Civil judicial cooperation
Civil judicial cooperation is mutually beneficial to both the UK and the EU. Businesses benefit from legal certainty in the event of disputes and are more confident trading across borders. Consumers and employees benefit from protections for weaker parties. Cross-border families benefit from clear rules to resolve disputes in sensitive matters quickly and efficiently. The future relationship between the UK and the EU should protect these advantages.
The EU has already shown that a deeper level of civil judicial cooperation with third countries is both legally viable and operationally achievable, including through the Lugano Convention, which provides for cooperation between EU and European Free Trade Association (EFTA) countries.
Under this Convention, the EU Member States and third countries apply the same rules on civil and commercial judicial cooperation and commit to pay due regard to how each other’s courts interpret those rules. This architecture provides a clear precedent for close cooperation between the EU and a third country.
To ensure cooperation can continue in these areas at least, the UK will, therefore, seek to participate in the Lugano Convention after exit. However, while the UK values the Lugano Convention, some of its provisions have been overtaken, and it is limited in scope. In addition, the European Council’s Guidelines have suggested the possibility of going beyond existing precedent.
The UK is therefore keen to explore a new bilateral agreement with the EU, which would cover a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law, and recognition and enforcement of judgments in civil, commercial, insolvency, and family matters.
This would seek to build on the principles established in the Lugano Convention and subsequent developments at EU level in civil judicial cooperation between the UK and the Member States. This would also reflect the long history of cooperation in this field based on mutual trust in each other’s legal systems.
The Government will also continue to work closely with the devolved administrations to ensure that the future arrangements for cooperation with the EU take into account the separate and distinct legal systems in Scotland and Northern Ireland.
Law Enforcement and Criminal Justice Cooperation
The EU and its Member States have created a range of legal, practical and technical capabilities to combat these challenges at a European level through close cooperation between countries. These capabilities are mutually reinforcing, from the initial stages of identification and investigation of a suspect, through to arrest, prosecution and prisoner management. Together, they prevent criminals from using international borders to avoid detection and justice, safeguard against threats to public security and protect citizens and victims of crime.
The UK currently participates in around 40 EU tools that support and enhance police and judicial cooperation in criminal matters. Many of these tools work together to provide an integrated operational system to identify, pursue and prosecute criminals and terrorists.
The UK, therefore, proposes an ambitious partnership with the EU that goes beyond existing precedents in this area, covering:
- mechanisms for rapid and secure data exchange;
- practical measures to support cross-border operational cooperation; and
- continued UK cooperation with EU law enforcement and criminal justice agencies.
Nature of Cooperation
The EU’s position, as set out in the European Council’s guidelines in March, is that the relationship will need to take into account the fact that the UK will be a third country outside of Schengen. The UK recognises that leaving the EU will have consequences for the nature of the security relationship between the UK and the EU.
Nevertheless, the UK believes there is mutual interest in avoiding the creation of unnecessary gaps in operational capabilities. It will be important that the UK and the EU approach discussions with a focus on achieving the operational outcomes necessary to protect the security of the continent.
As the UK leaves the EU, the UK will continue to have operational processes which closely align with EU tools and data sharing systems which are uniquely compatible with the EU. This means it is possible for operational cooperation to continue, albeit on the basis of a different legal relationship.
The UK also currently cooperates on the basis of some Schengen measures such as the Schengen Information System (SIS II), despite not being a full member of Schengen, and there will continue to be a substantial number of people crossing the UK border each year once the UK has left the EU.
The EU and third countries have previously agreed new legal frameworks for close cooperation on other areas of the acquis through strategic agreements, where there is mutual interest in doing so.59 A similar structured framework would enable the UK and the EU to continue cooperation on the basis of existing EU measures, whilst respecting the UK’s sovereignty and the EU’s decision making autonomy and with appropriate safeguards.
Agreement of Internal Security
The UK, therefore, proposes a coherent and legally binding agreement on internal security that sets out respective commitments and reflects the integrated operational capabilities that the UK and the EU share. The UK’s ambition is to cooperate on the basis of existing tools and measures that support these capabilities, amending legislation and operational practices as required and as agreed to ensure operational consistency between the UK and the EU. Such an arrangement would preserve shared capabilities, recognise that the relationship has changed and ensure that a dynamic relationship is maintained to meet the shared, evolving threats faced by the UK and the EU.
- provide a legal basis for future cooperation on the basis of existing EU law enforcement and criminal justice tools;
- clearly define the scope of cooperation;
- contain provisions that allow for new areas of cooperation to be added, where it is mutually beneficial so that the future relationship is dynamic and able to keep pace with technology and changing threats; and
- set out appropriate horizontal provisions on agreed safeguards that will underpin the future relationship.
The UK envisages these safeguards would include robust governance arrangements and a dispute resolution mechanism, supported by comprehensive data protection arrangements. The agreement should also include a mutual commitment to individuals’ rights, noting that the UK will remain a party to the ECHR after it has left the EU.
The partnership should also include strategic and operational dialogues that allow the exchange of expertise and experience. The EU already holds Justice and Home Affairs (JHA) policy dialogues with a number of third countries, ranging from six-monthly meetings with the US to full consultation, and a mixed committee with Schengen countries on areas of Schengen-relevant JHA policy.
The international nature of crime makes the swift, effective and efficient exchange of data essential in modern law enforcement. Increasing volumes of data create a greater need to share and access different datasets quickly and securely, enabled by ever more sophisticated analytical capabilities.
The EU has established unrivalled mechanisms which allow the Member States to exchange data including passenger name record information, alerts on wanted or missing persons, criminal records, fingerprints, and DNA. There are either no precedents, for instance, the European Criminal Record Information System (ECRIS), or very limited precedents, for instance, Passenger Name Records (PNR), for non-Schengen third countries to participate in these measures. Nevertheless, despite the lack of existing precedents, UK participation in these EU data exchange tools is the only effective way to protect specific cross-border capabilities for UK and EU operational agencies.
Without the UK’s participation in, and contribution to, these data exchange tools, there would be a significant loss of capability which would reduce the UK’s and the EU’s ability to protect citizens across Europe. This would mean EU law enforcement agencies lose the ability to identify serious criminals and missing persons as they cross the UK border. It would also result in a reduction in the UK’s and the EU’s ability to identify and track terrorist networks across Europe.
The UK, therefore, proposes an agreement that helps disrupt criminal activity and facilitate law enforcement activity through the swift exchange of sensitive information and data, including but not limited to:
- information about airline passengers;
- alerts to police and border forces, with access to systems that allow for efficient responses;
- efficient, accurate and reliable exchanges of criminal record information; and
- DNA, fingerprint and vehicle registration.
Identifying known and unknown individuals involved in terrorism-related activity and serious crime, and tracking criminal networks from their patterns of travel, are vital law enforcement capabilities currently delivered through the EU-wide approach to processing PNR data. The UK led the development of capabilities to use PNR data to protect the public, building intelligence on the activities of criminals and terrorists to help keep people safe, including through the establishment of a Passenger
As third countries, the US, Canada, and Australia have agreements with the EU on the transfer by airlines of European PNR data to their authorities, but they fall short of the cooperation the UK and the EU share today. They do not provide for reciprocal exchange for police and judicial cooperation and do not enable third countries to work with EU Member States’ PIUs to identify travel patterns in the same way as Member States are able to do under the PNR Directive. The UK will, therefore, seek to maintain the UK’s and the EU’s capabilities on analysis of PNR, including for intra-EU flights, based on the PNR Directive and its accompanying safeguards and rules.
Alerts to police and border forces
The ability to share and act on real-time data on wanted criminals, missing persons, suspected terrorists and stolen objects ensures they are detected at border crossings and through national police databases. SIS II currently enables police and border force staff to enter and find alerts on wanted or missing persons and objects.
In 2017, the UK created over 1.4 million alerts on SIS II. In 2017 alone, UK authorities registered almost 10,000 hits against alerts put on the system by other countries,60 many of which were related to people linked to terrorism, sex offences, missing children, and fugitives.
The UK’s participation in SIS II means that when an EU Member State issues an European Arrest Warrant (EAW), it is transmitted to police and border forces in the UK, and vice versa. This increases the chance of a suspect who has evaded police being arrested in the UK or another Member State and extradited to face justice.
SIS II is a major shared operational capability for law enforcement and security agencies across Europe. The UK would protect that capability through maintaining the reciprocal ability to transmit alerts in real time, with access to systems that allow for a timely and efficient response to these alerts through SIS II.
As the UK leaves the EU, free movement of people will end. But the numbers of EU nationals living in the UK and the volume of passenger arrivals entering the UK, approximately 130 million in the year ending June 2017, demonstrate just how important it is to continue to share information that can prevent and detect serious crime and terrorism.61 By continuing to participate in SIS II, the UK would remain bound by its rules, including peer evaluation. The UK is committed to ensuring full compliance in the implementation of SIS II and other EU data exchange measures in which the UK participates in the future.
Exchange of criminal records information
The timely exchange of criminal records is a vital tool in keeping communities safe. ECRIS is a guaranteed and secure source of criminal records for use at any stage in criminal proceedings. Importantly, it is also used for vetting people who work with children and other vulnerable individuals.
Between 2014 and 2016, the UK was in the top three most active Member States on ECRIS. In 2016, the UK notified Member States of more than 35,000 convictions handed down to their nationals in the UK and responded to almost 13,500 requests for information from the EU relating to UK nationals offending in the EU.
The UK proposes continued participation in ECRIS as part of the new legal relationship. There is currently no precedent for the Member States to systematically exchange criminal records with third countries. Consequently, under the EU’s current approach of basing the future relationship on existing precedents for cooperation with third countries, the UK would cease to contribute to and participate in ECRIS. That would deny the EU Member States timely access to large volumes of vital information that currently protects the most vulnerable people and supports justice systems to be fair and effective across Europe.
DNA, fingerprint and vehicle registration data
Exchanging national DNA data, fingerprints and vehicle registration data helps law enforcement agencies investigate criminality and terrorism. The data exchange tool ‘Prüm’ currently enables Member States to exchange data in a faster and more efficient way.
When the UK piloted Prüm in 2015, approximately 2,500 DNA profiles were shared by the UK with the Netherlands, Spain, France, and Germany. The result was 118 hits for offences such as rape, sexual assault, and burglary.63 The UK holds five million DNA profiles, which would nearly double those currently available to the Prüm community. The UK’s 500,000 DNA samples from unsolved crimes would bring many criminals to justice.
The UK is ready to begin exchanging DNA and fingerprint data with partners via the Prüm system. The UK’s approach has been fully evaluated and assessed and the UK has gone to considerable lengths to satisfy all parties of the UK’s readiness to participate in full. The UK is seeking to resolve any final outstanding technical issues but is confident there needs to be no barrier to making a substantial contribution to this system. In the future, the UK will be able to run automated, real-time searches against DNA, fingerprint and vehicle data. The UK seeks to protect this capability as part of its future relationship.
In addition to unrivalled data exchange tools, the EU, together with the UK and the Member States, has developed a range of practical capabilities that provide for effective cross-border law enforcement and judicial cooperation, all with the aim of bringing more criminals to justice.
As the UK and the EU design a new partnership, maintaining efficient and reliable operational capabilities will be vital, including but not limited to:
- the efficient extradition of criminals and wanted individuals between the Member States and the UK;
- cooperation of judicial, police and customs authorities in different states; and
- delivering cross-border criminal investigations and prosecutions.
New arrangements between the UK and the EU on law enforcement and security must respect Scotland’s and Northern Ireland’s separate and distinct legal systems, as well as protect and enable continued direct links between justice agencies and their EU counterparts. Similarly, any new arrangements must continue to recognise the independent role of the Lord Advocate, as head of the criminal prosecutions system and the system of investigation of deaths in Scotland.
The following examples of practical cooperation illustrate how these tools enable the UK and the Member States to work together to act swiftly in response to real-time developments, to arrest criminals who have fled overseas and to efficiently extradite them to face justice before the relevant jurisdiction.
Extradition of wanted individuals
The swift extradition of wanted individuals to ensure they face prosecution or serve prison sentences is a vital tool in delivering justice and helping to keep communities safe. The EAW has closed loopholes and transformed extradition arrangements within the European Union. The EAW has streamlined the extradition process within the EU and made it easier to ensure wanted persons are brought to justice, or serve a prison sentence for an existing conviction.
When a request is issued for an individual wanted to face prosecution for a crime, the receiving Member State’s courts recognise this automatically and start simplified domestic proceedings, avoiding the need for the request to pass through government ministries. This is based on the principle of mutual recognition and trust between the Member States. The EAW continues to play a vital role in police cooperation between Ireland and the UK (including Northern Ireland).
Since April 2009, as a result of the EAW, the UK has arrested more than 12,000 individuals, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by the other Member States. Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.
The agreement with Norway and Iceland was concluded in 2006 but has not yet come into force. Once implemented, it will leave a capability gap relative to the EAW, including additional grounds for refusal to surrender.
Likewise, reverting to the Council of Europe Convention on extradition would result in cumbersome, slow and significantly more expensive arrangements between the UK and the EU, delaying justice and reducing shared capabilities to keep citizens safe.
The UK recognises that being a third country creates some challenges for the full operation of the EAW as it stands, particularly in terms of the constitutional barriers in some Member States to the extradition of their own nationals. The Withdrawal Agreement will address this issue as part of the implementation period.
The UK believes the arrangements for the EAW during the implementation period, which will take account of constitutional barriers in some Member States, should be the basis for the future relationship on extradition. This will be underpinned by the mutual trust generated by the long history and experience of operating the EAW between the UK and the EU.
Cooperation between judicial, police and customs authorities
Cooperation between judicial, police and customs authorities enables them to share evidence between different states and provide practical assistance in live investigations. Currently, this is done through Mutual Legal Assistance (MLA) within the EU.
Requests can involve the exchange of information and evidence or the provision of practical investigative assistance. In the EU, a number of mutual recognition measures have been introduced to facilitate faster cooperation in this field, such as the European Investigation Order (EIO). This obliges the Member States to recognise and action requests made by other Member States, as they would from their own authorities.
The UK routinely exchanges evidence with the Member States to support investigations in a timely and reliable manner and in a way that is admissible in domestic court proceedings. Since the EIO entered into force in August 2017, the UK has received hundreds of requests. These levels are expected to rise as more Member States participate. Applying a streamlined approach to recognising and executing requests is therefore mutually beneficial to the UK and other Member States.
The UK proposes retaining an efficient and secure evidence exchange in cross-border criminal investigations on the basis of the EIO. There is no precedent for third country participation in the EIO. Although there are some precedents on MLA with countries such as the US and Japan, these agreements fall short of the levels of cooperation that currently benefit both the UK and the EU.
The result would be significantly slower and less efficient provision of assistance that would impede justice being served. In contrast, UK participation in the EIO would enable UK and EU investigation and prosecution authorities to continue to cooperate on the basis of a successful, understood and highly effective mechanism.
Cross-border criminal investigation and prosecution teams
Given the intricacies of cross-border criminality, the coordination of criminal investigations and prosecutions between several Member States is increasingly important. Currently, this is done through Joint Investigation Teams (JIT) which are established to support criminal investigations and prosecutions across multiple jurisdictions. JITs enable more efficient, effective and speedier justice.
The UK contributes cutting-edge expertise and leadership to cross-border JITs that collect and exchange evidence in the investigation of the most serious crimes. The UK participates in a number of JITs, many of which are in partnership with one other Member State. Under the EU framework, third countries can be invited to join a JIT in some circumstances, but they cannot participate in JITs with just one Member State nor can they apply for funding or initiate the establishment of coordination meetings at Eurojust to discuss establishing a JIT.
The current level of cooperation would not be possible if the UK were no longer able to join a JIT involving just one Member State, meaning investigations could be significantly delayed or compromised altogether. The UK is, therefore, seeking full participation rights in JITs including the ability to initiate them.
EU agencies provide forums for exchanging expertise, sharing resources, coordinating investigations and developing new methods for cooperation. Having law enforcement officers and legal experts working in close proximity means operations and judicial proceedings can be coordinated quickly.
It is in the mutual interests of the UK and the EU for the UK to continue close cooperation with EU law enforcement and criminal justice agencies to:
- prevent serious and organised crime and terrorism, via access to analytical capabilities and databases; and
- enable prosecutors, magistrates and law enforcement officers to assist national authorities in investigations and prosecutions of serious cross-border criminal cases.
Where the UK participates in an EU agency, the UK will respect the remit of the Court of Justice of the European Union (CJEU) as set out in another chapter.
Serious and organised crime and terrorism
Europol is the EU law enforcement agency that aims to strengthen and facilitate cooperation to prevent serious and organised crime and terrorism. Member State partners as well as non-EU partner states and organisations participate in Europol. The agency itself provides crucial analytical support and houses databases of significant law enforcement data that can be connected to better facilitate intelligence-led investigations.
The UK is one of the biggest contributors of data, information and expertise to Europol, providing key technical and operational knowledge to the development of new and existing EU measures. In 2016, the UK was the highest contributor to Europol serious and organised crime analysis projects, and the highest contributor of information in relation to firearms, child sexual exploitation and abuse, money laundering, cyber, and modern slavery.
UK liaison officers offer valuable expertise in dealing with other countries’ policing systems and helping progress EU wide investigations.
The existing third country agreements with Europol do not provide direct access to Europol’s databases and the streamlined exchange of data. They generally do not allow national experts to be embedded within Europol and do not enable the third country to initiate activity in the same way. The UK would not be able to maintain its current contribution to Europol on the basis of an agreement along those lines, in part due to the sheer volume of activity the UK participates in and the data that the UK shares.
Investigations and prosecutions of serious criminal cases
Eurojust is the EU agency that brings together prosecutors, magistrates and law enforcement officers from each of the EU Member States who assist national authorities in investigating and prosecuting serious cross-border criminal cases.
It does so by coordinating the activities of the national authorities responsible for a particular case and facilitating the collection of evidence under EU and other international mutual legal assistance arrangements.
The UK contributes to Eurojust by providing specialist law enforcement intelligence capabilities and knowledge via liaison networks and national experts. In 2016, the UK ‘National Crime Agency written evidence to Home Affairs Committee inquiry into UK-EU security cooperation after Brexit participated in more than 80 coordination meetings at Eurojust and the UK coordinated over 30 of these, all of which support law enforcement activities.
In 2017, UK support through national desk officers was requested 290 times, making the UK the second highest Member State receiving information requests and a net contributor to Eurojust.
If the UK’s participation in Eurojust were limited to the terms of existing third country agreements, the UK and Member States would lose the ability to initiate bilateral coordination meetings and there would be limitations on the extent to which the Crown Prosecution Service and Crown Office prosecutors could work with Eurojust.
As a result, there would be fewer opportunities for the UK to contribute to the work of Eurojust and reduced capability for the UK and the EU to cooperate in tackling serious cross-border and organised crime.
This Article draws on the White Paper The Future Relationship between the United Kingdom and the European Union Presented to Parliament by the Prime Minister July 2018 Cm 9593. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).
Important Notice- See the Disclaimer and our Term of Use above Brexit Legal, McMahon Legal and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website
Contact McMahon Legal