Expert Opinion

International intelligence exchange

In this blog post, Dr Simon Hale-Ross from Leeds Law School at Leeds Beckett, reacts to Prime Minister Theresa May’s Brexit speech made recently in Florence, with a focus on international intelligence exchange.

Admittedly, overall Prime Minister May seemed marginally more practical and reasonable with regards to the UK’s exit from the European Union (EU), due to take place in March 2019. In Florence on the 22nd September 2017, the PM sounded more positive than she has been previously, particularly since altering her stance on the UK’s continued EU membership when she became PM in July 2016.  Whilst the ‘clock is ticking’ with regards the Article 50 Treaty of Lisbon 2007 timescales, it would now appear the UK will remain a member of the EU, the single market and the customs union for an additional two years, allowing the UK and the EU to transition with greater ease. This put us closer to a potential 2021 final withdrawal from the EU, just in time for the next UK general election.

In a constructive sense we are starting to see what an external agreement between the UK and the EU might look like. The Court of Justice of the European Union (CJEU) will still play a prominent role in terms of protecting EU citizens who remain within the UK, post the UK’s exit. This is not surprising given the EU is unlikely to move on this protective constituent, given that the Charter of Fundamental Rights of the EU 2000 (CFR) proffers human rights and civil liberties protections beyond that of the European Convention on Human Rights 1950 (ECHR). Rather risibly MP David Davis, prior to becoming the Secretary of State for Exiting the EU in 2016, argued this point in R (on the application of David David MP, Tom Watson MP, Peter Brice and Geoffrey Lewis v The Secretary of State for the Home Department ([2015] EWHC 2092, [44]-[46]), where he challenged the UK Government’s enactment of the Data Retention and Investigatory Powers Act 2014 (DRIPA). This was an emergency piece of legislation that passed through Parliament within four days, allowing for the retention of electronic communications data for the whole UK population for twelve months, a provision that had been neutered by an earlier CJEU decision.

Whilst it is welcoming to see the PM recognise EU Treaty Rights, the prevalence of the CJEU would appear to end there, as the PM appears to be advocating for an alternative type of external adjudicator, to govern over any possible future trading agreement with the EU. Put simply, a member state cannot leave the EU and have trading relationships remain the same, and as a new third country, the UK must agree upon a new deal. It would be better and much more efficient to have the CJEU remain the adjudicator, however, one can appreciate the point that it is preferable to have entirely independent judicial review.

A similar story exists in relation to the border between the Republic of Ireland and Northern Ireland, where the PM simply could not say anything of note, or of any sense on the matter. This is because there is currently no solution. You cannot be a third country and control the border with an EU member state, without some form of border control in place. International security is just as important, if not more than that of national security. Which brings me on to the next topic, international intelligence exchange and UK security.

The EU has been a driving force in the EU’s Area of Freedom, Security and Justice (AFSJ) construction. Since the terrorist attack on the US in 2001, the EU has become increasingly active on the world stage focused on creating and maintaining internal and external intelligence exchange structures, with particular focus on precautionary counterterrorism measures and policy. The EU has also sort to harmonise Member States national legislation, as well as coordinating policies and offering support for operational work, usually through Europol. This relationship has resulted in a move from convergence to a deeply integrated legal counterterrorism arrangement between the EU Member States. The EU has focused on four difference areas of convergence; political-strategic, organisational, procedural and legal. Within the legal spectrum the EU has pushed to integrate objectives by developing internationalised regulatory mechanisms and dividing the focal points into four subdivisions namely preparation and response, prevention, protection, and prosecution.

This means that international intelligence exchange and international cooperation should remain the same post the UK’s exit because the UK is deeply integrated within these structures. It is also pertinent to note that UK personnel and law enforcement have been, and remain instrumental to Europol’s operational abilities. Welsh born Rob Wainwright remains the Executive Director of Europol for example, and has repeated called for the UK Government to work vigorously in maintaining current cooperative and intelligence capabilities. The PM, having been UK Home Secretary for a number of years appears to appreciate the importance of this, given her commitment to seek a comprehensive agreement of policing and judicial cooperation, and on European defence where she seems to have gone further promising to co-finance projects.

Moving onto budgetary issues, this may be one on the first stumbling blocks obstructing a successful agreement between the UK and the EU, particularly with regards to trade and services. Although the Foreign Secretary MP Boris Johnson has suggested the EU ‘can go whistle’ in terms of continuing to pay into the EU for some time after the UK’s proposed exit, the PM appears to have least recognised that the UK has many responsibilities it cannot simply shirk for the politics of the time.

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