PAPER: Justice and Home Affairs Cooperation

In his fifth Brexit Challenge paper, Nick Clegg sets out the challenges facing justice and home affairs cooperation.

By Nick Clegg, Dec 15, 2016 11

The threat from international organised crime

Crime is an increasingly international problem. The economic and technological advances which have allowed lawful trade and tourism to prosper - from the emergence of cheap air travel to the mobile phone and the internet - have also enabled criminal networks to operate more effectively across nation state boundaries. Drugs, firearms and human trafficking all have long global supply chains. The increasingly profitable field of cybercrime is inherently borderless, and involves states as well as gangs.

Criminals are also becoming increasingly sophisticated. The National Crime Agency notes in its annual Threat Assessment[1] for 2016 that international criminal gangs deliberately exploit national vulnerabilities, from inadequate law enforcement and criminal justice structures, to weaknesses in legislation, corruption and vulnerable communities.

At the most serious end of the spectrum, the greatest terrorist threat now comes from violent extremists who organise online, travel to Syria and other parts of the world to train and fight, and then re-insert themselves into European societies.

International threats cannot be met by national states acting in isolation. Co-ordination is necessary to prevent crime, to investigate it, and to arrest, extradite and prosecute those responsible. For these reasons, the EU has evolved functions over a number of years relating to law enforcement, counter-terrorism and criminal justice.

The European Union response

In order to combat these threats more effectively, EU member states have taken significant steps over several decades to co-ordinate and strengthen their response.

The EU acquired formal legal competence in the area that became known as ‘Justice and Home Affairs’ in 1992 (under the Lisbon Treaty it is referred to as the ‘Area of Freedom, Security and Justice’, but for the purposes of this paper the term JHA will be used). The Maastricht Treaty created formal policy making powers in relation to policing, criminal justice, asylum, immigration and border control, and civil judicial cooperation.

At this stage, concerns about national sovereignty meant that cooperation was limited to measures proposed by national governments and agreed by unanimity in the Council of Ministers, with very little scope for the involvement of the Commission or the European Parliament. The Commission had no powers to hold Member States to account for failure to implement agreed JHA measures, and there was no automatic role for the Court of Justice of the European Union (ECJ) in adjudicating in such cases. Nevertheless, early steps were taken to improve the coordination of policing through the establishment of Europol, and to harmonise aspects of the criminal law.

In parallel with these developments, a sub-set of Member States (originally France, Belgium, Luxembourg, the Netherlands and West Germany) reached an agreement to dismantle internal border controls and create a passport-free travel area. The Schengen Agreement of 1985 and the subsequent Schengen Convention of 1990 (now collectively known as the ‘Schengen Acquis') also provided for police and judicial cooperation measures, including a database of information about criminal suspects and proceedings. These measures were primarily intended to compensate for the loss of security controls at the internal borders by enhancing cross-border surveillance and interdiction at the external borders.

The Schengen measures were eventually adopted by the majority of Member States and written into EU law in the Amsterdam Treaty (1997). The UK chose not to participate in the dropping of border controls, but instead negotiated a separate deal which allowed it to take part in the data exchange and other crime-fighting elements of Schengen. The Amsterdam Treaty also took the asylum, immigration, and civil law measures and made them subject to the normal decision-making processes of the Single Market, including majority voting instead of the previous requirement for unanimity in the Council. However, the UK obtained an opt-out over each EU law adopted in this area. Policing and criminal justice remained intergovernmental matters and therefore subject to unanimity. 

The final major institutional development came into force with the Lisbon Treaty in 2009. The previous arrangements, which had kept police and criminal justice cooperation at arm’s length from the institutional machinery of the EU, came to an end. The Commission now acquired the same enforcement powers that it has for the Single Market, allowing action to be taken against Member States that fail to implement new JHA measures, or implement them incorrectly. The ECJ acquired its usual jurisdiction over the field of EU police and judicial cooperation, and instead of requiring unanimity among Member States, new police and criminal justice proposals would be subject to qualified majority voting (QMV) in the Council in most cases. This sped up the decision-making process by removing the possibility that a single member state could veto a new proposal, However, the UK again obtained an opt out from each EU law in this field; and any Member State can also pull a so-called ‘emergency brake’ if it has concerns about a proposed law in some sensitive areas.

UK leadership

The UK has been at the forefront of many of these efforts since shortly after joining the European Community, with the establishment of a working group (the TREVI group) to combat terrorism in 1975.

Today, the imprint of British policing and intelligence work can be clearly seen at the European level. According to David Armond, the Deputy Director-General of the UK National Crime Agency, “the whole EU policy cycle […] is an absolute lift and shift of the UK intelligence model”. That influence has especially been felt at Europol, where the British director Rob Wainwright has led the organisation since 2009. Europol has a 17-strong UK team of UK seconded officers, the largest from any Member State, in addition to around 50 British staff employed on EU contracts.

The UK opt-in

As noted already, in the negotiations leading up to the Amsterdam Treaty in 1997, the UK and Ireland secured an agreement to selectively choose whether to participate in any new EU legislation covering immigration, asylum and judicial cooperation in civil matters. When the Lisbon Treaty was signed in 2007, this right to ‘opt in’ was extended to cooperation in policing and criminal justice. Today, therefore, we remain opted out of any new measures by default unless we make an active decision to adopt them.

This arrangement means that the UK has the ability not only to scrutinise and seek to amend proposals for new JHA measures, but to decide whether it is in the national interest for the UK to be part of them at all.

The 2014 ‘mass opt-out’

In addition to extending the role of the Commission and the ECJ as regards new JHA measures, the Lisbon Treaty also applied those powers to previous EU laws in this field.

Around 130 JHA measures had been adopted prior to the introduction of the Lisbon Treaty, including Europol, Eurojust, and the European Arrest Warrant. Member States had signed up to these measures on different terms (without Commission enforcement powers and limited ECJ jurisdiction). The Labour government argued that the UK should be given the opportunity to reconsider whether it still wanted to remain bound by these measures in light of the changes. It negotiated a special one-off mechanism that would allow the UK to opt out en masse from the body of existing police and criminal justice instruments, and then to apply to re-join those which it considered to be sufficiently important to accept on the new terms. This ‘mass opt-out’ had to be concluded by 1 December 2014.

The coalition government agreed to trigger the mass opt-out and spent nearly 2 years negotiating its terms, starting inside government - where the two ruling parties had different views about the exercise - then in the House of Commons, where it was the subject of numerous debates and select committee reports, and finally in Brussels. At the end of the process, the UK opted back into the 35 measures which were judged to be vital for public safety.

This was, in effect, a ‘mini-Brexit’, in which a whole area of EU competence was put under the spotlight for 2 years and tested against judgments about the national interest.

On 10 November 2014, the House of Commons debated whether to opt back into 35 of the most important measures from which the UK had exercised its right to opt out the year before, including the European Arrest Warrant, Europol, Eurojust and the Schengen Information System. Then Home Secretary Theresa May said:

“If we were to vote against the motion tonight and did not opt back in to the measures […] we would find ourselves kicked out of Europol within weeks and our extradition arrangements would be thrown into legal uncertainty, potentially for years. That would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe.”

The House decided, by a majority of 464 votes to 38, to opt back into the key JHA measures.

Many JHA measures which fell outside the scope of the 2014 decision have been adopted since the Lisbon Treaty. In total the UK is subject to, and benefits from, over 100 measures. These range from rules about fingerprinting asylum seekers, to participation in the Passenger Name Record directive designed to capture information on terrorist suspects flying in and out of the EU, to minimum standards of protection and support for victims of crime. The UK is also party to decisions taken before Lisbon, such as on the mutual recognition of decisions in divorce and child custody cases.

A number of significant opt-in decisions have been taken by the Conservative government since the 2015 general election, including the Prüm decision which will enable fingerprint and DNA profiles to be checked against European databases.

The key JHA measures which the UK participates in

Some of the key measures currently in operation are briefly considered below.

Europol: Europol co-ordinates the law enforcement response to crime that crosses EU borders. It provides practical support to Member States by analysing data to build up a picture of the threat posed by international organised crime, sharing intelligence, and hosting police operations where officers from more than one Member State need to work together. All EU Member States (and some third countries) second officers to Europol headquarters in The Hague. A simple direct check on Europol systems allows UK law enforcement access to intelligence from all other Member States and third parties.

Europol has developed specialist units to tackle cybercrime (the European Cyber Crime Centre); the removal of terrorist and violent extremist material from the internet (the EU Internet Referral Unit, based on the model developed by the UK); and counter-terrorism (the European Counter Terrorism Centre, which acts as an intelligence sharing hub and provides operational support to Member States). 

The UK has continued to adopt relevant European legislation even since the referendum of 23 June. On 14 November the government announced its intention to opt-in to the new Europol regulation.

European Arrest Warrant (EAW): The EAW provides a system by which individuals sought for trial or service of a sentence are surrendered by one Member State to another. Compared to the preceding arrangements under the 1957 Council of Europe Convention on Extradition, the EAW is dramatically faster and applies to far more fugitives. Where it often used to take many months to return a suspect to the UK, it is now regularly done in a matter of weeks or even days.

The EAW is a far-reaching agreement because it removes many of the normal legal processes that apply in extradition cases, including the requirement that the offence in question is also an offence in the extraditing state (the ‘dual criminality’ rule), and the constitutional bar on extradition of one’s own nationals which many nation states still apply. EU Member States have agreed to recognise the decisions of each other’s courts and criminal justice systems, demonstrating the high levels of trust within the EU and the importance of collective membership of the European Convention on Human Rights (ECHR), which allows Member States to extradite their own nationals in the knowledge that the same rights for suspects and defendants apply across the whole of the EU. Although not without its challenges and criticism, the principle of mutual recognition forms the cornerstone of this measure and others which relate to judicial cooperation in criminal matters.

Prior to 2004, fewer than 60 individuals a year were extradited from the UK to other countries (including those outside the EU). Since 2004, the EAW has allowed the UK to extradite over 7,000 individuals accused or convicted of a criminal offence to other Member States. Over the same period the EAW has been used to extradite over

1,000 individuals to the UK to face justice in the UK, including Hussain Osman, who fled to Italy after a failed suicide bombing in London in July 2005. In 2015, we used the EAW to extradite 1,149 offenders and suspects to other EU countries, including 75 for burglary and 99 for robbery; and returned 123 individuals to the UK, including 16 for child sex offences and 14 for rape. The number of our own citizens we send abroad remains low - of the 1,149 extradited in 2015, only 30 were British.

One important advantage of the development of JHA, and of the EAW in particular, is that it has helped to de-politicise relations with Ireland on the extradition of terrorist suspects. Such extraditions used to be fraught in the extreme: slow, and often not possible at all. They have since become much more manageable.

Schengen Information System (SIS II): The second-generation Schengen Information System allows police forces to share real-time ‘alerts’ on suspects, vehicles, firearms, and other property. The system contains some 66 million reports, including information on 35,000 people wanted under an EAW, as well as alerts on suspected foreign fighters and missing people. It also plays an important role in counter-terrorism operations by allowing suspects under surveillance by intelligence agencies to be flagged on the system.

Since the UK connected to the new system in April 2015 these alerts have been available in real time to officers on the ground via the Police National Computer. In March 2016 alone, 809 people were flagged on SIS II to the UK. This included 192 wanted people, 96 missing people and 358 people who are believed to be involved in serious organised crime. The system also allows our EAWs to be disseminated instantly across all EU Member States.

Theresa May has described SIS II as “vital and necessary”. Speaking in October 2016, David Armond (Deputy Director-General of the UK National Crime Agency) noted, “it has been a gamechanger”.

European Criminal Records Information System (ECRIS): When the courts in one Member State convict a national of another Member State, they are obliged to inform that country of the fact via ECRIS. The system also allows courts to request details of previous convictions, and requires Member States to respond. This means that when UK courts are making sentencing decisions they can take into account previous offending behaviour in other Member States; as can employers when they are vetting individuals, for example for jobs where they will be working with children or vulnerable adults. 

In 2015 there were 1.2 million arrests in the UK, around 110,000 of whom were from elsewhere in the EU. Speedy access to criminal records is therefore essential. According to the government, the UK is one of the biggest users of ECRIS: criminal records checks of foreign nationals in the criminal justice system have increased by 1,650% since 2010.

Passenger Name Records (PNR): The UK has been instrumental in pushing for greater availability of advance passenger information for the purposes of identifying serious organised criminal and terrorist movements. PNR consists of information collected by airlines and other carriers as part of the travel booking process and may include, amongst other things, details of how travel was booked and for whom, contact details, and travel itinerary. While it is controversial due to the fact that it scoops up data on many innocent people alongside criminal suspects, PNR plays an increasingly important role in intelligence-led operations, post-incident investigations and judicial proceedings.

Eurojust: Eurojust supports investigations and prosecutions of cross-border crime in the EU. Like Europol it is located in the Hague and operates 28 national ‘desks’ co-located in one building with staff seconded from Member States and English as the working language. Eurojust is designed to facilitate quick and effective communication between prosecutors, judicial authorities and law enforcement on ‘neutral territory’. It allows police and prosecutors investigating a particular organised crime group to quickly identify who holds what evidence, who should take the lead, and whether there needs to be a Joint Investigation Team. The UK is one of the heaviest users of Eurojust and currently leads 31 Joint Investigation Teams. According to the National Crime Agency, Eurojust has been “immensely important and useful” in providing a hub for investigations where differences in Member States’ legal systems can be bridged.

Proceeds of crime: Member States have different approaches to the freezing of criminal assets, but JHA ‘mutual recognition’ rules mean that a decision in one country can nevertheless be applied directly across the EU without having to go through 27 separate court processes. Director of Public Prosecutions Alison Saunders recently noted “if we have a confiscation order here and we know that the assets are in Spain, and our courts say that you can confiscate those assets and enforce it by forcing the sale of the property, it means that Spain will do that. Spain does not question our order. It is one of those issues where there is a mutual recognition, so it works both ways.”

Investigation orders: From May 2017, the current system for exchanging evidence in criminal investigations will be replaced by the European Investigation Order, which is subject to strict time limits. Theresa May, when Home Secretary, opted in to this proposal because police believed it would confer a “significant benefit”, and because she believed UK requests for evidence would “go to the bottom of the pile” without participation.

Victims directive: The EU has in recent years produced a number of measures which guarantee procedural rights for those involved in the criminal justice system, some of which the UK has opted into. The Victims Directive provides that a victim of crime anywhere within the EU receives a minimum standard of support and protection. This covers a range of things, including information about criminal proceedings; the circumstances in which victims can access legal aid, interpretation and expenses; measures to assist victims who give evidence in court; measures to ensure cross-border protection for victims of domestic violence; and the support services that should be available to victims and their families.

JHA also covers a number of non-police and non-criminal justice matters, which were not subject to the 2014 decision. Two of the more significant issues are highlighted here.

Asylum: The EU operates a Common European Asylum System (CEAS), which supplements the provisions of the 1951 Geneva Convention on Refugees by requiring uniform standards of reception, treatment, and consideration of asylum claims. The UK participates in some of these measures but has opted out of others. Failure to coordinate in this area would not only result in unfairness, but could - given the ability for people to move freely within the EU - lead to repeat claims in different Member States or the possibility of ‘forum shopping’ where individuals move to seek out countries where there would be a higher chance of acceptance as a refugee. The CEAS therefore includes the EURODAC system, a fingerprint database to prevent individuals for re-applying after a claim is rejected, and the Dublin regulation which allows a country to send an asylum seeker back to another Member State, usually the one where they first entered the EU, in order to register their claim there.

Given the geographical location of the UK - it is rarely the first port of call for asylum seekers who most often reach the EU by land or sea - we are net beneficiaries (in numerical terms) from the Dublin regulation. The UK has used Dublin regulations to “remove” more than 12,000 asylum claimants since 2003.

Family law: EU rules require decisions handed down by the family courts in one Member State to be respected in all others. For example, a child support decision made by the courts in the UK has to be enforced by the authorities in Germany, if that is where the child is living. Without these rules, child custody, maintenance, parental abduction, and divorce settlements would all be difficult and in some cases impossible to enforce where families had moved - or were split - across EU borders. While, outside the EU, the UK could choose to recognise decisions of foreign courts, the UK could not oblige a French or Italian court to recognise or give effect to a decision of a British court, unless it continued to take part in the EU system for mutual recognition. 

What precedents are there for non-EU countries to participate in JHA measures?

The measures outlined above are manifestly valuable to the UK, adding a layer of operational capability that would not be available to us as a single nation state working alone. The question, therefore, is whether the UK could continue to participate in these measures as a non-EU country.

There are some precedents for non-EU countries to participate in EU JHA measures, but they generally have significant drawbacks.

Europol is able to sign “co-operation agreements” with “third States and non-EU related bodies”. There are two types of agreement: strategic partnerships and operational partnerships. Current strategic partners include Russia, Turkey and Ukraine; operational partners include Norway, Iceland, Australia and the US.

Neither type of agreement offers the advantages of full membership. Strategic partners enjoy high-level cooperation only, and are not able to access data or intelligence on individuals. Operational partners do have such access, and some of them post liaison officers to the Hague. However, operational partners cannot hold permanent posts at Europol, nor be represented at Directorate level or on the Management Board. Nor can they second national experts on key priority areas (the UK currently has experts in the Hague working on cybercrime, human trafficking and illegal immigration). Crucially, operational partners have no direct access to the Europol Information System or to Europol’s secure messaging system, SIENA, and are unable to lead operational projects.

If the UK were to take this route, we would lose our influence over Europol’s strategic direction, our ability to lead operations, and our ease of access to operational data and intelligence.

The Schengen Information System and related measures such as the ability to request cross-border surveillance are only available to full members of the EU, or to countries which have chosen to participate in the Schengen border-free area. There is no precedent on which the UK could rely to argue for continued access to SIS II.

The European Arrest Warrant is available exclusively to EU members. Norway and Iceland have recently concluded a “surrender agreement” with the EU which mirrors the automaticity of the EAW in many respects. It nevertheless falls short of the EAW in two key ways: it requires that the alleged offences are normally mirrored in both the sending and receiving country, and it permits either party to refuse to extradite its own nationals. This would mean that we could not easily prosecute an EU national who had committed a crime in the UK and returned to their home country. Finally, the surrender agreement is unlikely to be available to us quickly. The agreement has taken 15 years to negotiate and is still not yet in force.

While the UK could attempt to join the surrender agreement, the fact that both Norway and Iceland are members of the EEA and of the Schengen border-free zone appears to have been critical in the negotiations.

The alternative would be to fall back on the 1957 Convention on Extradition, but this is far slower, it includes dual criminality requirements and a bar on ‘political’ extradition, and it does not remove the bar on countries extraditing their own nationals. Of the 27 EU Member States, 22 have a bar on extraditing their own nationals except through the EAW. Perhaps most significantly, many EU countries are understood to have repealed their legislation implementing the 1957 Convention as regards the UK when they signed up to the EAW. For the UK to revert to the preceding arrangements would therefore require individual Member States to legislate to re-instate those rules.

Access to European criminal records data via ECRIS is similarly exclusively limited to EU Member States. Even the four associated Schengen countries (Norway, Iceland, Switzerland and Liechtenstein) are excluded, and instead have to use the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, or informal Interpol channels. This is more time consuming, complex and expensive than the ECRIS procedure. Nor do either of these alternatives require countries to supply the data requested within specified time limits, as they are obliged to do under ECRIS. As noted above, ECRIS has led to a huge increase in criminal records information available to the UK.

The only JHA measures where there is a clear and unambiguous provision for non-EU countries to participate are the Joint Investigation Teams hosted by Eurojust, and the bilateral EU agreements with the US, Canada and Australia to share Passenger Name Records, and with the US to share data for the purposes of the Terrorist Finance Tracking Programme. While undoubtedly useful, these measures only cover a small proportion of current JHA cooperation.

A bespoke EU-UK partnership agreement

There are serious drawbacks to most of the ‘off the shelf’ models outlined above. For this reason, the government hopes to negotiate a “bespoke solution” that accords a special status to the UK and allows a degree of partnership that is not afforded to any other non-EU country.

The EU has the power to conclude international JHA agreements with third countries, as it has done with Norway on extradition and the US on Passenger Name Records. A bilateral partnership agreement with the UK is therefore legally feasible in principle.

Ministers have expressed confidence that such a deal is possible. According to David Davis, the government wants “to maintain or even strengthen our cooperation on security and defence”.

Can the UK avoid the jurisdiction of the ECJ?

Ministers insist that the UK should not be subject to the decisions of judges sitting in the ECJ in Luxembourg. Theresa May was unequivocal in her speech to Conservative party conference on 5th October 2016: “we are not leaving only to return to the jurisdiction of the European Court of Justice”.

This is a potential stumbling block for any post-Brexit JHA agreement. The ECJ would continue to have a major role in any post-Brexit partnership agreement, for the following reasons:

First, the EU can only act in compliance with the Charter of Fundamental Rights. The ECJ is the ultimate arbiter of this. It is therefore impossible for the EU to sign an agreement with the UK that conflicts with either the Charter or with ECJ case law. The Charter, unlike the ECHR, specifically covers the protection of personal data and so engages several of the measures discussed in the this paper. 

Second, any agreement needs to be policed. If the UK acted in ways that breached the terms of the agreement, it would be open to an EU citizen to take a case to the ECJ and have the EU’s decision concluding the agreement annulled. For instance, an Austrian law student, Max Schrems, recently convinced the ECJ to annul a Commission decision concerning the exchange of data with the USA, due to concerns about US intelligence agencies raised by Edward Snowden.

Third, the developing jurisprudence of the ECJ is binding on EU Member States. If the UK failed to keep pace with legal developments on the continent, or diverged from EU law in any significant matter, then a gap would open up. The international deals that the EU signs with third countries tend to include a mechanism for discussing legal divergence, including the ability to allow the agreement to be terminated if the differences cannot be reconciled. The UK would therefore have to stick closely to the rulings of the ECJ in order to avoid the agreement being annulled.

Fourth, some form of dispute resolution is necessary in any international agreement. This does not necessarily have to be the ECJ. In those limited areas where the EU allows non-EU countries to participate in JHA measures, bespoke negotiation or arbitration mechanisms tend to apply. For example, the Norway/Iceland Europol agreement establishes an independent arbitration body to resolve disputes, with reference to the United Nations in the case of a failure to agree. However, there is no existing model for a non-EU country to be fully or nearly fully incorporated into core JHA business. It is more difficult to imagine an agreement that grants the UK privileges normally only accorded to full EU members, without the ECJ having a formal role. It remains to be seen whether the EU will readily agree to set aside the ECJ in favour of a bespoke dispute resolution mechanism on this grand scale.

Despite Ministerial statements to the contrary, all the indications are that the UK will have to accept the involvement of the ECJ if it wants to continue to participate in EU JHA measures. While this may not amount to granting the court formal ‘jurisdiction’ over the UK and its courts, in practice we will have to follow the ECJ’s rulings as a condition of maintaining any partnership agreement, just as we will be likely to end up replicating the EU’s Single Market rules in domestic law in order to maintain the regulatory equivalence necessary to trade freely. We will be subservient, if not directly subject, to rulings from the ECJ.

Data sharing for law enforcement purposes

The question of data exchange between police and intelligence agencies is likely to be particularly challenging. We have briefly considered the problem that there is no pre-existing model for non-EU, non-Schengen countries to access SIS II or ECRIS.

Access to law enforcement databases by definition involves the flow of information between multiple parties. Where the data that UK law enforcement wants to access resides in the EU, the Member State in question can only hand it over if the UK is able to offer certain safeguards. The simplest form this would take is for the UK to sign up to the new General Data Protection Regulation, and the parallel directive on police data exchange, which come into force in 2018. The government has already said that it will apply EU data protection law at least until the point of Brexit. It is entirely possible that the EU will insist that we do so afterwards. Failing that, according to the EU laws in place, we would have to demonstrate that our data protection standards were “adequate” when compared to the EU’s following Brexit, otherwise the exchange of personal data could be far more complicated than it is at present.

Failure to match and sustain EU standards could result in the ECJ ruling against any UK/EU arrangements that might be made, turning off the tap and limiting the flow of information to UK police forces. This could happen if the UK is found to offer “inadequate” protections over the way we handle, store and analyse personal data. As mentioned above, this is what happened in 2015 to the EU-US ‘Safe Harbour’ agreement on the transfer of personal data to the US for processing.

These problems were underlined by David Anderson, the Independent Reviewer of Terrorism Legislation, in his final annual report on 1 December 2016:

“It should not be assumed that Brexit will relieve the UK from the need for compliance

with standards of privacy and data protection set out in EU legislation (including the

General Data Protection Regulation that will apply from May 2018) or by the [ECJ]. As recent cases have shown, the continued ability even of third countries to share data from within the EU will impose commensurate obligations upon them to treat those data in a manner that conforms in many respects with EU privacy norms.”

There are also longer-term strategic risks to consider. Until now, opposition to the surveillance practices revealed by Edward Snowden has tended to focus on the US. The UK’s own practices have received less attention from the EU and the ECJ, in part because the EU has no legal competence in the field of national security. However, once the UK leaves the EU and signs a bilateral JHA agreement as a third country, these practices are likely to come under greater scrutiny. Questions will be asked about the collection and processing of ‘bulk’ internet communications, as they have been of the US. This problem may become particularly acute if the replacement for the EU-US Safe Harbour agreement (‘Privacy Shield’) is found to be unlawful (legal challenges to the new deal are already pending). At the same time, the continuation of close relations between the UK and the US under President Trump - who has pledged to reduce the safeguards introduced by President Obama - is likely to provoke greater scrutiny from Brussels and EU capitals.

Finally, the EU will need to decide whether the protections for EU citizens’ data under the Investigatory Powers Act 2016 are adequate as a matter of EU law. The Act mandates the collection by private companies of records of all internet use by UK residents, the collection by GCHQ of the content of much of the internet traffic that flows between the UK and the EU, powers to hack foreign communication networks, and powers to acquire ‘personal datasets’ (e.g. customer records) in bulk. These provisions are largely untargeted (applying to all citizens regardless of suspicion) and are significantly more intrusive than any other legislative regime in the EU.

This combination of short-term stumbling blocks and long-term strategic risks indicates that reaching an agreement on UK access to EU law enforcement databases may not be as straightforward as Ministers hope. 

Negotiability

The UK played a prominent part in designing and constructing the EU’s JHA system. Continued participation is vital to our security. This is not conjecture. It was confirmed by the evidence-based exercise led by Theresa May in 2013-14 to identify the value of police and criminal justice cooperation measures to the UK, which concluded in an overwhelming Commons vote to opt back into key JHA measures.

The government clearly considers JHA to be a strong negotiating card in the Article 50 talks. The UK's strong contribution in this area is one reason why Julian King's appointment as Commissioner for the Security Union made sense. This focus stands in stark contrast to the lack of clarity about the government’s overall negotiating objectives.

A JHA partnership agreement could be agreed if goodwill exists as part of the Article 50 talks. It should certainly be easier to do so than to reach an agreement on trade (see Brexit Challenge papers #1 and #2). Police and criminal justice cooperation is not a zero sum game. The EU is likely to welcome the UK’s continued participation, as effective cooperation will improve security for everyone.

There are therefore reasons to believe that the UK may be able to secure a ‘bespoke’ agreement that goes beyond the types of partnerships that the EU already enjoys with third countries. We will begin negotiations from a position of full compliance (albeit with a selected part of the acquis), and therefore should not need to persuade the EU of our ability to sustain high standards. We have very good bilateral relationships with Member States, their law enforcement agencies, Europol, and the other EU institutions. We have a culture of respect for human rights and for the rule of law. These are all good starting points.

However, this alignment of interests is unlikely to translate into a quick deal on JHA. As explored in previous Brexit Challenge papers, the 2-year duration of the Article 50 talks may be adequate for the task of negotiating the terms of the ‘divorce’, but it is completely inadequate when it comes to establishing a new trading relationship. In order to avoid a highly damaging ‘cliff edge’ where the current trade rules fall away without a replacement having been agreed, a transitional deal will be necessary.

Ministers might imagine that a quick deal on JHA is possible, and that our relative strength in this area will buy concessions elsewhere. However, in a negotiation of this scale and complexity, decisions taken under one negotiating heading will impact on other headings, trade-offs will need to be made, and “nothing will be agreed until everything is agreed”. Given that the UK will want to use JHA to extract maximum leverage, it is not in our interests to settle early even if the EU wanted to. A final JHA agreement is therefore likely to be concluded alongside a final agreement on trade, at some point in the early 2020s. 

This sequencing points to the need for JHA to be included in a transitional deal. The simplest approach would be to roll over our existing access to JHA measures while talks on a future relationship continue.

Failure to secure a transitional deal would see the UK tumble out of the existing JHA measures in the spring of 2019:

 

  • We would be unable to use the EAW to remove foreign criminals for trial abroad.
  • We would be unable to return suspects to the UK who had fled to the continent, causing a logjam in the courts and distress to victims and families.
  • The police would find their access to European databases cut off, and would no longer be able to use the Schengen Information System to quickly check the identity of suspects or their vehicles, or to pass on the details of missing persons.
  • The security services could no longer mandate other countries to carry out surveillance operations against suspected terrorists who flee to the continent.
  • The courts would no longer be able to quickly check whether someone accused of rape or murder had previous convictions elsewhere in the EU.
  • Child custody rulings could be unenforceable without the ability to apply the decisions of UK courts in other member states.
  • We would no longer be able to easily check whether asylum seekers had made multiple claims in other countries. 

 

Then there will be substantive issues of disagreement. From the EU perspective, there are likely to be at least four major negotiating priorities.

The first is a requirement for the UK to pay into the EU’s budget for JHA. So far, the government has not ruled out out this possibility. Norway makes an annual contribution to the EU budget of around €6m for limited access to JHA measures. The price of a comprehensive deal for the UK would be significantly higher. Our membership of Europol alone currently costs around £8.5m a year in annual contributions to the EU budget and £2.5 in running costs.

The second is that the deal should be justiciable, and require the UK to keep pace with developments in EU JHA law, including the rulings of the ECJ. Here, the government has unhelpfully boxed itself in. For the sake of national security, either the government will have to temper its hostility to the European court, or an ad hoc dispute resolution system will need to be agreed. As noted below, however, the EU-27 may be reluctant to devise a bespoke system of this kind.

The third is that the UK should not ‘cherry-pick’ its way through the existing JHA measures. The government is likely to prioritise ‘hard-edged’ operational measures like Europol, the EAW and SIS II, and downgrade or abandon ‘softer’ measures like the Victims Directive, the European Supervision Order, or the right to interpretation and translation in criminal proceedings. This would be seen as weakening the safeguards that underpin the operational measures.

The fourth issue is a likely reluctance on the part of the EU and its Member States to construct complex new parallel arrangements purely for the benefit of the UK, particularly where those arrangements appear to derive from a squeamishness on the part of the British to accept the institutional framework under which the 27 operate.

The EU has, over the course of the last 25 years folded police and criminal justice cooperation into the main treaties, and sought to move away from bespoke or ‘two-speed’ arrangements for different groups of Member States. As Rob Wainwright recently told the Guardian, devising a parallel arrangement would entail massive legal complexity. “The mechanism of doing that, forget the politics, would be a hell of a job.” Given that talks with the EEA countries on discrete areas of JHA cooperation have taken up to 15 years to conclude, and the fact that a measure of cooperation is already possible without a new agreement, some Member States may have limited patience for a new comprehensive deal. This impatience could be exacerbated if corners are seen to be cut in a bid to drive a complex agreement through at pace ahead of the final Article 50 deadline; and if it is seen in the context of British intransigence on other portfolios such as trade and migration.

Conclusion

There is a good prospect of something being salvaged from the wreckage when Brexit forces the UK out of existing Justice and Home Affairs cooperation measures. We are in a relatively strong position because we have taken the time to lead, to engage, to make ourselves useful to our EU partners, and have therefore generated political capital.

Moreover, when it comes to international organised crime and terrorism, there is a clear mutual interest in cooperation. We face the same international threats as other members of the EU.

But this is not to say that the UK is in a position to dictate terms to the EU on JHA - far from it. We will have to make compromises. We will have to make payments into the EU budget. And whatever we agree is likely to be less effective than what we currently have.

None of the measures in which we participate can be said to have been ‘forced’ on the UK against its will by the EU; the UK has driven many of them. Moreover, we have only opted into those measures which the government of the day has considered to be in the national interest; on everything else we remain opted out. It therefore follows that all the existing measures are necessary and any loss of capability in this area post-Brexit will cause substantive damage to the national interest, and will mean slower and less effective justice for victims of crime.

We should not forget the scale of the negotiating challenge, the short timescale available for negotiations, and the unprecedented nature of a deal granting EU privileges to a non-EU country. For the reasons outlined in this paper, it is very unlikely that such an agreement can be reached by spring 2019, given the huge complexity of the Brexit talks. The government will therefore need to include JHA measures in a transitional deal pending a final agreement. Failure to do so would have dramatic consequences.

Whatever the shape of the final deal, we will inevitably lose some of the trust that underpins our current ability to make operational requests of other EU police forces and have them carried out quickly and seamlessly, anywhere on the continent.

We will inevitably lose some control over the future direction of JHA. We have used the EU over the years to enhance our own security as well as that of our neighbours. JHA will continue to evolve, but without a seat at the table there is no longer any guarantee that it will evolve to serve UK interests.

And we will inevitably lose some of the protections that we enjoyed as members of the EU, with the possibility that a wedge will now be driven between our security relationship with the United States and our security relationship with Europe.

The biggest question for the government now is whether it will insist that the ECJ must play no part in future JHA arrangements. We may remove ourselves from its jurisdiction, but 27 Member States will continue to be bound by its rulings, which means that any agreement with the EU will result in the UK having to follow ECJ standards in any case.

Unless the government changes its position on this point, it will prevent the possibility of a bespoke deal, and will put the safety of British citizens at risk.

In 2014, the then Home Secretary Theresa May said that her government and her party would “never put politics before the protection of the British public. It remains to be seen whether this is the case.

The questions that need to be answered

  1. From what elements of the EU JHA structure will the UK become excluded and how badly will that affect UK security?
  2. Will the government attempt to negotiate a mechanism to allow the UK to participate in future JHA measures?
  3. How will the government secure and maintain operational cooperation without adopting the rulings of the ECJ?
  4. How will the UK be able to prosecute EU criminals who commit crimes in this country but go back to their own when there is no right to extradite them?
  5. How will the government legally return asylum seekers to their first EU country of arrival when we are no longer part of the EU?
  6. How will employers be able to check previous convictions in other Member States to ensure that British citizens, including children, are protected?
  7. How will child maintenance payments be sustained across EU borders?
  8. How will the UK demonstrate that its data protection provisions are strong enough to permit UK police access to EU law enforcement databases, now and in the future?
  9. How will UK police authorities be able to seize the proceeds of crime from other EU member states?
  10. What level of contribution to the EU budget will the government consider to be a ‘price worth paying’ for continued security?

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