Chapter 4: Security cooperation during the transition period
Introduction
43.In her September 2017 Florence speech, the Prime Minister proposed that after the UK left the EU there should be a time-limited transition period, or implementation period, during which the UK would continue to take part in existing security measures.79 In 26 January 2018, the Secretary of State for Exiting the European Union, the Rt Hon David Davis MP, also emphasised the importance of continued cooperation during the transition period:
“Throughout this period, as in our future partnership, the United Kingdom and European Union will need to work together and respond to the ever-changing threats we face in areas from terrorism to cybercrime … there should not be any obstacles, any obstacles [at] all, to us jointly deciding to take action in the face of these shared challenges during that implementation period.”80
44.Shortly afterwards, on 29 January 2018, the Council of the European Union set out its views on transition. It stated that if a transition period were agreed, the UK would remain bound by EU legislation that it had already joined, and could choose to opt into new measures amending, replacing, or building on that legislation. However, the UK would not be able to join completely new justice and home affairs measures. In addition, during such a transition period, the UK would not participate in the decision-making of EU agencies or institutions, but would continue to be subject to them, including the Court of Justice of the European Union. The Council stated:
“The Union acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the Union acquis should automatically apply to and in the United Kingdom during the transition period. For acts adopted in the Area of Freedom, Security and Justice by which the United Kingdom is bound before its withdrawal, Articles 4a of Protocol (No 21) and 5 of Protocol (No 19) annexed to the Treaties, which allow the United Kingdom not to participate in an act amending a measure by which it is already bound, should continue to apply during the transition … The United Kingdom should however no longer be allowed to opt in to measures in this Area other than those amending, replacing or building upon the above mentioned existing acts.”81
45.In this chapter we describe UK-EU cooperation on JHA measures during transition, with a particular focus on extradition. We consider how the UK’s influence in JHA governance structures will change during transition, and the impact upon the UK’s hand in negotiations on the future relationship.
JHA measures during transition
46.Article 122(5) of the latest text of the draft Withdrawal Agreement (published on 19 March), closely follows the approach set out by the Council in January. It stipulates that during the transition period, JHA measures by which the UK is bound shall continue to apply: “The United Kingdom shall, however, not have the right to notify its wish to take part in the application of new measures.”82 Part Four, of which Article 122 forms a part, sets out the general principles of the transition period, during which, in effect, the UK will retain the responsibilities of EU membership but will lose the associated privileges. These include the right to opt into new JHA measures. By virtue of Article 123(1) of the draft Agreement, which cross-refers to Article 6, the UK will also be excluded during transition from participating in the decisions-making or governance of any of the bodies or agencies of the EU (including those in the field of internal security). All these Articles in the draft Agreement are highlighted in green, indicating that they have been agreed.
47.The UK will, however, be able to opt into any measures which amend, replace or build on existing JHA measures in which the UK already participates. Thus it will be able to maintain full participation in measures that it has already opted into even if those measures are amended, replaced or expanded. The text also confirms the CJEU’s jurisdiction over ongoing JHA measures during the transition period, including in relation to criminal justice.83
48.It is also significant that the draft Agreement maintains Article 4a of Protocol 21 TFEU. Under this article, the EU institutions can “urge” the UK either to opt in, or to “bear the financial consequences” if the UK’s non-participation “makes the application of that measure inoperable for the other Member States of the Union”. Member States can also urge the UK to do both of these things.
49.As for new JHA measures, the draft Agreement provides that the EU may invite the UK to participate, but only “under the conditions set out for cooperation with third countries”.84 This underlines the fact that the UK will be a ‘third country’ on 30 March 2019, and even though, as we show in the next chapter, certain EU frameworks permit the involvement of third countries, they are given little if any say in decision-making.
50.Commenting on these provisions, Dr Marco Stefan, of the Centre for European Policy Studies, warned that the UK stood to lose influence during the transition period: “The current negotiating position of the EU is that, as of Brexit day, 29 March 2019, the UK will no longer be allowed into the agencies’ management structure; it will be out of the Europol management board and the Eurojust college.” He pointed out that “there are no cases of a third country vis-à-vis the agency being allowed into these structures with a voting right”.85
51.Similarly, the Information Commissioner’s Office told us that it was unclear what role the Information Commissioner would have on oversight boards during transition. The Information Commissioner is currently a member of the Europol Cooperation Board, the Eurojust Joint Supervisory Body, and the SIS II Supervision Coordination Group, among other boards. The Office noted that “non-EU/EEA countries have limited or no influence in terms of the oversight groups”. It also argued that if the UK continued to have access to JHA data-sharing systems during transition, “then the Information Commissioner will need to continue to be included in the relevant supervision groups”.86
Conclusions
52.Operational continuity and the security of both the UK and the EU would be seriously undermined were there to be an abrupt end to cooperation in March 2019. We therefore welcome the agreement of both the UK Government and the EU that UK participation in those JHA measures in which the UK currently participates should be extended during the transition period. We note, however, that the draft Withdrawal Agreement would prevent the UK from opting into new JHA proposals, unless these build on or amend existing measures.
53.The transitional arrangements contained in the draft Withdrawal Agreement would also disbar the UK from retaining a governance role in Europol, Eurojust and on the boards of JHA data-sharing frameworks. From this diminished position, the UK will be unable to influence policy and decision-making, and this in turn could make it more difficult to secure long-term access.
Extradition during transition
54.Though the Withdrawal Agreement seeks in large part to extend the status quo of UK participation in justice and home affairs measures, a notable exception is the operation of the European Arrest Warrant.
55.Article 168 of the draft Agreement (which is highlighted yellow, meaning that the policy objective has been agreed, though drafting changes are still needed) would allow an EU27 Member State to decide not to surrender its own nationals to the UK during transition, if to do so would be contrary to its “fundamental structures”. Such structures might include constitutional bars to the extradition of own-nationals, which the existing EAW framework over-rides.87 It would also allow the UK to reciprocate, by refusing to extradite British citizens to that Member State.88
56.It is important to note, however, that Article 168 relates only to nationals of the EU Member State receiving an extradition request from the UK: it would have no bearing on a UK EAW issued in respect of a Spanish (or indeed British) citizen resident in Germany. Figures published by the National Crime Agency show that, of the 956 surrenders made to the UK in response to EAWs in the years 2010–16, 538 (56%) were of British citizens; the next largest group by nationality was Irish (86, or 9%), followed by Polish (69), Romanian (50) and Dutch (49). At the other end of the scale, only two German nationals were surrendered over this period, and one each from Finland and Slovenia. The published statistics do not indicate which countries made the surrenders.89
57.Professor John Spencer of the University of Cambridge told us that Article 168 was most likely to apply to Germany, which has a strict constitutional bar on extradition of German nationals to non-EU states.90 He also flagged up five other EU Member States—the Czech Republic, France, Romania, Slovenia, and Slovakia—that might invoke Article 168 during transition.91 Debbie Price, Head of International Justice at the CPS, suggested that an even greater number of Member States could take advantage of the provision: “We do not know the position with other countries; there may be more. We have been doing some work on this basis because we understand that there are 22 EU Member States that have some sort of nationality bar.”92
58.Professor Spencer cautioned against the Government exercising the reciprocal right contained in Article 168 to refuse to extradite its citizens to an EU27 Member State, saying that “refusing to hand back our [wanted] nationals … would be a piece of useless gesture politics”. Nick Vamos added: “It would be a gesture in practice, as well, because the number of UK nationals surrendered to other EU countries is relatively small.”93
59.On 3 May 2018 we wrote to the Minister, the Rt Hon Nick Hurd MP, asking for clarification on Article 168. We asked whether the Home Office had assessed whether criminals might take advantage of Member States’ ability to refuse to extradite their own nationals to the UK during the transition period, and what assessment the Department had made of which Member States would not extradite their own nationals during the transition period.94 He replied on 18 May, saying that because the text on Article 168 was not yet agreed, he could not speculate about “the effect that the Agreement may have on the extradition of own-nationals to the UK during the [transition] period or the likelihood of changes to EU Member States’ constitutions”. He added that “a range of approaches currently exist to tackle criminals who seek to escape justice by becoming fugitives. The UK will continue to work with European partners with the objective of reducing the risk of impunity for such criminals.”95
60.In a related development, on 1 February 2018 the Irish Supreme Court referred an extradition case to the CJEU.96 In this case the UK had issued a European Arrest Warrant in respect of an Irish national resident in the Republic of Ireland—one of 20 people resisting extradition on similar grounds. The legal principle here did not centre on the defendant’s nationality, but on the fact that, should his sentence last longer than 29 March 2019, he would effectively have been extradited, using the EAW, to a non-EU Member State.97
61.We asked the Government for its analysis of what was likely to happen to EAWs that had already been issued at the time of Brexit. In response, we were referred to Title V of the Withdrawal Agreement—though this in fact deals with ongoing judicial cooperation matters at the end of the transition period, rather than those that will be underway on 29 March 2019.98
Conclusions
62.In our July 2017 report, Brexit: judicial oversight of the European Arrest Warrant, we expressed concern over how the issue of own-nationals would be addressed in any transition period. That concern has now materialised, and the inclusion of Article 168 of the draft Withdrawal Agreement, which would allow EU27 States to refuse to extradite their nationals to the UK during the transition period, in accordance with domestic constitutional requirements, is significant, illustrating the disengagement in police and judicial cooperation between the UK and EU27 that will begin on the day that the UK leaves the EU.
63.At the same time, the practical impact of Article 168 upon the UK’s extradition requests is unclear. We therefore urge the Government to ascertain the precise effect of Article 168 of the Withdrawal Agreement on the UK’s extradition arrangements, including on cases pending on the date of the UK’s withdrawal. We shall look again at this issue in coming months, and in the meantime recommend that the Government publish a contingency plan, addressing the effect of any disruption to the UK’s extradition arrangements.
64.We agree with our witnesses that it would be counterproductive for the Government to retaliate against any EU Member State that decided not to extradite own-nationals to the UK by refusing to extradite British citizens to that country, as provided for by Article 168 of the draft Agreement. Such a course of action might appear politically opportune in the short term, but could be detrimental to the UK’s security. It could also jeopardise the good will that will be needed if a successful outcome is to be achieved in negotiations on the long-term security relationship.
79 House of Lords Library Briefing, ‘Proposed UK-EU Security Treaty’, LLN-2018–0058, May 2018, p 2
80 Rt Hon David Davis MP, ‘Teesport Speech: Implementation Period—A bridge to the future partnerships between the UK & EU’ (January 2018): https://www.gov.uk/government/news/david-davis-teesport-speech-implementation-period-a-bridge-to-the-future-partnership-between-the-uk-eu [accessed 20 June 2018]
81 European Council, ‘Annex to the Council Decision supplementing the Council Decision of 22 May 2017 authorising the opening of the negotiations with the United Kingdom’, 29 January 2018, p 6: http://www.consilium.europa.eu/media/32504/xt21004-ad01re02en18.pdf [accessed 20 June 2018]
82 European Commission, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 19 March 2018, Article 122(5): https://ec.europa.eu/commission/publications/draft-agreement-withdrawal-united-kingdom-great-britain-and-northern-ireland-european-union-and-european-atomic-energy-community-0_en [accessed 18 June 2018]
83 Ibid., Article 126
84 Ibid., Article 122(5)
88 European Commission, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 19 March 2018, Article 168: https://ec.europa.eu/commission/publications/draft-agreement-withdrawal-united-kingdom-great-britain-and-northern-ireland-european-union-and-european-atomic-energy-community-0_en [accessed 18 June 2018]
89 National Crime Agency, ‘European Arrest Warrant Statistics’: http://www.nationalcrimeagency.gov.uk/publications/european-arrest-warrant-statistics/wanted-from-the-uk-european-arrest-warrant-statistics [accessed 3 July 2018]
90 Article 16(2) of the German Basic law states: “No German may be extradited to a foreign country. The law may provide otherwise for extraditions to a member state of the European Union or to an international court, provided that the rule of law is observed.”
94 Lord Jay of Ewelme, Letter to Rt Hon Nick Hurd MP, 3 May 2018 https://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/brexit-proposed-security-treaty/lord-jay-european-arrest-warrant.pdf [accessed 3 July 2018]
95 Rt Hon Nick Hurd MP, Letter to Lord Jay of Ewelme, 18 May 2018, https://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/brexit-proposed-security-treaty/nick-hurd-european-arrest-warrant.pdf [accessed 3 July 2018]
96 On 30 May 2018 the CJEU refused to fast-track consideration of this case (Case C-191/18); the Irish High Court then referred a second case (Case C-327/18), which the CJEU has agreed to fast-track. A CJEU hearing in this case is set for 12 July 2018.
97 Owen Bowcott, ‘Irish court refuses man’s extradition because of Brexit’, The Guardian (1 February 2018): https://www.theguardian.com/politics/2018/feb/01/irish-court-refuses-mans-extradition-because-of-brexit [accessed 20 June 2018]
98 Rt Hon Nick Hurd MP, Letter to Lord Jay of Ewelme, 18 May 2018, https://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/brexit-proposed-security-treaty/nick-hurd-european-arrest-warrant.pdf [accessed 3 July 2018]