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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wheeler v The Office of the Prime Minister the Secretary of State for the Home Department (Rev 1) [2014] EWHC 3815 (Admin) (14 November 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/3815.html Cite as: [2014] EWHC 3815 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE JAY
MR JUSTICE LEWIS
____________________
JOHN STUART WHEELER |
Claimant |
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- and - |
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THE OFFICE OF THE PRIME MINISTER THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendants |
____________________
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
____________________
Crown Copyright ©
Sir Brian Leveson P :
The Legal Framework
The EAW
"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."
"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 Status of the Framework Decision and the Amendments Made by the Treaty of Lisbon
"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. "
The 2011 Act
"(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.
"(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')
Opting-out and Opting-in
The Challenge
The Requirement for a Referendum
"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 [1980] A.C. 74, 105."
"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."
Legitimate Expectation
"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. "
"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."
"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 [1998] 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 [1985] 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 beultra 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."
Conclusion
Mr Justice Jay :
Mr Justice Lewis :
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.