Justice Law enforcement

On 26 November 2020, the House of Lords is due to debate a motion to approve the draft Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020. The regulations relate to the continuation of law enforcement and criminal justice cooperation between the UK and the EU27 and some European Free Trade Association (EFTA) member states.

The regulations were created and laid before Parliament on 13 October 2020. They were laid under the ‘draft affirmative’ procedure, meaning they must be approved by both Houses before they can come into force. If approved, the regulations will enter into force at the end of the transition period (or ‘implementation period’) on 31 December 2020.

Background

Although the UK has now left the EU, it continues to participate in a range of EU law enforcement and criminal justice (LECJ) cooperation schemes. That participation, and the legal framework which underpins it, will continue until the end of the transition period.

In March 2019, prior to the UK’s exit from the EU, Parliament passed the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 and the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019. These regulations had been passed to address potential deficiencies in retained EU law relating to LECJ cooperation which would have transferred onto the UK statute book in the event of a ‘no deal’ exit from the EU.

In January 2020, the UK ratified a withdrawal agreement (WA) with the EU and a separation agreement (SA) with the EFTA states Norway, Iceland and Liechtenstein. The agreements included separation provisions relating to the continuation of law enforcement and security cooperation at the end of the transition period. These provisions will take effect regardless of the outcome of the future relationship negotiations between the UK and EU.

What does the instrument do?

The regulations allow for the implementation of the separation provisions in relation to future LECJ cooperation in title V of part 3 of the WA, and title III of part 3 of the SA. The regulations also implement related data provisions in title VII of the WA and title IV of the SA.

The instrument contains 50 regulations relating to a range of law enforcement and security issues, including:

  • cross-border surveillance;
  • extradition;
  • exchange of information and intelligence between law enforcement authorities;
  • EU agencies Eurojust and Europol; and
  • EU security databases, such as the Schengen Information System (SIS) and the European Criminal Record Information System (ECRIS).

The regulations’ explanatory memorandum, produced by the Home Office, states that the instrument has three functions.

First, while the European Union (Withdrawal Agreement) Act 2020 implemented the WA and the SA, the instrument would make the “necessary further, specific amendments” to give full effect to the LECJ separation provisions in the agreements. The separation provisions require the continued application of EU measures in cases still ongoing at the end of the transition period.

Second, the regulations amend UK law to give effect to provisions which require the preservation of relevant law on criminal justice data and information collected prior to the end of the transition period.

Third, as the body of EU law relating to LECJ cooperation either ceases to apply in the UK or is transferred into UK “retained EU law” at the end of the transition period, the regulations would make amendments to “address deficiencies” in the retained law. For that purpose, the current regulations would amend the two regulations passed in March 2019 to take account of EU law which has come into force since they were made.

What scrutiny has the instrument received?

The House of Lords Secondary Legislation Scrutiny Committee reported on the regulations on 27 October 2020, and noted the instrument as of interest to the House. The committee noted that it had published a critical report on the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, which the current regulations amend. The committee criticised the 2019 regulations because they had “bundled together a large number of topics without adequate information on any of them”. The committee noted that the current regulations “also follow the same format”. However, it also noted that the current instrument includes a table providing an impact assessment of each chapter and regulation.

The Joint Committee on Statutory Instruments reported on the regulations on 4 November 2020, but did not raise any concerns.

On 18 November 2020, a House of Commons Delegated Legislation Committee considered the regulations. Introducing the regulations, the Minister for Security, James Brokenshire, said that their scope was “narrow” and that they would be required under any scenario in which the UK had left the EU. He said that the instrument would provide:

legal and operational clarity regarding the handling of live law enforcement and criminal justice related cases and procedures at the end of the transition period, and will ensure that the United Kingdom has a fully functioning statute book.

The Labour Party did not oppose the regulations. However, Conor McGinn, Shadow Home Office Minister, raised concerns about the lack of certainty regarding the UK’s future security and law enforcement relationship with the EU. He said that, with the UK “weeks away from the end of the transition period”, UK law enforcement agencies:

still do not know what legal and regulatory framework they will be winding down to, nor what the practical, day-to-day impact of any security and criminal justice deal, or indeed no deal at all, will be on their ability to keep the public safe.

At the time of writing the House of Commons has not yet formally approved the regulations.

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Cover image by William Cho on Pixabay.