Agreement on Law Enforcement and Judicial Cooperation in Criminal Matters
27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.
28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.
29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.
30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK’s legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.
31. Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.
32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.
33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism. Data exchange for law enforcement purposes and operational cooperation between law enforcement authorities 34. The agreement should cover the following operational capabilities.
Exchange of criminal records
35. The agreement should provide for the fast and effective exchange of criminal records data between the UK and individual EU Member States, recognising that this is an important tool for investigations, prosecutions and sentencing, as well as for wider community safety.
36. To that end, the agreement should provide for capabilities similar to those provided by the European Criminal Records Information System (ECRIS). ECRIS is a secure, automated, electronic system providing for exchange of criminal records information held on countries’ own national databases within specific deadlines.
37. These arrangements should draw on precedents for similar networks of national databases for law enforcement purposes between the EU and third countries (see Prüm below). Exchange of DNA, fingerprints and vehicle registration data
38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.
39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU. Passenger Name Record (PNR) data
40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.
41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.
42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement. Real-time alerts on persons and objects that are wanted, missing or otherwise of interest
43. The agreement should provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons. This capability is currently provided by the SecondGeneration Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.
44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.
45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU. Operational cooperation between the UK and Europol
46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a The Future Relationship with the EU | The UK’s Approach to Negotiations 27 number of non-EU countries, including the US, through dedicated third country arrangements.
47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.
Judicial Cooperation in Criminal Matters
48. The agreement should cover the following areas. Operational cooperation between the UK and Eurojust
49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.
50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust. Extradition
51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant. Mutual Legal Assistance including asset freezing and confiscation
52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes. Arrangements on the transfer of prisoners
53. The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU Member States, enabling prisoners to be moved closer to home and be rehabilitated in the community to which they will be released. These should build and improve on arrangements provided by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols, and could include time limited processes.
Agreement on Asylum and Illegal Migration (AIM)
54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.
55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems. Security of Information Agreement
56. The UK is open to negotiating a Security of Information Agreement covering classified information, if the EU requires it. The agreement should provide a framework and set out the mechanisms for the UK and EU to exchange classified information. Such an agreement would facilitate, but not mandate, the exchange of classified information. It should be in line with the EU’s existing third country arrangements in this area with a number of countries.
57.The UK is open to exploring cooperation between the UK and EU in other specific and narrowly defined areas where this is in the interest of both sides, for example on matters of health security.
Part 3: Technical and other processes beyond the scope of the future relationship negotiations Third country listing and similar procedures for animals, plants and foodstuffs
58. There should be rapid agreement that the UK and the EU will list each other for trade in live animals, animal products, seeds and other plant-propagating material, other agri-food goods requiring listing for trade, as well as for non-trade related movements including: eels, pet travel, recognition of UK breeding bodies, Approved Inspection Service status for export of fresh fruit and vegetables, notification of UK veal competent authority and operators, eggs equivalence, optional indicators for poultry meat, wine certification, and hops.
59. The UK will have an independent policy on data protection at the end of the transition period and will remain committed to high data protection standards.
60. To maintain the continued free flow of personal data from the EU to the UK, the UK will seek ‘adequacy decisions’ from the EU under both the General Data Protection Regulation and the Law Enforcement Directive before the end of the transition period. These are separate from the wider future relationship and do not form part of trade agreements. This will allow the continued free flow of personal data from the EEA States to the UK, including for law enforcement purposes. The European Commission has recognised a number of third countries globally as providing adequate levels of data protection.
61. On a transitional basis, the UK has allowed for the continued free flow of personal data from the UK to the EU. The UK will conduct assessments of the EEA States and other countries under an independent international transfer regime.
62. The UK will also seek appropriate arrangements to allow continued cooperation between the UK Information Commissioner’s Office and EU Member State data protection authorities, and a clear, transparent framework to facilitate dialogue on data protection issues in the future. 3
Equivalence in Financial Services
63. The UK and the EU have committed to carrying out unilateral equivalence assessments for financial services, distinct from the CFTA. The fact that the UK leaves the EU with the same rules provides a strong basis for concluding comprehensive equivalence assessments before the end of June 2020.
Civil Judicial Cooperation
64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.