When it comes to law enforcement and counter-terrorism, both the UK and the EU have a clear incentive to continue to cooperate. Yet incentives alone are not enough. There is a danger that, unless the British Government acts quickly to define what it wants and how it might achieve it, another Brexit cliff edge – in security rather than trade – might be on the horizon.
As Theresa May made clear in her Florence speech, law enforcement cooperation also looms large. The European Union plays an active role in most aspects of security related to criminal activity, terrorism and organized crime. And, as we argue in a detailed new report published today, if disruption to ongoing cooperation between the UK and the EU is to be avoided, time is of the essence.
To date, we have had much warm language, but little in the way of specifics from the UK Government. London wants to continue to cooperate closely with its European partners on matters of security, and it wants this to be resolved through an overarching treaty. But what, precisely, does this mean for the negotiations?
Consider data sharing. The EU runs a number of crime and security related databases. The Second Generation Schengen Information System (SIS II) provides law enforcement alerts in real time about, inter alia individuals subject to a European Arrest Warrant, enabling them to be tracked throughout Europe. The European Criminal Records Information System (ECRIS) provides information on the criminal histories of EU citizens. Meanwhile, Prüm Decisions require member states to allow reciprocal searches on each other’s databases for fingerprint data, vehicle registration data and DNA profiles.
The UK has proposed that data exchange should continue post Brexit. But simply stating this is not enough. Yes, Norway, Iceland and Liechtenstein have access to the Schengen Information System. But – and the clue is in the name – EU approval of their access was linked to their membership of the Schengen area.
This is not to say that there are no workarounds. After all, the other member states benefit enormously from access to UK data. But the details will need to be sorted. And, ultimately, it will be up to the European Commission to decide whether the UK provides adequate levels of data protection to allow for transfers.
Theresa May: UK committed to Europe’s security after Brexit
In turn, an adequacy decision implies the possibility (indeed likelihood) of ongoing EU surveillance of UK actions in areas such as data protection. Privacy issues have enormous political salience in other member states, and the UK has traditionally led on calls for greater surveillance powers. It seems likely, therefore, that the EU will insist on at least partial European Court of Justice (ECJ) oversight in this area. That in turn might have implications for the UK’s future surveillance capabilities – particularly the bulk retention of communications data, which the ECJ opposes.
Speaking of the Court, it enjoys jurisdiction over the 35 measures the UK decided to opt into in 2014, including SIS II, Europol and the European Arrest Warrant. As far as Europol is concerned, the European Data Protection Supervisor (EDPS) can refer matters related to the processing of personal data to the court. Is this a situation the British Government could tolerate after exit?
A number of non-EU countries have signed operational agreements with Europol. However, these agreements do not guarantee access to operational projects. Moreover, while Denmark secured observer status on Europol management board following its referendum on Europol membership in 2015, it is subject to ECJ jurisdiction as an EU member state, and doesn’t have direct access to Europol data.
Finally, there is the European Arrest Warrant (EAW). This requires member states to surrender individuals accused of offences that carry a penalty of 12 months or more. And, unlike other extradition arrangements, this includes their own nationals. In 2015/16, the UK surrendered 1,271 individuals and issued 241 warrants. So it’s clear that the EAW matters to the UK law enforcement community.
Given that Norway and Iceland have signed up to a form of membership, it should be possible for the UK to do likewise. Again, however, the devil is in the detail. While the Government has indicated that it wants to replicate existing provisions, it is far from clear that this would be possible. It is also unlikely that the EAW could apply to the UK during a transitional period. Long term, we might be able to get what Norway and Iceland eventually achieved – but that took years to negotiate, and that arrangement doesn’t require member states to surrender their own nationals.
Our message here is not that continued cooperation along the lines that the UK now enjoys will be impossible to achieve. Rather, it is that coming to an agreement will be fiendishly technical. It will involve trade-offs on one side or both. And it will be hugely time-consuming.
And time is running out. The Government needs to make some significant decisions. Will it seek an adequacy decision or an operational partnership with Europol before the end of the Article 50 negotiations? Will it seek access to the EAW after March 2019? If the answers to these questions are in the affirmative, a hell of a lot of work needs to be done. If they are negative, thought must be given to how these issues might figure in any transition deal, to avoid a security ‘cliff edge’ in April 2019.
Security cooperation with the EU matters to both sides. A Home Office paper prepared during the referendum campaign, reported on by the Times in August 2017, spelt out the dangers posed by terrorism and crime if UK left the EU. But the clock is ticking, and it is up to London to spell out what it hopes to achieve, and how.
By Anand Menon, Director of the UK in a Changing Europe. “Post-Brexit law enforcement cooperation: Negotiations and future options” was co-authored with Harriet Deane, Policy and Practice Fellow at the UK in a Changing Europe. This piece originally featured on The Telegraph.