Scotland's Place in Europe: security, judicial co-operation and law enforcement

Chapter Four: Negotiations between the UK and EU

18. On the 19 March 2018, the UK Government and European Commission announced the publication of a partially agreed version of a draft legal text on the Withdrawal Agreement. This version of the text sets out the position reached on on-going co-operation in security, law enforcement and criminal justice proceedings for a number of key aspects. It was accompanied by an announcement that agreement has been reached in principle on the terms of a time limited transition.

19. During that transition period, the UK will no longer participate in EU decision making processes and will no longer have the right to opt in to new JHA measures unless invited to co-operate by the EU. Nonetheless, the EU has made clear that because the UK will continue to receive the benefits of membership of the single market and customs union, the UK must continue to respect EU rules during that period.

20. Following publication of the draft text, both the EU and the UK Government reiterated their commitment to agreeing this treaty by October 2018, alongside a political agreement on the future relationship. However, as the Commission has reiterated "nothing is agreed until everything is agreed", i.e. the transition is wholly dependent on the completion of negotiations as well as the agreement and ratification of final legal text on the UK's withdrawal.

21. Despite numerous requests to engage in joint working, the Scottish Government was not involved in the negotiations which resulted in the partially agreed draft legal text nor in the agreement in principle for having a transition period. Further, the Scottish Government was not informed of progress or the outcome of those negotiations ahead of publication. This is important for a number of reasons. For example, the draft of the text dated 19 March 2018 explicitly states that beyond the transition period the UK's participation in the European Criminal Records Information System ( ECRIS) - the computerised system for the exchange of information on criminal convictions - will be limited.

22. The Scottish Government should have been involved in the discussions around ECRIS. It is used daily by Police Scotland for the reciprocal sharing of information with EU Member States. In 2017 – 7,714 EU requests were sent by Police Scotland, of which 763 came back with a match, i.e. the system produced a criminal record history of previous convictions. ECRIS is being expanded to obligate EU Member States to exchange criminal conviction information on 'third country' nationals convicted of offences in the EU. It is also used to facilitate the exchange of criminal records information when requests are made by employers for EU nationals applying to work in regulated activity with children.

23. The exchange of information between the UK and EU Member States in connection with recruitment into work with children could be brought to an end. Disclosure Scotland ( DS) makes use of the arrangements under Directive 2011/93 to gather information about EU nationals seeking such work in Scotland. DS also responds to requests from Member States about individuals who are disqualified from working with children under the law of Scotland and who are seeking to do that work elsewhere in the EU. The procedures established by ECRIS are used for these exchanges. The loss of ECRIS access could have a negative impact on recruitment practice.

24. The impact of Brexit on ECRIS may mean the loss of access to EU-wide criminal records of UK citizens and the inability to implement public protection provisions to manage any returning criminal in the community and reduce their risk to society. Courts would be unable to take into account previous offending when sentencing an EU citizen in the same way that they do when a UK citizen is being sentenced (which ensures a consistency in sentencing and a fairer application of justice).

25. If the UK lost access to ECRIS, the default fall-back position would be the Council of Europe Convention on Mutual Assistance in Criminal Matters, 1959. This Convention sets out some general obligations for signatories to share information on criminal records, but it is much more limited than ECRIS. There are no timeframes within which Member States would have to respond to requests, and there is no provision for enforcement, so the UK might not receive a response to some requests at all. There is also no set method for sharing information, so the process would be much more laborious and expensive: for example, requests would need to be sent manually, and the information received would not be in a standard format. By contrast, ECRIS is an efficient automated system; uses a standardised format which translates offences to those recognised in the UK; and is governed by strict time frames within which an EU Member State is required to respond. Interpol could potentially be used to issue requests, but it is not designed to deal with the high volumes of requests currently sent through ECRIS, and would not provide the same capabilities as ECRIS.

26. A number of Member States will not normally extradite their own nationals, but will do so under the European Arrest Warrant ( EAW) system. This is one of the benefits of the EAW, but it may be lost even during the transition period. The draft text expressly provides that the EU may, on behalf of Member States which have an objection to the extradition to their own nationals, declare that during the transition period those Member States will not extradite their own nationals under the EAW.

27. On the 9 May, the UK Government published a presentation Framework for the UK – EU Security Partnership ^[13] . It sets out the UK Government's vision for the Future Security partnership and proposes a framework for co-operation with the UK as a " third country" ^[14] for which there is currently no precedent. The proposal includes a new internal security treaty to provide the legal basis for on-going co-operation, using a range of existing legal precedents to enable continued co-operation on the basis of existing JHA measures. However, the document recognises that being outside the EU would severely hamper co-operation on ECRIS, Europol and Eurojust and says that: "In some cases, for example ECRIS, there are no viable existing 3rd country alternatives" while for others the alternatives are "sub-optimal resulting in capability loss".

28. The presentation acknowledges there will need to be an appropriate form of dispute resolution put in place across all areas of the future UK and EU relationship in which both parties have confidence, but there is no further detail as to what this mechanism will look like.

29. There is no specific reference in the framework to Scotland's separate legal system and our independent law enforcement and criminal justice policy and operations. It simply refers to the UK's future partnership with the EU delivering for "'the whole United Kingdom". The Scottish Government was not involved in the preparation that resulted in the framework document or the negotiations that it was used for. Nor were we informed ahead of its publication.