Brexit: judicial oversight of the European Arrest Warrant Contents


The European Arrest Warrant (EAW) was adopted by the European Union to facilitate the extradition of individuals between Member States to face prosecution for a crime, or to serve a prison sentence for an existing conviction. The Government recognises the importance of the EAW. The Home Secretary, Rt Hon Amber Rudd MP, has called it an “effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”, and stressed that “it is a priority for [the Government] to ensure that we remain part of the arrangement”. It has brought significant benefits to the United Kingdom. Annually, around 1,000 individuals per year are surrendered to other EU Member States under the EAW while, on average, the UK issues over 200 European Arrest Warrants seeking the extradition of individuals to this country. The EAW has brought high-profile criminals back to the UK, such as the fugitive bomber, Hussain Osman, who, along with accomplices, attempted to carry out a terror attack in London on 21 July 2005.

Yet following the referendum on the UK’s membership of the EU, the Government has stated that it intends to remove the jurisdiction of the European Court of Justice (CJEU) in the UK. What this will mean has been the subject of much debate and discussion. But it is clear from the evidence that we received that the Government’s plans for the CJEU create a tension with the operational necessity to deport serious criminals from the UK quickly and effectively, and to ensure that those who are wanted by the UK answer for their crimes here. We heard, for instance, that if the CJEU is not to be a final arbiter on any instruments of mutual recognition between the UK and EU on future extradition matters, it is unclear how such instruments would operate in practice.

This report outlines the pronouncements that the Government has made regarding the future role of the CJEU. It considers whether the Government’s desire to remove completely the jurisdiction of the Court will ever be truly practicable. It explores other options for resolving disagreements between the UK and the EU in the absence of the Court of Justice, looking in particular at the EFTA Court as a potential—if limited—model for such arrangements. But it also questions whether the EU-27 will in fact be willing to establish bespoke arrangements such as a parallel court, solely to accommodate the UK’s objectives.

The report asks whether alternatives to the European Arrest Warrant are possible. It looks into fall-back options: the agreement reached between Norway and Iceland and the EU; or returning to political or diplomatic approaches to secure extradition. It examines each option according to whether they represent an efficient replacement for the current system.

We note that the Norway-Iceland agreement’s political dispute resolution mechanism would be compatible with the Government’s desire to end CJEU jurisdiction. But in considering transitional arrangements, we agree with witnesses who suggested that any such arrangement would likely include accepting, at least in part, the jurisdiction of the CJEU. In particular, this is because any other interim arrangement would itself take time to negotiate and agree—time that is already at a premium in the run-up to March 2019.

We stress, however, that a transitional arrangement that simply extends the status quo in relation to the EAW will be difficult to secure. In leaving the EU, the UK will no longer be party to other, related EU arrangements, such as the EU Charter of Fundamental Rights, EU data protection laws, and laws on EU citizenship. We therefore remain concerned about the prospect of a “cliff-edge” in our extradition arrangements, and emphasise that a gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk to the safety of the people of the UK.

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