Scotland's Place in Europe: security, judicial co-operation and law enforcement

Chapter Ten: Conclusion

98. The Scottish Government's determination to retain access to the JHA measures is a reflection of its commitment to a union of solidarity where countries come together for mutual protection, working together to address the challenges that affect our collective peace and security. The Scottish Government values greatly the regime of criminal justice co-operation to which we are party within the EU, and wishes to retain these. If this cannot be secured, we would look to keep as many of the existing measures as possible.

99. The JHA measures should not be seen in a hierarchy, with some measures having greater priority than others. The combined effect of the various measures is greater than each individual measure on their own. For example, the EAW would be less effective without the SIS II system. Further, the system is not a static one. The EU is continuing to develop the mechanisms for co-operation, in light of the justice and security priorities and different legal systems of those Members States involved in their development, and it may be anticipated that these developments will continue.

100. The UK Government is seeking a deep and special partnership with the EU and it has set out a proposal for a new security treaty to maintain continued security, law enforcement and criminal justice co-operation after the UK's departure from the EU. The UK Government' Framework for the UK- EU Security Partnership notes that "there would be a clear mutual loss of operational law enforcement and criminal justice capability if the UK ceased to participate in and contribute to this [ EU's] toolkit" ^[24] . As recently as 2014, the UK Government chose to remain opted in to a number of significant JHA measures, with the then Home Secretary describing the decision as being in "the national interest".

101. We support the UK Government aim of agreeing a deep and special partnership with the EU to ensure that current levels of security, law enforcement and criminal justice co-operation can continue. This sits alongside our belief that the interests of the UK, including Scotland, would best be secured by continued membership of the European Single Market and Customs Union. Any new arrangements between the UK and the EU on law enforcement and security must respect Scotland's separate and independent justice system. These arrangements must recognise the independent role which the Lord Advocate has as head of the system for the investigation and prosecution of crime in Scotland and his specific functions in relation to cross-border criminal justice co-operation.

102. Any deep and special partnership must also protect and enable continued direct links between our independent justice agencies and their EU counterparts, so that they are able to participate and influence policy in future developments at an EU level. This is necessary in order to:

• Maintain operational effectiveness;
• Maintain our ability to co-operate fully with European partners; and
• Maintain our ability to influence developments which will affect the safety and security of the people in Scotland.

103. In order to maintain data sharing for law enforcement purposes, the Scottish Government would agree to on-going compliance and keeping pace with data protection requirements. We would also welcome CJEU jurisdiction on these matters, if this is needed to secure on-going justice and security co-operation.