The EU Home Affairs Sub-Committee has today published its report Brexit: judicial oversight of the European Arrest Warrant. The Committee warns that any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK.
The Government's intention is to remove the UK entirely from the jurisdiction of the European Court of Justice (CJEU), which performs oversight of the EAW. The Committee heard evidence that it does not seem at all clear how the UK will remain part of EAW arrangements if it is outside the European Union, with no jurisdiction for the CJEU.
The most promising avenue for the Government to pursue could be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW's provisions as far as possible. This arrangement contains provisions for a political dispute resolution mechanism, which would be compatible with the Government's desire for a similar mechanism as it seeks to replace the Court of Justice. However, this agreement has taken years to negotiate and still has not come into effect.
The Committee heard evidence that a "phased process of implementation", which the Government says it wants, is likely to mean accepting, at least in part, the jurisdiction of the CJEU. However, a transitional arrangement might be difficult to secure if the UK has left the EU and withdrawn from other EU related arrangements such as the Charter of Fundamental Rights, EU data protection laws, and laws on EU citizenship, leaving the prospect of a cliff-edge scenario.
If the UK fails to secure new extradition arrangements with the EU, the 'default' outcome would be to revert to the 1957 Council of Europe Convention on Extradition as the legal basis for extradition. The Committee heard evidence that this would be counterproductive and inefficient, and not an adequate substitute.
Lord Jay, Chairman of the Committee, said:
“Since its introduction, the UK has used the European Arrest Warrant to achieve the extradition of 1000 individuals back to this country, including several high-profile criminals like Hussain Osman, who attempted to carry out a terror attack on the London Underground in 2005.
“Less than three years ago, Theresa May, in her role as Home Secretary, opted to maintain the UK’s involvement in the European Arrest Warrant, thereby accepting the European Court of Justice’s role in overseeing the EAW. She stated that it was in the national interest to retain cooperation with other EU countries in order to keep the British public safe. Now as then, the safety of the people of the UK should be the Government's overriding consideration.
“In March 2017, the Home Secretary, Rt Hon Amber Rudd MP, said that it was a priority for the Government to ensure that we remain part of the EAW arrangement. This is welcome, but it was not clear to the Committee how this objective will be compatible with the Government's plans to remove the jurisdiction of the Court of Justice, let alone other aspects of the UK's withdrawal from the European Union.”