Brexit ‘no deal’ would hit criminal justice across Europe, says think tank

By on 10/09/2018
Europol headquarters in the Hague, the Netherlands: Brexit threatens cross-European cooperation on criminal justice issues (Image courtesy: OSeveno).

Failure by the UK and European Union to reach a deal over law enforcement cooperation after Brexit could harm the ability of both parties’ crime agencies to bring criminals to justice, according to UK think tank the Institute for Government (IfG).

In a report released last week, the IfG said that a no-deal scenario could make extradition between the two jurisdictions harder, while police forces will no longer be able to access each other’s policing information to catch criminals.

While the UK would be hit harder by reduced cooperation, EU member states would also suffer from a failure to reach agreement on policing cooperation, the report said. “Therefore, negotiators should ensure that discussions on the future security relationship are not affected by the parallel negotiations on the future economic relationship between the UK and the EU,” it concluded. “There will be winners and losers from the eventual trade deal; but both sides will lose out if a criminal can evade capture or prosecution simply by crossing the Channel.”

Extradition & data undermined

If the two sides cannot negotiate a new agreement, the report said, arrangements on extradition will revert to the European Convention on Extradition – a much slower process than the current European Arrest Warrant. This convention also offers more grounds for refusal on the part of the state receiving the request, and for appeal by individuals subject to a request.

On information cooperation, the UK would lose access to the SIS II database, which contains almost 76.5m alerts on missing and wanted people and objects. Furthermore, both sides would lose from the UK’s withdrawal from the European Criminal Records Information System, which provides information on individuals’ interaction with the police and courts.

“The UK notifies member states of new convictions of their nationals more often than all but three other member states,” the report said. “This information is crucial for other member states if their nationals were to return home and is particularly valued where a conviction may have an impact on the nature of future employment, for example with convicted sex offenders.”

Threat to Europol

In addition, losing access to Passenger Name Record data from the UK, “which is an aviation hub and has the EU’s largest airport in London Heathrow, would also create a significant gap for other member states,” the IfG said.

And if a no-deal leads to the UK being demoted to the status of an “operational partner” of policing agency Europol, other member states would have to divide up its current workload. “The UK has been leading on 25 of the 150 operational actions that Europol had planned for 2018, and of the EU’s 13 priority crime areas the UK is the ‘driver’ on two and ‘co-driver’ on a further four,” the report said. “None of these leading roles would be possible as an operational partner, and would need to be taken on by other EU countries in the absence of the UK.”

The potential problems identified by the IfG would be particularly acute on the island of Ireland, where recourse to EU law enforcement tools “helped to depoliticise what was a very sensitive issue of police and judicial co-operation during the second half of the 20th century,” the report added.

Both sides should bend

The IfG believes that both parties should soften their red lines over law enforcement in order to prevent a damaging no-deal scenario. Although both sides are keen to reach a deal, there is a significant gap between their respective negotiating positions, according to the report.

“The UK is trying to get as near as possible to maintaining existing arrangements when it is outside the EU,” it said. “The EU, on the other hand, is only offering slightly more than the access available to current third countries (that is, those not in the EU).”

Currently, even the non-member countries with the closest security co-operation with the EU – including Norway and Switzerland – cannot access all EU criminal databases, are not full participants in Europol, and have more complicated extradition arrangements with the EU, the report said.

However, one of the report authors, IfG researcher Maddy Thimont Jack, said that it might be possible for the EU to compromise. “A key EU red line is not to offer more to the UK than it currently does to its non-EU Schengen neighbours,” she said. “But it should recognise that the UK is likely to remain an important partner – the high number of EU citizens living there is unlikely to drastically decrease, and the number of goods and services moving across the border are still likely to be high – so it should consider a close relationship which goes beyond existing models.”

In return the UK, she said, should consider giving up more of its current bespoke arrangements – for example, with regard to extradition and procedural rights.

About Colin Marrs

Colin Marrs is a journalist specialising in local and national government, as well as architecture and the built environment. Colin previously worked as digital content editor at Campaign, the advertising industry "bible".

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