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Conclusion

The conclusion of the Trade and Cooperation Agreement closed one chapter in the history of UK-EU relations, and opened another. As was promised, both sides sought to ensure the widest possible ongoing cooperation on justice and home affairs issues – an area in which, unlike trade or environmental regulation, there is strong agreement on the means and methods that should be employed. As this report has demonstrated, a number of the provisions pose a clear danger to civil liberties, at the same time as failing to provide meaningful possibilities for democratic scrutiny and accountability.

The new arrangements create supranational policing and security structures that will be even more opaque and unaccountable than that which existed when the UK was still a member state of the EU. This is particularly concerning given the political declarations encouraging the extension of invasive surveillance systems – in particular, on facial recognition and travel – without any explicit requirement for parliamentary debate or scrutiny. The same goes for the potential extension of the remits of Europol and Eurojust, and the fact that provisions on the use of PNR and criminal records data provide more grounds for processing and sharing data with other countries than when the UK was an EU member state. For the average person, it is hard to see how this is “taking back control” – although it is not unfair to assume that this slogan only ever really applied to the UK executive.

Indeed, it is the executive (through the Partnership Council) and numerous state officials (through the Specialised Committee on Law Enforcement and Judicial Cooperation) who will wield sgnificant power under the new arrangements. As the UK government has demonstrated since the onset of the pandemic, it is very happy to make the most of the strong executive power afforded by the British system of government. Its domestic programme is strongly concerned with undermining or abolishing measures that make it possible for the public to hold the state to account,[1] and it appears this enthusiasm for unaccountability extends to the limited oversight arrangements set out in the TCA.

The Partnership Council in particular has extensive powers with little oversight, scrutiny or accountability to keep it in check. It is obliged to supply the Parliamentary Partnership Assembly (PPA) with information, if requested, although there are no provisions guaranteeing that right to the UK or European parliaments individually.

The PPA must also be “informed” of the decisions and recommendations of the Partnership Council and Specialised Committee, but it will have no input into them, apart from being granted the possibility of making recommendations. MPs in the Westminster and European parliaments will have their work cut out if they wish to hold these new institutions meaningfully to account – particularly the former, where the government has so far made no binding commitments on what scrutiny arrangements will be put in place.

Issues with transparency and accountability are compounded by the potential the new setup provides for the broad application of exemptions to releasing information. There is no requirement to publish the documents discussed or produced by the new EU-UK institutions. While the agendas and minutes of meetings, and any decisions or recommendations that are agreed upon, are to be published, there is a risk that everything else will be PR. This problem is compounded by the fact that as cooperation between the EU and UK now falls into the realm of international relations, officials will be afforded a further reason to refuse to disclose documents or information in response to formal requests.

The powers afforded by the TCA require serious scrutiny and close monitoring. A failure to do so gives a green light for the UK authorities and their counterparts in the EU institutions and member states to construct a supranational security state infrastructure, with dangerous implications for civil liberties and democratic control, unquestioned.

Notes

[1] ‘Stand Up To Power’, Liberty, https://www.libertyhumanrights.org.uk/fundamental/stand-up-to-power/