EU could cancel Brexit security deal if UK quits European Court of Human Rights

If Britain leaves the European Convention of Human Rights after Brexit, it will trigger a “guillotine clause” that will nullify any UK-EU security partnership to fight crime and terrorism, under plans suggested by Brussels.

The security agreement would also be cancelled if the European Commission or the European Court of Justice decided that UK data protection standards did not match EU standards, according to slides presented by the commission to EU 27 diplomats.

The slides are “without prejudice” to a final UK-EU agreement and have not yet been agreed by the EU-27 government but give a strong indication of how the commission, which handles the Brexit talks on behalf of the EU, is thinking.

The European Convention of Human Rights (ECHR) is a charter policed by the European Court of Human Rights, which is not an EU insitution but part of the older 47 member state Council of Europe in Strasbourg.

Theresa May was reportedly planning to argue for Britain to quit the ECHR in her 2020 manifesto before she called an early election last year but this move could tie her and future governments' hands.

When she was Home Secretary Mrs May clashed with the ECHR, which prohibits torture and slavery while guaranteeing the right to a free trial and protests. She accused the court of frustrating her plans to deport hate preacher Abu Qatada.

Her Conservative Party manifesto ruled out repealing Britain’s membership of the ECHR “while the Brexit process is underway” but said the UK’s “human rights legal framework” would be considered afterwards.

Should Britain leave the Convention and its court or if the court condemns it for not observing one of its judgments in a relevant area, Brussels would automatically pull the plug on the security partnership, according to the slides which were published on Monday.  

The “guillotine clause” is described as a necessary safeguard for the EU in the document to ensure Britain maintains similar human rights laws as the EU after Brexit. Britain points to its track record on human rights. 

Britain has called for close cooperation on security after Brexit, including retaining its participation in schemes such as the European Arrest Warrant extradition system and intelligence sharing.

A senior EU official has said that if there were safeguards such as the clause, the EU would negotiate a new extradition treaty but that it would not be possible to keep the faster arrest warrant.

The official reacted angrily to British suggestions that the EU’s stance put citizens at risk and insisted any danger was a consequence of Brexit and essentially Britain’s fault.

"The sooner we can talk about these instruments rather than chasing fantasy of denying the consequences of Brexit the sooner we can find solutions," the official said.

British officials said that for every criminal extradited to Britain under the EAW, eight suspects were transferred from the UK to an EU member state .

More than 10,000 individuals have been extradited to face justice in the EU since 2004, they said, and last year Britain gave 6,000 pieces of intelligence to Europol Organised Crime projects, more than any other EU country.

Intelligence sharing will also be hit by Brexit, according to the EU, because there will be no guarantee that Britain maintains the bloc’s data protection standards once it leaves.

Britain will mirror the European Union’s data protection rules in British law in full, UK negotiators have said but Michel Barnier, the EU’s chief Brexit negotiator, has warned that data transfers will be subject to strict rules for selected non-EU countries, such as the Faroe Islands, New Zealand and Israel.

Britain wants to sign a bespoke data protection treaty, which would, to an extent, replicate the pre-Brexit status quo and argues it would be the foundation on which the future UK-EU relationship could be negotiated. 

In the slides, the commission said that Britain’s data protection laws would be weighed up in an “adequacy decision” by the commission. Such decisions can be withdrawn on 30 days notice. If withdrawn, the “guillotine clause” would be triggered.

The slides were published while there was confusion in Brussels over an expected round of Brexit negotiations due to start on Tuesday.

An agenda for the technical talks was yet to be agreed by 4pm local time on Monday and with Mr Barnier in Austria, Ireland and the Netherlands this week, expectations of a breakthrough before the June 28 EU summit were low.