The Committee for Exiting the European Union examined the impact of Brexit on security policy, it heard from Camino Mortera-Martinez, Senior Research Fellow, Centre for European Reform and Sir Rob Wainwright, former Executive Director, Europol. I asked about and EEA-based Brexit, extradition and access to the EU justice and home affairs databases.

Stephen Kinnock: Thank you very much for coming today. I want to understand more about the EEA EFTA relationships that exist in this context. I know the Centre for European Reform and others have pointed out that Norway and Iceland have a multilateral extradition treaty with the EU and its procedures are very similar to the European arrest warrant, but the indications are that there is some complexity and difficulty with that treaty, which took 13 years to agree and ratify, and still has not been ratified by some member states. Can you say a little more about why that has been difficult? One would assume it would be easier to draw up terms with those countries than it would, for example, with the United States or a more distant country with a less integrated relationship with the European Union. Can you say a little more about why those difficulties occurred?

Camino Mortera Martinez: First, perhaps some terminology: the EFTA EEA analogy does not necessarily work here. In the justice and home affairs area, I prefer to distinguish between Schengen and non Schengen countries, taking into account that the EFTA Court does not have jurisdiction over justice and home affairs. That was an early mistake that was made in the conversation about whether the EFTA Court could have a role in this area.

When it comes to extradition arrangements with countries other than those in the European Union, we have three types. We have bilaterals, which is the case for Switzerland and the US. We have what we call mutual legal assistance treaties, which supplement these bilaterals. That is also the case for the US. Then we have multilaterals, as you rightly pointed out, such as the one between the European Union, Norway and Iceland.

In my view, the reason that this has taken so long to negotiate is precisely the issue of court jurisdiction, because they need to find a way to have a court that adjudicates questions of criminal procedures and fundamental rights. There is no way you can get away with an extradition treaty with no court’s jurisdiction whatsoever. Now, that took some time and the way the Norway/Iceland/European Union treaty solved that question was to establish some sort of a mechanism. Nobody knows what this mechanism means, how it will actually work, who will be part of it and how a mechanism, which is not a court, can decide on the questions I was referred to before, such as whether you can imprison somebody or breach somebody’s presumption of innocence.
Another question that was difficult was the famous question of whether to extradite own nationals to Norway and Iceland, and that has taken a long time to negotiate because, as you very well know, the European arrest warrant abolished the constitutional ban on extraditing own nationals. Now, every single member state of the European Union is bound to extradite own nationals to other member states, under the European arrest warrant. That does not happen outside the European Union for legal and jurisdictional reasons, which we can talk about later if you want as well. The Norway/Iceland treaty had to work around those problems, and it took a long time for member states to decide whether they were going to extradite their own nationals. I have the numbers somewhere here: at the moment, something like 14 countries have said they will extradite their own nationals only under conditions to Norway and Switzerland, and seven countries have said they will not extradite their own nationals under any sort of condition. This is one question that took a long time.

Finally, there is the question of political exemptions, which was a welcome development of the European arrest warrant for countries like yours and also for mine. I am obviously Spanish. You could not oppose the fact that somebody had committed a political crime to avoid extradition. This, on the question of Ireland and the IRA, and ETA in Spain, was very important to address a terrorist who was seeking safe haven elsewhere. This is not part of the Norway/Iceland treaty either and is not likely to be part of any treaty that the UK is able to strike with the European Union. That is another question that also took a long time to resolve. Those three questions, in my view, are the reasons that this is taking such a long time to agree.

Stephen Kinnock: They are still pending, so it has not been resolved.

Camino Mortera Martinez: The protocols on who is going to extradite own nationals are already there. The whole thing is already there. It is just a question of whether the Italian Government or even the Norwegians are going to ratify this treaty, because they are trying to finalise some issues of deciding whether this constitutional ban will apply or whether they can have an extradition treaty without a court overseeing it. Those are the questions pending for some member states. I am not speaking about all of them, but some of them.

Stephen Kinnock: Progress has been made, but it has been slow and complicated. I have a similar question on access to the EU justice and home affairs databases. This may be for you, Sir Rob, but it is also for Señora Mortera Martinez. What is the relationship between—for want of a better word, let us call them EFTA EEA countries, although I know it is not relevant in this case, because it defines a trading relationship and not a security relationship—those countries as that sort of family? What is their relationship with and access to the EU JHA databases?

Sir Rob Wainwright: As Schengen states, they have access to the Schengen Information System, in the way I explained before. In the context of Europol’s databases, they have the same rights as the 20 or so other countries that have signed a formal co operation agreement with Europol, such as the United States. As I said earlier that does not give them direct access to the databases, but some rights to exchange information.

Stephen Kinnock: For EEA EFTA member states that are potentially not members are Schengen, what is the protocol? Would a new protocol be required because it is intrinsically connected to Schengen membership or would new arrangements need to be made? If, for example, the United Kingdom, on leaving the European Union and after the transition period, went into EEA EFTA, would the negotiation of access to databases be an entirely separate process, because we would not be part of Schengen? That would be a separate track for the negotiation process.

Sir Rob Wainwright: In the case of Europol, it does not matter whether they are a member of EFTA, in the sense that the arrangements still call for a specific operational agreement to be concluded between Europol and a non EU member state. There is no distinction between different types of non EU member state, at least not in the case of Europol.

Camino Mortera Martinez: It is important to distinguish between the Schengen databases, such as the Schengen Information System and the Visa Information System, and the non exclusive non Schengen databases, like for example EURODAC, also the Prüm databases that store DNA and fingerprints, ECRIS, the European Criminal Records Information System, and the famous PNR, passenger name records. These are non Schengen databases and, by definition in my view, they are going to be easier to negotiate than the Schengen databases.

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