Report CEPS and QMUL Report Outlines UK-EU Cooperation in Criminal Justice and Police Matters after Brexit
The Task Force set up by the Centre for European Policy Studies (CEPS) – a Brussels-based think tank – and the School of Law at Queen Mary University of London (QMUL) published a report that extensively examines the key issues, main options, and alternative models for EU-UK cooperation on issues related to security and justice after Brexit.
The report – published in September 2018 - was written by Sergio Carrera, Valsamis Mitsilegas, Marco Stefan,andFabio Giuffrida. It is the outcome of several discussions by the Task Force that was actively supported by Peter Hustinx, former EDPS, and Michael Kennedy, former President of Eurojust.
The report is divided into three parts:
- EU constitutional framework for UK participation in the AFSJ before and after Brexit;
- UK-EU cooperation in criminal justice and police matters after Brexit;
- Key findings and the way forward.
The report addresses several topics and draws the following main conclusions:
EU-UK criminal justice and police cooperation after Brexit:
- An international agreement between the UK and the EU will be subject to rules on the EU’s external action in the field of criminal justice and police cooperation;
- The UK government’s objective to create a new model of cooperation that more or less continues the current level necessitates the UK’s compliance with key EU law standards.
EU law benchmarks for criminal justice and police cooperation after Brexit:
- To ensure trust, the UK must continue to participate in the ECHR;
- Any post-Brexit agreement should include a “freezing mechanism,” i.e., both parties may suspend cooperation if human rights violations are ascertained;
- After Brexit, the UK needs to comply with more EU standards than to date, i.e., compliance is considered necessary with the EU acquison suspects’ and victims’ rights in criminal proceedings as well as on data protection and privacy standards.
Instruments of mutual recognition: status quo and alternative options:
- Especially as regards extradition, reverting to extra-EU instruments, e.g., those agreed on within the Council of Europe or the UN, would be inefficient;
- The EU-Norway and Iceland Agreement on Surrender could serve as a model to follow, as it would keep EU-UK extradition proceedings “judicialised;”
- It must, however, be questioned whether participation in the Schengen acquis is a prerequisite for certain extradition conditions, such as the surrender of own nationals;
- As far as mutual legal assistance (MLA) is concerned, a post-Brexit MLA agreement should go beyond existing arrangements between the EU and third countries.
Data protection and the exchange of data for law enforcement and criminal justice purposes:
- The UK would be treated like a third country after Brexit, as a result of which its data protection standard would be assessed as “essentially equivalent” to that guaranteed by EU law read in light of the Charter;
- A “guillotine clause” may govern the future partnership, i.e., data exchange between law enforcement authorities would be suspended if the CJEU withdrew or declared invalid the adequacy decision;
- Some pieces of UK legislation may become “stumbling blocks” when affirming an equivalent level of protection of personal data and privacy guaranteed by EU law.
Post-Brexit access to EU databases:
- As a third country and non-Schengen country, the UK’s participation in EU databases cannot be maintained after Brexit; this holds especially true for ECRIS, SIS, and EU-PNR; an exception is conceivable for the UK’s participation in the Prüm framework;
- The UK’s participation in the EU’s interoperability legislation is likely to be impossible.
UK participation in EU agencies after Brexit:
- The UK will need “ad hoc agreements” to continue the exchange of personal data with Europol and Eurojust;
- There is no precedent granting third country access to Europol’s databases;
- A strong relationship with the European Public Prosecutor’s Office will be necessary.
Role of the CJEU in the future EU-UK security and justice partnership:
- The case law of the CJEU will have a relevant impact on the UK after Brexit, as the Court will remain competent to ultimately and authoritatively interpret EU law;
- The CJEU may prevent entry into force of any EU-UK agreement on criminal justice and police cooperation.
The CEPS/QMUL report was published at nearly the same time as another report on the future UK-EU partnership in justice and home affairs. The latter was presented by the Institute for Government.