Pre-Brexit situation
As a member of the EU, UK security, through the UK’s counter-terrorism and crime operations, benefited from extensive formal and informal networks of intelligence and data sharing, including, at the EU level:
- Europol, the EU’s law enforcement agency, employing over 900 people, is invaluable both for intelligence sharing and at the operational level;
- Schengen Information System (SIS), which the UK is part of despite not being in the Schengen travel area. Thousands of EU27 SIS-issued and UK-issued alerts are accessed by law enforcement and border agencies each year. (As the UK is outside Schengen, it already checks the security risk of all arrivals into the country, whether from the EU or not.);
- Passenger Name Record data (obliges airlines to hand over passenger records to EU Member States to prevent terrorism and serious crime, including trafficking in drugs, people or weapons, cybercrime, and sexual exploitation of children).
- European Criminal Records Information System (ECRIS);
- European Arrest Warrant (make extradition of criminal suspects simpler);
- Eurojust which was set-up to promote judicial cooperation in criminal matters;
- Frontex – the EU Border Agency and Coast Guard; and
- Prum Convention a treaty signed in 2005 between Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria on cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration. The UK adopted some provisions which became part of EU law.
Other security arrangements included:
- Le Touquet – trilateral agreement between the UK, Belgium and France, whereby the UK has its border checks in Calais for ferries (Paris and Brussels for Eurostar) while France has its in Dover and at St Pancras station.
- UK-Irish border – visitors from outside the EU can visit both countries on a single visa. The virtual disappearance of the physical border contributes to continued peace in the north of Ireland.
UK aspirations
In September 2017, the UK government published a future partnership paper on security, law enforcement and criminal justice which described at length the strengths and capabilities of the EU28’s current arrangements and the UK’s significant contribution to them. Moving on to Brexit, it noted that current third country arrangements would be sub-optimal for the UK and the EU27. The paper made no firm proposals for the future arrangements between the UK and the EU.
Theresa May reinforced the UK’s position in a speech to a Security Conference in Munich on 17 February 2018 where she urged the EU to accelerate a new EU-UK security partnership in 2018. Mrs May offered to carve out a special exemption on the remit of the ECJ to oversee Britain’s continued involvement in pan-European crime fighting agencies such as Europol and Eurojust, as well as the European Arrest Warrant.
Post-Brexit situation
The EU-UK Trade and Cooperation Agreement covers security cooperation. There are supplementary joint declarations relating to Passenger Name Record, surrender, the exchange of criminal record information and cooperation between law enforcement authorities. Both sides’ commitments to human rights underpin the agreement, including the European Convention on Human Rights, including a high level of protection for personal data.
The UK and the EU will continue to share DNA and fingerprint data through Prüm, and to transfer Passenger Name Record (PNR) data. However, the UK has lost access to EU databases. Notably, the UK has lost access to SIS II which allows for real-time sharing of data on wanted or missing persons or objects. The UK police forces consulted the database 600 million times in 2019.
The EU and UK will be able to share information relevant to operations, including on wanted or missing persons and criminal record information. This will be in response to requests from the UK or EU member states and can be shared proactively.
There will be a new surrender agreement to replace of the European Arrest Warrant. There are clear provisions relating to:
- how, and under what circumstances, the surrender must take place;
- what grounds a request may be refused.
The agreement also includes:
- provisions to ensure mutual legal assistance, which includes a time limit for responding to any requests;
- obligations on both sides to combat money laundering and terrorist financing including sharing relevant information, or confiscating assets, when requested.
The agreement provides a framework for co-operation with Europol and Eurojust, including data-sharing. There will be supplementary agreements directly between the UK and each agency. The proposed relationship with Europol and Eurojust is similar to the EU’s surrender agreement with Norway and Iceland (although that agreement took ten years to negotiate). The UK will be able to:
- second liaison officers to Europol (and vice versa) who will be able to attend operational meetings;
- take part in operational analysis projects as well as attend the Europol Heads of Unit meetings as an observer;
- second a liaison prosecutor to Eurojust and Eurojust who will be able to post a liaison magistrate to the UK:
- the liaison prosecutor will be able to attend strategic and operational meetings if invited.