“The alligator nearest the boat” — the perilous future of UK-EU security
As the negotiations for the UK’s departure from the EU enter the new year, buoyed by the announcement that talks can move onto their second stage, the issue of the UK’s involvement in EU security structures is threatening to raise its head. One of Theresa May’s ‘red lines’, that we should leave the jurisdiction of the European Court of Justice (ECJ), casts significant doubt over how any future relationship between the UK and organisations like Europol could operate.
At the heart of the issue are the cluster of hugely important security frameworks and networks at the core of the European Union. These include Europol, which allows for intelligence-sharing between national law enforcement agencies; Schengen Information Systems II, which allows EU-27 countries to share alerts on suspected criminals and terrorists; Eurojust, which supports the co-ordination of individual law enforcement agencies in cross-border work; and the European Arrest Warrant, which means that criminals crossing into other EU countries can quickly be extradited and returned to justice.
The decision to leave the EU would most naturally assume that the UK would leave this cluster of security frameworks as well. This is what those within the EU have been assuming, with Michel Barnier saying on 29th November that EU security co-operation “will have to be developed without the British.” He added: “on 30 March 2019 the United Kingdom will, as is its wish, become a third country when it comes to defence and security issues. We must draw the appropriate legal and operational conclusions from this… the UK will no longer be involved in decision-making, nor in planning our defence or security instruments.”
This is why Theresa May’s infamous ‘red line’ to leave the jurisdiction of the European Court of Justice is so dangerous, perhaps literally. Britain currently uses Europol more than any other member of the EU-27, and UK law enforcement agencies have repeatedly said that continued close co-operation on security is of enormous importance. The National Crime Agency (NCA), who are leading for UK law enforcement on Brexit, have said that continued membership of Europol is their top priority, calling the issue “the alligator nearest the boat”. However, May has always been clear that she wants Britain to leave the jurisdiction of the ECJ, and would likely face stiff opposition from some of her MPs if she now softened her line.
May’s approach is likely to be shaped by her experience as Home Secretary, where she demonstrated her natural impulse not to trust EU law. In Article 36 of the Lisbon Treaty in 2007, Tony Blair’s government was given the opportunity to opt out of all the police and criminal justice measures adopted under the Maastrict Treaty of 1992 before the ECJ took over their jurisdiction. They were given a seven-year timeframe for doing so.
Fast forward to 2014, and just before the seven-year deadline Theresa May took the radical decision to opt out of all 130, and then to opt back in to 35 of the measures she felt she wanted. She is quoted as saying at the time that “our guiding principle was that if there is no clear purpose for a European law, there shouldn’t be a European law”. Her negotiations were mostly successful, and she was able to opt back into those 35 measures she had aimed for.
The legacy of the episode is that the model of ‘opt-out, then cherry-pick what you want’ seems to have injected unfounded optimism to the government’s attitude in the negotiations. This can be seen by the approach earlier this year where May floated the idea of leaving the single market but having certain key sectors ‘opt-in’ and enjoy membership without the jurisdiction of the ECJ. The same kind of optimism underpins David Davis’ claim that we will be able to agree a “Canada plus plus plus” trade deal with the EU. It goes without saying that both these notions have been shot down by the EU negotiating team as hugely unrealistic.
The reason why such an approach worked then, and why it won’t work now, is simple. Under the negotiation of the Lisbon Treaty, the UK government, along with Ireland, obtained such an option as a one-time special-offer because of the unique situation of that treaty. The Lisbon Treaty set up a new institutional framework for the EU, transferring the field of police and criminal justice into general law, with the ECJ having full jurisdiction. This therefore took decision-making power away from the national governments of EU-27 countries, which led to the UK and Irish governments being able to negotiate the opt-out that Theresa May would make use of.
It would be a mistake to think that the model of this one-time special-offer can be put into place on this issue of continued UK participation in the various European security frameworks like Europol or Eurojust. The major problem the UK government faces at the moment is that European law, as arbitrated by the ECJ, underpins the operations of these security organisations and structures. Lord Kirkhope, the Conservative peer who played an important role in developing the European Passenger Name Record database, has raised this with the relevant Parliamentary Select-Committee, warning that the “big problem” would be that Europol was accountable to EU institutions, “including acceptance of the competence — in interpretation terms at least — of the ECJ”.
Sir Julian King, Britain’s European Commissioner responsible for security, has raised similar issues with the difficulty of developing an appropriate legal framework for future security co-operation: “The UK has exported 8,000 people under the European arrest warrant and imported a thousand; it is an active user, but there you are talking about an element of the acquis [EU law] and legal and criminal proceedings, so you have to have some level of arbitration,” King said. “The existing level of arbitration is the European Court of Justice, so that is an issue that will have to be worked through in the negotiations.”
Other countries have managed to negotiate co-operation agreements on Europol and Eurojust without full membership, including the USA, Switzerland, and Norway. However, there are concerns about how much weaker such arrangements are compared to our current position. For example, the Crown Prosecution Service (CPS) has warned that an agreement analogous to these countries would leave us without access to crucial digital resources, such as Eurojust’s case management system, that we currently rely on.
It is difficult to see a way forward for the government that will ensure the continuing security of the country while rejecting the jurisdiction of the ECJ. As talks move onto their second phase, we should hope that the government will be able to square this circle. Such a move might require a softening of May’s ‘red line’ on ECJ jurisdiction, and one wonders whether attracting the ire of her Eurosceptic MPs would be worth it for the security benefits we so heavily rely on.
Nick Kenny is a student at the University of Oxford. His interests cover a broad range of fields, including human rights law, civil fraud, and European law.
