Will the UK lose access to the European Arrest Warrant post-Brexit?

There is hardly any policy area which in one way or another will not be affected by Brexit. While the debate has so far largely focused on the trade implications, more recently it has become clear that finding an agreement on the future security partnership will not be an easier task. Whether the UK will remain a party to the European Arrest Warrant (EAW) is only one question in the debate about future UK-EU security arrangements.

Introduced in 2004 and based on the principle of mutual recognition of judicial decisions across the EU, the EAW allows member states to request the extradition of an individual from another EU country, while imposing strict time limits on the surrender procedures. For a wide range of offences, the EAW eliminates the need for the warrant’s recipient country to recognise the crime on which the individual in question is charged in its domestic policing system. Furthermore, the EAW removes the possibility of rejecting extradition on political grounds.

Only EU member states have access to the EAW. Once outside the EU, the UK is expected to no longer be a party, as EU sources have recently confirmed. Losing access to the EAW system could create some problems. In fact, the implications of Brexit on extraditions are already starting to become apparent: the Irish Supreme Court has recently refused to extradite an individual convicted of tax fraud in the UK on the ground that the latter will have left EU by the end of the man’s sentence, and the UK government has signalled its intention not to apply the EU Charter of Fundamental Rights after Brexit. With future security arrangements still being negotiated, extradition and surrender procedures involving UK citizens and going beyond Brexit are likely to be halted until a deal is found.

The key question that will determine the impact of Brexit on extraditions in the long-term revolves around the prospects of striking a new effective agreement to substitute the EAW. Broadly speaking, the UK is faced with several different possibilities in this respect.

It could fall back on the 1957 European Convention on Extradition, which was in place before the EAW. This could be combined with separate bilateral agreements with specific countries, and be either a permanent arrangement or employed transitionally while something different is agreed. However, a number of member states no longer apply the treaty—as the EAW was supposed to replace it—and may need new legislation to re-implement it. Moreover, the Convention does not follow the principle of mutual recognition and does not allow a time limit for extradition. When Theresa May was Home Secretary, she said the length of the extradition process under the Convention could “undermine public safety.”

Another option would be to follow the example of the EU’s agreement with Norway and Iceland: a deal that provides for close collaboration, but ultimately allows both parties to choose whether or not to extradite their nationals, including on political grounds. The UK government has stressed that replicating this type of arrangement for a future UK-EU relationship would “leave a significant capability gap relative to the EAW once implemented” and will “not be in the interests of either party in bringing criminals and terrorists to justice.” The government is ultimately seeking to agree a new bespoke security arrangement to continue practical cooperation on extradition and minimise changes to the EAW, but it faces several obstacles in this regard.

One comes from the EU’s side, as it remains unclear whether all member states would agree to almost automatically extradite their nationals to a “third country.” On the UK’s Eurosceptic side, the EAW has been criticised for assuming that all member states equally respect human rights and not taking into account the risks of different justice systems, corrupt police and appalling prison conditions. Cases such as the one of Andrew Symeou, a UK citizen extradited to Greece in 2009 and detained in poor conditions before being acquitted, rendered manifest the necessity to strengthen the EAW to protect innocent people. Critics have also mentioned that the Warrant is often used disproportionately for minor offences, which creates a burden for judiciary systems and taxpayers.

Another stumbling block is the question of the future judicial oversight of the agreement. Currently the European Court of Justice (ECJ) has a role in reviewing the application of the EAW and will inevitably influence future UK-EU security arrangements. The UK government has previously made clear that as an independent country, it will not submit to the direct jurisdiction of the ECJ. Commentators have suggested that the agreement could be supervised by a separate EU-UK court for Justice and Home Affairs or by a separate branch of the ECJ with UK judges, with ECJ oversight during the interim period. The EU’s agreement with Norway/Iceland addresses the issue with an independent supervisory “mechanism.” Although it is not yet in place, it could be a solution that is the closest to what Brexiteers are willing to accept.

Tackling the question of extradition as part of the future security partnership between the EU and the UK seems to be a viable and desirable path. Security is not a zero-sum game: both parties find pre-EAW extradition rules unacceptable for security reasons and have an interest in reaching an agreement. The EU has signalled its willingness to conclude a new treaty, although it could be one with more limited scope and which would not apply to all the EU27. However, the details about how a new extradition arrangement will work are likely to differ from the EAW, and clarification on those details, particularly judicial oversight, is urgent. The fact that security arrangements remain a point of disagreement in the draft Withdrawal Agreement is illustrative of the difficulties that reaching a solution in this area could entail.