Yesterday Theresa May responded to the recent terrorist attacks in London and Manchester by saying that she will change human rights law to fight terrorism, by derogating from the European Convention on Human Rights (ECHR) in certain circumstances.
There may, however, be unintended but entirely foreseeable consequences arising from any such derogation. In fact, given that the security services very frequently work in conjunction with our European counterparts, it could well mean a real reduction in our capabilities.
Our previous blogs (see here, here and here) have looked at how our access to European security agencies, networks and databases such as the Schengen Information System II (SIS II), Europol and Eurojust will be affected following Brexit. In an interview in February this year, Rob Wainwright, director of Europol, stated that fighting crime and terrorism in the UK would be much less effective when the UK leaves the EU saying:
“The UK will be absenting itself from having access to the kind of well developed arrangements that currently exist and have developed over the last 40 years.”
It is now known that Youssef Zaghba, one of the London attackers, had been noted on SIS II as a terrorist threat by the Italian authorities. Although it appears that this was not picked up by the authorities here, the information was nonetheless available to the UK security services. Following Brexit, however, our access to SIS II is far from guaranteed. UK negotiators will need to persuade the EU that the UK will adhere to certain fundamental legal principles and any derogation from the ECHR may be a hindrance in this regard.
The EU has struggled to implement the principle of mutual trust and recognition. Seeking to apply similar standards across all 28 member states, with their very different legal and procedural systems has been a challenge. And yet, whatever the differences, all EU member states have signed up to the ECHR as well as the EU Charter on Fundamental Rights and Freedoms, which allows all member states to have a particular trust and confidence in the functioning of the other member states’ legal systems. The Framework Decision on the European Arrest Warrant, to give just one example of a functioning mutual recognition instrument, states that:
“The mechanism of the European arrest warrant is based on a high level of confidence between Member States.”
If the UK hopes to retain access to key security bodies and networks, a withdrawal from the EU will necessarily mean a loss of that high level of confidence that our European partners currently have in the UK and its legal system as a fellow EU member state. A long-term derogation of any kind from the ECHR will go further in undermining the trust that EU member states place in the UK’s legal system.
Whilst removing the rights of suspected terrorists is an understandable reaction in the face of the horrific terrorist attacks of the last weeks, the UK must not fall into the trap of sacrificing security to satisfy misinformed sections of the right wing press. Any future government must bear in mind that the fight against terrorism is inescapably international and do everything it can to ensure that the trust of other EU member states is maintained.