Bishop & Sewell

The referendum on whether Britain should stay in the EU will take place on the 23 June 2016.

Here is a brief overview of some of the possible effects on the justice system if Britain votes to leave the EU in the referendum.

National Security: If Britain leaves the EU, it may no longer benefit from certain Europe wide intelligence-sharing agencies such as Europol. Europol is the European Union’s law enforcement agency.  Rob Wainwright, its director told the BBC “I think [Brexit] will make Britain’s job harder to fight crime and terrorism because it will not have the same access to very well developed European cooperation mechanisms that it currently has today.


However, it is difficult to gauge the extent to which Britain would lose out. If Brexit did go ahead, Britain may be able to negotiate to continue to participate in some of the mechanisms which are currently in place.

European Arrest Warrants (EAWs): In the past six years, 6,165 suspected offenders have been removed from Britain to face trial in other EU countries following requests from European courts. In 2014-15, 1,093 foreign suspects were sent back to other EU countries. Only 138 were returned to Britain from abroad.

One of the advantages of the EAW from the prosecuting state’s perspective is the speed with which it operates. In 2011 the European Commission reported that the average time for the surrender of persons who consented to an EAW was 16 days and 48.6 days for those who did not consent. An EAW was used to extradite Hussain Osman, one of the men found guilty of planning and executing the 7/7 bombings. He was brought back to the UK from Italy to face justice very swiftly after his arrest.

This system would come to an end if Britain left the EU following the referendum. We would revert to the old, slower system that currently operates between the UK and non-EU countries. Prior to the introduction of EAWs, extradition from EU countries took, on average, 12 months.

From a civil liberties perspective, this would not necessarily be a bad thing. There are more grounds on which the accused can object to the extradition under the old system. This may prove an advantage to the defendant as it could lead to a more detailed evaluation of whether the extradition should take place.

It is worth remembering that even if Brexit went ahead, other types of agreements between the UK and  EU countries could be formed which would enable a system similar to the EAW to continue.

Bi-lateral Border Agreement with France: The Le Touquet is a Border Arrangement which currently allows UK border controls in France. If Britain leaves the EU, France’s Economic Minister has threatened to retract the agreement. This could lead to a higher number of migrants crossing from Europe to the UK.

David Cameron, campaigning to remain in the EU, has suggested that this could lead to an equivalent of ‘The Jungle’ refugee camp forming in Kent.

On a practical level, it is difficult to foresee how this could happen. Carriers (including ferry companies), have a legal obligation to check travellers have appropriate entry clearance. Carriers are currently fined and have to meet the costs of a passenger’s return if they facilitate the entry of individuals without valid leave to the UK.

Furthermore, if migrants arrived without the appropriate papers, and with no valid asylum claim, the Home Office would seek to detain and remove them. It is true however that the administrative and financial burden of this could be quite significant.

Those in favour of Brexit argue that Le Touquet would not be affected in any event as it is a bi-lateral agreement. It would not therefore automatically fall away if Britain left the EU. If Britain votes in the referendum in favour of leaving, whether Le Touquet would continue depends largely on the reaction of French politicians.

European Court of Justice (ECJ): Brexit would cut the link between the UK courts and the ECJ. Currently, the ECJ has sovereignty over the UK courts on points of European Law. This has been one of the most controversial aspects of Britain’s membership of the EU. If Britain leaves the EU following the referendum, individuals seeking to appeal decisions made in the UK on points of EU law, could no longer appeal to the ECJ.

It is currently unclear what would happen to existing ECJ precedent in the event of Brexit. For example, in respect of workplace equality, the Equality Act 2010 sets out the right to equal pay for equal work. This is a UK Act of Parliament so would not be affected by Brexit. However, interpretation of this legislation often derives from ECJ case law. Following Brexit, the UK courts might feel able to depart from ECJ authorities and re-interpret the law.

However, this is unlikely to happen due to the principle of legal certainty. It is logical that the UK courts would continue to interpret the Equality Act 2010 in line with the ECJ case law which fed into the formation of that Act, for example the 1976 case of De Frenne II. It would also seem likely that the UK courts would continue to follow subsequent case law up until the time of Brexit.

Human Rights: Brexit would not affect an individual’s ability to appeal to the European Court of Human Rights. This is currently only possible once a person has exhausted all domestic remedies i.e. there is no further right of appeal in the UK. Brexit would not affect the applicability of the European Convention of Human Rights in Britain either, although other Europe-wide human rights legislation would be affected.

Referendum conclusion

Britain’s justice system currently benefits in a multitude of ways from the EU. The downside for some critics is that, in certain areas of litigation, the court with the ultimate authority is the ECJ. If Brexit goes ahead, it is possible that we could continue to reap the benefit of Europe-wide cooperation by negotiating new treaties and arrangements. However whilst these new bonds are forged, Brexit would create a climate of confusion and uncertainty. Such an atmosphere is likely have a negative effect on the justice system and the rights of the individuals within it.

For information on Brexit and how this may affect EU citizens if the UK decides to leave Europe, please visit our Immigration Law area.

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