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

Motion to Take Note

Moved by

That this House takes note of the Report from the European Union Committee Beyond Brexit: policing, law enforcement and security (25th Report, Session 2019–21, HL Paper 250).

My Lords, we are debating today one aspect of the security of the United Kingdom: the state of law enforcement and judicial co-operation with the EU. But we are doing so against the backdrop of Russia mounting the most serious aggression that we have seen in Europe since the Second World War. Every day, we see new horrors on our television screens. I regret personally that we have had so little time to debate these momentous events in this House, with just one debate in the last two weeks, but they put everything else into perspective and I believe that they are relevant to the debate that we are having today.

More than ever, we need both close co-operation with our neighbours to keep our own citizens safe and effective arrangements to enable desperate refugees to be able to come safely to this country. These objectives are intrinsically linked, as has been shown by the tensions with the French authorities over recent days over what I regard as the wholly inadequate arrangements that have been made in and around Calais for the reception of desperate Ukrainian families. Given the number of traumatised Ukrainian citizens now leaving the country, this flow of refugees is bound to continue for months, or conceivably years. We need to be working well with our EU partners if we are to avoid damaging the climate of confidence that is so important for good law enforcement and judicial co-operation.

To turn to the specific issues that we are debating today, our report formed part of a suite of reports by the European Union Committee. As a first-time chairman of a committee, I am most grateful for the wise counsel and friendly support that I received at all times from the noble Earl, Lord Kinnoull. The Security and Justice Sub-Committee must be one of the few in your Lordships’ House that never met in person. We came into being in April 2020 and had an entirely virtual existence until we were disbanded in March 2021, having published this report. I am grateful to all members of the committee, who adapted with great good humour to the oddities of the Teams environment. I am also grateful to our clerk team, about whom I will have a little more to say in winding up.

My Lords, the security of the country always has been and always must be the number one priority of any Government, so I welcome the European Union Committee report, Beyond Brexit: Policing, Law Enforcement and Security.

Clearly, the trade and co-operation agreement that we negotiated with the European Union is very basic. It is almost the extreme opposite of the recently concluded Australia free trade agreement, which is probably the most comprehensive, wide-ranging, in-depth, modern free trade agreement in the world, covering every aspect. With the TCA, we have a lot to build on.

Part 3 of the TCA on law enforcement and judicial co-operation in criminal matters sets out the detailed, complex arrangements enabling effective co-operation on a range of policing and criminal justice measures. The committee welcomed a lot of the provisions, including the continuation of sharing passenger name record data, continued UK access to EU databases covering fingerprints, DNA and criminal records—these are absolutely essential—and the commitment to the rule of law and the European Convention on Human Rights. All of this is fine, but here is the big “but”: the agreement does not provide the same level of collaboration that existed when the UK was a member state. The best example is that involvement in Eurojust and Europol will no longer include a role in their overall management or strategic direction.

One of the most significant consequences of the UK now being a third country is the loss of access to the Schengen Information System—SIS II. The real-time access that it provides to data, persons, objects of interest, wanted people and missing people was completely and rightly emphasised by the committee. The effectiveness of alternatives comes nowhere near to it. Can the Minister confirm that that is the case and that the Government accept it? Again, the committee rightly said that lots of areas need to be kept under review.

My Lords, I thank the noble Lord, Lord Ricketts, who chaired this committee in a masterclass way throughout Covid. I also thank the clerks and the technical staff of this House, because without them this report would not be here today. We had a marvellous period of time when we did not see each other but no meeting was missed and there were no real technical problems. I thank everybody who assisted us on that.

The Lugano Convention is not exclusively an EU measure. On the contrary, it creates common rules regarding jurisdiction and the enforcement and recognition of civil, commercial and family judgments across the EU and most of EFTA. It was concluded in 1988 as an international agreement and was given effect in the United Kingdom in 1991. However, the United Kingdom left it with Brexit. It can rejoin the convention, but only with the unanimous agreement of all the parties.

I support the United Kingdom’s intention to seek membership, but it is most unfortunate, to say the least, that the Government waited until April 2020. Accordingly, there has been an entirely avoidable hiatus between the end of the Brexit transition period and the safety net provided by the Lugano Convention and reciprocal enforcement. As the Government acknowledged, this means that issues relating to jurisdiction, recognition and enforcement are becoming more complex, in particular in child abduction cases and difficult family law and maintenance cases, and when one partner or another absconds, or both live in a different place and the children are here.

I have two questions. First, what are the reasons for this damaging delay? Secondly, what steps are the Government taking to engage with the EU, and in particular Denmark, to reach a satisfactory and speedy resolution? In the circumstances we have seen in the last few weeks, it is even more important that we come to a conclusion and that it is accepted.

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.

My Lords, I begin by congratulating the committee on producing such a detailed and operationally relevant report that highlights the essential areas of operational policing, particularly where this concerns international cross-border working. I realise that we have moved on, but I make no apology for returning to the issue of the Schengen Information System, which concerned me greatly during the months leading up to the trade and co-operation agreement in December 2020.

There can be no doubt that, in adopting the Interpol database in lieu, the UK reduced itself to accepting a far less efficient and effective real-time system. As the report points out, the effectiveness of the Interpol system relies heavily on the willingness of EU states to additionally upload the same information on to it that they circulate on the SIS. Indeed, one senior police officer remarked to the committee that this was a significant loss of capability in terms of access to data.

It was also interesting to note the need to make technical improvements to the UK system so that the Interpol system is available to front-line law enforcement in minutes, as opposed to hours. I am therefore very keen to hear from the Minister what action has been taken to improve those technical issues and what information, if any, is available to identify any loss of effectiveness which may have been encountered by the surrendering of the SIS.

It was encouraging to note the warm remarks from law enforcement on the agreement on Prüm, allowing the exchange of information in relation to DNA, fingerprints and other essential data. However, future alignment in relation to Prüm is less clear.

As someone who worked in organised policing for many years in eastern Europe, I was saddened to note the remarks on the UK’s future role in Europol. Professor Mitsilegas remarked that he did

My Lords, although time is short, I want to acknowledge the splendid work of all the committee staff. It is invidious to pick out one, but I shall be invidious. I have become much more aware than I used to be how much a committee relies, without knowing it, on its committee assistant—in our case, the wonderful Amanda McGrath, whose title is now committee operations officer of the Justice and Home Affairs Committee. We also had a splendid chairman. As you would expect, the noble Lord, Lord Ricketts, deployed his powers of diplomacy and ability to find forms of words that left everyone satisfied.

To go straight to the impact of one aspect of legal procedure post Brexit—already referred to, but it merits emphasis—I give three examples. Pre Brexit, an English claimant involved in an Italian road traffic accident would have issued his claim against the motor insurer out of the English courts. Now, he might get a judgment that the Italian courts will not enforce. Following an accident at work in Sweden with Danish defendants, there is a good argument for jurisdiction in England, and the victim, who suffered head and lower limb injuries, would not need to travel, but again, there are enforcement problems because of procedural rules on the causation of injury in Denmark. Thirdly, the variation of an English maintenance order following a divorce five years ago is in court because of the uncertainty in the UK about the law regarding jurisdiction for maintenance claims. These three are all current examples of the time, money and emotional energy that is expended, and the involvement of the higher courts sorting out jurisdiction problems.

Well before we left the EU, legal practitioners foresaw problems for their clients—it is important to emphasise this: this is not a lawyer’s point—arising from the loss of the Brussels regulation, particularly in the areas of family law, child maintenance, international child abduction, divorce and personal injury. At the time of the negotiations, the Government, in the person of the then Advocate-General for Scotland, were sanguine about the workability—the user-friendliness, if you like—of what our report describes as

My Lords, I congratulate the committee on a very insightful and positive report. I also give credit to the Government for the trade and co-operation agreement, which has avoided some of the most acute risks that came about to information sharing through the departure from the European Union. In particular, I cite the European arrest warrant, which was one of the most important of the measures for international co-operation, and certainly had national security benefits, as well as routine policing benefits. The new arrangements at least ensure some hope that that sort of arrangement can continue.

I also give a lot of credit to the outcome with regard to PNR data, given that, in my view, the EU has always had a rather disproportionate focus on data protection issues in comparison with the many other national and public goods that need to be considered.

Nevertheless, it is quite hard to see an upside in the overall arrangements as they now exist in comparison with the ones that were previously in place. For instance, I note the creation of the national contact point for policing liaison internationally, which has a strange similarity to the arrangements that were in place before 2009 when Europol was fully integrated into the EU structures.

The report does not address national security co-operation and information sharing at the intelligence level for the clear and straightforward reason that intelligence sharing is not a Community area of competence. Again, I give credit to successive Governments for ensuring that intelligence co-operation stayed outside the European Community’s competence. There were pressures in the other direction, but successive Governments were robust in ensuring that we maintained control of our national security; for a variety of reasons, that has turned out to be exactly the right decision. The UK therefore remains within the non-EU intelligence-sharing arrangements in Europe. I am sure that this goes a long way to ensuring that relevant national security information that is important to us but also important to our European friends will continue to flow. The UK has always been an active and influential participant in those structures; I am sure that that continues to be the case.

My Lords, the report we are debating, so well introduced by my noble friend Lord Ricketts—I was his predecessor but three as chair of that sub-committee—may be a bit dated, unfortunately like most of the reports we debate these days, but it brings home one very salient point: our country’s internal security is closely bound up with that of the rest of Europe, and the battle against serious international crime will be won only if we co-operate closely together. That has been the view of this House since the joint reports produced by the committees chaired by the noble Lord, Lord Bowness, and me in 2013-14. I hope that the Minister will confirm that this remains the Government’s view, now encapsulated in the welcome internal security provisions of the trade and co-operation agreement with the EU.

Of course, we have lost quite a bit of that co-operation along the way. Other noble Lords have referred to what we have lost: full membership of Europol and Eurojust; automatic access to the Schengen Information System; and, most damaging of all, participation in the European arrest warrant. There are quite a few disbenefits there for the new Minister for Brexit Opportunities to reflect on. The fact that several member states of the EU will not extradite to us indicted criminals who are wanted for committing crimes here and vice versa, which was provided for by the EAW system, is a real loss. Can the Minister say how many cases of a refusal to extradite have been experienced in the first year of the operation of the new arrangements and how well the replacement arrangements are working, in particular with Ireland? In that context, how will the Government handle the fact that Ireland is admitting Ukrainian refugees without a visa whereas we are insisting on them having a visa but we are both in a common travel area? How will that work?

There are also two important loose ends waiting to be tied up if the TCA package is to be complete. They are both currently covered by temporary interim arrangements, one of which cannot be prolonged beyond the middle of this year. The first, as several noble Lords have mentioned, are the Prüm provisions for exchanging vital crime-fighting DNA and number-plate information. The second is the passenger name recognition system for airline passengers, to which my noble friend Lord Evans referred; when I chaired the sub-committee, we played an active part in pressing the EU to bring these provisions into force. Can the Minister tell the House what the state of play is on tying up those two loose ends? Can she confirm that it is the Government’s firm determination to see the process successfully completed?