Intelligence sharing and legal cooperation in the aftermath of the UK-EU TCA deal By Stefania Paladini and Ignazio Castellucci

It has always been our view that Brexit impact on law enforcement and police work will be more substantial and bear more consequences than on the intelligence cooperation. The reasons – in a nutshell – are the following.

First of all, intelligence cooperation in Europe has traditionally taken place not at EU centralised level, but at a bilateral level, among the various services. Brexit, thus, did not change intelligence sharing praxes that much.

Even after the constitution of SITCEN/INCENT – the EU ‘thing’ (it is difficult to say it is an ‘agency’) which is closest to a European version of the CIA— the intelligence sector has remained a matter strictly overseen in by member states. The SITCEN/INCENT still retains the classic approach of intelligence services worldwide, according to which the state that sourced and transmitted the intelligence retains control over the receiving ends of the information, and can decide to restrict its use (the so-called ‘Third-Party Rule’). Therefore, the presence or not of the UK in INCENT will probably not change much the way information is shared, much less classified/declassified.

On the other side, Brexit can and probably will make things different in the field of counterterrorism and law enforcement, simply because analysis and decision making in these areas is far more institutionalised and centralised in the EU, where agencies such as EUROPOL or EUROJUST – not to mention EPPO, the newly born European Public Prosecution Office (EPPO) – do make a difference.

Traditional British approaches to law and its enforcement, rooted in the English common law, have always differed from most of its continental homologues based on different constitutional, legal and administrative models; this has certainly produced some friction, in the years of UK’s European membership, within day-to-day work routines within European institutions: frictions which certainly have been overcome through close cooperation in the common interest. However, it is difficult not to notice how much the EU integration process has sped up after the 2016 referendum: a remarkable expansion of legal instruments and institutions shaping the EU legal cooperation sector has taken place, in the direction of a full set of EU law enforcement institutions and tools – EUROPOL, EUROJUST, EPPO, plus European Union Agency for Cybersecurity (ENISA), European Criminal Records Information System (ECRIS), and so on– having broad competences and reach in dealing with serious transnational crime.

Luckily enough, a no-deal Brexit has been avoided, but what will happen to the UK membership in organisations like EUROPOL, which the former has contributed so much to shape, still remains to be seen. Even more crucial will be the issue of UK’s access to highly efficient instruments, such as European Arrest Warrant (EAW) or ECRIS, which have given since their creation substantial help to the UK justice and home sector.

For what has become known about the 1,400 page TCA deal inked in December 2020 (which, notoriously, mainly focuses on goods, instead of services and other complex areas of the divorce settlement), the UK withdraws from EUROPOL, but still maintains a stable presence at the agency’s headquarter, with a status comparable to the one enjoyed by the USA – this solution is also applicable to EUROJUST, where UK prosecutors keep working with a new status of Liaison officers for third-party states.

The same thing applies for the EU security databases: the UK has no longer automatic access to them, but access can be requested and obtained – again, very much like in the case of the USA. However, one of the problematic points is that a lot of the data in the EU databases has been contributed by the UK. According to Statewatch (November 2020) the UK was the fifth-largest contributor to Europol, with over 63,000 objects in the Europol Information System [1]. The status of those documents remains to be decided, with EUROPOL still holding them as of today. Similar issues surround the use of deletion of UK data from the Schengen Information System (SIS), and of SIS data still held by the UK.

Considering how confused things are with the rest of the TCA agreement, a solution for these many and diverse hurdles does not look either simple or forthcoming; it may possibly be found piecemeal, on a ‘cross-the-bridge-when-you-reach-there’ basis, rather than through a quite unlikely general framework solution.

Dr Stefania Paladini is a Reader in Economics & Global Security at Birmingham City University. She obtained her PhD in International Relations and Security Studies from City University of Hong Kong, also spending seven years in East Asia as Trade Commissioner. Among her recent activities is the EU-F7 IRSES - Chinese FDI in the EU “CHEUFDI” (2013-2016), a joint project in agent-based modelling for environmental security and innovation, and an ongoing research on the EU space industry.

Ignazio Castellucci Ignazio is an Associate Professor of Comparative Law at the University of Teramo, Italy, also having earned the Italian national qualification as a Full Professor. His academic profile is internationally known, having researched and taught in many countries worldwide, with research and publications on general comparative law, international arbitration, global legal issues, geo-legal issues and security; and area legal studies on China, Asia, Africa, Islam, Latin America.