How will Brexit impact on the UK’s ability to counter terrorism?

One of the things that the UK and the EU can agree on is that counter terrorism (CT) cooperation must continue beyond the Brexit transition period. This includes protecting CT capabilities, such as mechanisms for rapid and secure data exchange; practical measures to support cross-border operational cooperation; and UK cooperation with EU law enforcement, intelligence and criminal justice agencies.

Yet, time is running out, and the UK is now unlikely to secure a bespoke Internal Security Treaty, providing permanent access to most (if not all) EU information systems. This was always ambitious, given the lack of legal basis or precedent and the UK’s refusal to adhere to the Court of Justice of the European Union (CJEU).

Instead, the scenario that the UK will crash out of the EU, losing access to all information systems and databases established on the basis of EU law is more likely. Even if the UK manages to negotiate a deal, this will likely be more restrictive than that awarded to Schengen Area associated states, representing a major loss of capability. The UK will attempt, and may to some extent succeed, in building parallel structures and workarounds. However, the end result is likely to involve more friction and reduced levels of cooperation. The impact on the UK’s terrorist threat picture is, however, likely to be minimal.

Worst-case scenario: ‘No deal’ Brexit
Law enforcement and intelligence agencies in Europe see terrorism primarily through a national lens. Even in the worstcase scenario, relationships between the UK’s security and intelligence services and their counterparts in EU countries will continue to operate on the basis of direct contact between national agencies. The UK will also continue to be a member of the Counter Terrorism Group (CTG), which facilitates CT cooperation across 30 European Intelligence and Security services. The CTG has the capability to undertake CT operations globally and provides valuable proactive and sometimes pre-emptive threat intelligence that would otherwise be unavailable.

In any case, the UK’s most significant and successful international CT collaboration is the Five Eyes community, principally the United States, but also Australia, Canada and New Zealand. Those and other extra-European connections will remain unaltered by Brexit.

This does not fully protect the UK against the loss of access to law enforcement and criminal justice tools resulting from a no-deal Brexit. In this scenario, the UK would see its access to EU capabilities fall below that of other third countries such as the US, Canada and Australia. This potentially exposes the UK to risks in three key areas: 1) identifying terrorists; 2) tracking their travel; and 3) extradition of terrorists to the UK.

1. Identifying terrorists
Even in the event of a deal, the UK will lose membership of Europol – the EU’s law enforcement agency. A hard Brexit would mean losing access to the Europol Information System (EIS), a database containing information on more than 86,000 suspected criminals and terrorists. UK investigators would no longer be able directly to check whether information on a potential terrorist suspect existed in any other member states’ systems. The UK would also be unable to exchange sensitive and restricted data through the Europol Secure Information Exchange Network Application (SIENA).

This would be compounded by the loss of access to the European Criminal Records Information System (ECRIS), which enables rapid exchange of information on criminal records and convictions, including terrorist information, across EU member states. This could cause delays in the retrieval of time sensitive intelligence that is paramount in the wake of a terrorist attack.

2. Tracking terrorists’ travel
A no-deal scenario would mean the UK would be denied participation in the Schengen Information System II (SIS II), losing real-time information on persons of interest, objects and vehicles travelling to the UK. The UK would also lose access to the EU Passenger Name Record (PNR) airline programme and would be unable to identify terrorist suspects in advance of travel, including those travelling under aliases.

In preparation, the UK is imposing stronger border controls, including £20 million of additional funding for the Home Office. This aims to help improve the intelligence picture about threats moving in and out of the UK, strengthening the multi-agency response to people and goods entering the UK and support investment in new capabilities for Border Force and Counter Terrorism Policing (e.g. improved detection equipment).

3. Extraditing and prosecuting terrorists
A hard Brexit would also mean that the UK would lose access to the European Arrest Warrant (EAW) regime, with no equivalent alternative arrangement in place. EU member states could therefore refuse to extradite their own nationals to the UK. To illustrate the EAW’s value to the UK: before the EAW existed, it took 10 years to extradite Rachid Ramda from Britain to France over his role in the 1995 Paris metro bombing. In 2005 it took just 56 days to bring the failed 21/7 London tube bomber Hussain Osman back from Italy to London using an arrest warrant.

A limited deal is reached
Whilst the UK appears to have accepted that it will lose unrestricted access to the EU’s capabilities outlined above, it is still in the interest of both sides to reach a deal. The level of access would vary by tool, and currently only Schengen Area associated states (Norway and Switzerland) are granted full access to any EU data system.

UK aspirations to maintain the core features of its current membership with Europol are unlikely. The UK could establish an operational agreement similar to the US, Switzerland and Australia, which would allow it to station liaison officers at Europol headquarters, and access Europol’s messaging facility and other services. This would not extend to the EIS. UK investigators seeking information on a potential terrorist suspect would have to make separate requests to member states to check whether they held relevant information. The process of determining whether EU nationals visiting the UK have terrorist convictions in their home countries could also take up to ten times longer in the likely event that the UK is unable to access ECRIS.

It is also not evident that the UK will benefit from real-time alert mechanisms of terrorists travelling into the UK, at least in the short term, given that the EU is unlikely to offer more than basic access to SIS II. There is also no legal basis for the UK’s hope for reciprocal transfers of PNR flight data. Any access is likely to come at a cost. The UK would be paying to use the very same system that it was instrumental in developing.

The UK has already announced that it is not seeking to participate in the EAW but aims to establish a fast-track extradition arrangement, based on the EU’s surrender agreement with Norway and Iceland. This treaty took 13 years to enforce after it was signed in 2006, though it is likely that both sides will want a post-Brexit agreement in place much faster.

What is the overall impact on terrorism in the UK?
The UK will be unable to replicate its existing relationship in any scenario. The main impact will likely be felt in terms of time and efficiency. Even in the event of a hard Brexit, after a period of initial disruption, most challenges would likely be mitigated by strengthening existing bilateral relations with member states and other rapid adjustments.

Anti-Western jihadists have shown relatively little interest in Brexit. The UK leaving the EU is unlikely to have any impact in terms of judging which countries should be targeted in future Islamist attacks. The effect of Brexit upon far right terrorism is more difficult to predict. If Brexit is perceived as a partial victory over ‘liberal internationalism’, this could inspire violent attacks to hasten its demise.

More importantly, the existing capacity of the UK to counteract any form of terrorist violence is unlikely to be greatly damaged. The reality is that neither the UK nor European governments want a terrorist attack that can be pinned, in part, on Brexit having caused a lack of preventive transnational coordination. Counter terrorism security is one of the few areas in which Brexit will ultimately make comparatively little difference.

Written by Emily Winterbotham. Emily is Director of the Terrorism and Conflict group and Senior Research Fellow at RUSI focusing on extremism and radicalisation, countering violent extremism and peacebuilding.

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