Given the current parliamentary turmoil, Whitehall is proceeding at pace with a multitude of regulations, guidance and policies to prepare for a “no deal” Brexit – the consequence of leaving the EU on 29 March 2019 with no transitional arrangement in place or the prospect of a future relationship secured. A large number of statutory instruments are being prepared that introduce regulations to “address failures of retained EU law to operate effectively or address other legislative deficiencies arising from the UK’s withdrawal from the EU." This will provide “legal and operational certainty” – so we are told.

One of these instruments is a draft statutory instrument - The Law Enforcement and Security (Amendment) (EU exit) Regulations 2019. These regulations deal with a number of major of issues relating to policing and criminal justice, including the fact that the UK will no longer be party to Europol and Eurojust. The change of regime in relation to extradition and the fact that the UK will no longer be able to avail itself of the European Arrest Warrant (EAW) in the event of a no deal Brexit is set out. Another key instrument referred to is the European Investigation Order.

The UK will no longer operate the EAW

The Explanatory Memorandum sets out that, if the UK withdraws from the EU without a deal in March 2019, the UK will no longer operate the EAW. The Regulations therefore contain statutory amendments required for alternative provisions to process extradition requests from EU Member States once co-operation under the EAW ceases.

Part 14 of the Regulations will amend the previous orders under the Extradition Act 2003 to re-designate the current Part 1 territories to be Part 2 territories following the UK’s withdrawal from the EU and the EAW Framework Decision. This will allow for extradition requests from Member States, previously designated under Part 1 of the Act, to be administered under Part 2 of the Act based on extradition arrangements under the 1957 European Convention on Extradition (ECE).

The Explanatory Memorandum confirms that the re-designation of Member States from Part 1 to Part 2 of the Extradition Act 2003 involves “a significant change in extradition arrangements with Member States but puts in place essential alternative provisions.” In terms of reverting back to the ECE, the re-designation of territories from Part 1 to Part 2 of the Act ensures alternative provisions are in place for administering requests made by the relevant territories under the ECE. Requests under the ECE are made via diplomatic channels. Decisions on certification and ordering extradition under Part 2 of the Act fall to the Secretary of State.

Following exit day, the UK will not process any new EAW requests. However, as confirmed in the Explanatory Memorandum, transitional arrangements for requests commenced under Part 1 of the Act provide for continuity of existing requests where an arrest has been made, allowing the court to continue extradition proceedings in accordance with Part 1 of the Act.

Consequences of falling back on the 1959 regime

The UK government has long been a proponent of the efficacy of the EAW and it would arguably be a significant loss in its law enforcement armoury post-Brexit. Indeed, reverting back to the regime under the Council of Europe would leave the UK facing the very same issues that the EAW was designed to address: delay, higher cost, and potential political interference. These issues were set out in the House of Lords report Brexit: The European Arrest Warrant and reiterated in the House of Commons, Home Affairs Committee report UK–EU security cooperation after Brexit (Fourth Report) which recalled that the simplified extradition procedure introduced through the EAW is “significantly faster and cheaper than its predecessor arrangements, based on the 1957 European Convention on Extradition”. A similar message is heard from the Lords in the Brexit: future UK-EU security and police cooperation report where this underlines that “…the 1957 Council of Europe Convention on Extradition cannot adequately substitute for the European Arrest Warrant”.

Others outside parliament echo this view: the Serious Fraud Office cited loss of access to EU measures and tools arising from Brexit leading to an adverse effect on investigations and prosecutions as a strategic risk in its Annual Report 2017-18. When questioned before the Justice Committee in December 2018, SFO Director Lisa Osofsky confirmed that “it will be slower, and it is clunkier to rely on treaties, letters of request and that sort of thing than that which we have at the moment”.

Former Eurojust President Aled Williams was cited in the House of Lords report on Brexit: judicial oversight of the European Arrest Warrant who summarised his views as follows: “Overall he judged that going back to the Convention would be counterproductive in relation to the security of our citizens and delays”.

What next?

Whilst falling back on the ECE is presented as a default option, some Member States rescinded their legislation implementing the Convention when the EAW came into force. The ECE therefore does not appear to provide a reciprocal solution and it is not clear what the process will be followed if the UK seeks the return of a fugitive. This was an issue addressed in the House of Lords report on Brexit: judicial oversight of the European Arrest Warrant which said that there “would be a problem with those Member States that have rescinded their legislation implementing the Convention”. The report concludes that the “Committee’s concern is that because extradition is a two-way, reciprocal arrangement, in the case of such Member States, simply amending the Extradition Act would not in itself be sufficient. If the UK did not have pre-existing extradition arrangements with certain member states, extradition could become impossible at the moment of Brexit.” Though, this might be settled “if all parties agreed that they would revert to using the [1957] Convention...that that would be a fallback position”. Indeed, it may be that the culture of mutual trust and recognition that has developed under the EAW scheme is so entrenched that this would diminish the practical impact a return to the ECE.

Given the UK’s commitment to cross-border law enforcement (and the focus on the EAW from the outset in terms of future EU-UK relations) we can expect that the Government will press to maintain extradition arrangements that are as close as possible to the EAW scheme in any future partnership or transition deal. How close this will be once the UK is outside the EU is another matter.