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UK can join EU surveillance schemes with no parliamentary scrutiny, warns new report

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20 January 2022

The UK can join intrusive EU surveillance schemes including a pan-European network of police facial recognition databases with no need for parliamentary debate or scrutiny, says a new report published today by Statewatch.

The report examines the policing and security provisions of the EU-UK Trade and Cooperation Agreement (TCA), approved by MPs in December 2020 and MEPs in April 2021. [1]

Under the TCA, the UK has the ability to opt in to an extension of the ‘Prüm’ system, which enables cross-border searches of national police databases holding biometric and other data; [2] and a system for the mass surveillance and profiling of air passengers, which officials have indicated they are keen to extend to rail, road and sea transport. [3]

In December 2021, the European Commission published proposals to extend Prüm to include police facial recognition databases and “police records”, defined as “any information available in the national register or registers… for the prevention, detection and investigation of criminal offences”. [4]

The report warns that this could cover uncorroborated information as well as data on protesters and campaigners. The EU’s travel surveillance rules, meanwhile, are currently the subject of a legal challenge at the Court of Justice of the EU on privacy and data protection grounds. [5]

Decisions on whether to join extended versions of these schemes do not explicitly require parliamentary scrutiny or approval, warns the report, which explains how the legislation implementing the TCA grants the Home Secretary the power to alter the travel surveillance rules via secondary legislation, should any changes be made by the EU.

The UK’s rules on participation in the Prüm system may also be altered by secondary legislation. The report explains how, in 2019, without consulting parliament, the previous Conservative government removed safeguards to allow EU police forces to search DNA profiles gathered by police forces from suspects as well as people convicted of criminal offences. Parliament had previously agreed to UK participation in the system, provided that suspects’ data would be excluded from such searches, due to their civil liberties implications.

The TCA’s mechanisms for transparency and oversight of police and security cooperation are weak, says the report, which highlights that the UK government has so far shown little enthusiasm for either establishing a joint assembly between the Westminster and European parliaments – as required by the TCA – or for providing meaningful responses to members of the House of Lords who have sought further information on the new arrangements.

Tony Bunyan, Director Emeritus of Statewatch and a co-author of the report, said:

“The British state is one of the oldest ex-imperialist powers and is well versed in coping with the winds of change.

The UK walked out of the front door of a highly secretive EU only to reappear through the back door into an even more secretive permanent institution – the Partnership Council – in which the UK expects to expand its role over time.

It is Statewatch’s responsibility to track its every move and call it to account.”

Chris Jones, Executive Director of Statewatch and a co-author of the report, said:

“Many of the policing and security arrangements set out in the Trade and Cooperation Agreement do not take back control for anyone but government and state officials, which fits neatly with the current government’s plans to eliminate accountability measures and rights protections.

It seems unlikely that those who voted for Brexit were hoping for secretive new institutions that can sign the UK up for continent-wide surveillance systems with no democratic scrutiny.

Parliamentarians and the public must start asking hard questions of the government, which needs to go above and beyond the paltry transparency requirements set out in the TCA. The EU’s plan for a network of police facial recognition databases must be halted, and the UK should have no part in any such scheme.”

Contact

Chris Jones, chris [at] statewatch.org

Notes

[1] The report, Brexit: Goodbye and hello – the new EU-UK security architecture, civil liberties and democratic control, is available here.

[2] Under the TCA, the UK remains part of the EU’s ‘Prüm’ system, a network of national law enforcement databases containing DNA, fingerprint and vehicle registration data. Article 541 of the TCA says:

“In the event that the Union considers it necessary to amend this Title [on Prüm] because Union law relating to the subject matter governed by this Title is amended substantially, or is in the process of being amended substantially, it may notify the United Kingdom accordingly with a view to agreeing on a formal amendment of this Agreement in relation to this Title. Following such notification, the Parties shall engage in consultations.”

The text of the TCA is available here.

[3] The surveillance and profiling of air passengers is covered by the provisions of the TCA on ‘Transfer and processing of Passenger Name Record (PNR) data’. This is unverified data provided by airline passengers when they book travel tickets. PNR data – which can include an individual’s name, address, financial details, travel itinerary, baggage information and meal preferences, amongst other things – must be transmitted to law enforcement agencies so that they can cross-check it against databases and run it through profiling algorithms in the hope of finding ‘persons of interest’.

The TCA is accompanied by a joint political declaration that lauds the potential “operational value” of PNR data gathered from “modes of transport other than flights, such as maritime, rail and road carriers.” Such an extension has long been an objective of the EU, and was pushed by the UK when it was an EU member state. The declaration commits the two sides to “review, and if necessary, extend the agreement” on PNR to take into account any expansion of the EU travel surveillance regime.

[4] The European Commission’s December 2021 proposals to expand Prüm are available here.

[5] A European Commission evaluation of the Passenger Name Record (PNR) air travel surveillance system published last July said law enforcement authorities raised “serious concerns” about a lack of coverage of other modes of transport. The Commission said it would “conduct a thorough impact assessment” before any possible extension.

The evaluation is available here and an accompanying document here.

Filings for the case at the CJEU are available here and an assessment of the case here.