Chapter 7: Northern Ireland and the proposed security treaty
Introduction
161.Northern Ireland and the Republic of Ireland straddle the UK’s only land border with another EU Member State, and across a range of policy areas, the issues arising more broadly in the negotiations between the UK and the EU affect them with particular acuteness.
162.Security forces in the two jurisdictions have a decades-long history of cooperation in counterterrorism and the fight against cross-border crime such as smuggling. The Police Service of Northern Ireland (PSNI) described “continued close co-operation with An Garda Síochána” as “essential to deal with the myriad of issues presented by the land border”. They qualified this, however, by warning that “successful cooperation takes more than good working relationships … we need a clear legal framework within which to cooperate”.198 These factors mean that Brexit, as we have noted before, will have “profound implications for the current high levels of cross-border police and security cooperation between the UK and Irish authorities”.199 The preservation of security cooperation between the UK and the Republic of Ireland will thus be an important element in negotiations on any security treaty between the UK and EU.
163.BrexitLawNI, a research project, told us that “the land border poses significant challenges for security cooperation post-Brexit”. They described Northern Ireland as “a post-conflict society”, with a unique security context, which faced “unique challenges posed by Brexit”.200 This was confirmed by the PSNI, which described policing the border as “a policing challenge unlike anywhere else in the UK”.201 In addition to “traditional” crimes, such as organised crime, paramilitary activity, and smuggling, there were “cyber-related forms of crime”, unbound by national borders, investigation of which often required more resources and cross-border police cooperation between the PSNI and An Garda Síochána. BrexitLawNI said that it was “essential that the UK mitigates the additional security concerns arising from its exit from the EU and does not inhibit this long-standing and hard-won cooperation”.202
164.A Joint Agency Task Force (JATF) was created in 2015, which tackles organised and cross-jurisdictional crime. As well as the two police forces, it involves the Republic of Ireland Revenue Commissioners, HM Revenue and Customs, and other key agencies. A strategic assessment prepared for the JATF identified six cross-border priorities: “Drugs, excise fraud, human trafficking, child sexual exploitation, rural/agricultural crime and criminal finances/money laundering.”203 PSNI told us that the JATF would be “critical as we respond to the challenges ahead of us post-Brexit”.204
The European Arrest Warrant
165.BrexitLawNI identified “the potential loss of the EAW” as “one of the most serious security-related issues arising from Brexit”, describing it as “a vital tool for the PSNI”. PSNI listed the EAW first among their list of “key tools”,205 confirming the evidence given to the EU Select Committee on 31 January 2018 by George Hamilton QPM, Chief Constable of the PSNI, who called loss of the EAW “the biggest practical vulnerability” arising from Brexit.206 The Prime Minister has also recognised that the EAW has “enabled police cooperation between the Republic of Ireland and Northern Ireland”.207
166.To illustrate this point, BrexitLawNI told us that between 2007 and 2017 the PSNI sought 154 EAWs; of these, 71 warrants were granted, leading to the extradition of 47 suspects to Northern Ireland. The majority of these PSNI EAW applications, 113, requested the extradition of suspects believed to be in the Republic of Ireland.208
Alternative models of extradition
167.Falling back on the 1957 Council of Europe Convention on Extradition could present specific difficulties in the context of Ireland/Northern Ireland. In particular, it contains a “political exception” clause, which BrexitLawNI said had allowed Member States to grant “safe haven” to those who had committed crimes that were political in nature. This had “served as a barrier to the extradition of Irish Republican terrorism suspects to the UK”. They also argued that a post-Brexit extradition deal modelled on the Norway/Iceland agreement could “prove problematic for NI”, as it both includes an option for parties to refuse to extradite their own nationals, and reintroduces the political exception clause: “Thus, NI (as well as the rest of the UK) could again be faced with a barrier to the extradition of members of Dissident Irish Republican groups suspected of committing terrorist activities.”209 It is worth noting in this context that, under the terms of the Belfast/Good Friday Agreement, those born in Northern Ireland are entitled to claim Irish citizenship, British citizenship, or both.
Data-sharing
168.BrexitLawNI also highlighted the importance of “information-sharing between the PSNI and An Garda Síochána … Leaving the EU risks losing the level of data-sharing that currently takes place between the two jurisdictions, thus potentially threatening security on the island.” They explained that the two police forces currently access data such as watchlists through European databases, rather than sharing it directly with each other: “What it ensures is that they are both receiving the same information, they are not relying on each other.” If the UK no longer had access to these databases, the police forces would need to “revert” to a situation where they relied on “goodwill”.210
Conclusions
169.Security forces in Northern Ireland and the Republic of Ireland have a decades-long history of cooperation in combating terrorism and cross-border crime, and over recent years in particular the Police Service of Northern Ireland and An Garda Síochána have developed ever greater mutual confidence and respect. While we are confident that this informal cooperation will continue, we also note the evidence of the Police Service of Northern Ireland that EU instruments, databases and agencies have become increasingly important in providing formal mechanisms for cooperation.
170.It is thus vital for both sides that any UK-EU treaty or agreements should support ongoing security cooperation, including (particularly in light of the ongoing case before the CJEU) effective extradition arrangements between the UK and Ireland. Here, perhaps more than in any other aspect of security cooperation, the negotiations should not be treated as a ‘zero sum game’, but as an opportunity to develop a partnership that will benefit both sides.
199 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76), para 152
203 Ibid.
205 Ibid.
208 Ibid.
209 Ibid.
210 Ibid.