The state of UK justice and security after the transition period

Sunday’s decision by the UK and EU to continue negotiations past the parties’ self-imposed deadline offers a glimmer of hope that a justice and security deal may still be within reach before the 31 December cliff-edge. While the long-term impact of exiting the EU without a deal remains the subject of much debate, the immediate detrimental effect on UK crime-fighting capabilities is beyond doubt. From 11pm on the 31 December 2020, the cross-border co-operation landscape will be altered beyond recognition. Prompt access to organised crime and terror threat intelligence through Europol and the ability to track dangerous offenders overseas through the Schengen Information System (SIS II) will be cut off. Essential crime fighting tools including the European Arrest Warrant (EAW), which has governed UK extradition arrangements with the EU since 2004, and the European Investigation Order (EIO) will also become things of the past, although any current proceedings can be completed . The resultant disruption to UK and EU law enforcement co-operation and data-sharing cannot be overstated. From a criminal justice perspective, this outcome is regrettable. It presents a real and immediate risk to the security of the UK and can only serve to benefit those involved in cross border serious criminality. It is even more regrettable when one considers that, unlike trade, the EU and UK have long agreed that the optimal outcome is to replicate the current arrangements as far as possible.

The most well-known and arguably the most valuable of the many measures that will be lost at the end of the transition period is the EAW. The Government’s stated ambition is to replace it with a “fast-track extradition arrangements … with appropriate further safeguards for individuals beyond those in the European arrest warrant”, mirroring the EU’s 2019 surrender agreement with Norway and Iceland. The promise of “further safeguards” is short-hand for addressing concerns that the EAW provides insufficient protection against extradition to countries with inferior standards to the UK, but which we are obliged to treat as equivalent though the EU concept of “mutual recognition” enforced by the European Court of Justice. Released from this “sham” (to quote Dominic Raab) the UK will be able to apply its own yardstick and some countries may not measure up.

Despite these ambitions, It should be noted that the Norway-Iceland deal took 13 years to enter into force, and at this late stage in the negotiations, no such arrangements for the UK exists. The Government’s stop-gap solution is the Extradition (Provisional Arrest) Act 2020 which received Royal Assent on 22 October. The Act introduces a new power of arrest for the purpose of extradition, without the need for a domestic warrant, provided the request comes from a short list of what Home Secretary Priti Patel has described as “trusted countries”, in whose criminal justice systems we have a high degree of confidence. Instead of waiting for the Home Office to certify an extradition request and a District Judge to issue a warrant, the police will be able to rely on an INTERPOL Red Notice as a lawful basis for arrest. While this would go some way to replicating the speed and efficiency of an EAW whilst we wait for the new arrangements it was described in the House of Commons as a “poor and incomplete replacement” for the EAW .

The Act is a significant change in the UK’s stance on Red Notices, which previously we have treated merely as an alert that someone is wanted in another country, as opposed to permitting them to be arrested, detained and taken to court to face potential extradition. The reason for this stance is well known and long-established: INTERPOL cannot be trusted. Its processes are open to grave abuse by countries with questionable commitment to, or even open contempt for the rule of law. Red Notices routinely are issued for political or other improper purposes, based on flimsy or non-existent evidence. In October 2020 the Foreign Affairs Committee heard evidence from Bill Browder and others about the organisation’s vulnerability to such abuse by “rogue” members including Russia, China and the UAE. Whilst an individual can challenge a Red Notice, this is often after the event, the process is opaque and can take 12 months or more. This is not just the view of “lefty human rights lawyers” but was recognised and debated openly as the Bill passed through Parliament. An earlier version of the Bill included a clause requiring the Secretary of State, before any country could be added to the “trusted” list, to lay a statement before Parliament confirming that it did not abuse Red Notices, although this was removed from the final text of the Act. The removal of this safeguard is concerning at a time when Government should be particularly alive to the risk posed by INTERPOL abuse.

So, if INTERPOL cannot be trusted to weed out unmeritorious and abusive Red Notices, we must assess the trustworthiness of the issuing country instead. The Government has said that only those in which we have “a high level of confidence… as extradition partners, in their criminal justice systems, and in their use of extradition” will get on the list. That list is at Schedule A1 of the Act and, at commencement, comprises Australia, Canada, Liechtenstein, New Zealand, Switzerland and the USA. It was not until September 2020 that the Schedule was amended to add all 27 EU Member States (and Norway and Iceland) to the list, with those changes due to come into effect when we lose access to the EAW at the end of the transition period. This amendment came under fire in the House of Lords with Lord Kennedy criticising the Government’s lack of transparency in the passage of the Bill:

“It is regrettable that we had a whole debate on the Bill and, consequently, were assured or told that it was not a replacement for the European Arrest Warrant. At the last possible moment, Amendment 5 goes down, adding all the European Union countries, plus Norway and Iceland. The Government should be more transparent about these things. I find it quite frustrating; I just do not know why the Government act like this.”

The UK’s new global position after Brexit may place additional strain on its ability to protect against unmeritorious requests. As the Government works to secure trade deals with other countries, there is a risk that the UK’s stance on which countries do and do not meet the standard of a “trusted partner” may, in the absence of a clear criteria and safeguards, be open to misuse as a bargaining chip with countries that do not meet the necessary high standard of rights protection but with whom trade would be advantageous for the UK.

On one level the Act is an admirably pragmatic solution to the inevitable loss of operational capacity on 1 January 2021 but the gap left by loss of access to the EAW is not so easily filled. As this is a piece of domestic UK legislation, there can be no built in reciprocal obligations on EU Member States and it remains to be seen how the EU will respond. Further, the Act provides no solution to the particular problem posed by countries like Germany, Slovenia and Austria whose constitutions prevent the extradition of their citizens to countries outside the EAW regime – a position confirmed by all three countries immediately prior to exit day in early 2020.

While the shift to INTERPOL cannot replicate fully the efficiency of the EAW, it goes some of the way. But what about those “further safeguards” we were promised? This is where, on closer inspection, the Act may undermine the standards we are seeking to enhance. To quote Dominic Raab again (from 2014), “the post-Soviet justice systems in many Eastern European countries are truly appalling.” Whilst many people would not go that far, there is no doubt that adherence to the rule of law and respect for human rights in Hungary, Poland and Romania – all listed in Schedule 1A of the Act – have deteriorated even since Mr Raab’s scathing assessment. In the latest clash between Hungary and Poland and the EU, the two Member States vetoed the EU Coronavirus recovery budget over a mechanism which would permit the EU to suspend funding where a Member State fails to meet certain standards, including the rule of law. Yet far from subjecting those countries to increased scrutiny once freed from the straitjacket of mutual recognition, the Act lowers the bar by replacing an EAW, which must be issued by a judicial authority in accordance with transparent and enforceable EU laws, with a Red Notice produced by a murky administrative process regulated by a body that professes to be immune from legal challenge. Trusting Liechtenstein and New Zealand not to abuse this new privilege is one thing, but rubber-stamping Hungary, Poland and Romania would be the opposite of what the Government has promised to deliver.

By Jasvinder Nakhwal and Nick Vamos