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This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Security treaty proposed to maintain cross-border policing post- Brexit.
 Briefing 
Author
Ciju Puthuppally and Sam Ruback.
Date
27 September 2017

Security treaty proposed to maintain cross-border policing post- Brexit.

A new Government paper on post-Brexit security, law enforcement and criminal justice cooperation provides a fresh indication of the future of the European Arrest Warrant (EAW) and other EU crime-fighting mechanisms within the UK. The Government's paper supports a comprehensive new security treaty to build on existing levels of cooperation with the EU, but insists that the treaty should not be subject to the jurisdiction of the Court of Justice of the European Union (CJEU).  

Background: the EU toolkit

Within the EU, the UK has contributed to and benefited from a number of EU legal instruments forming a "toolkit" of crime-fighting measures. These include:

  • the EAW – a mechanism for the extradition of suspects between EU Member States for prosecution or to serve a sentence already imposed; and
  • the Schengen Information System (SIS) II – a system providing real-time alerts for suspects and vehicles across the EU and Schengen area. 

However, the existing legal basis for the UK's access to and use of these measures will be removed by Brexit, raising the issue of how, to what extent, and importantly, in what format, that framework will be replaced.

Building on existing measures

The Government's paper announces its intention to seek a replacement that builds on existing levels of cooperation with the EU on security. Notably, it speaks favourably of the EU toolkit. Whilst not doing so explicitly, the paper therefore appears to make clearthe Government's ambition of retaining access to the EAW mechanism, notwithstanding calls to scrap it from some Eurosceptics.

Further, the Government is desperate to maintain the information sharing networks underpinned by Europol and Eurojust.  The UK has played a leading role in developing Europol in recent years and it would be regrettable if it is unable to take full advantage of the available information in the future, particularly at a time when serious and organised crime is regularly cross border.

A new, comprehensive security treaty

As regards the legal framework for future UK-EU cooperation, the Government dismisses existing models of EU partnerships with third countries. According to the paper, the effectiveness of those arrangements has been hampered by the fact that they are often only 'tool-by-tool solutions', rather than providing the full range of measures. Instead, the Government seeks an "overarching" and "comprehensive" new treaty with the EU in order to sustain "deep, broad and dynamic cooperation" in the fight against crime.

Red lines

As discussed in the first blog in this series, the major hurdle in the way of continued access to the EU toolkit is the Prime Minister's insistence that the CJEU should not have jurisdiction over the post-Brexit treaty. That position has drawn strong objections from the EU as well as domestically. However, the Government's paper appears to repeat that red line, and points to EU agreements with third countries on trade and Schengen as precedents for an overarching cooperation framework that does not involve the direct jurisdiction of the CJEU.

Conclusion

For all its ambition, the Government's paper does little to further the negotiation on the EAW and other EU crime-fighting mechanisms. Whilst the proposal of a comprehensive new security treaty confirms the scope of EU measures sought to be retained by the UK, the impasse over the jurisdiction of the CJEU means that deep uncertainties remain over the future of the UK's international security arrangements. In a similar vein to other parts of the Brexit negotiations with the EU, the rhetoric and positioning from the Government is more prominent than practical, workable solutions for the future.