Brexit: future UK-EU security and police cooperation

Maintaining the strong security cooperation the UK currently has with the EU will be one of the Government’s top four overarching objectives in the forthcoming negotiations on the UK’s exit from, and future relationship with, the European Union. Only two years ago, many of the EU measures the UK is now due to leave were deemed vital by the then Home Secretary in order to “stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”. In this report, we examine the main tools and institutions that currently underpin police and security cooperation between the United Kingdom and the European Union and explore the options available to the Government for retaining or replacing them when the UK leaves the EU. We conclude that there is considerable consensus among UK law enforcement agencies on the EU tools and capabilities they would like to see retained or adequately replaced. Europol, Eurojust, the Second Generation Schengen Information System, the European Arrest Warrant, the European Criminal Records Information System, the Prüm Decisions and Passenger Name Records were consistently listed as top priorities by witnesses. Our analysis suggests that in some cases there are precedents for securing access to these tools or to credible substitutes from outside the EU. There are precedents for third-country agreements with Eurojust that could meet some of the UK’s needs. We nonetheless accept the Government’s view that the precedents set by other third countries in negotiating with the EU may fail to capture the full range of options that could be available to the UK, because of the UK’s pre-existing relationship with the EU-27 and the data and expertise it can offer. The UK and the EU-27 share a strong mutual interest in ensuring that there is no diminution in the level of safety and security afforded to their citizens after the UK leaves the EU. We caution, however, against assuming that because there is a shared interest in a positive outcome, negotiations will unfold smoothly. Even with the utmost good will on both sides, it seems inevitable that there will be practical limits to how closely the UK and the EU-27 can work together on police and security matters if they are no longer accountable to, and subject to oversight and adjudication by, the same supranational institutions, notably the Court of Justice of the European Union. There is, therefore, a risk that any new arrangements that the Government and the EU-27 put in place by way of replacement when the UK leaves the EU will be sub-optimal relative to present arrangements, possibly leaving the people of the UK — and their European neighbours — less safe. The UK has a long and deep track record of shaping the development of EU agencies, policies and practice in this area. Major components of the landscape, from Europol to the Passenger Name Record Directive, reflect the UK’s influence. In leaving the EU the UK will lose the platform from which it has been able to exert this sort of influence, with an attendant risk to the UK’s ability to protect its security interests in future. Therefore, as well as seeking to retain or replace specific tools, the Government will also need to examine what structures and channels it should remain part of or find substitutes for in order to influence the EU security agenda, which will inevitably have implications for the UK’s own security, in future.