Shortly after the referendum result, I attended a meeting in Whitehall to which representatives of a wide range of criminal justice agencies had been invited. Our host, a policy official, told us that Brexit was to be viewed as an opportunity and asked us to identify the specific opportunities Brexit afforded us in our work.
There was a stony silence; a tumbleweed moment. We all knew that, as the Institute for Government would later pithily observe, the UK would struggle to invent an arrangement on law enforcement co-operation with the EU that suits it better than the one it has now. What’s more, as matters stand, these arrangements will come to a grinding halt in little over a month. Where will that leave those agencies tasked with dealing with serious cross-border crime?
Their response is built around intelligence, and the UK is an eager customer of the real-time information that EU intelligence sharing mechanisms provide. At the heart of those mechanisms sits Europol, which drives liaison between law enforcement agencies, houses databases and provides an impressive analytical capability. The UK will lose not just the benefits of its Europol membership but also its access to non-Europol databases, including Schengen Information System II (real time information on missing and wanted people and property) and to information sharing mechanisms such as the Passenger Name Record system (which provides access to information about passengers on flights to and from the EU). Interpol, which the UK will be left with, is a poor substitute for this rich source of intelligence and analytical capability.
If an agency is able to overcome the intelligence deficit in building its case it will still need to convert that intelligence into admissible evidence and, separately, to secure the surrender to the UK of the prospective defendant. At present, where that evidence or person is to be found in the EU, UK agencies can rely on European Investigation Orders and European Arrest Warrants: streamlined mechanisms, unique in the field of international co-operation and particular to the EU. They will be replaced by bureaucratic processes designed in the 1950s, more limited in the scope of assistance they offer and marked by delay. They might well have been ground-breaking in their day but to operational agencies they are analogue solutions to the problems of a digital age.
The Government’s withdrawal agreement clarifies how existing cases should be dealt with and provides an opportunity to try to agree a framework for future co-operation during the implementation period: no easy task given that the benefits the UK derived were a consequence of its membership of a rules-based club and Brexit’s purpose is for the UK to free itself of some of those rules. In any event that agreement was roundly rejected by Parliament and with each passing day a no deal Brexit looks more likely. To return to that Whitehall meeting, I can see no opportunity this affords my former colleagues in their work and I doubt they can either.