Brexit and counter terrorism in the UK
Steven Greer, Professor of Human Rights at the University of Bristol Law School, analyses the overlooked threat from troubles in Northern Ireland and what kind of alternative arrangements, if any, might be provided post-Brexit?
Speculation about the consequences of Brexit for the UK has, not surprisingly, focused much more upon the economy, trade, migration, and self-governance than upon countering terrorism. While the most important contribution to the latter lies, in any case, with states themselves, the UK’s departure from the EU will, nevertheless, have counter terrorist implications. The two principal ones are likely to concern the effects upon the UK of its disconnection from the EU’s relevant policy frameworks, data bases and networks, and the galvanising effect a ‘hard’ border, ie one with physical impediments between Northern Ireland and the Republic of Ireland, may have upon dissident armed Irish republicanism with the risks this could pose for the peace process in Northern Ireland.
In order to assess these issues more fully, three core questions need to be addressed: what kind of counter terrorist relationship did the UK have with the EU before Brexit? How might this be affected by Brexit? And what kind of alternative arrangements, if any, might be provided afterwards?
The UK’s pre-Brexit counter terrorism relationship with the EU had broadly two key elements: it was party to relevant EU law, policy and bureaucratic systems, and it also belonged to several bilateral and multilateral partnerships, especially regarding intelligence-sharing, with other EU states. Since the EU has no dedicated terrorism-related institutions of its own, such as a police force or intelligence service, it cannot contribute directly to counterterrorism itself. But both it, and other pan-European organisations – especially the 47-member Council of Europe to which all EU states but not the EU itself belong – have sought to develop transnational policy, particularly since 9/11. The Council of Europe was first off the block when, in 1977, it promulgated the European Convention for the Suppression of Terrorism which sought to establish a transcontinental ‘prosecute or extradite’ regime for offences contained in other relevant international conventions. The impact of this treaty has, however, been limited because it permits states to refuse to cooperate where they have substantial grounds for believing there is a risk of prejudice on the basis of race, religion, nationality or political opinion.
In 1992 the Treaty of Maastricht created the European Union by reconfiguring the existing European Community as one of three ‘pillars’ and adding two others, one on Common Foreign and Security Policy and another on Justice and Home Affairs. A commitment to Police and Judicial Cooperation in Criminal Matters followed later. All four elements have implications for counterterrorism, particularly concerning police and judicial cooperation, the development of Europol (the European Police Office), the EU’s external activities, and the harmonisation of criminal law and justice between member states. Although the three pillars were formally abolished by the Treaty of Lisbon on 1 December 2009 the existing commitments nevertheless remain.
The events and aftermath of 9/11 accelerated EU counter terrorist activity within an international environment framed by unanimous UN Security Council Resolution 1373. This called on states to prevent and suppress terrorist financing, to refrain from supporting terrorism, to prevent the movement of terrorists by improving border controls, and to cooperate with each other including by sharing information. The Council of Europe also added a Protocol to the 1977 convention and, in 2005, promulgated a treaty on the Prevention of Terrorism and another on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism. The post-9/11 environment finally prompted the EU to approve, in 2002, the European Arrest Warrant which requires a recipient member state to arrest and transfer to the issuing state, a criminal suspect or sentenced defendant for, respectively, trial or completion of a period of detention. Other EU law and policy developments include the criminalisation of terrorism in EU law and initiatives regarding money laundering, terrorist finances, targeted asset-freezing and data surveillance. Many EU states have also passed their own fresh counterterrorist legislation.
However, the EU has been relatively marginal to counter terrorism in the UK which has had its own motives to develop domestic law and policy with both similar and different specifics. And, in any case, since every aspect of the post-Brexit relationship between the UK and the EU has yet to be negotiated, the prospect of a close working relationship on this front, including continued UK membership of the European Arrest Warrant regime, cannot be ruled out. Nor is Brexit likely to affect the UK’s existing bilateral and multilateral counterterrorist partnerships with specific EU states. The UK will also remain a member of the Council of Europe, including the European Convention on Human Rights with which its counter terrorist and other law and policy is required to comply.
Since jihadi terrorism in the UK is fundamentally domestic in character, albeit with a strong international though not particularly European dimension, it is unlikely that Brexit will have any direct impact either upon the threat or upon the way in which it is or should be managed. The effect of Brexit upon far-right terrorism is, however, more difficult to predict. It would be very optimistic to expect that leaving the EU would reduce some of the antagonism against ‘foreigners’, or being ‘ruled by foreigners’, integral to far-right ideology. It is, on the contrary, more likely to be perceived by those on this wave-length as a partial victory over ‘liberal internationalism’ which, thus weakened, invites further violent attacks to hasten its demise.
But the most serious threat Brexit poses for counter terrorism in the UK concerns its impact upon the Good Friday/Belfast Agreement of 1998. One of the pact’s core collateral achievements, welcomed on all sides, has been the creation of a pan-Ireland economy facilitated by a virtually invisible border between Northern Ireland and the Republic of Ireland across which goods, services, capital and people can cross without bureaucratic interference or inconvenience. The most intractable of Brexit’s many conundrums concerns how the UK, including Northern Ireland, can leave the EU yet avoid a hard border being reconstructed with physical manifestations including customs posts.
Brexiteers typically maintain that, post-Brexit, advanced technology will enable traffic in both directions to be supervised and controlled without the partitionist symbolism and bureaucratic physical impediments this would otherwise entail. But the details remain opaque and most informed commentators are sceptical about the practicalities. As highly visible indicators of reinforced partition, the customs facilities required by a hard Brexit would provide an inviting, and easy, target for dissident armed republican organisations never reconciled to the 1998 agreement. Violent attacks on such installations would not necessarily unravel the peace process on their own. But, should they occur, the risk of a slide back to organised tit-for-tat violence has also been increased by the prolonged suspension of the devolved institutions in Northern Ireland following the, as yet, unresolved dispute between Sinn Féin and the DUP, mostly regarding language rights and the alleged official mismanagement of a renewable energy scheme.