Chapter Five: Key cross cutting issues outstanding in the EU/UK Government negotiations
Court of Justice of the European Union and Data Sharing
30. As JHA cross border measures are EU wide they fall under the jurisdiction of the CJEU, which is the ultimate interpreter of EU law, and Member States are required to give its judgements primacy. It interprets EU law to make sure it is applied in a consistent way in all EU countries, gives rulings to national courts which require to apply EU law, and settles legal disputes between national governments and EU institutions. The UK Government's opposition to CJEU jurisdiction could result in losing vital cross border co-operation on data protection, information sharing and other criminal justice co-operation measures.
31. In her speech at the Security conference in Munich on 17 February 2018, the Prime Minister pledged that the UK would "respect" the remit of the CJEU when "participating in EU agencies" but that it was important the sovereignty of the EU and UK legal systems were protected and an independent dispute resolution put in place that the UK and EU both had confidence in.  We welcomed this acceptance of a role for the CJEU when it is in the interests of citizens' safety, but the UK Government has still not provided clarity as to the degree of tolerance it would be prepared to accept in terms of this relationship.
32. The arrangements for judicial co-operation across the EU, for example through the European Arrest Warrant and the European Investigation Order, are predicated on mutual recognition of orders by the relevant authorities of the various Member States. The principle of mutual recognition operates in the context of participation in the EU legal order, which includes the Charter of Fundamental Rights, and which is ultimately subject to the oversight of the CJEU. The application of the principle of mutual recognition to the jurisdictions of the UK, if it is outside that legal order, will present a novel challenge.
33. Operationally, effective co-operation is facilitated by access to EU databases. There is an inherent link between data-sharing, security and the CJEU.
34. EU privacy law forbids the movement of its citizens' data outside of the EU, unless it is transferred to a location which is deemed to have 'adequate' privacy protections in line with those of the EU. Once it has left the EU, the UK will become a 'third country' and at present no 'third country' currently has the same access to any of the EU's databases that the UK currently has as a member of the EU.
35. There are around 12 'third country' frameworks in place but these do not cover data exchanges in the security and law enforcement sectors. There are two exceptions to that, where special arrangements for the exchange of data have been agreed in respect of cross border measures relating to Passenger Name Records and Terrorist Financing Tracking Programmes.
36. As the UK Government has repeatedly argued, the UK already plays a major role in existing EU data-sharing systems, contributing 20 per cent of the total national security alerts on the Schengen Information System II system (SISII) and has a unique relationship with the EU both in terms of common threats and common goals. However, as the UK Government has also acknowledged, relying on precedents for EU agreements with third countries as a basis for the future relationship " would result in a patchwork of capability with a real drop in co-operation and serious attendant risks."  .
37. The UK Government has therefore proposed a ' UK/ EU Security Partnership' to ensure that these capabilities are maintained. The UK Government has also confirmed that at the point of exit from the EU, the UK's domestic law will continue to fully align with the EU data protection framework.
38. We believe that despite the ambition it has stated for a continued close relationship with the EU, the UK Government's opposition to CJEU jurisdiction could result in the loss of vital cross border co-operation on information sharing and other criminal justice co-operation measures. The Scottish Government would welcome CJEU jurisdiction on these matters in order to avoid losing these vital operational tools for our law enforcement bodies.