The House of Lords EU Security and Justice Sub-Committee, sitting remotely on Tuesday 26 January 2021, heard evidence from three current and former law enforcement officials. Vice Admiral Sir Charles Montgomery KBE, former Director General of UK Border Force, Steve Rodhouse, Director General (Operations) at the NCA and Assistant Chief Constable Peter Ayling of the National Police Chiefs’ Council, gave evidence to the Committee as part of its inquiry into the impact of the UK-EU Trade and Cooperation Agreement (‘TCA’) on law enforcement cooperation.
The overall assessment of the deal by the witnesses was positive and relief was expressed at the avoidance of a ‘no-deal’ outcome. Mr Rodhouse emphasised the necessity of reaching a deal for the NCA’s operations, almost all of which involve either people, data or money moving across international borders. He stated that the deal overall is a good one and largely maintains the tools that were available to the UK as an EU Member State.
While both Mr Rodhouse and ACC Ayling praised the retention of many cooperation and data-sharing capabilities, the significance of the loss of access to the SIS II system, along with its real-time security alerts, and the UK’s fall back on the INTERPOL alert system was a key focus of the Committee’s questioning. Both witnesses stated that it had been the preference of their respective bodies to retain access to SIS II but sought to reassure the Committee that, at present, there does not appear to be a significant effect on operational capability. Whilst the UK has lost access to approximately 40,000 alerts on the SIS II system, it has access to a comparable number of alerts through the INTERPOL system and Mr Rodhouse stated his belief that there is a considerable amount of overlap in those alerts.
ACC Ayling acknowledged that the shift to INTERPOL may be slower and ‘clunkier’ and emphasised that the key point was the visibility of alerts. The primary risk factor in that respect is that the UK is now entirely reliant on EU Member States making use of the INTERPOL system to both share alerts with the UK and to receive alerts from the UK. The TCA provides the framework in which this can take place, and while anecdotal evidence was provided of an uptick in receipt of Red Notice alerts from certain EU Member States, it remains too early to assess the impact of the shift or the long-term approach of EU Member States to the use of the INTERPOL system.
ACC Ayling told the Committee that although the provisions in the TCA are to be welcomed, to ensure a smooth transition, it will be necessary for law enforcement to work closely with their EU counterparts to operationalise the new agreement. The TCA provides the framework for continued cooperation but the need to finesse policies and processes between law enforcement bodies to ensure effective implementation will be essential. For 18 months, the International Criminality Coordination Centre (‘ICCC’) has been working with UK law enforcement to enhance awareness and understanding of the operational changes and to provide training on new procedures that need to be followed. ACC Ayling expressed his belief that this process was being conducted reciprocally in EU Member States as they too adjust to meet the requirements of cooperation with the UK.
The witnesses confirmed for the Committee that the two key concerns raised when the UK announced its intention to opt-out of the European Arrest Warrant scheme, namely that the procedure might shift from one that is judicially-led to a political process and that the procedure may become slow and cumbersome, had been avoided. The witnesses emphasised the retention of most of the features of the EAW regime. In particular, the immediate power of arrest and time limits for surrender were welcomed by law enforcement. Mr Rodhouse, however, acknowledged that the position was not an exact replica and noted, by way of example, the introduction of the new nationality bar to extradition.
When pressed by the Committee on whether there had been a drop in alerts in relation to persons sought for extradition compared with the same period last year, ACC Ayling accepted that there was such a drop but emphasised that EU Member States are only now adapting their operational framework to take account of the provisions in the TCA and so it is too early to judge the success or failure of the new system. Further, there has been a significant drop in policing activity, stemming from the national lockdown measures in place in response to the Covid-19 pandemic, which inhibits meaningful comparison. ACC Ayling confirmed that as time goes on and more reliable data is available, this will be used to assess the performance of the INTERPOL system.
Other cooperation measures
The witnesses expressed largely positive views as to the UK’s continued capabilities in respect of the new data-sharing and Mutual Legal Assistance arrangements, as well as expressing confidence in the UK’s continued role in Europol. Mr Rodhouse described the new MLA arrangements as essentially an extension of what was already in place and welcomed the inclusion of timescales for cooperation. Unlike SIS II, where it was accepted there has been a loss in capability, the witnesses did not consider there to be any loss of operational capability in the exchange of biometric data, criminal records data or passenger name record data. Further, Mr Rodhouse expressed his confidence in the UK’s strong historical position in relation to Europol and the hope that it may still play a role in shaping the organisation’s goals on an informal basis.
When questioned about the risks of shifting to the INTERPOL system in light of the well-rehearsed arguments in relation to abuse of the Red Notice system by certain INTERPOL Member States, Mr Rodhouse stated that the move to using INTERPOL’s system does not remove any of the safeguards already in place for the assessment of alerts received. Under extradition legislation, there are judicial safeguards to weed out unmeritorious requests and before an alert is even acted upon, alerts are screened by the UK National Central Bureau for INTERPOL. He would not be drawn on the number of alerts that give rise to concerns.
Only time will tell
While the mood of the evidence session was described by the Committee as ‘reassuring’, much of the witness evidence was accompanied by the caveat that only 25 days had passed since the provisions of the TCA had been implemented in domestic law and, in the case of many EU Member States, new frameworks for cooperation have not yet been put in place. At this stage, it is simply too early to conduct a meaningful assessment of the impact of the changes.