JUEST, the UK-EU Security and Criminal Justice Cooperation Network, was launched on the 22nd of October 2018, as an important step towards encouraging multidisciplinary research and engagement to influence the development and implementation of the future EU-UK security and criminal justice relationship. The event, which was co-organised by the Strategic Hub for Organised Crime Research (SHOC) at RUSI, the Aston Centre for Europe at Aston University and the Centre for Evidence and Criminal Justice Studies at Northumbria University, aimed at bringing together academics and policy makers in order to discuss the future of the post-Brexit security, defence and law enforcement cooperation environment, the possible legal and political formats for the new relationship, the timescale to implement new arrangements and potential roadblocks.
The UK’s current relationship with the EU in the area of internal security is based on a form of selective participation, which has been developed over the past 25 years, and which enables the UK to cherry-pick the instruments it chooses to take part in. The result has been an intricate system of opt-ins and opt-outs, covering instruments in the area of border management, asylum governance, and police and judicial cooperation, that has greatly assisted the UK in ensuring the protection of its residents. The UK’s exit from the European Union, however, puts this entire system at risk and poses a number of crucial questions: what conception of European security is there beyond EU security instruments and policies? What possible scenarios can we imagine for the future UK-EU security relationship? What limitations, but also flexibility, do each of these models offer? What provisions should be included in the future UK-EU security relationship? What political and legal obstacles can we foresee in the re-creation of this relationship? How can the complex challenges for the UK, the Irish Republic and the EU relating to Irish border and the Good Friday Agreement be resolved? And, finally, will the UK’s internal and external security be at greater risk post-Brexit?
What conception of European security is there beyond EU security instruments and policies?
The JUEST Network launch departed from the very clear idea that not only does the UK wish to continue to take part in the European security ecosystem, but that a lack of participation, or even a reduction in participation, would impact the UK’s security negatively. Participants discussed various EU instruments, such as the European Arrest Warrant (EAW) or the European Criminal Record Information System (ECRIS), in great detail, focusing on the level of access, or lack of, currently enjoyed by third countries, suggesting that new forms of participation need to be devised in order to replicate the UK’s arrangements in this area. The format of such participation, however, has the potential to vary quite considerably. Four different relationship models were discussed, including: 1) bilateral agreements between the UK and specific EU Member States; 2) bilateral sectoral agreements between the UK and the EU; 3) bilateral agreements between the UK and specific EU internal security agencies; and 4) a UK-EU security comprehensive agreement.
Although these different models have clear benefits, participants were quick to underline that the first three models would limit the UK substantially in terms of achieving the level of cooperation it has grown accustomed to. On the basis of current agreements between the EU and third countries, the UK would not only be denied access to specific instruments and data bases, but it would also lose its capacity to shape EU decision-making, and thus the future of EU security. The fourth model, the UK-EU comprehensive agreement, was discussed in a more positive light, focusing in particular on how much the EU would have to benefit from continuing to cooperate with the UK in the area of internal security. The main hesitation associated to this last model is the fact that it would be a treaty with a very large scope, for which no road map is available. As such, its negotiation would most probably be considerably lengthy and largely exceed the current proposed transition/implementation phase.
In addition to discussing possible scenarios for the future UK-EU security relationship, participants also focused on roadblocks that might emerge in the near future, including the need to successfully negotiate the Withdrawal Agreement, the creation of an enforcement and dispute resolution mechanism, and the issue of interdependence between security and Common Market instruments.
The first potential obstacle is the Withdrawal Agreement, a necessary pre-condition to the negotiation of a new UK-EU security relationship. If current negotiations were to be unsuccessful, the UK would be faced with a no-deal scenario, which would deny it the benefits of cooperation through EU security instruments at the end of March 2019. The UK would still be able to cooperate with EU Member States on the basis of international instruments, such as Council of Europe conventions, although the depth and quality of that cooperation would be reduced.
Participants also emphasised the level of dependence of the future security relationship on the trade one
Where the creation of an enforcement and dispute resolution mechanism is concerned, the UK Government is clear about its intention to limit the European Court of Justice’s jurisdiction, proposing instead that a new arbiter be created to supervise the application of the legal instrument at the basis of the future relationship. Avoiding the jurisdiction of the European Court of Justice, however, is not a straightforward matter, as all EU agreements with third countries need to comply with EU law, particularly where this protects fundamental rights as a necessary condition for deep and efficient law enforcement cooperation, and the Court of Justice is the body that ensures this compliance.
Finally, participants also emphasised the level of dependence of the future security relationship on the trade one. Although both agreements are expected to be negotiated at the same time, the UK’s participation in numerous security instruments is conditional on the UK agreeing to take part in non-security legislation, namely general data protection and privacy rules, in addition to the criminal justice specific data protection regulation.
The launch was attended by a mix of parliamentarians, academics and public officials. Speakers included Professor Tim J Wilson (Northumbria University), Lord Jay of Ewelme (Chair of the House of Lords EU Home Affairs Sub-Committee), Alex Ellis (Director General, Department for Exiting the European Union, DExEU), Dr Helena Farrand-Carrapico (Aston University) and Dr Laura Southgate (Aston University). The first session was chaired by Professor Malcolm Chalmers (RUSI). The launch of JUEST was the first of a series of events the network will be organising on the future UK-EU security relationship, and whose insights it hopes will contribute to the civil service’s work and the general public understanding of these topics. To become a part of the JUEST Network and receive updates about its work, please click here.