What does the Brexit Withdrawal Agreement mean for the European Arrest Warrant? Read the small print...

Whether you consider it is the duty of our fellow citizens to read the 599 pages of the Withdrawal Agreement before expressing an opinion on Brexit, it is certainly the duty of any lawyer entering the fray.

Extradition practitioners are particularly anxious to understand what the impact of Brexit may be for clients subject to extradition requests from EU Member States.  Will we simply revert to former arrangements under the European Convention on Extradition, or will the UK negotiate a Norway-style arrangement permitting the use of something broadly equivalent to the European Arrest Warrant? How might the Withdrawal  Agreement, which is intended to come into effect on 30 March next year, affect extradition relations post-Brexit?

Sadly, the Withdrawal Agreement puts this question along with the Irish border into the "to do" pile and allows the status quo to continue, more or less.  Article 62 c)  of the Agreement envisages that the EAW scheme will continue to apply during the transition period "where the requested person [is] arrested before the end of the transition period for the purposes of the execution of a European arrest warrant".  

This implies no change to existing arrangements as of March next year, but that is not quite the full picture.  Turning through to Article 185 of the Agreement we can see an indication of the direction of travel.  

Article 185 is the legal trigger by which the Withdrawal Agreement might come into force.  It contains this significant provision, which allows, even in the transition period, for EU states to refuse to extradite their own nationals to the UK:

"When making the written notification referred to in this Article, the Union, in respect of any Member State which has raised reasons related to fundamental principles of national law of that Member State, may declare that, during the transition period, in addition to the grounds for non-execution of a European arrest warrant referred to in the Framework Decision 2002/584/JHA, the executing judicial authorities of that Member State may refuse to surrender its nationals to the United Kingdom pursuant to a European Arrest Warrant. In such a case, the United Kingdom may declare, no later than 1 month after the receipt of the Union's declaration, that its executing judicial authorities may refuse to surrender its nationals to that Member State."

It may be noted that the capacity of the UK to refuse to extradite its own nationals is conditional on a decision by the EU-27 to authorise a member state to make such a derogation. On this view, the UK is not so much leaving the EU as the EU is withdrawing from the UK.  It may be a sign of things to come.