Chapter 3: Alternatives to the EAW
43.In view of the challenges surrounding the Government’s desire to discontinue CJEU jurisdiction in the UK, it is useful to explore potential alternatives to the European Arrest Warrant. At the time of the 2014 decision on Protocol 36, arguments for and against the UK retaining the EAW were rehearsed in detail, including in reports from this Committee and in the Impact Assessments published in the Government’s July 2013 and July 2014 Command Papers. They were also addressed in the 2015 report of the ad hoc Extradition Law Committee.61 We do not revisit those substantive arguments here.
44.In our December 2016 report on Brexit: future UK-EU security and police cooperation we also considered possible alternatives to the EAW, and concluded that “the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible”.62
Retaining the EAW
45.More recently, in March 2017, the Home Secretary, Rt Hon Amber Rudd MP, announced that “it is a priority” for the Government “to ensure that we remain part of the [EAW] arrangement”. She told the House of Commons that “our European partners want to achieve that as well”.63 We asked our witnesses to comment on the Home Secretary’s remarks and on whether the UK might be able to remain part of the EAW from outside the EU.
46.Andrew Langdon QC told us that it was “almost impossible to decipher the words in a way that is helpful”, and that it was “very difficult to square, bluntly, leaving with staying”. He added that “the answer … is that we must replicate something as closely as we can to maintain uniformity”, and suggested that “something like the Norway-Iceland agreement” was “what most who have applied their minds to this subject think may be the way forward”.64
47.Sir Francis Jacobs told us that “it does not seem at all clear how it will be possible for the UK to remain part of the arrangement if it is outside the European Union”. He too judged that “the best that could be hoped for would be an arrangement on the same lines as Norway and Iceland have”, which would be “less than satisfactory” and “may be difficult to attain”.65
48.Mike Kennedy suggested that the Home Secretary’s remarks “seem quite clear … in one sense: that the Home Secretary feels that the EAW is a successful instrument”, one that both the UK and other Member States want to proceed with. The “difficulty”, would be “how that fits with not complying with or following the [CJEU’s] decisions”. He expected that “the way through this must be some form of negotiation”, and that the Home Secretary might be hoping “that there can be some solution to this that will allow the red line to be observed, but will also continue the arrangements that are currently in place”.66
Alternatives to the EAW: Norway and Iceland
49.Norway and Iceland, which are both outside the European Union but members of the EEA and the Schengen Area, began negotiating an extradition agreement with the EU in 2001. The agreement was signed in 2006 and concluded in 2014, but has yet to enter into force.67 We explored with our witnesses how the functions performed by the CJEU in respect of the EAW have been re-assigned in the Norway-Iceland agreement. The agreement provides for a political dispute resolution mechanism in Article 36, which states:
“Any dispute between either Iceland or Norway and a Member State of the European Union regarding the interpretation or the application of this Agreement may be referred by a party to the dispute to a meeting of representatives of the governments of the Member States of the European Union and of Iceland and Norway, with a view to its settlement within six months”.
50.As regards the CJEU’s case law, the agreement (Article 37) provides that the Contracting Parties “shall keep under constant review” the development of the case law of the CJEU and that of the competent courts of Iceland and Norway, and that to this end “a mechanism shall be set up to ensure regular mutual transmission of such case law”. The ultimate objective is to arrive “at as uniform an application and interpretation as possible of the provisions of this Agreement”.
51.Sir Alan Dashwood judged that a duty of constant review of this kind could also provide a way forward for the UK:
“There will be scope for courts in this country to treat rulings of the Court of Justice, including in this field, as persuasive authorities. It is clearly the intention of the harmonisation approach that is adopted under the Iceland-Norway agreement and might be adopted in relation to the UK as well. It is expected that close attention will be paid by the courts on both sides to the development of the case law, and that can be effective”.68
52.Rosemary Davidson went further, suggesting that “in relation to interpretation issues, really the only model you have is the Iceland-Norway one, where it is left to the [CJEU] on behalf of the EU and national courts on behalf of the other signatories to the treaty. That is aligned through this duty of constant review”.69
53.However, our witnesses also emphasised that an arrangement along these lines would not deliver the same level of consistency as the current arrangements involving the CJEU. Sir Francis Jacobs told us that “what Article 37 provides for is keeping under review the case law and exchanging the case law between the parties. That is a very basic form of co-ordination”.70 Sir Alan Dashwood noted:
“The harmonisation approach that is provided for in Article 37 of the agreement is clearly not as effective. It does not provide the same assurance of a consistent approach that a preliminary rulings procedure would provide. But it could work effectively if it is taken very seriously by both sides, as I am fairly sure it would be. It would require setting up a permanent monitoring facility on both sides”.71
54.In our report on Brexit: future UK-EU security and policy cooperation we noted that the length of time it had taken to implement the Norway-Iceland agreement was a cause for concern, and that an operational gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk. Sir Alan was optimistic about the speed with which the UK might be able to reach a bilateral extradition agreement with the EU similar to that secured by Norway and Iceland: “I do not think it will take us 13 years, as it did Iceland and Norway, because it has been done already and because we are already subject to the European Arrest Warrant”.72 He also did not believe “that there is any close connection between the removal of frontiers and free movement of the Schengen system, and a well-functioning arrest warrant type of system”.73 Rosemary Davidson judged that “if what we want is to replicate the Norway-Iceland agreement exactly or exactly the EAW agreement, that would be an easier sell than a third EAW-style agreement, which would be the UK-EU one”.74
Alternatives to the EAW: the 1957 Council of Europe Convention
55.If the UK were not to secure new extradition arrangements with the EU or its Member States, either collectively or individually, as part of its negotiations on withdrawal from the EU, the ‘default’ outcome would be to revert to the 1957 Council of Europe Convention on Extradition (the 1957 Convention) as the legal basis for extradition between the UK and the remaining EU Member States.
56.In our Brexit: future UK-EU security and police cooperation report we said that we saw “no reason to revise our assessment—and that of the Government in 2014—that the 1957 Council of Europe Convention on Extradition cannot adequately substitute for the European Arrest Warrant”.75 We nevertheless explored this ‘default’ scenario with our witnesses.
57.They offered a range of views as to whether the 1957 Convention could serve as a safety net in the event of no alternative provision being made. Sir Francis Jacobs told us that there was “general agreement” that the 1957 Convention “is not an adequate substitute for the European Arrest Warrant”, and that “it will be necessary to devise up-to-date arrangements for surrender”. He predicted that if there were no agreement at the time that the United Kingdom exits the European Union, “there will be a cliff-edge”.76
58.Sir Alan Dashwood, however, found it “hard to believe” that the Government “would allow the country to fall over a cliff edge”, and argued that if it began to look as if there would be no agreement on this issue, there would have to be an amendment to the Extradition Act 2003 to designate EU Member States as category 2 territories rather than category 1 territories. At present, Part 1 of the Act implements the EAW and designates the EU Member States as category 1 territories. Part 2 of the Act makes provision for the UK’s other international extradition arrangements, which apply to category 2 territories.77 Mike Kennedy also expected that the 2003 Act might need to be amended to move EU countries from category 1 to category 2.78
59.Sir Alan nevertheless expected that there “would be a problem with those Member States that have rescinded their legislation implementing the Convention”.79 The Committee’s concern is that because extradition is a two-way, reciprocal arrangement, in the case of such Member States, simply amending the Extradition Act would not in itself be sufficient. If the UK did not have pre-existing extradition arrangements with certain member states, extradition could become impossible at the moment of Brexit.
60.A return to a political, rather than a judicial approach to extradition might also create practical problems. Operating under the 1957 Convention would mean reverting to diplomatic channels for resolving disputes. Aled Williams noted that “the EAW introduced a system of court-to-court contact, whereas the Convention is still essentially a diplomatic governmental approach to things, which partly led to delay”. He suggested that such cases were “where the argument for the Court of Justice of the European Union comes into its own”. Overall he judged that “going back to the Convention would be counterproductive in relation to the security of our citizens and delays”.80 Andrew Langdon QC also judged that the 1957 Convention “is not an adequate substitute”, since it “conjures up the vista, again, of the process no longer being a purely judicial one, but extradition requests being made through diplomatic channels and so on—with all the complications and time constraints”. He suggested that “nobody who knows the field is advocating that that is any sort of satisfactory fallback position”.81
61.Yet Rosemary Davidson was sanguine about other states’ reactions to the UK changing its extradition arrangements. She suggested that, as a matter of international law, “there is a good argument that we could still rely on the [1957] Convention”. She noted that “nobody has rescinded their membership of the Convention”, and that although there is an academic debate about whether Article 31 of the EAW Framework Decision has ousted the Convention in international law terms, “if all parties agreed that they would revert to using the [1957] Convention, it seems to me that that would be a fallback position”. She noted that in the early days of the Framework Decision, Germany reverted to reliance on the 1957 Convention when its constitutional court struck down the implementing legislation for the Framework Decision.
62.As for what reverting to the 1957 Convention would mean for the relationship with the CJEU, our witnesses agreed that in this event, future CJEU case law would still have persuasive authority. Sir Alan Dashwood anticipated that in litigation, courts in the UK would still take the CJEU “very seriously”.82Andrew Langdon QC and Rosemary Davidson also expected the CJEU to retain persuasive (as opposed to binding) authority in this field.83
Transitional Arrangements
63.The Government’s White Paper on The UK’s exit from and future partnership with the European Union indicates that “a phased process of implementation, in which the UK, the EU institutions and Member States prepare for the new arrangements that will exist between us, will be in our mutual interest”, adding that “this might be about … the way in which we cooperate on criminal and civil justice matters”.84 We explored with our witnesses what a “phased process of implementation” could look like in this area, including what the role of the CJEU might be during such a transition, and what would happen to extradition requests the day after the UK leaves the EU if no alternative to the EAW had been put in place.
64.Rosemary Davidson suggested that in “a real Armageddon scenario, where you have negotiated no alternative and you have negotiated no transitional agreement … at the domestic level, in one sense, you could just leave the legislation in place and continue to process all the EAWs we have here. That could be our choice and that would be a perfectly reasonable way to proceed”. However, in this scenario, the UK would “not have any control over how our outgoing requests were treated abroad”.85
65.Sir Alan Dashwood speculated about “a possible interim arrangement [that] would be an effective continuation of the present system but under a special interim agreement, perhaps with the Court of Justice giving advisory rather than binding rulings on the interpretation of this new agreement”.86 Sir Francis Jacobs, on the other hand, expected that “there may be some pressure from the European Union in the event of transitional arrangements that more or less preserve the status quo that the jurisdiction of the Court should continue for that period too”. He judged that this “might be acceptable in the context of the negotiations as a whole”.87
66.Mike Kennedy also envisaged that transitional arrangements would involve “a continuation of what we have at present, until both sides could get things sorted out”. He expected that “any transitional arrangement would have to have arbitration”, and that it would likely be “more straightforward to adopt the current arrangements in transition for a period of time. That might have to include the court”. He judged that “any sort of alternative to the Court is going to be quite difficult to negotiate and agree”, given the limited time available.88 Andrew Langdon QC agreed that “if, unhappily, with a few months to go we still have not understood where we are going in terms of a new agreement, a simple agreement that there is a transitional postponement of current arrangements until such time as we have reached an agreement would be very sensible”.89
Extradition of EU citizens to the UK post-Brexit
67.The feasibility of securing a transitional arrangement that simply extends the status quo seems likely to depend on the outcome of other aspects of the Brexit negotiations. For example, Sir Francis Jacobs noted that the “exchange or surrender of prisoners is subject, according to the case law of the Court, to certain standards of fundamental rights. Although from the United Kingdom point of view there was no problem whatever with respect for fundamental rights in the United Kingdom, there is no independent adjudication on that issue after Brexit. That might pose a problem”. He also warned that “in relation to the exchange of information about criminals and terrorists and others, there are certain underlying standards of data protection that have to be observed, where standards might diverge if the United Kingdom was no longer a member of the European Union”.90
68.It is also not clear how any interim arrangement extending the status quo would deal with own nationals if the UK had formally left the EU. In our report on Brexit: future UK-EU security and police cooperation we warned that “it is conceivable that the EU-27 may not be willing to waive the right to refuse to extradite their own nationals outside the framework of the EAW and without the concept of EU citizenship that underpins it”.91
69.Rosemary Davidson judged that extradition of own nationals would be “very difficult for the EU-27. For many of them, it is a constitutional issue”. She noted that:
“To take Germany as an example, the amendment to the German constitution [made in order to implement the EAW Framework Decision] is very confined. They will extradite their own nationals within the EU—and that is it. It is a case of having to conduct negotiations on other negotiations in this context, and trying to persuade Member States that it is worth the political risk for them to seek to negotiate to amend their constitutions internally. That is the practical difficulty that stands in the way there.”92
70.Mike Kennedy told us that “often in this country we underestimate how big a decision it is for some of the European Union Member States to extradite their own nationals. In many countries before 2004 it was simply a no-go area. In fact, when the agreement was put into legislation in Germany, it was struck down first by the German constitutional court, its most senior court, because it was contrary to the constitution to extradite own nationals”. He observed that “historically, Poland and several of the Scandinavian countries would not extradite their own nationals either. We have always been willing to extradite our own nationals”.93
Conclusions
71.We welcome the Home Secretary’s announcement that it is a priority for the Government to ensure that the UK remains part of the European Arrest Warrant. However, it is not clear how this objective is compatible with the Government’s objectives in relation to the CJEU, let alone other aspects of the UK’s withdrawal from the European Union.
72.For this reason, we have explored how the most promising avenue for the Government to pursue might be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible. That agreement has taken a long time to negotiate, and applies to two European states ostensibly moving towards EU membership that also participate in the Schengen Area. It has yet to enter into force, so it has not been tested in practice. Nevertheless, it contains provision for a political dispute resolution mechanism, which would be compatible with the Government’s desire for such a mechanism as it seeks to end the CJEU’s jurisdiction in the UK.
73.Falling back on the 1957 Council of Europe Convention on Extradition would significantly slow down extradition proceedings, since it would mean going back to making routine extradition requests—as well as resolving disputes about extradition requests—through diplomatic channels.
74.The Government has indicated that it is contemplating a “phased process of implementation” in which the UK, the EU institutions and Member States prepare for new arrangements, specifying explicitly that this could include cooperation on criminal justice matters. We agree with those witnesses who suggested that any transitional arrangement is likely to include accepting, at least in part, the jurisdiction of the CJEU, if only 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.
75.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”, and emphasise that an operational gap between the EAW ceasing to apply and a suitable replacement coming into force would pose an unacceptable risk.
61 European Union Committee, EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159); European Union Committee, Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013–14, HL Paper 69); HM Government, Decision pursuant to Article 10 of Protocol 36 to the The Treaty on the Functioning of the European Union, Cm 8671, July 2013: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235912/8671.pdf [accessed 04 July 2017]; HM Government, Decision pursuant to Article 10 (5) of Protocol 36 to the Treaty on the Functioning of the European Union, Cm 8897, July 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/326698/41670_Cm_8897_Accessible.pdf [accessed 04 July 2017]; Select Committee on Extradition Law, The European Arrest Warrant Opt-in (1st Report, Session 2014–15, HL Paper 63).
62 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report of Session 2016–17, HL Paper 77), para 141
67 Council Decision 2014/835/EU, 27 November 2014 on the conclusion of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway, (OJ L 343/1 28 November 2014, pp 1 and 2). Denmark is not party to this agreement.
75 European Union Committee, Brexit: future UK-EU security and police cooperation, (7th Report, Session 2016–17, HL Paper 77) para 141
84 Department for Exiting the European Union, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, para 12.2: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 04 July 2017]
90 Q 6. See also European Union Committee, Brexit: The EU Data Protection Package (3rd Report, Session 2017–19, HL Paper 7)
91 European Union Committee, Brexit: future UK-EU security and police cooperation (7th Report, Session 2016–17, HL Paper 77) para 141