Deal or No Deal – Brexit Security Risks and Cooperation


March 11, 2019
Deal or No Deal – Brexit Security Risks and Cooperation
Andrew Staniforth
Andrew Staniforth Non-Resident Fellow - Counter Terrorism & National Security

The deadline for the British government to secure an agreed withdrawal from the European Union (EU) by 29 March is fast approaching. Despite negotiating a deal for more than two years, the Houses of Parliament have voted down the Prime Minister’s exit plan agreed with the EU.  Defeated by a record margin, and more stinging than the most alarming predictions, the historic result has launched a new dynamic to what has become known as Brexit, shorthand for Britain exiting the EU. Anything is now possible in both the British political scene and the future of Brexit which has potentially serious consequences for national and international security.

Member States

The EU is an economic and political partnership involving 28 European countries which began its formation in the aftermath of World War II to foster economic co-operation, being founded on the belief that countries which trade together were more likely to avoid going to war with each other. The EU has since grown to become a “single market” allowing goods and people to move around, basically as if the Member States are one unified jurisdiction. The EU has its own currency, the Euro, which is used by 19 of the Member States, its own parliament and it now sets rules in a wide range of areas, including the environment, transport, consumer rights and matters such as mobile phone charges.

On 23 June 2016, the British government held a referendum–a vote in which every one of voting age could take part–to decide the UK’s future relationship with the EU.  Thirty million people voted in the UK referendum to determine whether the UK should leave or remain in the EU and votes to leave prevailed by 51.9% to 48.1%. For the UK to leave the EU it had to invoke Article 50 of the Lisbon Treaty which gave the two sides two years to agree on the terms of the split.  The Prime Minister triggered this process on 29 March 2017, meaning the UK is scheduled to leave the EU at 23:00 UK time on Friday 29 March 2019.  Since 2017, UK and EU authorities have been engaged in negotiations to secure an agreement which outlines the terms and conditions for the UK to withdraw from the EU.

Agreeing a plan to withdraw has been considered by many politicians to be essential to ensure as smooth as possible an exit from the EU for businesses and individuals and to allow time for the UK and the EU to agree on a range of matters such as trade, movement of persons, and security.   Throughout the Brexit negotiations, the issue of security has gained prominence but serious concerns amongst government ministers and senior authorities have now come to the fore. It seems the stark reality of leaving the EU without a deal has suddenly dawned upon politicians, and fault lines in the UK’s post-Brexit national security arrangements have been exposed.

Security Concerns

The British government has it made it very clear throughout the Brexit negotiations that it seeks to maintain all existing security arrangements once the UK has departed the EU. And the EU wants to maintain this high level of co-operation out of mutual self-interest. But there are problems. Critics of the British government’s hopes for post-Brexit security are concerned that the proposed final relationship with the EU is long on aspirations but short on solutions.  These problems will not simply impact the strategic tiers of international security diplomacy and cooperation, they will impact directly upon current police operations to track terrorists and organised criminals.

According to Lynne Owens, Director-General of the UK’s National Crime Agency (NCA), a no-deal Brexit could mean efforts to tackle organised crime are significantly impaired. The Director General stated: “The potential loss of cross-border cooperation means that we are deeply concerned about the consequences of a no-deal Brexit”.  While the continued access to databases is essential for the effective operation of UK national security, there are also legal instruments and police powers across the EU that will arguably have a greater impact upon the capability of UK police to arrest terrorists and organised criminals across Europe.

European Arrest Warrant

The European Arrest Warrant (EAW) stands out as the most important legal instrument developed in the area of mutual recognition of judicial decisions in Europe. Over time the EAW has proven to be one of the most effective methods of judicial cooperation. The EAW consists of a simplified and expeditious surrendering procedure that has replaced extradition among member states. The EAW ensures that a person who has committed a serious crime in an EU country but is present in another member state can be returned to face justice quickly and with minimal administrative burdens.

The EAW has its origins in the EU’s creation the “area of freedom, security and justice” from the Treaty of Maastricht in 1993 and the Treaty of Amsterdam in 1999. The area of freedom, security and justice is a key element in the single market idea allowing the secure movement of persons, goods and services within the EU, through a system providing high levels of protection.  This has come about through judicial and police cooperation, common policies on asylum and immigration and enhanced coordinated efforts to address transnational crime.

The EAW was adopted in 2002.  Greater cooperation on police matters became a political priority after the coordinated terrorist attacks of 11 September 2001 in the United States. The Al Qaeda ‘Planes Operation’ proved, with devastating effect, that modern terrorism was truly international, with terrorists being able to carry out their training, planning and execution of attacks in multiple countries across the world. The transnational terrorist, embodied by the 9/11 hi-jackers, drew attention to the necessity of carrying out an effective ‘War on Terror’ at a global level. The EAW’s adoption now provided a legal instrument to handle arrest and surrender procedures between the Member States, as well as providing safeguards for the accused.

Success Factors

The EAW has been praised as the flagship of cooperation between EU leaders and termed as being an indispensable instrument owing to its success.  According to the NCA, the body responsible for managing the EAW process on behalf of the UK government, there have received a total of 84,837 requests from member states to execute arrest warrants over the last decade. These have included requests for the arrest of 1,436 persons suspected of terrorism offences, 1,268 persons suspected of committing murder, 1,028 persons suspected of conducting sexual offences against children, and 458 persons suspected of war crimes.

As authorities began to use and familiarise themselves with the EAW mechanism, they adapted and streamlined operational procedures to increase the efficiency of requesting arrests and executing warrants. Today, the EAW is an important tool for police officers to track suspects who attempt to evade justice by travelling across the EU’s national borders. It is seen by many senior police investigators across Europe as an essential part of transnational police cooperation and is being regularly used with great success. Figures published last year by the NCA revealed that the total number of EAW requests received each year by the British government from EU member states has significantly risen over the last decade, from 2,842 during 2009, to 16,837 in 2018. This substantial rise provides evidence of the increasing use of the EAW mechanism as a means of effectively pursuing terrorists and criminals across EU borders.

The importance and success of the EAW are due to the transnational cooperation it fosters directly supporting the UK’s intelligence services and law enforcement. During 2018 a total number of 296 requests were made by police forces to their law enforcement colleagues in the EU. These requests included the arrest of 26 persons suspected of drug trafficking and 26 persons suspected of murder and manslaughter.  Over the course of the last decade, UK authorities have also requested the arrest of 11 individuals suspected of terrorism related offences, a decade in which the UK has sustained a prolonged period of severe threat from home-grown terrorism.

Stronger Together

The success of the EAW mechanism for UK authorities over recent years makes the continued involvement in the system after Brexit the ideal outcome. The prospect of this happening is looking very unlikely. Without an agreed deal for the UK to leave the EU, it has become clear that Britain will be forced to leave the EAW after Brexit, a position clarified by Michel Barnier, the EU’s chief negotiator.  The potential withdrawal from the EAW has dealt a significant blow to the UK government, which hopes the arrangement will continue after Brexit. A continuation of the EAW is unlikely but what will follow instead, and whether it would be equally efficient is unclear. What the UK and EU need to avoid at all costs is a return to the bureaucratic extradition negotiations between countries. For police investigators charged with the duty of catching criminals, a return to complex extradition procedures is both unwelcome and unwise.

The uncertainty of post-Brexit security arrangements raises more questions than answers but if the UK and EU do not agree on a deal before the deadline, it may find itself with more legal gaps than it can fill.  There will be alternative arrangements in place for transnational cooperation in law enforcement but these are not as effective as the EAW.  The inability to secure a Brexit withdrawal agreement at this late stage in the process has exposed the fragility and interdependence of international security arrangements.  The Political Declaration between the UK and the EU on the future of relations does explicitly recognise the importance of cooperation in law enforcement.  But even this declaration highlights the fragility at stake with strong statements on principle but little in term of practicalities. The Brexit situation reinforces what many security policy-makers already know:  continued collaboration between intelligence and law enforcement agencies across the world remains critical for collective security.  It seems the increasingly interconnected and interdependent world in which we now live is both made safer, and stronger when nations work together to tackle crime and terrorism.