BCL partner Michael Drury and senior associate Caroline Mair analyse the recent Parliamentary report, “Beyond Brexit: policing, law enforcement and security”, by the ‘EU Security and Justice Sub-Committee’.
At the ending of the Brexit “transition period” on 31 December 2020, the UK became a “third country” under EU law. Quite what effect this demotion in status would have on the UK’s ability to investigate and police criminality across European borders has been the subject of considerable debate – including to what extent the UK would still be able to benefit from critical data sharing with its European counterparts. A recent Parliamentary report by the ‘EU Security and Justice Sub-Committee’ (the Committee) (“Beyond Brexit: policing, law enforcement and security”) has cut through much of the uncertainty after hearing evidence from key figures in the law enforcement and criminal justice community. It makes a clear, balanced and succinct assessment of where the UK now stands in terms of its policing and law enforcement capabilities across Europe. This is a welcome analysis and it highlights, amongst other issues, the extent to which the UK’s pedigree as a key player in historically driving law enforcement initiatives and its continued investigative expertise is helping to preserve its status above that of other third countries. But to what extent has this operational downgrade harmed its law enforcement and investigatory capabilities, and what now governs this new UK/EU relationship?
(As every schoolchild will doubtless learn in the future), on 24 December 2020, the UK and EU agreed the Trade and Cooperation Agreement (TCA) (of which Part 3 creates a new framework in relation to law enforcement and judicial cooperation). Crucially, this part of the TCA can be terminated on either party giving 9 months’ notice. Termination may follow a finding that the other party has “serious systemic” deficiencies, including the protection of personal data.
Automated exchange of “Prüm” data
The automated exchange of DNA, fingerprints, and vehicle registration data (known as Prüm data) has continued largely unchanged after the UK’s departure from the EU. “Reciprocal cooperation” between the UK’s and the Member States’ respective law enforcement authorities remains in place. Similarly, the transfer and processing of passenger name record data (PNR) in relation to flights going between the UK and the EU remains. This is not an insignificant win for the UK as such data is considered to be of critical importance to law enforcement, with one witness telling the Committee that it was considered almost as important as the live data previously shared through the Schengen Information System II (SIS II), the loss of which is discussed below. The Committee concluding, surely correctly, that despite the UK now holding third country status, the arrangements in respect of this data are more favourable than for other third countries. However, this arrangement is subject to an EU evaluation of UK data handling later this year. The Committee has been careful to point out that now the UK is a third country it will be held to higher standards by the EU in respect of data protection. An unfavourable assessment of the UK’s data handling procedures may mean that any data sharing arrangement would be suspended. And the UK has not always been regarded as an exemplar of behaviour in this regard when it was a member of the 28, and even with the latitude then afforded to it. Further, this arrangement is in its very early stages, and many of the requirements are subject to complex exemptions, which have yet to be tested, such as the requirement for the UK to delete PNR data the moment the subject leaves its jurisdiction.
But it is the UK’s capacity to obtain live information about potential criminal targets and missing persons which is absolutely crucial to its law enforcement and investigatory capabilities. In what can reasonably be described as a the most significant gap to the UK’s current capabilities in that respect, it now no longer has access to the SIS II system. That system allowed the UK access to real-time updates in relation to missing and wanted persons. The Committee heard that it is the “most widely used and largest information sharing system for security and border management in Europe”, with it providing “a mechanism for EU Member States to share and act on real-time data on persons and objects of interest including wanted and missing persons”. The Committee heard about the vital role that the SIS II system has played in supporting the operations of UK law enforcement agencies: in 2019, for example, UK police checked SIS II an extraordinary 603 million times, which clearly shows how UK law enforcement had come to rely on this essential resource, it becoming the “go-to system for those on the front line”, and what a blow would have been felt when that resource was taken away.
In the SIS II’s place is now the Interpol I-24/7 database. This database has been criticised as inferior to SIS II in that it does not provide the same information at the same speed. Critically, for the Interpol I-24/7 to be of any value to the UK, it is reliant on information being added by the sharing country (by deciding to take out an Interpol notice) after they have already inputted the same information into the SIS II system. The Committee concluded that none of the evidence that they had heard explained how the inputting country could be persuaded to take the time to input the same information twice, purely for the benefit of the UK. (That judgement has to be seen in the context however that law enforcement co-operation is ultimately driven by nation state self-interest: if an EU nation thinks its efforts require the sharing of information that will happen, perhaps affected more at the margin by the ‘pfaff’ factor). However, the Committee did recognise that the since this two-pronged system has been in place (over a matter of months), there has been a spike in Interpol notices (and the Committee was told that the UK has suffered “no big loss in our access to alerts data”), which would suggest the those operating within the system recognise the value of sharing such critical information which is potentially of benefit to all.
The Committee also heard evidence about the I-24/7 system. The UK’s International Crime Bureau (which operates within the National Crime Agency) has a “process to put them [I-24/7 and Interpol notices] on the Police National Computer in a very short time. We are talking a number of hours not days”. This would suggest that despite being ejected from the revered SIS II system, critical data is still being shared with the UK, if not in real-time, somewhere not too far from it. The shortfalls of the new system however must be seen as significant as the UK is seeking to develop the Interpol I-24/7 system to make it faster and more efficient. There can be no escaping the fact that the loss of SIS II system is a major blow to the UK’s law enforcement capabilities, and the goal is to make any new data sharing system as close to the SIS II’s capabilities as possible.
Eurojust and Europol
Despite the inability to seek evidence through European Investigation Orders located in EU member states for UK investigations, the UK’s investigative abilities arguably have not been drastically diminished when it comes to the EU. Many of the processes that the UK enjoyed before Brexit have been upheld – such as cooperation through Eurojust (the development of which, in addition to Europol and the European Arrest Warrant system, the UK led). In respect of its cooperation with Eurojust, the UK is to appoint at least one contact point and designate one of them as “Domestic Correspondent for Terrorism Matters”. The UK will also second a “Liaison Prosecutor” to Eurojust in The Hague, who may be assisted by up to five individuals. Much of that new configuration of contact between the UK and the EU has yet to be finalised, however it is clear that the UK is not to be ousted as a remote third country, but will remain, at least to some extent, a valued partner receiving favoured treatment in terms of numbers, and, so it is reported, influence on policy and in the investigation of joint investigation teams.
In effect “cooperative relations” between the UK’s domestic law enforcement authorities and Europol has also been maintained under the TCA, unsurprisingly justified in the TCA as being necessary to “prevent and combat serious crime, terrorism and forms of crime which affect a common interest covered by a Union policy.” As with Eurojust, the UK will designate a “national contact point” and will place liaison officers in The Hague, and Europol may do likewise to the UK. Significantly, the TCA requires the UK to ensure that these liaison officers enjoy “direct access” to relevant domestic databases. The TCA even states that the UK “may” provide “specialist knowledge”, “results of strategic analysis”, take part in “operational cooperation”, and even participate in “training activities” and provide “information on crime prevention methods”. This arrangement clearly shows how valuable the UK’s contribution vis a vis law enforcement and operational intelligence remains in Europe. However, whilst the UK will continue to share data, knowledge and expertise with the EU as part of its continued partnership with Eurojust and Europol, the UK will no longer be able to steer formally the management or strategy of either agency. As above, the benefits of the UK’s expertise in a world still dominated by law enforcement professionals may still carry weight that tends to much mitigate the effects of the legal and political rift.
Extradition arrangements between the UK and (most) EU Member States are to be based on the issuing of an arrest warrant, which broadly replicate arrangements under the European Arrest Warrant (EAW) system. (Significantly, twelve EU countries (including France and Germany) will ‘opt in’ to the nationality exception in Title VII Part 3 TCA and will not therefore extradite their own nationals (Austria and the Czech Republic will only extradite their own nationals to the UK with their consent). The extradition process is governed by the “principle of proportionality”. Requests for assistance must be “necessary and proportionate”, taking into account the rights of the named person, ensuring that people are not extradited for trivial offences. The new system allows for direct transmission with limited grounds for refusal and a time limited process. This new system is to be overseen by the ‘Specialised Committee on Law Enforcement and Judicial Cooperation’, made up of representatives of each party, which it seems to have taken the bulk of the first five months of the TCA to put in place (another practical hindrance to co-operation in fact).
In theory, the new extradition process appears to open the door to increased court scrutiny of extradition requests and the Committee has heard that the loss of SIS II data is likely to slow down the extradition process (but that is most likely of all to cause a dramatic fall in the numbers arrested for extradition, which current figures seem to prove almost beyond question). However, the Committee heard that “every effort” had to been made to de-politicise the process by keeping the “judicial character of extradition”: The Committee assessed this to be an ‘ambitious” and ‘unprecedented” arrangement between the EU and a third country – seeking to provide some level of continuity with the old EAW process (such as the use of a similar pro-forma to the old EAW process). This arrangement again points to the elevated position the UK continues to enjoy despite its official change in status.
Whilst the Committee’s clear analysis is required reading for those who declare an interest in this area, it is important to note that the operation of the TCA is in its very early stages, and so it will remain to be seen as to how the UK and the EU navigate this new relationship. The Committee highlighted the crucial importance of all parties cooperating in the “spirit of goodwill”. The UK is now semi-detached from the EU: whilst it no longer has full access to the same law enforcement data and criminal justice processes as it did as a Member state, new arrangements put in place to govern that relationship and reports clearly point to the fact that the UK is still highly valued, notwithstanding the loss of access to SIS II, and the dramatic fall in incoming extradition requests to the UK from the EU 27 and the legal barrier to the extradition to the UK of well over 200 million EU citizens. The UK remains influential in European law enforcement and intelligence capabilities (as reflected in its continued participation in Eurojust and Europol systems) and its historical role in developing law enforcement initiatives and its continued status as world leader in intelligence led policing will surely help to preserve that.