Lawyers must fix the problems with gagging orders before it is too late
Since the Government’s publication of its Brexit White Paper, we appear to be inching closer to the Article 50 trigger and the grand reveal of the Government’s cards which have been kept so close to its chest. In the White Paper, we learn that Brexit now means exit and a new partnership.
However, the practical position for security and crime cooperation post-Brexit does not appear to be getting any clearer. The White Paper states that the UK will seek to continue working with the EU “to preserve UK and European security and to fight terrorism and uphold justice across Europe”. Nothing very uncontroversial so far but what does this really mean?
The White Paper lists a number of EU measures used by the UK which encourage cross-border co-operation across Europe in order to protect against crime and terrorism such as Europol, the European Arrest Warrant, and databases such as Schengen Information System II. It also explains that operational cooperation with European Partners has continued since the Referendum and will continue whilst the UK remains a member of EU. Again, not particularly controversial: whilst we are members of the EU, we will participate as EU members.
What the White Paper does not explain is how the UK will seek to retain involvement with institutions like Europol and the European Arrest Warrant after our exit, particularly if we are outside the single market.
In a recent interview, Rob Wainwright, Director of Europol, focused on the globalised threat of terror and the great danger of wholesale retreat from a multilateral approach to tackling crime and security concerns in an increasingly globalised area. The Government has said that its commitment to cooperation on cyber security will be undiminished and it will look to negotiate the best deal it can to cooperate in the fight against crime and terrorism, with public safety in the UK and the rest of Europe at the heart of the negotiation.
It is hard to envisage that the UK and other EU member states would want to be in a position where they denied the other party information or assistance in respect of security matters as it is something which is so obviously mutually beneficial. However, how this will work in practice is complicated and will require intellect and energy to put it into place. Whilst the White Paper states that the UK has been “at the forefront of developing a number of EU tools which encourage joint working”, the special treatment that the UK enjoyed under the opt-out (which allowed it to pick and choose which police and criminal justice measures it would be bound by) is unlikely to be forgotten by other Member States in negotiations.
Even putting the complexity of a negotiation to one side, ironing out the practicalities of post-Brexit EU cooperation on security and crime matters is a mammoth task that will not be easily solved even once negotiations have concluded. Let’s hope someone has a plan for doing this or it could be a costly exercise to bring us back to the position we are currently in.
Finally, for those who haven’t read it, the White Paper also explains that we are leaving the EU but not Europe. Phew!
Should you have any questions about the issues raised in this blog post please contact Áine Kervick, visit our Criminal Litigation and Brexit pages, or contact a member of our Criminal Litigation team.
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