Brexit: the proposed UK-EU security treaty

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. 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. As the EU Commissioner for Security Union, Sir Julian King, told us, security cooperation should be unconditional. But time is short, and neither side has yet approached the negotiations in this spirit. The UK Government’s ‘red lines’, and the EU’s response, appear to have narrowed the scope for agreement. Both sides now need to focus on finding common ground and making pragmatic compromises. Operational continuity is vital, and we welcome the agreement of both the UK Government and the EU that UK participation in EU justice and home affairs measures should continue during the transition period, from March 2019 to December 2020. We note, however, that the terms of the transition agreement would disbar the UK from retaining a governance role in EU agencies, reducing its influence on policy and decision-making. We note also that Article 168 of the Withdrawal Agreement would authorise EU27 States to refuse to extradite their nationals to the UK during the transition period, in accordance with domestic constitutional requirements. The practical impact of this change is unclear, and we shall look further at it in coming months. In the meantime, we recommend that the Government publish a contingency plan, to include the effect of any disruption on UK extradition arrangements. We support the Government’s aim to secure a future relationship with Europol that retains as far as possible the operational status quo, on both sides. But we are concerned by the Government’s transactional approach to negotiations on this issue: the fact that the UK is a major contributor of data to Europol should not lead the Government to underestimate the impact of Brexit upon the UK’s role and influence in Europol, as in other EU institutions. The closer the integration that the UK seeks with Europol, the more compromises the Government will have to make. Any agreement will have to take account of the accountability of Europol to the Court of Justice of the EU, and is likely to require continuing alignment with EU data protection legislation, as well as budgetary contributions. The Government has been clear that it wishes to retain all the benefits of the
European Arrest Warrant. But this is unlikely to be achievable: even the EU’s agreement with Norway and Iceland (which has yet to be brought into force) allows an ‘own-national exemption’. It also provides an indirect but influential role for the CJEU. Compromises will be needed—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. We support the Government in prioritising three areas for future UK-EU security cooperation: extradition; access to law enforcement databases; and
partnerships with EU agencies such as Europol. The Government seeks to realise these objectives by negotiating a single, comprehensive treaty.