No Deal Brexit risks reversing human rights progress in extradition law

28 August 2019 by Guest Contributor

The UK Government’s vow to leave the European Union “whatever the circumstances” on the 31^st October has left the UK hurtling towards a no-deal Brexit this Halloween, but what does this mean for the rights of people subject to future extradition between the UK and the EU?

For the last 15 years, extradition between EU states has functioned under the European Arrest Warrant (EAW). The EAW is a fast track extradition measure that works on the basis of mutual recognition — the principle that the decision of a court in one Member State is carried out by the courts in another Member State.

Despite appearances in the negotiations, this is one area where the UK and the EU seem to agree on the need for continued close cooperation that largely mirrors current arrangements — the Political Declaration agreed by the UK and the EU envisaged ‘efficient and expeditious’ extradition arrangements.

However, if the UK leaves at the end of October without a deal, the UK will instead have to fall back on the 1957 European Convention on Extradition, which it has already legislated for in its ‘no deal’ preparations.

But that’s not the end of the story.

Once the UK does leave and becomes a third party state, it will be free to negotiate a new extradition arrangement with the EU. But instead of the transition period until December 2020 which would exist if the UK left with a deal (during which extradition would continue under the European Arrest Warrant), a No Deal exit may drastically change the UK’s negotiating timelines.  

The European Convention on Extradition has been described as three times slower and four times more expensive than the EAW, and the UK Government may well feel considerable pressure from crime fighting agencies to put new measures in place that rectify the loss of capabilities from losing the EAW. This could have serious implications for human rights.

It must be noted that the introduction of fast track extradition under the EAW was accompanied by a host of human rights abuses, including the disproportionate use of extradition for minor crimes, and delays to prosecution which left defendants languishing in poor prison conditions abroad. Whilst the introduction of binding procedural rights laws in criminal cases across EU countries has greatly improved access to justice across the bloc, the fact remains that the prison conditions and standards of law faced by those accused of a crime in one EU country may be significantly different to those an accused person would face in another EU country.

In light of several cases of injustice and widespread criticism from civil society, including Fair Trials, the UK introduced safeguards into its domestic law in 2014 to protect those facing extradition under the EAW. These included a proportionality test and a ‘trial readiness’ requirement, which are currently included in Part 1 of the Extradition Act, which governs extradition with EU countries under the EAW.

However, if the UK leaves with no deal EU countries will instead be included in Part 2 of the Extradition Act, which currently governs extradition with non-EU countries. Part 2 does not have these safeguards, because extradition with Part 2 countries is not based on mutual recognition and therefore is subject to different processes and requirements.

If the UK negotiates a new extradition agreement with the EU, the question for human rights will be how this new agreement is enacted into legislation, and whether the crucial safeguards currently contained in Part 1 of the Extradition Act, will be lost in the various cycles of designating and re-designating EU countries under Part 1 or Part 2. The UK’s determination to leave the jurisdiction of the CJEU, meaning that British courts will not have recourse to the European Courts over human rights issues raised by extradition in Europe (of which there have been several landmark rulings in recent years), only serves to make domestic protections more vital.  

In its haste to negotiate a new ‘expeditious’ extradition arrangement with the EU, the UK must not sacrifice crucial human rights safeguards in the name of efficiency. If these safeguards were to be lost, the new extradition agreement may find itself entangled in human rights challenges before the courts, making it not so expeditious after all.

Rose Burke is Legal and Policy Officer at Fair Trials. You can read more about Fair Trials’ work on human rights in the future EU-UK security agreement.