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Analysis

PM retreats on ECJ red line to keep security cooperation

by Nick Kent | 19.02.2018

In a powerful speech to the Munich security conference, Theresa May argued for extensive UK-EU co-operation on security and foreign policy after Brexit. Going further than expected, she suggested that the UK would accept the jurisdiction of the European Court of Justice (ECJ) in aspects of crime and justice co-operation after Brexit. This is an important blurring of the prime minister’s “red line” of no role for the ECJ in the UK after Brexit, as set out in her Lancaster House speech last year.

May’s speech was an emphatic rejection of the arguments of the Leavers about the role of the EU in security and foreign policy matters. In a reprise of the speech she gave during the referendum, she set out how the EU adds value to the UK’s security.

The prime minister reminded her audience that European co-operation on crime and justice began as a British initiative after the terrorist attacks at the 1972 Munich Olympic Games. She highlighted the value of current co-operation measures, strikingly beginning with the European Arrest Warrant, an instrument opposed by some of her own ministers. “Extradition outside the European Arrest Warrant can cost four times as much and take three times as long”, May said, harking back to the arguments she had made as Home Secretary.

The importance of data sharing, and the UK’s desire to continue that with the EU’s agencies and with other EU Member States, and the value of co-operation through Europol were May’s other key points.

But to retain UK access to these EU instruments and agencies would be, as she acknowledged, unprecedented. No third country has the level of participation and co-operation in justice and home affairs policy that May wants after Brexit. So she had to offer more than just warm words and bragging about the UK’s current contribution to European security.

To get a deal, the prime minister knew she needed to move on the jurisdiction of the ECJ. She avoided that legally heavy word “jurisdiction” and she didn’t mention the Court in the context of the European Arrest Warrant but did say that, “when participating in EU agencies the UK will respect the remit of the European Court of Justice” and that “a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”. It wasn’t “I surrender my red line on the ECJ” but it was an important shift in policy.

Leaving the EU will weaken the UK’s security. We will no longer be able to drive forward co-operation in justice and home affairs, or to lead the EU in standing up to Russia, in opposing nuclear proliferation or in protecting our citizens from terrorism. But May’s retreat in Munich on the ECJ does at least offer a chance to preserve some of the best crime and justice co-operation after Brexit.

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Edited by Hugo Dixon