Research Report on Justice Co-operation post Brexit

This week saw the launch of a timely report on ‘Evolving Justice Arrangements post Brexit.’ At a time when the Westminster administration and the current Prime Minister steer towards a No-Deal Brexit scenario, this 98-page strong report adds to the voices of why a negotiated relationship is pivotal for the UK’s security and for human rights protection. The report provides an analysis of existing justice and security cooperation between the UK and the EU, as well as the evolving justice arrangements post-Brexit, with a particular focus on human rights implications.

Currently the UK participates in a range of justice and security cooperation measures. These include extradition measures, such as the European Arrest Warrant (EAW); policing and prosecutorial cooperation, such as Europol and Eurojust, Joint Investigation Teams and the European Investigation Order; as well as information and data sharing tools, such as the Schengen Information System (SISII) and the European Criminal Records Information System (ECRIS). This cooperation has not only helped to advance the effectiveness of the justice and security systems in the UK, but it has also been important in the specific context of the East/West and North/South relationships of the UK and the Republic of Ireland and Northern Ireland (NI) and Ireland respectively. Given the necessity of maintaining a high level of policing cooperation due to the 310-mile land border and the specific post-conflict realities on the island, any disruption to police cooperation could have serious consequences.

If the UK leaves the EU without a deal, there will be immediate consequences for the ability of the UK to continue to participate in these EU measures. If the UK leaves with a deal, the transition period would enable the current arrangements to continue, but many of the same consequences would become apparent once this period ends. Given the information available, these consequences range from instant removal of access, to continued participation without any decision-making power. It is against this background that this report explores the evolving justice and security relationship between the UK and the EU. It examines the current areas of cooperation as well as possible future scenarios and the human rights implications of each of these. We provide this analysis across five main areas: (i) extradition, repatriation and transfer; (ii) policing and prosecutorial cooperation; (iii) crossborder justice arrangements on the island of Ireland; (iv) information and data sharing; and (v) judicial oversight.

The authors provide thirteen clear-cut recommendations to ensure that any future cooperation contains a human-rights based approach:

1. Because of the interconnectedness of EU measures in the area of justice and security, it is strongly recommended that any future arrangement should aim to be as comprehensive as possible and cover judicial and police cooperation as well as any data sharing arrangements.

2. The UK and the EU should secure continued policing and prosecutorial cooperation.

3. The UK and the EU should secure the continuation of data-sharing arrangements. 

4. The approach must encompass a strong commitment to the protection of human rights.

5. Any evolving justice and police cooperation system requires an independent judicial oversight mechanism with adjudicative powers to ensure effective protection and enforceability of human rights.

6. The UK’s commitment to the European Convention on Human Rights should be built into any future justice and security agreement.

7. The UK should retain the Charter of Fundamental Rights of the European Union.

8. An independently appointed panel of human rights experts should be tasked with completing ex ante human rights impact assessments.

9. A human rights ground for refusal must be built into the future UK-EU extradition arrangement.

10. The UK should commit to implement any progressive changes to human rights law that come out of the EU in the future.

11. The future UK-EU justice and security arrangement should be forward looking.

12. Any treaty on future cooperation in this area must refer to both justice and security in its title.

13. It is essential that any future negotiations involving human rights issues are conducted in close cooperation between the UK Government and the devolved administrations in the UK.

Dr Anni Pues from the University of Glasgow co-authored this report together with Dr Amanda Kramer from Queens University Belfast and Dr Rachael Dickson from Strathclyde University. The research was commissioned by the Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Right Commission and launched earlier this week.

~ Dr Anni Pues (Lecturer in International Law, School of Law)