19 June 2018

Michel Barnier has set out the EU’s red lines in the Brexit negotiations on future policing and judicial arrangements, complaining of British intransigence. But his own position is just as inflexible, and the two sides are worryingly far apart, says Tim Durrant.

In a speech in Vienna this morning, Michel Barnier set out the EU’s view of the future relationship with the UK on policing and judicial cooperation. This followed a Commission discussion with representatives of the EU27 last week. Barnier was clear that the EU wants ‘a strong partnership with the UK, a country with whom we have a common history, a common geography and common challenges.’  

That may be the ambition, but he used his speech to set out how the EU is ‘constrained by the UK's red lines’, particularly on the jurisdiction of the European Court of Justice (ECJ) and ending free movement of people. And those constraints mean, in his view, that the UK’s objectives are unattainable – so the UK will not have access to the European Arrest Warrant, full access to EU databases or a role in the management of Europol.

The UK is more flexible than Barnier portrays

The UK wants the relationship to continue with pretty much no change after Brexit, although there would be a new ‘internal security treaty’. When she proposed such a relationship, the Prime Minister said this would mean the UK would have to ‘respect the remit of the European Court of Justice’ when cooperating with EU agencies. This looked like a softening of the UK’s red line on ECJ jurisdiction, but Barnier’s speech suggests that message has not been received in Brussels.

The firmer red lines belong to the EU

Barnier used his speech to set out the EU’s very clear red lines (even if the Commission never refer to them as such). Those are:

  • a continued commitment to the European Convention on Human Rights, which is not normally required for cooperation with EU policing and judicial mechanisms;
  • nothing better than third country treatment on data, meaning the Commission could unilaterally decide to end all data-sharing with the UK if Brussels decides the UK’s data protection rules are no longer ‘adequate’;
  • a baseline that the UK could get no better treatment than existing non-EU partners including Schengen members Norway and Switzerland.

Taken together, these would mean that the UK cannot have anything near the level of cooperation it hopes for, irrespective of the mutual benefits of continuing to work together. Seemingly, we are miles apart.

The Commission’s red lines risk an unnecessarily bad outcome

Both sides have said how important a close relationship on policing and judicial cooperation is for the future. As Barnier pointed out, security ‘threats are common to European countries. And they call for European responses, including with the UK.’

Many member states want the relationship with the UK to change as little as possible, given how important UK intelligence and police cooperation is to tackling cross-border crime. The UK is one of the largest contributors of information to Europol investigations and in 2016 extradited almost ten times more suspects and criminals to other member states than were extradited to the UK through the European Arrest Warrant.

But the Commission’s red lines, as set out by Barnier today, risk a relationship that dramatically reduces the cooperation between the UK and the EU, an outcome that would not be in the interests of anyone other than criminals and terrorists operating across Europe.

This may just be an opening position for the negotiations, with the EU preparing to make concessions to get a good deal. But this will likely require pressure from the member states to ensure that the Commission does not enforce something that is not in the EU’s (or the UK’s) interests.

The UK has already begun to flex its red lines; the EU should do the same.


So Leave does not means Leave after all. Why should Britain not be treated as the third country it will be after Brexit?

I'm unclear why commitment to the ECHR should be a problematic condition for the UK to meet. Moreover, as a fundamental principle of EU law, it would be odd indeed for the EU to co-operate closely with a third country, especially in the area of internal security, that did not comply with the ECHR. Sounds like a proportionate and inevitable Barnier "red line" to me. Similarly, since the non-EU Schengen countries are part of a border-free area with (most of) the EU it would again be odd if the UK were to receive "better" treatment than Norway or Switzerland in terms of access to databases etc. These red lines seem a lot less unreasonable when you think them through in their wider context than you suggest.