Francesco Rossi (University of Ferrara)
The entrance of the United Kingdom into the European Community pursuant to the European Community Act (1972) started a process of Europeanisation of UK law. The UK legal system has undergone profound transformations from the outside, but it has also driven the development of EU law by exporting strategies of judicial cooperation, criminal policy guidelines, and legal models at supranational level (thus ‘decentralising’ national sovereignty).
From a legal point of view, the Brexit affaire can be interpreted as an attempt to reduce (or even stop) the pace of the Europeanisation of UK law and to re-nationalise (or re-centralise) portions of sovereignty shared with the EU. Although the result of the Brexit saga still seems uncertain, some traces of this renewed (cyclical?) nationalist approach can already be seen in action.
Past and present of the UK’s approach towards the EU and the CJEU
In criminal matters, the relationship between the United Kingdom, the EU and the CJEU were already quite ambiguous before the start of the Brexit saga.
In a first phase, starting from 9/11 and leading up to the adoption of Council Framework Decision of 13 June 2002 on the European arrest warrant, the United Kingdom was a ‘leading protagonist in driving and shaping the nature and direction of cooperation on police and security matters under the auspices of the European Union’. This is evident, for example, in counter-terrorism, where the United Kingdom has provided the EU with criminal policy guidelines, tools and strategies for judicial cooperation, and legal models substantially transplanted (in a ‘minimum’ version) from its own Statutes.
In a second phase, the United Kingdom went back towards a less pro-integration approach. The UK ‘dualistic’ demand for autonomy led to a “‘pick-and-choose’ approach to European integration in criminal matters”, based on an ‘à la carte’ system of opt-out and opt-in.
In a third phase (still ongoing), the United Kingdom adopted a strategy defined by scholars as ‘wait’ and see’. Despite (soft or hard?) Brexit still hanging over the political scenario, ‘the UK government has specifically expressed its wish and intention to remain connected to several AFSJ measures after Brexit’.
Defined with the most varied terminology, with positive (e.g. ‘flexibility’) and negative (e.g. ‘opportunism’) meaning, the current attitude of the United Kingdom can be better understood by considering some statements that seem to faithfully reflect the Zeitgeist. For example, the former Prime Minister Theresa May declared: ‘I am certainly no enthusiast for the European Court of Justice. The ECJ should not have the final say over matters such as substantive criminal law’.
The central point of the matter is precisely the unequivocal will of the national government to ‘remove the UK entirely from the jurisdiction of the Court of Justice of the European Union’. As scholars argued, the United Kingdom does not intend ‘to participate in a constitutionalised post-Lisbon framework where institutions such as the Commission and the Court of Justice […] would have a say in evaluating the domestic implementation and proceeding to the interpretation of the terms of the Directive’, but rather would like to go back to a pure intergovernmental approach.
Conclusion: the fragmentation of standards of justice after Brexit?
The role-playing game between the UK and the EU is still open. ‘Waiting for Brexit’, the constitutional and geopolitical structure of the United Kingdom appears to be the most influenced by opposing isolationist and integrationist currents.
In criminal matters, on the one hand, EU membership has exposed the United Kingdom to different forms of legal integration, in the context of the difficult search for a shared European constitutional order that takes into account national identities and state sovereign powers. On the other hand, the current consensus around Eurosceptic positions (neo-nationalism, populist politics, etc.) and their promises of a stronger State demonize European integration and push to reabsorb by every means (both legal and political) as many as national decision-making prerogatives.
In this way, the ‘concrete’ EU concept of mutual trust is abandoned (replaced with an abstract ‘mutual trust generated by the long history and experience […] between the UK and the EU’) and the future solutions risks focusing more on the question of sovereignty than the most important issues at stake. The greater fragmentation of standards of justice in Europe that would result from Brexit ‘poses significant challenges for legal certainty, coherence and the protection of fundamental rights in Europe’s area of criminal justice’. From an economic point of view, Brexit could increase the costs (negotiations, major financial coverage and structural expenses at national level, lower accounting and management benefits, etc.) of a judicial cooperation that will remain central, regardless of the outcome of the saga, to effectively fight against transnational crime. In a resolution of 14 March 2018 on the framework of the future EU/UK relationship, the European Parliament closed the door to the possibility that, as happened in the past (see above) and as announced by the UK government, the United Kingdom ‘take part in setting priorities and the development of the multiannual strategic goals or lead operational action plans in the context of the EU policy cycle’. The post-Brexit relationship between the EU and the UK criminal justice systems, and the future positive or negative effects on freedom, security and justice at national and EU level might be still unclear. However, the political commitment towards rethinking judicial cooperation in criminal matters does not seem to leave space to particular optimism.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
Francesco Rossi is Postdoctoral Researcher in EU Criminal Law at the University of Ferrara