This week the Prime Minister triggered the start of negotiations which will lead to Britain leaving the European Union. It has been widely noted that in her letter the Prime Minister mentioned the word security’ more than she did the word trade’. This is because security is seen as one of the UK’s strongest cards. The UK has one of the EU’s strongest militaries and it is a major player in combatting terrorism because of its respected security services and its membership of the powerful Five Eyes intelligence alliance. Britain also plays a leading role in European law enforcement through its contribution to Europol.

What do we know at this stage about the prospects for a deal in the areas of policing and justice? While continued cooperation in these areas may look like a no brainer’ in principle, such considerations may be overwhelmed by wider political factors. If the view within the EU is that the UK must be punished for its decision to leave, then policing and justice may suffer along with any putative deal on trade. The Commons Justice Committee has recently called for security matters to be dealt with separately from the rest of the negotiation, but the Prime Minister’s letter rejects this by seeming to play security as a card in her wider negotiating strategy.

So, are we in for a hard or a soft Brexit on policing and justice? Given the complexity of the negotiations it is impossible to answer that question. What we do know, from the Prime Minister’s letter and the recent White Paper, is the outline of where the government wants to end up more broadly. Britain wants a free trade deal, but wants to be outside the Single Market and the Customs Union. The government wants to end the supremacy of EU law over UK law and is clear that the UK will no longer be bound by decisions of the European Court of Justice. And Britain wants to negotiate both an exit deal and a treaty on our future arrangements simultaneously, rather than consecutively. These positions have important implications for what may be possible on policing and justice.
The most consequential matters are the European Arrest Warrant (EAW), data sharing and Europol. Let’s look at the prospects for agreeing a deal on each.

The European Arrest Warrant

The EAW is a measure that allows EU countries to extradite criminal suspects between member states with relative ease. It works on the basis of mutual recognition, meaning that member states arrest and surrender wanted persons more or less immediately once a warrant is issued by another member state.

The EAW replaced the much more cumbersome mechanism of the 1957 European Convention on Extradition. According to the National Crime Agency in 2015-16 2102 persons were arrested and removed from the UK at the request of other EU states, while in the same year 150 suspects were arrested in the rest of the EU at the UK’s request, along with a further 112 who surrendered. Currently, the average time it takes to have a suspect transferred is three months within the EU using the EAW compared to 10 months using other measures.

The problem for the UK is that the EAW is an agreement between EU member states and so once we cease to be a member of the EU we lose access to it. The best way of retaining it would be to agree a new extradition treaty with the whole of the EU. Indeed some have pointed to Iceland and Norway as a model. These are non EU states who have agreed an extradition treaty with the EU which contains something similar to the EAW. The problem is that this measure took years to negotiate and still requires promulgation by individual member states before it comes fully into force.

We should note at this point that the UK will require two agreements with the EU, even if they are negotiated simultaneously. The first is an exit agreement (the so called divorce settlement’ that makes the UK a non EU country) and the second is an agreement on future arrangements. The first could be agreed simply by the European Council and Parliament, but the second because of its broad scope is likely to be a so-called mixed agreement’ requiring approval by each individual member state as well.

Given the scope of any agreement on a future relationship and the fact that it may require approval by all 27 member states it looks unlikely that it will be agreed within the two years of the Article 50 process. If a comprehensive agreement cannot be reached within the two years then either we agree a transitional arrangement or we crash out on WTO terms.

If we crash out without a deal clearly we lose the EAW on the day we cease to be a member state. But even if we agree a transitional deal it looks technically hard to see how this could include retaining the EAW. A transitional deal might mean for example falling back on EEA arrangements for trade. But under that scenario we would lose the EAW. The Norwegian/Icelandic experience indicates that an agreement on facilitating the extradition of EU citizens to what would be a non EU state would have to go through a complex process involving promulgation if not ratification at member state level.

Data sharing

The UK has access to a number of EU information systems that are critical from a security perspective. These include: the European Criminal Records Information System (ECRIS), the Schengen Information System II (SIS2), the Passenger Name Records (PNR) and DNA and fingerprint databases as a result of the Pruíöm Decisions.

ECRIS means that data on criminal convictions is exchanged quickly between EU member states. UK police forces have direct access to ECRIS, which helps them make decisions about the risk posed by a suspect or offender.

SIS2 includes around 66 million reports on criminal suspects, missing persons, stolen vehicles and terrorist suspects. This is currently accessible by officers on the street. The Pruíöm decisions enable speedy access to DNA and fingerprint evidence, as opposed to historical arrangements which took weeks and months.

Securing a legal agreement with the EU in these areas looks technically easier than in the case of the EAW. The UK government has committed at least £40 million to the implementation of the latest SIS2 so is well placed to argue for continued access.

However, there are data protection challenges. Information sharing between the UK and EU states will be contingent on the UK’s data protection standards being compliant with the EU’s. There is the risk that we would drift away from compliance once outside the EU and so sharing of EU citizens’ data with the UK may be open to legal challenge. To secure access it looks likely the UK would have to agree to continue to sign up to the standards in EU data protection law.

Europol

Brexit means that we cannot legally remain a full member of Europol. There may be the option to become either an Operational or Strategic Partner, such as Norway and Iceland. However under such an arrangement we would lose direct access to the databases and would have to make requests to access the information via Personal Liaison Officers. This would slow down investigations and undermine the value of some forms of intelligence.

The UK should aim instead for a new partnership status with Europol. This should provide direct access to data and allow us to maintain strong links with the organisation’s leaders. The UK is the second biggest contributor to Europol’s European Intelligence System and Europol has also been widely influenced by UK working practices. The organisation would therefore have a lot to lose from the UK’s exclusion.

Securing a bespoke agreement on Europol looks by far the easier of the three areas I have highlighted. However, everything is now subject to the wider dynamics of the negotiation. If the mood among the remaining 27 is to ensure that the UK is demonstratively worse off as a result of its decision to leave, then everything I have described above may be at risk.