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New Research Exposes Justice and Security Vulnerabilities in Hard Brexit Scenario

22 Aug 2019

New Research Exposes Justice and Security Vulnerabilities in Hard Brexit Scenario

Recommendations for Justice Cooperation that Prioritises Human Rights Protections Published by Joint Commission Established under Belfast (Good Friday) Agreement.

A high-level of North-South police cooperation is necessary for the safe enjoyment of human rights by all on the island of Ireland. This cooperation has been strongly underpinned by EU tools and measures. Any Brexit related disruption to police cooperation could have serious consequences, new research published today shows.

The research, “Evolving Justice Arrangements Post-Brexit” commissioned by the Joint Committee of the Irish Human Rights and Equality Commission and Northern Ireland Human Rights Commission was carried out by academics at the University of Glasgow, the University of Strathclyde and Queen’s University Belfast.

It focuses on justice and security cooperation measures across five areas including the European Arrest Warrant (EAW), policing and prosecution cooperation, and data sharing tools such as the European Criminal Records Information System and Passenger Name Records. The report has a particular focus on the human rights implications of potential changes in justice arrangements.

Should the UK leave without a deal, the report states there will be immediate consequences for the ability of the UK to participate in EU-led justice and security measures, while the EU Withdrawal Agreement at least makes provision for a transitional period.

Drawn from interviews with experts directly involved in policing and post-Brexit justice arrangements, the research findings make clear that Brexit fallback options will lead to inefficiency and ineffectiveness, bringing negative impacts and outcomes for victims and witnesses of crime, as well as hampering efforts of those who seek to defend against criminal activity.

1. Extradition – the EAW has seen higher numbers of successful and speedy extraditions alongside increased human rights protections for those facing extradition. The UK is one of the most active users of the EAW with 7436 people surrendered and 1669 warrants issued between 2009 and 2016.

In the case of a hard Brexit it is likely the UK will need to rely on the 1957 Convention on Extradition which Theresa May MP noted in 2014 “could undermine public safety”. There is no precedent for third country (non-EU) involvement with the EAW.

2. Policing and prosecutorial cooperation – UK access to systems which allow police and law enforcement agencies to assist each other in inquiries and access intelligence will be affected. Despite goodwill between the PSNI and An Garda Siochána legal restrictions could have an impact on operational capability and efficiency of investigations and prosecutions.

3. Cross border arrangements - With the UK’s exit from the EU the PSNI will be losing access to tools that will likely have growing importance given the globalised nature of organised crime. The recent example of ATM robberies and the close cooperation between An Garda Síochána and the PSNI in these incidents is cited in the research.

Experts state their concern that Brexit would involve a return to informal relationships that lack transparency and independent oversight of EU structures. The report also notes that a current deal does not exist between UK and Irish Governments to allow police engaged in “hot pursuit” of a suspect to cross the border.

4. On Information and data sharing - The UK currently participates in four EU based data sharing systems (SIS II, ECRIS, PNR and EIS*). The UK Government under Prime Minister May had stated that retaining access to information held in these databases after Brexit was a priority.

For some of these data systems there is no precedent for third country access, and there is a lack of clarity on access particularly in a no-deal scenario. Even if the UK is successful in retaining the ability to share data with EU Member States, there is no guarantee that they would be willing to do so.

5. On Judicial Oversight - Particularly within the realm of policing and justice cooperation, the Court of Justice of the EU (CJEU) has provided the essential role of judicial oversight vital for protecting against EU law and fundamental rights infringements. With a no-deal Brexit the jurisdiction of the Court would end immediately .

Even with the utmost goodwill there may be practical constraints on how closely the UK and EU27 can work together post Brexit if they are no longer bound by the same rules, enforced by the same supranational institutions.

The report makes thirteen separate recommendations for a future UK-EU security and justice relationship that also prioritises human rights protections. (See editor’s note).

Les Allamby, Chief Commissioner of the Northern Ireland Human Rights Commission stated:

“The research findings mirror what has recently been said by senior police officers in Northern Ireland, namely, that a disorderly Brexit will have significant detrimental policing and criminal justice implications.

“The new UK Government has said very little about how these issues will be managed in a no-deal situation, and how existing rights, safeguards, oversight and accountability will be maintained. We should not be playing fast and loose with these issues.”

Emily Logan Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“While seemingly absent from public discussion on Brexit, the significance of UK-EU justice and security cooperation and the threats from it breaking down cannot be ignored considering the needs of victims of crime, witnesses of crime and the efforts of police services to safeguard people.

“This research brought forward by the Joint Committee makes it clear that if we are to have functioning justice cooperation post Brexit, ensuring common adherence to human rights standards is essential.”


Notes to editor:

The “Evolving Justice Arrangements Post-Brexit” research produced by Dr Amanda Kramer of Queen’s University Belfast, Dr Rachel Dickson of the University of Strathclyde and Dr Anni Pues of the University of Glasgow is available here.

Key Recommendations of the Research

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. All experts interviewed highlighted that maintaining access to all of the current EU justice and security arrangements would be ideal. In order to secure the effectiveness of law enforcement systems, it is imperative to retain as many of the existing tools as possible through a future partnership agreement.

2. The UK and the EU should secure continued policing and prosecutorial cooperation. In particular, it is recommended the UK retains access to Europol and Eurojust cooperation frameworks to ensure that operational capabilities and collaboration in the area of policing and criminal justice continue. However, it is noted that third-country access options may be limited and in this case, the UK should work to minimise disruption.

3. The UK and the EU should secure the continuation of data-sharing arrangements. Access to tools such as SIS II and ECRIS facilitate speedy information sharing and retrieval, whereas a loss of these measures would result in delays in proceedings. To that end, joint data protection standards are pivotal to facilitate mutual trust with EU Member States and ensure protection for citizens.

4. The approach must encompass a strong commitment to the protection of human rights. The foundation of mutual trust in the legal process is only justified if the legal processes encompass a commitment to the rule of law, the protection of human rights and, as part of this, a commitment to data protection.

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. This could be secured through a new court system, or – simpler, more cost effective, and avoiding any danger of disadvantages to UK citizens – the UK should retain access to the Court of Justice of the European Union (CJEU).

6. The UK’s commitment to the European Convention on Human Rights should be built into any future justice and security agreement. This will help to ensure that there is no loss of human rights protections and safeguard trust with EU Member States. The UK should also reaffirm its commitment to Council of Europe legal instruments on cooperation in criminal law matters and efficiency of justice.

7. The UK should retain the Charter of Fundamental Rights of the European Union. If the UK does not retain the Charter, it must make an effort to update domestic protections to provide equivalent protections and make them accessible to the public. Additionally, the UK should retain commitments to human rights contained in secondary EU law, such as the Victim’s Rights Directive, European Supervision Orders, and European Protection orders to indicate its commitment to rights protection.

8. An independently appointed panel of human rights experts should be tasked with completing ex ante human rights impact assessments. These panels must be comprised of equal representation from each of the jurisdictions making up the UK. It is suggested that they be composed, for example, of representatives from existing human rights bodies, such as National Human Rights Institutions. Further, due to the interconnectedness of justice and security measures, these assessments must be undertaken for each element of future arrangements. In the event that human rights issues are discovered, the agreements should be returned to negotiators to be addressed.

9. A human rights ground for refusal must be built into the future UK-EU extradition arrangement. The negotiation of a future extradition arrangement presents an opportunity for the UK and EU to better protect the human rights of individuals facing extradition. Building in a human rights bar would require the UK and the EU Member States to refuse extradition if it would be incompatible with an individual’s Convention Rights (something which exists domestically in the UK, but is not part of the EAW).

10. The UK should commit to implement any progressive changes to human rights law that come out of the EU in the future. This will help to ensure continued cooperation and bolster the environment of mutual trust.

11. The future UK-EU justice and security arrangement should be forward looking. This means that the UK should keep pace with legal developments in the EU and build into the agreement the opportunity to opt-in to future justice and security mechanisms.

12. Any treaty on future cooperation in this area must refer to both justice and security in its title. This will avoid one element being subsumed by another.

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. This will help to ensure respect for overlapping competencies that exist in the complex constitutional arrangements within the UK.

The Joint Committee Established Under the Good Friday Agreement

The Belfast (Good Friday) Agreement‘s section on rights, safeguards and equality of opportunities, provides for a joint committee of representatives of Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, as a North-South forum for consideration of human rights issues in the island of Ireland.

The founding statutes of both the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission have ensured a formal basis in law for the Joint Committee.

The Belfast (Good Friday) Agreement, as an international treaty, recognised by the United Nations, laid down a mandate for both national human rights institutions, and the mechanism to ensure strong cooperation between them.

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.

The Northern Ireland Human Rights Commission

The Northern Ireland Human Rights Commission is an independent statutory body first proposed in the Belfast (Good Friday) Agreement (1998) and established in 1999 by the Northern Ireland Act (1998). It is answerable to Parliament at Westminster.

*Schengen Information System (SIS II) European Criminal Records Information System (ECRIS) Passenger Name Record (PNR) and Europol Information System (EIS)

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