As part of a series of evidence sessions considering the repercussions for security and policing within Europe after Brexit, Rob Wainwright, director of the European Police Office (‘Europol’) has addressed the Home Affairs Committee on behalf of Europol, in an attempt to define the nature of the relationship between the Europol and the UK after it leaves the EU. While emphasising the organisation’s “genuine willingness to make this work”, his testimony offered little comfort to those who fear the break down in collaborative cross-border efforts to fight crime.

Europol is a creature of the EU. This means that, as Áine Kervick pointed out in her blog, Brexit, Europol, and Euro-specifics, the UK’s departure from the EU would have a profound impact on our relationship with the Office, presenting a logistical crisis for security operations within Europe. It is anticipated that post-Brexit, the UK would seek to establish an ‘operational agreement’ (see blog: The UK, Europol…and the EU? Government announces intention to opt-in to new Europol framework creating closer ties with the EU) with Europol, similar to those currently in force with Norway, Switzerland, and Iceland. However, following the successful conclusion of an agreement between Denmark and Europol, the Government may well feel renewed optimism that something more bespoke can be negotiated. In his evidence, Mr Wainwright added some flesh to this idea.

The new Europol Framework (which further integrates Europol with the EU) takes effect on 1 May 2017. After this point, it is unclear whether subsequent operational agreements will reflect those made previously. Mr Wainwright identified two potential routes towards the achievement of a new operational relationship with the UK:

  1. An international agreement of the European Union with a third party under Article 218 of the Lisbon Treaty, which could include a justice and home affairs chapter. Ultimately, this would mean that the UK would need to negotiate directly with the EU.
  2. A data protection adequacy decision of the European Commission to be applied in specific cases for the purposes of police cooperation. So far this format has only ever applied to civil matters.

In either event, the UK would be venturing into entirely “new territory” notwithstanding the crucial importance of this partnership to national security.

As a result, the Committee pressed Mr Wainwright over the practical implications of any operational agreement. He conceded that without direct access to the Schengen Information System II, UK police authorities would face a small time lag, while Europol itself would no longer be able to rely so heavily upon their skills and resources. However, the UK police would also be denied access to multiple databases across different points of the law enforcement community. Most concerning was the disappearance of British officers on the management board or in the employment of Europol. At present, approximately half of Europol’s “top priorities” in the fight against serious and organised crime are led or co-led by the UK. As such, Mr Wainwright warned that they could not spare British expertise or leadership at this very dangerous time.

But despite this genuine willingness, and despite what Mr Wainwright described as a surprising lack of “acrimony or bitterness” in the European community following the referendum result, it is difficult to envisage how any new arrangement could match the seamless interaction which we currently enjoy as part of our membership of the EU. One question that demands an answer is whether this relationship will form part of the Article 50 negotiations or whether, after Brexit, the UK and Europol’s relationship will find itself in what Mr Wainwright described as a “cliff-edge scenario”. To be continued…