Open Britain Background Briefing: The Government’s position paper on ‘Security, law enforcement and criminal justice’

Overview:

Today the Government published its latest Brexit position paper, Security, law enforcement and criminal justice: a future partnership paper, which can be found here

Open Britain have conducted a detailed assessment of this paper. We welcome the Government’s recognition of the importance of continued close cooperation in these areas, and it is right to call for a deal with the EU which retains the vital security cooperation we have built up over decades of membership. However, there are a number of weaknesses in the Government’s position:

  1. The red line on the European Court of Justice (ECJ). The Government has publicly stated its intention to remain inside a number of EU security measures post-Brexit, including Europol and the European Arrest Warrant.[1] However, this is clearly incompatible with the Government’s self-imposed red line to end the jurisdiction of the ECJ in Britain.  
  2. A lack of concrete solutions. As we have become accustomed to with the Government’s position papers, this document lacks any meaningful specific or technical solutions. It offers up a number of precedents for EU security cooperation with third countries, but then dismisses these examples as “not the right starting point for a future UK-EU partnership”.[2] The examples drawn upon are either dismissed by the position paper itself as unsuitable, or else are not compatible with the Government’s self-imposed red line on the ECJ.
  3. The risk of no deal. As with last week’s paper on foreign and defence policy, the paper underlines how vital it is for UK national security that a deal is reached. The Government’s commitment in the paper to retaining close security cooperation is an important step but it will not undo the damage done by the Prime Minister’s threat of withdrawing security cooperation in the event of no Brexit deal being reached. And time is running out for the extensive discussions that will be required to get anywhere close to properly addressing these issues. The paper even admits that “if there were no agreement on future cooperation with Europol… Consideration would need to be given to ensuring that any ongoing investigations would not be affected in such a way that criminals might escape prosecution or vulnerable individuals might be rendered less safe.”[3]
  4. This is a damage limitation exercise. Much of this paper is simply a long list of the many advantages of security cooperation from which the UK has benefited as an EU member state. The paper then ludicrously describes Brexit as “an opportunity to build on what has already been achieved.”[4] The reality is clear from this position paper: this is nothing more than a damage limitation exercise. 

Open Britain’s Position:

  • Open Britain is glad that the Government is acknowledging the vital importance of a close security partnership with the EU for UK security. Any relationship less close than the one we enjoy with the EU today will damage Britain’s standing in the world and potentially make our citizens, and those in the rest of Europe, less safe.
  • However, while this paper is long on hopes, it is short on concrete solutions. The Government is aiming for an unprecedentedly close deal between the EU and a non-member state, but negotiating that will require clear and detailed proposals, a reassessment of the Government’s self-imposed red line on the ECJ, and significantly longer than the year or so which remains in the Article 50 negotiations.

  • This paper shows the Brexiteers in Cabinet are finally waking up to how important the EU has been for UK national security, and how dangerous severing our ties could be. The Government should therefore immediately drop its absurd threat to leave the European Union with no deal.

 

In Detail:

The red line on the ECJ

“In doing so, the ambition should be to construct a model that:

● establishes mechanisms to maintain operational capabilities between the UK and the EU and its Member States;

● is underpinned by shared principles, including a high standard of data protection and the safeguarding of human rights;

● ensures the UK-EU relationship can be kept versatile and dynamic enough to respond to the ever-changing threat environment;

● creates an ongoing dialogue in which law enforcement and criminal justice challenges and priorities can be shared and, where appropriate, tackled jointly; and

● provides for dispute resolution over, for example, interpretation or application of the agreement – as set out in the 23 August paper on that subject, the UK will no longer be subject to direct jurisdiction of the CJEU, meaning consideration will need to be given to dispute resolution as part of the new relationship.”

  • Open Britain notes that the Government’s self-imposed red line on the ECJ is incompatible with its aspirations to form an unprecedented level of third-country security cooperation between the UK and the EU post-Brexit. All the examples and precedents cited in the position paper involve some role for the ECJ and EU law.
  • Experts including the UK’s European Commissioner for security matters, Sir Julian King, have warned that the Government’s desire to maintain a high degree of security cooperation with the EU is not compatible with its self-imposed red line on the ECJ.[5]

 

A lack of concrete solutions

“The UK therefore believes that while existing precedents for EU cooperation with third countries under Title V of Part Three TFEU provide context, they are not the right starting point for a future UK-EU partnership. In the face of growing and evolving threats, it is in the interests of both the UK and the EU to ensure that close cooperation remains possible. The UK’s geographical proximity to its European neighbours, the volume of cross-border movements between the UK and the EU, and the high degree of alignment in the scale and nature of the threats faced call for a new, more ambitious model for cooperation.” 

"[T]he UK and the EU need to look beyond existing third country precedents, designing instead comprehensive arrangements that reflect the exceptionally broad and deep security relationship that exists today, and which are capable of evolving as threats change in the future."

  • As usual with the Government’s Brexit position papers, there are few concrete proposals on offer. Instead, the paper cites precedents of third-country security cooperation with the EU, before dismissing them as unsuitable.
  • The Government is calling for unprecedented levels of security cooperation between the EU and a third country (in this case the UK), but without a clear plan for how this can be achieved, this position papers are just more empty words.
  • And time is running out for the extensive discussions that will be required to get anywhere close to properly addressing these issues. The complexity of the issues and institutions touched on in the paper serve to underline how unrealistic it is to think that an entire new future partnership with the EU can be agreed by October 2018.


The risk of no deal

“Investigators and prosecutors greatly benefit from streamlined processes to allow for the collection of evidence, the arrest and transfer of suspects and offenders, and the enforcement of penalties and confiscation of criminal proceeds. The EU has developed a package of measures that support a streamlined end-to-end process of cooperation, from the initial stages of identification and investigation of a suspect through to arrest, prosecution and prisoner management. Through them, countries can cooperate effectively with one another at each stage of proceedings to help prevent criminals from using international borders to avoid detection and justice. These measures enhance law enforcement agencies’ ability to identify and pursue threats and the individuals behind them, as well as assisting judicial authorities in delivering appropriate justice.”

“One example is cooperation under Europol. The UK is clear that it will be seeking a bespoke relationship with Europol as part of a future partnership between the UK and the EU. However, if there were no agreement on future cooperation with Europol, or if current cooperation were to be wound down in advance of moving to a new set of arrangements, consideration would need to be given to all of the different operations and investigations that the UK and Europol were involved in. These include investigations into drug trafficking, human trafficking, and cybercrime, including online child sexual exploitation. An investigation often involves a lengthy period of evidence gathering, leading up to a short joint operation. Consideration would need to be given to ensuring that any ongoing investigations would not be affected in such a way that criminals might escape prosecution or vulnerable individuals might be rendered less safe.”

  • The position paper makes clear how important it is for UK national security to maintain streamlined law-enforcement processes with the EU. This exposes the recklessness of the Government’s ongoing threat to withdraw from the EU with no deal.
  • As Open Britain has repeatedly pointed out, no deal would be the worst of all outcomes. In the case of security, it would put ongoing cross-border investigations at risk, make information-gathering more difficult for UK law-enforcement agencies, and would make UK citizens less safe. The Government must drop its damaging mantra that ‘no deal is better than a bad deal’.
  • That the Government’s paper even admits that no deal could put ongoing Europol investigations at risk shows how hollow their no deal threat really is. 

This is a damage limitation exercise

“The UK will be approaching negotiations on the future partnership with the EU as an opportunity to build on what has already been achieved through decades of collaboration, integrated working, and joint systems and procedures.” 

  • This position paper lays out numerous examples of how UK national security has benefitted from EU membership, in particular through integrated security cooperation.
  • The position paper details numerous examples of effective EU measures in this area, including Europol, the European Arrest Warrant and the Schengen Information System.
  • While the paper goes on to talk about an opportunity to “build on what has already been achieved”, the reality is clear: this is nothing more than a damage-limitation exercise in which the Government attempts to retain as many elements of UK-EU security cooperation as it can. The truth is, the UK can only end up with a worse deal than it has now unless the Government drops its self-imposed red line on the ECJ.