Loss of access to EU security data post-Brexit is ‘concerning’

The UK's lack of access to EU criminal justice and security data post-Brexit is concerning, a new report by the House of Lords EU Committee says. And whilst the UK-EU Trade and Cooperation Agreement (TCA) has been signed, the Committee is worried that many important details are still to be agreed. 

The TCA was signed late December last year and aims to govern the future relationship between the UK and the EU. However, on the issue of data sharing, there appears to be many gaps that need to be filled and experts are concerned that future data sharing and data protection issues could result in the two parties fighting it out in court. 

The Lords' report comes shortly after the EU has confirmed a data adequacy agreement with the UK, which should ensure that data flows between the two parties are protected for the time being (until any disputes arise, at least). 

What's surprising about the report out today is actually how surprised the House of Lords Committee sounds that the UK will not enjoy the same privileges it had when part of the EU, with regards to accessing sensitive security and law enforcement data. 

Lord Ricketts, Committee Chair, welcomed the TCA, but says that the UK needs to exercise caution, particularly as it relates to data protection. He says: 

This agreement enables the UK to continue to cooperate with the EU in the areas of security and justice, including on the sharing of key data and on extradition. The government has therefore succeeded in avoiding an abrupt end to years of effective UK-EU joint working in these areas, which would have put the safety of citizens in the UK and across the EU at greater risk.

There are, however, still grounds for considerable caution. These are a complex and untested set of arrangements and their effectiveness will depend crucially on how they are implemented at the operational level. This will require continued parliamentary scrutiny. The provisions on data protection are particularly fragile. If the UK does not remain in step with changes to EU data protection laws, or if the UK is found to have breached fundamental rights when handling personal data, then this could trigger the suspension, or even termination, of all the justice and security cooperation. 

Another area of concern is the impact on our law enforcement agencies of loss of access to the Schengen information System. Parliament should monitor whether the alternative arrangements the government are putting in place will provide equivalent access to information which is vital to the UK's security.

Loss of access

The TCA signed in December includes provisions for the UK and the EU to continue sharing passenger name record data and for continued UK access to EU databases that cover fingerprints, DNA and criminal records. The Committee notes that these all play an essential part in cooperation between UK law enforcement agencies and their EU counterparts. 

However, it adds that an ‘unavoidable consequence' of Brexit and the UK now being a country outside the EU, is that the Agreement does not provide the same level of collaboration that existed previously. In addition, the UK will no longer have a seat at the table, nor have any real influence, when it comes to shaping the instruments of EU law enforcement. 

One of the most significant losses, according to the report, is the UK's loss of access to the Schengen Information System (SIS II). The report notes: 

The importance of this system, and the real-time access it provides to data about persons and objects of interest, including wanted and missing persons, has been emphasised repeatedly in evidence to this Committee, and its predecessors. As a substitute, UK authorities have turned to the Interpol I-24/7 database. But the effectiveness of this as an alternative rests upon the willingness of EU States to upload the same information onto the Interpol system that they circulate on SIS II, and the Government did not provide clear evidence on how it would persuade EU Member States to do so.

The Committee adds that the UK will need to complete technical improvements to its systems so that the I-24/8 data is available to frontline law enforcement in minutes, no hours. 

In addition to the above, the Committee outlines a number of reasons to be cautious about the effectiveness of the TCA going forward. These include: 

• the provisions are detailed and complex, and many of them are untried;

• the capacity of UK law enforcement agencies to share key data is subject to an EU evaluation of how the UK handles that data;

• if the UK chooses not to stay aligned with EU data protection rules in the future, this could risk the Agreement's suspension, or even termination;

• the UK's data protection regime could be successfully challenged in the courts, triggering a dispute between the Parties;

• the data protection arrangements set out in the Agreement that seek to insulate it from any future loss of data adequacy are yet to be tested; and

• the operational effectiveness of the extradition arrangements, which replace the European Arrest Warrant.

My take

The Committee is asking that the government keep parliament fully updated on the implementation and operation of the agreement, including how it intends to address any possible disputes that result in suspension of the two parties' critical collaboration. This stuff is the very ‘unsexy' side of Brexit and is unlikely to make major headlines - details on access to databases rarely does. However, it's the stuff that may end up resulting in huge unforeseen consequences down the line. Ultimately it's both in the interests of the EU and the UK to collaborate on security and law enforcement, so we can only hope that any grandstanding and political showmanship is kept to a minimum.