Trust between the EU and the UK is in short supply. This poses risks to British-European security relations, writes Gijs de Vries (LSE). As Brexit unfolds, three issues, in particular, may give rise to tensions: data protection, human rights, and external security cooperation

de Vries, Gijs

English

LSE Research Online

Long	read	|	Future	British-European	security	relationsare	a	matter	of	trustTrust	between	the	EU	and	the	UK	is	in	short	supply.	This	poses	risks	to	British-European	security	relations,	writesGijs	de	Vries	(LSE).	As	Brexit	unfolds,	three	issues,	in	particular,	may	give	rise	to	tensions:	data	protection,	humanrights,	and	external	security	cooperation.		While	the	ink	on	the	2020	EU-UK	Trade	and	Cooperation	agreement	might	have	dried,	Brexit’s	consequences	willbe	felt	for	many	years	across	a	wide	range	of	policy	areas.	Whereas	economic	ramifications	have	been	widelydiscussed	the	consequences	for	security	have	drawn	less	attention.	How	will	Brexit	affect	the	safety	and	security	ofBritons	and	other	Europeans?	Are	British-European	security	relations	likely	to	benefit,	or	do	political	tensions	loomon	the	horizon?On	both	sides	of	the	Channel	criminals	may	well	have	breathed	a	sigh	of	relief:	preventing	and	combating	cross-border	crime	in	Europe	has	just	become	more	difficult.	Brexit,	as	agreed	in	December	2020,	is	likely	to	dent	thecapacity	of	British	and	European	law	enforcement	agencies	to	work	together.	As	a	result	of	the	agreement,	policeforces	will	exchange	fewer	data	and	do	so	more	slowly,	while	judicial	cooperation	will	become	more	cumbersomeand	time-consuming.	Privacy	and	human	rights	loom	as	future	stumbling	blocks.	As	the	risk	of	lost	opportunities,misunderstandings	and	mutual	irritation	grows,	so	does	the	potential	for	recrimination	and	distrust.Brexit	is	also	likely	to	affect	European	security	in	other	ways.	We	live	in	an	age	where	internal	security	and	externalsecurity	have	become	inextricably	intertwined.	Cybercrime,	money	laundering,	terrorism,	drugs	smuggling,	VATfraud,	counterfeiting,	child	pornography	and	other	forms	of	crime	do	not	respect	national	borders.	As	geopoliticaltensions	result	in	greater	and	more	complex	threats	to	Europe	and	the	UK,	governments	will	have	to	cooperatemore,	not	less.	The	Brexit	‘deal’,	however,	risks	having	the	opposite	effect:	it	heralds	not	a	reinforcement	but	aloosening	of	European	security	ties.	Nothing	at	all	has	been	agreed	upon	regarding	cooperation	in	foreign	policy,development	policy,	and	defence.	Whereas	under	Theresa	May	the	UK	had	proposed	a	wide-ranging	agreement	toaddress	common	external	security	threats,	under	Boris	Johnson,	it	changed	tack	and	declined	to	negotiateprovisions	in	these	areas.LSE Brexit: Long read | Future British-European security relations are a matter of trust Page 1 of 5		Date originally posted: 2021-02-26Permalink: https://blogs.lse.ac.uk/brexit/2021/02/26/future-british-european-security-relations-are-a-matter-of-trust/Blog homepage: https://blogs.lse.ac.uk/brexit/British	Army	Soldiers	take	part	in	Lithuanian	Armed	Forces	Day	Parade	CC	Public	Domain)Law	enforcement	&	the	agreementFour	main	areas	of	law	enforcement	cooperation	are	covered	in	the	agreement:	data	sharing	(via	the	SchengenInformation	System	(SIS	II),	the	Passenger	Name	Record	System	(PNR),	the	Prüm	agreement,	and	the	EuropeanCriminal	Records	Information	System,	ECRIS);	cooperation	on	the	basis	of	the	European	Arrest	Warrant;	Britishmembership	of	key	EU	agencies	(Europol,	Eurojust;	ENISA);	and	cooperation	in	other	areas	such	as	moneylaundering,	terrorist	financing,	health	security	and	mutual	legal	assistance	in	criminal	matters.First,	data	sharing.	SIS	II	is	the	single-most-important	law	enforcement	database	in	Europe.	Its	80	million	alertswere	consulted	over	5	billion	times	by	authorities	in	2017.	Police	officers	on	the	street	use	it	daily,	accessing	datawithin	seconds	from	their	hand-held	devices.	Every	time	a	passport	is	checked	at	a	border	the	system	automaticallychecks	for	anyone	sought	for	arrest	and	extradition	anywhere	in	Europe.The	United	Kingdom	has	been	among	the	most	active	users	of	SIS,	consulting	it	more	than	500	million	times	peryear.	Brexit	has	now	deprived	the	UK	of	access	–	not	only	because	use	is	restricted	to	members	of	the	Schengenarea	but	also	because	the	European	Parliament,	irked	by	the	UK’s	unlawful	copying	of	SIS	data	prior	to	Brexit,threatened	to	veto	Britain’s	continued	access.	On	31	December	2020,	some	40,000	alerts	related	to	investigationsin	other	European	countries	disappeared	from	the	UK’s	police	national	computer.No	matter,	some	have	suggested:	the	UK	could	simply	fall	back	on	INTERPOL’s	red	alert	database,	supplementedby	bilateral	exchanges.	However,	bilateral	data	exchanges	typically	require	days,	not	seconds.	The	INTERPOLdatabase	will	only	be	an	alternative	to	the	extent	that	EU	member	states	now	decide	to	upload	their	sensitive	SISdata	to	INTERPOL,	overcoming	longstanding	concerns	about	the	risks	of	leaks	by	some	of	INTERPOL’s	194member	countries.	Furthermore,	UK	police	forces	and	border	authorities	lack	automatic,	real-time	access	to	theINTERPOL	system.	They	will	need	to	upload	any	data	manually	–	a	task	for	which	the	UK	has	now	recruited	over60	extra	police	officers.LSE Brexit: Long read | Future British-European security relations are a matter of trust Page 2 of 5		Date originally posted: 2021-02-26Permalink: https://blogs.lse.ac.uk/brexit/2021/02/26/future-british-european-security-relations-are-a-matter-of-trust/Blog homepage: https://blogs.lse.ac.uk/brexit/The	UK	will	retain	access	to	the	European	exchanges	of	DNA,	fingerprints	and	vehicle	registration	data	under	thePrüm	Agreement,	albeit	on	a	par	with	Liechtenstein	and	other	non-EU	countries.	This	means	the	UK	has	lost	direct,real-time	access.	In	case	of	a	match	(hit/no-hit)	the	UK	will	be	able	to	obtain	further	personal	only	in	compliancewith	the	laws	of	the	country	holding	the	data,	and	provided	its	data	protection	standards	remain	essentiallyequivalent	to	those	of	the	EU	(see	infra).	As	to	Passenger	Name	Record	(PNR)	data,	these	too	will	be	accessibleonly	on	the	condition	of	complying	with	the	EU	equivalence	standards.	The	UK	also	lost	access	to	the	EuropeanCriminal	Records	Information	System	(ECRIS)	and	will	have	to	fall	back	on	the	European	Convention	on	MutualAssistance	in	Criminal	Matters	(1959).	British	police	warned	this	is	likely	to	slow	down	data	exchanges.	Prior	toBrexit	the	UK	was	the	most	active	user	of	ECRIS.European	Arrest	Warrants	are	registered	in	SIS	II.	They	play	a	growing	role	in	the	fight	against	internationalcrime.	The	number	of	EAWs	issued	rose	from	6,900	in	2005	to	17,491	in	2017,	including	241	for	terrorism-relatedcharges.	Extradition,	which	used	to	take	up	to	a	year,	now	takes	place	within	weeks.	Due	to	Brexit,	the	UK	will	nolonger	be	involved.	Alternative	procedures	have	been	agreed	but	it	is	unclear	if	they	will	work	as	swiftly	andeffectively.	British	extradition	requests	may	be	refused	if	a	person’s	fundamental	rights	are	at	risk,	extradition	wouldbe	disproportionate,	or	they	are	likely	to	face	long	periods	of	pre-trial	detention.	EU	member	states	may	refuse	toexecute	a	warrant	for	political	offences.	They	may	also	refuse	to	extradite	their	own	nationals	to	the	UK,	as	Austria,Germany	and	Slovenia	have	already	said	they	will.The	UK	will	be	able	to	post	liaison	officers	to	Europol	and	a	liaison	prosecutor	to	Eurojust,	in	line	with	thearrangements	for	other	non-EU	countries.	It	may	take	part	in	Europol	operational	meetings	and	Europeaninvestigation	teams	if	invited.	But	the	UK	will	no	longer	have	access	to	the	Europol	Information	System	nor	fullaccess	to	Eurojust’s	case	management	system,	nor	have	any	role	in	the	governance	of	the	two	agencies.	As	tocybersecurity,	the	UK	will	be	allowed	to	take	part	in	some	activities	of	ENISA	at	the	invitation	of	the	managementboard	and	in	exchange	for	an	‘appropriate’	financial	contribution.Separate	arrangements	have	been	agreed	upon	in	the	areas	of	money	laundering/terrorist	financing	and	healthsecurity.	Mutual	legal	assistance	in	criminal	matters	will	supplement	the	relevant	Council	of	Europe	Convention.Disputes	concerning	law	enforcement	can	be	resolved	by	a	Specialised	Committee	on	Law	Enforcement	andJudicial	Cooperation	or	by	the	Partnership	Council.In	sum,	while	the	2020	agreement	partly	preserves	previous	forms	of	law	enforcement	collaboration,	data	sharingand	operational	cooperation	between	UK	services	and	their	EU	counterparts	will	become	more	difficult.	In	this	area,as	in	others,	Brexit	has	trumped	common	sense.	The	problem	is	not	confined	to	operational	matters;	the	risks	to	thebilateral	relationship	are	deeply	political.	Three	potential	problem	areas	stand	out:	data	protection,	human	rights,and	external	security	cooperation.The	bilateral	EU-UK	relationshipAny	exchange	of	data	between	the	EU	and	the	UK	is	conditional	on	data	protection.	The	EU	now	needs	to	attestwhether	UK	data	protection	standards	are	essentially	equivalent	to	the	EU’s	standards	as	set	out	in	the	GeneralData	Protection	Regulation	(GDPR),	the	Law	Enforcement	Directive	and	the	jurisprudence	of	the	European	Court	ofJustice.	The	principal	stumbling	block	might	well	be	the	UK’s	longstanding	practice	of	exchanging	sensitivepersonal	data	with	its	‘Five	Eyes’	intelligence	partners	(Australia,	Canada,	New	Zealand,	USA).	The	EuropeanCommission	has	proposed	to	grant	the	UK	an	adequacy	decision.	The	file	now	passes	for	an	opinion	to	theEuropean	Data	Protection	Board;	EU	ministers	will	take	the	final	decision.	However,	this	is	unlikely	to	be	the	end	ofthe	matter.	Should	EU	ministers	decide	to	approve	the	Commission	proposal,	one	or	more	appeals	to	the	EuropeanCourt	of	Justice	are	all	but	certain.	Although	the	ECJ	has	been	careful	in	allowing	the	EU	and	national	governmentssignificant	latitude	to	legislate,	it	has	also	insisted	that	data	protection	must	be	taken	seriously.	The	ECJ	invalidatedthe	EU	Data	Retention	Directive	(2014),	the	Safe	Harbour	Agreement	between	the	EU	and	the	USA	(2015),	thePassenger	Name	Record	Agreement	with	Canada	(2017),	and	the	Privacy	Shield	Agreement	with	the	USA	(2020)as	incompatible	with	the	right	of	European	citizens	to	data	protection	and	privacy.	In	2018	it	ruled	that	GCHQ,	theBritish	intelligence	and	security	organisation,	has	breached	human	rights	in	its	mass	surveillance	programme.LSE Brexit: Long read | Future British-European security relations are a matter of trust Page 3 of 5		Date originally posted: 2021-02-26Permalink: https://blogs.lse.ac.uk/brexit/2021/02/26/future-british-european-security-relations-are-a-matter-of-trust/Blog homepage: https://blogs.lse.ac.uk/brexit/Legal	matters	aside,	the	principal	political	question	between	the	UK	and	the	EU	in	the	coming	years	will	be	one	oftrust.	London	has	stopped	behaving	like	a	reliable	partner.	It	tore	up	the	Political	Declaration	it	had	signed	inOctober	2019,	including	the	commitment	to	a	broad,	comprehensive	and	balanced	security	partnership.	It	signalledits	readiness	to	break	international	law	by	unilaterally	overriding	the	Northern	Ireland	Protocol	of	the	WithdrawalAgreement.	It	flagged	its	intention	to	compete	by	undercutting	the	EU’s	regulatory	standards,	including	EUstandards	on	data	protection.	And	that	is	not	even	mentioning	the	pettiness	of	denying	the	EU	ambassador	fulldiplomatic	status	–	despite	London	having	signed	up	to	proposals	that	grant	EU	diplomats	the	privileges	andimmunities	of	the	Vienna	Convention	on	Diplomatic	Relations.	These	twists	and	turns	have	affected	trust	in	the	UKto	a	far	greater	degree	than	many	appear	to	realize.	As	one	EU	source	put	it:	“What	does	it	say	about	the	UK,about	how	much	the	British	signature	is	worth?”European	Conventions	on	Human	RightsOne	area	where	this	question	of	trust	could	well	give	rise	to	political	tensions	is	human	rights.	Sixty	years	ago	theEuropean	Convention	of	Human	Rights	was	drafted	mainly	by	British	lawyers.	Today,	the	UK’s	commitment	to	theECHR	and	other	human	rights	instruments	appears	to	be	faltering.For	12	years	the	UK	refused	to	implement	a	European	Court	of	Human	Rights	ruling	on	prisoner	rights	(Hirst,2005).	Irritation	at	the	ruling	led	Downing	Street	to	delete	the	obligation	to	adhere	to	international	law	from	theministerial	code.	Theresa	May	argued	that	the	UK	should	leave	the	ECHR	altogether.	In	2020	Council	of	Europeministers	sharply	rebuked	the	UK	for	its	failure	to	abide	by	seven	Court	rulings	on	abuses	by	British	security	forcesin	Northern	Ireland.	The	Conservative	Party,	which	had	previously	said	the	UK	should	“break	the	formal	linkbetween	British	Courts	and	the	European	Court	of	Human	Rights”,	has	recently	proposed	a	bill	to	derogate	from	theECHR	and	its	prohibition	against	torture	in	certain	overseas	military	operations.	Simultaneously	the	UK	launched	areview	to	consider	whether	the	British	Human	Rights	Act	“strikes	the	correct	balance	between	the	roles	of	theCourts,	the	Government	and	Parliament”.	Earlier	this	year	a	Conservative-leaning	think	tank	proposed	thatministers	should	have	the	final	say	on	judicial	appointments,	prompting	concerns	about	a	politicised	judiciary.	Thetrend	is	worrisome.At	the	instigation	of	the	EU,	the	December	2020	T&C	Agreement	commits	both	sides	to	continue	to	protect	and	giveeffect	to	fundamental	rights,	including	those	set	out	in	the	European	Convention	on	Human	Rights.	Either	side	mayterminate	the	agreement	on	law	enforcement	for	any	reason	but	one	reason	that	is	mentioned	explicitly	is	theUnited	Kingdom	or	an	EU	member	state	having	denounced	the	European	Convention	on	Human	Rights	orProtocols	1,	6	or	13	(death	penalty)	thereto.	Either	party	may	also	suspend	cooperation	in	case	of	serious	andsystematic	deficiencies	in	the	way	the	other	side	protects	human	rights,	the	rule	of	law,	or	personal	data.	Respectfor	the	European	Convention	of	Human	Rights	is	an	essential	element	of	UK-EU	relations	post	Brexit.	Erosion	ofthese	obligations	by	either	side	will	not	go	unnoticed.Conclusion:	European	defence	cooperationIn	addition	to	data	protection	and	human	rights,	external	security	is	a	third	sensitive	area	that	will	require	deftpolitical	management.	European	defence	cooperation	is	an	imperative	for	geopolitical	as	well	as	industrial	reasons.British	and	European	companies	need	each	other	but	Brexit	has	now	thrown	a	spanner	in	the	works.British	defence	firms	can	only	join	EU	Permanent	Structured	Cooperation	(PESCO)	projects	or	benefit	from	theEU’s	€7.9bn	European	Defence	Fund	under	certain	conditions.	Third	countries	must	not	contravene	the	securityand	defence	interests	of	the	Union	and	its	member	states,	including	“respect	for	the	principle	of	good	neighbourlyrelations”	with	the	member	states,	and	they	must	have	a	political	dialogue	with	the	Union	which	covers	security	anddefence.	However,	the	UK	under	Boris	Johnson	has	turned	down	the	EU’s	offer	of	a	structured	dialogue	onsecurity.The	UK’s	strategy	is	clear:	it	is	to	seek	bilateral	cooperation	with	selected	European	countries	instead	of	workingwith	the	EU.	Such	‘divide	and	rule’	tactics	can	work,	but	they	tend	to	come	at	a	price.	If	EU	member	states	playalong	they	risk	doing	serious	damage	to	PESCO,	not	to	mention	European	political	cohesion.	If	they	do	not,industrial	competitiveness	may	suffer.	The	UK,	for	its	part,	may	find	that	its	long-term	interests	depend	on	beingregarded	as	a	partner,	not	an	adversary.LSE Brexit: Long read | Future British-European security relations are a matter of trust Page 4 of 5		Date originally posted: 2021-02-26Permalink: https://blogs.lse.ac.uk/brexit/2021/02/26/future-british-european-security-relations-are-a-matter-of-trust/Blog homepage: https://blogs.lse.ac.uk/brexit/At	the	moment	trust	between	the	UK	and	the	EU	is	in	short	supply.	Brexit	does	not	improve	European	security.	Bothsides	should	take	care	to	avoid	further	damage.This	post	represents	the	views	of	the	author(s)	and	not	those	of	the	Brexit	blog,	nor	of	the	LSE.	LSE Brexit: Long read | Future British-European security relations are a matter of trust Page 5 of 5		Date originally posted: 2021-02-26Permalink: https://blogs.lse.ac.uk/brexit/2021/02/26/future-british-european-security-relations-are-a-matter-of-trust/Blog homepage: https://blogs.lse.ac.uk/brexit/

Long read: future British-European security relations are a matter of trust

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Long read: future British-European security relations are a matter of trust

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