For all the talk during the referendum campaign of the risk of Brexit to UK-EU police and intelligence cooperation, the issue now seems to have drifted from the headlines. But now Britain has voted to leave, what will be the real damage?

After the Lisbon Treaty came into force in December 2009, there was a four-and-a-half year period during which member states could announce a blanket opt-out from all former “third pillar” measures (covering police and judicial cooperation in criminal matters). Member states could then, at any time, subsequently re-join and participate in chosen measures. The UK did just this, opting back into 35 of the 130 measures.

In these measures, there are consistent references to formal cooperation between member states; several – such as that relating to the creation of EUROJUST in 2002 – allow for an element of non-member state collaboration if relevant to the investigation or prosecution.

Five of the chosen measures related to the Schengen agreement. One of these – covered in Schengen Article 40 – is particularly pertinent for police cooperation as it allows for continued surveillance of suspects when they move between countries affected by the Schengen agreement.

During her time as home secretary, Theresa May’s department wrote that ‘the loss of Schengen Article 40 would have an impact upon the ability of UK law enforcement to carry out operational activity overseas. While Article 40 is not the only way for UK requests for continued cross-border surveillance, it is the most effective.’

The paper further stated that the UK could pursue “police to police” international letters of request (ILOR) bilaterally, but this was deemed to be slower and less effective than Article 40, and ‘does not cater well for ongoing surveillance’. By opting back into these kinds of measures in 2014, the UK was able to reap the benefits of EU cooperation on the continent and of intelligence-sharing without an obligation to integrate further.

Brexit has the potential to affect this favourable situation for the UK, negatively impacting formal cross-border intelligence-sharing in an interconnected world that is more susceptible to transnational organised crime. A particular risk for police and judical cooperation in the forthcoming Article 50 negotations will be whether EU countries and the UK will be legally bound to give each other formal assistance in intelligence and operational requests. If they are legally bound, the UK will continue to get the best of both worlds. If not – a situation that currently seems more likely – the UK
will be stuck with something similar to the cumbersome case-by-case ILORs – with British requests given a lower priority than legally-bound Article 40 requests from other EU countries.

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