In this blog post Dr. Helena Farrand Carrapico (Aston University) investigates the main concerns regarding the developments of the relations between the Area of Freedom, Security and Justice (AFSJ) and the UK, in conjunction with the Brexit negotiations.
Introduction: In this blog post Dr. Helena Farrand Carrapico investigates the main concerns regarding the developments of the relations between the Area of Freedom, Security and Justice (AFSJ) and the UK, in conjunction with the Brexit negotiations. She argues that the future of UK-EU Internal Security Agreement is still unsure, while the forthcoming exit of London from the EU is a fixed appointment on the calendar. Although the UK might be able to remain exerting some influence on AFSJ post-Brexit, the UK will have trouble to avoid even indirect compliance with the European Court of Justice of a future EU-UK security agreement.
At the end of March 2019, the cooperation mechanisms and instruments of the Area of Freedom, Security and Justice (AFSJ) will cease to apply to the United Kingdom (UK), following its exit from the European Union (EU). As a new UK-EU relationship is currently being shaped, this blogpost proposes to reflect on the main issues emerging in this field, namely 1) the UK’s current situation in the context of the AFSJ, 2) the dominant security ideas circulating in current UK political debates, 3) the initial negotiating positions of the UK and the EU, and 4) the political dilemmas, legal challenges and unanswered questions we are left with at the moment.
Originally developed to protect the Common Market, the AFSJ is currently one of the most dynamic areas of European integration, both in terms of policy and institutional growth. It represents Member States’ shared willingness to provide citizens and residents with effective access to justice, safeguards against crime and terrorism, and fundamental rights. Since the entry into force of the Maastricht Treaty, the relation between the UK and the AFSJ has been based on what would be best labelled as selective participation, where the UK has successfully negotiated a range of opt-ins and opt-outs (for further details, please see Protocols 19, 21 and 36 of the Consolidated Treaty on European Union and on the Functioning of the European Union). Well-known examples of instruments and mechanisms the UK takes part in include the European Arrest Warrant – aimed at harmonising extradition procedures-, the Schengen Information System – a database for the purpose of border management and law enforcement-, and Europol – The EU’s law enforcement agency. The result of such selective participation may resemble a rather intricate piece of lace, but it has served the interests of the UK particularly well. Not only has it allowed Britain to avoid specific areas of integration, which it considers as detrimental to its sovereignty, but it has also enabled it to remain a norm setter for a large number of AFSJ policies.
Where the future UK-EU security relationship is concerned, it would be important to start by mentioning that UK political debates have been largely characterised by an unsubstantiated, although dominant, idea that nothing much will change in this area of cooperation. As Theresa May repeatedly mentioned, a similar level of security cooperation is expected to continue, despite the UK no longer being part of the AFSJ, in order to ensure that European security is not endangered (Lancaster House speech, January 2017; Florence speech, September 2017; Munich speech, February 2018). The view that the UK and the EU would be able to develop new forms of cooperation that are very close to the current ones is, however, not universally shared. As Michel Barnier argued in his Berlin Security Conference speech (November 2017), the decision to exit the EU at a time when a series of terrorist attacks were occurring in European countries can only be interpreted as a form of betrayal of European principles and solidarity. Although negotiations in this field will not start for some time, the UK has started to articulate its position via a number of Prime Minister speeches and a UK Government paper entitled ‘Security, Law Enforcement and Criminal Justice: a future partnership’ (September 2017). In line with the idea that much will remain unchanged for the sake of collective security, the UK position is that it wants a new relationship that is as strong and effective as the current one, and that would go much beyond the EU’s existing cooperation models with third countries. More specifically, the UK wishes to develop a bespoke ‘toolkit’ designed to support coordination and cooperation between police and judicial authorities, that will prioritise a) data-driven law-enforcement, b) practical assistance to operations, and c) multilateral cooperation through agencies. Although the Government paper does not go into further detail, it does set as a starting point that negotiations should cover all provisions the UK has opted into for Chapters 4 (judicial cooperation in criminal matters) and 5 (police cooperation) of Title V of the Treaty on the Functioning of the European Union, in addition to providing examples of instruments it considers to be beneficial. When considering the measures that are included in this starting position, it is important to keep in mind that they are not the result of a rushed Brexit-related decision, but rather the product of a longer reflection going back to the period of 2013- 14. Faced with the prospect of increased European Court of Justice jurisdiction over police and judicial cooperation, Theresa May, who at the time was still Home Secretary, announced in 2012 the UK’s intention of opting-out entirely from this area, covering 133 EU pre-Lisbon measures. Following a long political and technical debate, which focused on the advantages and disadvantages of each of the measures, as well as on the transnational character of threats, the UK Government concluded that a mass opt-out would most likely endanger the UK’s stability and the safety of its citizens, as compensating for the loss of EU-level cooperation would be difficult to achieve. As a result, the UK still went ahead with the mass opt-out but asked to opt back into 35 of the most crucial instruments, including Europol and the European Arrest Warrant. It is these 35 measures together with post- Lisbon instruments that the UK is particularly keen to retain, given their potential impact on national law and order.
There are a number of reasons why the UK believes that the proposed starting position is a realistic one. Firstly, it considers that it shares the same fundamental values as the rest of Europe, including respect for human rights, rule of law, democracy and equality. Consequently, sees itself as having the same obligation to defend such values. Secondly, it feels that its security priorities are also very much aligned with those of the EU. Current security problems transcend national jurisdictions, as borders have only limited capacity to tackle them. Therefore, the only way to effectively address terrorism and organised crime, among others, is to seriously invest in cooperation. As mentioned by the Prime Minister in her Munich speech in February 2018, ‘Europe’s security is our security’. The UK is acutely aware that its internal security directly depends on global security. Thirdly, and given that interdependence is not a one-way street, it is also conscious that the rest of Europe needs the UK’s capacities to maintain stability, and that Britain has been a key player in shaping the AFSJ. Fourthly, from a technical perspective, the UK has a considerable advantage over third countries trying to strike security agreements: it is departing from a position of regulatory alignment, which should facilitate the transition/ implementation phase. Finally, the UK was always considered a particularly awkward partner where Justice and Home Affairs was concerned, not fully in but not fully out either. Despite this form of selective participation, it still managed to find ways to deeply influence decision-making in this area. Given this background, it considers that it could find innovative ways to continue to exert its power despite no longer being a member.
On the EU side, it is difficult to say at this stage whether the British initial position is perceived as having any potential, or if it is at all convincing. If, on the one hand, Michel Barnier’s response to the UK Government paper implied the end of the UK’s involvement in EU decision-making and of its capacity to shape new instruments, on the other hand it is also true that EU and UK security priorities are fairly aligned. The EU wants a partnership that would benefit both sides and that would cover a broad spectrum of threats. As mentioned by Jean-Claude Juncker, in October 2017, the future UK-EU security partnership is essential and the only way to tackle terrorism is to work together. Nevertheless, the EU also pinpoints a number of initial problems, including the fact that it does not want to discriminate against other third countries by being seen to favour the UK, and that it perceives the UK position as being too vague and at times incoherent. As an example, Michel Barnier recently mentioned how surprised he was to find out that the UK was insisting on opting into new Justice and Home Affairs measures, only to abandon them at the end of the transition/ implementation process (speech from the 9th of February 2018).
In addition to the EU’s concerns, we can also identify a few issues that will need to be reflected upon over the course of the negotiations. Firstly, it will be interesting to observe whether the current trade negotiations will have a spillover effect on the future security ones. Despite Jean-Claude Juncker maintaining that these will be separate negotiations and that cross-contamination needs to be avoided (Munich speech in February 2018), it is not unlikely that, after a lengthy and possibly frustrating negotiation process, the political goodwill could be impacted on both sides. Going beyond the issue of political will, and assuming that priorities remain aligned, the UK and the EU will still need to resolve the legal challenges arising from a future security partnership, which are in practice the most problematic issues. As mentioned above, the UK would like to maintain access to its current opt-ins, although there is currently no model of third country partnership that provides such deep level of cooperation. In fact, the UK currently enjoys using instruments, which third countries have either limited access to, or no access at all. It is the case, for instance of the European Criminal Record Information System (ECRIS), a EU-wide database enabling member states to exchange information regarding individuals’ previous convictions, and which, so far, can only be accessed by EU countries. An example of more limited access would be Europol, whose data repositories and operational cooperation would be reduced in comparison to what the UK currently has. Access to these instruments is also dependent on maintaining regulatory alignment with the EU. If the UK choses to follow a different direction in the area, for instance, of data protection it is likely that any future access will be curtailed. This does not mean that the legal challenges cannot be overcome, but rather that negotiations will require a great deal of imagination and flexibility, given the lack of existing templates.
Associated to the issue of limited access, there is also the problem of continued influence of the UK over this policy area. As mentioned above, the UK has always held a leadership role in police and judicial cooperation in criminal matters, often being at the origin of new measures and serving as a model for other member states (for example in setting up the EU Policy Cycle, or more generally in the area of cybersecurity). Once it leaves the European Union, it will no longer have a Home Affairs Minister taking part in Council discussions and voting procedures, nor will it be part of the management board of AFSJ agencies. One might argue that the UK has managed to exert its influence for the past two decades despite the UK’s lack of participation in a number of measures in this area, and hence it would not be surprising if it managed to find ways to continue to do so. This reasoning, however, assumes that an opt-out (or a decision not to opt-in) is equivalent in terms of effect to non-membership. This is not the case, both legally (the Home Affairs Minister still sits at the table), and politically/ psychologically (the UK may be an awkward partner, but it is our awkward partner). As a result, the UK will need to carefully consider what tools and strategies it could develop to successfully lobby the EU in the future.
Finally, there is also the issue of dispute resolution. The desire to avoid ECJ jurisdiction, which was one of the main elements at the origin of the UK’s request for derogations, continues to be at the heart of the country’s position for a future agreement. This in itself could be partly feasible given that the EU has agreements with third countries that are not subject to ECJ jurisdiction (see for instance the Europol agreements with Norway and with Switzerland), but rather resort to independent arbitration. Having said that, given that the EU will need to continue to comply with ECJ case law, it would be difficult for an agreement that fails to comply with that body of legislation to be signed. In other words, even if the future EU-UK security agreement has a separate arbiter, it will still indirectly need to follow the ECJ.
Dr Helena Farrand Carrapico works as a Senior Lecturer in Politics and International Relations at Aston University. Her main interests are Justice and Home Affairs, crime and cybercrime and the external dimension of the Area of Freedom, Security and Justice. She holds a doctoral degree in Social and Political Sciences from the European University Institute of Florence. She is a co-director of the Aston Centre for Europe and an elected member of UACES and a co-convenor for the BISA European Security Working Group.
Photo credit: adam.sieczkowski