The UK’s post-Brexit policing pact with the EU on sharing DNA, fingerprinting and criminal records could be put at risk by Suella Braverman’s migration laws, a House of Lords committee has said.
Lady Hamwee, the chair of the Lords justice and home affairs committee, has written to the home secretary to say its members are “particularly concerned” that the new illegal migration legislation along with new data laws could lead to the “termination and/or suspension” of the security cooperation elements of the Brexit trade deal.
There are fears that the introduction of new migration laws could lead to a breach of the UK’s obligations under the European convention on human rights (ECHR), which underpins the trade and cooperation agreement (TCA).
Under the agreement, either side can suspend or terminate the security arrangements contained in part 3 of the TCA if the ECHR is disregarded by the other side.
“The committee is particularly concerned about the provisions relating to termination and suspension of part three of the TCA. Under certain scenarios, including the UK denouncing the European convention on human rights or being deficient in the domestic protection of the rights it contains, part three of the TCA can be terminated immediately and/or suspended (in whole or in part),” the peers wrote.
The warning has echoes of the position the UK found itself in when it threatened to override part of the Brexit withdrawal agreement with the Northern Ireland protocol bill. This plunged relations between the Brussels and London to a new low and the EU was ready to cancel the trade deal if the UK went ahead with the legislation.
The bill, which became law on 20 July, has been widely criticised as incompatible with the UK’s obligations under a string of international conventions including the ECHR. Earlier this year EU home affairs commissioner, Ylva Johansson, told Braverman that she considered the bill was “violating international law”.
One of the principal complaints is that refugees arriving in the UK on small boats would be put in detention and potentially sent to Rwanda and denied their legitimate right to any kind of legal assessment on a potential asylum claim.
Rebecca Niblock, a criminal litigation partner at the law firm Kingsley Napley said the suspension or termination of the justice chapter in the trade deal would have significant consequences for policing crime in the UK.
“The illegal migration act enacts various provisions which, if applied, would lead to a violation of a person’s ECHR rights, and the unintended consequence of this may be that the UK’s capacity to fight cross-border crime is seriously impeded.”
With so much criminal activity now an international enterprise, maintaining access to EU databases of fingerprints, DNA and criminal records was critical to the pursuit of justice, she added.
If other EU countries felt a suspect’s rights would not be protected, attempts to extradite fugitives back to the UK could also be at risk, Niblock said.
In a joint blogpost with Elspeth Guild, a migration lawyer and academic, she said it would be “difficult for the EU institutions not to notice” the new laws.
“Bearing in mind the level of criticism of the act both within the UK, at the Council of Europe and by UN agencies, it seems unlikely that the EU will not find itself called upon to use its powers under the TCA to suspend security cooperation in light of this new development,” they wrote.
Guild regularly advises the European parliament, Council of Europe and the European Commission on the legality of migration matters.
The Home Office has been approached for comment.
