Brexit’s Implications for UK-EU Relations in Justice and Home Affairs
Christine Andreeva (Dublin City University)
The EU’s Area of Freedom Security and Justice (AFSJ; also referred to as Justice and Home Affairs – JHA) has a very specific mandate as compared to other EU policy areas. Officially a shared competence since the 2009 Lisbon Treaty, the domain de facto remains a national competence, as the policy areas therein – organised crime, terrorism and migration – are matters of national security. As such the EU is only mandated to offer a limited range of harmonisation measures with a perceived common benefit, as well as channels for enhanced cooperation among EU Member States (EU MS). The AFSJ has been through an uneven integration process, where strides for common action have almost exclusively followed crises of a perceived EU-wide impact, such as the 2015 migration crisis and the rise of intra-EU radicalisation and ISIL-organised or inspired attacks throughout the EU. As the perceived added value for the EU’s role in this domain has evolved in the past four years, the area has seen a rapid development, both of pre-existing tools and new harmonisation measures, and the adoption of far-reaching legislation. That said, even in times of political impetus, it has been more difficult to legislate or harmonise in this policy area as compared to others, and the UK was been one of the countries that held an almost permanent veto in this domain until their permanent opt-out effectuated by the Lisbon Treaty. In fact, the UK negotiated an even more privileged opt-in position, where it avails of an à la carte position, where the Government decides whether to opt-in to specific AFSJ measures based on their individual merit and supposed benefit to national tools.
Nevertheless, with Brexit this privilege will disappear, which brings the need for a new relationship to be negotiated in the area of JHA. While it is seldom discussed in the remit of the political debates surrounding Brexit, its implications on criminal justice and counter-terrorism are likely to be severe on both sides – of which experts and practitioners in this domain have warned.
The Most important EU Measures that the UK Would Lose Access To
European Arrest Warrant (EAW)
Difficulties on extradition would arise in the absence of European Arrest Warrant (EAW):should the UK and the EU fail to reach an agreement on an (albeit limited) application of the EAW, the UK will have to resort back to the 1957 Council of Europe Convention on Extradition. Not only will this entail high cost of extradition procedures, it would imply that those would have to go back to relying on diplomatic channels, which would be considerably more time-consuming, involving a degree of politicisation of the issue. Extradition processes can thus be expected to become slower and subject to more exceptions. The Convention provides almost no deadlines for the various administrative levels of an extradition process, meaning that whereas on average an EAW-led extradition takes around 48 days, the average time for the same procedure under the Convention used to be about 18 months. As if that were not enough, not all EU MS take part in the Convention, and some of them have already repealed domestic legislation on the subject, as it was unnecessary and outdated after the introduction of the EAW – which also makes it difficult to find legal experts trained in the interpretation of the 1957 Convention. It is worth noting that Ireland did not apply the Convention towards the UK before the entry into force of the EAW, which implies particular ramifications on Irish-British extraditions due to political sensitivity, including cooperation between police authorities.
Extradition being one of the more complex issues in a post-Brexit JHA framework between the EU and the UK, the potential issues begin already with the transition period. Art. 168 of the Withdrawal Agreement would allow some of the EU27 to refuse extradition of their own citizens to the UK, in accordance with their constitutional requirements. This is specifically a concern for Germany, where extraditing a German national to a non-EU state is considerably more difficult, but has also been flagged as a potential problem with the Czech Republic, France, Romania, Slovenia and Slovakia (REF). Norway and Iceland negotiated a special extradition agreement with the EU as Schengen-associated countries, which also includes an exemption on own citizens. The agreement took 13 years to negotiate (2001-2014) and is still not in force, due to the slow ratification of some MS.
Diminished operational access to EU agencies, particularly Europol,is considered problematic due to the latter’s ever-increasing role in tackling cybercrime and terrorism. Amongst other reasons this is due to the UK’s reluctance to keep acknowledging the authority of the European Court of Justice (ECJ) post-Brexit (see Theresa May’s speeches at Lancaster House in 2017 and the Munich Security Conference in 2018). Europol has been establishing itself as an EU-wide information hub on cybercrime and terrorism and has been a key player in post-terrorist attack investigations throughout Europe since 2015, as those have usually involved two or more EU MS. In this aspect, Eurojust too has been a crucial contributor to national efforts, facilitating exchange between national magistrates and prosecutors, through the European Investigation Orders (EIOs), thus streamlining an otherwise protracted and cumbersome administrative process. Europol and Eurojust have also been in charge of supporting another very successful AFSJ tool – the Joint Investigation Teams (JITs), ad hoc specialised units in aid of criminal investigations and operations on cases concerning two or more EU MS.
The UK has acknowledged the added value of these bodies on numerous occasions, and the Government has expressed hope that they would be maintained in some form after Brexit. However, as the Withdrawal Agreement currently stands, the UK will retain an operational relationship with Europol and Eurojust only during the transition period, while losing access to their governance structures. The same approach is almost mirrored in all JHA instruments that the UK participates in, as an attempt by the EU to demonstrate that the advantages of membership cannot be continued once out of the Union. The UK might also have to contribute financially to Europol in order to participate in operations.
The limited or absent access to EU databases, particularly the Schengen Information System (SIS-II),will be very significant for the UK, while the EU also stands to lose valuable intelligence data originating from the UK’s agencies. SIS-II has been credited with significant success in tracking down missing persons, criminals and crucial evidence, such as vehicles. The use of SIS-II has gradually become compulsory for law enforcement throughout the EU, which has benefitted investigations in all its MS. Another crucial database is Europol’s – Europol Information Systems (EIS) – where EU MS share valuable criminal intelligence on cross-border crimes of common interest. Some other databases with acknowledged benefits to EU-wide law enforcement and criminal justice are: the Secure Information Exchange Network Application (SIENA), a network enabling communication of confidential operational information between law enforcement agencies; European Criminal Records Database (ECRIS), where EU MS swiftly exchange criminal dossiers; the Prüm databases for exchange of law enforcement information, such as DNA, fingerprints and vehicle registration; and a more recent one, the EU’s Passenger Name Record (PNR) Directive, mandating the collection of travel information from airline carriers across the EU, for law enforcement purposes – the latter having been strongly advocated for by the UK. The only possible alternatives to these invaluable tools is the use of Interpol and its databases, which are not considered a viable replacement due to significant time lags and a patchy trust between its 192 members – trust being a key ingredient for effective information-sharing.
The UK is a major contributor to and beneficiary of all EU databases. Nevertheless, it has also been flagged by the EU, particularly the Commission as having used more than it has contributed to those. Further criticism was on the quality of data provided, as well as on the insufficiency of the UK’s data protection standards. The difference in data management and protection regimes will cause significant problems, particularly once the UK stops recognizing the European Charter of Fundamental Rights (ECFR) as well as the General Data Protection Regulation (GDPR), which guarantee not only protection of data, but also fair treatment of detainees, prisoners and criminal suspects. In the absence of those, when the UK becomes a third-party to the EU, that would cause difficulties in terms of extradition, prosecution, investigation, etc., making these more cumbersome and less efficient, as trust might have to be rebuilt. This will likely mean the UK will have to continue being aligned with EU data protection legislation, where the EU and its MS have been disproportionally strict on data management with non-EU countries. Another requirement for data-sharing will be for the UK to recognise the jurisdiction of the ECJ, particularly in order to maintain a working relationship with Europol, which is accountable to it.
Negotiations have treated the terms as a zero-sum game of political gains on both sides. As a result, there is currently no provision for a continuing relationship after the transition period. For the duration of the transition period, the UK will have full access to the JHA tools that it has opted-in to, except for high-level political decisions such as on the Managerial Board of Europol, as well as any new JHA tools where those are not based on current legislative frameworks. Yet, except for access to the SIENA platform for one year after the transition period (a sort-of phasing out measure), there are no provisions for the participation of the UK in any other JHA measure, instrument or institution.
While positions have evolved, the UK’s starting position was that it wanted to maintain access to all current instruments that it takes part in, whereas the EU was unambiguous that these privileges would not be open to the UK as a non-member and initially only offered third-country precedence in its initial position. One of the crucial reasons why the EU is reluctant to offer more than a very limited access to JHA tools, is that it already has conditional relationships in this area with other countries. Denmark has opted out of criminal justice EU acquis, including participation in Europol. Ireland, together with the UK has opted out of Schengen acquis but has since renegotiated some of those terms (including access to SIS-II and PNR). Norway and Iceland are non-EU Schengen members, compliant with the latter acquis and with certain privileged access to EU tools (such as the Prüm framework), as well as Switzerland and Lichtenstein, who are also associate members. Some of these states are following closely what the UK will be able to negotiate with the EU – as a third-country to the EU and a non-member of Schengen – and might request renegotiation of certain terms, where they think they might be able to ask for more beneficial conditions of access to the EU instruments and databases.
The UK has also suggested a comprehensive agreement on internal security, an idea that was seemingly not picked up by the EU and that has been considered unfeasible at this point, considering the speed of negotiation thus far. Such a hypothetical deal would have to be completely tailor-made to the EU-UK relationship on those matters and it would have to be agreed on and ratified by their parliaments in time for the end of the transition period – at this time presumed to be in spring 2021.
In Justice and Home Affairs, where prevention, pursuit and prosecution have become transnational, much like the criminality they target, both the EU and the UK are expected to lose from the lack of an operational relationship. Given that information crucial for operations in this domain travels across borders unlike the jurisdiction of its officers, the EU has developed a rather comprehensive toolbox, taking into account the cross-border nature of threats and their tackling. It is clear that as a non-member the UK can no longer avail of the same benefits that those tools bring, not least for legal reasons, nevertheless, the EU and the UK would be wise to look further into the future than the end of the Brexit transition period. In an interconnected Europe, citizens’ security might depend on it.
This work is based on interviews conducted by the author with EU and national policy-makers and practitioners on EU counter-terrorism, in the period November 2018 – May 2019.
Christine Andreeva is a PhD Candidate at the School of Law and Government, Dublin City University.