Delphotostock - Fotolia
A House of Lords committee has called on the UK and European Union (EU) to make “pragmatic compromises on security matters” to protect the safety of UK and EU citizens after Brexit, and not to compromise on security in pursuit of an agreement on data-sharing.
Although the House of Lords EU Home Affairs sub-committee supports the government’s ambition to continue security cooperation after Brexit, it said in a report on the proposed UK-EU security treaty that there is no evidence that sufficient progress has been made.
The report follows an inquiry by the committee that heard evidence from Nick Hurd, minister of state for the Home Office; Julian King, European commissioner for security union; Rob Wainwright, executive director of Europol; and Steve Smart, director of intelligence at the UK’s National Crime Agency (NCA).
The inquiry was carried out as part of the committee’s role to scrutinise the government’s approach to EU Justice and Home Affairs policy. The committee has also conducted an inquiry into the implications of Brexit with regard to the EU’s data protection rules.
The government has stated its aim to negotiate a single, comprehensive security treaty with the EU, and has focused on three areas for future UK-EU security cooperation: extradition, access to law enforcement databases, and partnerships with EU agencies such as Europol.
All of these have been described as “mission-critical” for day-to-day policing, and vital for keeping communities across the UK safe, but the Lords’ committee said it believes it is unlikely that such a treaty can be agreed in the time available.
“The government also needs to be realistic about what it can achieve, not least because the EU has given little indication that it will be prepared to negotiate a bespoke treaty instead of a series of agreements on security,” the report said.
“Whatever the approach adopted, any UK-EU agreement will be judged less on its form than on its success in protecting the security of the UK and EU,” the report continued.
If a comprehensive treaty cannot be agreed, the report suggested that a series of “ad hoc security arrangements” could help to ensure the level of cooperation needed.
The committee also noted that in some areas, security cooperation will have to change post-Brexit. For instance, some EU states, including Germany, are constitutionally barred from extraditing their own nationals to non-EU states.
The UK government has yet to provide any evidence-based analysis of the effect of such changes, the committee said.
Flexibility needed on cooperation
The report noted that the committee also heard evidence of UK reliance on EU datasets, with UK police forces accessing the Schengen Information System II, a database that can help track criminals, 539 million times in 2017.
The report concluded that if the UK wishes to maintain access to databases, and close relationships with EU agencies such as Europol after Brexit, the government must be willing to be flexible about the shape of a future security relationship.
The report also stated that future UK-EU security cooperation will have to be underpinned by an agreement on data-sharing.
“We support in principle the government’s objective of securing a cross-cutting agreement on data protection, but negotiations on data-sharing are notoriously complex, and we stress that pursuit of a crosscutting agreement on data should not come at the expense of an agreement on security.”
Chairman of the committee, Michael Jay, said the UK and the EU share a “deep interest” in maintaining the closest possible police and security cooperation after Brexit.
“Protecting the safety of millions of UK and EU citizens must be the over-riding objective. But time is short, and neither side has yet approached the negotiations in this spirit,” he said.
According to evidence from the inquiry, Jay said that by mid-May, the UK and EU negotiators had spent little more than an hour discussing the future internal security relationship, despite the “obvious mutual interest” in making rapid progress.
“The safety of UK and EU citizens demands that the negotiators turn urgently to this vital task,” he said.
While government wants an overarching security treaty, which would to a large extent replicate the status quo, Jay said the committee does not believe this is achievable in the time available.
“We also question whether it is politically realistic for the UK, in current circumstances, to be seeking a bigger role in EU agencies and better access to databases than some EU or EEA member states.
“It’s time for pragmatic compromises, on the UK side and on the EU side. Red lines won’t save people’s lives – getting agreement on effective police and security cooperation will,” he said.
The committee’s inquiry into the implications of Brexit for EU data protection rules concluded that the free flow of data after Brexit is essential for UK trade and security.
Concerns around security collaboration post-Brexit
The inquiry report urged the government to ensure transitional measures are in place before the UK leaves the EU, warning that greater friction around data transfers between the UK and EU after Brexit could present a non-tariff trade barrier and hinder police and security co-operation.
The report also expressed concerns that UK police could lose access to information and intelligence mechanisms that are currently sourced through the UK’s membership of Eurojust and Europol and are vital for UK law enforcement.
According to the report, the most effective way to achieve unhindered and uninterrupted flows of data would be to apply an “adequacy decision” from the European Commission to confirm that the UK’s data protection rules offered a standard of protection equivalent to the EU’s.
This would provide the least burdensome and most comprehensive platform for sharing data with the EU, and would offer stability and certainty for businesses, the report said.
The report warned that if an adequacy decision was not agreed, there were no apparent fall-back options for law enforcement purposes that would enable data to be shared with the EU. This raised concerns about the UK’s ability to maintain deep police and security cooperation with the EU after Brexit.
In the light of these findings, the report urged the UK government to ensure that a transitional arrangement was agreed until an adequacy decision could be taken, to avoid a cliff-edge for data transfers when the UK leaves the EU.
Failure to agree could lead to ‘cliff edge’
The latest report noted, however, that securing an adequacy decision might also be difficult and potentially time-consuming.
”The process could only begin after the UK becomes a third country in March 2019, and assessments typically take two years. Failure to secure an adequacy decision could thus jeopardise conclusion of a security treaty by the end of the transition period,” the report warned, reiterating the point made in the earlier report.
“Of most urgent concern is the possibility that failure to reach agreement on data protection could lead to a ‘cliff edge’, an operational gap in security cooperation,” the report said, adding that some witnesses to the inquiry suggest the UK government should explore the possibility of extending the transition period if necessary to ensure there is no “operational gap” for law enforcement.
“Given the hurdles ahead, we are concerned that there is no mechanism in the draft Withdrawal Agreement for extending it, either in whole or in part, beyond the end date of 31 December 2020. We call on the government and the EU to consider options for allowing such an extension, at least in respect of key security measures, where any interruption to ongoing operational cooperation could cost lives,” the committee said.
In the meantime, the report recommends that internal security practitioners should prepare for the possibility of an operational cliff edge and commend the contingency planning undertaken by the Crown Prosecution Service, the Metropolitan Police and the National Crime Agency, in case the UK loses access to databases and other frameworks for security cooperation at the end of the transition period.
Earlier in July, the House of Commons Select Committee for Exiting the European Union urged the government to start the process to secure a data adequacy decision from the EU as soon as possible.
In a report about data flows and data protection after Brexit, the chair of the committee, Hilary Benn, said: “The ability to move data between the UK and the EU after the UK leaves the EU is ‘mission critical’ for the UK’s trading relationship.”
Read more about Brexit and data adequacy
- Hancock sure UK will obtain and maintain EU data protection adequacy.
- Post-Brexit, the UK should seek EU data protection adequacy as well as special status regarding the EU Data Protection Board, says information commissioner.
- The European Commission has emphasised the importance of having a data transfer agreement in place after the UK leaves the European Union.