Cross-border co-operation on policing, security and criminal justice after Brexit

We welcome the fact that the UK and EU have agreed a new security partnership as part of the agreement of the Trade and Co-operation Agreement. At the time of the inquiry hearings, Brexit had had no discernible operational impact on cross-border policing and the ability to co-operate with partners in the EU has been maintained. Before the announcement of the agreement, we had heard concerns that a failure to secure a deal on security could have led to a reliance on cumbersome extradition and intelligence sharing processes. The agreement mitigates these concerns and, importantly, provides a foundation for the continuation of UK and Irish law enforcement agencies’ well developed means of co-operating to maintain the security of the Common Travel Area.

Patterns of behaviour by smugglers and organised crime gangs on the island of Ireland have not changed significantly following the end of the transition period, but there is no room for complacency. We therefore welcome law enforcement and crime agencies’ assurance that the high level of cross-border operational capability has been retained through replacement co-operation mechanisms agreed in the Trade and Co-operation Agreement.

Cross-border arrangements providing for effective security co-operation across the Common Travel Area are to the mutual benefit of all on these islands. The importance of bodies and fora such as the Joint Agency Task Force, the Annual Cross-Border Conference on Organised Crime, the Common Travel Area Forum and where appropriate the British-Irish Intergovernmental Conference cannot be overestimated in their use in supporting and developing co-operation between law enforcement on both sides of the border countering cross-border criminality and for security co-operation (and other issues) between the UK and Ireland more widely. The Government and the Irish Government must agree to convene the British- Irish Intergovernmental Conference (either virtually or physically) as soon as possible, and no later than the end of June 2021, to discuss security co-operation, as part of wider ongoing efforts to minimise the opportunities for organised crime gangs to exploit the Common Travel Area. The Government and the Irish Government should build on established practice for supporting cross-border co-operation to minimise the opportunities for organised crime gangs. Steps must be intelligence-led and have a clear operational purpose. The Government should also work proactively with the Executive to ensure that the PSNI and the National Crime Agency are fully equipped to identify and address specific organised crime threats.

The Specialised Committee on Law Enforcement and Criminal Justice Co-operation will have a crucial role in developing and monitoring the law enforcement, security and criminal justice arrangements in the Trade and Co-operation Agreement. This important work would benefit from the formal input of devolved representatives. When the Specialised Committee is established, the Government must invite representatives from the Northern Ireland Executive to participate in the Committee (on the same basis as they do within the Executive) to allow them to articulate their perspective on security co-operation on the island of Ireland. (Paragraph 34) 44 Cross-border co-operation on policing, security and criminal justice after Brexit Extradition

We welcome the Surrender agreement agreed as part of the Trade and Co-operation Agreement. Its introduction will avoid the significant delays that might have occurred if the UK and Ireland had been forced to rely on the cumbersome 1957 European Convention on Extradition.

The new suspect surrender arrangements agreed between the UK and EU are similar to the EU Surrender Agreement with Norway and Iceland and include many of the features of the European Arrest Warrant. Importantly for co-operation between the UK and Ireland, the new arrangements mean that extradition will continue to be subject to judicial control rather than operating through political channels. The emphasis on the principle of proportionality is welcome and represents an improvement on the European Arrest Warrant.

The new extradition arrangements agreed between the UK and EU include some important differences from the European Arrest Warrant. The Trade and Co- operation Agreement introduces a political offence exception and allows states to refuse to extradite their own nationals. There is a requirement to establish double criminality, which can be waived in defined circumstances, although the Government has no plans to do so. Those differences should not significantly affect extradition processes between the UK and Ireland. However, the speed of extradition between the UK and Ireland may be slowed in some cases, if there is a requirement to establish double criminality as part of the process of suspect surrender. The Government must commission a review of the effect of the new extradition arrangements after they have been in force for two years. Research on the effect of the need to establish double criminality on the speed of extradition processes between the UK and Ireland should form part of this review.

The UK’s loss of access to SIS II has the potential to create delays in UK law enforcement agencies receiving arrest warrant notices when the location of the suspect is not known, if partner agencies in EU Member States do not routinely enter arrest warrant notices into the Interpol I-24/7 database. We would hope that, given the UK’s historical role in Interpol and the demonstrable benefits for pan-European safety and security, this would be something that EU Member States would support and encourage. The Government must set out how it plans to mitigate, limit or eliminate delays in receiving arrest warrants and operational information from EU partners following the loss of access to SIS II. The Government and relevant UK law enforcement agencies must also set out how it plans to encourage partner agencies in EU Member States to enter arrest warrants into the Interpol I-24/7 database to mitigate the operational loss of SIS II. (Paragraph 63) Cross-border information sharing

Over the past two decades, the PSNI and the Gardaí have made great progress in developing co-operation mechanisms to tackle cross-border criminality on the island of Ireland. We are assured that this will continue after Brexit. The structures that have been built up to aid UK and Irish law enforcement agencies in their mutual aim of frustrating cross-border crime will become increasingly important now that the UK has left the EU and lost access to some EU security and justice databases. Cross-border co-operation on policing, security and criminal justice after Brexit 45 There is, though, a risk that the tools and systems used by UK law enforcement agencies for cross-border information sharing will fall behind those that Irish and other EU authorities have access to. We have heard that this is in part due to the European Union’s approach to granting third countries full access to such measures. There is also the risk in the future that any unilateral divergence may have an impact on information sharing. This could lead to an imbalance in capabilities between UK and Irish authorities and inadvertently hand criminals an opportunity to exploit these discrepancies. In doing so, the impact would be felt on the streets of Great Britain, as much as on the island of Ireland. The Government must use the Specialised Committee on Law Enforcement and Criminal Justice Co-operation to, where possible and cognisant of third country limitations, make the case for ongoing and organic alignment between the UK and EU in the development of information sharing systems.

We are heartened to see an agreement providing for reciprocal transfers of Passenger Name Record (PNR) data. That agreement will help to protect people in Northern Ireland against serious crime and terrorism by allowing UK law enforcement agencies to exchange data on serious criminals with their counterparts in EU Member States as well as enabling UK and Irish law enforcement agencies to share relevant information.

It is positive that the Government has negotiated successfully an agreement with the EU to provide for reciprocal access to biometric data (and in the future vehicle registration data) of suspected criminals. That will help UK law enforcement agencies and law enforcement agencies in connected EU Member States to identify terrorists and organised criminals. The Government should set out if, and how, it plans to use these arrangements to co-operate on sharing biometric data with Ireland in particular.

The PSNI and the Gardaí have developed bilateral mechanisms for sharing operational policing information. The Trade and Co-operation Agreement does not appear to impede the continuing exchange of operational information between UK and Irish law enforcement agencies, but both countries should be ambitious and build on the arrangements already in place. The Government must set out how it plans to support the development of existing bilateral mechanisms for the exchange of operational policing information between UK and Irish law enforcement agencies in line with technological advances to ensure that operational information exchange is as efficient as possible.

The establishment of UK-CRIS to replace the UK’s participation in the European Criminal Records Information System (ECRIS) is welcome. Effective policing of the open border on the island of Ireland is assisted by efficient and reliable assessment of criminal records. The 20-day time limit included in the Trade and Co-operation Agreement is an improvement on the 1959 Convention on Mutual Legal Assistance in Criminal Matters which the UK and EU would have had to rely upon if no agreement on security had been reached. However, it is not as strict as the 10- day time limit that is in place under ECRIS. The Government must work with the Irish Government to ensure that criminal record data requested for the purposes of criminal proceedings continues to be exchanged as quickly as possible between UK 46 Cross-border co-operation on policing, security and criminal justice after Brexit and Irish law enforcement agencies, aiming for the shorter time limits as set out when using ECRIS rather than the 20-day time limit set out in the Trade and Co-operation Agreement; and reporting on its performance against those limits.

UK law enforcement agencies will continue to have access to Europol through the third-country arrangement negotiated in the Trade and Co-operation Agreement. Access to Europol is important for law enforcement agencies when co-ordinating Europe-wide investigations, particularly when more than two countries are involved in an operation. However, the loss of full membership of Europol reduces, but does not eliminate, the ability of the UK to shape the future development of the organisation through its management board. There is clear benefit in the Government advancing proactively the case for the UK’s involvement in Europol through the Specialised Committee on Law Enforcement and Criminal Justice Co-operation. (Paragraph 103) Data adequacy and the EHCR

It is welcome that the UK has successfully obtained draft data adequacy decisions from the European Commission. The UK maintaining data adequacy status is key for the continuation of efficient data sharing between the PSNI and the Gardaí, as well as other UK and Irish crime agencies, and the finalising of data adequacy decisions is therefore critical. If granted, the UK’s data adequacy status will be reviewed periodically, and it may be subject to legal challenge as previous EU data adequacy decisions on third countries statuses have been. The Government must explain how it plans to ensure that the UK’s data protection regime continues to clear the necessary bar to maintain the country’s data adequacy status. The Government must proactively engage with the European Commission on this as part of efforts to ensure that data adequacy decisions are reached in good time, ahead of deadlines for their adoption, and to avoid uncertainty about the future of data sharing arrangements.

The Committee supports fully the European Convention on Human Rights. We welcome the Government’s assurance, stated at the dispatch box and to this Committee in November 2020 and in March 2021, that it remains “absolutely committed” to the European Convention on Human Rights. The Trade and Co- operation Agreement is based on the UK continuing to apply the ECHR. The Government’s ongoing application of the ECHR is important in facilitating continued data sharing and effective extradition arrangements between the UK and Ireland. Robust human rights and legal safeguards both for accused persons and for victims of crimes are critical to providing a base from which effective and efficient co-operation can be facilitated. There is no room for doubt about the UK’s commitment to the ECHR or to its domestic effect. We welcome the fact that the Government will continue to uphold the European Convention on Human Rights in full, as successive Governments have done since 1950, when the UK was one of its founding signatories. (Paragraph 115) Cross-border co-operation on policing, security and criminal justice after Brexit 47 Future innovations in UK-Irish cross-border security co-operation

The work of the cross-border Joint Agency Task Force to tackle cross-border crime remains important. At a strategic level, the Task Force should meet quarterly rather than biannually, or as operational necessities warrant.

The PSNI told us that the creation of a bespoke Northern Ireland centre of excellence for law enforcement co-operation and co-ordination would integrate operational and investigative collaboration across law enforcement agencies. Bringing the agencies together under one roof should facilitate rapid and effective investigations. The Government must support the Northern Ireland Executive in establishing a bespoke Northern Ireland centre of excellence for co-operation and co-ordination to combat crime. There would be demonstrable benefit in ensuring that law enforcement agencies such as HM Revenue & Customs, the National Crime Agency, the security services and Border Force, participate in this centre. (Paragraph 128) 48 Cross-border co-operation on policing, security and criminal justice after Brexit