Brexit: judicial oversight of the European Arrest Warrant Contents

Summary of conclusions

1.In its White Paper on The United Kingdom’s exit from and new partnership with the European Union, the Government confirmed that it plans to “bring an end to the jurisdiction in the UK of the Court of Justice of the European Union”. In practice, the jurisdiction of the CJEU will end automatically when the UK ceases to be an EU Member State. But this change leaves open the question of how the role of the CJEU in providing a level playing field between the UK and EU in criminal justice matters is to be provided for in any future agreement between the two parties, and what status the case law of the CJEU will have post-Brexit. (Paragraph 36)

2.The CJEU will have at least an indirect role in the interpretation of any agreement between the UK and the EU. In any agreement, on any subject between the UK and the EU, the terms of the agreement will—on the EU side—be subject to the jurisdiction of the CJEU, whose interpretation will be binding on the EU and its Member States. (Paragraph 37)

3.As for the CJEU’s case law, the Government has already accepted that existing case law will stand the day after Brexit, because the European Union (Withdrawal) Bill “will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court”. The Government also said that the European Union (Withdrawal) Bill would not require the domestic courts to consider the CJEU’s jurisprudence, implying that new CJEU case law that develops post-Brexit will have no formal status in the UK. However, our witnesses were clear that CJEU case law is likely still to have persuasive authority. Indeed, it is conceivable that it could be a requirement of any future UK-EU extradition agreement for the UK formally to take account of relevant CJEU case law that develops post-Brexit. (Paragraph 38)

4.It was suggested to us that in the field of criminal justice, any alternative to the CJEU must be a court and not an arbitration mechanism, since only a court can review decisions affecting the liberty of the individual. The EFTA Court model has the advantage that individuals and businesses, as well as the Contracting Parties to the EEA agreement, can bring actions before the Court, replicating one of the more effective features of the CJEU. But it should be noted that at present, this model applies only to internal market-related disputes. Its jurisdiction was not expanded to cover Norway and Iceland’s participation in the EAW. Furthermore, the section of the Government’s White Paper dealing with dispute resolution mechanisms does not mention the EFTA model—perhaps implying that the Government has already ruled out this option. (Paragraph 39)

5.We question, moreover, whether in the context of the EAW the EU-27 will be willing to establish bespoke adjudication arrangements such as a parallel court in order to accommodate the UK’s objectives. We observe in this context that the UK has already had to decide, as recently as the Protocol 36 Decision in 2014, whether to accept the jurisdiction of the CJEU in return for continued use of tools like the EAW. Now as then, the safety of the people of the UK should be the Government’s overriding consideration.
(Paragraph 40)

6.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. (Paragraph 69)

7.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. (Paragraph 70)

8.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. (Paragraph 71)

9.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. Paragraph 72)

10.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. (Paragraph 73)

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