Brexit, borders and criminal justice

Katy Hayward of Queen’s University Belfast offers her reflections on Brexit, borders and their potential impacts on criminal justice co-operation in Ireland.

Opening her presentation, Hayward suggests that many questions remain unresolved in relation to the impact of Brexit on security and criminal justice cooperation in Ireland. Indeed, throughout her analysis she notes that the ramifications of Brexit have yet to ‘hit home’.

As we approach the March deadline, Hayward suggests that the UK believes it has a strong hand in negotiations surrounding security and justice cooperation with its European neighbours. However, she claims that such a premise is based upon the UK’s previous deal with the EU, which allowed the country to enjoy many of the opt-in benefits associated with EU membership despite its position outside of the Schengen Agreement. “You will have heard Theresa May continuously referring to ‘security challenges’ that Europe is facing in relation to terrorism and immigration. She may well believe that if she discusses this issue enough, she will be given special concessions from the EU,” says Hayward. “Indeed, when we look at what the EU is prepared to offer, it is clear to see why the UK feels so confident regarding this issue.”

According to Hayward, the UK and the EU are viewing the current phase of negotiations from starkly contrasting perspectives. “Whilst the UK views current negotiations as a means of preserving and maintaining much of their previous relationship, the EU conversely sees negotiations as something more like a divorce,” she says. “The UK thinks it is going for an open relationship after its marriage to the EU, whereas the EU has other ideas.”

A complicated divorce

Whilst Hayward suggests that relationships are fraught between the UK and the EU, she emphasises that roughly 80 per cent of the withdrawal agreement has already been settled between the two parties. “We know that the critical question surrounds the Irish border, and how we interpret the joint report published in December 2017. If you speak to people in Brussels, they say, ‘look at the language of that agreement’. It’s all about the UK recalling its commitments, rather than the EU making any promises,” notes Hayward. “For example, the UK recalls its commitment to preventing a hard border in Ireland, including any physical infrastructure, which is an obsession of Brexiteers. There is also the question of checks and controls, which do not, of course, always relate to customs. It is worth noting that the EU is not going to fudge on a backstop, and as someone who observes the border issue closely I am quite concerned about how such a backstop would work in practice.”

There are two ways of getting around the current impasse, according to Hayward. “We can look at the backstop and the insurance policy for the Irish border and for the UK to come forward with an all-UK backstop, something which would certainly be difficult to push through,” she suggests. Alternatively, she adds, negotiations could go “very specific on the detail of that backstop, such as the free movement of people, and whether this would create greater regulatory alignment, or bigger gaps”. The academic refers to a recent whitepaper published by the British Government which offers little assurances on the prospect of a backstop. “It does, however, refer to security and justice co-operation, although not in much detail. We must wait for the outcome of the Conservative Party conference, although that is another story.”

Much confusion surrounds the issue of confidential intelligence and the secure exchange of information post-Brexit. Despite the previously strong relationship between the UK and the EU, draft protocols for Ireland and Northern Ireland suggest that the UK would not have access to confidential information around security held by the EU. “It is interesting that the UK has agreed to this, and it will certainly have its implications,” says Hayward. “Interestingly, the same paper carries a statement which speaks of the UK recalling its commitment to justice cooperation, including cross-border security. All of this must be resolved before we get a draft withdrawal agreement. Of course, the consultation papers recently released by the British Government provide little or no detail on the issue of security.”

Diminishing influence

According to Hayward, there are three key principles which underpin criminal justice cooperation: participation of the UK in EU agencies; information sharing; and mutual recognition of legal systems and single market goods. Overarching all these principles is the need for soft power and political influence – qualities which have dimmed in the UK post-referendum, she claims. “The loss of this influence will be significant, as will the degeneration of bilateral relations with the Republic of Ireland. The UK will lose any automated response regarding requests for information or assistance from their former partners. The principles that underpin security and justice co-operations will certainly face implications post-Brexit.”

The UK’s departure from the EU will compromise the benefits it currently enjoys by opting-in with the Schengen Information System. “The benefits of this will be gone. There are further questions around how the UK will handle its data protection within the jurisdiction of the European Courts of Justice,” says Hayward. “I have seen much discussion surrounding the examples of Norway and Iceland. They do have access to many European benefits, but unlike the UK, they are inside the Schengen area. The reality of being outside of those systems is yet to hit home.”

Hayward highlights that the UK expresses an aversion to excessive bureaucracy and the desire to move away from it. “The problem is, there must be a security partnership alongside an economic partnership,” she says. “It emphasises flexibility, which may go down well in the UK for various political reasons, and possibly pragmatic ones. In the EU it means alarm bells. The EU will not wish to engage unless it has certain demands secured. It does wish to see a new treaty on internal security which will consolidate past agreements around this issue.”

Foundations of trust

The Belfast-based academic raises questions over how useful security information will be to the UK if it doesn’t have the same level of access it previously enjoyed from organisations such as Europol. “You have the problem of wanting the same organisational cooperation, which the EU want to see as well. Note the point that the EU Commission made that there will only be an agreement with trust,” says Hayward. “You can only stretch trust so far – it must be underpinned with solid foundations. All the talk of protecting the integrity of the single market also applies to security and justice, and Schengen, of course,” she adds.

Unavoidably, the pressing security issue in the current stage of Brexit negotiations is the Irish border. “Whilst the Border Force will ultimately have responsibility for security for the Irish border after Brexit, it isn’t keen to contribute ideas or resources regarding that at the moment. There are, of course, huge questions around how all of that can be managed and resourced,” she warns. “We recall the borders of ‘the Troubles’ and take lessons from how we approached that issue in what were often very localised and complex situations. It has taken a long time to achieve stability on the Irish border and we do risk abandoning that progress.

“The UK is leaving to take back control of its borders, and in doing so it itself seems to be becoming a border risk to the EU,” concludes Hayward.

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