Borderline insecurity - Brexit and the future of European security cooperation
Dods Monitoring Political Consultant Sabine Tyldesley examines the impact of Brexit on the UK’s future role in European security and law enforcement cooperation.
Since last year’s referendum several select committees have been examining the effect of Brexit and calls for “safety first” have become louder.
In the Lords the EU Committee concluded that the “safety of the people of the UK should be the overriding consideration” during negotiations – and the chair of the EU Home Affairs Sub-Committee Baroness Prashar warned against “complacency” as a positive outcome was not inevitable despite a strong mutual interest.
Likewise – following suggestions the PM might use security cooperation as a “bargaining chip” to force an advantageous trade deal – the Commons Justice Select Committee also stressed this aspect of negotiations was “too precious to be left vulnerable to tactical bargaining”. The PM’s veiled threats were made more stark by comments from the Home Secretary Amber Rudd when she stated: “We are the largest contributor to Europol. If we left, we’d take our information with us.”
Dods Research asked MPs in August 2016 and again in March 2017 whether they felt leaving the EU would make the UK stronger, or more vulnerable. Conservative MPs have become less certain during this time frame with regards to the threat from terrorists and cross border crime – but were more confident about the impact on border controls with over 50% of Conservatives believing the UK will be much stronger.
Last year 41% of Labour MPs responded that Brexit would make the UK ‘much weaker’. By March – although 26% still opted for the ‘much weaker’ category – Labour MPs appeared to be cautiously less pessimistic with the majority (36.6%) now opting for ‘neither stronger nor weaker’ (up from 19% in August).
Various witnesses giving evidence to the parliamentary inquiries over the last six months – including the director of Europol, Rob Wainwright, and the EU Commissioner for Security Union at the European Commission, Sir Julian King – were not nearly as sanguine.
The overarching consensus was that established agencies and coordination tools – data sharing facilities in particular – are vital to security and their work. Additionally, none of the currently known options for the UK outside of the EU match their effectiveness – and negotiations will be complex in the absence of any precedent for the kind of relationship and agreement the UK seeks – and cooperation would have to continue for the sake of citizens’ security and justice.
The government made clear it would “not seek to adopt a model currently enjoyed by another country” looking for a bespoke deal, but what are the current considerations?
Some elements of cooperation fall within the EU framework via agencies, which the UK would automatically exit when leaving the EU. Others are established multi- or bilaterally, including information sharing and cooperation via intelligence services.
At the heart of the former category lies Europol, the European Union’s law enforcement agency and its communication network SIENA (Secure Information Exchange Network Application) which allows the swift exchange of information between Europol and member state authorities.
Since 2000, the UK government has enhanced cooperation in justice and home affairs, and in November announced its intention to opt in to new Europol regulations to remain a full member of Europol throughout the Brexit process. To continue to participate in Europol thereafter, multiple scenarios are possible.
One such scenario is the Denmark model: from 1 May Denmark will no longer be a full member of Europol but take on a hybrid position, between a full member and a third party. A new agreement will grant Denmark observer status on the management board, allow liaison officers but will not allow direct access to SIENA. Further Denmark is a full member of Schengen, and currently there are no precedents for third countries outside of non-EU Schengen countries locking into information-sharing platforms.
Third-party access is an option, currently exercised by the United States among others, which allows some access to SIENA but does not grant the same decision making powers within Europol. Further any operational agreement would require the UK to comply with data protection adequacy requirements.
Data protection standards are set by the General Data Protection Regulations (GDPR) due to be transposed in 2018, with a specific directive for police and judicial authorities. Data protection is a contentious point since the European Court of Justice (ECJ) ruling last December that “general and indiscriminate retention” of emails and electronic communications was illegal, throwing into question whether the Investigatory Powers Act and other legislation will need amending – or hinder access to Europol.
Additionally, there is the Norwegian-Icelandic model: Norway has liaison officers at Europol and access to SISii, the Schengen Information System (second generation) but in return accepts ECJ jurisdiction, submits to data security standards and accepts an extensive body of rules as part of a Schengen Association Agreement. There are further limitations on any automatic application of extradition agreements, such as the European Arrest Warrant (EAW).
And with a 25% increase in the rate of EAW extraditions from the UK in the past year, the Lords EU Home Affairs Sub-Committee launched an inquiry into European Arrest Warrant in March.
There is uncertainty whether the UK would be willing to submit to continued jurisdiction of the European Court of Justice but currently extradition agreements require the acceptance of the ECJ as final arbiter in the event of a dispute. Two former presidents of Eurojust agreed alternative arrangements would be lengthy and difficult to negotiate and any fall back on the 1957 Council of Europe Convention on extradition was inferior on several counts.
This mood of uncertainty as to whether access to the EAW would make the UK stronger or more vulnerable seems to be reflected by some in the Conservative party. While the majority of Tory MPs who believe there will be ‘no change’ after Brexit has remained fairly constant (polling 61% in August, rising slightly to 66.6% by March) those who were most confident in August – declaring that the UK would actually be ‘much stronger’ (18%) – were less assured by March with their number falling to 6%. Both Labour and SNP members however agree that the UK will be significantly weakened with the loss of this tool.
As to tools outside of Europol, the National Crime Agency, National Police Chiefs Council and the Metropolitan Police Service have made clear that, for counter-terrorism and cybercrime activities, access to other intelligence sharing platforms would constitute the greatest loss – especially the use of passenger name records and financial intelligence.
They further highlighted the sheer volume of information accessed via SISii. This pan-European database – which allows the real-time sharing of information and alerts between relevant authorities – has seen the UK upload 430,000 alerts since April 2015 and send 37,000 messages to Europol member states on SIENA in 2016 – relating primarily to UK high-priority threats like child sexual exploitation, firearms, cybercrime and organised immigration crime.
Additionally, ECRIS (European Criminal Records Information System) processed 173,000 requests last year and the Prüm framework (outlining rules for operational police cooperation) enabled biometric data sharing, DNA, fingerprints and vehicle registration data at speed and at significant volumes.
Both SISii and ECRIS are currently used by Schengen or EU members only, so the UK would need to negotiate special access agreements.
The overall EU trajectory is to further increase the capacity of Europol, joining up systems and rooting out fragmentation – making the position of being a third-party country less and less favourable.
Tricky negotiations lie ahead not just with the EU on Europol but also bilaterally with 27 individual member states on access to the other tools.
If the government puts safety first, negotiators better buckle up.
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