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A minimalist approach? Why the EU-UK security negotiations should be prioritising human rights protections

admin - September 20, 2018 - Brexit

This post is part of Fair Trials' expert blog series on Brexit, where members of Fair Trials' Legal Expert Advisory Panel highlight key human rights issues raised by Brexit. 

Prof Dimitrios Giannoulopoulos is the founding chair of the law programme at Goldsmiths, University of London, and the founder and director of the Britain in Europe thinktank and Knowing Our Rights research project


The UK and the EU are strongly committed to continuing security cooperation in criminal justice matters after the UK withdraws from the EU, but diverge as to its nature and scope. The UK would wish to strike a new security deal with the EU, allowing it to sustain cooperation on the basis of existing EU measures. But this ambition does not square with the EU position that the UK will be a ‘third country outside Schengen’ after Brexit, and that, as such, it will not be able to maintain the status quo. This is reserved for member states fully complying with the EU acquis and subscribing to ‘mutual trust’ and the ‘mutual recognition’ principle.[1] As Michel Barnier said at his address to the plenary session of the European Parliament in March 2018, ‘it is not possible - it will not be possible - to ask from the outside for mutual recognition of rules and standards, as that can only be based on trust, meaning common laws, joined-up oversight and a single jurisdiction’. He was equally categorical when speaking before the EU Agency for Fundamental Rights in June, explaining that ‘mutual trust’ and the EAW depended on the free movement of people, CJEU jurisdiction and subscribing to the EU Charter of Fundamental Rights, and the UK was no longer ready to accept any of those.

Put simply, the EU could not have signalled more strongly that the UK will not be able to continue with current arrangements post Brexit, including the all-important EAW, particularly since there is no presumption of ‘mutual trust’ applying to a country outside of the EU. Equally importantly, it can be deduced from the above that to retain any fast-track system of extradition, as a sound alternative to the EAW, the UK will have to subscribe to key principles dictating how the latter operates. As Mitsilegas puts it, ‘the UK’s willingness to continue to reap the security benefits of EU co-operation after Brexit can be accommodated only if the UK complies fully with the EU acquis, including the acquis on the protection of fundamental rights’.[2]

The question that subsequently arises is what form adherence to human rights standards would take in this context, how it could be effectively monitored and what consequences might derive from potential, future, UK-EU human rights discordance. Here we can envisage a ‘maximalist’ and ‘minimalist’ approach to giving effect to human rights in the post-Brexit cooperation landscape, and the negotiating parties seem to have settled for the latter. The slides published on 18 June 2018 by the European Commission offer a good illustration. They provide for the following human rights safeguards as a precondition for a new security agreement, namely that the UK remains a party to the European Convention on Human Rights, and that there should be, in the future security agreement, a ‘guillotine clause’, if the UK leaves the Convention or is condemned by the European Court of Human Rights for non-execution of an ECtHR judgment in the relevant area. The addition of an ECHR ‘guillotine clause’ sends a strong message to the UK about the approach it has taken on the Convention in recent years and goes in the right direction, of making rights central to the future security agreement. But it should not be the sole backstop here; to set it as such is to disregard the ever growing EU legislation on procedural rights that runs parallel to ECHR jurisprudence. A higher threshold can thus be set – a maximalist approach adopted – if the security agreement also contains EU legislation on procedural rights and applies the ‘guillotine clause’ equally to them, including where the UK has previously not opted into the relevant procedural rights directives.[3]

Such an approach is needed for the simple, intuitive, reason I’ve alluded to above, that fair trial rights are central to an ecosystem of guarantees that apply to the EAW, and that they therefore no longer develop and are no longer interpreted solely as a result of the ECHR. Starting in 2010, the EU has adopted a number of far reaching directives, on the premise of the Stockholm programme’s idea of ‘a Europe built on fundamental rights’,[4] to provide enhanced protection of, and harmonic convergence on, the right to interpretation and translation, the right to information, the right to access to a lawyer in criminal proceedings, the rights of children suspected or accused in criminal proceedings, the presumption of innocence and the right to legal aid. These directives are already having a significant, if variable, impact in domestic criminal procedure systems in Europe. To define UK alignment with European fundamental rights exclusively with reference to the ECHR is to take the law on the right to fair trial –  as a potential benchmark for future criminal justice cooperation – back to an era where these influences did not exist. EU law in this area now affords the right to fair trial an extra layer of protection.

I must add that the European Court of Human Rights itself now increasingly takes into account the EU procedural rights directives when pondering on the demands of article 6 of the Convention (Vizgirda v Slovenia, on the right to interpretation, is the latest example). This means that the UK’s future adherence to article 6, including in relation to the security ‘guillotine clause’, could, quite ironically, de facto include giving consideration to compliance with the EU directives (as part of a more widely interpreted article 6). If we accept that this is the case, then we must also accept that it would be in the UK’s and EU’s interest to include the EU directives in the future security agreement (rather than risk having the UK found to be adopting procedural practice that would be out of tune with article 6 later on).

The above also lead to the wider question of the approximation of UK and European criminal procedure after Brexit. A security agreement that would include the EU Directives as a benchmark for the respect of procedural rights would facilitate better alignment in the future. The Directives are fast emerging as a driving force for convergence in this area in EU member states. Unless the UK applies itself to them, it is unlikely it will remain aligned to European standards for long, losing the ability for, and benefit of, close cooperation.

But the key normative line of argumentation for adopting a maximalist approach to rights protection should not escape our attention. If the UK and the EU are serious about making procedural rights an axis for criminal justice cooperation in the future, to include the EU procedural rights directives in the security agreement would be the logical way forward. These directives have been inspired by, and take as their starting point, ECHR jurisprudence, but aim to provide wider protection with regards to key aspects of the right to fair trial; the right to legal assistance and the presumption of innocence provide key illustrations.

We must confront, however, the normative with the pragmatic. Rights, in the maximalist way that I describe them here, have so far received little attention in the negotiations. Adamant to agree on security, the negotiating parties seem to have settled for a lower, and more abstract, threshold of protection. It is perhaps unrealistic to expect they will change tack now, particularly when adopting new directives would have consequences for the UK in terms of legislation and long-standing procedural practice. Nevertheless, if the UK is unwilling to face those consequences now, it may still find itself facing them in the future if the UK’s minimalist approach ultimately falls out of step with EU minimum standards.

 

[1] See generally Centre for European Policy Studies, Criminal Justice and Police Cooperation Between the EU and the UK after Brexit (Brussels, CEPS, 2018).

[2] V Mitsilegas, ‘European Criminal Law After Brexit’ (2017) 28 Criminal Law Forum 219, 249.

[3] See also House of Lords European Union Committee, Brexit: the proposed UK-EU security treaty (HL Paper164, 11 July 2018) 43, citing oral evidence from George Wilson, EU Law and Policy Specialist at Liberty.

[4] Council of Europe, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, 2 December 2009, 17024/09.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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