Negotiations on a free trade agreement following the end of the transition period on December 31 have hit repeated stumbling blocks, with London and Brussels remaining a significant distance apart on a number of red lines, including fishing rights, the level playing field, financial services and state aid. But one other area the UK has been urged to come to an agreement on is what kind of cooperation the two sides are going to have on security issues from January 1, 2021. The relationship on this issue will likely be significantly scaled down as part of any trade deal, but former European Commissioner for the Security Union Sir Julian King claimed an agreement on security “would be in both sides’ interests”.
He said the UK would have a lot to offer and gain on this, from continued cooperation with law enforcement and security authorities across the remaining 27 EU member states.
But in a blog for the UK in a Changing Europe think tank, the expert warned: “Failure to find agreement will only help those who wish us – UK and EU – harm.”
Sir Julian outlined three hurdles that need to be overcome: how to protect Fundamental Rights, the role of the European court of Justice (ECJ); and ensuring data protection.
He warned: “Managing these hurdles isn’t easy, but it can be done.
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“The EU sought to make these issues preconditions for cooperation in this area, which hasn’t always been the case with other third countries.
“The UK argued the different areas of practical cooperation on security – law enforcement agencies, data bases, individual pieces of legislation – should be considered on their merits.
“In practice the two sides need to advance in parallel to find a balanced way forward on these cross cutting issues, which matches the level of practical cooperation envisaged.”
Sir Julian said the EU appears to have softened its stance on Fundamental Rights after wanting an agreement on exactly how these values would be respected in UK law, “again going beyond what’s been done with other third countries”.
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He explained how UK and EU negotiators could come to a compromise on this, and said: “Both sides can set out their expectation that the other will uphold Fundamental Rights, while respecting the independence of the different legal systems, by making it a condition of continued cooperation.
“This is an example where a break clause – creating the possibility for either side to suspend security cooperation – could work.”
The role of the ECJ has also been a big sticking point in the trade talks, but Sir Julian said Michel Barnier has recognised the UK’s Government the ECJ writ should not run in Britain after the transition period ends.
He added: “This sets the framework of any future security cooperation: it need not block agreement, but it will necessarily limit what is possible, over access to law enforcement data bases for example.”
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On data protection, the former European Commissioner for the Security Union warned this is a “big issue”, so much so that a “solution will have to be found”.
He said: “This doesn’t mean that it will be easy: various ECJ judgements continue to raise the bar not only around what constitutes effectively equivalent data protection in third countries, but also around the constraints on law enforcement activity in the EU – to the point that law enforcement and security agencies across the EU are increasingly frustrated, and starting to question how to strike the right balance.
“None of which is going to be sorted out by the end of 2020. As far as UK/EU cooperation is concerned, at least in the short to medium term, the two sides need to focus on the starting point: the UK operates the GDPR today as effectively as other member states, and the UK protections around law enforcement and security activity in particular are, in my view, at least as effective as in other member states.
“If these issues can be managed, what kind of practical security cooperation might be possible? It will necessarily be much thinner than the cooperation that has built up over recent years.”
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He also warned for key law enforcement agencies such as Europol and Eurojust, “the UK will go from playing a leading role to being on the outside”, but said there are third-party partnerships that can be developed to “maintain as much of the practical investigative and operational cooperation as possible”.
Sir Julian points towards the agreement with Norwary and Iceland, which relies on political dispute settlements rather than arbitration from the ECJ, but warned following this approach would make “extradition more political and less automatic” than it already is.
The security expert also warned for key law enforcement databases that have been central to reinforcing police cooperation across Europe, “constraints on the role of the ECJ will limit how far the UK can work with such data bases in future”.
He said: “If the two sides (UK and EU) find a way forward on future UK/EU relations, it needs to cover security cooperation.
“Those seeking to cause us harm aren’t going away. Make no mistake, they are watching, looking for new opportunities if old friends fall out with each other. We shouldn’t give them that satisfaction.”