Brexit and the UK’s Self-Exile from Joint Parliamentary Scrutiny of Europol
Ian Cooper (DCU Brexit Institute)
Today in the Romanian Parliament, there is a meeting of a body tasked with the democratic oversight of Europol, the EU Agency for Police Cooperation. It is called the Joint Parliamentary Scrutiny Group (JPSG), and it includes representatives from both the European Parliament and EU national parliaments. It meets twice a year, the location alternating between the EP in Brussels in the autumn and the parliament of the member state holding the Council presidency – currently, Romania – in the spring.
The JPSG was foreseen by the Treaty of Lisbon and its creation was enabled by the Europol Regulation, which entered into force in 2017. The JPSG is a unique form of interparliamentary cooperation in that is a body constituted of MEPs and MPs who together exercise joint scrutiny powers that are legally guaranteed.
This is the fourth meeting of the JPSG, but probably the last in which representatives from the UK will participate as full members. Because of Brexit, the UK is removing itself from Europol, and therefore also from the parliamentary body tasked with overseeing Europol.
The UK’s Relationship with Europol
The Europol regulation was negotiated and adopted prior to the UK’s Brexit referendum, and it did not address the unforeseen circumstance of an EU member state becoming a ‘third country.’ The UK had enjoyed a unique outside-inside relationship with the EU’s Justice and Home Affairs policy. In 2014, when Theresa May was Home Secretary, the UK exercised its block opt-out from police and criminal justice measures but selectively opted back in to many of them, including participation in Europol. After the Brexit referendum, the UK government announced that it would opt in to the new Europol regulation and maintain its current access until it leaves the EU.
However, the UK’s future relationship with Europol after Brexit remains entirely unresolved: whereas the UK hopes to negotiate a new security treaty through which it will remain in or closely associated with Europol, the EU’s chief negotiator, Michel Barnier, has remarked that it is a ‘logical consequence’ of Brexit that the UK must leave Europol. The Political Declaration that accompanies the Withdrawal Agreement states the aspiration that the EU and the UK will continue to work together in the field of police cooperation, but the exact future relationship is undefined.
The UK’s difficult prospects for post-Brexit involvement in Europol are put in perspective when compared to the countries in the closest analogous situation, Norway and Denmark. As a ‘third country,’ Norway’s position in Europol is limited in comparison to that of EU member states, and the limited access it does enjoy is conditional on its continued close association with the EU through Schengen and the EEA. The UK is not in Schengen and it will leave the EEA at the same time it leaves the EU.
Denmark is an EU member state but it ceased to be a member of Europol after a referendum in December 2015. Denmark managed to negotiate a continued close association with Europol but it does not have full membership – it no longer has a voting seat on the Management Board, for example – and even the ‘third country’ access it enjoys is conditional on its continued EU membership, Schengen participation and recognition of ECJ jurisdiction. By the same standard, it will be difficult for the UK to retain the level of access enjoyed by Denmark or even Norway, given that it is already outside Schengen and it has pledged to leave not only the EU but also the EEA and the jurisdiction of the ECJ.
The UK and the Joint Parliamentary Scrutiny Group
The UK’s level of access to the JPSG is analogous to and dependent on its access to Europol itself, and the positions of Denmark and Norway are again instructive. Even though Denmark is an EU member state, under the Rules of Procedure of the JPSG it is excluded from full membership; it is relegated to the status of a non-voting observer and cannot act as co-chair. On the List of Participants at today’s meeting in Bucharest, Denmark is listed not as a “member state” but as an “observer.”
Yet even Denmark’s status is privileged in comparison to that of Norway because, as an EU member state with an Agreement on Operational and Strategic Cooperation, Denmark at least has an automatic right to attend the JPSG, whereas Norway must be invited on an ad hoc basis. If the rules remain the same, the post-Brexit UK would be in the same position as Norway, needing to receive an invitation in order to attend.
The likely exclusion of the UK from the JPSG is an unfortunate outcome, given the UK’s extensive involvement in cross-border police cooperation; it is, for example, the second largest contributor to Europol information systems. Ironically, three of the top EU officials at the second meeting of the JPSG, in March 2018, were British – Rob Wainwright, the Executive Director of Europol, Julian King, the Commissioner for the Security Union, and Claude Moraes who, as chair of the EP’s LIBE committee, co-chaired the meeting. Wainwright left in April 2018 after nine years in the position; King and Moraes are set to leave their posts when Brexit occurs in early 2019.
Ironically, after the referendum the UK surrendered the influence it could have had over the formation of the JPSG. In July 2016, Theresa May removed the UK from holding the rotating Council presidency in the latter half of 2017, and Estonia took its place. This also meant that the UK parliament would longer act as the chair of interparliamentary meetings (Presidency Parliament) during that six-month period, resulting in two lost opportunities. First, the UK parliament was replaced by the Estonian parliament in the Troika working group (along with the EP and the parliaments of Luxembourg and Slovakia) which was leading the consultative process that eventually decided on the basic design of the JPSG. And second, it was the Estonian parliament rather than the UK parliament that co-chaired the first meeting of the JPSG in the fall of 2017 when the Rules of Procedure were first debated; if the UK had been the Presidency Parliament it is likely that the person acting as co-chair would have been Yvette Cooper, the Labour MP who is the chair of the Home Affairs Committee of the House of Commons, who would have been a forceful voice for the interests of the UK parliament. Instead, the co-chair of the meeting was Raivo Aeg of the Legal Affairs Committee of the Estonian Parliament.
The UK’s imminent departure from the Europol JPSG may not be the most momentous change brought about by Brexit, but it is nevertheless emblematic. Similar stories are being repeated all throughout the various institutions of the EU. It is yet one more instance of Brexit entailing a self-imposed exile of the UK from councils of influence in the EU.
This is based in part on Ian Cooper, “A New Form of Democratic Oversight in the EU: The Joint Parliamentary Scrutiny Group for Europol,” Perspectives on Federalism, Vol. 10, issue 3, 2018, pp.184-213.
Ian Cooper is a Research Fellow at the DCU Brexit Institute.