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The deal reached with the EU, if implemented, poses significantly fewer risks for the UK’s security than a no deal scenario, especially in the short term. The Withdrawal Agreement means that most elements of the current security partnership, at least in relation to internal security, will remain unchanged until at least the end of 2020.
Once the transition period is over, however, it will be difficult to maintain the current high levels of internal security cooperation. The UK will have to make much harder choices between sovereign control and operational effectiveness than it has had to take while still a member state. In security terms, the full benefits of membership – combining both shared decision-making and operational effectiveness – cannot be replicated under the proposed deal.
Consequences of No Deal
Compared to a no deal scenario, the agreement reached with the EU has significant advantages for the UK’s security – maintaining most elements of current internal security cooperation up to the end of 2020 and holding open the possibility of continuing close cooperation thereafter.
If the UK were to leave the EU without a deal, it would have severe and immediate consequences for the UK’s ability to combat crime and terrorism. There would no longer be a legal basis for the large-scale real-time exchange of personal data – for example of criminal records – that has now become an important part of European law enforcement. Both the UK and its neighbours would be less secure as a result. Nor would new bilateral ‘work-arounds’ easily replace current EU instruments. More likely, in the absence of a deal with the EU, criminals would learn to take advantage of the gaps left by weaker cooperation to hide from scrutiny.
The Future Partnership
In advance of the deal, both parties had recognised that the negotiation in relation to internal security was particularly challenging, and the UK feared that the Political Declaration would make it impossible to maintain current high levels of police and justice cooperation – for example in relation to criminal extraditions, joint investigation teams, and data exchange on passenger movements, DNA, fingerprints, vehicle registration and criminal records.
It is a significant achievement, therefore, that the agreement holds out the possibility of close cooperation in all these areas. But nothing specific has yet been agreed, and the agreement has made clear, at the insistence of the European Commission, that:
[T]he closer and deeper the partnership, the stronger the accompanying obligations … such as with regard to alignment of rules and the mechanisms for disputes and enforcement including the role of the Court of Justice of the European Union.
In practice, this means that, in order to maintain close-to-existing levels of operational cooperation, the UK will have to become a ‘rule-taker’ in relation to the development of new justice and security policies and practices, unable to have a seat at the table but obliged to follow new regulations as they are developed, and to subject these (directly or indirectly) to European Court of Justice judgements. Such agreements may be possible for an initial post-transition period, allowing for a more gradual transition to a more typically ‘third country’ arrangement. It may be politically difficult to sustain a ‘rule taking’ status when UK national practices diverge from those of the EU, and as new technological developments trigger new policy responses. But the pace of this divergence can be a managed one, allowing alternative ways to be developed that can mitigate operational damage while respecting the sovereign control that both the EU and – over time – the UK are likely to want.
Other Areas of Security
The shape of the future security partnership in relation to foreign and defence policy is less contentious than for internal security.
The UK will not be part of the process of participating in the Common Foreign and Security Policy once it leaves. The details of arrangements for future cooperation still need to be developed but are in any case likely to evolve over time. Both sides accept that the other will want to be able to develop its foreign policy separately from the other. The depth of cooperation is therefore likely to depend, most of all, on how far UK and EU approaches converge on specific issues. Arrangements for intelligence sharing are likely to be especially sensitive, but the principle of a ‘security of information agreement’ has been agreed.
On defence, the UK will no longer be able to lead EU military missions. The deal will allow the UK to participate in future missions by agreement on a case-by-case basis. Given the UK's historic scepticism over the EU’s military role, however, it remains to be seen how often it will take up such opportunities.
As the Galileo row suggests, defence-industrial cooperation is an altogether more difficult area, and made more so because of the strong national economic interests involved. In key capability areas, pan-European companies depend on tariff-free, just-in-time supply chains, the future of which is likely to be affected by whatever the final relationship is between the UK and the EU’s custom union and single market.
The Future Security Partnership holds out the possibility of future collaboration with the European Defence Agency, the European Defence Fund and – ‘on an exceptional basis’ – the EU’s Permanent Structured Cooperation. In each case, however, the agreement makes clear that any such relationship would have to respect the ‘respective strategic autonomy … underpinned by robust domestic defence industrial bases’ that both sides want. The greater the role of these EU instruments in European defence industrial cooperation, the more difficult it is likely to be for the UK. But Brexit could also limit the role of the EU in many areas, as European companies and governments recognise the advantages – of scale and expertise – of collaboration outside an EU framework with the UK.
Malcolm is Deputy Director-General at RUSI.
BANNER IMAGE: UK Prime Minister Theresa May arrives at the Tallinn Digital Summit, 2017. Courtesy of Estonian Presidency / Wikimedia Commons.
The views expressed in this Commentary are the author’s, and do not necessarily reflect those of RUSI or any other institution.