Newington’s Patrick Traynor provides a summary of the UK’s A Future Partnership Paper: Security, law enforcement and criminal justice.

The Department for Exiting the European Union (DExEU) published a further Future Partnership Paper on 18 September, outlining its negotiating stance on security, law enforcement and criminal justice.

• The UK recognises that it is mutually beneficial to continue cooperation with the European Union on security, law enforcement and criminal justice issues.
• The paper sets out plans to negotiate a new security treaty underpinned by a new legal framework outside the direct jurisdiction of the ECJ.
• The UK would prefer to create a new agreement rather than follow the existing cooperation models followed by non - EU Member States such as Iceland and Norway.

Key provisions

The key proposals of the paper are that:

• The UK wants to maintain cooperation with the European Union on security and reach an agreement that allows both parties to ‘”continue and strengthen their close collaboration’.  Following the UK’s withdrawal from the EU, the “legal framework that currently underpins cooperation between the UK and the EU on security, law enforcement and criminal justice will no longer apply to the UK”. Therefore the creation of a new security treaty will be required, which will need to be outside the direct jurisdiction of the European Court of Justice (ECJ).
• The future agreement will be driven by three objectives, based around a desire to continue to protect the safety of citizens across Europe, maintaining and building on existing partnerships and continuing to respect the rule of law.  
• The position paper makes particular reference to the existing security cooperation ‘toolkit’. It emphasises that this toolkit is designed to facilitate data-driven law enforcement, provide practical assistance to operations and enable cooperation to be facilitated through the EU’s agencies in the field. The paper sets out the UK will seek to ensure that future cooperation spans these three core areas. The current agreements cited in the paper that it suggests underpin the UK and EU’s cooperation include:
  • European passenger name records database
  • Schengen Information System II (a real-time alert system for flagging people and objects of interest to law enforcement)
  • European Arrest Warrant (EAW)
  • Europol Internet Referral Unit (to detect and combat terrorist propaganda online)
  •  Prüm (a system for rapid law enforcement information exchange on fingerprints, DNA and Vehicle Registration Data)
    
    The position paper does not specifically commit Britain to keeping these agreements in place. However, it outlines that current levels of security cooperation should be the base upon which a new partnership is built.
• The paper also briefly explores how current non- EU Member States currently cooperate with the European Union on security.  It notes that these precedents are not the starting point for a future UK-EU partnership on security, warning that following this approach would lead to a “limited patchwork of cooperation falling well short of current capabilities”.
• The paper reiterates the desire for the UK to withdraw from the jurisdiction of the European Court of Justice. As such, “any internal security arrangements in the UK’s future partnership with the EU should be subject to the same principles on dispute resolution that are set out in the enforcement and dispute resolution paper published on 23 August 2017”.
• Finally, the paper notes that the UK agrees with the EU that police and judicial cooperation in criminal matters at point of exit should continue.

Analysis

The paper outlines a desire from the UK to create a new security treaty with the European Union, with intent to build on existing arrangements where possible. There is a clear preference expressed to move beyond the deals and level of cooperation that currently exist between third countries (such as Norway and Iceland) and the EU.

Whilst the UK and the European Union are likely to agree on the mutual benefits of continued cooperation on security, the difficultly will be ensuring cooperation without the UK being subject to the European Courts of Justice, with the UK seeking to  find a new dispute mechanism. Critics already suggested that some of these cooperation schemes such as the sharing of databases will not be compatible with the withdrawal from the ECJ.

Next steps

If you would like to speak to Newington about how your business could best outline its position to the Government please get in touch with our dedicated Brexit team at [email protected] or call Lizzy Roberts on 020 7234 3332.