Plugging into EU Justice and Home Affairs policies

Regardless of which political party wins the UK’s General Election on 8 June, Brexit negotiations will commence in earnest from 9 June. One issue that will have to be discussed is the relationship the UK will have with the EU regarding organised crime and terrorism. Coming in the form of offences like the trafficking of human beings, drugs and firearms, organised crime is transnational in nature.

It involves international terrorist groups such as Al Qaeda and Islamic State, and often individuals move through continental European states to the UK. This was exemplified in the recent tragic attack at the Manchester Arena on 22 May where it was reported the British born bomber Abedi had links to Libya and had reportedly travelled from Syria days before the attack. As such the UK needs to maintain co-operation with other European states, preferably at the same level it has been while a member of the EU.

The EU’s Justice and Home Affairs Council and Commission (JHA) was set up as part of the Maastricht treaty to foster enhanced justice and police cooperation amongst member states. Although its original remit was to deal with drug related offences, over time the JHA has broadened this to include all forms of organised crime and terrorism.

To assist member states in dealing with these crimes the EU created its own policing agency, Europol. Europol staff do not have any police powers such as the ability to arrest persons or search premises, it is primarily an intelligence agency that also assists member states’ policing agencies investigations. Europol has had many successes in bringing together joint operations between member states’ policing agencies in areas ranging from drug trafficking, trafficking of human beings and the arrest of international paedophile rings.

JHA also introduced initiatives such as the European Arrest Warrant (EAW). EAWs are issued to arrest somebody where evidence received by investigators leads to reasonable suspicion the named person has committed an offence. The particular offence must be a crime in both the country issuing the warrant and the country receiving it.

The EAW is a quick, cost-effective and efficient method of extradition between EU member states that replaces separate extradition agreements that had previously existed between them. In 1998, the UK proposed the EAW on the assumption that by promoting mutual recognition of judicial decisions, further intervention from EU institutions in the area of criminal procedure could be avoided. The UK makes frequent use of EAWs.

In 2015 it requested 228 EAWs leading to the arrest of 150 people; 121 surrendered due to the EAW. In 2015-16, the UK received 14,279 EAW requests from other member states: 2,152 were arrested and 1,271 surrendered. More than 90per cent of those arrested in the UK in 2015 under an EAW were non-UK citizens. The EAW has been a useful tool in investigations and the UK should attempt to maintain access to it after Brexit. As seen in the data, this has not been a one-way street solely benefitting the UK, EU member states have also benefited from the UK’s processing their EAW requests.

Europol’s current Director is a UK senior police officer, Rob Wainwright and a number of Europol staff are UK police officers seconded to the agency. One could argue that during Rob Wainwright’s tenure Europol’s model of intelligence gathering, analysis and sharing has been based on the UK model. Brexit could result in UK policing being unable to maintain the benefits of JHA such as Europol’s services in assisting and co-ordinating transnational investigations.

The advantages of a close working relationship are exemplified by Europol’s recent initiatives. One is the setting up of the Europol Internet Referral Unit in 2015. The Unit aims to search and remove social media accounts run by or linked to the terrorist group Islamic State (IS) in an effort to tackle the growing threat of unopposed jihadi propaganda online.

This specialist team is modelled on the UK’s Counter-Terrorism Internet Referral Unit, (CTIRU), a joint Scotland Yard and Home Office unit. In addition to removing the social media accounts, the Europol Internet Referral Unit is also tasked with co-ordinating and sharing information about terrorist and extremist online content among EU member states and countries outside the EU. Also, in relation to terrorist activity Europol created the European Counter-Terrorism Centre (ECTC) in January 2016 that focuses on:

  1. Tracking foreign fighters;
  2. Sharing intelligence and expertise on terrorism financing;
  3. Monitoring online terrorist propaganda and extremism;
  4. Illegal arms trafficking;
  5. International co-operation among counter-terrorism authorities

These Units allow EU member states’ policing agencies swift access to intelligence and immediate co-operation, something that could be lost to the UK post-Brexit.

It is evident that in relation to transnational organised crime and international terrorist activity UK policing agencies will have to deal with Europol post-Brexit. If the UK is to maintain the benefits of JHA polices like those outlined above it will take determined negotiations for this to happen, which no doubt will be a difficult task.

As highlighted above, the UK’s participation in these policies has also benefited EU member states and it will be in their interest to grant the UK some kind of deal. One of the contentious issues will be the protection of personal data in intelligence exchanges. But here UK negotiators will be able to point to the UK’s Data Protection Acts of 1998 and 2016, which incorporate EU law and provide sufficient safeguards in protecting citizens’ personal data.

If the EU does not allow the UK to have a closer participation in JHA policies then the UK will probably lose access to the EAW, and will most likely have to negotiate separate extradition agreements with the remaining 27 member states and agreements with Europol regarding intelligence exchange. This outcome is more likely to result in lengthier delays in extraditing criminals and terrorists, slower intelligence exchange and weaker ties between police officers in the UK and the remaining member states.

By Dr David Lowe, principal lecturer at Liverpool John Moores University’s Law School

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

View all analyses
x

Subscribe to our fortnightly newsletter

Get a round-up of The UK in a Changing Europe’s latest analysis pieces, videos, explainers, podcasts, reports, events, infographics and more, written by the organisation’s director Anand Menon. PS his mum says it’s "quite good".




Sign up to our newsletter





View our latest newsletter