BSQ Election Briefing – Will BREXIT mean the end of the EAW?

If the opinion pollsters are right there will be a Tory landslide at the impending General election. But, as we await publication of the party’s election manifesto, what position will a new Conservative administration take on the EAW with BREXIT looming? BSQ partner Roger J Sahota considers the implications for Britain’s continued membership of the EAW after June 8th 2017.  

Tory divisions over the EAW system run deep and generally follow the BREXIT fault line. Brexiteers object in principle to the notion of a harmonised single market. They are also up in arms about the Europeans Council’s concomitant ambition of creating an “area of freedom, security and justice without frontiers.” The principle of “mutual recognition” i.e. that EU members should recognise the decisions of each other’s courts gives life to this notion and underpins the EAW.

Mutual recognition in practice means that UK courts have very limited scope to refuse an EAW request. They for example are not entitled to examine the evidence supporting a request which is one of the main bones of contention for the Tory right.  David Davis, now the Minister for BREXIT summed up the Eurosceptic response when he said that “there were some countries like Romania that just do not uphold the same standards of justice that we take for granted in the UK.”

Believing there is no implied parity of justice across the EU, BREXIT campaigners call for UK courts to have greater flexibility to refuse to extradite to countries where fundamental rights cannot be guaranteed than the present law allows. They cite evidence of a lack of judicial transparency or independence or doubts over the right to call evidence in many EU countries.  

They also complain that the new EAW system removed many of the safeguards under the old law before the Extradition Act 2003. No longer is the requesting state required to produce the evidence on which an arrest warrant had been based. Whether the evidence presented is insufficient to prosecute by our standards is now irrelevant.  Avenues for an appeal were also very much reduced.

As for the Government’s position on remaining within the EAW framework, Britain reaffirmed it’s commitment to it under the Coalition Government in 2014. After much controversy, the UK completed the process of having opted out of EU criminal law measures adopted before the entry into force of the Treaty of Lisbon, before opting back in to some of them including the EAW (see BSQ Briefing)

Now, our continued participation in the system will soon be up for grabs. Negotiations over BREXIT are bound to include talks that will determine how Britain and the EU will co-operate on justice and security issues.   

Interestingly, Home Secretary Amber Rudd seemed to suggest some ambivalence in the Government’s commitment to the EAW recently. In an EAW debate in the House of Commons she said that the Government wanted to secure a system that was “as effective” as the EAW post Brexit.

That door seemed to close on the 6th March 2017 however when Rudd then confirmed in another parliamentary debate that it was a British priority to remain in the EAW system.

Noting that it was the then Home Secretary Theresa May that fought to retain the EAW at the time of the Lisbon Treaty opt out in 2014, anti-EAW campaigners may well be dissapointed when the Tories confirms their stance on the issue. Retaining the EAW is likely to be a central plank of the Government’s post BREXIT settlement.