How will the United Kingdom continue its police and judicial cooperation with the European Union after Brexit? This is the question that several legal experts addressed on Thursday 25 April at the annual conference of the European Criminal Law Academic Network (ECLAN) at the Ministry of Justice in Brussels.
The exercise was particularly difficult for the speakers since the conference, scheduled before the decision to postpone Brexit (see EUROPE 12233/1), had to focus on exploring concrete ways of cooperation once the country had left the EU.
The Belgian and Luxembourg Ministers of Justice opened the debate. In the absence of being able to explain the position of their respective governments on this issue, the two men mainly stressed the uncertainty surrounding it.
“I have not given you a Belgian position, I wish I could... We need to wait for a decision on Brexit before we show our cards”, said Belgian Minister Koen Geens.
Until the withdrawal agreement has been approved by the British Parliament, it is complicated to provide answers, explained Luxembourg Minister Felix Braz.
“In the last few months, we have prepared for the possibility of a ‘no deal’ Brexit. Telling you today that we are prepared would definitively be exaggerated. We are not prepared”, he said.
Everyone tried, however, to find possible answers in the lack of certainty surrounding Brexit, namely the political declaration setting out the framework for future relations between the EU and the United Kingdom (see EUROPE 12145/1).
For both ministers, the declaration certainly gives indications, but the details still have to be worked out and it will be necessary to proceed parameter by parameter. According to Martijn de Grave, of the Permanent Representation of the Netherlands to the EU, it is deliberately not very specific and “leaves many doors open”.
Where to start? In the Belgian Minister's view, it will first of all be necessary to “define what it means to be an EU Member State in the field of judicial and police cooperation”.
In this field, the key word was variable geometry and the EU has created a real patchwork with opt-in/opt-out systems, he said. If Denmark can be an EU Member State without participating in police and judicial cooperation, could the United Kingdom not be a Member State, but nevertheless participate in such cooperation? This is, in his opinion, a question that must be asked.
For the Luxembourg Minister, it will in any case not be possible simply to replicate the degree of cooperation that prevails today within the EU. The principle of mutual recognition is a principle inherent in the area of freedom, security and justice, he recalled.
Alternatives to the European arrest warrant
Indeed, as of its exit from the EU, the United Kingdom will no longer be able to apply the procedures of the European arrest warrant (see EUROPE 12044/12), and it will therefore be necessary to find alternatives.
The European Arrest Warrant is very popular in the United Kingdom and is seen as a model for successful cooperation – hence the British Government's request to continue to participate in this post-Brexit instrument – explained Sarah Ludford, former MEP and member of the House of Lords.
The British Liberal-Democrat MP also criticised her government's attitude, which wants an “ambitious model” or a “single arrangement”, but which “either does not understand or refuses to recognise” the functioning of the European ecosystem, with its laws and jurisdictions.
For Myles Grandison, a barrister specialising in extradition and a member of the Temple Garden Chambers in London, the 1957 European Convention on Extradition, to which the United Kingdom will remain a party after Brexit, will be the default model, if no other solution can be found. However, it has several disadvantages, including very long delays, low efficiency and costs.
Another option is to conclude an agreement along the lines of those concluded with Norway and Iceland, which would be, for many observers, the instrument closest to the European arrest warrant.
Finally, there remains the negotiation of a separate extradition treaty, which, however, is even less optimistic than the other two options, as the difficulties of ratification seem so significant.
Nevertheless, it will be necessary to try to find the best possible model of cooperation, stressed the various speakers, even if, in their opinion, the best model remains the one prevailing within the EU. (Original version in French by Marion Fontana)