Exiting the EU and security, law enforcement and criminal justice

EU law on criminal justice and policing cooperation can be divided into the following areas: a) The substantive criminal law (how criminal offences are defined); b) Criminal procedure; c) Mutual recognition of criminal decisions; d) Participation in EU agencies; and e) Information sharing. The UK currently has an arrangement whereby it can choose which laws it wishes to adopt, and opt out of others. The UK has chosen to opt in to relatively few EU laws aimed at harmonising the substantive criminal law and criminal procedure, and those it has chosen to adopt essentially affect domestic law. As such, they would not necessarily need to be altered as a result of the UK’s withdrawal from the EU. By contrast, the UK has been a more enthusiastic participant in measures concerning mutual recognition of decisions; information sharing; and participation in EU agencies. These measures depend on cooperation between Member States. Therefore, alternative arrangements would have to be put in place of existing measures if the UK wished to maintain similar levels of cooperation. The Government has consistently stated that it will seek to maintain close ties with the EU in the area of criminal justice and law enforcement. In a statement on 10 October, David Davis told the House that one of the Government’s four aims for the Brexit negotiations is to “keep our justice and security arrangements at least as strong as they are.” However, others have questioned whether it will be possible to replicate existing arrangements from outside the EU. Third countries do not currently enjoy the same access to Europol databases as EU Member States, although countries such as the US, Canada and Australia have “operational agreements” to enable them to exchange certain types of data and participate in joint operations.