On 19 March 2018, the EU and the UK agreed the terms of a transition period (referred to by the UK as ‘an implementation period’) that will extend the time during which EU law will apply to and in the United Kingdom. The agreement is Part 4 of the draft Article 50 Withdrawal Treaty (the draft Withdrawal Treaty). The text of the draft Withdrawal Treaty is highlighted to reflect the areas where agreement has been reached between the negotiators (green highlights); agreement on the policy objective has been reached (yellow highlights); or where discussion is on-going (white). The transition period will run between 30 March 2019 and 31 December 2020.

Criminal justice cooperation during the Brexit transition period – the key points

Part 4 of the draft Withdrawal Treaty sets out the terms of the transition period and is entirely highlighted in green, denoting full agreement having been reached on this section. There are four key points to note with respect to EU criminal justice cooperation during this period.

First, the agreement provides that EU law will continue to be applicable to and in the United Kingdom during the transition period (Article 122(1)) but maintains the UK’s current justice and home affairs (‘JHA’) opt-outs (Article 122(1)(a) and (b)). The JHA measures that the UK has opted into as at 30 March 2019 (including the EAW, the European Investigation Order and key MLA and data sharing agreements) will continue to have effect. This effectively extends the status quo in relation to the UK’s participation in existing criminal justice cooperation measures, at least until December 2020. Significantly however, the final Article of the draft Withdrawal Treaty (Article 168) includes a provision highlighted in yellow (denoting agreement as to the policy objective only) that provides that EU member states may make written notification to the UK that they will not surrender their own nationals pursuant to the Framework Decision on the EAW. Such provisions are familiar in extradition law, but would mark a step-change in the UK’s extradition relationship with the EU.

Second, during the transition period, the UK will no longer have the right to opt-in to new JHA measures, although changes to measures that the UK has already opted into will apply to the UK (Article 122(5)). Although, in general, this means that the UK cannot opt-in to new JHA measures (which is a privilege only afforded to EU member states), the wording of Article 122(5),“amending, building-upon or replacing”, suggests that the UK may be able to participate in new measures to the extent that they (for example) replace an existing measure. Further, Article 122(5) provides that the EU may invite the UK to participate in new measures “under the conditions set out for cooperation with third countries”. This is a clear signal that, at present, the EU intends to treat the UK in the same way as other so-called ‘third states’ and there is no sign at this stage of the UK being given any special status in this regard.

Third, and importantly, the CJEU will continue to have jurisdiction over the UK, including in relation to criminal justice measures (Article 126). This area is, and will continue to be, highly contentious as can be seen from the fact that the majority of the white highlighted (no agreement) parts of the draft Withdrawal Treaty in one way or another relate to the role of the CJEU.

Fourth, the UK will no longer be able to submit proposals, initiatives or requests to EU institutions in relation to criminal justice measures (Article 123(3)). Given the leading role that the UK has played up until now in relation to criminal justice cooperation, this will be a significant change and will provide an early indication as to the extent to which Brexit will affect the UK’s EU criminal justice relationships.

What this means for the future?

The main take-away points in relation to the transition period are that criminal justice cooperation will remain largely the same as it is now. The draft Withdrawal Agreement does, however, contain some early indicators as to what the UK’s future relationship with the EU may look like. As noted above, those indicators suggest that the UK will be very much a ‘third state’, with little sign at this stage of any privileged or unique status being conferred. Further, the UK will no longer be able to take a leading policy role on matters of criminal justice cooperation. Finally, there may be some important changes to the EAW arrangements, a further sign of the UK’s more distant future ‘third state’ role.