Post-Brexit security cooperation between the UK and Europe

James Pierson

Senior Researcher, Tactics Institute For Security & Counter Terrorism

In December 2021, Christopher Guest More was convicted, along with 3 others, of killing Brian Waters – more than 18 years after the murder.

More left the country for Spain two days after the killing, later settling in Malta, where he was living under a false name. It was not until 2019 that he was finally arrested and extradited back to the UK.

More was arrested on a European Arrest Warrant (EAW) issued in 2004. Like many legal instruments of the European Union, the UK’s participation in the EAW scheme would cease once Britain had left. To give the UK and the EU time to negotiate alternative arrangements, a transition period ran to 31st December 2020.

Questions arose as to whether More could have escaped justice had he been arrested after Brexit.

There was breathing room for investigations which had already begun. According to the withdrawal agreement, both the EU and UK could continue to use the EAW with respect of each other’s jurisdictions, provided the process was initiated during the transition. In other words, as long as an arrest warrant had been issued before the 31st December 2020, it could still be acted on. Figures aren’t yet available, but it will be interesting to see whether there was a rush of applications for warrants in the lead up to the deadline.

There were some other problems. The Withdrawal Agreement gave member states the right to refuse to surrender their nationals to the UK under the EAW during the transition period. Germany, Austria and Slovenia were amongst those nations which said they would exercise this right. Again, data is yet to become available, but it will be interesting to see how big an issue this proved to be for UK authorities.

Luckily for law and order, a replacement for the EAW was finalised. Contained within the Trade and Cooperation Agreement agreed on Christmas Eve 2020, is Title VII of Part 3. This outlines the surrender arrangements – the language the agreement uses for extradition – and they closely mirror those of the EAW.

As such, things will mostly remain the same, and More would likely have been brought to justice after all.

There are a couple of changes, however. One is proportionality. This can only be a good thing, as there were many stories in the popular press of people being extradited for relatively minor offences. While some of this was undoubtedly tabloid tittle tattle, there was enough smoke to this fire for it to have been of concern.

But a more important difference is a nationality bar. As with the withdrawal agreement, the bar will allow a state to refuse to extradite its citizens. Under those circumstances, the state in question is “obliged” to consider instituting proceedings in their own courts which are commensurate with the charges the suspect is accused of. Whether they do this remains to be seen. It is likely Germany, Austria and Slovenia will continue to exercise their nationality bar, and so in future, should the UK wish to extradite one of their citizens for an offence they’re believed to have committed in the UK, it is likely the request will be denied.

Intelligence sharing is the other major concern about post-Brexit security arrangements between the EU and the UK. These are unlikely to suffer too much, because the EU knows the UK is such an important partner. Unlike EU countries, the UK is part of the “Five Eyes” alliance of the US, Canada, Australia and New Zealand – the UK being the fifth member. While there are limits to what the UK can share with their European partners, the fact is the British intelligence community is a vital link to the power and capability of the United States. And UK intelligence agencies, such as the Secret Intelligence Service – SIS, better known as MI6 – have a global reputation for excellence. Indeed, post-Brexit, British intelligence was keen to assure the world it would be business as usual.

But it’s not all good news. Where problems have arisen, is through loss of access to the Schengen Information System (SIS II). This is a database of alerts about people and stolen items, such as firearms and cars, which the UK authorities have had access to. But now this is no more, and as a result, approximately 40,000 alerts on dangerous criminals and wanted suspects had to be deleted from UK computer systems by the 31st December deadline.

To plug this gap, the UK is relying on Interpol Red Notices. These are alerts put out by the international policing body, which they in turn have received from the state concerned. The Home Office is keen to assure the public that this does the same thing. But it’s not entirely clear that it does. Because if so, what was the point of Schengen in the first place? And why are countries which remain in the EU still using it?

There are some other bodies which are trying to plug the gap, such as the International Crime Coordination Centre, but how successful they are in doing so, is uncertain. The House of Lords EU Security and Justice Sub-Committee has taken issue with Home Office assurances. They warned that post-Brexit arrangements are complex and untested, and that the UK had lost considerable access to EU databases.

This might well be a tragedy waiting to happen, and only when a terrorist or major criminal has slipped through the net to commit an atrocity or other serious crime will the full extent of the danger be known.

And while Britain’s reputation in the sphere of security and intelligence, and its alliance with the US and other anglophone countries, might insulate it somewhat from the impact of Brexit, as far back as 2016 several former intelligence chiefs, most notably Eliza Manningham-Buller and Sir Jonathan Evans, both former heads of MI5, and Sir John Sawers, a former head of MI6, warned Brexit would put the UK’s national security in danger.

Of course, none of this is to suggest that Brexit is an inherently misguided policy. But more should have been done during the transition to iron these issues out. The referendum was in 2016, and these problems were foreseen as far back as then. The government’s failure to heed the warnings appears negligent.

The UK’s defence and intelligence establishment has a hard-earned reputation for professionalism. It’s difficult not to conclude their political masters hope their skill and ability will paper the cracks. Should the worst happen, this will prove an unforgivable dereliction of political duty.

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