Criminal Cooperation, Brexit and the devolved nations: where are we and what is the way ahead?

Anni Pues

Brexit and Rights Engagement Network

Brexit and Rights Engagement Network



Brexit will bring to an end judicial and police cooperation between the UK and the EU as we know it. The UK government seeks to retain key elements through a specific ‘security treaty’. Its White Paper from July 2018 envisages that for the area of ‘internal security’ practical cooperation will continue to be based on the European Arrest Warrant (EAW) and the European Investigation Order (EIO). It also expects that the UK will continue to participate in key agencies (Europol and Eurojust), and in the exchange of data. In short, the UK Government envisages a treaty that very closely resembles the status quo.

© European Communities , 2009   /  Source: EC – Audiovisual Service   /   Photo: Thomas Haley

How likely is a security treaty?

Security will most likely be the area in which both sides find it easiest to agree common ground. EU Chief Negotiator Michel Barnier explained that the EU wants very close security cooperation, and – comparing the visions of both sides – the EU and the UK do not seem to be far apart in the area of ‘internal’ security. This is hardly surprising given that the UK is one of the main providers of intelligence and information fed into the European data systems, and the UK is one of the main users of the EAW to date. However, how both sides would be able to put in place a distinct treaty arrangement with less than eight months to go – and no negotiations held in that area to date – remains to be seen. But the conclusion of any security treaty is highly unlikely if the UK does not achieve any overall Brexit deal. Any hard Brexit scenario would run the risk that the UK and its devolved nations lose key tools in the fight against crime and terrorism. The clock is ticking ever more loudly.

Impact on devolved nations in a hard Brexit scenario

If the EU and the UK are unable to reach an agreement that resembles the status quo, this will have a direct impact on devolved competences as justice and policing are devolved matters. In Scotland, the Crown Prosecution Office deals with issuing and executing European Arrest Warrants (EAW) and the European Investigation Order (EIO). These forms of practical cooperation therefore directly impact on the administration of justice in the devolved nations. Also, as the police forces are another devolved matter, participation in agencies such as Europol is directly affected. Currently, Scottish police officers sit side by side with their counterparts from across Europe and allow other police forces to cooperate in the investigation of any cross-border crime. Such direct co-operation will no longer no longer take place. The legal foundations for the direct data exchange via SISII will cease to apply, making it highly unlikely that the UK, and with it the law enforcement agencies of the devolved nations, have access to this data base.

The European Arrest Warrant in focus

The European Arrest Warrant (EAW) is a key tool in cross-border criminal justice cooperation. Since its creation, the UK as a whole – and with it all devolved administrations within the UK – have made extensive use of it. Although Brexit-day is still seven months away, the impact of Brexit can already be felt. The continued application of the EAW has been challenged in two cases in which Northern-Irish authorities sought the surrender of suspects for offences such as murder, arson and rape. The High Court in Ireland requested a preliminary reference of the Court of Justice of the European Union whether, in light of the UK on 29 March 2017 having given notice of its intention to withdraw from the EU, and the uncertainty as to the arrangements which will be put in place after the UK’s withdrawal, it is required to decline to surrender to the UK a person subject to a EAW whose surrender would otherwise be required.

The Advocate General issued his opinion on 7th August arguing that Brexit should not affect the execution of an EAW. He recommends:

The …following [test]: at the moment of executing the EAW, the judicial authorities of the executing Member State can expect the issuing Member State, with respect to the person actually being surrendered, to abide by the substantive content of the Framework Decision, including for post surrender situations after the issuing Member State has left the EU. Such a presumption can be made if other international instruments will continue to apply to the Member State that has left the EU. Only if there is tangible evidence to the contrary can the judicial authorities of a Member State decide not to execute the arrest warrant.

In other words, the Advocate General expects the UK to ensure continuous application of the rights that are enshrined in the Charter of Fundamental Rights of the EU and the European Convention of Human Rights. He seems to extend the principle of mutual trust to a post-Brexit scenario. However, it should be recalled that the Conservative Party stood in the 2017 election pledging in its manifesto that – while repeal or replacement of the Human Rights Act would be ruled out “while the process of Brexit is under way” – consideration would ‘be given to the UK’s “human rights legal framework” when Brexit concludes.’ Additionally, May only pledged that the UK remains party to the European Convention on Human Rights (ECHR) during this parliamentary term. Does the refusal to incorporate the EU Charter of Fundamental Rights combined with the reluctance to commit to the ECHR in the long run instil trust in the commitment to guarantee fundamental rights?

The EAW in the triangle of freedom, security and justice

Any judgement must interpret the law taking into account that the underpinning object and purpose of the EAW was to back-up the freedom of movement with the security aspect of effective law enforcement. With Brexit, this objective cannot be achieved any longer in relation to the UK. If we envisage the EAW in the triangle of freedom, security and justice, once the cornerstone of freedom falls away, the Court must strive to balance the security needs (giving effect to the EAW until the UK has effectively left the EU) through an increased emphasis on the justice element. Perhaps the right balance between security and justice can be struck if the Court requires a case-by-case assessment for the remaining operational period of the EAW and an increased use of guarantees to be given by the issuing Member State UK to adhere to the substantive framework, providing these guarantees with full effects in British Courts. In the long run, however, it is required that we start rethinking the justice component to secure effective human rights protection and the continued rule of law. The judicial systems of the devolved nations will have to play an important part in this challenge.

Anni Pues
University of Glasgow
Dr Anni Pues is Lecturer in International Law at the University of Glasgow. Her research interests lie in the field of international criminal law, public international law, human rights, and EU law.

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