BCL partner Michael Drury and senior associate Caroline Mair’s article ‘The UK’s policing and law enforcement capabilities in Europe after Brexit’ has been published by Open Access Government, discussing a recent Parliamentary report, which analysed where the UK stands regarding the data & tools it now has at its disposal to the police across Europe after Brexit.

Here’s an extract from the article:

“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?

The TCA

(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.”

This article was published by Open Access Government on 15/07/2021. You can read the full version on their site.