The UK left the EU without detailed alternative arrangements in place in many key areas including justice and security. It is, for example, no longer a signatory to arrangements concerning cross Europe policing and criminal justice cooperation. This should be a major concern as lack of adequately resourced processes and procedures to replace pre Brexit processes and procedures aimed at coordinating efforts across EU member states and other states with whom the EU has agreements. The UK effectively going it alone without properly negotiated arrangements in place leaves dangerous gaps in justice and security provisions that could be exploited. The UK no longer has straightforward access to previously accessible databases vital to security. The present reality is that vitally important arrangements, such as a satisfactory alternative to the European Arrest Warrant (EAW), have as of January 2021 yet to be negotiated, and until this work can be done the assumption is that the UK will simply adopt a similar (inferior) arrangement that currently applies to Iceland as an interim measure, often referred to as EAW lite. The current situation simply beggars belief.
Article 8 of the withdrawal agreement is pretty clear regarding the fact that the UK will no longer enjoy access to all the very useful databases and tools that it has it has hitherto benefited from as an EU member. Extradition arrangements are just one example of a process that as a result of withdrawal has now become a lot more lengthy and complex. The UK simply does not have a treaty with the EU to deal with this and must now rely on the provisions of EU law that protect EU citizens from being extradited to non-EU countries that is a far more convoluted process than it is when extraditing someone from one EU member state to another.
The issue of the EAW in particular and other issues concerning cross Europe policing and criminal justice cooperation have been brought to the attention of successive PMs since the Brexit referendum and Boris Johnson has been warned on numerous occasions, including by senior police officers and experts in the National Crime Agency (NCA) https://www.theguardian.com/uk-news/2016/sep/30/uk-must-protect-eu-prevention-links-nca-says in 2016, that these issues must be addressed. Without access to vital databases UK’s capacity to combat things like cybercrime, safeguard children and prevent terrorism or trafficking of people, drugs, dangerous substances or weapons could be impacted upon significantly.
It is surprising that Johnson’s party, that has made so much populist noise about the security of borders and supposedly regaining control, has apparently neglected to secure some of the key protections previously afforded to citizens of the four countries whilst the UK was a full member of the EU.
Even ex-PM Tony Blair appears to have done more thinking than the UK government about cross Europe policing and criminal justice cooperation. When asked recently about id cards he quipped that they would have made border and security matters a lot easier in the present crisis. In order to ensure other freedoms when travelling, the UK may be pressured to bring in some form of biometrically enabled ID card. This, of course, would be politically embarrassing. Rather than being able to negotiate the option to opt-out of EU arrangements the UK may find itself increasingly being obliged to opt-in to arrangements it may have previously felt empowered to resist. Times change as the reality of the UK’s now severely weakened position on the world stage begins to bite.
All the distracting popular media noise about the colour of passports and delays at airports now seems like trivial nonsense merely acting as a smokescreen to fundamentally important issues. The UK government appears to have completely failed to appreciate the hard fact that the UK has by default now opted out of sophisticated Europe wide justice and security arrangements they helped build and that have kept UK residents a lot safer and secure than anyone in the PMs inner circle apparently cares to admit. Without these arrangements, the UK is vulnerable and isolated in respect of a number of global threats.
In the absence of treaty provisions, the protections provided to assist EU member agencies to deal with Justice and security issues will start to fragment and fall away almost immediately. Cross Europe policing and criminal justice cooperation does not just happen nor is it inexpensive or uncomplicated. There are always considerable ongoing resource implications and costs involved for any state wishing to do this on their own. The fact is that the UK is no longer an EU member means that it no longer gets the full benefits in terms of access to information that it previously enjoyed. It may however be the case that it would be in the EU’s interest to have simplified reciprocal arrangements in place with the UK in order to ensure that it is not vulnerable from UK based threats. It is estimated that non- EAW extradition will take three times the length of EAW extradition and cost considerably more than previously. Delays in interviewing a person suspected of being involved in a serious crime may have a fairly obvious impact on an investigation. In the case of organised criminals, this would allow time for entire operations to be wrapped up and for those responsible for the crime to escape justice.
Other EU countries security services deeply regret that the UK is no longer an EU member as the more valued participants in collaborative security arrangements the greater the mutual protection. The UK has been a valued partner in the fight against terror and serious crime through its own and links to other security services it has played its part and has for a number of years benefited from the treaty regulated two-way flow of information. What now has to happen is that new regulations safeguarding and protecting EU and UK citizens will have to be negotiated and put in place. This could be done fairly quickly whilst the UK is aligned with the EU but until this happens the UK, as a state outside the EU justice and security system and will need to be treated by the EU in a similar way to any other essentially friendly non-EU state. The negative effects of the process of decoupling are likely to be amplified if the UK appears to deliberately seek to distance itself from EU justice and security arrangements. Diverging too much from EU arrangements both present and future may well prove to be a costly mistake.
Apparently, the UK government is prepared to ignore any expert advice that appears to highlight the fact that Brexit negotiations glossed over potentially sticky areas of potential contention simply because the government feared opening yet another can of politically sensitive worms. In October 2020 Dr Amanda Kramer (Lecturer in Law, Queen’s University Belfast) and Dr Rachael Dickson (Research Fellow, Birmingham Law School, University of Birmingham) made a number of important points and warnings in their submission to Parliament https://tinyurl.com/yar7vhx8 that should not be ignored including their view that
‘Despite government assurance, such as those made recently by Michael Gove that the UK could do “better” without joint law enforcement operations,[1] evidence demonstrates that being outside EU mechanisms is harmful to justice and security. It is suggested that the government provide more detail to evidence these claims’
[1] Lisa O’Carroll, ‘” Utter Rubbish”: Theresa May incredulous at Michael Gove’s Brexit Claims’ The Guardian (19 October 2020)
A constant feature of Johnson’s government prior to the COVID-19 crisis has been a certain degree of anti-intellectualism and its willingness to ignore expert advice regarding justice and security both domestically and internationally and instead it appears to rely on the often dubious and evidently inexpert opinions and gut reactions of outspoken representatives such as Michael Gove (who some will remember passed on his favourite advisor Dominic Cummings to Johnson – a very mixed blessing) Ian Duncan Smith and Chris Grayling. Uber polite Gove, like Ian Duncan Smith and the calamity prone Chris Grayling, has often intimated that he knows best in marked contrast to expert advice and appears to have an irrational distrust of experts, presumably also shared by Cummings, who famously wanted to increase his own power and influence in order to shake up and disrupt the civil service to presumably be more amenable to acting recklessly and abandoning the checks and balances that more or less help our increasingly vulnerable democracies to function.
The EU withdrawal agreement does include some mention of ongoing police and judicial cooperation in criminal matters but most provisions will now have ended following the expiry of the transition period. The last year should have been spent putting satisfactory interim provisions in place but unfortunately, this work if started has apparently not been effective. Access to vital databases such as the Secure Information Exchange Network Application (SIENA) and Eurojust can now only be accessed for a year after the end of transition for a fee. The details of how this will work, processes etc are apparently a matter for others to work out and still being discussed. Requests can be made in respect of other matters related to justice and security but these requests might well be denied by individual states depending upon their constitution and delays seem inevitable. Sorting these matters out and making things run smoothly in agreement with others is after all the purpose of treaties and why neighbouring states with common interests usually want to join together rather than go their own way.
The devil is always in the detail and there are numerous devils to be dealt with. The details of alternative provisions are often a lot harder to resolve and a lot knottier than simply withdrawing from existing arrangements without something suitable in place and hoping the consequences of doing so won’t be as bad as the experts fear. The UK has now left the EU with a half baked trade deal and a Brexit agreement that leaves more loose ends to be resolved than a loose ended thing ought to have at any time. Of course, having made a mess of negotiations (the code for which = ‘done his best’) Johnson will no doubt be anxious to move on to an easier win leaving civil servants to try to clear up after him because that is what has happened in the past.
Boris Johnson must realise that the UK cannot be governed indefinitely in this cavalier way. Unfortunately, his government’s reckless gamble with post-Brexit justice and security arrangements may very well backfire on all of us in some way. When this inevitably happens no one should be in any doubt who is to blame and Johnson cannot claim that he was not warned or simply blame experts this time around.
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