside the TCA’s wider review clause, Part Three has its own five-year review clause and a complex array of provisions covering its termination and suspension based on the parties’ conduct linked either to the fulfilment of specific obligations and/or compliance with human rights and data protection standards. We anticipate that Parliament and our successor committee will wish to be fully consulted as part of the review process, and we look to the Government to facilitate this nearer the time.

The committee’s report also considered the issue of family law after Brexit. The TCA does not contain provisions on cooperation between the UK and the EU in this area. The committee referenced three ‘Brussels regulations’ which governed jurisdiction, recognition “and enforcement of judgments in civil and family law matters across the EU”. The committee said that since 2017 it had heard from expert witnesses that said that “if and when the three Brussels regulations fell away, the UK would fall back on a more complex and less effective web of international conventions and instruments”. The committee raised the UK’s potential accession to the Lugano Convention 2007, an international treaty agreed between the EU, Denmark (separate from the EU because it has an opt-out) and Iceland, Norway and Switzerland. UK in a Changing Europe explains the Lugano Convention seeks to clarify “which national courts have jurisdiction in cross-border civil and commercial disputes and ensure that judgments taken in such disputes can be enforced across borders”. Following its departure from the EU, the UK has applied to accede to the convention as an independent member. In its report, the House of Lords European Union Committee argued that the Lugano Convention “offers a simple solution in relation to civil law matters”. The committee noted that the EU and Denmark had not yet supported the UK’s application and the unanimous agreement of all the parties would be required for the UK to join. It called on the Government to outline the steps it was taking to reach a resolution with the EU.

Government response to the committee’s report

In its response to the committee’s report, on 15 June 2021, the Government argued the TCA delivered a “comprehensive package of law enforcement and criminal justice capabilities”. It stated that the arrangements had been operating well in practice:

We have been cooperating with EU Member States via the new arrangements since 1 January, and the indications so far are that, in general, the new arrangements are working well in practice. We are working closely with domestic operational partners and counterparts in the EU to monitor the operation of the new arrangements and will take steps to address any issues as they arise.

In response to the committee’s statement that Parliament would wish to be kept informed as part of the review process of the TCA, the Government said that it was committed to ensuring parliament was consulted and kept up to date as appropriate:

The Government is committed to facilitating parliamentary scrutiny of our new relationship with the EU as we do with other international agreements. While we wish to maintain flexibility around how scrutiny of the TCA is delivered, we are committed to making sure that Parliament is consulted and kept up to date as appropriate with regards to all provisions of the agreement.

On the committee’s comments on uploading Interpol data, the Government said:

There is an automated upload of incoming Interpol circulations to domestic systems. Information is available via policing systems within minutes of receipt and is available at the border within 24 hours. If the National Crime Agency is notified a case is urgent, then specific alerts can be uploaded to domestic systems more rapidly. Information is therefore already quickly accessible and technical work is in train to further expedite access.

However, the Government said that it was looking to develop “longer-term technical capabilities” for data sharing through a single technical mechanism “for law enforcement agencies to access and share alerts related to people, documents and objects with international partners on a reciprocal basis”. It said the priority was to enhance the UK’s connectivity to Interpol, but it was at an early stage of development. The Government said it recognised the importance of parliamentary scrutiny and would cooperate with select committees where appropriate.

The Government said the TCA provided for a relationship with Europol and Eurojust “that is in line with third country precedent but one which reflects the scale of our contribution to the work of the agencies”. It said that it agreed with the committee that the TCA and development of administrative and working arrangements would “form the basis for a strong, effective and evolving partnership between the UK, Europol and Eurojust on mutual threats going forward”. The Government said it recognised “the importance of ongoing Parliamentary scrutiny and will always endeavour to cooperate with select committees to facilitate this where appropriate”.

On data protection standards, the Government said:

We have always been clear on the importance of high data protection standards in the UK and in the EU. We agree good data protection underpins international law enforcement cooperation, which is why the UK is firmly committed to maintaining high data protection standards – now and in the future. Going forward, both the UK and the EU will keep each other’s data protection regimes under regular review.

On 4 May 2021, the European Commission communicated its assessment of the UK’s application to accede to the convention. It stated that it considered that the EU should not give its consent:

In view of the nature of the Lugano Convention […] and the existing framework of judicial cooperation with third countries […], the Commission considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.

Speaking to this issue in its response to the European Union Committee, the Government said that:

It is worth noting that the remaining contracting parties, namely: Switzerland, Norway and Iceland have all notified the Swiss Depositary (which takes delivery of all the documentation relating to the question of accession to the Lugano Convention) that they are content for the UK to join Lugano.

Further, the Government said that the Lord Chancellor was liaising with EU institutions and the justice ministers of member states on the UK’s application to join the Lugano Convention 2007.

Developments since the committee’s report and government response

There have been several developments since the House of Lords European Union Committee published its report on 26 March 2021 and the Government responded to the committee. These include the following subjects discussed in this section.

Establishment of the Partnership Council

At the time the House of Lords European Union Committee published its report, neither the Partnership Council nor the Specialised Committee on Law Enforcement and Judicial Cooperation had been established. The Partnership Council first met on 9 June 2021. The Specialised Committee on Law Enforcement and Judicial Cooperation held its first meeting on 19 October 2021.

The minutes for the Specialised Committee on Law Enforcement and Judicial Cooperation meeting said that the implementation of the specialised committee had gone well, and the agreement was operating effectively:

The Parties agreed that overall, implementation of the LECJ [Specialised Committee on Law Enforcement and Judicial Cooperation] part of the TCA had gone well and that the agreement was operating effectively. The UK highlighted a small number of outstanding implementation issues in two EU member states in relation to extradition and asset freezing and confiscation and noted the importance of having them resolved swiftly.

Decisions on data adequacy

The European Union committee referred to the UK seeking a data adequacy decision from the EU in respect of both the Law Enforcement Directive (LED) and GDPR. The committee described a data adequacy decision as a “status granted by the European Commission to countries outside the European Economic Area (EEA) who provide a level of personal data protection comparable to that provided in European law”. The European Commission adopted data adequacy decisions for the UK on 28 June 2021 for both the LED and GDPR. The decisions include a four year ‘sunset clause’, and the Commission would continue to assess the UK’s laws during this period:

For the first time, the adequacy decisions include a so-called ‘sunset clause’, which strictly limits their duration. This means that the decisions will automatically expire four years after their entry into force. After that period, the adequacy findings might be renewed, however, only if the UK continues to ensure an adequate level of data protection. During these four years, the Commission will continue to monitor the legal situation in the UK and could intervene at any point, if the UK deviates from the level of protection currently in place. Should the Commission decide to renew the adequacy finding, the adoption process would start again.

The UK Government said that it welcomed the decision to grant the data adequacy decision and that it had similarly recognised the EU and EEA data regimes.

Extension of ex-ante evaluations for Prüm

The committee’s report explained that the UK’s access to DNA, fingerprint and vehicle registration data through the Prüm system was contingent on evaluation by the EU:

The UK’s ability to apply and comply with the rules set out in Title II and the technical rules listed in Annex LAW-I [annex 39 of the final text of the TCA] of the law enforcement agreement is subject to an “evaluation visit and pilot run” (or runs) undertaken by the EU. On the basis of an overall evaluation report, “the Union shall determine the date or dates from which personal data may be supplied by Member States to the United Kingdom pursuant to this Title.” However, provision is made to allow data to continue to flow after 31 December 2020 on the basis of the TCA, but for “not longer than” nine months. The SCLE&JC [Specialised Committee on Law Enforcement and Judicial Cooperation] can extend this period once for a further nine months.

The minutes of the Specialised Committee on Law Enforcement and Judicial Cooperation’s meeting on 19 October 2021, stated the parties had agreed to a 9-month extension:

The parties noted their agreement, through Decision 2021/1 of the Specialised Committee on 28 September, and as provided for in the Trade and Cooperation Agreement, to a 9-month extension to the period during which the ex-ante evaluations of the UK’s DNA and fingerprint connections should be carried out, with a new deadline of 30 June 2022.

Working arrangements between the National Crime Agency and Europol

In September 2021, the UK’s National Crime Agency (NCA) reached agreement with Europol on a new working arrangement. The ‘working and administrative arrangement’ “complements and implements the TCA by providing further clarity on how cooperation should be undertaken at operational level”. The NCA has set out what this included:

Shared capabilities protected under the TCA, and now also the new arrangement, include the presence of UK/NCA liaison officers based in Europol headquarters, access to Europol’s secure messaging system, the ability to attend and organise operational and other meetings at Europol, the ability to contribute to Europol analysis projects in order to benefit from the agency’s coordination and analytical functions, and the fast and effective exchange of data.

Lugano Convention 2007

On 22 June 2021, the European Commission “representing the European Union” wrote to the Swiss Federal Council as the depositary of the Lugano Convention 2007, to say that “the European Union is not in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention”.

In answer to a written question on 10 September 2021, the Government said that it was aware of the European Commission’s notification, but it understood that EU member states had “not yet been given an opportunity to vote formally on that position”. The Government argued it met the criteria for accession:

We are committed to ensuring cross-border legal disputes can be resolved smoothly, in the interests of families, consumers and businesses both in the UK and across Europe. We maintain that we meet the criteria for accession—it is open to countries outside the EU; all non-EU parties to Lugano support UK membership.