Developing a partnership on security and criminal justice co-operation is a key priority for both the UK and the EU after Brexit. That much is evident from the recently published negotiating positions of both the UK and the EU.
A reading of these documents reveals a common ambition of the two parties to ensure post-Brexit effectiveness in the field of judicial co-operation in criminal matters, particularly the continuation of speedy co-operation in extradition, and of mutual legal assistance on the basis of strict deadlines. According to the EU, the latter, and criminal records exchange arrangements, should approximate the pre-Brexit status quo.
Both the UK and the EU aspire to maintain data exchanges: passenger name records data, DNA and fingerprint data (exchanged within the EU under the so-called Prüm framework), and information on missing persons and objects.
Both parties’ negotiating positions acknowledge that the UK will be treated as a third state vis-à-vis the key criminal justice agencies Eurojust and Europol after Brexit – while the UK is seeking a close relationship with Europol in particular.
Notwithstanding this apparent common ground, the development of UK-EU criminal justice co-operation after Brexit faces a number of institutional, constitutional and legal challenges.
The challenge of human rights
A key challenge for co-operation can arise from the different approaches the UK and the EU take regarding the status of human rights in the post-Brexit legal landscape.
For the EU, respect for and safeguarding of human rights, democratic principles and the rule of law, including the UK’s continued commitment to respect the European Convention on Human Rights (ECHR), constitute essential elements for post-Brexit cooperation.
For the EU, the future partnership should provide for automatic termination of law enforcement and judicial co-operation if the UK were to denounce the ECHR. It should also provide for automatic suspension if the UK were to repeal domestic law giving effect to the ECHR.
The UK mandate takes a different approach, stating that the agreement should not specify how the UK, or indeed the EU’s member states, should protect and enforce human rights and the rule of law within their own autonomous legal systems.
The difference in approach may have a significant negative impact on post-Brexit criminal justice co-operation if the UK withdraws from the ECHR or repeals the Human Rights Act.
The challenge of data protection
A more specific challenge involves the role and position of data protection, and here the negotiating positions seem to diverge greatly.
For the EU, data protection is a pre-requisite for co-operation: its mandate calls for full respect of the Union’s personal data protection rules, including its decision-making process as regards adequacy decisions. The problem here is that recent case-law of the ECJ suggests that the determination of adequacy may be problematic, as current UK law on the bulk collection of personal data is contrary to EU data protection law.
The UK mandate on the other hand attempts to shield and separate data protection from the main body of negotiations by treating it as a technical issue under a separate part of the document.
The challenge of the UK as a non-Schengen third state
The UK’s negotiating mandate calls for close co-operation on criminal justice on the basis of precedents in EU relations with other non-members, in particular Norway, Iceland, Switzerland and Liechtenstein.
However, what distinguishes these states from the UK is that they are Schengen members. It is difficult to see how their privileged position can be extended to a non-Schengen third state, such as the UK, especially regarding access to related databases, such as the Schengen Information System.
This differentiation is recognised in the EU mandate, whose underlying principles are that a non-member of the Union cannot have the same rights and enjoy the same benefits as a member. This differentiation may be crucial in delimiting the level of ambition in – and closeness of – EU-UK co-operation.
The challenge of the role of the ECJ
A broader institutional challenge involves the future role of the ECJ. The EU wants criminal justice co-operation under an overall governance framework which includes rules on dispute resolution. This would see questions on the interpretation of EU law end up before the ECJ for a binding ruling.
The UK, on the other hand, envisages a post-Brexit security treaty as a separate agreement governed by its own rules and with no role for the ECJ – citing existing precedents of agreements using political forms of dispute resolution.
Whether a separate UK-EU ‘security treaty’ will be concluded remains to be seen, and the ECJ will remain relevant in the post-Brexit landscape whether or not it has a dispute resolution role.
The interpretation by the ECJ of EU data protection law is a key example in this context, as it forms the benchmark which must be respected by EU institutions when embarking on the adoption of adequacy decisions.
Conclusion: The ongoing relevance of EU law after Brexit
While there appears to be a recognition of the mutual benefits of close EU-UK criminal justice co-operation after Brexit, its degree and intensity will depend on addressing a number of broader, institutional and constitutional challenges.
The question at the heart of the future relationship is the extent to which common ground can be found while both the UK and the EU can claim that the autonomy of their internal systems has been preserved.
As I have noted in detail elsewhere, EU law and its subsequent development either through legislation or through interpretation by the ECJ, will be relevant in forming the benchmarks for future co-operation.
In the rapidly growing field of criminal justice, where the protection of human rights has become increasingly important in EU law, dynamic alignment with EU standards will be central to close co-operation. It is difficult to see how the EU could accept close co-operation – perhaps even approximating intra-EU levels – with a non-member whose standards fall notably lower than the ever-evolving body of EU law.
Moreover, we must remember that member states, in their external action and bilateral relations with third states, are bound by EU law and must uphold EU standards.
Thus, for example, a French judicial authority receiving a European Arrest Warrant-type request from their UK counterparts after Brexit will not execute it if human rights standards are thought to fall below the EU benchmark.
Therein lies the Brexit paradox: that in order to sustain a close relationship with the EU, the UK will have to align with rules on which it has had no influence.
In the field of criminal justice, this will represent a steep change from the pre-Brexit days where the UK, as an EU member state, was afforded the right to ‘opt-out’ from legally binding EU law.
By Valsamis Mitsilegas, professor of European Criminal Law and Global Security and Deputy Dean for Global Engagement, Queen Mary University of London.