UK-EU Intelligence Information Sharing after Brexit
Chiara Graziani (University of Genoa)
Intelligence information sharing is a crucial issue in the Brexit negotiations. The most recent stance of the UK government on EU-UK security cooperation, of which intelligence information sharing is part, was expressed in the government “Future Partnership Paper”, published in September 2017, and reinforced at the Munich Security Conference in February 2018. In Munich, Prime Minister Theresa May stated that, in light of the constant need to cope with terrorism and other very serious threats to security, the UK’s current policing and security cooperation with the EU should be maintained.
As a matter of fact, the main body performing the support and coordination of intelligence gathering and sharing among EU Member States is Europol. It provides information exchange through a very sophisticated and secure platform (SIENA), as well as intelligence and forensics analysis, over recent years highly focused on cyber-intelligence.
The UK has historically offered a major contribution to Europol policies, projects and operations. The latest available data estimated that in 2016 it was the highest contributor to serious crime intelligence analysis and the second highest contributor overall (the first being Germany). Additionally, the UK often leads Europol operational projects, but this will be no longer possible after Brexit.
Indeed, only EU Member States are entitled to membership in Europol, even though the Europol framework allows cooperation with non-EU partners. Notably, non-EU countries can be involved through strategic or operational agreements, but they cannot be given a formal say in Europol strategic choices, because they cannot sit on the Europol Management Board. Besides, non-EU partners have a different level of access to the Europol Information System (i.e. Europol’s main database), since they can only channel information and make inquiries, without enjoying direct access to this powerful source of information. It should be noted that, as Europol’s Executive Director, Rob Wainwright, commented during an oral evidence before the triggering of Article 50 TEU, although Europol has a number of operational agreements in place with non-EU countries (e.g. with Australia and the US), they were all concluded before the current Europol Regulation came into effect on 1 May 2017. Therefore, the UK would be a “pioneer” in entering into an agreement as a third country according to a procedure that has never been employed. Specifically, Europol can conclude a deal with a third country only if the latter has previously signed an international agreement with the EU including a “Justice and Home Affairs” clause or, alternatively, if a Commission adequacy decision on such country’s level of data protection has been issued.
The pattern described above is the so-called third country model and sets the ordinary steps that a non-EU country has to follow if it wishes to engage in Europol cooperation. However, it should be borne in mind that the history of Europol-third country relations also saw the conclusion of “bespoke agreements”. Hence, there can be “tailor-made” (also defined as “hybrid”) arrangements with states that are allowed “special conditions”, although they are not admitted to full membership. This is the case with Denmark, an EU Member State that chose, through a popular referendum held in 2015, not to keep Europol membership. Consequently, an ad hoc agreement was negotiated, allowing Denmark some additional advantages beyond those available to other non-EU operational partners (such as a more streamlined procedure to access Europol data and the possibility of being invited to Europol Management Board meetings, but without the right to vote).
Against this background, it is essential to determine what would be the status of the UK vis-à-vis Europol after Brexit. On the one hand, the application of the third country model would necessarily impair the UK’s security cooperation. Such a choice would also result, in parallel, in a sharp decrease of other Europol members’ level of security, since they would no longer be able to benefit from crucial intelligence information provided by the UK. Additionally, depriving the UK of the chance to discuss Europol strategies and vote in the Management Board would leave the latter without the expertise of a country that has been for years a key driver of Europol decisions and, more generally, an established leader in the direction of the agency. On the other hand, although Denmark’s “tailor-made” agreement is a useful precedent, the pattern it has resorted to is hardly applicable to the UK. As a matter of fact, in spite of better access to Europol data, Denmark is still cut off from the decision-making process.
Therefore, in light of the UK’s vital contribution to the Europol initiative, it would desirable that, in the course of the Article 50 negotiations, it fully retained its status within this agency, as the Home Affairs Committee of the UK House of Commons recently advised. This would imply the stipulation of an unprecedented and unique agreement between Europol and the UK, since even the “Danish model” would not suit this specific situation. The fact that the UK will no longer be subject to direct jurisdiction of the European Court of Justice (ECJ) – as the British Government has promised – would add a further element of complexity. The ECJ is entitled to rule on any dispute between Europol and its members. Thus, refusing its jurisdiction would make the establishment of a quasi-membership very unlikely. Nonetheless, at the Munich Conference Theresa May also stated that, in this area, the UK is willing to accept “the remit of the Court of Justice”. This flexibility could open up a higher chance of obtaining the UK’s status quo ante with regard to Europol.
From a strategic perspective, it is undeniable that there is a pressing need for EU-UK security cooperation in a world constantly in a struggle with terrorism and other serious crime. Undoubtedly, intelligence information sharing is not the only topical issue related to this area: immigration, arrest warrants and data protection should be regarded as key priorities as well. Nonetheless, considering that the activity of intelligence agencies is a vital, albeit concealed, part of a country’s defence strategy, it is essential to continue to ensure its proper functioning into the future.
Chiara Graziani is a PhD student in Comparative Constitutional Law at the University of Genoa, Italy, and a Teaching Assistant at Bocconi University, Milan, Italy, where she graduated magna cum laude in 2016. Chiara spent study and research periods at the London School of Economics and Political Sciences, London, UK and at the University of Valencia, Spain.