Was the UK’s position on extradition and national security at its strongest whilst a member of the EU?

Following its departure from the European Union on 31 January 2020, the UK is now more than two months into an 11 month transition period during which it must agree the terms of its arrangement with the EU going forward. With priority fixed on negotiating an EU trade deal, the future of the UK’s extradition arrangements, and the ability to prevent the UK becoming a ‘safe-haven’ for wanted persons, is uncertain. Nevertheless, when the topic of extradition is brought to the negotiation table, the question remains whether the government can secure the UK a better, or even equal, position on extradition and public safety than it had whilst as an EU member state.

The UK’s legal framework for extradition

Historically, the UK’s extradition arrangements with EU member states were set out in the European Convention on Extradition 1957 (the 1957 Convention). Built upon pillars of mutual recognition and governmental co-operation, the 1957 Convention relied on government bodies in each signatory state to work together in implementing the Convention’s extradition rules. This reliance on government institutions flooded the extradition process with considerable diplomatic bureaucracy and made it very costly and timely. To resolve these issues, the European Council issued its Framework Decision 2002 / 584 / JHA (the Framework Decision), which the UK implemented into domestic law through the Extradition Act 2003 (the EA 2003).

The principal change introduced by the EA 2003 was the European Arrest Warrant (EAW) regime, which sought to further harmonise the extradition rules and provide a cost effective and timely means of extraditing individuals between member states. The EAW regime took the power given to governmental departments under the 1957 Convention and placed it in the hands of judicial authorities, removing political bureaucracy and dealing with extradition requests within a shorter timeframe.

The EAW has proven an effective tool for UK and EU law enforcement, with over 105,000 EAW requests being made to the UK since 2009. This has resulted in approximately 15,000 arrests with over almost 11,000 wanted persons being extradited to other EU member states. In return, over 1,000 people have been extradited to the UK from other member states.

In addition to the EAW, the UK benefits from other international crime fighting tools by virtue of its EU membership. These include:

• the Schengen Information System (SIS II) – the largest information sharing system for public security in Europe which facilitates information exchanges between national border control, customs and police authorities throughout Europe ensuring that the free movement of people within the EU can take place in a safe environment; and
• the European Police Office (Europol) and its associated databases – the EU’s law enforcement agency, whose role is to help keep Europe safe by assisting law enforcement authorities in the EU member countries. Europol offers support for law enforcement operations on the ground, provides a hub for information on criminal activities and a centre of law enforcement expertise.

Together, the EAW, SIS II and Europol provide valuable tools to the UK to help fight cross-border crime and to ensure the safety and security of itself and its neighbours.

The effect of Brexit on the UK’s extradition framework

The UK retains the benefits of the EAW regime, SIS II and Europol until 31 December 2020, after which it will need to rely on any agreements negotiated during the transition period or, failing that, prepare to deal with each EU member state on a piecemeal basis.

The UK government has made clear that the EAW regime will not be retained following the end of the transition period, at which point the UK will also lose access to SIS II and Europol. Whilst losing these pivotal crime fighting tools places UK national security under threat, the government have promised new arrangements which will provide even greater safeguards for the UK public. Whilst no further details on these arrangements have been provided, a number possibilities are suggested and explored below.

Possible arrangements following the end of the transition period

Negotiate nothing, revert back to the 1957 Convention and amend the EA 2003

A possible option is for the UK to revert back to its extradition obligations under the 1957 Convention by incorporating it into UK law by amending the EA 2003.

The 1957 Convention was previously enshrined in UK law by the Extradition Act 1989, which was subsequently superseded by the EA 2003 which introduced:

• the EAW regime for Part 1 Territories as designated by the Home Secretary, namely the EU member states and Gibraltar; and
• separate extradition arrangements with Part 2 Territories, which comprise those signatories to the 1957 Convention which are not Part 1 Territories.

If the UK, as the government intends, departs from the EAW regime, Part 1 of the EA 2003 will fall away. Therefore, in order to revert back to the 1957 Convention, the Home Secretary will need to issue an Order designating all EU member states that are signatories to the 1957 Convention as Part 2 territories under the EA 2003.

This is not a desirable option as the 1957 Convention is no longer fit for purpose and would impose an archaic framework which, not surprisingly for a piece of legislation which is over 60 years old, is outdated. For example, Article 11 relates to extradition for capital punishment offences which is no longer relevant as all EU member states have long since banned capital punishment.

More importantly, the extradition process under the 1957 Convention is cumbersome, timely, cost-ineffective and submerged with diplomatic bureaucracy. To revert back to this would place the UK in an undoubtedly worse position when compared to that it enjoyed prior to leaving the EU, and would constitute a step-backwards in dealing with extradition in a timely and costly manner. Romania and Poland currently rely on the 1957 Convention for their extradition obligations with countries outside of the EU, and often endure diplomatic processes of up to 12 months before reaching resolution.

Further, some EU member states, such as Germany and the Netherlands, no longer recognise the 1957 Convention and consider it to have been superseded by the 2002 Framework Decision. As such, the UK could not rely on its obligations under the 1957 Convention and would need to negotiate separate extradition agreements with each of these states or with the EU as a whole (discussed at option 2 below).

It therefore appears unlikely that this option would, as the government advocates, lead to greater safeguards and security for the UK public when compared to the crime fighting tools at the UK’s disposal prior to leaving the EU.

Negotiate a separate extradition agreement with the EU like Norway and Iceland

Another option for the UK is an arrangement with the EU similar to that of Norway and Iceland who, together, have an arrangement with the EU that allows them to benefit from the EAW regime, SIS II and Europol.

A difficulty here is that the UK only has nine months to negotiate, draft and ratify an extradition agreement with the EU before the end of the transition period. It took Norway and Iceland 13 years to negotiate its extradition agreement with the EU and it is still not fully ratified. It therefore appears extremely optimistic that the UK could achieve a separate extradition agreement prior to the end of the transition period, alongside negotiating an EU trade deal, thus placing the extradition process and security of the UK public at risk.

Further, the UK government’s announced intention to repeal the Human Rights Act 1998 (HRA), which implements the European Convention on Human Rights (ECHR) into UK domestic law, may obstruct any possible extradition agreement between the UK and EU. The agreement between Norway, Iceland and the EU specifically references Norway and Iceland’s ascension to the ECHR and emphasises the presumptions of mutual legal assistance and co-operation between the states. The UK’s intention to repeal the HRA arguably rebuts these presumptions and would make negotiations with the EU difficult. As such, this option might only be a realistic possibility if the UK was open to retaining the HRA and ECHR.

Concluding remarks

Whilst the UK’s access to the EAW regime, SIS II and Europol are secure until the end of the transition period, it is clear that there is a real risk of the UK being in a weaker position on extradition, national security and public safety after 31 December 2020. The UK’s lucrative access to different international crime fighting tools afforded by its EU membership has arguably been forgotten by the UK government and, as such, the UK’s hope for securing a stronger or equal position on extradition and national security after the transition period seems unachievable.