The area of Justice and Home Affairs presents distinctive challenges in light of Brexit, as the UK’s current participation in EU information sharing mechanisms is fairly patchy. Instruments such as the European Arrest Warrant and participation in judicial and police cooperation are of great importance to the legal profession and the impact of Brexit in these areas has not yet been considered fully.
The UK have negotiated custom built access to multiple shared information systems, most notably the Schengen Information System (Second Generation SIS II) and European Criminal Records Information System (ECRIS). The UK are not signatories to the Schengen Agreement, however take part in Schengen cooperation under the terms of the Treaty of Amsterdam. There are currently no members of SIS II who are not either EU member states or members of the Schengen border free area. The ECRIS system facilitates the exchange of information on criminal convictions between all member states’ authorities and is not currently open to any non-EU country. Neither the UK’s existing bilateral agreements nor the Interpol channels require countries (by law) to supply data within specified timeframes – as they are obliged to do under ECRIS. If the UK cannot arrange access to these systems after Brexit, they will have to rely on ‘mutual assistance’ in criminal matters which is clearly less effective.
The UK and other European Governments, (most recently President Macron) along with the EU Institutions have all expressed their desire to continue collaboration between the EU and the UK in matters of policing and security, but have not given clear indications of how to overcome the challenges this continued collaboration presents when the UK leaves. It is not clear how a mechanism of surrender like the European Arrest Warrant could work without the possibility of judicial recourse to the CJEU, and how access to information and mutual cooperation could be allowed for a country which is neither a member state nor a member of the Schengen area like Norway and Switzerland.
Any reduction in the level of access and co-operation between the UK and EU in the criminal justice field would impair and delay effective law enforcement on both sides. Information needs to be exchanged swiftly and cross-border investigatory teams need to be established in order to have effective cross-border action. The relationships between European police forces have developed over time to achieve mutual trust and co-operation, which has been assisted by joint initiatives introduced by the EU. This level of trust towards the UK will be difficult to maintain if the UK does not co-operate with cross border mechanisms and agencies, and will jeopardise the security of EU and UK citizens.
Given that everybody seems to agree on continued collaboration, there needs to be decisions on how this could be shaped. There is a potential risk that transparency procedures could be compromised by an inter-governmental approach, therefore the UK must adopt appropriate mechanisms in order to adopt new legislation and participate in new measures.