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||Neutral Citation Number:  EWHC 3815 (Admin)
||Case No: CO/5204/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||14 November 2014
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE JAY
MR JUSTICE LEWIS
|| JOHN STUART WHEELER
||- and -
||THE OFFICE OF THE PRIME MINISTER
THE SECRETARY OF STATE FOR THE
Richard Gordon Q.C., Jonathan Fisher Q.C. and Gerard 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
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Brian Leveson P :
- 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 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  2 AC 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 inter-governmental framework to a harmonised and enforceable European system. The present appeal highlights points that could deserve attention in that context. When the House of Lords European Union Committee wrote its 10th Report of Session 2007–2008 (HL 62-I) entitled "The Treaty of Lisbon : an impact assessment", the expectation was that the European Commission would "introduce measures to convert some of the more significant Title VI instruments, such as the European arrest warrant, soon after the Treaty of Lisbon enters into force" (para 6.323). This has evidently not occurred, at least so far, in relation to the Framework Decision on the European arrest warrant.
200. Failing their repeal, annulment or amendment, the position in respect of Title VI measures remaining in force unamended at the end of the five-year period is that the United Kingdom has, under article 10(3) to 10(5) of Protocol No 36, an option to notify a blanket opt-out as from 1 December 2014, with an accompanying right to apply to opt back in selectively to individual measures. If the United Kingdom decides not to notify the blanket opt-out or if, having notified one, it applies successfully to opt back in to the Framework Decision on the European arrest warrant, it must accept the jurisdiction of the Court of Justice and the Commission's right of enforcement. "
- Although not relevant for present purposes, it should be noted that Lord Mance dissented on the particular issue that arose in that case, namely the proper interpretation of the phrase "judicial authority" in the EAW.
The 2011 Act
- Quite separately, Parliament enacted the 2011 Act. That provides restrictions upon the ratification of certain specified Treaties amending or replacing the Treaty on European Union or the TFEU. For present purposes, it also provides that certain specified draft decisions must be approved by Act of Parliament and that a referendum must first be held at which a majority of those voting are in favour of approval of the decision.
- Section 6 of the 2011 Act is headed 'Decisions requiring approval by Act and by referendum' and provides that:
"(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless—
(a) the draft decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(3) A Minister of the Crown may not give a notification under Article 4 of Protocol No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU which relates to participation by the United Kingdom in a European Public Prosecutor's Office or an extension of the powers of that Office unless—
(a) the notification has been approved by Act of Parliament, and
(b) the referendum condition is met.
(4) The referendum condition is that set out in section 3(2) with references to a decision being read for the purposes of subsection (1) as references to a draft decision and for the purposes of subsection (3) as references to a notification.
(5) The decisions to which subsection (1) applies are—
(c) a decision under Article 86(1) of TFEU involving participation by the United Kingdom in a European Public Prosecutor's Office;
(d) where the United Kingdom has become a participant in a European Public Prosecutor's Office, a decision under Article 86(4) of TFEU to extend the powers of that Office;
(6) In subsection (5)(k) "the Schengen Protocol" means the Protocol (No. 19) on the Schengen acquis integrated into the framework of the European Union, annexed to TEU and TFEU.
- The referendum condition is defined in section 3(2) of the 2011 Act in the following terms:
"(2) The referendum condition is that—
(a) the Act providing for the approval of the decision provides that the provision approving the decision is not to come into force until a referendum about whether the decision should be approved has been held throughout the United Kingdom or, where the decision also affects Gibraltar, throughout the United Kingdom and Gibraltar,
(b) the referendum has been held, and
(c) the majority of those voting in the referendum are in favour of the approval of the decision."
The Factual Background
The Proposal for a European Public Prosecutor's Office ('EPPO')
- This entity is expressly mentioned in section 6(3) and 6(5)(c) of the 2011 Act. An EPPO does not fall within the scope of Protocol 36 because it had not been adopted before the entry into force of the Lisbon Treaty on 1st December 2009. Pursuant to Article 86 of the TFEU, an EPPO may be established through either the 'special legislative procedure', that is to say, requiring unanimity within the Council, or an 'enhanced co-operation' measure adopted by at least nine Member States.
- On 17th July 2013 the Council promulgated a draft EPPO Regulation. As Mr James Eadie Q.C. for the Government points out, the proposals contained within it have proved controversial with a number of Member States. Government policy has been, and remains, not to participate in an EPPO. Assuming that in due course an EPPO is established, the UK's position in relation to it will, as a matter of EU law, fall to be considered within the context of the UK's particular position under the Treaties. Thus, in the event that the special procedure route is adopted, Article 2 of Protocol No 21 would apply; and, in the event that the EPPO were established as an enhanced co-operation measure, the relevant provision would be Article 327 of the TFEU.
Opting-out and Opting-in
- On 24th July 2013 Sir Jon Cuncliffe, the UK's Representative to the EU, notified the Council of the EU that the UK had decided to exercise its opt-out right pursuant to Article 10(4) of the 36th Protocol. That decision will not take effect until 1st December 2014. On the same date, the Prime Minister wrote to the relevant European Commissioner notifying her of the UK's intention to opt-in to 35 measures which the Government considered formed part of an integrated package that was both in the UK's national interests and politically acceptable to the European Commission and other Member States.
- The package of 35 measures includes the EAW Framework Decision. As Mr Peter Storr, International Director at the Home Office, explains in his witness statement, it has only been very recently, namely on 7th November 2014 following a change of position by one Member State, that the necessary political agreement has been reached at an EU and Member State level to endorse this package.
- Once endorsed, the package was placed before Parliament on the following basis. 11 of the measures require domestic legislation to be brought into effect; the Government proposes to achieve this in the form of subordinate legislation, namely the Criminal Justice and Data Protection (Protocol No 36) Regulations 2014. The remaining 24 measures do not require legislative action. On Monday 10th November a draft of the 2014 Regulations was debated in the House of Commons, and the Government's position was that the vote ought to be treated as a vote on all 35 measures, not just the 11 which formed the subject matter of the Statutory Instrument. They all stood and fell together, because of the political negotiation and agreement which had been secured in the EU. As is well known, the House of Commons approved the draft regulations by a majority of 426 votes.
- The Government's intention is that the draft regulations will be debated in the House of Lords next Monday, on 17th November. Before they are made on 1st December, a number of further steps must be successfully taken at EU level, as explained in Mr Storr's witness statement.
- It follows that the Government has not yet given formal notice of its intention to opt-in pursuant to Article 10(5) of the 36th Protocol. It is made clear in the evidence, however, that it intends to do so in the middle of next week.
- Strictly speaking, therefore, the decision under challenge in these proceedings is a decision which has not yet been made. However, the Government's intentions are clear, and it is unnecessary to place any technical obstacles in the way of this challenge. Nor am I prepared to rule out this claim on the basis of Mr Eadie's argument that it is way out of time and should have been launched promptly and in any event within three months of 24th July 2013. While it is entirely accurate to say that the Government's intentions were clear enough and that constitutional issues of this nature should not have to be argued and decided under the pressure of time that is evidenced by this case, we recognise that, whether they would have come to fruition and at what stage, challenges such as this can still be mounted and are potentially live issues.
- The Claimant advances two grounds before this Court. His first ground amounted to a claim that the Government is legally precluded from notifying the European Council of its intention to opt-in to the 35 measures because the referendum condition has not been met. His second ground is that he enjoyed a legitimate expectation that a parliamentary vote would be held in relation to the specific issue of the EAW, and this expectation has not yet been complied with so that, consequently, the government cannot notify the Council that the United Kingdom wishes to participate in the acts relating to the EAW. I will deal with them in turn.
The Requirement for a Referendum
- It is necessary to be clear about what the Claimant seeks to argue in his first ground. As originally cast, there were four different formulations identified in a detailed Statement of Grounds. Late yesterday afternoon, however, a further Skeleton Argument was filed. This document advanced a somewhat different case under the broad umbrella of a contention that the UK is legally precluded from acting, as proposed, without holding a referendum, seeking to rely on section 6(3) of the 2011 Act to which the Claimant had not previously made reference.
- Mr Gordon's more recent skeleton argument invited the court to read it 'by way of substitute for documents filed by the Claimant earlier, to the extent that there is any inconsistency'. For my part, I do not find that formulation very helpful: are the original grounds superseded or must we undertake a textual analysis between those grounds and the skeleton to see if there is some difference in emphasis which is not inconsistent and which requires separate treatment? Having regard to the importance of the issues at stake and the speed with which this application has had to be considered, in order to deal with every argument, I first intend to address the original grounds whether or not inconsistent with Mr Gordon's submissions and then deal with his argument.
- Mr Fisher's first formulation was that the decision under challenge involves participation in an EPPO, and therefore falls within section 6(5)(c) of the 2011 Act. Although it is not in issue that the decision is not one under Article 86 of the TFEU, it is submitted nonetheless that for the purposes of this statutory provision it is a decision which involves participation in the EPPO: the verb involves connotes activity which is inclusionary and affects the EPPO's operation. The way Mr Fisher's argument runs is that the inclusionary activity in question must be regarded as the obligation on the part of the UK to execute an EAW which has been issued by or at the initiative of the EPPO.
- For my part, I consider this submission to be untenable. First, as a matter of fact, there is no EPPO yet in existence. It is stretching statutory language beyond permissible bounds to hold that a decision may involve participation in the EPPO if such an entity is anticipated but not current. Secondly, we entirely agree with Mr Eadie that section 6(5)(c) must be read in context. This provision only applies in relation to a decision under Article 86(1) of the TFEU to establish the EPPO. Thus, 'involving participation' entails, and may only entail, an intention to vote in favour of, or otherwise support, a decision of the Council to establish the EPPO. Although it may well be that the EPPO, once set up, is instrumental in issuing EAWs which impact on the UK and its nationals, this contingency is not catered for by these statutory provisions, which must be read and interpreted as a comprehensive code. In short, this provision cannot be construed in the loose and abstract way which Mr Fisher submitted was appropriate.
- Mr Fisher's second formulation of this first ground was that it is the clear and settled intention of Parliament, following the enactment of the 2011 Act, that no aspect of sovereignty should be transferred to an organ of the EU in the absence of a referendum. Mr Fisher refers to the preamble and to the Explanatory Notes. However, both of these must also be read in context, particularly the context of what the 2011 Act expressly provides. In our judgment, it provides, by section 6, for a detailed series of circumstances which, on the occurrence of any of them, the requirement for both primary legislation and the fulfilment of the referendum condition will be triggered. If the case falls outside the circumstances expressly specified, it cannot be accommodated within the statutory scheme by invoking some vague and generalised principle of 'Parliamentary intent'. There is no recognised principle of statutory construction which vouches such an approach: it is simply wrong.
- Mr Fisher's third argument was that the section 6 trigger applies because the decision involves a transfer of sovereignty to the EPPO and the Court of Justice of the European Union in connection with a criminal cause of matter. This argument was not expressly addressed in Mr Eadie's written submissions, but it can be dealt with very briefly. The issue is not whether a 'transfer of sovereignty' is involved in some imprecise and general sense; rather, the issue is whether what is proposed falls within section 6(3), section 6(5)(c) or section 6(5)(d) of the 2011 Act. If it does, the referendum condition must be fulfilled; if it does not, there is no requirement under this statute to hold a referendum. I have already addressed section 6(5)(c), in relation to Mr Fisher's first formulation, and, subject to what follows, I see no basis on which these other provisions could apply. It follows that this submission must fail.
- Finally, in relation to the original formulation of this first ground, Mr Fisher submitted that there has been a drafting error, and that it is clear that section 6(5)(c) was intended to cater for precisely the situation which has obtained. Accordingly, this Court, applying the principles laid down by the House of Lords in Inco Europe Ltd v First Choice Distribution (a firm)  1 WLR 586, should reformulate section 6(5) to correct the error.
- In order to address this submission, it is necessary to refer to the three conditions identified in that decision by Lord Nicholls of Birkenhead as having to be fulfilled before this exceptional jurisdiction might be exercised. He said (at 592C-593A):
"This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v. Wrotham Park Settled Estates  A.C. 74, 105."
- None of these conditions is fulfilled in the instant case. There is no basis for contending that Parliament made a mistake. Indeed, the wording of section 6 is precise and clear. Mr Fisher's submission amounts to an assertion that the section should be read in a manner which might conform with the Claimant's wishes but (at the very least) that is precisely the sort of exercise which would cross the line between construction and legislation. With respect to Mr Fisher, this submission is utterly untenable.
- I now turn to the fifth formulation of this ground which, additionally, is the way in which Mr Gordon advanced the oral argument. He relies on section 6(3) of the 2011 Act, which refers to a notification given under Article 4 of Protocol 21. This provides:
"The United Kingdom or Ireland may at any time after the adoption of a measure by the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union notify its intention to the Council and to the Commission that it wishes to accept that measure. In that case, the procedure provided for in Article 331(1) of the Treaty on the Functioning of the European Union shall apply mutatis mutandis."
- It is the Claimant's case that this sub-section applies because 'the Government's threatened notification in relation to the EAW Framework decision would be a notification under Article 4 of Protocol 21'. Furthermore, Mr Gordon submits that the words in section 6(3) – 'which relates to' - should be given a broad meaning and regard should also be had to the Explanatory Notes which refer to the Coalition Agreement and the commitment to ensure no further transfer of sovereignty or powers from the UK over the course of the next Parliament. As we understand Mr Gordon's submission, the Claimant's case is that section 6(3) applies because, once the UK opts into the EAW scheme and the EPPO is created, the latter's powers would be extended and the UK would, perforce, be participating in the activities of the EPPO. This is because the UK's opt-in decision as regards the EAW scheme could, without any further action on the UK's part, result in granting powers to the EPPO to have people arrested here.
- It is first necessary to examine the structure of section 6. Section 6(5)(c) applies to a specific decision, namely a decision under Article 86(1) TFEU, being a decision to establish an EPPO. That subsection applies where the United Kingdom participates in the establishment of the EPPO and such a decision involves participation in the EPPO. Section 6(5)(d) applies where the EPPO exists, the UK is a participant, and there is a subsequent decision to extend the powers of the EPPO. That is a reference to a decision under Article 86(4) TFEU to extend the powers of the EPPO to include serious crime having a cross-border dimension. Section 6(3), on the other hand, applies to a situation where the United Kingdom was not initially a participant but gives a notification under Article 4 of Protocol 21 to participate in the act establishing the EPPO or the decision extending the powers of the EPPO under Article 86(4) TFEU.
- The Government, however, is proposing to give a notification under Article 10(5) of Protocol 36. That is not a notification under Article 4 of Protocol 21 for the purposes of section 6(3). Article 10(5) provides that the United Kingdom may notify the Council of its wish to participate in acts which had ceased to apply by reason of Article 10(4) of Protocol 36 (here, amongst other measures, the Council Framework Decision providing for the EAW). The second sentence of Article 10(5) of Protocol 36 provides that the relevant provisions of Article 4 of Protocol 21, being procedural in nature, will apply to such a decision. For the purposes of section 6(3), however, the notification is a notification pursuant to Article 10(5) of Protocol 36, not Article 4 of Protocol 21.
- Even if that were wrong, and this was notification under Article 4 of Protocol 21, section 6(3) would only apply if the notification "relates to" participation by the United Kingdom in an EPPO or an extension of powers of the EPPO. Mr Gordon focuses on what he calls the Government's threatened notification in relation to the EAW, and not to any EPPO, and contends that there is an inextricable nexus between the two such that, in substance, the EAW notification relates to participation by the UK in an EPPO. In these circumstances, however, the notification does not involve participation in the EPPO but relies upon the potential, limited effect of the existence of the EPPO in the context of the EAW: the postulate is that, again potentially, at some future stage, there may be an EPPO and that may have power to issue an EAW. The words 'which relates to' in sub-section (3) may be broad, but they are hardly so wide as to equate or assimilate a notification in relation to the EAW to a notification in relation to an EPPO. The sub-section is envisaging a notification under Article 4 of Protocol 21 which relates to an EPPO, and nothing more or less than that. The relationship between the EPPO and the EAW which Mr Gordon relies on is both too remote and too contingent for the purposes of this provision.
- Furthermore, it is not possible to interpret the reference in section 6(3) to an extension of the powers of the EPPO to include a situation where the EPPO may be brought into existence and may be able to issue a warrant. That does not constitute an extension of the power of the EPPO for the purposes of section 6(3) of the EUA. That phrase reflects the wording of Article 86(4) and means a decision to extend the powers of the EPPO to include serious crime with a cross-border dimension. That interpretation of section 6(3) is also consistent with section 6(5)(d) which refers to Article 86(4) in terms.
- For my part, I reject the argument which represents Mr Gordon's recasting of the Claimant's first ground, however ingenious it might be. It is not arguable, and I would refuse permission in relation to this ground based on any of the formulations which have been advanced.
- The second ground that the Claimant advances is that a representation or promise was made that a vote would be held in the House of Commons before Her Majesty's Government notified the Council that the United Kingdom wished to take part in the acts relating to the EAW. The statements relied upon as constituting this representation or promise are said to be contained in (1) a response by the government to the Home Affairs Committee report on Pre-Lisbon Treaty police and criminal justice measures (2) a statement made in the House of Commons by the Secretary of State for Justice on 7 April 2014 (3) an answer given by the Prime Minister during Prime Minister's questions on 29 October 2014 and (4) an article by the Secretary of State for the Home Department in a national newspaper on 9 November 2014.
- The Claimant contends that these representations or promises give rise to a legitimate expectation, enforceable, in public law, that the government will hold a Parliamentary vote on any proposal to notify the Council that the Untied Kingdom wishes to participate in the EAW and no notice may be given under Article 10(5) of the Protocol unless such a Parliamentary vote has been held. Further, the Claimant contends that this legitimate expectation has been not been honoured as there has not yet been compliance with any representation or promise.
- First, in my judgment, even assuming without deciding that a promise of the sort claimed by the Claimant had been given, such a promise is not capable of giving rise to a legitimate expectation enforceable in public law. The position is indistinguishable from that in R (Wheeler) v Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs  EWHC 1409 (Admin) which concerned a claim that a promise had been given that a referendum would be held before the United Kingdom ratified the Treaty of Lisbon. As the Divisional Court held at paragraph 41:
"Even if we had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon Treaty, such a promise would not in our view give rise to a legitimate expectation enforceable in public law, such that the courts could intervene to prevent the expectation being defeated by a change of mind concerning the holding of a referendum. The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter. In particular, in this case the decision on the holding of a referendum lay with Parliament, and it was for Parliament to decide whether the government should be held to any promise previously made. "
- Secondly, notwithstanding Mr Gordon's submissions to the contrary, in my judgment the enforcement of the alleged legitimate expectation would, inevitably, involve a breach of Article 9 of the Bill of Rights 1689 and also the law of Parliamentary privilege. The principles underlying the latter have been conveniently summarised by Stanley Burnton J (as he then was) in Office of Government Commerce v Information Commissioner  EWHC 774 (Admin) as follows:
"These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts."
- Reverting to Wheeler, having identified these two principles, Richards LJ continued as follows (at para. 47):
"The first of those principles is particularly relevant to the use to which certain Parliamentary material may be put, and is considered later. The second goes to the core of the claimant's case. In R v Parliamentary Commissioner for Standards ex p. Al Fayed  1 WLR 669, 670, Lord Woolf MR said it was clearly established that "the courts exercise a self-denying ordinance in relation to interfering with the proceedings of Parliament". In R v Her Majesty's Treasury ex p. Smedley  QB 657, 666C–E, Sir John Donaldson MR said that "it behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so"; and against that background he went on to say, in relation to the particular Order in Council under challenge in those proceedings, that "it would clearly be a breach of the constitutional conventions for this court, or any court, to express a view, let alone take any action, concerning the decision to lay this draft Order in Council before Parliament or concerning the wisdom or otherwise of Parliament approving the draft". The court in that case was willing to consider whether such an Order, if approved by Parliament, would be ultra vires the enabling statute, but made very clear the care that needed to be exercised in relation to the limits of the court's role."
- In the present case, the claim is that there must be a vote in the House of Commons before Her Majesty's Government can undertake a particular course of action not only because of a legislative requirement (which, as a proposition, is the rejected first ground) but additionally because of based on legitimate expectation. It is said that to provide relief on this basis is not an interference with the work of Parliament; it merely proscribes executive action in the absence of Parliamentary approval. In substance, however, the claim is that, unless the House of Commons organises its business in a particular way, and arranges for a vote in a particular form, the courts must intervene and either grant a declaration or issue an order prohibiting the government from taking certain steps unless and until there is such a vote. In my judgment, that would involve the courts impermissibly straying from the legal into the political realm.
- Further, there would inevitably be a breach of Article 9 of the Bill of Rights 1689 as the courts would be questioning things done in Parliament: the courts would be called upon to determine whether particular votes held in the House of Commons were, or were not, sufficient to satisfy the alleged expectation. Neither is this possibility hypothetical: reliance is placed on what was said in Parliament about the vote that did, in fact, take place. Instead of facilitating the role of Parliament, as the Claimant would have it, this Court would be usurping it. The examples in Wheeler (at para. 53) are distinguishable: they all relate to representations which impact otherwise than on Parliament itself.
- For those reasons, the alleged promises are not capable of giving rise to a legitimate expectation enforceable as a matter of public law and the second proposed ground of challenge is unsustainable. In the circumstances, it is neither necessary nor appropriate for this court to determine the nature of any promise or representation that was made, and if so, whether it has been breached.
- For those reasons, the Claimant has not demonstrated any arguable ground for challenging any proposed decision to notify the Council that the United Kingdom wishes to participate in the acts relating to the EAW. I would refuse permission to apply for judicial review with the result that questions of interim relief do not arise.
Mr Justice Jay :
- I agree.
Mr Justice Lewis :
- I also agree.
Protocol 36 to the Treaty on the Functioning of the European Union
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.
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