Abstract
The victory for the ‘Brexit’ vote in the referendum last June has sent shockwaves around Europe. The initial shock has given way for some to the realisation of the legal and constitutional complexity of untangling the UK’s relationship with the EU and re-engineering this relationship for a post-Brexit era, an era when the UK will be a third country for the EU. The legal challenges underpinning the reconfiguration of the UK’s relationship with the EU are manifold, and, in many areas of EU law, they are interwoven with a series of practical and operational challenges. One of these areas is European criminal law, where post-Brexit complexity is compounded by ongoing constitutional complexity underpinning the UK’s participation in the EU acquis while remaining an EU member state. Taking into account these complexities, this article will attempt to assess the future of European criminal law after Brexit. In order to do so, the article will focus on four main questions: what are the current constitutional complexities in the UK’s participation in European criminal law (Sections I–III)? What will be the impact of Brexit on domestic criminal law and security in the UK (Section IV)? What are the possible legal avenues for EU-UK post-Brexit co-operation in the field of criminal law (Section V)? And what, if any, will be the impact of Brexit on the shaping and development of European criminal law in the future (Section VI)? By way of conclusion (Section VII), the article will attempt to synthesise the threads and common themes arising from the preceding sections, by emphasising the continuum of legal complexity from pre-to post-Brexit developments and casting light on the paradox of the UK’s position after Brexit: if the UK wishes to continue participating in EU criminal law instruments and mechanisms, or to develop equivalent mechanisms of co-operation, the UK will have to comply with more EU instruments as a non-EU country compared to those it is bound by under its current status as an EU member state – ironically, ongoing links with the EU post-Brexit will spell the end of the UK’s current ‘pick-and-choose’ approach to European integration in criminal matters.
Highlights
THE CURRENT CONSTITUTIONAL POSITIONThe entry into force of the Lisbon Treaty has led to efforts by the UK to extend the pre-Lisbon provisions enabling UK Ôopt-outs’ in the field of EU migration law to the field of EU criminal law adopted after the entry into force of the Lisbon Treaty
The victory for the ÔBrexit’ vote in the referendum last June has sent shockwaves around Europe
The entry into force of the Lisbon Treaty has led to efforts by the UK to extend the pre-Lisbon provisions enabling UK Ôopt-outs’ in the field of EU migration law to the field of EU criminal law adopted after the entry into force of the Lisbon Treaty
Summary
The entry into force of the Lisbon Treaty has led to efforts by the UK to extend the pre-Lisbon provisions enabling UK Ôopt-outs’ in the field of EU migration law to the field of EU criminal law adopted after the entry into force of the Lisbon Treaty. Fact that the Directive introduces minimum standards which would arguably lead to minimum – if any – legislative changes to domestic criminal procedure.[11] non-participation may be explained by the Government’s reluctance to participate in a constitutionalised post-Lisbon framework where institutions such as the Commission and the Court of Justice (‘‘CJEU’’) would have a say in evaluating the domestic implementation and proceeding to the interpretation of the terms of the Directive.[12] Governmental concerns over the impact of participation in post-Lisbon EU criminal law in terms of the impact on domestic law in the light of judicial scrutiny by the CJEU explains the latest tendency by the UK Government not to opt into the text of the Commission proposals, but rather to try to influence – to the extent possible – negotiations and opt in post-adoption if the adopted measure appears to be acceptable to the UK This is the strategy that the UK has followed in relation to measures including the Directive on Trafficking in Human Beings[13] to which the UK has opted in post-adoption.[14] This Ôwait and see’ strategy is increasingly coupled with a strategy attempting to broaden the field of the measures where the UK Ôopt-out’ applies. See () Parliamentary Under Secretary of State for Security (James Brokenshire), written statement to Parliament – government will conduct a thorough review of the final agreed text to inform active consideration of opting into the Eurojust Regulation post adoption: https://www.gov.uk/government/speeches/european-commissionsproposals-on-eurojust-and-the-european-public-prosecutors-office, last visited on 23 March 2017
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