Guest blog: Brexit and police and judicial cooperation: it’s time “to speak the truth”

27 June 2018

In a frank and highly publicised speech in Vienna this week, the EU’s chief Brexit negotiator, Michel Barnier, set out the reality of Brexit for the future of UK/EU police and judicial cooperation.

The EU’s position: four pillars

While highlighting the self-evident need for the EU and the UK to continue to “cooperate strongly” on security, M. Barnier laid out four pillars which will govern the EU’s negotiating position on the future partnership with the U.K:

  1. the effective exchange of information. Based on the UK's positions, M. Barnier says “our cooperation will need to be organised differently. It will rely on effective and reciprocal exchanges, but not on access to EU-only or Schengen-only databases”;
     
  2. cooperation between law-enforcement officials. The UK “will not be in a position to shape the strategic direction of EU agencies” and UK representatives will no longer take part in meetings of Europol and Eurojust management boards;
     
  3. judicial cooperation in criminal matters. There may be streamlined extradition processes based on the slow and costly Council of Europe Convention on Extradition but M. Barnier makes it crystal clear that the UK “cannot take part in the European Arrest Warrant”. This is because the UK “is not ready to accept the free movement of people, the jurisdiction of the Court and the Charter of Fundamental Rights”; and
     
  4. measures against illegal financial activities committed by terrorists.

The parameters laid down in M. Barnier’s speech will change the face of EU/UK cooperation but while “it is particularly hard to speak about what will no longer be possible”, the chief negotiator has decided “I have to speak the truth.”

The UK is hamstrung by its own “red lines” (refusing to accept the Charter or the jurisdiction of the Court of Justice of the EU (CJEU) which leaves the EU with no choice but to state we “cannot expect Member States to continue cooperating with the UK without these safeguards [e.g. CJEU oversight, the Charter]. These are not bureaucratic issues; this is about the lives and liberties of our citizens.”

Where does this leave the UK’s position?

So where does this leave the UK’s position on Brexit? Frequently politically ambivalent to EU cooperation in this area, while operationally and strategically reliant on it, the UK Government has found itself exposed by the Brexit negotiations. It has floundered from no position to untenable position during negotiations which have, to date, achieved very little. It has now had its most recent proclamation – an intention to secure a unique, bespoke treaty with the EU -, “a new, more ambitious model for cooperation” (see previous Blog) – doused with cold reality by Michel Barnier.

The lack of realism in the UK’s position emanates from its pre-occupation with squaring the circle: i.e. needing to act “in a way that is consistent with both the result of the referendum” while wanting everything to remain pretty much as it was. The EU is now stating clearly this will not be ‘business as usual’. For the EU, Brexit, means precisely that. The UK is leaving the EU. It will be a third country. It may no longer be part of all the complex and interconnected EU cooperation arrangements (for details see Blog I and Blog II). It will not be part of the club.

This was an inevitable response to the UK’s approach. Not only is time running out for a revolutionary treaty between the EU and a third country, this position ignores the fact that EU membership has specific legal and political value and the EU is unlikely to stand by and watch it being diminished. It simply cannot allow the UK to get a better deal, or the same deal, as it had when it was an EU Member State. Otherwise, what’s the point of membership?

The UK’s position also overlooks the unique nature of the EU justice and home affairs (JHA) project. The EU has created “an area with one external – but no internal - border”. An area built on common legal rules and standards. An area in which rights are protected by the CJEU.  An area of trust. Whether or not we buy into the existence of this trust between Member States, it has meaning. It requires checks and balances. It requires accountability. As M. Barnier puts it, “[t]rust does not fall from the sky”, it is founded on an "ecosystem" based on common rules and safeguards, shared decisions, joint supervision and implementation and a common Court of Justice”. Put simply, it requires EU membership. Thus:

If you leave this "ecosystem", you lose the benefits of this cooperation. You are a third country because you have decided to be so. And you need to build a new relationship.”

The UK is being warned that it cannot unilaterally define the nature of this new relationship. From an EU perspective, a Member State cannot choose to leave the club while still retaining all the benefits of club membership.  A recent presentation from the Brexit Negotiation Task Force confirms that this risks the integrity of the JHA area. Hence, “more realism on what is possible and what is not” is required. Urgently.

Living with the consequences

The UK is a core actor in the JHA project. The director of the UK surveillance agency GCHQ, Jeremy Fleming, has this week delivered an unprecedented speech at NATO selling the “critical role” the UK has played a in disrupting terrorist operations in at least four European countries over the last year alone. Highlighting the crucial need for this cooperation to continue.

The EU is now making clear that, although this cooperation is hugely valuable, the UK has made a choice and it will have to live with it. The EU will not be blamed for the consequences of Brexit. In M. Barnier’s words:

They want to maintain all the benefits of the current relationship, while leaving the EU regulatory, supervision, and application framework. And they try to blame us for the consequences of their choice."

Once again, we will not be drawn into this blame game. It would mean wasting time we don't have.”

This guest blog was written by Dr Debbie Sayers.

Further information

If you have any questions about the issues raised in this blog, please contact a member of our criminal litigation team.

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