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Analysis

UK will struggle to get status quo on security post Brexit

by Nick Kent | 02.10.2017

In her recent speech in Florence Theresa May was again keen to emphasise the importance of maintaining close security and intelligence co-operation with the EU after Brexit. She talked of an arrangement that would be “versatile and dynamic”, so that it could respond to new developments and that it should include “an on-going dialogue” about crime and justice co-operation with joint action.  

This is good news because the UK is a major beneficiary of this co-operation and would face serious difficulties if it were to cease. But there are at least four significant obstacles to retaining this co-operation.

Lack of precedent

The government’s ambitions for post-Brexit security co-operation were set out in a paper published on September 18. It wants to retain the current high level of cooperation but it is far vaguer about how that might be done.

The kind of partnership the UK is seeking is unprecedented. No non-member, for example, has complete access to the EU’s six key tools in the fight against terrorism. While it is certainly true that the UK contributes much to the EU’s security effort, for example, about half of the operational case work of its police agency Europol involves the UK, that is not enough in itself to overcome the difficulties.  

Even though Norway and Iceland are part of the Schengen area and the European Economic Area, it still took them 13 years to negotiate new extradition arrangements with the EU. And the UK wants to do more than just retain the use of the European arrest warrant. This is a big ask.

Data protection

Much international cooperation involves the transfer of data and the EU has shown itself highly sensitive to this. In 2016 the EU adopted new data protection rules covering both data used in commerce and in law enforcement.

The current Data Protection Bill seeks to incorporate these in UK law.  It contains provisions to enable it to remain in force after Brexit but the European Commission would have to decide whether UK rules were of equivalent standard to EU ones and recent rulings of the European Court of Justice (ECJ) have raised doubts about the UK’s current standards. It is good that the prime minister mentioned this issue briefly in her Florence speech but the EU will need more than just reassurance on this point.

Human rights and ECJ

One of the biggest obstacles is the government’s “red line” against the UK being under ECJ jurisdiction. Security co-operation measures inevitably affect the rights of individuals (and sometimes entities such as companies) and they need a way to defend their rights in court.  

The ECJ performs that role, including taking into account the Charter of Fundamental Rights – another bugbear for Brexiters. The UK wants to be in the EU’s security measures, such as the arrest warrant and the Schengen Information System, but outside ECJ jurisdiction.  It is true that other countries including the US cooperate extensively with the EU on security without directly coming under the ECJ, but on a far more limited basis than the UK would like in future.

Ratification

Any agreement the UK reaches may require the consent of national governments, and perhaps regional administrations in some countries, as well as of the EU. This is because crime and justice is a national responsibility. Extradition is an example of this. The EU’s extradition agreement with Norway and Iceland allows for a country to insist that it will not extradite its citizens if the offence for which they are sought is not a crime in their own country.  In the past, this was a serious problem in extradition proceedings.

The government’s desire for an agreement in this area is positive and it is welcome that the prime minister decoupled it from the talks about trade in her Florence speech. Earlier suggestions of one being conditional on the other went down badly in Brussels. But there are many obstacles to overcome before the kind of security partnership the UK wants can be achieved.  And as so often with the government’s Brexit agenda, what it wants is so like EU membership it’s hard to understand why we are leaving.

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Edited by Hugo Dixon