For the ‘Brexiteers’ that supported the departure of the United Kingdom from the European Union, one of the biggest supposed gains was that the UK would be free to do as it wished in domestic and international affairs, unencumbered by the bureaucracy in Brussels, judges in Strasbourg, or the need to take into account the interests of the EU’s 27 other member states. However, almost as soon as the transition period ended on 31 December 2020 and the UK was no longer bound by EU law, it became clear that the situation was somewhat more complicated – as many had warned in the years running up to the formal separation.
Ongoing disputes over fishing rights, the status of EU nationals in the UK and UK nationals in the EU, the situation in Northern Ireland and the movement of people across the Anglo-French maritime border make clear that Brexit has laid the foundations of a fractious long-term relationship, with significant implications for millions of peoples’ lives and livelihoods. However, amidst the headlines, diplomatic spats and political accusations and recriminations, one significant aspect of the post-Brexit agreement between the UK and the EU has received little attention: policing, judicial and security cooperation, the subject of this report.
Despite its frequent opposition to European integration, the British state was a major player in the EU security architecture that formally began to take shape following the Treaty of Maastricht in 1992, and which accelerated substantially over the following three decades. It consistently sought the approval of more intrusive surveillance powers at the EU level (for example, as regards air travel and telecommunications), played a significant role in the development of policing agency Europol as a centralised hub for information and intelligence-gathering and, through the supposed ‘special relationship’ with the USA, served as something of a ‘bridge’ for the EU in security matters.
Although the UK’s formal role in EU decision-making has now ended, the treaty signed between the UK and the EU in December 2020, the Trade and Cooperation Agreement (TCA), provides a base for substantial ongoing cooperation in justice and home affairs. Rather than breaking with the controversial model of ‘security’ proffered by the EU – underpinned by surveillance, coercion and control – post-Brexit cooperation will seek to build upon it, with significant implications for civil liberties, human rights, and the democratic scrutiny and control of state activity.
Nowhere is this more apparent than in the provisions that will allow the UK to participate in a future pan-European network of police facial recognition databases, as part of the EU’s ‘Prüm’ system. Prüm was established in 2008 and currently provides for the mutual interconnection and cross-border searching of national police forces’ DNA, fingerprint and vehicle registration databases. Upon finding a match, police forces can then exchange further personal data.
In December 2021 the European Commission proposed expanding the system to include facial recognition databases. This would make it possible for police forces to conduct Europe-wide searches using facial images extracted from photographs or video footage, laying the technological foundations for a pan-European mass biometric surveillance system. The Commission has also proposed the possibility of including “police records” in the system, which could open up uncorroborated data – including on protesters and campaigners – for cross-border searches.
Under the TCA, the UK can opt-in to this expanded system, and there is no need for the government to seek parliamentary debate or approval. This is a matter for serious concern given that in 2019, under pressure from the EU, the previous Conservative administration bypassed parliament to massively expand the number of DNA profiles available for searches by EU police forces.
The UK is also set to march in step with the EU in the controversial surveillance and profiling of travel. Since 2016, EU law has required the operators of almost all flights entering, leaving, or travelling within the bloc to transmit data on passengers to ‘Passenger Information Units’ operated by law enforcement authorities. The data is then subject to profiling and cross-checked against databases in the hunt for known suspects and ‘persons of interest’. The law is currently the subject of a number of legal challenges before the Court of Justice in Strasbourg, which is being asked to determine whether the blanket surveillance of travellers is compatible with the right to privacy.
The TCA maintains such a system between the UK and the EU, and the Westminster government has once again taken the opportunity to evade democratic scrutiny. The treaty includes provisions setting out when and how data on passengers travelling by air from the EU must be transmitted to UK authorities for profiling, cross-checking and analysis by the police. The domestic law implementing the treaty in the UK gives the Home Secretary the power to use secondary legislation to extend the rules to cover rail and sea travel, if such an agreement is struck with the EU. This would place all users of mass transit under police surveillance, turning all passengers into suspects: potentially guilty until proven otherwise.
The TCA also keeps the UK closely tied to the EU policing agency, Europol, and the EU judicial cooperation agency, Eurojust. As of March 2020, the UK was the fifth-largest provider of data to Europol, with over 63,000 ‘objects’ attributed to the country in the agency’s main database, the Europol Information System. That data remains in the agency’s systems and TCA ensures the flow will continue. This is likely to include information on protesters and activists – particularly in the context of the UK’s new Police, Crime, Sentencing and Courts Bill, which will lead to a significant increase in the surveillance of protest movements. Amongst other things, the UK also remains part of a network of undercover and covert policing units, the European Surveillance Group, which aims to “strengthen the tactical and technical capabilities of the European surveillance units.”
A number of the opt-ins available to the UK government can be approved by the new institutions set up by the TCA, two of which this report examines in detail: the Partnership Council and the Specialised Committee on Law Enforcement and Judicial Cooperation. The former sits at the top of the new institutional structure established by the TCA, while the latter is one of many committees established to deal with different policy areas covered by the TCA, such as trade, intellectual property and public procurement.
The Partnership Council is granted a wide range of decision-making powers concerning matters covered by the TCA, yet the treaty provisions on transparency and parliamentary scrutiny are weak, where they exist at all. The British public were promised that Brexit would let them take back control, but it appears that control is in fact to remain firmly in the hands of the executive.
Meetings of the Partnership Council and the Specialised Committee do not have to take place in public; publication of their decisions and recommendations is optional; and there is no obligation to publish documents produced for or discussed at meetings. Indeed, in response to formal requests from Statewatch, both the UK and the EU have refused to disclose documents produced for the first meeting of the Specialised Committee in October last year, citing the need to protect international relations.
The TCA requires the establishment of a Civil Society Forum, but this has no remit to scrutinise the treaty provisions on policing, judicial cooperation and security. There will also be a Parliamentary Partnership Assembly, made up of representatives of the European and UK parliaments, but the powers afforded to it are limited.
Beyond this, the European Commission has promised to keep the European Parliament fully-informed of the affairs of the Partnership Council and the various Specialised Committees. In the UK, meanwhile, the response of government representatives to questions in the House of Lords suggests they will not be taking a proactive approach to parliamentary scrutiny – in July last year, Lord True said that “arrangements for long-term scrutiny” of the post-Brexit relationship “must be proportionate,” and that “the Government will facilitate transparencies of the withdrawal agreement and TCA governance structures to the extent that we are able.”
The UK´s post-Brexit policing and security plans extend beyond its relations with the EU. To try to replace its loss of access to EU law enforcement databases, it plans to encourage greater information-sharing through Interpol, and to deepen cooperation in the ‘Five Countries’ framework, alongside Australia, Canada, New Zealand and the USA. It also retains its seat on the UN Security Council, an institution with a growing role in states’ domestic security arrangements; and will continue to try exerting influence through its membership of the G6 and G7.
The UK government’s current domestic programme is nothing less than a full-frontal attack on civil liberties and human rights. The Conservative Party aims to pass a host of new laws that will crack down on protest rights, criminalise asylum-seekers and refugees, and shield itself from democratic and legal accountability through the ‘reform’ of election procedures, human rights law, judicial review proceedings and the rules on official secrets. This is not, however, the end of the story. As the government seeks to make ‘Global Britain’ a reality, the security partnerships, policies and practices it seeks to put in place at the transnational and international levels must be seen in conjunction with its domestic plans, and opposed in equal measure wherever necessary. By providing a critical examination of the possibilities for cooperation between the UK and the EU, this report seeks to contribute to that task.
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