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Expert View

Crime-fighting put at risk by inadequate transition

by David Hannay | 22.03.2018

David Hannay is a member of the House of Lords and former UK ambassador to the EU and UN.

This week’s report by the Commons Home Affairs Committee warning of the risks if the UK, post Brexit, falls out of the EU’s complex systems for working together on combatting terrorism and international crime is timely. And never more so than when the government is on the point of accepting a transition period whose duration falls short of what it asked for itself and far, far short of what most well-informed observers believe will be necessary.

Does this matter? A lot is the short answer. Firstly, because in this field there is no Plan B to fall back on, as there is for trade, however unsatisfactory and inadequate relying on World Trade Organisation rules would undoubtedly prove to be. There is simply a cliff edge, now postponed until New Year’s Eve 2020, after which, absent a fully operational treaty or agreement between the EU 27 and the UK all the EU’s Justice and Home Affairs cooperation will simply cease to be available.

Secondly, just as alarming is the long list of what would be lost in those circumstances – working together in Europol and Eurojust and in cross-border investigations, instant exchanges of information about crimes and criminals in a hitherto unprecedented way, extraditing those accused of crimes through the European Arrest Warrant which has brought hundreds of Britons back here to face trial and has enabled us to send thousands of indicted criminals from other member states back to where the crime was committed, checks on airline passenger details. The list goes on. And if you ask anyone who works in the field – police, prosecutors, lawyers, officials – whether that loss would damage our security and hamper our ability to meet the ever-increasing challenges from international crime, you will get one reply that it would do so grievously.

Do not forget too that there is an Irish dimension to this matter. The European laws and systems have underpinned the Good Friday Agreement by de-politicising fraught issues like extradition between the two parts of the island of Ireland. Knock them away and you would risk the re-politicisation of such decisions, which was formerly the bane of law enforcement there.         

Why may it be difficult to hammer out a fully functioning agreement between the UK and the EU 27 before the end of the transitional period? Because it involves solving a whole range of exceedingly complex problems, ranging from legal, institutional and budgetary technicalities to obstacles like the constitutions of some member states (Germany most notably)  which forbid the extradition of one of their nationals to a country outside the EU, which the UK will by then be.

Nailing down a deal will also be tricky because it will almost certainly mean crossing one of those red lines in which the prime minister has entangled herself. Is it likely that the EU will allow their citizens to be extradited under a European Arrest Warrant without having recourse to the highest court of appeal, the European Court of Justice? Given the political will on both sides these problems can probably be cracked. But the Norwegians have been trying to do that for ten years and still don’t have a deal in the bag.

In the light of those risks and those obstacles it was surely irresponsible to accept an inadequate transitional period. And even more irresponsible of the Brexiters not to have breathed a word about all those complexities when they campaigned for the UK to leave the EU.

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Edited by Hugo Dixon