How will we cooperate on fighting crime post Brexit?

It is hard to believe that anyone, confronted with the daily evidence of increasing threats from international crime – from terrorism, cyber crime, human trafficking, child pornography and drugs – can seriously question the need for more cooperation right across Europe, including the UK. But even if that view is common ground, Britain’s vote on 23 June and the Brexit negotiations which are to follow have thrown into doubt and confusion how, and indeed whether, that greater cooperation is to be achieved. Decisions will be taken in those negotiations which are likely to determine the success or failure of any attempts to stem and reverse these rising criminal threats.

Less than two years ago Parliament, following negotiations in the EU led by Theresa May, then Home Secretary, decided by a huge majority in the Commons and by unanimity in the Lords that Britain’s national interest was best served by re-joining the 35 principal EU Justice and Home Affairs measures – membership of Europol and Eurojust, the European Arrest Warrant, the Schengen Information System. This involved accepting the role of the Commission and the jurisdiction of the European Court of Justice in these fields. Since then the UK has also opted to join the EU’s aviation security Passenger Name Recognition system and the exchange of DNA and other information under the Prum decisions.

But the supporters of what is coming to be known as “hard Brexit” want none of that. They want the UK to junk all that cooperation and to start again at ground zero, negotiating bilaterally on a case-by-case basis with each of the 27 other member states. Their preference for this approach flies in the face of evidence from all the law enforcement agencies and professions that such bilateral cooperation, even if achievable, would be slower, more costly and less effective; and it ignores the likelihood that our EU partners will decline to negotiate bilateral arrangements of that sort.

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So hard choices will have to be made by the government, and those choices will have serious consequences for Britain’s, and for the rest of Europe’s, internal security. They can either opt for a degree of continuity, in substance though not in form, seeking to transform and develop existing cooperation by building it into the new external relationship between the UK and the EU or they can take the risk of starting again from scratch.

Any continuity option will need to make provision for Britain choosing to join future EU JHA measures as they are adopted; that will not in fact be very different from the situation which prevails now, when Britain has the right to choose whether or not to adopt new JHA legislation. There will also be budgetary consequences since a considerable part of the costs of cooperation is borne on the EU budget, to which Britain outside the EU will no longer be contributing.

Is such an approach likely to be negotiable? The mutual interest of Britain and its EU partners in sustaining and further developing their cooperation in fighting international crime will be one powerful favourable factor. But the institutional ayatollahs, and there will be plenty of them both in Westminster and in Brussels, will pose any number of objections. It will, as so often, be a contest between common sense and ideology.

Edited by Hugo Dixon