Post-Brexit UK-EU security cooperation 'sub-optimal,' says Lords committee

Post-Brexit cooperation between the UK and the EU on law enforcement and criminal justice is sub-optimal. The House of Lords Justice and Home Affairs Committee conducted an inquiry into UK-EU security cooperation and found a mixed picture. 

In a letter to the Home Secretary, published today, the committee has outlined its conclusions and observations on the operational aspects of Part Three of the UK-EU Trade and Cooperation Agreement (TCA), in particular criminal data exchange and extradition arrangements, emphasising that international cooperation is absolutely essential in this field.  

The Committee is concerned that ongoing public debates could eventually lead to the termination and suspension of the TCA, in whole or in part. Under certain scenarios, including the UK denouncing the ECHR or being deficient in the domestic protection of the rights it contains, Part Three of the TCA can be terminated immediately and/or suspended (in whole or in part). Equally concerning is that changes to the UK’s domestic data protection legislation, especially in the context of the Data Protection and Digital Information (No. 2) Bill, could also lead to the termination or suspension of UK-EU security cooperation under Part Three of the TCA.  

Termination or suspension of Part Three of the TCA would have extremely serious consequences for UK-EU security cooperation, curtailing our ability to combat cross-border criminal activity. Denouncing the European Convention on Human Rights would, in all probability, end the UK’s membership of the Council of Europe. This, in turn, would cease the UK’s participation in the 1957 European Convention on Extradition, making any extraditions between the UK and the 45 other members of the Council of Europe virtually impossible, resulting in the impunity of criminals. 

The Committee also notes that the UK’s loss of access to the Second Generation Schengen Information System (SIS II) represents a great decline in operational capability for policing across the country, and that it may take several years for a substitute mechanism to be fully operational. The Committee is also concerned about the new arrangements for extraditions, especially the fact that 13 EU Member States stopped extraditing their own nationals to the UK, preventing access to a criminal justice outcome in dozens of cases every year. 

The committee does, however, welcome evidence that UK-EU security cooperation is operating smoothly in certain areas. It heard that cooperation on the exchange of Prüm data (DNA, fingerprints, vehicle registration data) continues to be broadly effective and that the exchange of criminal records has suffered “no detrimental impact” as the result of the UK’s withdrawal from the European Union. The Committee also heard that cooperation with Europol remains smooth overall and that TCA provisions for Mutual Legal Assistance have been operating smoothly so far. 

Amongst other questions, the committee is now calling on the Government to clarify its views on the proposed reforms to the Prüm mechanism, to outline its assessment of the operations of the exchange of criminal records between the UK and the EU, to explain the extent to which the UK’s loss of access to SIS II creates uncertainty for the police, and what it anticipates the consequences would be should Part Three of the TCA be terminated or suspended. 

The full letter is available to read on the committee’s website.  

Baroness Hamwee, Chair of the House of Lords Justice and Home Affairs Committee, said:  

“International cooperation is essential in tackling present-day crime. A lack of cooperation, or barriers to the way in which the police and criminal justice agencies are allowed to work together, hamper investigations or give criminal impunity. 

Part Three of the Trade and Cooperation Agreement between the UK and the EU is essential in that respect. It sets out the basis on which the UK and EU can cooperate in fighting crime: the data we exchange, the strategic conversations we have, and whether we can surrender suspected offenders. It determines whether we are safe, and directly affects everyone involved in the criminal justice system: not only professionals and litigants, but also victims and witnesses. 

In 2021, a predecessor Committee assessed the provisions for UK-EU security cooperation contained in Part Three of the TCA. Two years later, we undertook to assess how these provisions operate in practice.

We found a mixed picture. We heard reassuring statements that cooperation is operating smoothly in certain respects, such as the exchange of DNA, fingerprints, vehicle registration data, and criminal records.

We also heard about some significant losses in capability. The police has lost access to the EU’s largest security database, SIS II, which it had consulted 603 million times in 2019. 13 EU Member States have also stopped extraditing suspects to the UK. This can result in offenders not being prosecuted or in victims and witnesses having to take part in proceedings abroad. 

We ask the Government to respond to several concerns, notably on the steps it is taking to develop an alternative to SIS II and on the consequences of some EU Member States no longer extraditing to the UK. 

We also urge caution in the context of reforms to our data protection legislation and to ongoing speculation about our relationship with the European Convention on Human Rights: any changes may jeopardise our security.”