By Cristina Saenz Perez
The future of EU-UK judicial cooperation in criminal matters is far from certain. In her Florence speech, Theresa May affirmed that one of the goals of the UK government was to establish a “comprehensive framework for future security, law enforcement and criminal justice cooperation” after Brexit. In the government’s ‘Future Partnership Paper’, the government also expressed the need of concluding a separate agreement that guarantees the future of cooperation in police and security matters between the UK and the EU. Despite all the efforts, the latest decisions have shown how difficult an agreement in this area will be.
The UK and European criminal law
Since the EU included criminal law as a field of cooperation, the UK showed a deep distrust in the fair trial guarantees available in other member states, and demanded additional safeguards. This is especially true in cases concerning the European arrest warrant (‘EAW’) and the Extradition Act 2003, which transposed the EAW into British law. The Extradition Act introduced additional protections, such as the proportionality requirement for the surrender of individuals to other EU member states, which was not included in the EAW. English courts were also able to reject requests from countries which did not comply with European human righs’ standards concerning prison conditions or UK fair trial guarantees, well before the CJEU rulings in Caldararu and Aranyosi (C-404/2015). While the domestic position of the UK courts offers generous safeguards (some of them go well beyond the ones available at EU level) for people involved in criminal proceedings, the situation is not so clear-cut in other areas.
The difficulties arise in the exchange of sensitive data in the field of law enforcement and policing. The main databases in this area are the European Criminal Records Information System (‘ECRIS’), which facilitates the exchange of information on criminal records throughout the EU, as well as the Schengen Information System (‘SIS’), which contains information in various areas, including the possibility of transmitting alerts on missing persons and individuals involved in criminal activities. Additionally, after the Paris attacks, Member States approved Directive (EU) 2016/681 on the EU Passenger Name Records (‘PNR’) Transfer System, which allows member states to exchange personal information of passengers. The UK has been a firm supporter of these instruments, and the House of Commons’ report on security and police cooperation listed these instruments as security priorities for the UK after Brexit.
Nevertheless, foreseeing a mechanism through which the UK could get access to these databases is difficult. Cooperation in the field of policing has to comply with the requirements on personal data set by the European Charter of Fundamental Rights, the EU legislation on data protection, and the case-law of the CJEU in cases such as Digital Rights Ireland (Joined Cases C-293/12 and 594/12).
The EU Withdrawal Bill
Although the difficulties were clear well before the publication of the EU Withdrawal Bill (‘the Bill’), it has made them even clearer. The Bill has been described by Theresa May as “essential” in completing the process of exiting the EU. Its main goal is to repeal the European Communities Act 1972, which took the UK into the EU and acted as a conduit through which EU applies to the UK. At the same time, the Bill ensures that most EU law as it stands on exit day is incorporated into the UK legal system. Effectively, the Bill converts EU law into domestic law in order to maintain legal certainty after Brexit. Additionally, the Bill confers powers to the executive to amend the incorporated legislation according to the eventual agreement reached with the EU.
However, the Bill does not convert all EU law into domestic law. Clause 5 of the Bill ends the principle of supremacy (understandably, once the UK leaves the EU it will not be bound by this principle), and it does not incorporate the Charter of Fundamental Rights into domestic law . The British Government claims that the Charter’s main purpose is to apply to Member States and EU institutions when they apply EU law. Once the UK repeals the European Communities Act 1972, it will not be applying EU law and, thus, the applicability of the Charter will be unnecessary. Nevertheless, there will be a large body of EU law which will be incorporated into UK law without the original safeguards available. If the Bill enters into force as it stands today, only domestic human rights protections and the ECHR (which in the UK is incorporated by the Human Rights Act 1998) will apply.
The Impact in the field of European criminal law
The position of the UK in the Area of Freedom, Security and Justice, and more specifically, in the field of judicial cooperation in criminal matters has always been controversial. This situation has been characterised by the tension between the attempts to retain national sovereignty, and the need to cooperate in crime prevention and law enforcement in a borderless area. The result of this tension was the UK opt-out from criminal law measures in the Lisbon treaty according to Protocol No 36 to the Lisbon Treaty. But the UK was also granted the possibility of opting back into individual measures according to Protocol No 21 to the Lisbon treaty. After opting out of all criminal justice measures, the UK used this option to opt back into 35 measures. Following this logic, it seems reasonable that the UK will incorporate all the measures in which it has opted in (the EAW among others) into domestic law after Brexit.
A different issue is whether this step will be enough to secure cooperation with the UK. The EU has put an increasing emphasis on fundamental rights in the field of criminal matters after Lisbon. This crystallised in the adoption of measures such as the Roadmap directives on procedural rights, which apply to cross-border criminal proceedings, or the Parliament’s attempt to set EU-wide standards for conditions of detention. Another example concerns the data protection efforts, which extend to the field of policing, as well as to the exchange of evidence and data among Member States for the purpose of prosecution (i.e. the European investigation order).
The development of judicial cooperation mechanisms which relied on mutual recognition and blind mutual trust, and disregarded fundamental rights’ safeguards was largely criticised by the UK authorities. The Lisbon treaty addressed some of these concerns with measures such as the incorporation of the Charter as a binding instrument. It is well-known that the UK has had a troubled relationship with the Charter, as the explicative Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and the The United Kingdom evidences. But the non incorporation of this instrument creates a paradoxical situation. On the one hand, the UK will be able to get rid of an instrument that it always regarded as too intrusive and expansive (the Charter). On the other hand, it will remove the protections that it demanded and supported in the field of criminal law.
Undoubtedly, this decision will be another obstacle to negotiations in the field of security and judicial cooperation in criminal matters. Under the Lisbon treaty, policing and judicial cooperation require strict protections of fundamental rights that the UK will no longer apply.
The negotiations are ongoing and Labour, Liberal Democrats and some Conservative MPs have tabled amendments that demand the incorporation of the Charter. If these amendments do not succeed, it is difficult to see how an agreement in this area could be reached. This is even more difficult to foresee when the status of the CJEU case-law and the General Principles of EU law is assessed. According to the Bill, CJEU case-law will only have an interpretative value with regards to retained EU law (clause 6), and both the High Court and the Supreme Court will be able to depart from it. Equally, there will be no possibility to bring claims for breaches of General Principles of EU law, which also include fundamental rights. These principles will only be considered as interpretative guidelines regarding retained EU law (clause 6). As a result, the repeal of the Charter will create a legal vacuum in the fundamental rights’ safeguards available, which will not be resolved by resorting to the CJEU’s case-law or the General Principles of EU law. The only available safeguards will be those available domestically, namely the Human Rights Act and other common law sources.
Fundamental rights are a crucial issue in order to ensure cooperation in criminal justice and security matters. The lack of adequate fundamental rights protections after Brexit complicates the negotiations in an area that the UK has set as a priority in the Brexit talks. A separate agreement UK-EU could be the answer to the UK aspirations. The difficulties of this agreement are obvious once the UK does not incorporate the Charter. However, a separate agreement could make the Charter applicable to these instruments or incorporate the Roadmap Directives on Procedural rights, which effectively develops Charter rights concerning the right to a fair trial. In this case, the UK would have to incorporate directives that it has refused to incorporate claiming that the national safeguards available were more generous than the ones offered at EU level. In this case, the paradox will be that the UK would be forced to apply more EU law than it did before Brexit in order to guarantee the same degree of cooperation with the rest of the EU.