With the path now clear for the triggering of Article 50, this series of blogs looks at the risks and opportunities for the UK post-Brexit in the sphere of criminal justice.Today, in the first in this series, we look at the government’s approach to justice and security measures, and the history of the UK’s involvement in EU-wide co-operation.

Tomorrow’s blog will look at the prospects for our continuing involvement with key EU bodies and databases and at the end of the week we will set out what all of this means for the future of the EAW.

EU cooperation in Justice and Home Affairs

Cooperation in EU justice and home affairs (JHA) has expanded over time. Whilst not part of the initial remit of the European Community, the 1992 Treaty of Maastricht brought together cooperation in criminal matters under the so-called “third pillar” of Justice and Home Affairs. In 2009, the Treaty of Lisbon then incorporated these measures into the main body of EU law, Art. 3(2) stating that “The Union shall offer its citizens an area of freedom, security and justice without internal borders […]”.

The involvement of the EU in this arena is not without controversy. Whilst it clearly benefits all nations to cooperate together to fight crime, security and justice are seen as key in the exercise of a nation’s sovereignty. Ceding the right to legislate in this area, in however limited a fashion, has been seen by Eurosceptics as a mistake which can only be remedied by withdrawal from the EU.

What was the UK’s position pre-Brexit?

Controversy over the Lisbon Treaty’s perceived overreach into areas of national sovereignty led Gordon Brown to negotiate special conditions for the UK in the field of justice and home affairs. Under Protocol 36 of that Treaty, the UK and Ireland secured the right to opt in and opt out of individual pieces of legislation if they came under the Area of Freedom, Security and Justice. In July 2013, the UK notified the Council that it wished to opt out of all pre-2009 Lisbon Treaty measures. It then opted back in to 35 of the same on the basis they would make a positive difference in fighting crime and preventing terrorism. See the then Home Secretary Theresa May’s statement on the opt-out/opt-in here.

Since 2013 further measures have been opted in to with the government deciding whether, on a case by case basis, the measure was in the country’s national interest. Measures adopted (which include new versions of pre-Lisbon measures, the EU Passenger Name Records (“PNR”) Directive, the EU PNR Agreements with Australia, US and Canada, as well as the European Investigation Order) are designed to support cross-border cooperation and the investigation of serious crimes.

Where does the government stand today?

On 24 February 2017 the House of Commons Library published its Briefing Paper titled ‘Brexit: implications for policing and criminal justice cooperation’. The 33 page document looks at the areas in which EU law affects criminal justice and policing cooperation, the challenges Brexit will bring and the potential areas of negotiation, making clear that whilst government rhetoric might be attractive to the British voter, negotiators will need to work hard to ensure that Brexit does not affect the safety and security of UK citizens. That involves, in the words of David Anderson QC (former Independent Reviewer of Terrorism Legislation), preserving “as much as possible of what we have” [28 February House of Commons Committee on Exiting the European Union]

In his 10 October 2016 statement, David Davis told the House of Commons that one of the government’s four aims for the Brexit negotiations was to “keep our justice and security arrangements at least as strong as they are”. As set out in our previous blogs it is also one of the government’s 12 principles guiding it through its negotiations with the EU: namely to continue its cooperation with the EU to preserve security, fight terrorism and uphold justice.

The government is distinctly positive about its prospects in achieving this, stating our “pre-existing security relationship with the EU and its Member States means we are uniquely placed to develop and sustain a mutually beneficial model of cooperation in this area” [para.11.2 ].

However, as the Briefing Paper shows, developing strong, close operational and practical cross-border cooperation is neither guaranteed nor easy.