Plugging in the British: EU justice and home affairs

Policy brief
25 May 2018
  • Police and judicial co-operation in criminal matters is one of the issues yet to be agreed in the draft withdrawal agreement between the UK and the EU. This suggests that a deal on justice and home affairs (JHA) will be no easier to negotiate than one on trade.
  • The UK government wants a ‘bespoke’ treaty with the EU, going beyond any existing deals the bloc has with other third countries. But the EU’s main guiding principle for negotiations with the UK is ‘no better out than in’. In JHA, this means that a non-EU, non-Schengen country cannot have more rights and fewer obligations than an EU member-state or a Schengen country.
  • Both are opening positions in the negotiations and are likely to evolve over time. But time is a luxury neither the EU nor the UK has.
  • The UK hopes that as negotiations proceed, the member-states will push the institutions to be more pragmatic in their thinking on future institutional ties. But Britain’s inability to come up with precise ideas does not help its cause.
  • The EU has built a network of co-operation channels with third countries on police and judicial co-operation. Because much of this co-operation touches upon the EU’s passport-free Schengen area, the EU distinguishes between partnerships with non-EU Schengen members, like Norway and Switzerland; and arrangements with non-Schengen countries like the US and Canada. None of these countries has a perfect security relationship with the EU, but Schengen members have better access to EU police and judicial co-operation than countries outside Schengen. In return, they also have more obligations.
  • Both the British government and the EU have identified three main priority areas in the negotiations: extradition agreements, access to law enforcement databases and partnerships with EU agencies like Europol.
  • On extradition, the UK is unlikely to retain the European Arrest Warrant (EAW), which is open only to EU countries.
  • After Brexit, Britain will have three options: first, it could seek bilateral agreements with the EU-27, like the US and Canada. But a system of 27 bilateral treaties would be harder to negotiate and less efficient than a single, pan-European extradition treaty.
  • Second, it could fall back on the 1957 Council of Europe Convention on extradition, a non-EU treaty, as Switzerland has done. Extradition under the Convention takes almost 20 times longer than it does with the EAW, and is heavily dependent on the state of bilateral relations between countries.
  • Finally, Britain could try to negotiate a surrender agreement like the one Norway and Iceland have with the EU. This agreement took 13 years to negotiate, is still not in force, and will allow countries to refuse to extradite their own nationals. Under such an agreement, Britain could not request Germany, for example, to extradite a German citizen who had committed a crime in the UK.
  • There is no legal base in the EU treaties for a non-EU, non-Schengen country to access Schengen data. Britain is unlikely to retain direct access to Schengen’s main law enforcement database, the Schengen Information System. After Brexit, the UK could ask Europol or a friendly EU or Schengen country to run searches on its behalf, as the US and Canada do. It will be easier for the UK to stay plugged into non-Schengen databases containing fingerprints (the Prüm databases) or air passenger data (Passenger Name Record).
  • Britain should be able to have a good partnership with Europol, as the US does. This will allow the UK to post liaison officers to Europol, but not to have direct access to Europol’s databases. Denmark, an EU country which left Europol in 2015, managed to negotiate a partnership deal with the EU, but can no longer access the agency’s databases directly.
  • The major obstacle to an agreement is that Britain’s red lines (no European Court of Justice (ECJ) jurisdiction, and no acceptance of the EU Charter of Fundamental Rights) and its stated ambitions for the future security relationship are incompatible. To speed up negotiations in this area, the EU and the UK should clarify what their future security partnership will cover, as well as its cost and shape.
  • A future security treaty should include a dispute resolution mechanism which could be a totally new court, an arbitration mechanism, or the ECJ. The treaty should be part of the wider Brexit deal, to minimise the risk of it being voted down by the European Parliament. This would also allow Britain and the EU to include a chapter on data protection that could apply both to trade and to law enforcement.
  • On JHA, as in other parts of the Brexit conundrum, the solution is likely to be a half-way house. The future UK-EU security treaty could combine elements from existing models but have a completely different shape. None of the EU’s security partners have been part of the bloc before; and security is not a zero-sum game: if Britain and the EU fail to sign a deal, the only winners will be crooks and criminals.

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