On October 21st, Michel Barnier announced to the European Parliament that “the outline of an agreement” on police cooperation between the EU and the UK after Brexit was gradually appearing following recent progress in the negotiations. Nonetheless, this article explains why there appears to still be a long way to go before a deal can be concluded and why debate on this topic has been so convoluted.
Written by Agathe Piquet, Queen Mary, University of London
The state of play: thirty years of British contribution to EU police cooperation
Police cooperation in the EU rests on various tools. The main one is Europol, the EU law enforcement agency. Set up by the 1995 convention and based in The Hague, Europol helps member States in preventing and fighting international crime and terrorism. Europol’s work is complemented by various EU databases, such as the Schengen Information System(SIS), the Prüm system or the European Passenger Name Record (PNR). Finally, EU law enforcement cooperation also occurs through practical operational mechanisms, particularly joint investigation teams (JIT) between law enforcement authorities of two or more States.
The UK has played a key role in all these mechanisms, initiating the creation of some of them – for instance the PNR; sending massive amounts of data to the existing databases (e.g. in 2017, the UK issued 1.4 million SIS alerts (20% of the total number of national security alerts) and ranking among the top contributors of others (Trauner, 2019); while being intensively involved in JITs etc.
Nonetheless, if the UK has been a pillar for the development of operational police cooperation and information exchanges, it has turned out to be a much less accommodating partner to the EU in relation to the institutional framework. Indeed, since the early 1990s, the British government has repeatedly claimed its reluctance to accept any supranationalised governance of law enforcement. The main rationale was its fear of losing control in this sovereign domain and of not being able to oppose a policy perceived as affecting national interests (Carrapiço et al., 2019). Therefore, in 1992 British decision-makers made the integration of law enforcement cooperation within the EU conditional on intergovernmental governance. Since then, the UK has fought vigorously to benefit from opting-out of the supranational mechanisms and opting-in the desired tools. In doing so, it has sent a clear message to its European counterparts: the UK will only participate to policies it agreed to, which confirms once again its reputation of being an “awkward partner” (George, 1998).
The search of a status quo by British negotiators
The elements mentioned above are fundamental to understanding the current British position in the negotiations with the EU, in relation to the operational content and to the legal and institutional framework.
From an operational perspective, the British stance in respect of law enforcement has not changed significantly since the beginning of the talks. In this domain, the UK is above all aiming to maintain the same level of cooperation with the EU after it has withdrawn from the organization. Indeed, the post-Brexit law enforcement matter appears since 2017 as one of the top priorities of the British government. This is due to the perceived interconnectedness and the dependence of British security on that of the EU, largely based on the geographical proximity and the intensity of transborder movements between the island and the continent.
Therefore, the UK has advocated for a status quo in respect to (1) cooperation with Europol, (2) the exchange of data through the main three databases (PNR, Prüm, SIS II), and (3) operational practical police cooperation. Indeed, at the end of the transition period, the UK will lose its participation in these three types of tools as it is no longer an EU Member State. The UK will then fully become a third State. Drawing from the precedents in the domain of police cooperation of the EU with third States, it would still be able to conclude agreements to gain restricted access to some EU data (viaEuropol, PNR) or could participate in some JITs. However, this will take time and represents a significant capability gap compared to the benefits that UK law enforcement agencies have enjoyed until now. In addition, without being a Schengen Member State, British capabilities will be more limited than, for instance, the Norwegian or Swiss ones. The UK would not have access to the information systems correlated to the Schengen area and would not be able to look for data in SIS II or in Prüm databases, although those are key for police work.
Table. Existing third country precedents (adapted from “The Framework for the UK-EU Security Partnership)
Examples of relevant EU measures/forms of cooperation
Precedent for third country (Schengen) access
Precedent for small capability gap
Precedent but significant capability gap
These restrictions are not satisfactory to the UK, and even if the country has not planned to remain an EU Member State nor to become a Schengen one, it has repeated in all its White Papers that the future EU-UK relation should be much deeper than the existing deals of the EU with third States. To convince its European partners, the British government has shed light on the specificity of the EU-UK link in terms of geography, recalling the level of transborder activities. It has also underlined the closeness of the UK to the EU, invoking some “shared values”. Finally, from the UK perspective, this special relationship is also based on Britain’s previous membership of the EU, contrary to all the other third States. In the name of this historical and particular relation, the UK has repeatedly asked for a “new, deep and special relationship” with the EU. In other words, in spite of the British statement that “the relationship has changed […] and leaving the EU will have consequences for the nature of the security relationship between the UK and the UK”, nothing seems to have evolved for the British negotiators on the operational dimension.
Nonetheless, on the matter of the institutional and legal framework of police cooperation, the UK is looking for something similar to what third countries benefit from – full autonomy of decision-making and sovereignty. Two matters are perceived as infringing on these principles for British negotiators: the jurisdiction of the Court of Justice of the EU (CJEU) and the respect of the European Convention on Human Rights (ECHR), which are part of the existing legal framework constraining EU police cooperation. Therefore, while asking to maintain the same level of operational cooperation, the British government has for a long time advocated for these two mechanisms not to bind the UK once it formally leaves the EU. It has supported this request by exerting strong pressure on EU decision-makers, warning that “without the UK’s participation in, and contribution to, these data exchange tools, there would be a significant loss of capability which would reduce the UK’s and EU’s ability to protect citizens across Europe”, something “as leaders, we cannot let […] happen”. Therefore, the UK skilfully shifted the blame to the EU should no treaty be agreed on in spite of their displays of good will, arguing that it would be due to the EU favouring “competition between partners, rigid institutional restrictions or deep-seated ideology” to the expense of security.
Balancing operational needs and the status of third States: the difficult EU position
Yet, British submission to the CJEU and to the ECHR, two mechanisms of protection of citizens’ rights, has been a condition for the conclusion of a deal from the EU perspective since the start of the negotiations. Although the EU institutions share the British views on the necessity for both sides to cooperate on law enforcement matters and their priorities, they have invoked since 2016 the need for an appropriate balance between rights and obligations as expressed in a very direct way by Michel Barnier:
“The UK has decided to leave the EU, its institutions, structures and safeguards. It will be a third country outside Schengen and outside the EU's legal order. This is a fact. Facts have consequences […] If you leave this "ecosystem", you lose the benefits of this cooperation. You are a third country because you have decided to be so. And you need to build a new relationship. To negotiate an ambitious new relationship with the UK, which we all want, we need more realism on what is possible and what is not when a country is outside of the EU’s area of justice, freedom and security and outside of Schengen”.
Therefore, two main rationales have been opposed to the British call for a special security relationship with the EU: the “integrity of the JHA area and of the Schengen area” (in the name of the autonomy of EU decision-making and the harmonization of rules and standards for all States to protect citizens) and the EU fear of “upsetting” the existing relations with third countries (if specific rights were granted to the UK in comparison with other countries without further obligation).
From the withdrawal agreement to the current situation: a difficult convergence of views
The EU and UK’s diverging perspectives could have been quite difficult to reconcile in the negotiations for the post-Brexit EU-UK police cooperation. Interestingly, during the talks dedicated to the writing of the 2019 Withdrawal Agreement which set the arrangements for the transition period, running from February 1st 2019 to December 31st 2020, common operational concerns have prevailed. Finding an agreement between the two parts was all the easier given that the UK was still constrained by the existing legal frameworks. This text hence made clear that the EU and the UK shared the objective of avoiding any operational gap and mitigating the effects of this political situation on police cooperation. To this end, the UK still has access to all the police cooperation tools, databases and to Europol until the last day of 2020, but has already lost its power over decision-making in this domain.
Nonetheless, the Political Declaration accompanying this agreement and setting out the framework for the future EU-UK relationship was much less ambitious. The text stated that the degree of closeness and depth of the EU-UK relation will above all depend on the degree of obligations the UK accepts on dispute resolution and protection of fundamental rights and data protection.
Today, this is far from being obvious, leading to the current uncertainty over the conclusion of any agreement between the EU and the UK. Indeed, to compromise with the EU, Theresa May had committed to remain party to the ECHR and to maintain high standards of data protection and as well as to accept the jurisdiction of the CJEU for interpretation of the EU law. Nevertheless, the 2020 rounds of negotiation have been tarnished by a sudden about-turn from the British delegation. Boris Johnson’s government in its White Paper “The Future Relationship with the EU. The UK’s Approach to Negotiations” published in February 2020, clearly declared it will not anymore accept the competence of this supranational institution. At the same time, British negotiators do not seem to have renounced their wish for an extended operational police cooperation.
This new position has been strongly disapproved by Michel Barnier, who asked the British delegation not to go back on its former commitment, to display some respect and reciprocity and to respect the EU’s independence and autonomous decision-making. If not, the EU Chief Negotiator warned that post-Brexit law enforcement cooperation will be limited to the existing international mechanisms and not be as ambitious as both parties had anticipated.
In spite of these tensions, there have been some recent changes. In June, Michel Barnier stressed that he had had a “slightly more constructive discussion on the question of commitment to the ECHR” with the British delegation. In October, Michel Barnier explained to the European Parliament that the EU and the UK had made “progress on the question of the ECHR, data protection, Europol”. Nonetheless, no further detail has been offered by the British or EU negotiators on the extent and content of the agreement, leaving some doubts and skepticism on the current state of the discussion.
In addition to these sectorial issues, concluding a deal seems to be made more complex because of the broader context surrounding the security talks.
Firstly, the latter are strongly dependent on the rest of the policy sectors. This is especially true if the EU is willing to conclude one broad agreement encompassing the whole future EU-UK relations, as discussions are complicated on some issues, notably the level playing field. However, even if the UK manages to impose its views on having a separate treaty dedicated to the post-Brexit security, for which it continues to advocate, any progress on law enforcement issues could still be hindered by the lack of agreement on justice in criminal matters or on foreign policy.
Secondly, EU-UK relations are more and more tense. Britain’s reputation has been heavily impacted by some recent events, especially in JHA. The unlawful copy of data from SIS II by British law enforcement agencies and its sharing with US companies and the British failure to alert about “75,000 convictions of foreign criminals to their home EU countries” added to existing mistrust of EU leaders regarding their British counterparts.
This deterioration in relations has been amplified by U-turns of the Johnson government from what had been agreed on with the EU, on matters relating to the JHA as well as in different domains. These turnarounds in the name of sovereignty and autonomy have strongly upset EU leaders, even leading the European Commission to launch a procedure of infringement on October 1st against the UK after the “United Kingdom Internal Market Bill”. Therefore, in spite of the urgent need to conclude a deal, EU decision-makers seem to be less conciliatory with the UK, and the British government appears even less eager to compromise on the powers of supranational institutions, particularly as it has failed to obtain full satisfaction for its operational requests –access to SIS II still conditional on Schengen membership, in particular.
If there is no agreement between the EU and the UK, cooperation between their respective law enforcement agencies will not stop from one day to the next. It must be highlighted that police also work together at the international level, exchanging information for instance through Interpol or in some “clubs” (e.g. the Club de Berne and the Counter Terrorism group). Lose networks or associations also exist to put together representatives of EU Member States and of the UK, for instance the Radicalisation Awareness Network or the EU Internet Forum (De Vries, 2019).
Moreover, the nonachievement of the EU-UK talks does not impede the adoption of bilateral agreements between the UK and EU member States or between the UK and Europol. Nevertheless, none of these formal arrangements will provide the same level of cooperation from a quantitative (amount of information) or qualitative (the speed of exchange and the scope of the possibilities) perspective. Furthermore, concluding agreements with a State or with an EU agency can take years, especially considering that the UK would be the first third country to conclude an operational agreement under the new Europol legislation adopted in 2016. Those two problems could consequently create operational gaps. Besides, the current issues will not be resolved if the UK concludes an agreement with Europol. Firstly, an adequacy decision would still be required for the UK to cooperate with the EU agency, which could also take years, and should the EU standard of protection be raised the British legislation will need to adapt in consequence. Secondly, the UK will also need to recognize the CJEU jurisdiction for dispute resolutions related to Europol.
In a counterintuitive way, while Europeans from both sides of the Channel are still very concerned about their internal security, the extent and content of the EU-UK future police cooperation is far from being clear. In spite of shared views on operational imperatives and common threats, no agreement has been found for the moment, while the transition period will come to an end in less than two months. If the UK is asking the EU to be more flexible and to favour operational issues above governance aspects, the EU is looking for the preservation of its institutional framework and of its balance between security and liberty. The mutual understanding seems more and more complex in the current talks, especially due to the broader context leading the UK to be increasingly entrenched in its vision of national sovereignty and the EU not focused primarily on the Brexit negotiations. Therefore, the future of their security partnership will depend not only on the capacity of both sides to agree on other dimensions of their relation, but also on the security situation insofar as exogenous shocks could create some solidarity and facilitate a compromise.
Photo credits:© JUSTIN TALLIS / AFP