Don't threaten to cut intelligence ties in Brexit talks, UK warned

The British government should steer clear of using Britain’s crime-fighting and espionage expertise as a bargaining chip in Brexit negotiations, a leading MEP has said.

Claude Moraes, a Labour MEP for London, who chairs the European parliament’s influential civil liberties, justice and home affairs committee, said the UK would not be able to withdraw from cooperation on security and defence, because working with European neighbours benefitted both sides.

“It is not going to be a question of politics, it is a question of reality,” Moraes said.

“[Security] is an area of strength for the UK, but it should not be overstated in the negotiations, because we would be understating the contributions of other countries and many of these things can be mutually beneficial.”

Theresa May – who before becoming prime minister had been the longest-serving home secretary of modern times – delivered a veiled warning to EU governments last month that security cooperation could suffer if the UK got a bad deal. Announcing her Brexit white paper, the prime minister said Britain wanted “to be a good friend and neighbour in every way, and that includes defending the safety and security of all of our citizens”. Adding a caveat, she warned that “a punitive deal” would be “an act of calamitous self harm for the countries of Europe”.

Moraes said it wasn’t feasible for the UK to threaten to cut intelligence ties that could be used to fight terrorism and track down foreign fighters. “You can’t get into the situation where you threaten to withdraw intelligence assets that might be shared across the continent. You can’t just easily withdraw cooperation because something else has happened in the negotiations.”

The MEP was speaking to the Guardian as the European parliament prepares its advice for the EU’s 27 governments, aside from Britain, before the Brexit negotiations.

First elected in 1999, Moraes has been home affairs committee chair since 2014 and was re-elected in January with overwhelming support – despite a few calls for British MEPs to be booted out of top jobs. “The kind of negativity people predicted [for the British] hasn’t happened and that is extraordinary.”

He has since been advising the EU’s lead Brexit negotiator, Michel Barnier, on the array of intricate and politically charged issues his committee works on, spanning from data protection laws to the European court of justice.

He argues that the UK government should accept the legal authority of the European court of justice in a transition deal. Doing so would solve the problem of pending British cases at the court.

“The problem is the UK may not want that because of the way the ECJ has become a political football.”

European politicians have lined up to say the UK must accept the European courts as part of any transition deal.

Moraes is also urging the British government to wake up to the difficulties of achieving May’s desired “frictionless border” with Ireland. The government has “completely understated” the concern over border controls once Britain leaves the customs union. “If we are going to have a so-called hard Brexit, there will be some element of checks,” he said.

The British government will also have to devise new ways of allowing British police to share and access data with their European counterparts.

There is no precedent for a country outside the European free trade area to be a full member of the EU police agency, Europol, or gain complete access to the Schengen information system (SIS), a vast trove of 64m pieces of data, including information on 35,000 criminal suspects and 88,000 missing people.

The MEP thinks it would be possible for the UK to strike association agreements for these and other police databases, but warns these deals “don’t just happen” and are “not equal to full membership, they come with disadvantages”. Negotiations are likely to be complicated by the British government’s “theological” determination to be free of EU institutions at all costs, he suggested.

The British government’s desire to “take back control” would also be tested when it comes to data privacy. The UK would have to apply to the European commission for “adequacy status” to allow financial and personal data to move unimpeded across the continent. “We are not an island in the sense of data flows,” Moraes said. “The commission would have to examine our data protection law and if it doesn’t offer equivalent protection to the [EU] data protection regulation, then we have a problem.”

He pointed to the difficulties faced by the US, when its “safe harbour” pact on data protection with the EU was struck down by the ECJ, throwing Google, Facebook and thousands of other companies into legal limbo. The pact has since been replaced by the new “privacy shield” agreement, which puts stronger duties on American companies to protect EU consumers.

“[Safe harbour] collapsed because the US data protection standards were so much lower than the EU’s,” he said. “The UK will have to come up to quite high standards.”

His recommendations will feed in to the European parliament’s position on Brexit, which MEPs are expected to vote on in April, soon after the UK starts the EU exit process.

The EU’s other 27 national governments are the ultimate arbiters of the UK’s fate, but the parliament’s right of veto over the final deal gives it a blunt but powerful tool to influence the outcome.

“The 27 and the one [the UK] are the key players,” Moraes said. “But we [the European parliament] have clear-cut, undeniable, unambiguous skin in the game. We vote yes, or we vote no and that transforms the role of the parliament.”