UK-EU security cooperation after Brexit (Part I) - approaching the cliff edge

13 April 2018

Part I of a two-part guest blog by EU Criminal Law expert Dr Debbie Sayers

Speaking in Munich in February 2018, Prime Minister Theresa May declared:

“…the UK has been at the forefront of shaping the practical and legal arrangements that underpin our internal security co-operation. And our contribution to those arrangements is vital in protecting European citizens in cities right across our continent.”

The benefits to the EU and the UK stemming from EU criminal cooperation arrangements (e.g. the European Arrest Warrant, Europol, and information-sharing mechanisms such as SIS II) are self-evident. So, it is no surprise that the UK Government has consistently re-affirmed its commitment to continued participation post-Brexit. However, less than a year away from ‘Brexit-day’, little has been presented in terms of detail regarding how EU-UK police and judicial cooperation might look after withdrawal from the EU. Less still has been said about how the significant obstacles to continued UK participation in these arrangements might be surmounted.

The latest contribution to the discussion, in terms of democratic oversight, comes from the House of Commons Home Affairs Committee which has published (on 21 March 2018) its report on the implications of Brexit for EU police and criminal cooperation: ‘UK-EU security cooperation after Brexit’. This follows a line of notable parliamentary committee reports expressing similar concerns on the lack of clarity on these vital issues. The latest report confirms that these concerns have now taken on significantly greater urgency as we approach the Brexit ‘cliff edge’.

The continued lack of detail is all the more alarming given extensive previous discussion and the gravity of these issues. Back in 2016, the House of Lords EU Committee reported in ‘Brexit: future UK-EU security and police cooperation’ that there was “a real risk that any new arrangements the Government and EU-27 put in place by way of replacement when the UK leaves the EU will be sub-optimal relative to present arrangements, leaving the people of the United Kingdom less safe”.  The Committee expressed doubt as to whether the EU would be willing to establish the ‘bespoke’ arrangements the UK Government sought. It noted issues relating to the lack of precedence for such arrangements and expressed concerns about withdrawal from EU agencies and data sharing mechanisms.

In March 2017, the Justice Committee of the House of Commons further commented in its report on the ‘Implications of Brexit for the justice system’: “Continued criminal justice cooperation is a critical justice priority for Brexit negotiations: it impacts upon the safety of citizens, of both the UK and the rest of the EU”. Noting the significant potential for adverse outcomes, the Committee issued a clear plea: “we urge the Government to recognise that providing more information from that point would reduce—and therefore mitigate the risks of—this uncertainty”.

However, one year later, and one year closer to Brexit, uncertainty still reigns. The Home Affairs Committee in its latest report notes again the vital nature of EU criminal cooperation. It also confirms the importance of the UK maintaining its capabilities in full, post-Brexit, through a comprehensive security treaty. But it states that:

“Much more attention needs to be given, however, to the many complex technical and legal obstacles to achieving such a close degree of cooperation—unprecedented for any third country, particularly outside Schengen”.

The Committee is clear: “a no deal outcome in security should be unthinkable”. However, only one year away from Brexit, it is alarmingly unconvinced that the Government has a clear strategy to prevent the unthinkable from becoming a reality.

To address this, the Committee recommends that the Government dedicates a “substantial proportion” of the £3 billion Brexit planning fund to policing and security cooperation. This should include publicly providing detailed impact assessments of different scenarios, e.g. what would happen if access is lost to EU internal security measures. It should also publish fully costed contingency plans

The Committee calls on the Government to “flesh out” the details of the ‘bespoke deal’ it aspires to. It also calls for the Government to remain open to extending the transition period for security arrangements beyond the EU’s proposed end-date of December 2020. Expressing serious concerns about the Government’s apparent lack of investment and interest in contingency planning, it concludes:

“This attitude, along with lack of planning for alternative scenarios, suggests that the Government is at risk of sleep-walking into a highly detrimental outcome.”

Further information

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

In Part II of this guest blog on UK-EU security cooperation after Brexit, Dr Debbie Sayers  takes a closer look at the key instruments at stake and the foundations of EU cooperation in this area – including mutual recognition of judicial decisions based on mutual trust and common standards for data protection. See UK-EU security cooperation post Brexit - ringing the alarm bell!

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