The National Security Ramifications of a No Deal Brexit: Database Access

The National Security Ramifications of a No Deal Brexit: Database Access

“The UK’s ability to prevent, prepare for, and respond to risks is enhanced by its ability to share data and expertise, exchange information, and collaborate closely with its nearest neighbours. Brexit presents a significant threat to both that information exchange and continued collaboration.”

by Matthew Wentworth

At present standing, with one deal presented by British Prime Minister Theresa May having already failed to pass through the Commons, the consequences of a no deal Brexit are looming. It is a scenario which many Members of Parliament expressly wish to avoid as leaving the European Union (EU) without a deal would have ramifications for the United Kingdom’s (UK) transnational policing, counter-terror operations, national border control, and forensic investigative capabilities. Each of these areas will be directly and immediately affected in the event of a no deal Brexit due to the specific instruments that the UK stands to lose access to and the effect this will have on its ability to ensure national security.

Without an agreement the UK would leave Europol and UK police forces would lose use of the European Arrest Warrant (EAW), access to Europol’s Information System, and the EU Internet Referral Unit[1]. Not only this but the National Crime Agency would lose access to the EU’s network of Financial Intelligence Units (based at Europol) and the Bomb Data System[2]. Back in 2016 Mrs May cited the EAW when she stated that ‘there are definitely things we can do as members of the European Union that I think keep us more safe’[3]. Informing her view was the fact that in the period 2004–2016 the EAW enabled the UK to extradite 7000 individuals accused or convicted of criminal offences in other EU countries[4]. In the past five years alone, 5000 people have been extradited to EU member states using the EAW[5] highlighting its increasing importance. The prospect of the UK losing rights to the use of EAWs after withdrawing from the EU, and by extension Europol, would mean reverting to more costly and time-consuming measures due to the sudden absence of provisions for mutual recognition of judicial orders[6].

It is well understood that the UK’s lack of access to these instruments would serve neither the UK nor their European partners and whilst examples do exist of bespoke arrangements with third-states, leaving Europol would mean that at best Britain would have to settle for non-voting observer status, forfeiting the right of British officers to lead Europol teams[7]. The argument often presented by leave supporters from all parties that post-Brexit access to the EAW will be straightforward discounts the question of legal oversight of the European Court of Justice (ECJ)[8]. Mrs May has already conceded that any prospect of the UK’s participation in EU agencies such as Europol would mean respecting the remit of the ECJ[9]. This point is entirely at odds with what backbench Commons Members, specifically those of the European Research Group, will accept.

Instead, pro-Brexit Members of Parliament claim that the UK’s contribution to Europol databases as well as the expertise they provide in operations is a big enough bargaining chip to secure the UK access to instruments post-Brexit. Denmark, for example, is able to exchange data with Europol as a third-state, but this is only facilitated through the time-consuming process of Danish officers contacting Danish-speaking Europol staff and being granted the requested information on a case-by-case basis. Denmark does not have right of access to Europol data. The applicability of this arrangement to the UK is extremely doubtful, the EU-Danish agreement depends upon Denmark’s continued membership of the Schengen area, domestic legislative implementation of EU data protection laws, and acceptance of the jurisdiction of the ECJ. These conditions are unworkable for the UK since they undermine many facets of the decision to leave the EU[10].

National border control and customs security will be similarly affected with the updated Schengen Information System (SIS II) and the European Criminal Records Information System (ECRIS) being two further tools that the UK will lose in a no deal Brexit scenario[11]. The SIS II supports external border control and law enforcement cooperation across 22 participating EU countries (plus four associated countries). The staggering extent of its use amounts to it having been consulted 2.9 billion times in 2015[12]. In 2017 Britain alone checked the system over 500 million times in relation to searches for people and objects wanted for law enforcement purposes[13].

ECRIS is a decentralised system utilised by the majority of EU members and provides judges with the information on criminal records of persons which transcends state borders[14]. The government has proposed continued participation in this system, recognising that the UK relies on it for the effective management of violent and sexual offenders. This reliance is reflected in the fact that the UK sent and received over 163,000 requests and notifications for criminal records just in 2017, amounting to over 3,000 a week or 600 requests and notifications to and from the EU per working day[15]. Continued access to both SIS II and ECRIS is of the utmost importance for continued effective law enforcement yet it would require a unique agreement as, to date, there are no examples of access by non-EU or non-Schengen countries in either case[16]. Iceland, Liechtenstein, Norway, and Switzerland have access to SIS II but all are members of the Schengen area[17]. Politicians and academics alike have pointed to these countries as evidence that the UK will be able to access similar databases after it leaves the EU without recognition of the criteria it will have to fulfil as a third-state to do so. It currently takes six days to determine the domestic criminal convictions of EU nationals visiting the UK, post-Brexit the process could take up to ten times longer[18].

Similar time-delay concerns abound when considering the forensic investigative capabilities of the UK and the removal of access to both the European Asylum Dactyloscopy Database (Eurodac), and the Prüm Framework. In 2016 then Home Secretary Mrs May described the Prüm Framework (a cross European agreement to search DNA and fingerprint databases) as ‘a tool which hugely increases the reach of UK law enforcement’[19]. To have the same accessibility to both Prüm and Eurodac (a mechanism for sharing fingerprint data for asylum and law-enforcement purposes[20]) following a no deal Brexit, the UK would need to negotiate individual agreements with each EU government. The importance of continued access to the Prüm Framework has been challenged due to the fact that equivalent manual requests can be made through Interpol. The reality is that UK police forces sent 69 DNA profiles abroad in 2014-15 using Interpol, whereas 9,931 profiles were sent in less than six months during a pilot of the Prüm system[21] demonstrating that requests through Interpol are not an equitable comparison to the capability facilitated by Prüm.

All these platforms and information sharing systems are mutually beneficial to participating countries and many Brexit fears are exacerbated by the fact that the UK is both a large contributor and consumer of the information held and shared. What is often not considered however is that some mentioned above largely contain information on only convicted criminals rather than terrorist suspects. Classified or secret information on terror subjects, or information on counter-terror operations, are not shared on some databases because they are not sufficiently advanced to host intelligence above a classification level of “confidential”[22]. Intelligence relating to terror suspects and operations is contained on national security databases and are therefore shared between individual countries on a “need to know” basis, something that is not currently set to change after the UK leaves the EU. In the absence of a deal however it is possible that EU countries will demand proof of the UK’s willingness to recognise the rulings of the ECJ if it wishes to maintain current levels of counter-terrorism co-operation. Failure to offer this assurance could lead to renewed concerns amongst Member States about mass surveillance by the UK government and a decrease in the aforementioned co-operation.

The government has in-part identified non-EU mechanisms that exist to replace a proportion of the apparatus identified above but none would provide the same level of capability as those available in either a deal or remain scenario[23] meaning they would increase pressure on UK security, law enforcement, and judicial authorities. The fall-backs are slower, more bureaucratic, and ultimately less effective. The importance of introducing measures to combat these national security concerns is recognised by the government as evidenced by their assertion of the need to maintain, deepen, and strengthen operational and practical cooperation with the EU through an adequacy agreement. Given that over three-quarters of the UK’s data flows are with EU countries[24] it is certainly true that the absence of a deal will inevitably mean that the exchange of personal data for law enforcement and criminal justice purposes would be impacted[25]. UK capabilities in cross-border policing, counter-terror operations, national border control, and forensic investigative capabilities stand to be severely disadvantaged.  The uncertainty and instability that Brexit is causing in the information sharing and transnational policing realms stand to be exploited by terrorists and organised crime cells. Both the EU and the UK would be negatively affected by the immediate operational disruption and security implications[26] potentially affecting the political stability of all concerned.

1.   de Vries, G. (2018) A hard Brexit will see criminals taking back control. LSE Brexit  Blog. Available at: http://blogs.lse.ac.uk/brexit/2018/03/12/a-hard-brexit-will-see-criminals-taking-back-control/ [Accessed 4 Dec. 2018]. 
2.  ibid.
3.  Mason, R. (2016) Leaked recording shows Theresa May is 'ignoring her own warnings' on Brexit. The Guardian. [online] Available at: https://www.theguardian.com/politics/2016/oct/26/leaked-recording-shows-theresa-may-is-ignoring-her-own-warnings-on-brexit [Accessed 6 Jan. 2019].
4.  House of Lords (2016) Leaving the European Union: Foreign and Security Policy Cooperation. London: Her Majesty's Stationary Office.
5.  May, T. (2016) The UK, EU and our place in the world. Institute of Mechanical Engineers, London.
6.  Cabinet Office (2018) National Security Capability Review. London: Her Majesty's Stationary Office.
7.  de Vries, “A hard Brexit”.
8.  Duke, S. (2018) Will Brexit Damage our Security and Defence?: The Impact on the UK and EU. Cham: Springer Nature.
9.  de Vries, “A hard Brexit”.
10.  House of Commons European Scrutiny Committee (2017) Third-Second Report of Session 2016–17. London: House of Commons.
11.  Inkster, N. (2016) Brexit, Intelligence and Terrorism. Survival. 58(3), pp.23-30.
12.  House of Lords, Leaving the European Union, p.17.
13.  European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (2018) SIS II – 2017 Statistics. Tallinn: eu-LISA.
14.  Duke, Will Brexit Damage our Security and Defence?, p.62.
15.  National Crime Agency (2017) Historical European Arrest Warrants statistics: Calendar and Financial year totals 2004 - May 2016. London: National Crime Agency.
16.  Duke, Will Brexit Damage our Security and Defence?, p.68.
17.  Centre for European Policy Studies (CEPS) (2018) Criminal Justice and Police Cooperation between the EU and the UK after Brexit: Towards a principled and trust-based partnership. [online] Brussels: CEPS. Available at: https://www.ceps.eu/system/files/TFR_EU-UK_Cooperation_Brexit_0.pdf [Accessed 6 Dec. 2018].
18.  Inkster, “Brexit, Intelligence and Terrorism”, p.31.
19.  House of Lords (2015) Hansard. col. 1637. Available at: https://publications.parliament.uk/pa/ld201516/ldhansrd/text/151209-0002.htm [Accessed 10 Dec. 2018].
20.  Duke, Will Brexit Damage our Security and Defence?, p.66.
21.  Cabinet Office, National Security Capability Review, p.6.
22.  House of Lords, Leaving the European Union, p.8.
23.  Doffman, Z. (2018) Brexit Chaos: Why It Is A Major Terrorism And Security Risk. Forbes. [online] Available at: https://www.forbes.com/sites/zakdoffman/2018/11/15/brexit-chaos-why-it-is-a-major-terrorism-and-security-risk/# [Accessed 5 Jan. 2019].
24.  Duke, Will Brexit Damage our Security and Defence?, p.69.
25.  Cabinet Office, National Security Capability Review, p.18
26.  Duke, Will Brexit Damage our Security and Defence?, p.69.

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