My Lords, Amendment 33 is in my name and that of my noble friend Lady Ludford.
At Second Reading, I alluded to the amendment as a means of mandating the Government to deliver on their promise that the UK would be as safe and secure outside the EU as it has been within the EU by specifying what the Government should seek in a comprehensive security partnership with the EU.
Various EU measures and mechanisms that are currently available to us as an EU member state are valuable to UK law enforcement. At a briefing given to the APPG on policing in 2017, the National Crime Agency lead on Brexit outlined what these were, what the alternatives might be and the impact on the UK’s safety and security were they no longer available. They were the Schengen Information System II, sharing information about terrorist suspects, those wanted under the European arrest warrant, stolen vehicles and similar information; the European arrest warrant, allowing rapid extradition without political involvement; Europol, pan-European strategy development to counter serious and organised crime; ECRIS, sharing information about criminal convictions handed down by any court in the EU; Prüm, rapid electronic comparison of DNA, fingerprints and vehicle registrations held on the databases of each EU state; cross-border surveillance, allowing surveillance of UK suspects in the EU and vice versa; and joint investigation teams under Eurojust, prosecuting pan-European crime.
He concluded that there were “workarounds”, but that these would be less efficient and effective than the existing EU mechanisms. For example, if Interpol were used instead of Prüm to try to match DNA found at a UK crime scene with DNA profiles of criminals held on EU member states’ databases, it would take months—and in some cases no response would be received at all—compared with seconds up to 24 hours using Prüm. He anticipated that extradition agreements would need to be negotiated separately with each of the remaining 27 EU states and that these would require political involvement, as opposed to the European arrest warrant where the decision is made by a judge. He concluded that the UK would be less safe and less secure if, rather than relying on existing EU mechanisms, it had to work on the basis of non-EU workarounds.
It was therefore reasonable to conclude that if these EU mechanisms were no longer available to the UK when we left the EU, alternative mechanisms would need to be put in place that delivered the same outcomes as efficiently and effectively as the existing EU mechanisms. Otherwise, the Government would have failed to deliver
on their promise that the UK would be as safe and secure outside the EU as it had been inside. The amendment would require a Minister of the Crown to update Parliament on progress in achieving these outcomes within four months, and regularly thereafter.
Why do we consider this so important? First, as Andrew Marr put it on Sunday to the Security Minister, the right honourable Brandon Lewis MP, the European arrest warrant and Europol, for example, rely on the European Court of Justice to resolve disputes between participants, and it is a red line for the Government that the ECJ should play no part in UK affairs after Brexit. The Security Minister replied that Europol has United States of America involvement, and clearly the US is not a member of the EU. What he was actually referring to was an agreement between Europol and the United States to share information within strict limitations—an agreement that can be terminated by either side at three months’ notice—not active involvement as an equal partner in Europol, deciding on the nature and scope of Europol’s activities, and nothing to do with the ECJ. Neither the USA nor any other third-party country has a say in Europol’s operations.
The Security Minister did not comment on the European arrest warrant, which more clearly and obviously requires the ECJ to adjudicate between participating states where a warrant is issued but another state refuses to extradite. The Security Minister did not comment on the EAW, probably because he knows that we are very unlikely to continue to be part of the European arrest warrant after Brexit. For example, Germany changed its constitution to allow the extradition of its own nationals under the European arrest warrant, but limited extradition to other EU member states. As I mentioned at Second Reading, Iceland and Norway applied to participate in a limited variation of the European arrest warrant in 2001, but that has yet to take effect, and they are both within the European Economic Area and the Schengen area.
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The EU is already asking questions about the misuse of SIS II data by the UK, as my noble friend Lady Ludford just mentioned, with a group of MEPs in the European Parliament’s civil liberties committee demanding that the EU should deny the UK access to SIS II data, even as a member state. A leaked report details 29 pages of violations of the use of SIS II by the UK since 2015.
The EU is also concerned that private American companies, contracted by the UK Government, that hold data copied from SIS II, could be compelled by US legislation to hand over the data to the United States. Noble Lords may recall similar concerns about parliamentary systems run by Microsoft. In response, the European Commission says that the UK will keep access to the database during the transition phase of Brexit, but it has made no commitment beyond that.
The Government’s negotiating position may be, as a Minister said this afternoon in answer to a Private Notice Question, that the UK is a major contributor to these EU mechanisms—for example, the European criminal records information system, where 30,000 notifications had been contributed by
the UK, but the UK had received only 16,000 notifications from the EU. However, in addition to the misuse of SIS II data, the PNQ was about the fact that not only had the UK failed to inform the EU of more than 75,000 criminal convictions of EU nationals in the UK going back as far as 2012, but that it had known about the problem since 2015 and had concealed the failure from other EU states.
Whether it is child abuse by the clergy or misconduct by police officers, when attempts are made to cover it up, it compounds the original failure when that eventually and inevitably comes to light. It is one thing for the EU to overlook the mistakes of a member state to keep it onside; it is quite another to persuade the EU 27 to trust a third-party country with its data when that third-party country not only flouted the rules but tried to conceal its mistakes when it was a member state.
We will be less safe and less secure unless any alternatives to existing EU mechanisms in the area of law enforcement are as efficient and as effective as those mechanisms. It is vital that Parliament is kept abreast of developments in this vitally important area of the negotiations. I beg to move.