Written evidence submitted by the National Police Chief’s Council (NPCC) (FRE0058)

The National Police Chief’s Council (NPCC) acts as a partner with the Home Office, providing advice on operational issues in relation to the EU/UK Brexit negotiations. Policing has not been present during negotiations and therefore our ability to comment on all aspects of the committee’s questions are not possible. However where we are able to comment, we have provided answers to the questions posed.

The main area of concern for policing is one of capability. Within this context, access to intelligence and information systems through existing EU tools, which also provide the legislative framework to effectively deal with suspects, offenders or witnesses are key to enabling us to assess risk and protect the public. If the outcome of negotiations leaves us with fewer instruments, whilst policing will of course rise to the challenge and adapt to the changing environment, any degradation of capability will provide additional challenges to policing.

Now that we have seen draft legal texts from both the UK and the EU, what are the main areas of disagreement that risk a future arrangement on law enforcement and judicial cooperation in criminal matters? In which areas does it appear that the two parties are closest to an agreement?

The draft legal texts do provide some common ground between the UK and EU, however the largest areas of divergence would seem to be around the Schengen Information System II (SISII), the alternative arrangements to replace the European Arrest Warrant (EAW) and cross cutting themes such as future governance and dispute resolution. These are all areas, that the Home Office negotiating team have been engaged with and they would be better placed to assist in the detail of how much progress has been made.

SISII is one of the most valuable tools to UK Policing and one of the hardest to replicate due to the real time circulation capability and the fact that it is searchable through the national policing system of each participating country. There is a fall back contingency in the event of the loss of SISII, where policing would rely more heavily on the use of Interpol notices, however whilst this does provide some capability it doesn’t fully replicate the effectiveness of SISII.

The EAW has sped up the extradition process significantly due to the fact that it is a “mutual recognition” instrument. The EAW sits under Part 1 of the UK Extradition Act 2003, as such, a person can be provisionally arrested under this legislation without first obtaining a warrant. There does appear to be a convergence in relation to exploring the option of a Norway/Iceland style agreement to replace EAW, which would reduce some of the impact. If we are unable to secure this then the UK fall back is using the 1957 Convention of Europe to extradite an offender, which is a far more bureaucratic and lengthy process and would significantly impact operational capability. The EAW combined with SISII are collectively very powerful tools for policing across the EU.

Beyond individual measures, there is also the challenge regarding data adequacy and the roles of the Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECHR), which could have an impact across all EU instruments. From a policing perspective, it is hard to see how agreement can be reached on any future Law Enforcement National Security measures without some agreement being reached in these three areas.

Which aspects of a possible agreement are at risk due to the negotiating positions of the UK and the EU on the role of the CJEU? How can these risks best be overcome?

It is clear that the EU has a desire for the CJEU to be the ultimate arbitrator in future arrangements. It is also clear that UK negotiators are seeking an alternative arrangement, which provides an arbitration mechanism outside of the CJEU. The Home Office would be better placed to set out how this could be overcome.

How can the UK and EU positions on the ECHR be resolved without risking the wider law enforcement and judicial cooperation agreement?

This is an area that the Home Office and negotiation team would be best placed to answer.

What are the other major obstacles to reaching an agreement on law enforcement and judicial cooperation? And how might these obstacles be overcome?

This is an area that the Home Office and negotiation team would be best placed to answer.

The UK will be a non-Member State outside Schengen. What precedents are there in this area on: access to EU databases (such as ECRIS and Prüm), Passenger Name Records, Europol and Eurojust? Is the UK asking the EU to go significantly further than it has in these precedents? Is the EU asking the UK to go significantly further than it has in these precedents?

There are no non-Member States (MS) outside of the Schengen area that have access to ECRIS, Prüm and Passenger Name Records (PNR). Switzerland, Norway, Liechtenstein and Iceland are non-MS but do have access to SISII as they are designated by the EU as Schengen Associated Countries. Third party membership of Europol and Eurojust is available, but such states are not able to initiate operations such as Joint Investigation Teams (JIT) and must rely upon partnership with another MS to undertake any activity. The EU draft states that a UK liaison delegation for Europol and a UK liaison magistrate for Eurojust may be introduced, but participation in meetings and operational activity is by invitation and with the approval of the other participating MS. All post transition period arrangements are conditional within the EU mandate on the UK continuing to adhere to the provisions of ECHR and continued effect of this Convention within UK law.

The UK has asked for capabilities similar to those delivered by SIS II. What are the main capabilities of the SIS II system that the UK is seeking to replicate? Why might any replacement not fulfil these? Why might the UK be holding back its proposed text on SIS II?

The benefits of SISII are real-time access to EU-wide alerts and the requirement for participating countries to be able to automatically search the SISII database and their national police database in one query. Any replacement to replicate these features would only be possible with the agreement of the EU to give such access to the SISII databases as authorised at present. Alternatively, individual bilateral agreement with each MS would be required in order to grant access to their database via a UK based IT system capable of doing so. Negotiating such access or commissioning such an IT system is outside the remit of the police service but any agreement that retains the current capability would be very welcome to UK law enforcement. The police service is unable to comment upon any delay to the UK text on SISII.

How would an agreement on extradition similar to those negotiated with the EU by Norway and Iceland differ to the current situation where the UK has access to the European Arrest Warrant? Is there scope for the UK and the EU to negotiate an extradition arrangement that builds on those of Norway and Iceland?

The agreement between the EU and Norway/Iceland is based upon ‘mutual confidence’ rather than ‘mutual recognition’ of the parties’ judicial systems. There is little practical difference between the EAW and the Norway/Iceland agreement, however Norway and Iceland are both within the Schengen Area and have the advantage of being able to circulate arrest warrants via SISII, where the UK may not have the same benefits in the future. In addition, MS may refuse to extradite their own citizens under a Norway/Iceland agreement which is not the case under the current EAW process. Germany, Austria and Slovenia have already indicated they will not extradite their own nationals outside of the EAW process. The dispute resolution mechanism is via a meeting of the governments of Norway/Iceland and the EU rather than via the CJEU. There is certainly scope to negotiate an arrangement that builds on the Norway/Iceland agreement and this is what the home office negotiation team are currently attempting to take forward.

In which areas of the current law enforcement and judicial cooperation relationship is the UK a net contributor in terms of information flows, expertise and resources? In which areas would security in the EU be most impaired without the UK’s involvement?

In terms of PNR, the UK is highly advanced in our use, with significant traffic coming through UK airports and we have been seen as a leader in this area.

Europol processes have been established based upon UK principals. The former Director (Rob Wainwright) was a British National and aligned Europol strongly with UK law enforcement principals. The UK is one of the highest contributors of information to Europol systems.

The UK is also a significant user of SISII particularly when taking account of the fact that the UK does not have access to SISII Article 24 alerts (which is an alert for third country nationals not entitled to enter the Schengen Zone). Other EU member states make considerable use of this alert, which can make their usage appear comparatively larger than ours. The UK only joined SISII in 2015 and our usage has steadily increased. In 2018, there were 2.9 million UK alerts on SISII, 603 million searches were undertaken and 1453 EAW arrests made. At any given time there are also approximately 11,000 UK missing people circulated on SISII.

It is important to note that the view of Policing is not just focused on how we currently use these tools, but more how we use them in the future and the critical elements of interconnectivity which might be lost. A good example of this is the UK’s recent connection to Prüm which enables the searching of DNA data across member states. The UK only connected in July 2019, however in this short time the UK has already generated 53000 hits from crime scenes and individuals. This represents enormous opportunity for the future. The identification of a subject however may then have a knock on effect such as the need for further evidence to be gathered through a European Investigation Order (EIO) or an extradition via an EAW, all of which would impact on the process in a post Brexit environment where these tools are not available to us.

The UK aims to receive a comprehensive data adequacy decision from the EU before the end of the Transition Period. What concerns might the EU have that will affect whether to award a data adequacy decision? How important is it to any future UK-EU relationship on law enforcement that the UK secures a data adequacy decision?

We are unable to comment upon any concerns that the EU may have, as policing is not party to the negotiations. It is the view of policing that without a data adequacy agreement we should be able to continue to exchange data under GDPR, as third countries do now. However, there is uncertainty how other MS will view this and concern does exist that without an agreement less data may be shared.

What are your main concerns if, at the end of the Transition Period, the UK and the EU cannot agree a future security relationship? What would that mean for day-to-day operational policing, access to EU criminal justice databases, and the UK’s relationship with Europol and Eurojust? In which areas would the loss of operational capability be greatest?

If the Transition Period ends in a non-negotiated outcome, alternative arrangements exists in the most part, under Council of Europe Conventions, which give us some capability. In each case, the capability will be slower and more cumbersome to varying degrees. This is likely to have an impact on the speed in which we can exchange information and evidence. A concern for policing is that if we have less effective ways to exchange information, convictions, evidence and to extradite individuals, it will be harder to assess and deal with the threat.

The greatest loss is likely to come from the real time alert exchange associated with SISII. Exchanging information through Interpol is not a like for like process or able to be done so speedily. Exchanging convictions through ECRIS is much simpler and quicker than through alternative arrangements. The mutual recognition elements of both the EAW and the EIO mean that both extradition and evidence gathering has speeded up immensely through EU tools over Council of Europe tools. To revert to slower processes would have an impact on policing.

With regards to both Europol and Eurojust, it is unlikely that a full cessation of capability will occur and until we understand what arrangement is agreed, we are unable to assess the impact.

In which areas are there standard third country arrangements that the UK and EU could fall-back on in the event of no agreement by 1 January 2021? If there are no such fall-back mechanisms, what contingency measures could the UK and the EU put in place, either unilaterally or jointly, to ensure some sort of cooperation on law enforcement and judicial cooperation?

Standard third country agreements only exist in cases where EU measures are extended to non EU countries and therefore exist for Europol and Eurojust. There may also be the opportunity to conclude a third country agreement with regards to Prüm as it is not excluded by law. Where no existing third country agreement exists, or new arrangements can be met, in most cases Council of Europe Conventions will become the alternative arrangement. Of course, moving forward, there is nothing to stop the UK improving bilateral relationships with countries, which may improve upon existing alternative arrangements.

Is there anything else in the two parties’ proposals, for example on prisoner transfer or anti-money laundering, that you wish to bring to the Committee’s attention?

The EU proposal makes no mention of prisoner transfer within the negotiating mandate or the draft agreement. The UK mandate expresses a desire to establish effective arrangements for prisoner transfer and build upon the current arrangements. Whilst prisoner transfer arrangements come within the remit of the National Offender Management Service (NOMS) rather than the police service, it would seem sensible for cost, prison estate capacity, rehabilitation and family access reasons, to retain prisoner transfer movements between the UK and the EU.

On money laundering and terrorist financing, the draft agreement seeks to continue current information exchange agreements in line with the existing Financial Action Task Force arrangements and within each jurisdictions respective legal framework and laws. Information shall be made available to competent authorities and financial investigation units without restriction.

There will be challenges in the event of a non-negotiated outcome or an outcome that does not secure the critical elements that policing needs to operate effectively. However policing remains committed to working with the government and other law enforcement agencies in finding alternate methods to compensate for any loss of EU tools and measures.

June 2020