Guy Mansfield: Now we must work with the EU to make Britain more safe and secure

19 Feb

Lord Sandhurst is a member of the Conservative European Forum (CEF) Justice and Home Affairs policy group. He is a past Chairman of the Bar of England and Wales (as Guy Mansfield QC), and current Chair of Research of the Society of Conservative Lawyers.

As Conservatives, it is our duty to ensure that the UK is neither less safe nor less secure outside of the EU. Both parties must think again and strengthen cooperation.

Understandably, political and media attention has been focused on the trade elements of the deal agreed between the UK and the EU on Christmas Eve. Now that we have left the European Union, it is time to review carefully all aspects of the Trade and Cooperation Agreement (TCA) to ensure it satisfies all of UK’s needs, beyond simply trade, tariffs and quotas.

My paper published by Conservative European Forum’s Justice and Home Affairs policy group – The Trade and Cooperation Agreement: The Justice and Security challenges ahead – examines, in detail, part three of the TCA, which covers UK-EU security cooperation.

Regardless of one’s view on Brexit, we can all agree, especially as Conservatives, that we do not wish to see the UK less safe or less secure as result of our changed relationship with the EU.

The paper raises a number of concerns. The statement released by the Home Office immediately following the agreement was optimistic. In fact, since 31st December 2020, the UK has been at a disadvantage. We have lost tools ‘to tackle serious crime going forwards’ and to ‘bring criminals to justice.’ The new extradition system will be less efficient.

First, the UK no longer has direct, real time access to two important centralised databases – SIS II, which holds records of stolen identity documents and wanted people, and VIS, which stores fingerprints and digital photographs of those applying for a Schengen visa. In 2019, UK police checked SIS II no fewer than 603 million times. These databases have been vital for UK police forces, notably enabling them to check if anyone is wanted or missing across the EU.

Secondly, we have lost our membership of Europol. As a consequence, the UK’s police forces have lost real time access to its databases. In fighting crime, speed is crucial. Crime and criminals are constantly evolving to evade detection. The UK will no longer be a member of Europol’s management board; it will not be able to exert the same influence over its future focus or prioritise areas of threat. As a non-Member State, the UK has lost the right to initiate operations such as Joint Investigation Teams.

Thirdly, the UK has left the European Arrest Warrant (EAW). This will result in slower and more complex extradition processes. Henceforth UK and EU member states can, if they choose, refuse to execute an arrest warrant for a number of reasons:

  • In non-terrorist cases, on political grounds (the ‘political’ exception);
  • On grounds that the requested person is a national of that executing state (the ‘own national’ exception).
  • On the ground that the crime for which the UK seeks extradition is not a crime in the state from which extradition is sought (‘double criminality’). For such countries to agree to extradite, the crime must be an offence in that jurisdiction.

The political exception may well be an improvement. Not every member state is scrupulous in ensuring that decisions to prosecute are free from political interference.

But the reintroduction of the own national exception is bad news. Germany, Austria and Slovenia have already indicated that they will not extradite their own nationals. There are potentially a further 13 Member States which may likewise refuse to surrender their nationals. The UK will, in such instances, have to provide its evidence to such Member State, which (alone) will then decide whether to prosecute. Any trial will be conducted, if at all, in the Member State.

The double criminality requirement will slow down and even stop extraditions to the UK where the issue is raised. That too is bad.

It is not all bad news. The UK will continue to receive Passenger Name Record (PNR) data in advance of all arrivals by air. We shall continue to enjoy access to the Prüm system (which makes accessible to EU Member States and the UK all national databases which store DNA profiles, fingerprints and vehicle registration data) and the European Criminal Records Information System (ECRIS), which permits access to criminal records of individuals on national databases across the EU. These are not gains; they simply maintain the status quo.

It is important to emphasise that the losses in security cooperation disadvantage the EU too. This is not a one-way street. The UK’s diminished role in Europol will create reciprocal dis-benefits to the EU. The UK’s loss of access to the EU systems means the EU loses access to the UK’s systems.

Our conclusions are intended to be constructive. However, it is plain that we have lost important tools for tackling crime. Looking to the future, the UK and EU member states must address further the security needs of our populations to go about daily lives free from avoidable harm. I urge both sides to continue to work together to strengthen security cooperation. The price of failure is too high, not just for the UK, but for the EU as well. This is not a debate about sovereignty, trade or tariffs. It’s about security. As Conservatives, the security of the UK and its citizens must always come first.

David Gauke: The UK, the EU, vaccines – and future relations. Here, jingoistic politicians. There, Trumpian ones. Bodes badly.

29 Jan

David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the recent general election.

Will the new, post-Brexit relationship between the UK and the EU run smoothly? Will the Trade and Cooperation Agreement (TCA) provide a foundation on which a closer relationship is constructed (albeit still much more distant than the one we had), or will it provide the means by which the UK diverges from the EU?

The first few weeks after the transition period have confirmed many of the predicted difficulties of a hard Brexit. Businesses have struggled with red tape and trade with the EU is much reduced.

Whatever the Prime Minister claimed, the TCA does not address non-tariff barriers in the same way as the Single Market, and the erection of trade barriers will have a long-term economic impact. Northern Ireland is adjusting to a border in the Irish Sea, and it must finally be occurring even to the DUP that campaigning for Brexit and against a deal that kept Northern Ireland and Great Britain closely aligned has not served the Union well.

Given the obvious problems of Brexit and that, by the time the transition period ended polls showed that a clear majority of the public thought the country had made a mistake in 2016 in voting to leave, one might expect that, over time, we would begin to move to a more collaborative relationship. The likelihood, however, is that we will go the other way.

There are a number of political reasons for this. Perhaps most importantly of all, the political imperative for the Conservative Party is to maintain the support of those Leave-voting Red Wallers who delivered the Prime Minister his majority.

This week saw the Conservative Group for Europe relaunched as the Conservative European Forum. The CEF’s Chairman, David Lidington, delivered a characteristically thoughtful, well-informed and pragmatic speech setting the case for building a constructive relationship with the EU.

I hope the Government follows his advice, but I fear it won’t. If the Government’s approach to the EU is thoughtful, pragmatic and constructive, this is not going to get the patriotic juices of Workington Man flowing. There needs to be rows, conflicts and Brussels-bashing from Boris Johnson whilst portraying Labour as the party of ‘rejoiners’. ‘Keep Brexit Done’ will be something we could hear a lot in 2024.

To nullify this risk, there is every sign that Keir Starmer will want the next general election to be about almost anything other than the EU. The most straightforward way for Labour to win more seats is to win back the Brexit-voting Red Wall.

The absence of much opposition from Labour to a hard Brexit position might create an opportunity for the Liberal Democrats to articulate a pro-European one that will cut through to the public. But betting on a Lib Dem revival has not proved to be a profitable pursuit in recent years. In any event, pro-European votes have tended to be split amongst many parties and heavily concentrated in safe seats whilst Brexit votes are most efficiently distributed and, as long as Nigel Farage can be kept at bay, will vote Conservative.

The upshot of all this is that even, if the public continues to become more pro-European in the way that it has in the last five years (largely because of demography), the chances of an explicitly pro-European Government being elected in 2024 remain slim.

Nor should we discount the possibility that UK opinion becomes more hostile towards the EU in future. Even the day-to-day negotiations with the EU which we are now condemned to – endlessly having to make judgements as to how we balance ‘sovereignty’ with access to our most important market – can have a deleterious impact on how the EU is seen.

A bigger trading partner willing to leverage its strong negotiating position to protect its interests can be an unlovely sight, as the Swiss discovered after narrowly rejecting EU membership in 1992, since when support for joining the EU has fallen sharply.

Within weeks of the transition period coming to an end, we have faced more than the day-to-day challenges. The row between the European Commission and AstraZeneca is turning into a crisis that could have very serious implications for UK/EU relations.

Even before the recent difficulties with the AZ supplies, plenty of Brexit supporters were claiming that the UK’s success in rolling out the vaccine is a vindication of our departure from the EU. The reality is that at the relevant time, we were still required to comply with EU rules and everything we did on vaccines we could have done as EU members. Nonetheless, it is true to say that in these particular circumstances, going it alone has served us well. It is not surprising some are describing this as a benefit of Brexit.

The case, however, needs to be made that what worked in the very specific circumstances of finding vaccines in a pandemic applies elsewhere. It is not obvious that there is a read across from our approach to vaccines to other challenges we will face, not least because we are not yet capable of cloning Kate Bingham.

Not every decision that this country has taken during the pandemic has been quite so world-beating, and there is also a risk that we learn the wrong lessons from the vaccine issue and, in the pursuit of self-sufficiency in a whole host of areas, become increasingly protectionist.

But the immediate danger of protectionism comes from the EU in its export controls on vaccines. Understandably, EU citizens are concerned about the slow rollout of the vaccine and the response of the European Commission has been to panic, lash out and distract.

The news that AstraZeneca is unable to deliver the number of doses hoped for has resulted in demands that it diverts the product committed to the UK. Notwithstanding the statements made by EU Commissioners, the publication of the agreement between the EU and AZ reveals that the contractual basis of such demands is, at the very least, questionable.

So its next step is to control exports to the UK. Yesterday, this even involved triggering Article 16 of the Northern Ireland Protocol enabling the EU to block exports from the Republic of Ireland to Northern Ireland.  This is supposed to be a “last resort” mechanism, but its use was premature, provocative and sets a precedent that will be cited by those unwilling to accept the consequences of the Protocol.  The Commission has now seen sense and backed off.

There is an argument that, if the EU is throwing its weight around in order to prioritise the interests of the citizens of member states, this suggests that it is a good idea to be a member state. However, it is an unattractive argument that is, at best, ‘right but repulsive’.

Medicine supplies rely on internationalism and interdependence, and vaccine nationalism will mean that we all end up as losers. The UK’s response to the strident language coming out of the EU has been strikingly mature and measured. On this issue, at least, it has wisely sought to de-escalate tensions.

Let us hope that this is what happens, that the behaviour of the EU is performative and that the practical implications of yesterday’s announcement are limited. But it might not be.

The fundamentals of the UK’s need for a constructive relationship with the EU have not changed. It was not in our national interest to leave the EU; it is in our interests to create a new, special relationship. Such an outcome is not inevitable but the Trumpian behaviour of the EU in recent days makes that task all the harder.