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Criminal Justice and Police Cooperation Between the EU and the UK After Brexit

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Criminal Justice and Police Cooperation Between the EU and the UK After Brexit Criminal Justice and Police Brexit poses several challenges for future interaction between the EU and the UK in the areas of criminal justice and police cooperation. A new legal framework will be required to sustain the EU’s relations with the UK – an active participant Cooperation between the EU in numerous EU criminal justice and police cooperation instruments – once it leaves the Union. The negotiations on the exit of the UK from the EU must and the UK after Brexit grapple with the crucial questions of how and to what extent can the two parties continue to maintain effective arrangements for fighting cross-border crime, Towards a principled and trust-based partnership while at the same time guaranteeing compliance with the rule of law and fundamental rights. This report is the result of intensive deliberations among members of a Task Force set up jointly by CEPS and the School of Law at Queen Mary University of London, who met regularly throughout the first half of 2018. It examines the feasibility of retaining the current EU–UK framework for cooperation in these critical fields and explores possible alternatives to the status quo. It also delves into the conditions under which the UK could continue to participate in EU instruments and EU agencies engaged in cooperation in criminal matters and to have access to justice and home affairs databases and other information- sharing tools. In their conclusions, the members offer a set of specific policy options for the EU and the UK to consider after Brexit with a view to developing an effective partnership in the areas of criminal justice and security based on trust and shared values. Report of a CEPS and QMUL Task Force Criminal Justice and Police Cooperation between the EU and UK after Brexit Justice and Police Cooperation Criminal Chairs: Peter Hustinx Michael Kennedy Rapporteurs: Sergio Carrera Valsamis Mitsilegas Marco Stefan Fabio Giuffrida CEPS Criminal Justice and Police Cooperation between the EU and the UK after Brexit Criminal Justice and Police Cooperation between the EU and the UK after Brexit Towards a principled and trust-based partnership Report of a CEPS and QMUL Task Force August 2018 Chairs: Peter Hustinx Michael Kennedy Rapporteurs: Sergio Carrera Valsamis Mitsilegas Marco Stefan Fabio Giuffrida Centre for European Policy Studies (CEPS) Brussels The Centre for European Policy Studies (CEPS) is an independent think tank based in Brussels, whose mission is to produce sound analytical research leading to constructive solutions to the challenges facing Europe today. This report is based on discussions in the Task Force jointly set up by CEPS and the School of Law at Queen Mary University of London (QMUL) on the Future of EU, UK and US Cooperation in Criminal Justice and Police Cooperation. The Task Force met four times between February and May 2018. Task Force members engaged in debates during the meetings and submitted comments on earlier drafts of this report. Its contents reflect the general tone and direction of the discussion, but its findings do not necessarily represent a full common position among Task Force members or the views of any individual participant (unless explicitly mentioned in this report). A full list of members, participants and invited speakers appears in the appendix. This Task Force was supported by a grant from the Open Society Initiative for Europe (OSIFE), which is part of the Open Society Foundations, and also received financial support from Queen Mary University of London. The views expressed in this report are those of the authors writing in a personal capacity and do not necessarily reflect those of CEPS, QMUL, OSIFE or any other institution with which the authors are associated. Where the oral evidence of witnesses before the UK Parliament is quoted and referred to as “uncorrected”, this means that neither Members of the Parliamentary Committee nor witnesses have had the opportunity to correct the record. The report was finalised on 29 June 2018. Minor amendments were made in July and early August 2018 to update the text in light of new documents and judgments. ISBN 978-94-6138-695-3 © Copyright 2018, CEPS All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means – electronic, mechanical, photocopying, recording or otherwise – without the prior permission of the Centre for European Policy Studies. CEPS Place du Congrès 1, B-1000 Brussels Tel: 32 (0) 2 229.39.11 e-mail: [email protected] internet: www.ceps.eu Contents Preface ............................................................................................................................ i Executive Summary .................................................................................................. iii Introduction .................................................................................................................. 1 Part I. EU Constitutional Framework for UK Participation in the AFSJ before and after Brexit 1 Current Position of the UK in the AFSJ ............................................................ 6 1.1 Approach to the EU’s post-Lisbon criminal justice system ................... 6 1.2 Effects of selective participation in the AFSJ ........................................... 9 1.3 Contributions to the development of EU criminal law and police cooperation ................................................................................................. 12 2 Brexit and the AFSJ: Ongoing negotiations and cross-cutting issues ........ 15 2.1 The Withdrawal Agreement .................................................................... 16 2.2 EU and UK stances on a post-Brexit security partnership................... 20 2.2.1 EU law benchmarks for post-Brexit criminal justice and police cooperation........................................................................... 26 2.2.2 Dispute resolution and role of the Court of Justice in security and justice matters .......................................................................... 29 2.3 The exchange of data for law enforcement and criminal justice purposes...................................................................................................... 33 2.3.1 Scope of the adequacy test: Assessing UK national security and data protection legislation ...................................................... 36 2.3.2 Ways towards adequacy and viable alternatives ....................... 43 Part II. UK–EU Cooperation in Criminal Justice and Police Matters after Brexit 3 UK Participation in EU Mutual Recognition Instruments and Future Options .................................................................................................. 48 3.1 Negotiating positions on instruments of mutual recognition ............ 49 3.2 European Arrest Warrant ........................................................................ 50 3.2.1 Extradition after Brexit: Common issues and concerns ............ 57 3.2.2 Options for extradition after Brexit ............................................. 62 3.3 European Investigation Order ................................................................ 77 3.3.1 Options for judicial cooperation in criminal matters after Brexit ....................................................................................... 81 3.4 Mutual recognition of freezing and confiscation orders ..................... 86 4 EU Agencies and Bodies .................................................................................. 91 4.1 Europol and Eurojust ............................................................................... 91 4.2 Europol and Eurojust’s agreements and relationships with third countries ........................................................................................... 97 4.2.1 Joint investigation teams and alternative legal bases ............. 107 4.3 The European Public Prosecutor’s Office ............................................ 109 5 EU Databases and Information-sharing Tools ............................................ 116 5.1 SIS II, ECRIS and Prüm: State of play .................................................. 117 5.1.1 Challenges after Brexit ................................................................ 122 5.2 Exchange of passenger name record data ........................................... 128 5.2.1 Challenges for a future EU–UK PNR agreement..................... 131 5.3 Enhancing mutual trust after Brexit: The importance (and risks) of ‘soft’ cooperation measures .............................................................. 135 Part III. Key Findings and Ways Forward 6 Options for the Future .................................................................................... 141 6.1 The transition period .............................................................................. 142 6.2 An EU–UK security and justice partnership: A new treaty and sectoral agreements ................................................................................. 143 6.3 Judicial cooperation in criminal matters: Extradition, mutual legal assistance, and seizure and confiscation .............................................. 145 6.4 Data exchange for law enforcement purposes .................................... 149 6.5 Access to EU databases and information-sharing mechanisms........ 152 6.6 EU JHA agencies and bodies and the importance of ‘soft’ cooperation measures ............................................................................. 153 6.7 Role of the Court
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