Negotiating a new extradition process post-Brexit: lessons to be learned from the European Arrest Warrant experience
Shortly before Christmas 2017, the EU External Affairs Sub-Committee of the House of Lords published its report into UK sanctions policy in the light of Brexit. In this discrete area of policy, the sub-committee’s key findings largely mirror many of the broader, well-publicised concerns about the consequences of the UK’s departure from the EU: uncertainty, lack of a coherent plan, loss of influence, isolation and the difficulty of establishing an effective alternative. The challenge is to secure agreement with the EU for post-Brexit cooperation on sanctions, and to do so quickly.
Sanctions form an important aspect of foreign policy and national security, allowing governments to express disapproval of and seek to change the behaviour of other states and individuals without resorting to military action. It is generally accepted that sanctions are most effective when they are applied multilaterally. The UK’s sanctions framework derives from two main sources, the UN Security Council (typically asset freezes applied by all UN members) and the EU (which extend beyond asset freezes to encompass travel restrictions, arms embargoes and other sectoral trade and financial transaction restrictions). Although less extensively used, autonomous UK sanctions and those implemented through the OSCE complete the picture.
On withdrawal from the EU in March 2019 the automatic implementation of EU sanctions will end, however our principal national interests and threats we face remain largely unchanged. The Sub-Committee expressed concern that the Sanctions and Anti-Money Laundering Bill, currently before Parliament, risks being ineffective in the absence of a formal UK-EU partnership on sanctions policy. The Bill aims to preserve those EU sanctions and designations in effect on the date of withdrawal, and to establish a legislative framework for the UK to implement UN sanctions, however it fails to provide clarity on what the Government describes as an “unprecedented” “tailored arrangement” between the UK and the EU.
In the absence of a formal agreement, the UK appears to have a number of options: to simply align itself with the EU regime, to engage with the EU informally in the formulation of new sanctions, or to rely on and develop the current autonomous regime. The first option has the benefit of simplicity and continuity, but it would render the UK without influence over an area of policy in which to date it has been a driving force and has significant expertise, something which many in the legal sphere may see as a waste. Informal engagement with the EU – such as that currently exercised by the US – would likely be valuable, but again would deprive the UK of any formal influence. Reliance on our own autonomous programme may be possible (not least because we have the skills and the capacity), but alignment with existing international regimes would be all but inevitable for any such programme to be effective, which calls into question how “autonomous” it could actually be.
Ultimately, sanctions cannot be viewed in isolation from broader foreign policy objectives. How the current situation unfolds will be governed by how the UK ultimately chooses to pursue foreign policy post-Brexit, whether the UK can manage to maintain its authority and leadership in key foreign policy areas and – crucially – whether the EU is prepared to reciprocate. As with so many Brexit-related issues, there is a significant tension between the aspirations of independence and the practical benefits of membership, to which as yet no solution is apparent.
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