Brexit and EU justice policy – the final countdown?

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During the next two days, SPICe will publish four blogs examining the impact of a no-deal Brexit.  This blog examines what no-deal would mean for cooperation on policing and justice.

Over the last weeks, even if one can somehow ignore the pandemic, the focus of the UK media has largely been on whether there’s going to be a Brexit deal at all and, if so, what will happen to trade (and fish).

However, the EU is obviously much more than just a trade zone. It also provides a framework for cross-border criminal law and policing, as well as rules on things like which countries’ courts can hear family law or consumer cases.

Although there isn’t any official confirmation, it seems that justice may not be a sticking point in the negotiations (unlike trade and fish, both parties have more of a mutual interest in this area). But, as the EU’s position is still that “nothing is agreed until everything is agreed”, (for details see the SPICe blog “Brexit – what would no deal mean?”)  what will happen to justice if there’s no deal by the end of the year?

European Arrest Warrant

One major impact of no deal would be on the rules which allow convicted criminals and those facing prosecution to be extradited between EU Member States.

These are currently contained in the European Arrest Warrant (EAW) which provides a fast-track, largely automatic extradition system.

Once Brexit happens the UK’s involvement in the EAW will end.

From the published legal drafts, it seems that the EU and UK are negotiating a bespoke extradition agreement broadly similar to the one the EU has with Norway and Iceland. This resembles the EAW but, amongst other things, gives countries the right to refuse to extradite their own nationals.  

However, if there is no deal, then the law will revert to rules in the 1957 Council of Europe Convention on Extradition.

By all accounts that system would be less effective than a bespoke arrangement.  For example, Police Scotland stated in evidence to the Scottish Parliament’s Justice Sub-Committee on Policing that it, “involves a slower and more bureaucratic process.”

And in a recent paper, Camino Mortera-Martinez of the Centre for European Reform stressed that:

“It takes 18 months on average to surrender a suspect under the Convention, during which the requested state has to pay for detention”

Whatever the result of negotiations, Interpol Red Notices will need to be used (these are international requests for arrest pending extradition).

New UK legislation, the Extradition (Provisional Arrest) Act 2020, has also been put in place to allow the police to make arrests for extradition purposes without a warrant. One aim behind this law is to replace the current power to make arrests without a warrant under the EAW.

Data exchange

Another big impact of no deal would be on the rules which allow police in the UK and the EU to access databases and exchange data for law enforcement purposes.

There are a number of arrangements which currently allow for this. For example:

Whether the outcome is a deal or no deal, it seems clear that the UK will not be able to access all of these databases after Brexit. A recent paper by Gemma Davies of UK in a Changing Europe stressed that:

“the only databases the UK would have full access to, even in a deal scenario, are Prüm and PNR. There is no precedent for a non-EU country to access ECRIS (not even non-EU Schengen countries).”

When it comes to SIS II, the EU has constantly refused the UK’s request for future access on the basis that the UK will not be part of Schengen after Brexit. Instead the EU’s offer seems to be based on something known as “the Swedish Initiative” which includes rules on exchanging information, but isn’t a database like SIS II. 

This would mean a return to cooperation via Interpol and bilateral relationships. Police Scotland’s view is that these processes, “will not be as good as having a system that is run centrally and to which we all have access” (see their oral evidence to the Scottish Parliament’s Justice Sub-Committee on Policing).

On criminal records, no deal would mean reverting to the Council of Europe Convention on Mutual Legal Assistance 1959. Records would have to be requested from authorities in other countres. According to the Lord Advocate, this would mean that:

“we would lose both control of the time taken to execute requests and certainty that requests would be executed.”  

EU Agencies – Europol and Eurojust

A no deal would also impact on the UK’s relationship with the EU’s law enforcement agency in the Hague, Europol (Police Scotland has an officer based there), as well as Eurojust – the EU’s agency for criminal justice cooperation.

Brexit was always going to change these relationships. However, if there is no deal then the possibilities for the UK to have a relationship going beyond that of other third countries will be much more limited. Interpol and bilateral relationships would have to fill the gap.      

Civil justice

Last but not least is civil law (often overlooked given the political focus on crime). 

Although it’s very complicated (and it’s not clear what might be in a deal), leaving without a deal will lead to some significant impacts for cases commencing after the transition period ends (the Withdrawal Agreement applies EU law to cases which commence before 31 December 2020).

For one, there will be major changes in cross-border family law including the rules on which countries’ courts can hear a case (for details see this article in the Journal of the Law Society of Scotland).

In addition, no deal would also impact on cross-border litigation more generally. One effect is that the UK wouldn’t be able to sign up to the Lugano Convention (a treaty between the EU and Iceland, Norway and Switzerland on which countries’ courts can hear cases). This would mean falling back on a more limited Hague Convention (for further details see this article by the law firm Pinsent Masons).

More information

The above only scratches the surface of the some of the potential changes. For more information, as well as details of contingency planning, see:

Angus Evans

Senior Researcher, Justice and Social Affairs Research Unit