An ugly truth: Brexit and EU Justice and Home affairs

All the drama coming from the British Parliament as it tries to agree on a way to take the UK out of the EU has made for some riveting entertainment. But few people are actually thinking about the future relationship between Britain and Europe beyond trade – or the Withdrawal Agreement. At the outset of the Brexit process, people assumed that security would be easier to negotiate than trade. But this, like many other pieces of the Brexit puzzle, is an understatement at best and a straight-forward denial at worst. Once, or if, negotiators manage to draft a divorce agreement which pleases all parties, they will be confronted with an ugly truth: a new EU-UK security treaty – based on the simple assumption that no one wants criminals running around unhindered in Europe – will not be a walk in the park.

Negotiating access to Schengen laws while leaving the EU is probably as difficult as disentangling the UK from the EU’s single market while still securing a good trading relationship with the EU. And this is assuming that there will be a divorce settlement and that the UK will not crash out of the EU with no deal. A no-deal scenario on justice and home affairs (JHA) would be disastrous for all involved. Countries may need to set criminals awaiting trial elsewhere free, as there will be no legal basis for extraditing people between the UK and the EU. Prosecutors will have serious troubles pursuing cases against criminals who may have been detained on the basis of information provided by, or to, the UK through EU-wide databases; and some of Britain’s and the EU’s most important security partners, such as Canada and the US, will be at a loss about what to do with the daily exchange of information, officials and cases making its way across the Atlantic. 

What to do post-Brexit?

However, let’s optimistically presume there will be an agreement of some sort between the EU and the UK so that Britain’s exit from the bloc is orderly. In that case, in a few months (or years) time, both the EU27 and the UK will need to start thinking about what to do next – that is, after the transition period is over. This ‘future relationship’ will include matters of police and judicial co-operation.

On this, little has changed in the past couple of years. The UK government still wants a ‘bespoke’ treaty with the EU, going beyond any existing deals the bloc has with other third countries. Yet, the EU’s main guiding principle for negotiations with the UK is ‘no better out than in’. In JHA, this means that a non-EU, non-Schengen country cannot have more rights and fewer obligations than an EU member-state or a Schengen country. The UK hopes that as negotiations proceed, the member-states will push the institutions to be more pragmatic in their thinking on future institutional ties. But Britain’s inability to come up with precise ideas does not help its cause.

The EU has built a network of co-operation channels to facilitate police and judicial collaboration with third countries. Because much of this co-operation touches upon the EU’s passport-free Schengen area, the EU distinguishes between partnerships with non-EU Schengen members, like Norway and Switzerland; and arrangements with non-Schengen countries like the US and Canada. None of the EU’s security partners have a perfect, all-encompassing relationship with the EU. Non-EU Schengen countries like Norway and Switzerland have better police and judicial co-operation with the EU, but in exchange they have abolished border controls and accepted the jurisdiction of the ECJ. Non-EU, non-Schengen countries like Canada and the US are (relatively) free to do what they want because their co-operation with the EU in regard to extradition and databases is fairly loose. Then again, these countries are not on the EU’s doorstep, and neither has previously been a member of the EU.

Three security puzzles

Both, the British government and the EU have identified three main priority areas in the negotiations: extradition agreements, access to law enforcement databases and partnerships with EU agencies like Europol.

On extradition, Britain will be unable to retain the European Arrest Warrant (EAW), which is only open to EU members. London is also unlikely to convince its partners to replicate the EAW just for the UK. The biggest problem would be getting countries to lift constitutional bans on extraditing their own nationals, because this would require constitutional changes and even referendums in some EU countries. For example, Germany would need to change its constitution; in Slovenia such a constitutional change could trigger a referendum. In fact, if Theresa May’s deal (or probably any other version thereof) is approved, constitutional bans will apply on Brexit day – and some member-states like Germany – will start refusing to extradite their own nationals to Britain. This will also most likely be the case in a no-deal scenario, as member-states will strike bilateral extradition deals with the UK.

After Brexit, Britain will have three options: first, it could seek bilateral agreements with the EU-27, like the US and Canada. But a system of 27 bilateral treaties would be harder to negotiate and less efficient than a single, pan-European extradition treaty. Second, it could fall back on the 1957 Council of Europe Convention on extradition, a non-EU treaty, as Switzerland has done. Extradition under the Convention takes almost 20 times longer than it does with the EAW, and is heavily dependent on the state of bilateral relations between countries. Falling back on the Convention would be automatic in some countries; but some others will need to change their national laws first. Britain has already passed a law to allow London to keep sending people back and from other EU countries. But it is unclear which countries will reciprocate, and when. The least damaging and most realistic option for Britain would be then to seek a surrender agreement similar to the one Norway and Iceland have with the EU. But even if the UK can start negotiating a surrender agreement before it formally leaves the EU, inevitably it will be faced with a gap before the new treaty can enter into force – as the European Parliament will need to approve it and EU countries may need to make some changes to their criminal laws.

Apart from time pressure, the biggest problem in negotiating a surrender agreement is likely to be the issue of judicial oversight. There are several options to solve this problem, none of which is perfect. First, the UK could try to replicate Norway and Iceland’s dispute resolution mechanism for extradition with the EU. Second, the UK and the EU could devise a totally new EU-UK court with jurisdiction over extradition – and perhaps other EU JHA matters. This court could be built from scratch or be a separate part of the European Court of Justice (such as a panel with jurisdiction over criminal justice, as suggested by Petra Bárd). While this would be attractive for the British government, the EU is unlikely to agree with such a court, as it would undermine the integrity of EU law (this court would have jurisdiction over intra-EU warrants). Finally, the UK could agree to accept the oversight of the ECJ over surrender procedures between Britain and the EU-27.

There is no legal base in the EU treaties for a non-EU, non-Schengen country to access Schengen data. Britain is unlikely to retain direct access to Schengen’s main law enforcement database, the Schengen Information System. After Brexit, the UK could ask Europol or a friendly EU or Schengen country to run searches on its behalf, as the US and Canada do. It will be easier for the UK to stay plugged into non- Schengen databases containing fingerprints (Prüm databases) or air passenger data (Passenger Name Records).

Britain should be able to have a good partnership with Europol, as the US does. This will allow the UK to post liaison officers to Europol, but not to have direct access to Europol’s databases or a sit at the agency’s managing board. Denmark, an EU country which left Europol in 2015, managed to negotiate a partnership deal with the EU, but can no longer access the agency’s databases directly.

A future security treaty?

The major obstacle to an agreement is that Britain’s alleged red lines (no European Court of Justice jurisdiction, and no acceptance of the EU Charter of Fundamental Rights) and its stated ambitions for the future security relationship are incompatible. To speed up negotiations in this area, the EU and the UK should clarify what their future security partnership will cover, as well as its cost and shape. A future security treaty should include a dispute resolution mechanism which could be a totally new court, an arbitration mechanism, or the ECJ. The treaty should be part of the wider Brexit deal, to minimise the risk of it being voted down by the European Parliament. This would also allow Britain and the EU to include a chapter on data protection that could apply both to trade and to law enforcement.

On JHA, as in other parts of the Brexit conundrum, the solution is likely to be a half-way house. The future UK-EU security treaty could combine elements from existing models but have a completely different shape. None of the EU’s security partners have been part of the bloc before; and security is not a zero-sum game: if Britain and the EU fail to sign a deal, the only winners will be crooks and criminals.

Camino Mortera-Martinez is a senior research fellow at the Centre for European Reform. Camino works on EU justice and home affairs, with a particular focus on migration, data protection, internal security, criminal law and police and judicial co-operation.

For an earlier and more detailed account of the argument above, see in particular ‘A Strong and Stable Partner?: what are Britain’s negotiating options for a future security treaty?’, in H. Ferrand-Carrapico, A. Niehuss and C. Berthélémy, Brexit and Internal Security. Political and Legal Concerns on the Future UK-EU Relationship, Palgrave Macmillan, 2019; as well as ‘EU justice and home affairs’ in I. Bond, S. Besch and C. Mortera-Martinez, Plugging in the British: Completing the circuit, Centre for European Reform, June 2018.


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