Co-operating after Brexit — what’s the future for security, law enforcement and criminal justice?
15 November 2017
The Government’s paper ‘Security, law enforcement and criminal justice: a future partnership paper’ suggests that the intention is to maintain a similar level of co-operation with the EU following Brexit. However, issues such as data protection, jurisdiction and the fact that such ‘co-operation’ with a non-Member State would be unchartered territory for the EU, mean that achieving this will be far from straightforward.
What is the potential impact of Brexit on cross-jurisdictional crime investigation and enforcement?
Brexit is likely to have a huge impact on all areas of cross-jurisdictional crime investigation and enforcement within the European Union. In particular, it is unclear whether a post-Brexit UK will be able to continue to:
- participate in key EU criminal justice co-operation measures, such as the European Arrest Warrant (EAW) and the European Investigation Order (EIO);
- access EU criminal justice databases, such as the Schengen Information System, the European Criminal Records Information System (ECRIS, and data shared under the Prüm agreements; or
- play a role in institutions such as Europol and the Eurojust.
What does this new report tell us about the Government’s priorities on criminal justice and enforcement during the Brexit negotiations?
Although this paper is light on detail, references such as ‘avoiding operational gaps’ and the ‘opportunity to build on what has already been achieved through decades of collaboration’ suggest that the Government will be seeking to replicate the current arrangements as closely as possible.
In the paper, the Government emphasises three areas in particular as important:
- data sharing
- practical operational co-operation; and
- co-operation through agencies
This reflects the three main areas of EU criminal justice co-operation. Data-sharing includes access to the EU’s criminal justice databases, such as those already referred to. ‘Operational cooperation’ is a reference to arrangements such as the EIO (which the paper expressly refers to), and also the EAW and other EU mutual legal assistance measures. ‘Cooperation through agencies’ is a reference to institutions such as Europol and Eurojust. The paper makes particular reference to Joint Investigation Teams (through which EU states can jointly investigate cross-border criminal activity), a facility that the UK currently makes heavy use of.
The paper states that the UK will be seeking an UK-EU Treaty that ‘provides a comprehensive framework for future security, law enforcement and criminal justice cooperation between the UK and the EU’ although there is no detail about what, in practice, this might look like.
What are the main areas of challenge in securing agreement with the EU in this area?
The main hurdle is that, to date, the close levels of criminal justice co-operation that take place within the EU have been limited to Member States; there is no precedent for a so-called ‘Third State’ (ie a non-EU state) to have the type of co-operation relationship with the EU that is being proposed by the UK. While the UK is in a unique position as a (soon to be) former member of the EU, it is far from clear that the EU will be willing to continue its current co-operation arrangements once Brexit is complete.
A second problem is that the Government has identified ending the jurisdiction of the CJEU in relation to the UK as one of its ‘red lines’ in the Brexit negotiations. This is likely to be a significant hurdle in the context of criminal justice co-operation, where having a mechanism to ensure consistent application of any UK-EU agreement will be key to ensuring its effectiveness. Although the Government paper refers to the need to find a mechanism for dispute resolution, it is currently unclear whether the EU would be willing to enter into the type of close co-operation relationship being proposed by the UK without oversight by the CJEU.
A further area of difficulty is data protection. The UK’s ability to continue to share data with the EU is likely to depend on its continuing ability to conform to EU data protection requirements. This could mean that the UK would be required to implement EU data protection rules even after it has left the EU, and in circumstances where it has no influence over their content.
What are the key areas of concern for corporate crime lawyers?
Given the number of difficulties identified above, there is a real risk that, following Brexit, the UK will have a far less effective co-operation relationship with the EU than that which is currently enjoys.
First, the UK may have to revert to reliance on the older conventions and agreements, such as the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters. These are not based on the EU model of mutual recognition, and are slower and less effective than the current EU measures.
Second, the UK may lose some or all of its access to the EU’s criminal justice databases, and/or be required to continue to apply EU data-protection laws even after the UK has exited the European Union.
Third, it is likely that the UK will no longer play a leading role in institutions such as Europol and Eurojust, which will decrease the level of influence that the UK is able to exert in relation to EU criminal justice policy. This may lead to a divergence in approach, for example in relation to issues such as bulk data collection and data protection rules in the area of criminal justice.
Finally, it is worth noting that the Brexit negotiations are unlikely to be finished by the end of the Article 50 negotiating period in March 2019. This means that there will almost certainly be a transitional period during which the current arrangements will continue to apply.
This article was first published on Lexis®PSL Corporate Crime on 3 October 2017.