The EU’s approach to a post-Brexit security partnership with the UK is intended to address common concerns, such as the fight against terrorism and the spread of cross-border organised crime. A continuing mutual interest in enhanced operational co-operation in internal security and cross-border law enforcement, means that separate EU-UK agreements will need to be developed.
The permanent terrorist threat, and the EU’s co-operative efforts in counterterrorism and fighting other forms of trans-national organised crime were not sufficiently solid arguments to persuade the UK to remain in the EU. This may reflect public confidence that Britain’s main security institutions – the Security Service (MI5), the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ) – are capable enough and will be able to continue their professional co-operation with agencies worldwide to preserve the UK’s national security interests after the conclusion of Brexit.
Shaping Post-Brexit Arrangements
It would be short-sighted, however, to think that the decision to leave without agreements on the future EU-UK relationship will not have implications for UK security. Brexit means that the UK will no longer have a vote in the EU’s judicial decision-making institutions, agencies, and co-operation mechanisms.
The difficulties of building a suitable post-Brexit model arise from legal developments in co-operation in justice and home affairs in the EU. Since the abandonment of the pillar structure, the legal framework for this domain has shifted towards more supranational competencies. Existing EU legal instruments for the exchange of information and data protection, co-operation, and joint operational activities between the member states and EU bodies are substantially different from those that apply to third countries, limiting the EU’s options in negotiating post-Brexit arrangements with the UK. In addition, EU strategic guidelines and, above all, operational challenges demand functional continuity in these arrangements.
Data Exchange is the Key Issue
The Withdrawal Agreement reflected the UK’s reluctance to agree to supranational oversight by the European Court of Justice (CJEU) in matters of fundamental rights and the protection of personal data. The UK will thus no longer be bound by the EU Charter of Fundamental Rights after the Brexit transition period, posing substantial obstacles to future agreements on judicial co-operation in cross-border policing and trans-national criminal investigations.
The main difficulty is that tight functional inter-dependency in cross-border security cooperation – especially on counterterrorism and related intelligence sharing – is particularly important for operational continuity, and for building further co-operation between the UK and EU. However, as the EU insists that its data protection laws, which fall under the jurisdiction of the CJEU, must be respected, UK and EU internal security agencies will be more limited in their intelligence exchanges, in developing common standards, and in participating in Joint Investigation Teams and cross-border operations.
It is thus likely that the UK will seek closer bilateral co-operation ties with its traditional partners in the security domain, and potentially also with new ones.
The commentary is based on the peer-reviewed research article, published in the Romanian Journal of European Affairs.