‘Third Party’ Status in EU Policing and Security - Comparing the Position of Norway with the UK before and after the ‘Brexit’

Abstract

European Union (EU) police and justice cooperation is based on EU legal frameworks. Some of these frameworks have an important impact on EU policing practice both generally and on cooperation regimes with the United Kingdom (UK) in particular. The UK involvement in EU police and justice cooperation could therefore potentially be endangered by the ‘Brexit’ – the UK referendum decision to leave the European Union. This decision was announced on 24 June 2016. Even prior to the Brexit, the UK already chose not to accept the jurisdiction of the Court of Justice of the European Union and the enforcement powers of the Commission in relation to pre-Lisbon security measures under Article 10(4) of this Protocol. As an EU member, but not party to the EU Freedom, Security and Justice (FSJ) instruments, the UK had very limited options in participating in EU security measures, such as Europol, Eurojust or Joint Investigation Teams (JITs). A number of measures, including the three mentioned above, were therefore selected to be re-joined as they were considered crucial to UK security. With a Brexit and non-membership in the EU, but as signatory of EU FSJ instruments, the UK would be able to acquire ‘third party’ status to some of those measures. This is only the case, however, if the UK, similarly to Norway, is willing to (re-)adopt relevant instruments after exiting the EU. The UK is a medium-trust society. If the police were to be excluded from, for example, EU police agencies’ information exchange, this trust could be further eroded. This article compares the participation of the UK in criminal justice cooperation in the EU before and after Brexit in comparison with Norway’s participation in EU law enforcement. As Norway has long standing practice as a close third party and associate state of the EU, its experiences could be applied by the UK if the Brexit is put into practice. Furthermore, the article explores what the impact of the Brexit could be on the security situation in the UK, focusing in particular on JITs, the European Arrest Warrant (EAW), Europol and the Schengen Information System (SIS).