As we all know, there was a Brexit deal in the run up to last Christmas.
Since then much of the UK media has been focused on trade, seafood, financial services and Northern Ireland.
However, there is an EU framework for cross-border law enforcement, as well as civil law rules (e.g. which countries’ courts have the right to hear civil cases).
What does the agreement mean for these areas of policy in Scotland now that Brexit has happened?
Law enforcement – mutual interest
A first point to note is that there were important differences in how the UK and the EU approached the Brexit trade talks and the negotiations on law enforcement.
The trade talks were more about potential “winners” and “losers” and the scope of future competition between the UK and EU (see for example the struggle to find a solution to the level playing field).
In contrast, both the UK and EU recognised at a fairly early stage that there was a mutual interest in law enforcement post Brexit. This is unsurprising as clearly there is a big difference between cooperating to fight cross-border crime and competing in the same markets, particularly since the UK has traditionally been a heavy contributor to EU law enforcement.
However, recreating something fully resembling the existing system was never likely once the UK stopped being a Member State. The UK and the EU also had their own “red lines” which impacted on this part of the negotiations. For example, the UK didn’t want an oversight role for the European Court of Justice (ECJ) whereas the EU wanted the UK to sign up to specific data protection and human rights commitments in the deal.
Disputes, human rights and data protection
To reach a deal on justice both the UK and EU had to make some general compromises.
For its part, the EU backed down on the need for a role for the ECJ. Instead, disputes will be dealt with by a specialised committee, overseen by a Partnership Council (for details see the SPICe blog on the agreement).
On the other hand, the UK also compromised by agreeing to make this part of the deal conditional on compliance with the European Convention on Human Rights and agreeing to a “high level of protection of personal data”.
In the long term, data transfers will, however, be dependent on the EU deciding that the UK’s data protection rules are equivalent to the EU’s (a so-called “adequacy decision”). Based on articles in the UK media, it seems the EU is about to grant this decision, albeit limited in time to four years.
What areas does the agreement cover?
The deal (Part Three of the Trade and Cooperation Agreement) covers three main areas:
- Data exchange and access to databases
- EU agencies – Europol and Eurojust
In addition, there are also rules on anti-money laundering, counter terrorist financing and confiscation orders.
When it comes to data, the agreement provides the UK and EU with:
- Automated exchange of fingerprint, vehicle registration and DNA data (following the existing “Prüm framework”).
- Access to each other’s Passenger Name Records (PNR) – i.e. information which passengers provide airlines when reserving flights or checking in.
However, the deal doesn’t give the UK access to the second generation Schengen Information System (SIS II) which lets Member States share law enforcement alerts in real time (including the fact that a European Arrest Warrant has been issued). The EU’s view was that SIS II should not be available to the UK as it would not be part of the Schengen free movement area.
The result is a return to cooperation via Interpol and bilateral relationships. Police Scotland’s view is that this “will not be as good as having a system that is run centrally and to which we all have access”. Others have gone further, with the law firm Covington Burling calling the loss of access to SIS II, “a gaping hole”.
There will also be no access for the UK to the European Criminal Records Information System (ECRIS) – a system for sharing previous convictions. Instead, cooperation is based on enhancements to an existing treaty (the European Convention on Mutual Assistance in Criminal Matters 1959).
The UK will also no longer be a member of the EU’s law enforcement agency Europol or its agency for criminal justice cooperation Eurojust.
The deal does provide for future cooperation though, including the exchange of information between Europol and the United Kingdom and the possibility of the UK being involved in joint investigative teams. However, much of the details of future cooperation will depend on future working arrangements between the UK and the two agencies.
Brexit also means an end to the UK’s participation in the European Arrest Warrant (EAW) – a fast-track extradition system only for EU Member States.
The replacement is a new extradition procedure which mirrors the EU’s Surrender Agreement with Norway and Iceland (both members of the Schengen free movement area). In this respect the deal goes beyond what the EU would normally offer a non-Schengen country.
The new rules broadly resemble the EAW and have the same time limits . However, key differences are the fact that the UK and EU Member States can refuse to extradite their own nationals and can refuse to execute a warrant for political offences (this isn’t defined in detail in the deal but would, among other things, cover offences of a purely political nature such as treason, sedition or espionage). In addition, extradition will only be possible where the criminal offence exists in both jurisdictions (known as “dual criminality”), although this can be waived.
The political offence exception will, however, only apply if the UK and EU first notify the Specialised Committee. It also cannot be used for certain terrorist offences – for more details see the oral evidence given to the Commons’ Northern Ireland Affairs Committee on 13 January 2021.
The deal is silent on a new framework for civil justice cooperation. The UK has applied to accede to the Lugano Convention (a treaty between the EU and Iceland, Norway and Switzerland on which countries’ courts can hear disputes). But the EU has yet to approve the UK’s accession. The current framework is therefore a mix of domestic law and international treaties.
The above only scratches the surface. There are multiple questions about how each of the various aspects of the agreement will work in practice, as well as what scope there is for mitigating some of the difficulties, e.g. on a bilateral basis.
Since justice is largely a devolved area, these types of practical questions will be of particular importance for Scotland. In addition, there will be a need for a common framework involving the UK and Scottish Governments to ensure that the new justice deal works effectively. It is currently not clear what form this common framework will take.
Finally, on the assumption that there are no clashes on, for example, data protection or human rights, a bigger long-term question is whether the justice deal itself is merely static or whether it can be built on given the UK and EU’s mutual interest in this area.
Senior Researcher, Justice Health and Social Affairs Research Unit