A version of this article originally appeared on https://policinginsight.com/ on 19 July 2016.
It is rare to be able to combine a professional interest in both policing and constitutional law. The Brexit vote is a reminder to be careful what you wish for. At present, there is no certainty about the effect the vote will have on Britain's policing arrangements, and even the best guess can only outline where we need to get to, without addressing the more immediate question of how we get there. This article follows on from ones by Sir Hugh Orde, Gavin Thomas and others on Policing Insight on the Brexit vote, and considers what the practical implications of the vote might be from a constitutional perspective.
A sticky wicket
Should the United Kingdom remain a member of the European Union or leave the European Union? The referendum question was elegant in its simplicity. However, deciding to leave was the easy part. Coming up with a workable alternative is a very different proposition. The ongoing debate about what sort of arrangements the UK can expect to agree with the EU and the rest of the world highlights the number of different views about what arrangements the UK should pursue, and what can realistically be done in practice.
As far as policing and security are concerned, this matters. Cross-border crime and cross-border cooperation are vital issues. They are intimately related to a globalised world, rather than whether Britain is a member of the EU. Leaving the EU will not make them go away, and Britain needs a strategy to deal with them.
Up yours, Delors?
A popular caricature of the EU ever since Britain's accession has been of unelected Eurocrats telling Britain what to do. This misses the point. Although less obviously 'of' Europe than France or Germany, Britain has led the way in instituting substantial amounts of EU law. Don't tell the Metric Martyrs, but there is quite a lot of it that we would like to keep.
In his article, Gavin Thomas pointed out that 'tools such as the European Arrest Warrant, the passenger name records directive and the ability to share information around organised crime are just a few examples of the types of co-operation policing uses every day to keep people safe'. Sir Hugh suggests that in 2013 Chief Constables agreed that there were at least 13 EU measures Britain benefits from which are 'essential in keeping citizens safe', also expressing a less than optimistic view as to whether we will be able to retain such measures.
You Don't Get What You Deserve, You Get What You Negotiate
We are now in a situation where, to a greater or lesser extent, cooperative, EU wide measures are up for grabs, and we must negotiate with the rest of the EU. As with any negotiation, there are horses to be traded. While one would expect those negotiating Britain's exit from the EU (as well as EU Member States themselves) to make security a high priority, we are at a stage where there can be no certainty about what arrangements we will be able to effect. As several EU officials and European politicians have pointed out, allowing Britain to leave the EU on favourable terms may put the wider European project at risk by making exit appear attractive and pain free. It is at least possible that the EU will not give Britain all that Britain desires, if only pour encourager les autres.
There is more in the way of a successful deal than realpolitik. Negotiating our arrangements with the EU is one thing. Putting them into practice is quite another. As Sir Hugh points out, the fact that aspects of EU wide cooperation rely on the UK being part of '3rd Pillar Agreements' (which themselves rely on substantial harmonisation between Member States' domestic judicial arrangements) means that effecting the same or similar arrangements from outside the EU may at the very least be very difficult, and very complicated.
Gallingly (for civil servants in particular), there is no quick and accurate way to quantify how much EU legislation has become part of domestic UK law. What is known is that several thousand pieces of primary and secondary legislation have incorporated EU obligations into domestic law, while a substantial number of EU directives have 'direct effect', being directly part of UK law without requiring separate domestic legislation. Even the most conservative estimates suggest that it will take up most of the work of a single five-year Parliament to fully itemise which elements of UK law derive from EU obligations, to decide which parts we wish to keep, and to ensure that those parts go on the statute books.
What will be the effect on policing and security measures? Although perhaps less affected by EU legislation then other areas of domestic policy, they are not immune. The European Arrest Warrant system is a good example of an EU measure which has been incorporated into UK law using domestic legislation (the Extradition Act 2003 and various Orders made under it). This regime may need to be substantially amended, if not fully unpicked and replaced. Other, arguably more mundane matters such as police hours/overtime are dealt with by the Working Time Regulations 1998 (which incorporated EU requirements and opt-outs). These will have to jockey for position for parliamentary and executive time and consideration with any number of other priorities.
With a depleted civil service (which has shrunk by one fifth since 2010) undertaking the largest administrative exercise since 1945, it would be brave to bet that everything will run smoothly. Perhaps the best we can hope for is a slow but efficient grind where we end up with many of the arrangements we had previously with minimal disruption. The worst we might expect may be far worse.