By Armida van Rij and Benedict Wilkinson
For policymakers on both sides of the Channel, it is clear that it is in everyone’s interest for the UK and the EU to continue to cooperate on security matters post-Brexit. Until this weekend, however, the big question pending was ‘How?’. Theresa May, speaking at the Munich Security Conference on Saturday, attempted to answer this question.
Security cooperation and the UK’s analytical, capacity and legal edge
The UK and its (for now) fellow EU Member States cooperate on security through a myriad of ways. Most of these fall under the EU’s justice and home affairs (JHA) policies, creating a highly complex and a dense web of legislation, which, come March 2019, will no longer apply – the UK will simply have no legal framework granting it access to, and/or participation in, various EU policies, organisations and initiatives.
Currently, the UK is the leading EU Member State in the field of intelligence, both in terms of counter-terrorism and military operations. The UK has unequalled data gathering, processing and analysis capabilities, which has in turn led to the successful disruption of terrorist operations across Europe. By some estimates, the UK provides between 40-50% of shared intelligence for the EU’s strategic assessments. This is in part facilitated by the UK’s intelligence laws, which allow for further penetration into citizens’ privacy than other EU Member State – a double edged sword – thereby legally providing its European allies with capabilities and intelligence they otherwise would not have access to.
Equally, on the military capability front, the UK holds over 50% of the EU’s combat intelligence, surveillance and reconnaissance-heavy unmanned aerial vehicles, and around 40% of all its electronic intelligence aircraft.
Once the UK no longer has access to EU databases, or is no longer able to share intelligence and analysis with other European allies, countries on both sides of the Channel risk losing out.
The balance on the proposed UK-EU security treaty
May’s speech received a mixed reception in Munich. On the one hand, it was viewed it as yet more cherry-picking, while others considered it to be a serious speech with concrete proposals. Either way, within the UK, but also in the rest of Europe, there was a sense that at last the PM was taking a stance and setting out what the UK is after in its future security relations with the EU.
Perhaps the most controversial element was the crossing of a previously red line, which ‘became pink’, in the words of Mark Leonard from the European Council on Foreign Relations: May made a concession on the jurisdiction of the European Court of Justice (ECJ) – something which hard-line Brexiteers in the UK will not be pleased about – by stating that ‘when participating in EU agencies the UK will respect the remit of the ECJ’. If the UK were indeed to accept the jurisdiction of the European Court of Justice, this would go some way towards addressing the issue of judicial oversight, as it is the ECJ that oversees the application of, for example, the European Arrest Warrant.
The real issue
However, regardless of political will, technical and legal difficulties will still pose profound challenges for continued close security cooperation between the UK and other EU Member States. As an IISS report points out, there exists a far more dense web of EU regulation surrounding security cooperation than defence cooperation.
Particularly problematic is the delineation of EU ‘security’ policy – which is taken to refer to internal EU security, and therefore includes policing, under JHA policies – and the EU’s Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP), which are taken to mean external policy and include defence. Legally, however, it is far more difficult to neatly separate the two, as this conversation between two academics highlights.
The UK’s status as a non-EU Member State will only complicate this question of legislation, legal basis and jurisdiction further, and as a result this may be a limiting factor for UK-EU security cooperation.
A further difficulty, which in part explains the mixed reception in Munich, is that, in essence, the UK is asking for a special post-Brexit arrangement with unparalleled levels of close cooperation – unprecedented until now. If granted, this would represent recognition from the European Council that the UK is indeed not like any other third country, and as a result deserves a bespoke agreement based on its unique and necessary security capabilities.
Perhaps promisingly, in a European Commission document on the EU27’s preparatory discussions on the framework for the future defence and security relationship, the EC recognises that it would be in the EU’s interest to have an ‘appropriate level of intelligence cooperation with the UK in support for EU external action’.
What does this all mean?
While the political will expressed by Theresa May is welcome and laudable, there is still a long way to go before this legal hurdle is cleared. Doing so in a manner that is strategic, effective and agreeable to the many diverging parties involved will require more than the ‘creativity and ambition’ that she asked for in her speech.
Armida van Rij is a Research Assistant and Benedict Wilkinson is a Senior Research Fellow at the Policy Institute.