As I said, earlier this week I attended a session of the House of Commons Home Affairs Committee. This was called to take evidence on the impact of Brexit as it impacted Europol and the European Arrest Warrant.

I have published a link to the video recording of the event but I took some notes and wanted to share them with you. They interviewed Sir Robert Wainright, a former Head of Europol and Claude Moraes MEP, Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and Camino Mortera-Martinez, Research Fellow and Brussels Representative, Centre for European Reform. If we leave, we are unlikely to get a better agreement than Denmark which has withdrawn from Europol and unless we accept the Court of Justice of the European Union, we will be excluded from the European Arrest Warrant. Moraes made the point that the UK’s Investigatory Powers Act may inhibit a data sharing adequacy finding which may lead to a restrivtion on access to Europol’s databases. … 

About Europol

The first session was with Sir Robert Wainright, a former Head of Europol. Throughout his evidence, he tried (and succeeded) in remaining clear of the politics of the issue. He stated that leaving Europol without a deal would damage the UK’s ability to protect its citizens from crime and terrorism. However, both the USA and Denmark, neither of which are members of Europol have agreements that allow them to place staff in Europol’s sites to use the databases. These systems are important, or at least used heavily. However, he could not conceive of an agreement that would allow a brexited UK to retain its positions and influence in Europol’s governance structures.

He raised the issue of immigration control at Dover, and suggested that checks presumably currently performed would no longer be available, I am surprised that they perform these checks as some of these were abandoned when the data protection acts were first introduced.

Some of his evidence raised the question in my head as to whether the UK Police (and intelligence services) have become too reliant on computerised systems and have no means of checking its accuracy, partly due to a lack of police staff with community relationships.

Sir Robert’s session finished with a dialogue on about the likelihood of the EU27 refusing a co-operation agreement. Sir Robert stated that because of the size of the UK, it is unlikely that the Danish agreement would be an appropriate model (although one should assume the US one is). There is no operational reason why an agreement cannot be made, but there are remaining member state legal constraints, it is not just a question of political will. (I think I am clearer than Sir Robert who was trying to be polite and remain out of the political cross fire.) We should also consider that it is possible that some of the EU27 will object to the UK’s external intelligence sharing agreements, at least that they are not subject to adequate judicial supervision.

About the European Arrest Warrant

The second session took evidence from Claude Moraes MEP, Chair of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) and Camino Mortera-Martinez, Research Fellow and Brussels Representative, Centre for European Reform.

My notes are supplementary to Claude & Camino’s evidence but throughout they made clear the submitting to European Arrest Warrants is a diminution of national sovereignty. Nation states are agreeing to send their citizens for legal action in another State. All members of the EU have agreed that they have equivalently fair judicial systems and that they submit to the Charter of Fundamental Rights and its interpretation by the European Court of Justice. While the UK Government rejects the Charter and the Court, which it does today, the UK will be excluded from the European Arrest Warrant; at least two countries (Germany & Slovenia) will need to amend their constitutions which in the case of Slovenia will require a referendum. i.e. having a fair system is not enough to belong to the EUAW, the EU’s member states needs guarantees that it will remain so, which is why New Zealand cannot join.

The protection of citizens is the primary duty of a nation state and we should recognise the EU27’s rights to perform this role.

If we lose the EUAW, it would seem we’ll need to replace it with extradition and mutual assistance treaties.

Having stated that the EUAW requires the Charter, it would seem that the whole of Justice Pillar requires it. I have said on a number of occasions that the Charter and Court are my red lines and much of the EEA competencies have references to articles within the Charter. i.e. it’s not just Justice that needs the Charter, Trade does too. It is my opinion reinforced by listening to this meeting that the this red line, of no Court and no Charter, cannot be held in the context of a soft brexit.

No Court, No Charter (of Fundamental Rights) means a Hard Brexit.

The need for an adequacy finding/agreement for privacy and data exchange was raised and made.

It was asserted that the UK will not get a better agreement than Denmark for Europol access and the idea that the EU27 will give us one because we contribute so much intelligence to the Europol systems is countered by the fact that we consume more than we put in. (The official minutes may document the source of this fact but it comes from the European Parliament’s scrutiny committee. ) This would seem to be a variation of the argument that we’ll get a trade deal because we buy Mercedes, Prosecco and French Cheese.

Some of these discussion raised the issues of access to judicial review and access to legal aid. These maybe issues with which the EU has difficulty with in accepting the UK system’s equivalence.

For more, and in their own words, including those of the committee members, the full show is here, it seems to be close up on the participants, so you don’t get to see me picking my nose.

Crime & Brexit
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