Motion to Take Note
My Lords, it is a pleasure to be speaking in the calm and thoughtful end of the Palace of Westminster. As chair of the EU Home Affairs Sub-Committee, which prepared this report, I thank the members and staff of the sub-committee, and our specialist adviser, Professor Steve Peers, for their support and advice.
This report was published on 11 July last year, six months ago, and we received the Government’s response in September. But much has happened in those six months, and many of the issues we covered in our report, such as the Government’s ambition to negotiate an overarching security treaty with the EU, have been largely overtaken by events. So I will not rehearse those issues at length this evening. Instead, I will focus on the key issue of UK-EU security co-operation, and reflect on one or two more recent events.
Of course, much has happened in the last 24 hours, too. But none of it, alas, makes the future any less opaque; nor, at least at this stage, does it greatly change the options before us. The analysis and recommendations in our report remain valid. In our report, we supported the Government’s three principal areas for future UK-EU security co-operation—extradition, partnerships with EU agencies such as Europol, and access to law enforcement databases—and considered how the UK’s engagement with the EU in each of these areas may be affected during the transition period and under the future UK-EU security relationship.
“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”.
We further stressed:
“Negotiations on security are not a ‘zero sum game’: we all stand to gain from agreement, and we all stand to lose if negotiations fail”.
The EU Commissioner for Security Union, Sir Julian King, told the committee that,
“security cooperation should be unconditional”,
and I agree with that. I pay tribute to the excellent work carried out by Sir Julian King as our commissioner, and to President Juncker, who does not always get much of a mention, for giving the British commissioner a portfolio of real substance at a time when he could easily have made him a cypher.
As noble Lords will know, the withdrawal agreement and political declaration were agreed by negotiators in the closing weeks of last year. Let us assume that they remain valid, although I suspect the political declaration, at least, may change in the weeks ahead. First, I will say a word about the transition period. Under the terms of the November 2018 withdrawal agreement, the UK would continue to participate in EU agencies, mutual recognition instruments and information-sharing mechanisms until the end of the transition period. The UK would not, however, be able to participate in the management bodies of EU agencies or opt in to new measures in the areas of freedom, security and justice, although the EU may invite the UK to co-operate in such measures under the conditions set out for co-operation with third countries.
Extradition arrangements could also be disrupted. Article 185 of the withdrawal agreement would authorise EU 27 states such as Germany to refuse to extradite their nationals to the UK during the transition period in accordance with their domestic constitutional requirements. Germany apart, we do not know how many will do so. While the practical impact of that change remains unclear, including on cases pending on the date of the UK’s withdrawal, the Government must surely publish a contingency plan that addresses any disruption to UK extradition arrangements. We urge them to do so.
As for the future relationship, the political declaration envisages,
“a broad, comprehensive and balanced security partnership”,
for law enforcement and judicial co-operation. However, as the European Union Select Committee’s report on the withdrawal agreement and political declaration noted,
“this may fall short of the Government’s ambition for a single comprehensive treaty”.
In any case, as our report concluded, it is unlikely that an overarching internal security treaty can be agreed before the end of 2020.
The Select Committee’s report also noted that:
“The depth of the future relationship in law enforcement and judicial cooperation … will depend on ‘an appropriate balance between rights and obligations’ and on the UK’s willingness to continue to follow EU rules and to accept that the CJEU, as the sole interpreter of EU law, will have continuing influence over the application of those rules”.
Can the Minister confirm the Government’s view of the role of the CJEU after we leave the European Union?
Extradition arrangements after the end of the transition period look increasingly insecure. The Government aim, rightly in our view, to retain all the benefits of the European arrest warrant. The alternative is to fall back on the 1957 Council of Europe Convention on Extradition, which would lead to delay, higher cost and potential political interference. This would be a bad outcome for both the UK and the EU. Perhaps unsurprisingly, as no non-EU member state is currently a participant, the political declaration does not mention the European arrest warrant. The declaration states simply that “effective arrangements” on extradition will be established. We urge the Government to bring forward detailed proposals as soon as possible.
It would be in the interests of both the UK and the EU to secure a future relationship with Europol that as far as possible maintains the operational status quo. We were hugely impressed by the evidence we received on the sheer volume of data exchanged between the UK and Europol on transnational crimes. It makes early agreement necessary.
The committee is concerned by the Government’s “transactional approach” to Europol negotiations. Simply because the UK is a major contributor of data to Europol, the Government should not underestimate the impact of Brexit on the UK’s role and influence within Europol. The political declaration states that the UK and EU will identify how the UK will co-operate with Europol and Eurojust. That is good as far as it goes, but it does not go very far. Both agencies are essential for UK law enforcement; I hope that the Minister will confirm that.
Future UK-EU security co-operation will be underpinned by an agreement on data. If the UK loses access to EU security databases, information that can be retrieved almost instantaneously may take days or weeks to access, creating a hurdle for policing and a threat to public safety. The political declaration suggests that the UK and EU seek reciprocal arrangements for exchanging passenger name record—PNR—data and DNA, fingerprint and vehicle registration data through the Prüm system. These are extremely valuable to UK law enforcement. We welcome that.
The declaration also contains commitments to consider other arrangements for data exchange that could “approximate” EU mechanisms, but there is no mention of either the SIS—Schengen Information System—II or the European Criminal Records Information System, or ECRIS, database, to which no non-EU country currently has access. This is worrying and I would welcome the Minister’s comments.
I will say a word about Ireland. Close co-operation between the United Kingdom and Ireland on security matters is fundamental. The appointment last year of the deputy chief constable of the PSNI as Garda Commissioner is welcome and imaginative. I hope that the Minister can assure us that, whatever happens, this essential close co-operation between the United Kingdom and Ireland on security matters will continue.
In their response to the committee’s report, the Government agreed with our conclusions about the importance of maintaining UK involvement in JHA measures during the transition period and our assertion that security is not a zero-sum game. The Government also agreed that existing third-country relationships with agencies such as Europol are an inadequate model for the UK’s security needs and that falling back on pre-EAW extradition arrangements would not be desirable. The Government disagreed, however, that a comprehensive security treaty would be too difficult to agree before the end of the transition period. In November 2018, we wrote to the Government asking for further clarity on the basis for their assertion that a comprehensive treaty could be negotiated more quickly and provide more flexibility than a series of ad hoc agreements. We also asked what planning the Government had done to avoid an operational cliff edge at the end of the transition period. I much look forward to a reply to that letter.
We cannot, alas, rule out leaving the European Union without a deal, although, as I have said in other debates in your Lordships’ House, I believe that that would be a disastrous outcome. As the European Union Select Committee highlighted in its Brexit: Deal or No Deal report:
“A complete ‘no deal’ outcome would be deeply damaging for the UK. It would bring UK-EU cooperation on matters vital to the national interest, such as counter-terrorism, police, justice and security matters, nuclear safeguards, data exchange and aviation, to a sudden halt”.
None the less, on all these matters, it is essential that internal security practitioners prepare for an operational cliff edge in the event of no deal or at the end of the transition period. We therefore commend the contingency work undertaken by the Crown Prosecution Service, National Crime Agency, Metropolitan Police and others in planning for these possibilities.
Much of the debate about the implications of Brexit is arcane, but the potential implications of Brexit for security are only too clear. The security of our citizens here, and indeed in the EU, is at stake. Brexit risks dismantling agreements and arrangements that have been built up over a generation, and which work. It is no wonder that so many of those who gave evidence to us—the police, members of the legal profession and the Director of Public Prosecutions—were genuinely and seriously concerned about the possible implications of Brexit not only for their work but for the security of our citizens.
I hope that the Minister can give us a convincing assurance that she and the department recognise the challenges that Brexit poses for the security of our citizens and will do their utmost to meet them, whatever the future holds. I beg to move.
My Lords, I am delighted to be able to follow our committee chairman, the noble Lord, Lord Jay, and to support his remarks about the recent report on the prospects, post Brexit, for our continued security co-operation with our EU friends. I do not dispute for a moment that the Government and our many police and intelligence agencies accept and desire the need for an ongoing close relationship, but intentions are not enough: to maintain a seamless and effective co-operation we need to have some basic structures and agreements in place, and that is where I have serious doubts as things stand today.
When I was serving for 17 years as an MEP in Brussels, I was engaged as a spokesman for justice and home affairs issues for a large portion of that time, being responsible, with others, for numerous measures enhancing the pan-European close workings of intelligence and police forces to the detriment of major criminals and would-be terrorists. This included those measures referred to by our chairman: the European Criminal Records Information System, SIS II—the Schengen Information System—the European arrest warrant, the money-laundering directive, the data protection regulation and, just before I came back to the UK, the passenger name record agreement, of which I was in charge in the EU and which, incidentally, took eight years of negotiation to conclude.
These vital tools have the power to protect our safety and have indeed been doing so, but they are totally dependent on common standards, equal redress, agreed levels of openness and transparency and, of course, real-time exchange of information. I am sure that noble Lords are aware that millions of exchanges of vital data take place every day between authorities and agencies, with the protections in place ultimately interpreted by the European Court of Justice. The current government red line that rules out that body as an ultimate arbiter of common standards means inevitably that, if we maintain that position in any future arrangements, we will necessarily lose the benefits, especially of immediacy or that real-time information exchange, as well as the confidence of our neighbours in Europe.
We cannot compartmentalise these issues either. Unless we subscribe to the control mechanisms for data exchange, we lose access to all those areas I have referred to as well as access to the co-operation agreements with Europol and indeed other elements of cross-border structures. Of course we can strive to obtain bilateral agreements, which certainly might be easier than multilateral ones, but the other 27 states are obliged by treaty and law not to treat a third country equally, unless it accepts their controls, and that is not apparently acceptable at the moment to Her Majesty’s Government.
There are many issues on which those of us who have great experience of Europe would prefer the status quo to the plans currently pursued by the Government. Trade, the environment and transport are indeed also very important issues but—for me, and I have reason to say so—the most important by far is our security. I have said before in this House that even one minute of any form of gap or vacuum in our arrangements to exchange data relating to those who could do us harm would be—not could be—completely disastrous. At all costs and in all circumstances this must be avoided.
My Lords, I thank the noble Lord, Lord Jay, for tabling this very timely debate. We are in very confused times, as he mentioned, and we do not have any idea where we stand over Brexit at the moment, so I intend to highlight a few truths about the UK’s security and defence capabilities, with some reference to the political declaration.
First, any security union should be unconditional. There is little doubt that security links, particularly over the last 12 years, have improved by leaps and bounds. This is primarily because the UK has had some key governance roles in the EU agencies. Apparently in the future, if Brexit goes wrong, this may not be the case and Europe will be considerably less safe—increasingly so as time passes. Europol, for example, was an absolute mess before we put a Brit in charge in 2008. I was there and involved as a Minister. Since then, it has come on in leaps and bounds, as the noble Lord, Lord Jay, said. The disparate agencies in European countries at that stage did not even talk to each other, let alone with the agencies of other countries.
As for secret intelligence, the UK is in an absolutely different league to our European allies, and we must not forget that. They need our intelligence warnings. We have saved countless European lives ever since we made that final decision in 2007 to pass on all intelligence on these issues immediately: we have done it ever since. There is no doubt that passenger data is crucial, as was mentioned by the noble Lord, Lord Jay, and I hope that, whatever the outcome of what is going on, the EU does not try to cut us out from this information: that would be in no one’s interests. Similarly, the European arrest warrant, despite its detractors, is actually extremely valuable in terms of extradition but, once again, it cuts both ways and it is not in anyone’s interest to cut the UK out, whatever the outcome of Brexit.
One area that merits particular attention is the protection of data and the rules over the length of time that data should be held. This is a highly complex area and one we cannot afford to get wrong. It has taken huge negotiation, not least in its relation to cybersecurity. Once again, we are streets ahead of the EU in cyber. I had great difficulty as a Minister even getting them to take it seriously. They have done that now, but one needs only to look at current cyber events in Germany and France to see their huge vulnerabilities, and the same is true of a number of other EU nations. They need to work with better-prepared nations, of which the UK is one. Even we are having difficulty keeping up and are slightly behind the power curve. I say again that whatever the outcome of the Brexit debacle—I do not apologise for calling it that—there is a need to maintain some form of security union. The fact that without it the EU will lose more and be more dangerous for its citizens is not the point. By working together, all of us, including the UK, will be safer over the next couple of generations and we may even be able to defeat terrorism.
On defence and foreign policy, the first thing to say is that UK defence intelligence is on a par with that of the US. Our close links with the US—for example the GCHQ-NSA 1947 agreement—are so close that most people in both our countries do not even realise how close it is. Our long-standing AUS/CAN/NZ/UK/US agreement—I can never pronounce it with the NZ in the middle—is a club that we belong to that gives us all sorts of data not available to the EU unless we pass it on. No EU nation has anywhere near our capability; we must not forget that. I say as an aside that it makes a nonsense of the EU’s position regarding the UK’s involvement in Galileo. It has said that we cannot be trusted with certain things: I have to say that I consider that decision to be completely disgraceful. It is very unfortunate that Europe did that.
We need to be very clear that our foreign policy does not always align with that of Europe. The fact that we are responsible for 14 dependencies, some of which EU nations object to, is sometimes problematic. We are a separate permanent member of the UN Security Council. We are a nuclear power. We have a far more global vision than do most countries in the EU, so we need to be wary when it comes to issues of European foreign policy. In defence terms, we and the US have ensured Europe’s defence and safety since 1945, throughout the Cold War. Our expenditure on the military was second only to the US. The US clearly contributed the vast amount, but our expenditure was more than that of all the EU nations combined, apart from France, right up until about 15 years ago, and although it has been cut dramatically in the last 10 years we still spend more than any of those nations. We have been willing to deploy forces abroad in support of our NATO allies and I have to say that a number of EU nations found that problematic when it was clear that heavy fighting and casualties would be involved.
There is a lot of talk about the need for interoperability, and of course there should be interoperability, but that is an area that NATO has been very successful in for many years, with its STANAGs, for example. That is why we can go alongside another ship and refuel. That is why aircraft can land at another airbase and operate from there. Are we really saying that military interoperability within Europe is more important than with Canada and the United States? Many of the enablers that allow theatre entry operations to take place are owned by the United States, and the EU does not have them. If the EU were not interoperable with them, it could not take part in those operations.
The PESCO project and the European Defence Agency also worry me. Although we are major contributors to the European Defence Fund, it is quite clear that our European allies are trying to cut UK defence firms out. This, and a major part of President Macron’s push for an EU army, is not to do with being able to fight better—which is what it is meant for—but rather to do with supporting Europe’s industrial base, bloated headquarters and command structures, and trying to make a political point, not least to the United States. It is worth noting as an aside that a number of EU nations do not meet the NATO commitment to 2% spending on defence, and have not done so for years.
The defence of Europe is crucial for the defence of the UK. Twice in the last century our nation has expended vast quantities of blood and treasure ensuring just that. It is not in the EU’s interest, or our interest, not to keep us fully involved and integrated. If we are not, I fear we will yet again have to expend blood and treasure saving them from extinction.
My Lords, the noble Lord, Lord West of Spithead, said that this is a timely debate. In some ways it is very timely, and in other ways it feels somewhat out of date.
We have just finished a debate on a report about treating students fairly from the Economic Affairs Committee of your Lordships’ House. It too was published in the summer of 2018, and has aged quite well in the last six months—very little has changed. In terms of the report from your Lordships’ European Union Committee on the proposed UK-EU security treaty, everything and nothing has changed. The noble Lord, Lord Jay, said when he opened this debate that in many ways he was not going to look at the report precisely because so much has changed.
When that report was written, it was very clear that security co-operation was essential, as we have heard from across the Chamber this evening. But it was also clear that security co-operation was not guaranteed. The idea that it is not a zero-sum game is important, but it is also important to understand that the law of unintended consequences—as the noble Lord, Lord Kirkhope, suggested—is a real risk. In July last year when the report was written, the Government and the committee were working on the assumption that there would be a withdrawal agreement and a transitional arrangement which would take us to the end of 2020. The report, and the Government’s response, were written in that vein.
What we have seen in the last two weeks in the other place suggests that neither of those things may happen; we may not have a withdrawal agreement, and if we do not then we will not have a transitional arrangement. If security needs to be continuous, if there should not be a single minute between the arrangements that we have now and where we are when we leave the European Union, what is the Government’s plan if, on 29 March at 23.01, we are outside the European Union and we do not have a deal?
I am speaking from the Liberal Democrat Benches, and your Lordships might think that I should not even be speculating that there might be a hard Brexit by 29 March—after all, that is certainly not what we are calling for, and is not what the House of Commons voted for last week. There was a vote that said the Government should not even be preparing to look at a no-deal Brexit—in other words, a no-deal Brexit cannot happen because the House of Commons will not allow it.
However, unless we amend the European Union (Withdrawal) Act 2018, we are leaving the European Union on 29 March. There may not be a majority in favour of a no-deal Brexit, but, unless in the next nine weeks there is some other arrangement, we are going to have a hole in our security. While the noble Lord, Lord West, is absolutely right that the United Kingdom has significant defence capabilities and has been one of the two main defence components of the European Union—along with France—and that it is in no one’s interest to have a no-deal situation on security, the fact that we want something to happen does not mean that it will. The whole concept of a Brexit on terms the UK wants has already been proven to be somewhat fallacious. The report that was drafted in July 2018 was written at the time of the Chequers agreement—so-called—before the withdrawal agreement—so-called—and before the House of Commons said that it did not want the deal.
Even if a withdrawal agreement of some sort can be salvaged between now and March, what confidence can the Government give us that there will then be a security treaty in place leaving the United Kingdom and EU 27 as safe then as we are today?
Finally, can the Minister begin to tell us how we would get to that situation, given that some of the key aspects, as the noble Lord, Lord Jay, has made absolutely clear would be essential, include the jurisdiction of the Court of Justice of the European Union? That was one of the key reasons the deal was voted down in the other place; it was not just about the Northern Ireland backstop. That is going to be an issue for a security treaty as much as the withdrawal agreement. Can the Government give us any assurance at all that we will be secure?
My Lords, as the noble Lord, Lord Kirkhope, specifically said—and as the noble Baroness, Lady Smith, adopted and applied—the security of our citizens is the paramount responsibility of the Government. The security implications of Brexit have not been debated nearly enough, and I believe the Government should have found time for a comprehensive debate about it so that our citizens could be fully informed of the implications of this decision that they in the majority have asked us to make.
I commend and thank the noble Lord, Lord Jay, for the thoughtful way in which he introduced this report. I also congratulate the noble Lord and his committee on this excellent report. I will not be able to do justice to it in the time that has been allotted, but I will do my best. In so doing, I remind your Lordships that on 9 January in the debate on the EU withdrawal Bill I made a speech which was confined to internal security matters. That speech can be found at col. 2258 of the Official Report. Noble Lords will be relieved to hear that I do not intend to repeat it, as I went on longer than I should have, but I will repeat the theme of the speech—whether we leave the EU with no deal or with the Prime Minister’s deal, our internal security would be significantly diminished.
I was not the only speaker to make that point. In the closing stages of the debate, on 14 January, the noble Baroness, Lady Manningham-Buller, who has significant experience in security, also made reference to this inevitable consequence of Brexit. In winding up the debate, the Advocate-General for Scotland—the noble and learned Lord, Lord Keen of Elie—managed, in a speech which as I recollect made only passing reference to the actual debate, to find one paragraph in which to make reference to our future internal security. Referring to the contribution of the noble Baroness at col. 101, he was willing to concede that there is an issue of “police co-operation”, asserting that it could be maintained,
“beyond the EU by reciprocal arrangements—for example, in the case of Norway and Iceland”—[Official Report, 14/01/19; col.117.]
by specific agreements which will apparently,
“maintain the sort of relationship that we would intend to have going forward”.—[Official Report, 14/01/19; col.117.]
I remind your Lordships that, in the words of the Prime Minister—specifically, her Statement when she came back from the December European Council—this will be,
“the deepest security partnership that has ever been agreed with the EU”.—[Official Report, Commons, 17/12/18; col. 527.]
That clearly implies an agreement that is better than the Norway and Iceland agreements.
As a simple aide-memoire, I have with me Norway’s official brochure, which can be found on its Government’s website, on what Norway’s partnership with Europe means. If anybody takes the trouble to look at it, they will see that pages 18 and 19 cover justice and home affairs and the Schengen agreement. I do not intend to go through this shortened version, but it has a number of agreements with the European Union. To get access to EU police co-operation, Norway had to join the “Schengen co-operation”, as it refers to it, in 2001. In order to beat that, do our Government intend to join the Schengen co-operation or to make some similar arrangement with the European Union to meet the challenges of the political declaration? The brochure goes through all the agreements on another page.
The important thing is that this is the result of what appears to be 13 years of negotiations, and even the co-operation with regard to the European arrest warrant, which was agreed in 2014, has not, four years later, entered into force. That seems to echo many of the recommendations in the report that we are debating, which are probably expressed more temperately than I have put them. The Government may think that they can do it another way, but the evidence does not suggest that they can.
The report that we are debating was published, as we have heard, in July. Since then, the negotiations with the EU on withdrawal have concluded, and on 25 November the Government published their agreement and the accompanying political declaration. On 28 November, the Government marked their own homework, publishing their assessment of the part of the political declaration which dealt with policing, judicial co-operation, foreign policy, security and defence. Not surprisingly, they passed. Their assessment was that the Prime Minister’s deal is better than no deal. Importantly, what was missing and what has been missing consistently from the Government’s engagement on this issue is an assessment of what that will be compared to what we already have. No Minister will ever utter those words or explain it to anybody. I am therefore offering the Minister the opportunity to answer the question I put in the debate. In the compromise negotiations that will be necessary in the event of any form of deal, what parts of our security are the Government willing to compromise on, and to what extent? The people of this country need to know that and deserve to know it, and even if they voted for Brexit, they certainly did not vote for that.
My Lords, I am a member of my noble friend Lord Jay’s sub-committee. I want to take issue partly with the noble Baroness, Lady Smith of Newnham, when she says that the report we produced last July has now been largely overtaken. It has taken six months to reach the Floor of your Lordships’ House, and we are shooting at something of a moving target—I know the Royal Navy has always found that difficult—but it is still relevant.
I understand. I was going to say that the report is still very relevant because it is a powerful and evidence-based assessment of why it is vital that we maintain close security co-operation with the EU, whether or not—and on what terms—we leave. As such, it is important to have that on the record.
My own judgment, as the UK’s first National Security Adviser, like that of the noble Lord, Lord West, is that the security of this country and its citizens is best provided for by staying in the EU. If that is not to be, the,
“broad, comprehensive and balanced security partnership”,
set out in the political declaration is a lot better than a no-deal outcome. No deal would immediately exclude us from the whole range of EU security co-operation set out in the report, which has saved British lives. Speaking of no deal, I note that there is nothing, so far as I can see, in the technical notices issued by the Commission on no-deal contingency planning on its side about continuing co-operation on security.
I realise that the view I have set out on the importance of EU security co-operation is fundamentally at odds with that of some distinguished retired practitioners. Yes, I refer in particular to Sir Richard Dearlove and the noble and gallant Lord, Lord Guthrie, who sent a joint letter last week to the chairmen of Conservative Party associations—not, I suppose, an address list chosen completely at random—which mysteriously found its way into the media. This letter thundered that the withdrawal agreement would,
“threaten the national security of the country in fundamental ways”.
It spelled out that the proposed security partnership would cut across the Five Eyes alliance, and put control of aspects of our national security in foreign hands. These are serious charges. However, the letter did not explain why the authors took such a doom-laden view. It may be relevant that both writers had retired some time before the EU developed the full range of co-operation we now see. As a more recent security practitioner, I want to touch on why I believe the EU plays a vital role, and to reassure the House that we in the sub-committee have not somehow missed an important area that threatens our security co-operation.
Defence is not the subject of today’s debate—although the noble Lord, Lord West, has touched on it—but since it is a major point of the letter, let me say that if Britain were to participate in some EU military missions after leaving the European Union, as I hope we would, that would be a sovereign decision of this country. Nothing in the withdrawal agreement would bind us to do so; it would be a voluntary choice.
On intelligence co-operation, nothing proposed in the security partnership with the EU would cut across our vital Five Eyes intelligence sharing. That is for the simple reason that co-operation between intelligence agencies in Europe happens outside the EU treaties and will continue to do so. Do not take my word for it: the noble Baroness, Lady Manningham-Buller, to whom reference was made in the debate in your Lordships’ House on Monday, described it as “nonsense” to suggest that co-operation with the EU on security would upset the Five Eyes community. Indeed, she said that its members have always valued our link with the EU. This reflects the key point that intelligence is useful only if it is followed up with good, effective police co-operation work. The whole thrust of our committee’s report is that it is the measures and instruments that have grown up in EU co-operation that enable UK law enforcement to operate effectively across borders. The police consulted the SIS II database 539 million times in 2017.
Of course, the EU takes the same view, and the political declaration makes that very clear. In a proliferation of adjectives, it refers to the need for a,
“comprehensive, close, balanced and reciprocal … future relationship”,
on security. That is fine as a prenuptial contract, but it now needs to be translated into reality. I share the concerns expressed by other noble Lords and set out in the report over whether a vast, overarching security partnership across many areas can be agreed even in the course of a transition period, to say nothing of what would happen in the event of a no-deal departure.
My experience is that the wheels of Brussels grind awfully slow, and certainly on such a sensitive issue. The report is right to suggest that work should be done on ad hoc security arrangements to mitigate, if necessary, any reduction in operational co-operation while a longer-term agreement is negotiated. I hope that is already under way and the Minister will be able to reassure us that it is the case, even if we have an agreement and a transition period. Like others, I will be interested to hear what the Minister has to say about no-deal contingency planning. We cannot afford to take risks with the safety of people in this country.
My Lords, I must first thank the noble Lord, Lord Jay, for introducing this debate with such rigour and for his excellent chairing of the EU Home Affairs Committee, of which I enjoy being a member. The past two years have been exciting, busy and sometimes perplexing, and he has handled the many Brexit-related issues with enormous skill and determination.
Many of those issues, processes and priorities are still relevant at this time of kaleidoscopic uncertainty. We know that issues regarding Brexit are complex, and need time and due process to be considered properly. Security is one of the most complex. Our report expresses concern about timescales; this problem is being demonstrated by colleagues working on statutory instruments. There are hundreds to consider, with so little time to do it well. We know from experience that the time needed to negotiate EU agreements with third countries is long, in view of the density of the issues. My noble friend Lord Browne described this graphically.
Among our witnesses during the inquiry for the report, considerable variation of opinion was offered on the issue of a treaty. For example, one witness doubted that a treaty could adequately replace existing instruments because it is unlikely that European law will stand still. Other witnesses felt that a treaty would be the best way to ensure an effective security relationship between the UK and the EU and show political commitment.
Sir Rob Wainwright, a former director of Europol—the excellent Brit noted by my noble friend Lord West—has expressed the view that in an,
“ideal world there would be no change to the UK’s current arrangements”,
on security. However, he also recognised that this scenario was “not realistic”. The delicacy of agreements and negotiations on security was apparent in both our inquiry and the one we carried out in 2016 on policing and security. For example, as stated in our report, the EU’s JHA covers a wide spectrum of police, judicial, criminal, civil and family law matters. Some EU member states have negotiated balances between retaining certain powers and sharing others with the UK. This sharing and co-operation may of course continue, whatever happens.
What also struck me was how great the role of the UK has been on various committees in Europe. We have led in several fields. This is likely to diminish. We may get co-operation, but we will not have the leadership we have had—what a pity. It is recognised that the EU benefits from security co-operation with the UK. On 19 June, the director of GCHQ stated:
“These threats are more complex and more global and none of us can defend against them alone”.
The European arrest warrant, a key element in security issues, raises particular concerns. I cannot go into the intricacies now, but I ask the Minister to qualify the UK’s likely position on the EAW post Brexit, given the committee’s concern in its conclusion on page 24 of its report.
The House of Commons Exiting the European Union Committee report states at paragraph 88:
“The Political Declaration appears to rule out continued UK participation in the European Arrest Warrant”,
as the warrant,
“is linked to EU membership, including free movement of people, the Charter of Fundamental Rights and EU citizenship”.
The political declaration states that the two sides will seek replacement extradition arrangements instead, establishing procedures,
“to surrender suspected and convicted persons efficiently and expeditiously”,
as a replacement for the European arrest warrant. What does that mean? What procedures are we talking about and under what timescale? Our committee concluded:
“We have, however, seen no evidence that sufficient progress has yet been made towards negotiating a comprehensive security treaty”.
Is the Minister confident that within the next few months, we will have a security treaty that will sufficiently protect our country? What does she think the Government should do, given that we seem unprepared to guarantee security measures? I look forward to her reply.
My Lords, there is a spectre haunting this debate: yesterday’s vote in the House of Commons, which makes us see the future even more darkly than was the case when the report was drafted by the committee. In the heady days of the referendum campaign, Brexiteers would talk on their platforms and in the media about decoupling from the EU being easy and not a serious problem. Boris Johnson spoke triumphantly of an independence day, when the UK would no longer be a vassal state. With one bound, we would be free, on our own again, our borders, our finance and our laws no longer subject to the judgments of foreign judges. Indeed, the removal of the jurisdiction of the court of justice was a key red line. It seems odd that No. 10 is apparently briefing today that that red line will continue, notwithstanding yesterday’s vote.
We have certainly narrowed our options. That is one reason we owe so much to the noble Lord, Lord Jay, and his committee. He has given us a great dose of realism—we cannot expect the benefits but avoid the laws and regulations. He has also shown us very clearly the complexity of disengagement from our European alliances and those conventions built up over the past three or four decades, including access to databases, a point very well made by the noble Lord, Lord Kirkhope.
It is clear that we have made some movement, and I welcome the fact that, at least during the proposed transition period, we can continue to participate in key agencies, but of course not in their governance, which must logically mean, over time, the erosion of our influence on policy and direction. One example of that is the European arrest warrant, which has been of enormous benefit to us, as we have seen in a number of key terrorist cases and cases of abducted children, when we can quickly get the malefactors back to the UK—an enormous improvement in speed and finance on the previous Council of Europe convention. The Government’s position may mean, however, that we will have to fall back on that rather inadequate convention.
There is a further problem relating to Article 168. The noble Lord, Lord Jay, said that he had written to the Government but answer, as yet, there is none. Problems will arise, and not just in relation to Germany. It would be interesting to know from the Government which other countries may have similar domestic problems. The Government repeat the mantra that this would not involve giving the Court of Justice of the European Union jurisdiction over the UK. But what else can using those agencies mean? This is surely just playing with words.
The same is true in respect of Europol. Colleagues have already quoted its former director, Rob Wainwright. I think it was my noble friend Lady Massey who said that in an ideal world there would be no change to the UK’s current arrangements and that any change would be second best. We are indeed involved in a process of damage limitation. Rob Wainwright praised the contribution of the UK as a lead member in key multinational operations and mentioned that there is no precedent for a third country having suitable arrangements on the lines that we seek. I will not mention the security treaty—the title of the report—because that has almost certainly been overtaken by events.
Finally, I turn to the European Court of Human Rights, mentioned in paragraph 158. Surely the Government need to explain urgently how fundamental rights will be protected after Brexit. They have said they will reform the Human Rights Act after Brexit. What will be the nature of that reform? They have talked about a framework of the European Court of Human Rights. The European court and the convention are fundamental to the Council of Europe. The Government claim that they do not envisage leaving the Council, where, on the whole, we have an exemplary record, pace the case of Hirst.
I have a final positive reflection. The Government claim they will seek,
“a deep and special partnership”,
with our allies, but this task has been made more difficult by the red lines. I take comfort from there being throughout this dossier a mutuality of interest between us and our European partners. I hope that mutuality of interest will lead to relevant compromises that will at least ensure that the clear damage is limited.
My Lords, this report is of immense importance. It is hard to overstate its importance to the safety and security of the people of the United Kingdom and throughout the European Union—and possibly more widely as well. The way in which we have participated in this process has been of great value to Europe and the UK. Europol director Rob Wainwright has been mentioned a number of times, but I also mention the staff who work for us over there generally. I have been as a delegate to the home affairs and justice committee of the European Parliament, chaired by Claude Moraes, a British MEP who will, of course, no longer be there as an MEP after we leave. The noble Lord, Lord Kirkhope, did a great deal of work in this area when he was a Member of the European Parliament. In other words—to summarise some of the comments already made—the British have made an extraordinary contribution to the security and safety of Europe and Britain.
The lack of preparation for leaving and dealing with security has troubled me. I have raised it a number of times in this House and am by no means the only one to have done so. What troubled me most was that it was very obvious soon after the referendum in 2016 that we were going to lose the ability to exercise our rights under the European arrest warrant. The European arrest warrant is of immense value to Britain. It enables us to hand over criminals to other countries in the European Union and them to hand criminals back to Britain. That will no longer be possible when we become a third country, not least because some countries, notably Germany, have in their constitutions that they cannot automatically deport to a third country without a legal agreement.
When we heard that the Government recognised the need for a UK-EU security committee, we recognised that that was important. The evidence that the committee—chaired so ably, as usual, by the noble Lord, Lord Jay—took throughout revealed to us just how much value was placed on our work. Rob Wainwright has already retired; other people from the United Kingdom will go; we will lose the chairman of the home affairs group, as I have said; and now we have to draw up a security agreement that will work. I welcome the words in the political declaration indicating that we seek,
“an ambitious and comprehensive future security relationship … law enforcement and judicial cooperation in criminal matters”,
but that understates the difficulty. To draw up those agreements will not be quick. I make the point, which I have made before, that, particularly given events in the House of Commons yesterday, it is very important that we start thinking about this political declaration and how we move forward on some of its contents to avoid some of the traps we will fall into when we find that we can no longer get our hands on serious criminals, including terrorists, who operate in Europe and back here. If people knew the backgrounds of some of the criminals and terrorists who have been picked up or stopped from carrying out their actions as a result of the work we have done, they would be very alarmed—and they would be right to be.
So I echo the question to the Minister from the noble Lord, Lord Ricketts, who asked if the Government are preparing ad hoc arrangements to fill this gap. I am not sure how those ad hoc arrangements can work, because I am not sure how Germany will be able to deal with its constitutional issues, but it is profoundly important. I emphasise that the evidence given to us across the board was profoundly important. When I was in a couple of meetings of the European home affairs and justice committee chaired by Claude Moraes, a number of people said, “Don’t leave; we need your experience and knowledge”. People do not understand the extent of it, but it is profoundly important.
This report is very important. We cannot solve the problem quickly; I understand that. But if we work on the political declaration, we might make progress. The committee chaired by the noble Lord, Lord Jay, is very ably served by the staff of the House of Lords. When I went to Europe and attended a number of these meetings, I saw that the reports from this House are valued. People refer to them when they speak. It is very significant. We will lose that; that is almost inevitable now. So I echo the noble Lord, Lord Ricketts, in saying that the Government need to get real about security and come up with some ad hoc and other arrangements that will, at least to some extent, fill the very large hole we are about to leave in the security arrangements of the UK and the EU.
This report, the proposed UK-EU security treaty, starts:
“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”.
I thank the noble Lord, Lord Jay, and the committee for this excellent report. He started by saying:
“Negotiations on security are not a ‘zero sum game’: we all stand to gain from agreement, and we all stand to lose if negotiations fail”.
He also quoted Sir Julian King, who said that,
“security cooperation should be unconditional”.
It should also be continual.
We now have transition agreements, supposedly, and Article 168, which the noble Lord, Lord Anderson, spoke about. During that transition period, we will be subject to the ECJ. The noble Baroness, Lady Smith, spoke about this. What about our future relationship with Europol and its operational status, the closer integration we seek with Europol and the compromises the Government will make? What about the European arrest warrant, which so many have spoken about? There is no evidence that sufficient progress has been made in negotiating this comprehensive security treaty. Could the Minister tell us more about this? This is so crucial because it will be underpinned by data sharing, a topic that so many of us have spoken about. We should not forget that the co-operation that exists on Northern Ireland is on an informal basis. Will that continue on a formal basis between the UK, Ireland and Northern Ireland within the UK?
The European Criminal Records Information System is one example of data sharing. The UK sent and received 163,000 requests and notifications for criminal records in 2017. That is phenomenal. Going ahead, will we have access to all this? This balanced security partnership, broad and comprehensive—this is all waffle. It is nonsense. The good news is that some of it will continue. I believe the passenger name record and Prüm data will continue. Then we are told we will not have access to the Schengen Information System II, nor the ECRIS. Could the Minister confirm this? It is also unclear if co-operation with Europol or Eurojust will go beyond third-country arrangements. These are vital tools.
The House of Commons Home Affairs Committee in December produced a report on Home Office Preparations for the UK Exiting the EU. It spoke about data sharing and all these things I have just spoken about. What did it conclude? The report welcomes the access to Prüm and PNR, but states:
“We are extremely disappointed by arguments made…that SIS II should only be open to member states…within… Schengen”.
We are not in Schengen. Look at the risks we have here. The report states that failure to retain access to ECRIS would be,
“a significant downgrade of our policing and security capability at a time when cross border crime and security threats are increasing”.
It goes on to mention a figure:
“UK agencies check SIS II over 500 million times a year and there is no adequate contingency”.
Listen to that one fact alone. The report continues:
“Losing access would, as the police have warned, make us less safe”.
What are the Home Office’s plans to deal with that? The report concludes by saying:
“From the evidence we have received, it is clear that no deal would represent a risk to public safety and security”.
It is as simple as that.
Let us look at the report produced in December by the Exiting the European Union Committee on the progress of EU withdrawal. On the dispute over UK participation in Galileo, which the noble Lord, Lord West, mentioned, it states that this demonstrates that,
“the depth of cooperation will, in many cases, depend on what the EU decides it wishes to allow under EU rules … The overall level of EU-UK cooperation will be less than it is now, as will be the UK’s influence on the strategic direction of EU foreign and security policy”.
There you have it.
Then we have Sir Anton Muscatelli. He says it was London’s assumption that the EU would want to share because we are so good at security, as the noble Lord, Lord West, spoke about, and that it would surely not want to lose our powerful “military, global diplomatic clout”. But the EU has shown no signs yet of doing that. He concludes by saying that, reading between the lines of the political declaration, we are set to,
“lose access to the key Europol and criminal records databases, and to the European Arrest Warrant”.
He spoke also about Galileo.
Here, however, we have the Prime Minister going on about the “unconditional commitment” to European security and asking why the EU has not reciprocated. I will tell noble Lords why. As our very capable Metropolitan Police Commissioner, Cressida Dick, said, if there is no deal, it would be,
“more costly, undoubtedly, slower … and, potentially, yes, put the public at risk”.
My noble friend Lord Ricketts, our first National Security Adviser, said that we would be far safer remaining in the EU. The noble Lord, Lord Browne, a former Minister, said that the security of citizens is the number one priority of any Government. No deal is not an option, not just because of the Dover-Calais corridor but for security reasons alone. The Prime Minister’s deal—one and three-quarter years to get a 600-page withdrawal agreement—is on three areas: people, money and getting our laws back. Here we are saying that we are going to be subject to laws on a security basis—but there is no mention of security, and nor is it covered by the 26-page political declaration, which is a wish list. Even during the transition period we will be subject to ECJ laws, as the noble Baroness, Lady Smith, spoke about.
What about the platitudes? What about the red lines of no more customs union, no more single market and no more ECJ? As we have seen, this is all hypocrisy. As the noble Lord, Lord Soley, said, if people realised this, they would be alarmed. Would they vote for Brexit if they heard even this one debate? When people see that the Brexit emperor has no clothes, there will be only one solution: to go back to the people, with full information, to give them a say through a people’s vote.
My Lords, I congratulate the members of the committee on conducting this excellent inquiry and, in particular, the noble Lord, Lord Jay, who opened our debate today in such a comprehensive fashion. I declare my interest as the elected police and crime commissioner for Leicester, Leicestershire and Rutland. Further, and more specifically, I am one of the three police and crime commissioners asked to look at the consequences of Brexit on behalf of the Association of Police and Crime Commissioners. In that role, the three of us had a meeting this very afternoon with the Home Secretary. I expressed my gratitude to him for seeing us on a day when other matters are so pressing. The issues raised at that meeting concerned the post-Brexit position for policing and security. Different conditions arise—all of which are incredibly serious—depending on whether we leave as part of a deal or with no deal at all.
In my short contribution tonight I want to say a few words about the position as I see it if there is a deal. I speak as someone who, every day of my working life, deals with senior police officers on this and other matters. Chapter 4 of the report we are debating tonight deals with the transition period. With a deal, that would take us to the end of 2020, with an agreement that present arrangements would continue, for the most part, for 21 months from the end of March this year. But 21 months is not a long time to reach consensus on the future of the vital agreements that at present play such an important and positive role in policing, not just here but in the EU. I will not detail these agreements; that has been done many times and they are well known to noble Lords, as is the fact that they have added greatly to the efficiency and effectiveness of policing, both at home and abroad.
The United Kingdom will become a third party—a rather special third party, or so we would like to think. But history shows that it can take many years, and is sometimes impossible, for agreement to be reached by the EU and countries outside it, even when both want to agree on the issues raised. We cannot allow that to happen in this case.
Unfortunately, it is pretty clear that even now—let alone in July, when the report was published—negotiations have not seriously commenced on these issues between Her Majesty’s Government and the EU Commission. I am sure that some work has been done on both sides, but it has clearly not been anywhere near a priority for either side, and proper discussions about the future have in my view been too long delayed. European Parliament elections and the setting up of a brand new Commission will potentially considerably reduce the period of 21 months, maybe to as little as 15 months. That is a short time indeed. How grievous it would be if, almost by default and unintended consequence, these hard-won and successful agreements and arrangements fell. As has already been said in this debate, it would directly affect the security of people’s lives in both our country and the EU. Frankly, it would be unforgivable.
My Lords, to pick up on what my noble friend Lord Bach said, there is a tendency to be mealy-mouthed on these matters and to talk about the irresponsibility of the failure to prepare properly and take these issues seriously. If noble Lords will forgive me for saying so, it is much graver than that. I believe that, as the noble Lord, Lord Bilimoria, said so strongly, no deal would be—and here I choose my words carefully—treachery and a betrayal of the British people on what is vital to their interests: their security. It is an extremely grave matter. That is why the report of this committee is so important. I thank the noble Lord, Lord Jay, without qualification, for giving us the opportunity to look at it this evening and for the sensible way in which he introduced it. We are indeed fortunate to have someone with his experience chairing and leading on these matters.
A fundamental failure on the part of successive British leaders has been the failure to face the reality that the European project was always political. Where this naive idea came in that somehow we were interested only in the common market dimensions of it and were not really interested in the political union I do not know. Going back to the origins, when we were talking about coal and steel, it was important to have sensible arrangements for coal and steel in the future of Europe but that was not the end: the objective was to build a stable, secure Europe and never again to have the searing experiences of the Second World War. It has been a tragedy that we have failed to understand this in British culture, because we have ill prepared the British people to understand the significance of the issues with which they are now confronted.
We are talking about the importance of Europe in security matters. The times in which we live underline this, because the volatility and unpredictability of US foreign policy under its present leadership are dangerous. My noble friend Lord West spoke with so much authority about the importance of the intelligence relationship with America. That underlines the dangerous situation in which we are placed. Everything my noble friend said was true, but, in reality, that is in the context of unpredictable and extraordinarily volatile happenings in the United States.
There are a couple of other reasons why this is so vital. One is the new policies of Russia under Putin: the interventionist lines he is following and the deliberate destabilisation of many parts of the world, including western Europe. That is another reason why we should be holding together with the European community as a whole—of course it is. However, closer to home, there are also the issues of Poland, Hungary and Romania, and some might say that this is therefore an unwise time to be more involved in the politics of Europe. Quite the reverse; this is a time to be in there playing our part, devising and strengthening the policies which are necessary to confront the forces of reaction and destabilisation. It is tragic to see Britain walking away at the very time when the challenge is greater than it has ever been.
In conclusion, I have become totally convinced that crime, trafficking, drugs and terrorism are all international. It is absolute madness to be moving away from close co-operation with Europe. Everyone I have heard giving evidence to the Home Affairs Sub-Committee, for example—anyone who has any kind of responsibility in these fields—has said that it would be nothing but to the detriment of the effectiveness of all that has been achieved in recent years if we were to move away. We need very convincing policies from the Government and there is no sign of them yet.
My Lords, I too thank the Lords European Union Committee and specifically its Home Affairs Sub-Committee for this report. I share the admiration expressed for that sub-committee and for its excellent chairman, the noble Lord, Lord Jay of Ewelme. I can be objective because I am a member not of that sub-committee but of its sister sub-committee on justice. I worked on security and criminal justice for 15 years in the European Parliament, as did the noble Lord, Lord Kirkhope. In fact, my last work in the European Parliament was a report calling for reform of the European arrest warrant, which, unfortunately, has not been progressed.
The bottom line is that we will be less safe if we Brexit at all—not only with no deal. The European Union Committee said in its report on the withdrawal agreement and political declaration that,
“the UK will necessarily cease to be part of the EU’s law enforcement and security ecosystem”.
That is a good term because the whole thing hangs together. The reasons for this loss of capacity are the Government’s red lines against free movement and ECJ jurisdiction. So this reduction in safety is the fault of the Government.
The police—including Lynne Owens, the director-general of the National Crime Agency, and Metropolitan Police Commissioner Cressida Dick—have been outspoken in their views. Cressida Dick was misreported because the headlines said that she was worried about a no-deal Brexit but, where her remarks covered Brexit at all, she said:
“We will have to replace some of things we currently use in terms of access to databases, the way in which we can quickly arrest and extradite people, these kinds of things, we’ll have to replace as effectively as we can. That will be more costly, undoubtedly, slower, undoubtedly and, potentially, yes, put the public at risk”.
Those remarks covered any kind of Brexit.
Malcolm Chalmers of the Royal United Services Institute said:
“The UK will have to make much harder choices between sovereign control and operational effectiveness than it has had to take while still a member state. In security terms, the full benefits of membership—combining both shared decision-making and operational effectiveness—cannot be replicated under the proposed deal”.
The noble Lord, Lord Browne, was right to ask the Government what aspect of our safety they will sacrifice.
The political declaration is vague and could be interpreted narrowly or more broadly in terms of the closeness of co-operation. The chances of getting a security partnership concluded and ratified before the end of transition, even if that is extended by two years, do not look good as in all likelihood it will be a mixed agreement, requiring ratification in all member states.
In her Florence speech in September 2017 the Prime Minister expressed the ambition for a “bold new strategic agreement” on security, law enforcement and criminal justice co-operation which would build on,
“our shared principles, including high standards of data protection and human rights”.
Yet the Government she leads refused to incorporate the Charter of Fundamental Rights because of an ideological prejudice against it. When they implemented the European investigation order, instead of referencing the charter as grounds for refusing an EIO, they substituted the ECHR. I have mentioned this several times because I think it is a breach of the EIO; it is a wrong implementation. However, it will not be high on the Commission’s to-do list.
Now there has been an exchange of letters from which I can quote because the correspondence has been published. The Lords European Union Committee, via the Justice Sub-Committee, wrote to the Government about the discrepancy between the summary draft of the political declaration published on 14 November and the final version. The draft referred to how the relationship would be underpinned by:
“Reaffirmation of the United Kingdom’s commitment to the European Convention on Human Rights”,
and said that in respect of law enforcement and criminal co-operation there would be,
“continued adherence to the ECHR and its system of enforcement”.
However, the final document diluted these formulations, saying that the UK would merely agree to,
“respect the framework of the European Convention on Human Rights”,
although the part on JHA retains the phrase about continuing adherence to giving effect to the ECHR.
However, I am afraid that we have had a reply from the Ministry of Justice which is less than reassuring. It talks about how the Conservative manifesto,
“committed to not repealing or replacing the Human Rights Act while the process of EU exit is underway”.
“It is right that we wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape”.
That begs the question of what is meant by,
“until the process of leaving the EU concludes”.
I am not sure what date that is supposed to be. However, the point is that this does not rule out abolishing the Human Rights Act. That ball is still in play in the internal dialogue in the Conservative Party.
Therefore, having refused the charter, saying that all our weight is on the ECHR, the final version of the political declaration talks only about respecting the framework of the ECHR, and now we are told that the Government could still abolish the Human Rights Act. This will undermine potential co-operation on law enforcement and the safety of British citizens, all because of ideological fixations. I raised this matter in the Chamber—it was that which prompted the correspondence. Once again, can the Minister give us a commitment that the Government will not abolish the Human Rights Act?
The UK has declined to take part in various fair trial measures ensuring procedural rights for suspects and defendants, including, bizarrely, the right to a lawyer, where we have the gold-standard provisions in Europe. When Mr Grayling was Justice Secretary, he told me that the UK would not opt in because we already provide a high standard, but what about the idea of encouraging others to do so?
At present, the protection of the charter—for instance, for someone against whom an EAW is issued—compensates for some of those omissions. However, the Government have refused to retain the charter, so this could well have operational consequences. The basis on which we make human rights guarantees in the context of the European arrest warrant, the EIO and so on, switches from the charter to the European Convention on Human Rights, but now that is undermined as well. The Government are being extremely short-sighted.
Others have mentioned that, although the political declaration talks about passenger name records and Prüm—of course, Prüm started as an intergovernmental instrument, so perhaps it is not so surprising that it is name-checked—there is no mention of the SIS or ECRIS. The political declaration talks only of arrangements that “approximate” those EU mechanisms and does not even offer the possibility of access, with the caveat that arrangements will be made only,
“so far as is technically and legally possible”.
The Government rail against this sometimes but there are rules. If you are an EU member state, you have certain rights to be covered by EU instruments. If you are not, things are a great deal more difficult. I remember the precedent of the Schengen visa information system. It seems extraordinary now but in 2005, as a Brit, I was permitted to be the European Parliament’s rapporteur on that measure. The UK envisaged some kind of pipeline into the visa information system but was denied access on the grounds that the UK does not participate in the migration aspects of Schengen. Therefore, there are plenty of precedents for saying, “You either sign up fully or you are in a different category”.
We all know that we will need a data adequacy decision covering both commercial data exchanges and law enforcement. However, to do that, the UK will need to agree to an ECJ role in resolving disputes. We also know that a dim view may well be taken of the degree of surveillance in this country. Extraordinarly, the Home Secretary has described SIS II as “nice to have”. Can the Government tell us whether they want access to SIS II or whether it is just some decorative add-on that is not terribly important? If we have to fall back on the European Convention on Extradition, drawn up by the Council of Europe in 1957, can they also tell us how many countries refuse to extradite their own nationals? There does not seem to be precision on the numbers; there could be 18, 19 or 22—in any case, there are a lot.
Finally, I was interested to see yesterday, among all the excitement in the other place, that one item went through without debate on a UK opt-in to the new Eurojust regulation under Protocol 21. However, the political declaration offers only the prospect of working together,
“to identify the terms for the United Kingdom’s cooperation via Europol and Eurojust”.
The noble Lord, Lord West, said that we will not have another director of Europol if Brexit goes wrong. We will never have another director of Europol if we are not a member state. We will not be able to request the setting up of joint investigation teams in Eurojust and so on.
The Government seem to believe in British exceptionalism and British specialness and think that they can buck the ecosystem of EU structures and so on. Why do they think they can do better than Denmark on Europol? Why do they think they can do better than Norway in regard to the European arrest warrant? What basis is there for the Government’s belief? Is it any more than this rather superior attitude of British specialness?
My Lords, as other noble Lords have done, I thank the European Union Committee for producing the report we are debating today and I thank the noble Lord, Lord Jay of Ewelme, for moving the Motion that has enabled us to have this debate. I also thank him for his chairmanship of the Home Affairs Sub-Committee of the European Union Committee, whose deliberations have resulted in this excellent report.
My first reflections on reading the report and the response from the Government were that whatever in the end is agreed upon, it will be inferior to what we have in place today in relation to security matters. My noble friend Lady Massey of Darwen made reference to that in her contribution. This should concern all of us, as it will leave the United Kingdom and our European friends and neighbours less safe and in a more precarious position.
My noble friend Lord Browne of Ladyton was absolutely right to draw the House’s attention to the lack of debate and discussion on the security implications for the UK of implementing the decision to leave the European Union. The noble Lord, Lord Ricketts, has great experience in security matters and the Government should listen to his wise words very carefully. My noble friend Lord Bach brought to the debate his experience as a police and crime commissioner and the particular risks that we face as a third party in not getting a proper, comprehensive agreement. As my noble friend said, failure to do so would be unforgivable.
Looking at the Government’s response, I was struck by phrases such as “should not” and “may continue”. It also contains the phrases,
“where the presence of the United Kingdom is necessary”,
“The exact nature of the UK’s participation is a matter for further discussion”.
Another refers to the new situation not being,
“at the expense of protecting the public”.
In my opinion, those words do not provide anything other than confirmation that we are going to be in a worse position because of this extreme ideological right-wing-driven Brexit, and nothing has changed in that respect as far as I can see.
The committee’s report is excellent and illustrates the important work done by the committees of this House. However, it is disappointing that we are debating it six months after it was published. When I reflect on the number of times we have finished early in this House, there is no doubt that we could have found time to debate this report in October or November last year. Those who control the agenda of the House have to do better and allow a timelier discussion on these important reports produced by committees of the House. This is sadly not the first time other noble Lords and I have made this point in respect of debates scheduled on reports of committees of the House. I very much agree with the comments of the noble Baroness, Lady Smith of Newnham, in this regard. I share the view that it is a matter of paramount importance that we maintain the closest possible relationship after Brexit: that co-operation, working together and the sharing of information are vital to protect the millions of people who live and visit the United Kingdom and our friends and neighbours in the European Union.
If we fail to achieve this, the only winners will be criminals and terrorists. The noble Lord, Lord Kirkhope of Harrogate, was absolutely right when he spoke of the need to have a comprehensive agreement in place, and said that not doing so places us in a very unfavourable position. So my first question to the Minister is whether there is even one tangible benefit to our safety and security that will be achieved as a result of us leaving the European Union. On reading the report and the response from the Government I cannot see that even one has been identified.
Our police and security services are some of the best in the world. Every day they work to save lives and foil terrorists and criminals who wish to do harm to individuals and to critical infrastructure. My noble friend Lord West of Spithead has great experience in these areas and worked as a Minister. I agree fully with his remarks that we need to have a comprehensive security union in place. The police and security services have our full support but can the Minister say something about how the Government will ensure that co-operation will continue at the same level? The risk I want reassurance on is that—despite reassurances from both sides—as a third country, we will not be in the room and we will drift apart. How will that be prevented?
I understand the point about shared tools, measures and capabilities but if you are not at the meeting your involvement and your ability to influence must be detrimentally affected. Where we will end up in the next few weeks is somewhat more uncertain following the events of the last few days, but the report quite rightly looked at the proposed transition period. So assuming that there will be a transition period —that takes more imagination now—can the Minister confirm there will be no circumstances in which, if invited, the UK would not co-operate in any new European Union measures? Can she also confirm that the UK will positively seek to participate in meetings of EU agencies and bodies where security matters are under consideration?
Crime and terrorism, as we have heard, do not respect nation-state borders. Security concerns identified in one area or one country can result in something happening elsewhere whether we are in the EU, outside the EU or in a transition period. These matters are not the top priority for terrorists and international criminals other than in respect of where we have weakened our protections.
I very much agree with the committee and the Government that we must do everything we can to achieve continued involvement with Europol at the highest levels. My noble friend Lord Anderson of Swansea made reference to the lack of influence that must come over time from not being part of the governance arrangements of various bodies, and the detrimental effect that that will have. My noble friend Lord Judd highlighted the precarious situation we find ourselves in and how important it is to play our part in strategic activities. Can the Minister outline what ongoing work is taking place to deliver the closest possible engagement with Europol? Are we going to seek a special agreement whereby we can maintain our current contribution and involvement with this important organisation? Will she confirm that it is still the Government’s position that, with regard to Europol, they will have to take into account the accountability to the Court of Justice of the European Union? If that is the case, that to me is regrettable political dogma.
The European arrest warrant has proved to be a very valuable tool at the disposal of all member states, as referred to by my noble friend Lord Anderson of Swansea and other noble Lords. It has ensured the arrest and swift return to the UK of individuals wanted for crimes committed here, and reciprocal arrangements through which we have been able to arrest people and return them to European Union countries where they are wanted for offences committed abroad. I have listed before the numerous cases where swift justice has been helped by our being part of the scheme. My noble friend Lord Soley raised the challenge we could face regarding the European arrest warrant and our status as a third country. Again, no one but the criminals will benefit. Can the Minister confirm that the Government are doing everything possible to ensure that we do not fall back to the pre-European arrest warrant arrangements?
Noble Lords will remember references to the Costa del Crime, with criminals wanted in relation to serious offences in the UK hiding in plain sight in Spain and other countries. We cannot allow a return to that situation. The only people this would benefit, as I said, are criminals and terrorists. It would hurt law-abiding citizens who want to see people brought to justice quickly.
I agree very much with the Government about the need for a comprehensive agreement on security matters as referred to by virtually all noble Lords, including the noble Lord, Lord Bilimoria. The committee is suggesting other options only because of its concern that we could otherwise leave ourselves exposed if no agreement is reached. I agree about the importance of continued data sharing; the Data Protection Act 2018, bringing us in line with the GDPR regulations, is very welcome and clearly means that we start from a position where we are aligned. I join with the committee in commending the contingency planning work done by the Crown Prosecution Service, the Metropolitan Police, and the National Crime Agency and others in case the UK loses access to databases and other frameworks for security co-operation. But these organisations and the people working for them need to be better served by the politicians in charge of the process.
I agree with both the committee and the Government that dialogue is important in any future relationships regarding security matters. It is also important in the present arrangements but, today, we are able to have more formal engagement as well. It would be useful if the Minister could set out how the Government will seek to develop this new but inferior relationship.
The relationship between the United Kingdom and the Republic of Ireland is important in so many respects. Close co-operation between the police and security services needs to be handled carefully. Cross- border co-operation on the island of Ireland has led to people being brought to justice for crimes committed, and to security threats being effectively dealt with to keep our citizens safe. We must ensure we never go backwards on that.
Finally, I again thank the noble Lord, Lord Jay, for enabling this debate on the committee’s report and I look forward to the Minister’s response.
My Lords, as many noble Lords have alluded to this evening, a week is a long time in politics—and it is only Wednesday. As the noble Lord, Lord Jay, rightly pointed out, we are the calm and thoughtful end of Parliament, and the debate has absolutely reflected that this evening. I am grateful to all those who have spoken. I also take the opportunity to thank the EU Home Affairs Sub-Committee for producing this very good report, Brexit: the Proposed UK-EU Security Treaty. I am grateful for the variety of comments that were made and I echo the point made by the noble Lords, Lord Browne of Ladyton and Lord Kennedy of Southwark: we do not debate this topic nearly enough. It is the most important aspect of our exit from the EU and I totally agree with the noble Lords on that point.
The noble Lords, Lord West and Lord Kennedy, and the noble Baroness, Lady Massey, commented on the fantastic arrangements we have in our co-operation with the EU. I would go further and say that we have led the way in many of the arrangements that we now have. They are absolutely right to be concerned about what that change will mean. It is, in my job, the biggest concern that I have. It is our duty to deliver on the instruction from the British people to leave the European Union, and the best way to do that is obviously with a good deal.
One thing that we should note at the outset is that we are in the happy position of having a good degree of consensus across the political parties and across the two Houses, if not about anything else at least as to what we are looking to achieve from any exit deal from the EU. We all want to protect the operational capabilities that help the police, law enforcement and prosecutors to do their job of protecting the public and bringing criminals to justice. We believe that the UK and the EU have a mutual interest in that outcome. The noble Lord, Lord Kennedy, talked about the Costa del Crime and clearly there is a mutual interest there, given the number of UK nationals who found—and indeed find—themselves there. We also have a good degree of consensus around what the most important operational capabilities are.
Notwithstanding the week’s events, the report of the noble Lord’s committee stands the test of time—I agree with his point on that—and it raises issues that we will inevitably have to answer as part of our exit. The Government of course agree with the committee’s observation that protecting the safety of millions of UK and EU citizens must be the overriding objective. The committee has highlighted the importance of current security, law enforcement and criminal justice co-operation between the UK and the EU. We recognise that, and have said explicitly that the shared tools, measures and capabilities that have been developed over the last 40 years have been proven to save lives. While we accept that our relationship will change as a result of leaving the EU, the firm view of this Government is that working together through different structures should not be at the expense of protecting the public.
On the question of security co-operation during the implementation period, should we enter an implementation or transition period as provided for in the withdrawal agreement, the UK would continue to participate in the existing EU justice and home affairs tools and would also be able to choose to take part in any measures amending or updating them. The UK would no longer be an EU member state during the implementation period, as the noble Lord, Lord Jay, said. In response to one of the points made by the committee, we absolutely do not underestimate the impact of leaving the EU on the UK’s role in EU institutions. Of course we recognise that relinquishing our membership will carry consequences. However, as set out in the withdrawal agreement, common rules would remain in place and representatives or experts from the UK would continue to participate in the meetings of EU agencies and bodies such as Europol, where the presence of the UK is necessary and in the interest of the Union, or where the discussion concerns Acts addressed to the UK and its citizens.
In the political declaration that was published alongside the withdrawal agreement, the UK reached a deal with the EU that would deliver the broadest and most comprehensive security relationship that the EU has ever had with another country. That would include a framework for our future internal security co-operation. All the operational capabilities on which we would wish to co-operate with the EU in future are within scope of that framework. The future relationship envisaged in the framework would enable us to continue to work closely together on law enforcement and criminal justice; keep people safe in the UK, across Europe and around the world by exchanging information on criminals and tackling terrorism, as noble Lords have said; ensure that we can investigate and prosecute those suspected of serious crime and terrorism; support international efforts to prevent money laundering and counterterrorist financing; and allow us to work together to combat new and evolving threats such as cybercrime.
The text agreed by the UK and the EU also references specific capabilities that we had already agreed should form part of that future relationship, including: the exchange of passenger name records so that we can continue disrupting criminal networks involved in terrorism, serious crime and modern slavery; the exchange of DNA, fingerprint and vehicle registration data, ensuring that law enforcement agencies can quickly investigate and prosecute criminals and terrorists; fast-track extradition to bring criminals to justice quickly wherever they have committed a crime; and continued co-operation with Europol and Eurojust. There is also a commitment to examine further areas of co-operation such as the exchange of information on missing and wanted persons and objects and on criminal records.
Overall, the text of the political declaration reflects a shared commitment on the part of the UK and the EU to a high level of future co-operation in relation to internal security. It is a positive first step that we must build on during the next phase of negotiations, turning those commitments into detailed legal text. When it comes to what that detailed legal text should look like, the noble Lord’s committee took the view with regard to the form of our future agreement that the Government needed to show realism about what could be achieved in the timescale available—and he made that point this evening. The committee concluded that time is short, and that it would be preferable for the Government to seek a number of ad hoc security agreements rather than a single, comprehensive one. In their response, as he knows, the Government disagreed with that conclusion.
In our view, the capabilities developed by the EU and its member states are mutually reinforcing, from the initial stages of identification and investigation of a suspect through to arrest, prosecution and prisoner management. As the committee highlighted, there are synergies between different EU tools, with many working together to provide an integrated system to identify, pursue and prosecute criminals and terrorists. That is one reason why the Government consider that a piecemeal approach based on ad hoc agreements would have a more limited value than an overarching, comprehensive agreement on internal security. We also expect a comprehensive agreement of the kind that the Government have proposed to help ensure that we maintain a dynamic relationship in this area that can meet the evolving threats faced by the UK and the EU. In contrast, ad hoc agreements on individual capabilities would likely be static and frozen in time, even as technologies and threats change.
We are very clear on what will make for an efficient negotiation in the time available. The UK’s proposals that were set out in last year’s White Paper would allow co-operation to take place on the basis of existing EU measures, with negotiations focusing principally on the overarching provisions and safeguards in a comprehensive agreement. In our view, this would lead to a faster and more efficient negotiation than having to tackle the same issues over and again in a collection of agreements on individual capabilities.
We are going for overarching. I think the point I made was that we disagreed over an ad hoc approach, and that moreover we wanted an overarching approach. I will just look at my notes to make sure that I am not contradicting myself; I hope I am not.
My Lords, I am reluctant to intervene on the Minister—I think we are all conscious of the time—but I have been listening carefully to what she has said, and she seems to have represented the provisions of the political declaration as being agreed. I am not going to go through all its paragraphs but I have copied down three active verbs from three of them, and they are very important. One of them is “consider further”, one is,
“work together to identify the terms for the United Kingdom’s cooperation”,
and the third is “consider how”, and whether,
“the United Kingdom could contribute”.
To me, that does not imply or state agreement on anything; it just says, “We can talk about these things”. They are all aspirational. Nothing is agreed and, set against Michel Barnier’s clear and specific speech in Vienna in June last year, it cannot be agreed. Some of the issues that the Minister has suggested can be agreed cannot legally be agreed by the EU because we are not part of the ecosystem.
My Lords, I hope noble Lords will forgive me; I talked about the political agreement as it stands. I am talking about this at a certain point in time—with cognisance of what is happening in another place—so I am talking about the Government’s hopes and aspirations. We have conducted the debate so far in an utterly civilised manner, which is refreshing, so I hope that the noble Lord will accept this in that context.
I am sorry to interrupt the Minister, but she needs to follow up on the “ad hoc” bit. In her answer to the point from the noble Lord, Lord Ricketts, I originally understood her to say that the Government were looking at an ad-hoc arrangement on the European arrest warrant, yet she now seems to be saying something different. Maybe she needs to take this away and come back on it. This is very important because the European arrest warrant is not something we can do quickly.
If the noble Lord will indulge me, I will talk about the European arrest warrant when I answer points raised by noble Lords. Perhaps that will clarify it; if it does not, I will come back to noble Lords in writing.
The noble Lords, Lord Jay and Lord West, and my noble friend Lord Kirkhope all talked about data. I made the point earlier about the huge data flows that come from the UK across to the EU. I absolutely accept the point and share their view on the importance of continued data sharing following our withdrawal from the EU. The EU, with the UK and its member states, has established unrivalled mechanisms for the exchange of law enforcement data on a daily basis, as the noble Lord, Lord West, pointed out. Our operational partners have made clear to this and other Select Committees how crucial this data is in our efforts to fight cross-border crime and prevent terrorism.
On the UK securing an agreement on data protection with the EU, we start from a position of trust in each other’s standards and regulatory alignment on data protection. The Data Protection Act 2018—which the noble Lord, Lord Kennedy, and I were involved in—and the adoption of the general data protection regulation strengthened UK data protection standards. I can quite safely say that we often surpass what is required of EU states. We were also one of the first countries to successfully implement the law enforcement directive. This provides a unique starting point for an extensive agreement on the exchange of personal data that builds on the existing adequacy framework. We believe that the EU’s adequacy framework provides the right starting point for the arrangements that the UK and the EU should agree on data protection, and the political declaration notes that the adequacy decision will form the basis of future data transfers between the UK and the EU. It also outlines that the Commission is committed to starting this assessment as soon as possible after exit day, with the intention to have a decision in place by the end of 2020; that commitment is relevant to the committee’s concerns about the sequencing of negotiations on data and security.
The committee and the noble Lord, Lord Jay, also reiterated the concern about the cliff edge and there being no mechanism in the draft withdrawal agreement for extending the implementation period. Both the UK and the EU agree that the implementation period has to be time limited, and the legal text sets an end date of 31 December 2020. However, the withdrawal agreement now also includes the possibility to extend the implementation period by mutual agreement of the parties. The committee highlighted the possibility of a security cliff edge, whether at the end of March or at the end of the implementation period. As the House would expect, the continued safety and security of both UK and EU citizens remains our top priority. This is why we are preparing for all eventualities, including the no-deal scenario that we are all seeking to avoid.
As part of our planning for such a scenario, we are preparing to move co-operation to alternative, non-EU mechanisms which we already use for co-operating with many non-EU countries. Broadly speaking, this would mean more use of Interpol, Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. They are tried and tested avenues, so we are in a slightly different position in this area compared to those areas in which we are having to put in place new and unprecedented arrangements. We are none the less clear that these contingency arrangements will not be like-for-like replacements of the EU tools and would result in a reduction of mutual capability.
Will the noble Lord indulge me, as I am really running out of time? I have not said half of what I wanted to say. If the House will allow me to have a few additional minutes, I will write to noble Lords on any outstanding points.
The Government’s White Paper outlined that our future security relationship should be underpinned by appropriate safeguards, including respect for human rights—which the noble Lords, Lord Anderson and Lord Kennedy, and the noble Baroness, Lady Ludford, spoke about—comprehensive data protection arrangements and robust, appropriate governance arrangements. The UK is committed to membership of the European Convention on Human Rights and we believe that an agreement should include a mutual commitment to individuals’ rights. We are clear that we will remain party to the ECHR after leaving the EU. In line with this, the text of the political declaration recognises that appropriate reciprocal safeguards must be put in place to ensure that individual rights are protected and disputes can be effectively resolved. It is also clear that our future relationship must include an appropriate balance of rights and obligations; safeguards must be appropriate to the level of co-operation taking place.
I will now turn to some specific points raised; I will go over time. The noble Lord, Lord Jay, the noble Baroness, Lady Ludford, and others talked about there being no reference to SIS II or ECRIS in the political declaration. The noble Lord, Lord Bach, who talked about policing, raised concerns that the UK would be less safe without them. Under the terms of the withdrawal agreement, we will continue to use EU tools and data platforms, including SIS II and ECRIS, for the duration of the transition period. The political declaration text reflects that the UK and the EU have agreed to continue to exchange information on wanted or missing persons and objects and on criminal records, and that our future relationship should include capabilities which allow for that.
A number of noble Lords voiced their concerns about the European arrest warrant, and whether we will still be able to use it. Basically, the UK and the EU have agreed to establish arrangements enabling the UK and member states to surrender suspected and convicted persons efficiently and expeditiously. The political declaration also provides the basis for agreeing surrender arrangements, including streamlined procedures and time limits maximising the effectiveness of such arrangements. Both the UK and the EU recognise the importance of continued, close and effective operational co-operation on extradition. The legal vehicle through which co-operation in this and other areas will be delivered will be for the next phase of negotiations. I hope that answers the noble Baroness, Lady Massey, and the noble Lords, Lord Anderson, Lord Kennedy and Lord Jay.
The noble Lords, Lord Jay and Lord Kennedy, talked about security co-operation in Ireland and Northern Ireland and its historical importance. I totally agree with them on the importance of that. The comprehensive security partnership we are seeking with the EU will include the Republic of Ireland, ensuring that this important co-operation can continue.
The noble Lord, Lord Jay, and the noble Baroness, Lady Smith of Newnham, talked about the role of the CJEU after exit. The UK has said that, while it will be outside the direct jurisdiction of the CJEU, it is prepared to make commitments with respect to the CJEU as set out in the White Paper. This is reflected in the political declaration, in which we have made it clear that the closer and deeper the partnership, the stronger the accompanying obligations.
The noble Lords, Lord Ricketts, Lord Soley, Lord Browne of Ladyton and Lord Bach, and the noble Baroness, Lady Smith of Newnham, talked about contingency planning. We are working intensively with operational partners to ensure we are ready and well placed to make best use of the alternative channels with EU member states. We are not complacent and will continue to work closely with them as we put those plans into action.
I am sorry to go back to the European arrest warrant, but the noble Lord, Lord Jay, asked about live cases. The requests we have made will be a matter for EU member states. The Home Office and our operational partners are engaging with our counterparts in EU member states to find out how they intend to handle live cases at the point we leave. Our overall objective in this area, shared by our counterparts in Europe, is to minimise disruption to operational work. The legislation is quite clear on incoming requests. Under the Extradition Act, if we make an arrest on an EAW the court proceedings have to continue under that part of the Extradition Act. In these cases as well, our overall aim will be to ensure that cases are handled without disruption.
I have run out of time. There are a number of questions that I have yet to address. This has been an excellent debate. I hope the other place has listened to the civilised way we have conducted ourselves. I will write to noble Lords fully on the questions I have not yet answered. I thank noble Lords for taking part in the debate.
I too thank noble Lords who have taken part in the debate. It has been a serious one on a serious subject. I am struck by the widespread view that the security aspects of Brexit, which really do matter to our citizens, have been underplayed, have not been given enough attention and need more attention, including from debates in this House, as the Minister said. Finally, I thank her for her calm, thoughtful, helpful and full reply.