Brexit and National Security

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On June 23, Britons will go to the polls to vote on whether Britain should remain within the EU. Security — essentially, whether EU membership makes Britain safer — is one of the main issues in the referendum.

Those in favor of remaining in the EU rely on the benefits of initiatives such as the European Arrest Warrant and access to intelligence databases. For example, see Home Secretary Theresa May’s March interview with the Times and last month’s Sunday Times article by Lord Evans (former head of MI5) and John Sawers (former head of MI6).

Those in favor of leaving the EU say that the Five Eyes alliance (between Britain, the US, Canada, Australia, and New Zealand) is more important than the EU and that, in any event, EU cooperation could be reestablished after the Brexit.

But the question of security does not turn on policy matters alone. Law is at the heart of the debate. The Leave campaign rely, in particular, on (a) the wide-ranging rights protected by EU law and the Charter of Fundamental Rights of the European Union and (b) the role of the Court of Justice of the EU (ECJ). Under the heading “Our security. Deport dangerous foreign criminals”, the Leave campaign’s website makes four claims:

-The former head of MI6 says that leaving the EU would lead to ‘important security gains’.

-The former head of Interpol says the EU system is ‘like hanging a sign welcoming terrorists to Europe’ .

– Powers of our intelligence services and police are controlled by the EU Court – not us.

-The EU’s Charter of Fundamental Rights prevents us from deporting violent criminals & gives the EU court power over almost any security issue.

 

There is a kernel of truth in the last two claims, but they do not accurately capture the relationship between the UK and EU law/the ECJ, nor do they justify leaving the EU.

EU law and the ECJ

The Charter became legally binding on EU institutions and national governments in December 2009. Where an issue falls within the scope or implementation of EU law, the Charter has direct effect in the UK. The Charter codifies (i) rights in the European Convention on Human Rights (ECHR), (ii) rights developed in the case law of the ECJ, and (iii) other rights (e.g., those derived from the common constitutional traditions of the EU member states). It is therefore more wide-ranging than the ECHR.

The ECHR is a Council of Europe instrument and not an EU instrument. It was given effect in English law by the Human Rights Act 1998, which makes it unlawful for a public authority to act incompatibly with the ECHR rights scheduled to the Act. So leaving the EU will not, on its own, affect the role and status of the ECHR in English law.

Additionally, ECJ judgments are binding on British courts in relation to any question on the meaning and effect of the EU treaties or EU instruments. That means they are binding on British courts in relation to the scope and application of the Charter. Of course, this would not be the case if Britain left the EU.

The binding nature of ECJ judgments is in contrast with judgments of the European Court of Human Rights (ECtHR): When determining a question which has arisen in connection with the ECHR, British courts are simply required to “take into account” ECtHR judgments.

The Leave campaign focuses on the fact that EU law has been successfully invoked by “violent criminals” to resist deportation (and, to this end, it has published a list of 50 such criminals). That may be true: EU citizens may be deported from the UK “on grounds of public policy, public security or public health,” but measures taken on such grounds

shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. (Directive 2004/38, Articles 27(1) and (2))

Before an expulsion decision is taken, consideration must be given to, e.g., the person’s family situation. If the person has the right to permanent residence then s/he cannot be expelled “except on serious grounds of public policy or public security” and if the person has lived in the host member state for the previous 10 years then the decision to expel must be based on “imperative grounds of public security” (Directive 2004/38, Article 28).

It is, therefore, a combination of (1) the status and benefits of EU citizenship, (2) the right to a family and private life (which exists in both the Charter and the ECHR), and (3) the binding effect of ECJ judgments that has led to “violent criminals” resisting deportation. The Leave campaign’s portrayal of the issue is therefore incomplete.

No justification for leaving EU

But — by itself — this is scant justification for leaving the EU.  First, there are likely to be other, more proportionate, ways to address this problem (assuming that is what it is). For example, the UK Government’s February 2016 Paper, “The best of both worlds: the United Kingdom’s special status in a reformed European Union” describes “a new settlement” secured by the Government for the UK which “ensures greater freedom for the UK to act against the threat of crimes being committed by EU nationals moving around the EU by preventing those who pose a threat from coming into the country and making it easier to deport them if they have been living in the UK” (paragraph 1.15). The Leave campaign disputes whether this is — or would be — binding, but that misses the point that there are likely to be other, more proportionate ways of tackling this problem than leaving the EU.

Secondly, leaving the EU is not a complete answer to the problem that the UK may not be able to expel “violent criminals” when it wishes to do so in the interests of public security. Even if the UK leaves the EU, it will still not be able to expel “violent criminals” where such expulsion will lead to a violation of their rights under the ECHR (see, e.g., Article 3 and the case law of the ECtHR, including Chahal and Soering).

Thirdly, the importance of the ECJ’s role in securing the consistent application of a detailed scheme of agreed legal standards (including fundamental human rights) cannot be diminished by reference to cases which commentators (or Leave campaigners) think should have been differently decided. It is inaccurate to dub it a “rogue” court as Justice Secretary Michael Gove (and prominent advocate of the Leave campaign) has done. As David Anderson QC, the Independent Reviewer of Terrorism Legislation, observed in a piece in Prospect:

Finally, it is beneficial that arrangements within the ambit of EU law are fully underwritten by international human rights standards. As an experienced advocate before the European Court of Justice, I am well aware that its judgments do not always give pleasure to national governments. There have been recent hints that the Court may go further than law enforcement would wish in limiting the retention of phone and email records.

But such gripes, even if justified, count for little when measured against the advantages of legal accountability and compliance with fundamental rights. As governments improve their co-operation against international threats, the need for a strong legal counterbalance, applying mutually agreed standards, becomes more pressing. Ad hoc intergovernmental arrangements, excluded from the jurisdiction of supranational courts, do not meet that need.

European frameworks can help the UK to keep its people safe. They can also promote trust in the lawful exercise of power.

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers