Justice co-operation post-Brexit must be on different basis: Barnier

Co-operation between the Uk and the remaining EU member states post-Brexit will have to be on a different basis than at present, the EU's chief negotiator Michel Barnier said in a speech today.

Speaking at the European Union Agency for Fundamental Rights in Vienna today, M Barnier said that having decided to leave the EU, its institutions, structures and safeguards, the UK would be a third country outside the Schengen area and outside the EU's legal order. "This is a fact. Facts have consequences."

While the UK's recent paper on security, law enforcement and criminal justice expressed a desire to keep the benefits of EU membership, the present level of co-operation, which was "both unique and unprecedented" in the world, was made possible by the trust between member states, which was founded on an "ecosystem" based on common rules and safeguards, shared decisions, joint supervision and implementation and a common Court of Justice.

He continued: "If you leave this 'ecosystem', you lose the benefits of this cooperation. You are a third country because you have decided to be so. And you need to build a new relationship.

"To negotiate an ambitious new relationship with the UK, which we all want, we need more realism on what is possible and what is not when a country is outside of the EU's area of justice, freedom and security and outside of Schengen."

The EU had put forward proposals based on the security interests of the EU27 and which also fully respected "the sovereign choices made by the UK".

For effective exchange of information, there was a need to set up streamlined and simplified bilateral exchanges between authorities such as Europol and Eurojust on terrorism and serious cross-border criminality. The UK would be invited to send its liaison prosecutor and liaison officers to these agencies, and EU liaison officers would be stationed in the UK. Information in passenger name records would also be exchanged with the UK authorities. "But let's be clear: based on the UK's positions, our cooperation will need to be organised differently. It will rely on effective and reciprocal exchanges, but not on access to EU-only or Schengen-only databases."

As regards operational cooperation, UK authorities should be able to participate in Europol analysis projects dealing with live investigations, but the UK would not be in a position to shape the strategic direction of EU agencies: "European Council guidelines require us to preserve the autonomy of the EU's decision-making process." And UK representatives would no longer take part in meetings of Europol and Eurojust management boards. 

With judicial cooperation, the EU was ready to facilitate cooperation and "find solutions for effective assistance in judicial cases and evidence sharing between the EU27 and the UK", for which Eurojust would be helpful. But the European arrest warrant was linked to the free movement of people and was underpinned by the concept of EU citizenship, and shared respect for fundamental rights as set out in the Charter of Fundamental Rights – rejected by the House of Commons in debating amendments to the EU Withdrawal Bill. "This means that the UK cannot take part in the European arrest warrant," though streamlined procedures including time limits could be agreed.

Finally, as regards money laundering and terrorism financing, "Together we must ensure transparency on the beneficial owners of companies and trusts."

M Barnier added: "While we are constrained by the UK's red lines, it is a fair offer. It reflects our strong commitment to address our common challenges... If we want to build a new relationship, we need a basis of good will and confidence. We also need more realism about what is and what is not possible."

Turning to the area of freedom and security, M Barnier said these were two sides of the same coin. "A comprehensive future partnership requires a common commitment to human rights and confidence that the other party will respect them." The EU expected the UK to maintain its commitment to the European Convention on Human Rights, and for its data protection standards to remain in line with the EU's: there was "no possibility" for compromise as respects the latter.

"You cannot expect member states to continue cooperating with the UK without these safeguards", he declared. "These are not bureaucratic issues; this is about the lives and liberties of our citizens."

Click here to view the full speech.