John Stuart Wheeler v The Office of the Prime Minister and Another
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Jay,Mr Justice Lewis |
| Judgment Date | 14 November 2014 |
| Neutral Citation | [2014] EWHC 3815 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2014 |
| Docket Number | Case No: CO/5204/2014 |
[2014] EWHC 3815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Case No: CO/5204/2014
Richard Gordon Q.C., Jonathan Fisher Q.C. and Gerald Rothschild (instructed by Payne, Hicks Beach, London) for the Claimant
James Eadie Q.C. and Ben Watson (instructed by Treasury Solicitors) for the Defendants
Hearing date: 14 November 2014
This is an application for permission to bring a claim for judicial review of a proposed decision by Her Majesty's Government to give notice pursuant to Article 10(5) of Protocol 36 to the Treaty on the Functioning of the European Union ("The TFEU") that the United Kingdom wishes to participate in the Council Framework Decision on the European Arrest Warrant ("EAW").
In brief, the Claimant contends that Her Majesty's Government may not give such notice without first holding a referendum on whether that proposed decision should be approved. That issue raises a question of the proper interpretation of the European Union Act 2011 ("the 2011 Act") and the circumstances in which, pursuant to that Act, a referendum must be held prior to a particular decision being adopted. The Claimant subsequently added a further ground of challenge, namely a claim that an representations had been made that there be a vote in Parliament before such notice is given, and that these representation gave rise to a legitimate expectation enforceable as a matter of public law.
Before embarking on the detail of this judgment, given the frequent complaints of delay in relation to judicial review, it is worth saying something about the procedural history. A letter of claim was issued and sent to the Office of the Prime Minister and the Secretary of State for the Home Department on 10 November. These proceedings were issued on the following day with a detailed statement of facts and grounds (dated 10 November). Also on 11 November, the second ground of claim was served. Grounds of Resistance were served on 12 November and a skeleton argument provided on behalf of the Claimant on the following day, 13 November. Arrangements were made for this hearing, dealing with the application for permission, and, if permission is granted, final relief today, Friday 14 November. Further arrangements have also been made that should an unsuccessful party wish to appeal this decision, a Court of Appeal will be assembled at 2.00 pm on Monday 17 November, less than a week after commencement of proceedings.
Needless to say, this expedition can only be organised on an exceptional basis not least because of the disruption that it causes to the work of the court. Where the circumstances are exceptional, however, and where truly in the public interest, it should not be thought that the courts cannot proceed at speed and we are grateful to the parties and their representatives for their ability to respond accordingly. Although time has not permitted the preparation of a judgment of the court, I gratefully recognise the substantial contributions of Jay and Lewis JJ.
The Legal Framework
The EAW
The following is a brief summary of the principal features of the legal framework relevant to this application for permission. Article 31(1)(a) of the Treaty on European Union (prior to its amendment by the Treaty of Lisbon) provided for the adoption of measures laying down rules and procedures for ensuring co-operation in relation to judicial matters concerning criminal law. Pursuant to that provision, the Council adopted the Council Framework Decision of 13 June 2002 on the European arrest warrant and the procedure for the surrender of certain persons between Member States. The fifth recital of that Decision provides that:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities."
Article 1.1 of the Council Framework Decision provides:
"The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
The remainder of the Council Framework Decisions sets out detailed provisions governing the EAW. The United Kingdom gave effect to the Council Framework Decision by the Extradition Act 2003.
The Status of the Framework Decision and the Amendments Made by the Treaty of Lisbon
The Council Framework Decision was initially made under what was then Articles 31 and 34 of the Treaty on European Union. At that stage, the relevant provisions provided that measures such as the Framework Decision did not have direct effect. Furthermore, Member States were not obliged to accept the jurisdiction of the Court of Justice of the European Union in relation to such measures. The United Kingdom chose not to accept the jurisdiction of the Court of Justice. Thus, there could not be a reference by a court in the United Kingdom to the Court of Justice for a preliminary ruling on a question of interpretation of the Council Framework Decision nor could the European Commission bring enforcement proceedings against the United Kingdom before that Court.
The Treaty of Lisbon amended the Treaty on European Union and the TFEU. The provisions governing judicial co-operation in criminal matters are now included in Chapter 4 of Title V of the TFEU. As a consequence, the provisions governing references for a preliminary ruling, and the bringing of enforcement proceedings against the United Kingdom would have applied unless other provision was made.
It was in those circumstances that transitional provisions were included in Protocol 36 to the TFEU. For a transitional period of five years after the entry into force of the Treaty of Lisbon (that is, until 1 December 2014), the power of the European Commission to bring enforcement proceedings and the jurisdiction of the Court of Justice were to remain unchanged: see Article 10(1) of Protocol 36 (a copy of Article 10 being annexed to this judgment). The United Kingdom was permitted to notify the Council that it did not accept the powers of the Commission and the Court of Justice in relation to acts of the European Union in the field of police co-operation and judicial co-operation in judicial matters: see Article 10(4) of Protocol 36. The United Kingdom could, however, notify the Council at any time afterwards that it wished to participate in acts in respect of which it had previously given notice under Article 10(4): see Article 10(5) of Protocol 36. If the United Kingdom did notify the Council that it wished to participate in a particular act, the power to the Commission to bring enforcement proceedings and the jurisdiction of the Court of Justice in relation to enforcement proceedings and preliminary rulings would apply in respect of that act. The decision under challenge in the present case is a proposed decision by the United Kingdom to notify the Council pursuant to Article 10(5) of Protocol 36 that it wishes to participate in the acts relating to the EAW.
The position is summarised in the judgment of Lord Mance in Assange v Swedish Prosecution Authority [2012] 2 A.C. 471 (at paras. 198–200) in these terms:
"198. The Framework Decision on the European arrest warrant was a "third pillar" measure agreed under Title VI of the Treaty on European Union in the form that Treaty took before the Treaty of Lisbon. Third pillar measures in the criminal area required unanimity, and article 34(2)(b) EU of the EU Treaty provided that they were "binding … as to the result to be achieved but shall leave to the national authorities the choice of form and methods" and that "They shall not entail direct effect". Member states were not obliged to accept the jurisdiction of the European Court of Justice or the preliminary ruling system in regard to them, and the United Kingdom did not do so. The European Commission had and has no power to take enforcement measures against member states in respect of any perceived failure to implement domestically the requirements of a Title VI measure.
199. Under Protocol No 36 to the Treaty of Lisbon this position continues. The relevant text of this Protocol is, for convenience, set out in an annex to this judgment. Article 9 provides that the legal effects of agreements concluded between member states on the basis of the EU Treaty prior to the entry into force of the Treaty of Lisbon shall be preserved until such agreements are repealed, annulled or amended in implementation of the Treaties. Article 10 provides that, as a transitional measure and with respect to acts of the Union in the field of police co-operation and judicial co-operation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the Commission and Court of Justice remain the same, unless and until the relevant Title VI measure is by agreement repealed, annulled or amended or a period of five years has elapsed after the date of entry into force of the Treaty of Lisbon (ie until 1 December 2014). This transitional provision was designed to give the opportunity for any textual, institutional and procedural adjustments necessary at a European and/or national level, on moving from an...
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