LERU Brexit Seminar
Justice and Home Affairs Law is one of the most controversial areas of cooperation between the United Kingdom (UK) and other European Union (EU) member states. Although the participation of the UK in such measures has been inconsistent and progressed on a case-by-case basis, the mutual benefits ensuing from the collaboration in security matters are undeniable.
By looking at the current EU institutional architecture, the relevant provisions can be found in Title V, Chapter 4 and 5 of the Treaty on the Functioning of the EU (TFEU). These provisions form integral part of the Title devoted to the Area of Freedom Security and Justice (AFSJ). The EU instruments in police and judicial cooperation cover four main areas: approximation of substantive criminal law; measures of mutual recognition; police cooperation; establishment of specialised EU agencies.
The geometry of the UK involvement in this area varies, depending on whether a pre or post-Lisbon Treaty measure is at stake. According to Protocol 36 TFEU, the UK was allowed to opt-out en masse from all of the instruments it had signed up to before the Lisbon Treaty. The UK could then request an opt-back in some of those acts. The UK exercised the general opt out in December 2014 and to opt back in to 35 measures. These include flagships of EU criminal law such as the European Arrest Warrant Framework Decision.
According to Protocol 21 to the TFEU, the UK default position is that it does not take part in the post-Lisbon measures in police and judicial cooperation. This nonetheless, it can notify its intention to take part either at proposal stage or after adoption. The UK has opted in to several of these measures, such as the Directive on the European Investigation Order (establishing a system of mutual recognition of evidence). A closer look at each individual group of provisions referred to above can give a clearer idea of the legal issues involved.
As for substantive criminal law, the UK agreed to common rules on the definition of offences and levels of penalties. An example in this respect is Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography. Instruments of procedural criminal law feature measures of mutual recognition, on the one hand, and individual rights in criminal proceedings, on the other. Mutual recognition applied to judicial cooperation entails that a judicial decision issued by member state X to member state Y against the person Z must be recognised by Y automatically and without further formalities, unless grounds for refusal apply. The most prominent example is the Framework Decision on the European Arrest Warrant. The EU – with the UK joining – has also approved measures approximating rules on certain aspects of procedural rights – eg Directive 2012/13/EU on the right to information in criminal proceedings. In terms of police cooperation, two main sets of provisions can be identified. Firstly, there are specific rules on exchange of information. Part of these are included in the Schengen acquis on police cooperation such as the Schengen Information System, of which the UK is part. Secondly, operational co-operation – eg Joint Investigation Teams – must be mentioned. Lastly, there are instruments establishing the specialised agencies Europol and Eurojust, which have an important role of coordination.
The EU law on police and judicial cooperation in criminal matters encompasses a plethora of different instruments. To understand what the consequences of Brexit could be, the distinction between static and dynamic measures must be kept in mind. Static measures are those that – like approximation of rules of substantive and procedural criminal law – have no cross-border element, and have essentially purely internal relevance. Most – and the most important – instruments, however, are dynamic in nature. This means that they build on or require interaction with other member states. In other words, an agreement is needed for the EU and the UK to be part of a system of smooth surrender of persons suspected or convicted of a crime, access to law enforcement databases, partnership with EU agencies. Brexit without agreement would mean falling back on legal regimes – assuming even there is one – such as the 1957 Council of Europe Convention on Extradition that would make cooperation extremely lengthier, more expensive and cumbersome. Even the scenario where an agreement (or more sectorial agreements) is reached, pitfalls are around the corner. Any deal is likely to require the UK to remain aligned with EU data protection legislation – and with EU fundamental rights law more broadly, as pointed out by the House of Lord’s report ‘Brexit: the proposed UK-EU security treaty’. Similar considerations apply to the role of the EU Court of Justice as interpreter thereof. Furthermore, the non-EU countries have entered in particularly close forms of collaboration in justice and home affairs have accepted in full the Schengen acquis, which the UK has not even as a member state.
With a few months left before the 29th of March 2019, there seems to be no significant progress toward the establishment of a common legal framework in police and judicial cooperation after Brexit.
These findings are part of a broader research carried out with Maria Fletcher, Senior Lecturer in EU Law at Glasgow Law School.
University of Edinburgh
Dr Leandro Mancano is Lecturer in European Union Law at the University of Edinburgh. His research interests include EU constitutional law, EU fundamental rights law, Justice and Home Affairs policy and deprivation of liberty.
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