30 November 2018

The UK Government hopes to agree a future security partnership with the EU before the end of the Brexit transition period. Lewis Lloyd says on policing and criminal justice this looks unlikely – and the UK has already accepted it will not get what it wants.

Security Minister Ben Wallace has made clear that no deal would be a significant step back for UK–EU security cooperation – particularly when it comes to policing and criminal justice. He’s right. Relying on the patchwork of arrangements that pre-dated EU tools would make it more difficult to solve criminal cases, catch those involved and bring them to justice.

But no deal in March 2019 is not the only concern. Even if the Prime Minister’s withdrawal deal does make it through Parliament and a transition period is secured, there are significant hurdles to overcome in settling the terms of future UK–EU cooperation on policing and criminal justice. The political declaration on the framework for the future relationship makes it clear that that UK will not get what it wants in most areas. But negotiating alternatives to existing EU arrangements will be complicated – and even a 21-month transition may not offer enough time.

The UK has accepted it will not continue to participate in most EU measures

At the start of the negotiations, the UK Government’s goal was to secure continued participation in EU policing and criminal justice tools in the same way as it does now. But the political declaration suggests it has given up on this aspiration, for the most part. On flagship issues such as the European Arrest Warrant, which facilitates the rapid extradition of criminals between the UK and EU member states, and access to the SIS II database, which contains almost 76.5 million alerts on missing and wanted people and objects, the UK will not retain the benefits it has as an EU member.

There are two exceptions to this: the exchange of passenger name recognition (PNR) data from airlines, and access to the Prüm system for sharing DNA, fingerprints and vehicle registration data. But while important, neither of these previously made it into UK authorities’ handful of top priorities. Both are relatively new measures, the full benefits of which are yet to become clear. They are also areas where the EU was always sympathetic to continued UK involvement because of the enormous value UK participation brings – in passenger name recognition, on account of the UK’s position as the EU’s major aviation hub, and in Prüm because the UK holds the same number of DNA profiles as all other participants put together.

The political declaration still recognises the UK as a special case, but it is not clear yet how special

This is not to say that UK–EU cooperation in other areas will fall away completely. The political declaration expresses the intention to ”consider further arrangements” in areas such as extradition and data sharing that approximate to EU measures, ”in so far as is technically and legally possible”. Bespoke arrangements along these lines would be likely to offer cooperation going beyond that available to other third countries, recognising the particular position of the UK and the interests of both sides in maintaining operational capability.

But it is far from clear how close any new arrangements will really come to replicating the benefits of EU measures. This is particularly so given the two sides’ different interpretations of “legal and technical possibility” so far. After all, at the start of the negotiations the UK thought that continued participation in all measures as now would be possible, while the EU took a different view. While both sides would lose out from any reduction in cooperation, the EU certainly has less to lose – and may accordingly be less willing to negotiate.

21 months may not be enough to negotiate bespoke arrangements

Negotiating bespoke arrangements across all these areas also has serious timing implications. One of the main advantages of the UK’s proposal of a comprehensive agreement that largely continues co-operation in its current form was that it would be easier to finalise than dozens of different treaties, each covering individual tools. Negotiating on a case-by-case basis, as the EU has continued to insist, takes time.

Extradition is a case in point. The EU’s extradition arrangement with Iceland and Norway took 13 years to negotiate and is still not in force, as not all EU member states have ratified the treaty. The proposed future UK–EU arrangement is likely to be along similar lines, so it may be that negotiations progress more quickly given the existing precedent. But there is no such precedent for ‘approximating’ EU measures around data-sharing. Negotiating the detail of anything completely new will take time. Access to databases will also be dependent on an adequacy decision, and there is no guarantee of even that before the end of 2020, despite both sides’ best intentions.

The UK Government’s stated aim is still to get this done early and have something in place before the end of 2020. But based on the text of the political declaration, the two sides still have a lot to discuss.