The Post-Brexit JHA Landscape 

The referendum of 23 June 2016, which resulted in the decision that the UK would leave the European Union at an unspecified date in the future—“Brexit”—could herald a wave of reforms to co-operation between the UK and the EU on Justice and Home Affairs (JHA) matters.

Focusing on extradition, it is possible to detect four main options for the UK’s relationship with the EU post-Brexit, all of which have been subject to intense academic, political, and practical consideration. These are:

  •  Renegotiation with the EU of a European Arrest Warrant (EAW)-style agreement (possibly necessitating a transitional legislation, to ensure that the UK retains an effective extradition relationship with the EU after the two-year period provided by Article 50 passes). Historically, similar agreements have been reached with the EU by Norway and Iceland. The US also has an extradition Treaty with the EU that supplements its bilateral agreements with each Member State.
  • Reverting to the 1957 Council of Europe Convention on Extradition, which was set aside following the introduction of the EAW Framework Decision, and which it is argued would provide the UK with more autonomy over extradition arrangements.
  • Negotiation of separate bilateral agreements with some, or all, of the remaining 27 Member States.
  • No immediate alternative is found in time; this is known as the “cliff-edge” outcome.

More broadly, it remains unclear whether the UK will continue to participate in the European Investigation Order (EIO), access EU criminal justice databases, such as the latest Schengen Information System 2 (SIS 2) and the European Criminal Records Information System (ECRIS).

Further uncertainty has arisen as to whether the UK will continue to play a role in institutions such as Eurojust, the EU judicial co-operation agency, and Europol, the EU agency for law enforcement co-operation, and the specific nature of jurisdiction to be afforded to the Court of Justice of the European Union (CJEU).

Current Home Office Position: ‘Security, law enforcement and criminal justice – a future partnership paper’

In September 2017, the Home Office published its policy paper: ‘Security, law enforcement and criminal justice – a future partnership paper’, offering glimpses of current official thinking in the area, albeit on a largely non-technical issues. The paper is available here.

In the paper, the Government signals broad support for JHA measures, which it is stated, without qualification, make up “a comprehensive and sophisticated suite of mutually reinforcing arrangements that help protect citizens and the continent”.

The paper demonstrates robust support for not only the practical benefits of co-operation in the area but also the underpinning principle that “cooperation produces cumulative shared benefits that extend well beyond an ad hoc collection of capabilities”.

Europol and Eurojust are also described positively as offering “particularly well-developed platforms for liaison and joint action, multiplying the national capabilities of each of their members.” A specific call for continued involvement in Europol is made, albeit though the formation of a “bespoke relationship” between the UK and the organisation.

The Government would, however, appear to adopt a less generous towards the jurisdiction of the CJEU over UK law: lengthy discussion is afforded towards how to replicate existing JHA measures in some form of UK-EU Treaty, to be negotiated as part of the Brexit Withdrawal Agreement, whilst removing itself from direct jurisdiction of the CJEU. The Government’s proposed Treaty would place the UK in almost exactly the same position as it is now: a full participant in an EU-wide area of freedom, security and justice, rather than a semi-detached third party.

The paper considers and rejects existing models for third country cooperation with the EU on justice and home affairs, such as those used for the Nordic States and the US. Whilst these arrangements tend to be outside of CJEU jurisdiction it is argued that they would “result in a limited patchwork of cooperation falling well short of current capabilities… a piecemeal approach to future UK-EU cooperation would therefore have more limited value, and would risk creating operational gaps for both the UK and for its European partners, increasing the risk for citizens across Europe.

It is clear that the Government believes that the EU has as much to lose as the UK from any reduction in JHA cooperation, and intends to negotiate on that basis. Arguably, this approach leads to a problem which may produce unavoidable and unintended consequences. Many of the “comprehensive and sophisticated suite” of JHA measures which the Government wishes to retain are based on the principle of mutual recognition. Mutual recognition does not require each jurisdiction to have the same laws, but it does require them to trust, recognise and enforce each other’s judicial decisions. This, in turn, is predicated on the assumption that each jurisdiction has minimum substantive and procedural standards of criminal justice. This would, of course, prove controversial: many of those who voted in favour of Leave have argued that this assumption is a legal fiction, which leads to potential injustice, and, moreover, that the UK should not be bound by foreign laws. However, whatever the rights and wrongs of the debate, mutual recognition is what we are asking to sign back up to after Brexit: EAW and the EIO are both, quintessentially, mutual recognition measures.

Pre-Brexit, the UK was able to pursue a divergent approach to mutual recognition, for example, by routinely refusing extradition based on a disproportionate interference with an individual’s private and family life under Article 8 ECHR; and by permitting arguments under Article 6 and/or abuse of process that challenged the substantive basis upon which an EAW had been issued. Further, in 2014, the Government introduced new statutory bars to extradition which arguably did not feature in the EAW Framework Decision at all. Extradition could now be barred explicitly on grounds of proportionality, forum, or in the absence of a decision by the requesting State to charge and try the suspect.

Other Member States permitted the UK position because they did not want to risk undermining the whole project. The EAW was – and still is – considered a success. It was too dangerous to start exposing and picking at the foundations; therefore the UK’s unorthodoxy was tolerated. The irony is that, in negotiating a new UK-EU Treaty for justice and home affairs, the EU 27 no longer have as much incentive to be tolerant. The UK, by its own choice, will be outside of the EAW Framework Decision and outside of the jurisdiction of the ECJ that enforces consistency in approach, interpretation and application.

Post-Brexit, the risks to the Member States in demanding conformity from the UK will be greatly reduced. If the UK won’t be bound by the ECJ, but still wants the benefits of mutual recognition, it is even more important to the Member States that any new Treaty is as consistent as possible with the measures that will continue to operate within the EU. They will likely want whatever replaces the EAW between the UK and the EU to operate like the EAW already does between the EU 27, and not the divergent version currently tolerated.

Accordingly, on the narrow question of dispute resolution, the EU may agree to forgo the direct jurisdiction of the ECJ, but is likely to insist that its pre-existing caselaw is binding and post-Brexit caselaw will be highly persuasive. This would preserve the Government’s Brexit “red line” in the area. But, on the broader principle of mutual recognition the EU may well demand that the UK remove the statutory bars to extradition it unilaterally introduced in 2014, and which did not feature in the EAW Framework Decision. Therefore, at least in relation to crime and security, it is possible that by leaving the EU we will be obliged to conform more closely to its legal norms and to weaken, according to some, the additional protections for UK residents from the reach of other legal systems.