The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
Part II of a two-part guest blog by EU Criminal Law expert Dr Debbie Sayers
In my previous blog “UK-EU Security cooperation after Brexit: approaching the cliff edge”, I examined the House of Commons Home Affairs Committee report UK-EU security cooperation after Brexit and highlighted MPs concerns as to the Government’s apparent lack of investment and interest in contingency planning. To that end it concluded:
“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.”
In this blog I would like to take closer look at the key instruments at stake and the foundations of EU cooperation in this area – mutual recognition of judicial decisions based on mutual trust and common standards for data protection.
The UK, as a non-Member State, may stand outside these trust arrangements with the result that Brexit may require the creation of wholly unprecedented third-party relationship with the EU across many areas of police and judicial cooperation. This has led to the Committee expressing “strong concerns” in relation to possible consequences and lack of detail in four key areas:
Europol is described as “the jewel in the crown of EU law enforcement cooperation”. The UK is a political leader and prime actor in Europol’s activities which are critical in terms of fighting serious crime. Post-Brexit, the UK becomes a ‘third country’ (a non-EU Member State). The Committee notes that, although Europol has both ‘strategic’ and ‘operational’ agreements with third countries (full membership is reserved for EU Member States), such an agreement with the UK would be “a clear diminution in the UK’s security capacity” Denmark provides the closest precedent but even its relationship —as a Member State under the jurisdiction of the Court of Justice of the EU (CJEU)—falls short. The report calls upon the Government to clarify whether the arrangement it seeks will preserve current capabilities in full. This includes: a seat on the Europol Management Board, with a say in the strategic priorities and direction of the agency; the stationing of UK officers and staff and national experts at the Europol headquarters, with the capacity to lead cross-border operations; and direct access to Europol’s data-sharing and intelligence products. There is no precedent for such arrangements and the UK’s continued reluctance to embrace the jurisdiction of the CJEU (despite its declaration that “when participating in EU agencies the UK will respect the remit of the European Court of Justice”) remains an additional significant barrier.
The Committee concludes that the efficiency and effectiveness of the EAW is “beyond doubt”. It has vastly speeded up the extradition process and a return to reliance on the Council of Europe’s Convention on Extradition is considered unacceptable (the EAW is said to operate “three times faster” and be “four times less expensive”). Losing access to the EAW could make the UK a safe haven for criminals and the lack of detail around the arrangements for transition and afterwards are a cause for “real concern”. It is not clear how the issue will be resolved. Again, there is no precedent for full participation in the EAW for a non-EU Member State and the UK’s willingness to accept the jurisdiction of the CJEU remains in question. The EU has a specific surrender agreement with Norway and Iceland which took 13 years to agree and which has not yet been ratified. This agreement falls short of the EAW mechanism. A bespoke arrangement may be required but this may place constraints on the UK’s extradition capabilities. The committee concludes: “there are serious legal and constitutional obstacles to achieving an extradition agreement that is equivalent to the existing European Arrest Warrant” and that greater transparency and planning is required.
Despite the Government’s belief in the value of EU data sharing mechanisms, it still remains unclear how the UK will achieve access to them post-Brexit. The mechanisms include: SIS II, the EU Directive on passenger name record (PNR) data, the Prüm Decisions, the European Criminal Records Information System (ECRIS), and the Europol Information System (EIS). Access to these databases is dependent on either EU or Schengen membership with no precedent for third country access. To further complicate matters, the EU requires a data ‘adequacy decision’ to be made by the European Commission, in order for EU countries and agencies to share law enforcement data with a third country. This may lead to increased scrutiny by the EU over the UK’s data protection regime including national security legislation (presently national security remains the sole responsibility of EU Member States). This may involve analysis of the controversial powers conferred by the Investigatory Powers Act 2016.
The Committee notes that "it may be very difficult" for the UK to continue to access EU law enforcement databases while maintaining its ‘red line’ on the direct jurisdiction of the CJEU. The UK has not fully incorporated EU data protection rights into domestic legislation which may present a problem in terms of the adequacy of UK laws. The role of the CJEU remains an issue as is shown in its rulings on the transfer of EU data to the USA and Canada (where the court effectively struck down the Commission’s adequacy decisions). The Committee concludes that, where data protection is concerned, it would be unwise to make the CJEU’s jurisdiction a “red line” issue.
Given the complexity of the outstanding issues, the Committee has warned the Government against assuming that “the shared UK-EU interest in security cooperation will lead to swift and easy agreement of complex legal and constitutional problems”. Committee Chair, Yvette Cooper, describes the report as “ringing the alarm bell before it is too late” because the costs of failure are “unthinkable".
If you have any questions about the issues raised in this blog, please contact a member of our criminal litigation team.
You may also be interested in reading Part I of this guest blog on UK-EU security cooperation after Brexit by Dr Debbie Sayers - UK-EU security cooperation after Brexit - approaching the cliff edge.
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